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History



of the



Society of Advocates

in Aberdeen



Edited by

John Alexander Henderson

F.S.A. Scot.



Aberdeen

Printed for the University

1912




FROM THE PAINTING BY SIR GEORGE REID. PR.S.A.



Aberdeen University
Studies : No. 60




Society of Advocates in Aberdeen



University of Aberdeen.

COMMITTEE OF PUBLICATIONS.
Convener: Professor James W. H. Trail, F.R.S., Curator of the Library.

UNIVERSITY STUDIES.
General Editor : P. J. Anderson, LL.B., Librarian to the University.

1900. No. 1. — Roll of Alumni in Arts of King's College, 1596-1860. P. J. Anderson.

11 No. 2. — Records of Old Aberdeen, 1157-1891. A. M. Munro, F.S.A. Scot. Vol. I.

11 No. 3. — Place Names of West Aberdeenshire. James Macdonald, F.S.A. Scot.

1901. No. 4.— Family of Burnett of Leys. George Burnett, LL.D., Lyon King of Arms.
11 No. 5. — Records of Invercauld, 1547-1828. Rev. J. G. Michie, M.A.

1902. No. 6. — Rectorial Addresses in the Universities of Aberdeen, 1835-1900. P. J. Anderson,
n No. 7. — Albemarle Papers, 1746-48. Professor C. S. Terry, M.A.

1903. No. 8.— House of Gordon. J. M. Bulloch, M.A. Vol.1.

11 No. 9. — Records of Elgin. William Cramond, LL.D. Vol. I.

1904. No. 10.— Avogadro and Dalton. A. N. Meldrum, D.Sc.

11 No. ii. — Records of the Sheriff Court of Aberdeenshire. David Littlejohn, LL.D. Vol. I.

11 No. 12. — Proceedings of the Anatomical and Anthropological Society, 1902-04.

1905. No. 13. — Report on Alcyonaria. Professor J. Arthur Thomson, M.A., and others.

11 No. 14. — Researches in Organic Chemistry. Professor F. R. Japp, F.R.S., and others.

11 No. 15.— Meminisse Juvat : with Appendix of Alakeia. Alexander Shewan, M.A.

11 No. 16. — Blackhalls of that Ilk and Barra. Alexander Morison, M.D.

1906. No. 17. — Records of the Scots Colleges. Vol. I. P. J. Anderson.

11 No. 18.— Roll of the Graduates, 1860-1900. Colonel William Johnston, C.B., M.D., LL.D.

n No. 19. — Studies in the History of the University. P. J. Anderson and others.

11 No. 20. — Studies in the History and Art of the Eastern Provinces of the Roman Empire. Professor

Sir W. M. Ramsay, D.C.L., and pupils.

11 No. 21. — Studies in Pathology. William Bulloch, M.D., and others.

11 No. 22.— Proceedings of the Anatomical and Anthropological Society, 1904-06.

11 No. 23. — Subject Catalogues of the Science Library and the Law Library. P. J. Anderson.

11 No. ^.—Records of the Sheriff Court of Aberdeenshire. David Littlejohn, LL.D. Vol. II.

1907. No. 25. — Studies on Alcyonarians and Antipatharians. Professor Thomson, M.A., and others.
11 No. 26.— Surgical Instruments in Greek and Roman Times. J. S. Milne, M.A., M.D.

11 No. ^.—Records of the Sheriff Court of Aberdeenshire. David Littlejohn, LL.D. Vol. III.

11 No. 28. — Flosculi Graeci Boreales. Ser. II. Professor John Harrower. M.A.

11 No. 29. — Record of the Quatercentenary, 1906. P. J. Anderson.

11 No. 30.— House of Gordon. J. M. Bulloch, M.A. Vol. II.

1908. No. 31.— Miscellany of the New Spalding Club. Vol. II.

n No. 32. — Religious Teachers of Greece. James Adam, Litt.D. (Gifford Lectures, 1904-06.)

