would be long observed (even if it could be fixed consistently with the prerogative of the Crown), and a few years hence we should have the same political corruption in the Parliament House which now exists in the distribution of silks in the sister country. The English system of promotion is now, as Englishmen themselves describe it (L. T. vol. 38, p. 4), a mere device by which political support is made the condition of professional advancement, for a change of government means not only a new Premier, Chancellor, and Attorney-General, but a new batch of Queen's Counsel. And what does professional advancement of this kind mean? It implies higher fees; a share in the government of the Inns of Court, for every Q.C. becomes a bencher; in the case of a man of any ability a share in the leading business in the Courts, for Q.C.s are emphatically leaders; the possession of what popular opinion regards as a prize in the profession, and what is undoubtedly a stepping-stone to higher positions. A man's professional prospects, at a certain stage of his career, are often made or marred by the manner in which this patronage of the Crown is exercised. We have before us a tract by Mr Edward Webster of Lincoln's Inn, read before the Juridical Society of London, and published by them in their " Papers," (vol. ii.,) and which was also published separately (London, Draper, 1861). This able paper exposes the various evils which have accompanied the departure from the principle of free competition, and the loss of the liberties of the bar in England, and it points out in particular that to which we now refer : "The present system of promotion frequently operates so as to cause unavoidable damage as regards a barrister's professional income, since not to advance at the bar is to retrograde, and although it may be alleged that this would be true were there no division, yet there is this great distinction, viz., that whereas, if the bar were one body, the barrister would alone be responsible for any diminution of his employment; under the present system of two bars he is not so, because he may be, and ofttimes is, prevented handling the instrument necessary for his advance, whilst it is put into the hands of his rivals, it may be not a whit better entitled to it than himself. The barrister, however, has no right to complain if the system be the best for the State; indeed, he cannot, without covering himself with ridicule, complain, in so far as his position is occasioned solely by himself. He enters the profession in common with other men. The same instruments are within his power, and the start in the professional race is fair and open to every competitor. Some have, indeed, when starting the aid of a friendly solicitor, and doubtless, the absence of this support has, it may not be unfrequently, made the profession hopeless. Such instances of failure are, however, we believe, though not very rare, exceptional. Moreover, early in his career the young barrister, if he should perceive his prospects at the bar likely to disappoint him, may betake himself to some other calling; but in the more advanced stage of his profession, when the rank and privileges of the inner bar become under the present system necessary to secure an increasing and to prevent a decreasing professional income, if the barrister be denied this advancement from some unknown cause, it may be an entirely mistaken estimate of his powers, his condition is such that unless the system causing this unmerited injury compensates the State by producing some great public good, it ought not to be allowed to continue. "There is no principle or rule by which promotion conferring exclusive forensic privileges can be made, which on investigation does not prove to be unsatisfactory, which in its operation is not either erroneous, or unjust, or corrupt, or arbitrary. The advancement to the inner bar has, it would seem, apparently been given as a "douceur "on the abolition of Doctors' Commons-it has been conferred, apparently, as the reward for political fidelity;-it has, apparently, been conceded to the owners of great wealth on account of their wealth; even the sentiments of certain religious bodies, not belonging to the State Church, appear to have been regarded as a material element when granting it. In fine, it is an honour given apparently, or in fact, not infrequently on grounds extra-forensic, save that the recipient must have been called to the bar by his Inn of Court under customs in name educational, but in truth requiring no compulsory legal education whatever." We are altogether unable to see why the crown should step in at a particular period of an advocate's career, and forbid the public to intrust him with certain kinds of business. The presumption is in every case in