A Representation to the High Court of PARLIAMENT of some of the most Palpable Grievances in the COLLEDGE of JUSTICE both as to its Constitution and Administration and several Members thereof IT is evident from the whole Tract and Current of our Statutes and Records that the King's Council were first Institut the Supreme Judges in all Civil Causes and that the Council was Nominat and appointed for advising the King in all matters of State and others by His Great Court of Parliament But by the 65. Act Par. 3. James 1. It is Statute that there be some Commissioners of Parliament chosen per vices who with the Chancellor shall sit at three times in the year for cognoscing and Determining of all Causes that were formerly cognosced by the King or his Council and who were also called Lords of Session as is clear by the Act 61. par 14. Ja. 2. Of which Judicature so Constitute there was small or no Alteration until the 36. Act 5. par Ja. 5. Whereby in place of the said Committee of Parliament there is a fixt Colledge of Justice Institute to consist of Fourteen able Qualfied Persons and a President And for declaring their Qualifications and prefixing Rules for Administration of Justice the whole subsequent Acts of that Parliament were made And by the 68. Act thereof there is several Priviledges and Immunities granted to the saids Lords as is at length therein contained and by the 93. Act of the 7. Parliament of the said King these priviledges are again ratified and the Popes Approbation and Confirmation thereof and which is also ratified by Queen Mary Parliament 2. Cap. 1. and James the 6. Parliament 1. Cap. 18. And by many other subsequent Acts of his and all other Parliaments All which do still go on in the style of ratifying and approving of the foresaids Priviledges But till this day never any Restrictions or Limitations put either upon their Nominations or exercising the said Office which has been got waved by the Interest of these who were Nominat and in Office and their Sway and Power which they had in all Succeeding Councils and Parliaments whereof many of them were also ordinarly Members So that their power is of a long time come almost to be Arbitrary Seeing they assume not only the Power of making Acts of Sederunt whereupon some of the greatest Estates and Securities of the Nation are now founded but also to expound clear Acts of Parliament expresly contrair the positive words thereof which is in effect to repeal the samen thereby assuming the Legislative Power since ejus est interpretare cujus est tondere And albeit they might pretend they could not otherwayes explicat their Jurisdiction and whatever they might claim right to during the interval of Parliaments yet after they are incited and sitting all such Acts and Interpretations ought to have a Parliamentary Sanction and Ratification other wayes to have been lookt upon as deeds not Approveable by the States nor Wisdom and Justice of the Nation And all this was predicted by the Learned and Sagacious Buchannan who in the 14. Book of his History near the end thereof does express himself in thir Terms Quo die collegium Judicum Edinburgi constititum est ab its cum ab initio multa utiliter essent ex cogitata ut jus equabile Diceretur tamen qui sperabatur eventus non est confecutus Nam cum in Scotia nullae pene sint Leges praeter conventuum decreta eaque pleraque non in perpetuum sed in tempus facta judicesque quod in se est lationem legum impediant omnium â—â—â—ium bona Quindecim hominum arbitrio sunt commissa quibus perpetua est potestas Imperium plane Tyrannicum Quippe quorum arbitria sola sunt pro legibus I think it not fit to Translate it in English least the Vulgar should be tempted to look upon him as a Prophet It may be therefore justly thought that in this healing Juncture there be a slender Representation made of such things as seem to be palpable grounds of Grievance in that Court in the right Constitution and Administration whereof all persons from highest to the lowest are or may be eminently and dearly concerned Seeing their Lives and Fortunes may become the Subject of their consideration and therefore there can be nothing more acceptable to the People or worthy the trouble of the Representatives of the Nation nor to redress what may be amiss therein and seing in many things the same is faulty both as to its Constitution and Inhability of the Members as also in the male Administration though rightly constitute thir Points are offered as worthy Consideration Relative to the Lords Advocats and Kings Advocat Lord Register and Clerks of Inner and Utter House And also an hint of some particular Grievances of which in Order Primo Seeing by the Laws of all Nations and in special by the Act 134. Par. 12. Ja. 6. It is thereby Statute that to all Vacations in Session none shall be presented but Men fearing GOD of good Learning Knowledge and Practick of the Laws and having sufficient living of their own and farther that none be admitted unless they be sufficiently tryed and known by the King and Lords and have in yearly Rent an 1000. Merks or 20. chalders of Victual If in Justice or Law any ought to be admitted to that Function but such as Quadrat therewith the samen never being yet repealled by any Act of Parliament whatever Violations