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home thoroughly disgusted, insisting that his Edinburgh agents should be changed immediately, and was with great difficulty persuaded that the proper laying of his case before the court depended upon counsel, and not upon a set of respectable middlemen, whose function was simply to put into counsel's hands the information and materials they had received from the country. He afterwards attended the hearing of his cause, which was ultimately gained, and was satisfied that his counsel, at any rate, had made himself thoroughly acquainted with all the details of it.
Now, I am far from saying that all Edinburgh agents think it right or proper to be mere carriers, as it were, between the country agent and counsel; I am happy to think that many of them take an intelligent interest in the causes which are committed to their But if a case can be managed in the way I have just described, the question naturally occurs, why should professional etiquette require two intermediate agents between client and counsel? Why should not counsel take his instructions immediately from the country agent? Or if he be capable of properly communicating them, from the client himself? I cannot conceive why the porcelain dignity of an advocate should be thought to be soiled by his shaking hands with a simple procurator from a provincial town, or the yet simpler miller or drayman who may have mother wit enough, or education enough, to enable him to be his own trumpeter. No doubt it may be said that counsel cannot attend to the details of court procedure,-to the making of enrolments, watching for interlocutors, and such like. Well, let him keep a clerk, or, if need be, a staff of clerks. An advocate's clerk may master the forms of process just as thoroughly as the Parliament House clerk of my old friends, Messrs. X. Y. Z., and would have the opportunity of learning a little law to the bargain.
The mention of these mysteries, the forms of process, reminds me that in my last communication I omitted any reference to those blessed things, Special Cases, introduced into the practice of our courts by the Court of Session Act of 1868. The successful working of these shows how much economy of time, temper, patience, and money, may be effected, when parties and their legal advisers choose to exercise a very moderate amount of attention and candour, instead of seeking to multiply papers, and revisals of papers, darkening counsel by words without knowledge, or to produce confusion and expense by engaging in proofs at large and proofs before answer, which land judge and jury in a maze, or introduce a mass of irrelevant matter into a process only to be kicked out again.
And now, in conclusion, let me cite another instance, from actual experience, as illustrating evils that once existed under our judiciary system, and our judicial forms, and the use or abuse of these to which practising lawyers thought themselves entitled to resort. The action was one of damages for breach of promise of marriage.
The pursuer's summons contained in gremio a full and particular account of the doings and misdoings of parties; and her averments were duly met in the defences by admissions or denials on the part of her opponent. One would have thought that this might suffice for a record. But the pursuer moved for, and obtained leave, to give in a condescendence, which consisted merely of a repetition of the statements in the summons cut up into numbered articles. After answers had been lodged to this, the pursuer was allowed to revise her condescendence, and the revised paper was just a copy of the original one, with this sole variation, that each article was introduced by the conjunction That. I almost think, though I am not now quite sure, that there was a re-revisal, when the That was omitted. At all events, it was only after three, if not four editions of her statements had been made, that the pursuer would listen to terms, and a settlement was effected. Probably enough, her advisers considered that in all this they were only punishing the "faithless swain" with due severity; but under the supervision of a careful judge such an accumulation of unnecessary expense should not have taken place.
Si vales, valeo; vale.-Yours, &c.,
April 16, 1873.
GLASGOW, 28th April 1873.
PRIVILEGES OF LAW AGENTS.
THE movement in favour of the institution of a homogeneous bocy of law agents throughout Scotland is still gaining ground in the capital of the West, which, remarkable as it is for liberality in other respects, has hitherto, strange to say, been the most conservative of places in the matter of a reform for which so obvious a necessity exists. Nothing could better show the anomalous state of things which now exists than some late correspondence in the Glasgow newspapers with regard to the exclusion of a Glasgow procura.or from the Sheriff Small-Debt Court, over which Sheriff-substitute Spens presides at Hamilton. That gentleman wrote a letter, in which he quoted his commission, to show that he was truly entitled to practise in all the Courts in Lanarkshire; but his disgust must have been extreme on reading the following letter which afterwards appeared in the same paper :
"To the Editor of The North British Daily Mail.'