favour of free trade, and the onus lies on those who ask for the change to show that the bar and the public will profit by it. In Scotland there are special reasons for not rashly introducing a new measure such as this. Many members of the junior bar are prepossessed in its favour because they imagine that it will remove some of the competition of seniors from which they now suffer. We do not think that it would do so. It is not at all certain that with the silks of our new Q. C.'s, the code of etiquette and rules of Court which their brethren obey in England and Ireland, would be also introduced and obeyed. The experience of the past nine years, during which quondam law officers have had precedence, rather shows that it would not always be observed; and even if that code were strictly obeyed the new system would possibly create a class of "old juniors" whose experience and connection would enable them to engross a large share of business. It is probable that in a small field like the bar of Scotland the evils which are felt to exist in England, Ireland, and Canada, would be greatly aggravated Nor has there hitherto been in Scotland, at least since the time of the Secession of the Advocates, any interference by the Crown with the time-honoured privileges of the Faculty. It may be doubtful (though on the whole we think it expedient) whether the Crown ought to be invoked to give to its own former officials that precedence in England which they at present enjoy by the vote of the Faculty in Scotland. Hitherto in such matters the Faculty has been sufficient for itself, and we should be sorry if it were to lose its independence for the sake of giving to one or two leading counsel the vain bauble of a silk gown and the empty honour of a place within The following sentences are from the Law Times, the principal organ of the legal profession in England, in the article to which we have already referred:"No one can deny that, even with good intentions, and with a certain affectation of conscientiousness, the promotions at the bar are sometimes a cause of great scandal. That private individuals should feel aggrieved is natural; but that the public should be made to suffer for this jobbery and political by-play is a very serious mischief. There are, no doubt, some behind the bar' quite as competent to take leading business' as their more honoured companions in the race." The same volume contains (p. 483) an article quoted from a Canadian legal periodical, complaining bitterly of the same abuse of government patronage in that colony. The chief of these rules appear to be: No senior takes a brief in any case without a junior. (Cook v. Turner, 12 Sim. 649). Juniors open every law argnment, make all motions of course, and in equity move all cause petitions, and read all proofs in cause petitions. Juniors have always precedence in making motions on the last day of term: and a senior counsel (i. e. Q. C.) may not sign pleadings in law or equity unless first signed by a junior. Sec Irish Law Times, May, 1869. VOL. XI. NO. CXXVII.-JULY 1867. 20 the bar. At least if the aid of the Crown is to be invoked, let a line be drawn beyond which it shall not be easy to pass. Such a line appears to have been distinctly laid down by the Faculty itself in the resolution of March 20, 1858. The proposal to substitute a "hard and fast line" for the present indistinct and shifting boundary which separates senior and junior counsel at the bar of Scotland, has not been made now for the first time. It may be interesting to review briefly the history of the question in recent years. (See also an article on "Professional Clothes Philosophy," Jour. of Jur., Feb. 1860, vol. iv. p. 57.) At a meeting of Faculty held on 16th March 1852, it was resolved" that in the opinion of the Faculty it is fair and reasonable that those of their number who have held the office of Lord Advocate or Solicitor-General should, notwithstanding the loss of office, retain the position of leading counsel;" and that a committee should be appointed to inquire as to the best mode of carrying that opinion into effect. The committee then appointed consisted of Messrs R. Thomson, H. J. Robertson, Hamilton Pyper, G. G. Bell, C. Neaves, R. Handyside, W. Penney, C. Baillie, T. Mackenzie, A. S. Logan, P. Macfarlan, John Millar, and A. T. Boyle, most of whom have since reached the judicial bench. They reported that they found "the adoption of any steps by the Faculty for regulating precedence at the bar, so as to accomplish the object in view, was attended with such serious difficulties, that they were under the necessity of recommending to the Faculty not to take any such step, but to leave the rules of precedence as they have hitherto stood." It was accordingly resolved to take no further steps