or Subversions have been made thereof by unjust streatches and Court Recommendations whereby persons have been thrust into that Office whose Inclinations not Education did never Level at the meanest Imployment in that Court. And it arrived to that height of Indifference what persons were admitted to that Office that it was the ordinar Assurance to such as the Court intended to gratifie that they should either be one of the Lords of Session or a Captain of Foot a pretty Alternative indeed as was lately proposed to a Gentleman to move him to end a Bargan with an then Eminent Statesman 2do Seeing that the puting of Persons in that Office not qualified as said is must inevitably occasion great purloining and delaying of Justice to the prejudice and ruine if not all at least of many who shall come to have Dependencies before them If it be not therefore the Concern of the States and People that not only the said Law be brought in Observance but some new Sanction superaded thereto that may make the samen more effectual And in special that seeing we are now come to that consistance as to have many Subtilities and Niceties both in our Statutes Customes and Practicks that none be admitted to the saids Offices but such beside what is above mentioned as have also been Legally admitted Advocats according to the usual forms of Tryal and have practised several years therein Candidly and with that Integrity and Ability which ought to be Indispensably requisite in
he is Check to both yea he thereby so fixes himself as that he can neither innovat nor alter what is Extracted and done And the Law expresly sayes nec credendum Judici nec clerico nisi quatenus constat ex actis so that there can be nothing more gross nor to lodge the two Offices of being Clerk Judge in one Person Nor does his Greatness and Multiplicity of Offices stop here but he is Clerk of Parliaments and Conventions and upon him depends all the six Clerks of Session Clerk of the Bills Clerks of the Register of Seasins Clerk to the Register of Hornings Clerk of Chequer Clerk to the Admission of the whole Nottars of the Kingdom together with many others which I here omitt And most of these being Offices wherein things pass of Course and have Emoluments that might gratifie very considerable persons Yet are all swallowed up by this Leviathan which therefore ought to be divided and these intrusted to depend immediately upon his Majestie Especially seeing there is now so many men and yet few imployments being absorbed by the exorbitant Extent of this and some other such Offices As to Advocats what and how Honourable that Office is the Encomia given and priviledges granted by the Emperors thereto does sufficiently demonstrat with what respect it was lookt upon by them For Theodosius and Valentinian by a Novel Constitution exprest themselves to this purpose Let those who deserves to be Advocats be esteemed worthy of all Honour for what Honour can we Judge these unworthy of who by their Life and Eloquence preserves not only the Republick but the private Interest and lives of Persons And the Emperor Leo farther adds in thir words Suaeque defensionis viribus sepe publicis in rebus ac privatis lapsa erigunt fatigata reparant non minus provident humano generi quam si preliis atque vulneribus patriam parentesque salvarent clarissimis anumerantur militumque privilegiis frunutur That therefore none be admitted to that Office but such as pass the ordinar Tryal by publick and private Examinations and Lessons and that it be declared not to be leisome for the Lords to admit any upon Bills under the pain of amitting an years Sallary Likeas that it shall be a sufficient Defence for any party against whom any such Advocat shall be imployed that he was not Legally admitted as said is It is evident to the World how far this Nation has degenerat not only from the practice of the common Law especially Imperial Roman Constitution But also from its own Customs and Statutes foresaid made at the Institution of the Colledge of Justice and the Custome and Practice of all other well governed Nations That by Court recommendations or particular Favour or Interest in some single Senator These whose Education had never any tendency that way but on the contrare were educate for Souldiers Merchants and other such Extranious Employments after they were discouraged in these were admitted to the said Office summarly upon a Bill without any previous Tryal either of their Ability or Integrity And seing they had neither Art nor Merit whereby to promote their Interest by fair Means and having undertaken the samen of purpose to reap Advantage thereby it cannot be imagined how these Designes should be effectuate but by abusing that Trust which some of the Ignorant might repose in them and by whom daily Clamours are made that they are cheated and abused by their Lawyers which to undecerning Hearers is a reflection upon that Noble Office whereas the Actors are such as never did merit that Designation And what can be imagined to have been the Design of such Recommendations and Admissions but that there might be plyable Men put in to serve some State turn That when those who were in Office refused to solve according to their Inclination what should be proposed but that such as were reastie