"SIR,-When 'A Procurator for 27 years' rushes into print with a grievance, it is important to see whether the facts upon which he bases his complaint are correct. Now, is it the case, as the writer alleges, that his commission as a Glasgow procurator extends over the whole county of Lanark, or over the Hamilton district of that county? I am a Glasgow procurator, and my com
mission gives me no such privilege. On the other hand, it is the fact that several Glasgow procurators desirous of practising in Hamilton, Lanark, and other country districts, when occasion may occur, have been obliged to present a separate application to be admitted as members of the local bars, and, on admission, to contribute to the local funds. As to whether the existing law should be altered so as to secure to a qualified procurator, wherever admitted, the legal right of appearing in any Sheriff Court, I give no opinion. But while the law remains as it is, and country practitioners are religiously excluded from the Glasgow bar, I do not see how a Glasgow procurator can fairly object to the Sheriff in Hamilton applying, in his own Court, the same rule which he is asked to apply when sitting in Glasgow. This is all that the grievance amounts to, and it is difficult to see how, with consistency, the Sheriff could have ruled otherwise than he did.—I am, &c., FAIR PLAY."
GLASGOW, 7th April.
Another instance of the injustice and absurdity attendant upon the present state of matters, with regard to the privileges of procurators, is afforded by a case which occurred a few days ago in the Sheriff Court at Paisley, in an action raised under the Debts Recovery Act. The agent for the pursuer is a procurator of the Sheriff Court of Renfrewshire, admitted at Greenock. The agent for the defender is a Glasgow practitioner, who had got himself registered as a procurator for Buteshire, consequent upon the passing of the Act 33 & 34 Vict. c. 86 (Sheriffs (Scotland) Act, 1853, Amendment, &c.), by taking a pleasant run to Rothesay on a fine summer day on board the Iona. By the above Act the counties of Bute and Renfrew are united, and by the 12th section it is provided"Every union of counties into one sheriffdom, under the provisions of this and the recited Act, or either of them, shall be deemed to be a complete union to all intents and purposes in so far as regards the jurisdiction, powers, and duties of the Sheriff and his substitutes, and in so far as regards the powers, duties, rights and privileges of procurators before the courts of the Sheriff. And the several counties of any such united sheriffdom shall not hereafter be regarded as separate sheriffdoms or jurisdictions, but as one sheriffdom and jurisdiction, in so far as regards the powers, duties, rights, and privileges of the Sheriff and his substitutes, and the procurators of the Sheriff's Court." The practitioners in the Paisley Sheriff Court have a Royal Charter dated in 1803, the tenor of which is-" And we further will and declare that no person shall be entitled or be qualified to plead and practise before the said Sheriff Court of Renfrewshire, Burgh Court of Paisley, or any other court or courts of law, held or to be held within the town of Paisley, or to become a member of the said Faculty, unless such person shall have served a regular apprenticeship by indenture for five years with one of the members of the Faculty, and have been duly entered on the books of the Faculty as an apprentice." It appears that the Sheriff Court of Renfrewshire, at the period in question, consisted only of the court held at Paisley. Subsequently the Court at Greenock was established, and now the Sheriff Court at Rothesay is also part of the Sheriff Court of Renfrewshire.