in the matter. motion made a few weeks after (June 8) that the Faculty should memorialize the Queen to appoint Queen's counsel in Scotland as in England and Ireland was also negatived. In the summer session of 1857 the question was again raised by a letter from Mr Moncreiff, then Lord Advocate, to the Dean of Faculty (now the Lord Justice-General), in which, after referring to the discussion of the same question in 1852, he suggested that the law officers of the Crown should receive a certain amount of precedence after they lost office, and that the Faculty should memorialize the Queen to confer patents of precedence on certain of its members. A committee was appointed (3d June) to consider and report upon this communication. It consisted of Messrs Buchanan, Pyper, G. G. Bell, Penney, G. Dundas, Baillie, Logan, Macfarlan, Cleghorn, Young, Millar, N. C. Campbell, J. P. Wilson, A. R. Clark, A. Moncrieff, and A. Broun, convener. They reported in favour of the first part of the Lord Advocate's proposal, that relating to the office of Lord Advocate and Solicitor-General. They were of opinion that the precedence should be "grafted, as it were, on the Crown appointment," and not left optional (either to the Faculty or to the holders of these offices) to be taken up or rejected, given or withheld, at the moment of retirement from office; that no change should be made in regard to the precedence of the Dean of Faculty; and that "at present it would not be expedient to extend the system of precedence under consideration to other leading counsel than those already mentioned. A minority of the committee held a different opinion on the last point, but were not yet able to suggest any practical measure on the subject, which, while it removed the anomalies of which they complained, might not introduce other anomalies even more objectionable." On 20th March 1858, the Faculty came to a resolution granting precedence to advocates who have held the two chief crown offices, after the Lord Advocate, Dean of Faculty, and Solicitor-General. This is the existing arrangement. On 8th July 1859 it was remitted to a committee "to consider whether the Faculty would take any farther steps in regard to the position of those members of the bar to whom precedence is accorded by the resolution of 20th March 1858." The report of this Committee, which was adopted by the Faculty, is of considerable historical interest, and we therefore print it in extenso. It is right to say that it is almost in the words of a statement laid before the Committee by the convener, Mr Fraser, (to whom we are indebted for so much light thrown on innumerable dark places of Scottish legal history,) and was prepared by him with the aid of Professor Macpherson and Mr Harry Smith: REPORT OF COMMITTEE ON SILK GOWNS, &C. "The Committee beg to report, as their unanimous opinion, that no further steps should be taken in the matter that was remitted to them, and that the subject should be allowed to drop. "The present arrangements as to Robing, and as to the place from which Counsel shall address the Court, having subsisted for so long a period, without any proposal for a change, the Committee think that this proves that no practical inconvenience results from them. The Bar in Scotland is too small in numbers to warrant distinctions of the character suggested, among its members; and even supposing the proposed changes had more recommendations in support of them than they have, it does not clearly appear that one of them, at least, could be effected without the authority of Parliament. "At the same time, the Committee will state the history of the matter, so as to enable the Faculty themselves to form an opinion on the following points: 1st, Whether the Faculty can, of their own authority, and by a resolution of the body, authorize the use of silk gowns, and of pleading within the Bar by parties who have ceased to be Crown lawyers; or, 2dly, Whether the Court must grant authority for that purpose; or, 3dly, Whether the authority must come from the Crown. "The Faculty of A ivocates is-the whole society of them-considered as a corporation' (Bankton, vol. ii., p. 486), and as such it has enacted rules and regulations in regard to its own affairs, and the admission and education of its members, independently altogether of the Court and the Crown. The matter was fully considered in 1855, when the existing regulations as to the examination of intrants were enacted by the Faculty, without asking the sanction or allowing the interference of the Court. In the minutes there are entries of resistance by the Faculty of orders made upon them by the Court. Thus, on 20th February 1796, the Rev. W. Brown having complained to the Court that the Hon. Henry Erskine had improperly refused to return