should be turned out and such put in their places as would give opinions at their discretion as these Judges in England had done thereby to give a Colour of Law for their Proceedings to the amusing of the undecerning People What ever latitude might have been taken by the Lords in former times yet it ought not now to be assumed Primo Because by the 64. Act Par. 5. Ja. 5. Whereby the particular persons therein mentioned are ordained to be Procurators and the motive is said to be that they are men of best Name Knowledge and Experience and thereafter is subjoyned that if any other Cunning Men would desire to admitted to that Office they should be received for compleating the said number so that the Lords are there limited by that first Fundamental Law so that none be admitted but such as are cunning that is to say are Men of Art Knowledge and Experience 2do Albeit there might have been some Latitude taken by the Lords in admitting of persons not qualified at the Infancie of the Colledge when few were educate for that Employment Yet now when the number of such is so incressed far above what is necessar and these Men of Literature Integrity and Quality It is not only unjust and unwarrantable in it self summarly without Tryal to admit others as said is But is also Discouraging and Disadvantagious to those young Gentlemen who has spent their Time and Estates at home or abroad in fitting themselves to serve in that Imployment 3tio Seing there is so many Persons who have Prosecute that Study so as that upon Tryal they may be justly admitted yet seeing the number has so increased and multiplyed of late that there can not be suitable Encouragments expected for all whereby some may be tempted to ungenerous Courses and Practices such as Instigating or buying of Pleas or the like That therefore the number be retrinched to Fourty or Fifty and that none be admitted but upon their Decease and that these who are tryed and ready to be admitted serve as Agents and Extrajudicial Managers of Process and that all others be secluded but such as have studied the Laws and are ready to be admitted upon Vacancie whereby also these who have assumed without any previous tryal the name of Agents will be secluded and rendered useless And the Laws already made discharging them will thereby become effectual 4to Seeing the said Imployment is dignified by the Encomia and priviledges foresaid and that they differ from the Lords not in Kind but Degree That therefore according to the Custome of France England and other Neighbour Nations they be covered when they plead and that the mutual Compellations be such as is used there seeing otherwise the most Eminent Advocats shall have no Priviledge above what is allowed their Servants It cannot be denyed but the Colledge of Justice was long Institute before there was any particular person appointed to be Kings Advocat and the first appointed was in Queen Mary's Minority at which time there was but very few Affairs that did occur wherein her Majesties Advocat might
be concerned So that tho one was at that time sufficient and the interest of the persons Nominat since has been always so great with the King and Court that it has been al 's easy to turn them out as to procure the least Alteration thereof but now in this Age when Pleas are increased and multiplied to Ten for One moe nor was at the said first Appointment Especially such wherein his Majesties Advocat is principally concerned as Riots private crimes open Rebellions besides many other Civil caises unheard of at that time That therefore his Majesties interest and of the State whereof he is an Officer should now at least be lodged in three or four pickt out by the States for that effect Primo Because not only are matters multiplied as said is So that it is impossible for any single person to exercise the samen but either with loss to his Majesty by neglect of what ought to be done or doing what ought not to be done as by intending Malitious and groundless Processes against Subjects Whereas if the Office were Collegiat in a number of fit and Qualified persons It were not to be feared but upon joynt advising they would discover what Processes were groundless Vexations and State streaches so as they would be choaked in the Bud. 2ly It can be made appear that in the year 1683. and 1684. when most of the Heretors and Inhabitants of the Western Shires were either cited in as Pannals or Witnesses for proving Reset or Converse and others the like Crimes who would have attended some twenty some fourty or sixty dayes before they could be got examined by the Advocat who was otherwise taken up in Session Council Exchequer or other Courts whereby these Shires are conjectured to have been at the Expence in some few years of upwards of 300000. Merks in simple attending at Edinburgh which was occasioned by the being of one single Advocat as said is 3tio As the stating that Office in moe would be Advantagious both to His Majestie and the Leiges for the Reason foresaid so also upon this ground that thereby each of them might have their proper Posts viz. One for the Council and matters of State an other for the Exchequer and matters of Revenue a third for the Justice Court and the fourth for the Session and Commission of the Kirk yet not so to be posted as one of them to exclude another but that the persons concerned might Address equally to them all and this would also secure the Leidges against the inconveniency that attends the fixing this Office in one single Person which makes them frequently both Arbitrary and unaccessible Besides that it has all the Grievances which can accrue from a Monopoly which is Reprobate in all Law. 4to In Neighbouring Sciences such as Divines Physicians His Majesty has alwayes three of four at least and there is greater ground for multiplying of Persons in this Office. 