At the diet in the case above referred to the Sheriff-substitute, ex proprio motu, declined to allow the Greenock procurator to appear, and insisted that the pursuer should get a Paisley agent. The Glasgow practitioner, having been admitted at Rothesay, was allowed to conduct the case for the defender. The grounds of this decision were, that the Act of Parliament did not affect the privileges of the Paisley procurators on any question with Greenock agents, but simply with those admitted at Bute. Possibly his Lordship may be right in taking this very narrow view of the effect of the provisions of the Act; but if so, how can the union referred to in the 12th section be held to be "a complete union to all intents and purposes?" The plain intention of the Act is to give all the procurators of a united sheriffdom equal and reciprocal rights. The Sheriffsubstitute held, that a Bute procurator can appear in the Paisley and Greenock courts, and it is to be supposed that he would also hold that procurators in either of these two places can appear in the Rothesay court. If the Paisley privilege is not pleadable against a Rothesay procurator, because he is held to be a Paisley procurator by virtue of the Act, how can it be pleaded against one from Greenock, seeing that he, by the same reasoning, must be held to be also a Rothesay procurator by virtue of the same enactment, and to be consequently entitled to all the privileges of a Rothesay procurator? Why should a Glasgow procurator, who requires to become a member of the Buteshire court by special admission of the Sheriff, be in a better position than a Greenock practitioner who is a member of that court by virtue of the Act of Parliament? In such a case as this, would not the proper principle for decision be found in the maxim privilegiatus contra æque privilegiatum jure suo non utitur? It is fair, however, to the Sheriff-substitute to say that the point was not argued before him, and that he started the objection, as it is understood, on account of complaints on the part of members of the Paisley faculty. But if any one can eat his way into the privileges of that faculty by partaking of a few greasy dinners on board of a river steamer bound for Rothesay, is it worth while to preserve the cheese at all, or to be particular as to the kind of mice by whom it is to be nibbled?
But whether the Sheriff-substitute is right or wrong, the incident itself goes far to show the wretched state of matters which the Government has hitherto permitted to exist with regard to the position of law agents. There is really something supremely ridiculous in the idea of men who have all received pretty much the same education and legal training, who practise before the very same set of judges, administering the same law by the same forms of process, being chained and caged in a particular square of the territorial chess-board into which this unfortunate country has been converted, beyond which they have no professional status whatever! Why, that was precisely the condition of the Saxon ceorl or villein, who, even when he possessed personal liberty, had no right to labour out
of his own hundred or wapentake. It was about eighty or ninety years ago also the condition of colliers and salters. An unhappy being of this class was fundo annexus. He might possess personal liberty, but had no right to work outside of the particular territory to which he was astricted. In what better position are procurators in Scotland relatively to such places as Glasgow and Paisley than the individuals just referred to, except that they cannot be compelled to work in the particular sheriffdom where they were first admitted to practise? A collier or a salter might have purchased the right to labour elsewhere-a country agent can buy the freedom of practising in Glasgow. He cannot do it for love or money in Paisley, for the charter gives no power to admit him. It required a special Act of Parliament to enable the Glasgow faculty to sell indulgences, but the Paisley men have thought it wiser to keep their thrums and bobbins for their "ain bairns." Now, what does this state of matters suggest? Plainly this, that the unprivileged law agents in Scotland are not free men in the full sense of the term freedom. If that is so, then they may be called serfs in a modified use of the term serfdom; for, after all, and when you are asked to give a logical definition of servitude, what is it but the negation of liberty of one class proceeding from the monopoly of freedom possessed by another? This is perhaps a strong way of putting the case, but practically it comes to that. Here we are in the year of grace 1873, with all exclusive privileges in trade and commerce swept away since 1847, with no exclusive privileges existing among the solicitors of England or Ireland, but with the plant of monopoly flourishing in the legal profession in Scotland as luxuriantly as ever. We boast every day of our freedom, but as long as any one of the classes of which the community of this "great nation is composed is not free, we are not entitled to make that boast." "Was ist die Freiheit," says a German publicist," einer Nation anderes als die Freiheit jedes einzelnen Gliedes derselben ?"
It will hardly be considered matter of surprise if the existence of such monopolies in a country like Scotland should have caused the same publicist to say, "Dass sie noch bestehen ist ein merkwürdiges Beispiel wie langsam Gerechtigkeit und Vernunft bei den Leitern eines gerechten und vernunftigen Volkes Terrain gewinnen." Whether that is so, or whether, as others say, this state of matters proceeds from an apathy which is one of the results of the system by which this ancient kingdom is practically governed, by a practising barrister instead of being represented by a Secretary of State for Scotland, with a seat in the Cabinet, it is not necessary to consider; but at all events the latter reason cannot be applicable to the present Lord Advocate. Mr. Young showed every desire to push his Agency Bill through Parliament last year, and but for opposition at the last moment from Glasgow it would certainly now have been law. It has been matter of pretty general surprise that the Bill has not again been introduced, but doubtless the Lord Advocate knows best his own time and opportunity.