a fee, the Court appointed a ‘Committee of the Faculty' to inquire. This was objected to on the part of the Faculty, on the ground that they alone could appoint a committee to inquire into the conduct of one of their number. The Court acquiesced in this view, and recalled the appointment. "But there does not occur from the beginning to the end of the minutes of Faculty, nor in the Acts or Books of Sederunt of the Court, nor in any other work, so far as the Committee are aware, any instance where the Faculty, of their own authority, made regulations in regard to such parts of their professional duty as had reference to their appearance and pleading in Court. Matters of internal regulation in regard to the admission or expulsion of Members, they took into their own hands; but as to the place from which they should speak to the Court, the authority of the Court or the Crown was always invoked. "The only counsel at present entitled to wear silk gowns, and to plead within the Bar, are the Lord-Advocate and the Solicitor General; and the history of the privi leges conferred on them may afford a guide for the Committee now. "1. The right of the Lord Advocate to plead within the Bar has the authority of statute. By the Act 1537, cap. 57, it is enacted, 'that nane Advocate nor Procurator within the Bar stand to pley, bot passe outwith, with the partie, except the Kingis Advocat.' And the King, on 20th January 1538, sent a letter to the Court, directing them to allow the Lord Advocate to remain during the advisings of the Bench, which then took place in private. The Lord Advocate also acted judicially, and had a vote with the Judges in the decision of canses. In those cases where he himself was counsel, his vote was rejected. Mr James M-Gill allegit that the Advocate sulde nocht remain and vote on the mater forsaide, becaus the accione is perseuit be him, and at his instance as Advocate, and therefor sulde nocht vote. The Lords be sentence interlocutour findis that the Advocate sulde ryse, and pass to the Bare, and nocht vote thereon.'‡ "With regard to the Solicitor General, there is the following provision in an Act of Sederunt, 28th February 1662: The Macers are authorized to remove all persons of whatsoever quality who shall be found within the innermost Bar, where the Ordinary, Lords, and Clerks do abide, except the Keeper of the Minute-Book, the King's Solicitor, and one servant appointed by his Majesty's Advocate.' "But this privilege was soon taken from the Solicitor, and the old practice returned to, of allowing only the Lord Advocate and Clerks to be within the Bar. "On 16th December 1686, the Court, without any instructions from the Crown, and upon their own authority, issued the following declaration in regard to the parties who had right to come within the Bar: "The Lords of Councill and Session considering, That by the ancient custome, no persones, of whatsoever quality, were permitted to come within the Barr of the Inner House durcing the time of debateing causes, except his Majesty's Advocat, the Clerks of Session, the Clerk of the Bills and his deput, and one Macer: They do revive that custome, and ordain the same to be duely observed in time comeing, dischargeing hereby the Macers to permitt any persones, except those above exprest to come within the said Barr, as they will be answerable on their perill: And in case any person be desyreous to speak with any of the Lords while they are upon the Bench, that he call for a Macer at the door, and give notice thereof by him: It is always hereby declared, that the Lord Thesaurer, and Thesaurer-depute, or the Commissioners of his Majestie's Thesaurary, not being of the Bench, shall be allowed to be within the Barr when the King's causes are called and debated, and no otherways.' "In 1713, when Forbes published his collection of Decisions, he describes the Lords as sitting at a semicircular bench; the Bar, like a diameter line, at which the Advocates, and even the King's Solicitors, stand and plead, uncovered, is opposite to the Bench. Her Majesty's Advocate sits in a chair within this Bar and pleads always with his hat on.' The practice of the Advocate pleading with his hat on was introduced in the time of Sir Thomas Hope, who was Advocate to King Charles I. This indulgence he owed to his having two sons on the Bench, Sir John, his eldest, and Sir Thomas, Lord Kerse.' || "The Crown, however, interfered on behalf of the Solicitor-General. When Charles Areskine, afterwards Lord Tinwald, was appointed sole Solicitor on 10th June 1725 (it being the practice both then and afterwards to have more Solicitors than one), he produced a letter to the Court from the King in the following terms: Recorded in the Acts of Scderunt. + See Acts of Sederunt, 17th Nov. 1610, p. 69. |