5to It will nothing add to the charge of his Majesties Expence seeing thir many years by past the Sallarie and Pension allowed to that Office may be sufficient Competencie tho divided in four seeing they will also remain Advocats for the Leiges and whose Imployment will center to them upon that account In respect of all which there ought if not four to be at least two as has been in some former times with two Solicitors As to the Clerks of the Inner and Utterhouse as all Men in publick office ought not only by our Law but by the rules of common prudence and Justice to be persons or known Ability and Integrity It being impossible if they be otherways but that the Leidges must egregiously suffer either by their Ignorance or fraud considering how many occasions they have to trincket if they be base they having the custody of the Securities of the Nation and thereby become Masters of many of the secrets of their Affairs and who may add or omitt both in Interloquitors and Deliverances of Bills which may chance to be the ground of an extracted Decreet against which our Law has small or no remed unless the abuse of the Clerk and the injustice of the thing it self be most gross and palpable and even when it is such Persons are put to a vast charge trouble and expence in clearing thereof and in being reponed against the samen so that means ought to be fallen upon for crubbihg of such intollerable Practices which may so overawe as that none may hereafter darr to commit the like and that whatever may be detected which may be gross and willful that thereupon Deprivation at the least be inflicted 2do That none be admitted per saltum to the said Office unless they have gradually ascended from being some competent time Educat in Clerks Chambers or that they have been practising Advocats Writers to the Signet or the like 3tio As to their Fies and Allowances the exorbitancie thereof are so many and Noture especially since the Act of Regulation 1672. that it is fit there be Commissions renewed for rectifying thereof And albeit such have been granted by several Parliaments since yet so far have these in Office prevailed for shifting thereof that the persons were never yet condescended upon to have been insert in these Commissions and the Acts were Printed blank contrair to all former Laws and Practick of the Nation whereby the persons Names are alwayes ingrossed in the Acts and Printed therewith and particular dyets appointed for that effect to be keeped under severe Penalties else the Law is only rendered redicule as wanting Certification or Compulsorial These being some of the general Grievances whereof the Oâ—â—dure throng of a Parliament can only be expected to judge 〈◊〉 there are many others which may truely and fitly be given 〈◊〉 any Commission that shall be appointed for the effect Such 〈◊〉 to make effectual Laws for discharging the Syde Bar Item To â—â—viate the binding officious Compearances in Decreets by Advocates upon the Lieges whereby many of them have been highâ—â— prejudged when Advocates did either of themselves or at the desire of Agents or others take dayes for Defenders to give thâ—â—â— Oaths in ordinar Actions or to produce Writes in Improbatioâ— And whereof the Client was never Advertised but Sentence 〈◊〉 out against them and which is irrevockable in our Law. Tâ—â— therefore in these and such like cases the Compearer ought 〈◊〉 have a Written Mandate at the least Papers in his hands which 〈◊〉 import the samen Item How far Clerks shall be lyable for 〈◊〉 produced to them and how long Item How long Writes â—â—â—duced be the Defenders in Reductions and Improbations ougâ—â— to lye in the Clerks hands seing many of them are miscartâ—â— by lying too long therein Item If the Principals be once â—â—duced so that the Pursuers may either take Doubles or Nâ—â—â— thereof if they ought to be again produced untill the Causâ—â— Advised Item That the Money lying in the Clerk to the 〈◊〉 Hands as the Expence modified at suspending inferiour Decrâ—â— and Protestation Money and others of the like nature not raâ—â—â— up by the Parties be given up for advancing the Library of 〈◊〉 Faculty Item That the Commissars and Sheriff-Deputes be chosen of these Advocates who will be laid aside upon the Restriction of their number to fourty or fifty as said is These and inâ—â—â— numbers of others of the like nature which may be both reâ—â—â—sented to and regulated by the Commission which may be â—â—pointed for that effect I here commit until the Parliament so think fit to appoint the same to consist partly of Persons of 〈◊〉 several Offices within the said Court who best knows what is to 〈◊〉 Rectified therein and may be the fittest mutual Checks to other FINIS