11 No. 33.— Science and Philosophy of the Organism. Hans Driesch, Ph.D. (Gifford Lectures, 1907.)

11 No. 34. — Proceedings of the Anatomical and Anthropological Society, 1906-08.

11 No. 35.— Records of Elgin. Vol. II. Rev. S. Ree, B.D.

11 No. -id.— Pigmentation Survey of School Children. J. F. Tocher, B.Sc.

1909. No. 37.— Science and Philosophy of the Organism. Hans Driesch, Ph.D. Vol II. ( G iff. Lect., 1908.)
11 No. 38.— Studies on Alcyonarians and Hydroids. Professor Thomson, M.A., and others. Ser. III.

11 No. 39.— Publications of Scottish Clubs. Professor C. S. Terry, M.A.

11 No. 40.— Aberdeen Friars : Red, Black, White, Grey. P. J. Anderson.

11 No. 41.— Studies on Alcyonarians. Professor Thomson, M.A., and others. Ser. IV.

11 No. 42.— Records of Old Aberdeen. A. M. Munro. Vol. II.

1910. No. 43-— Musa Latina Aberdonensis : Poetae Minores. W. K. Leask, M.A.

11 No. ^.—Bulletins of the Aberdeen and North of Scotland College of Agriculture. Nos. 1-14.

191 1. No. 45.— Records of Inverness. W. Mackay and H. C. Boyd. Vol. I.
11 No. 46.— Zoological Studies. Professor Thomson and others. Ser. V.

11 No. 47.— Subject Catalogue of the Phillips Library.

11 No. ii.— Zoological Studies. Professor Thomson and others. Ser. VI.

11 No. 49.— Anacreontic Poetry of Germany. John Lees, D.Litt.

11 No. $o. — Creeds and Confessions of Faith. Prefessor W. A. Curtis, D.Litt.

ti No. 51.— Aberdeen Alumni at Other Universities. Part I. Professor J. Harrower, LL.D.

1912. No. 52.— Royal Fishery Companies. J. R. Elder, M.A.

11 No. 5^.— Zoological Studies. Professor Thomson and others. Ser. VII.

ii No. 54— Flora of Banffshire. W. G. Craib, M.A.

11 No. 55. — Catalogue of Anthropological Museum. Professor R. W. Reid, M.D.

11 No. 56.— Physical Geology of Dee Valley. Alexander Bremner, M.A., B.Sc.

11 No. 57.— Flora of Siam. W. G. Craib, M.A.

11 No. 58.— Notes on Academic Theses. P. J. Anderson.

11 No. 59.— Gordons under Arms. C. O. Skelton and J. M. Bulloch, M.A.

11 No. 60.— Society of Advocates in Aberdeen. J. A. Henderson, F.S.A. Scot.



History



of the



Society of AdvoC;
in Aberdeen




Edited by

John Alexander Henderson

F.S.A. Scot.



Aberdeen

Printed for the University

1912



ftaS6



EXCHANGE



PRINTED BY

MILNE AND HUTCHISON

ABERDEEN



INTRODUCTION.

THE laws of Scotland are founded upon the Regiam
Majestatem, a book believed by many to have been
compiled by the order of King David I. [11 24-1 153]. It was
the only ancient written law of the country, but its powers
seem to have had little impression on the populace, for it is
recorded two-and-a-half centuries later that — " In those days
there was no law in Scotland, but the strong oppressed the
weak, and the whole kingdom was one den of thieves. Homi-
cides, robberies, fire-raisings and other misdeeds remained
unpunished, and justice seemed banished beyond the kingdom's
bounds." * For a lengthened period a keen rivalry existed
between the civil and ecclesiastical judges. The Scottish kings,
from William the Lion to Alexander III., vigorously supported
the former, but the powers of the latter in the Bishop's, and
subsequently in the Consistorial, or Commissary, Court, were
considerable. The Bishop, or his "official, was the only judge
in matters of status — legitimacy, bastardy, divorce. He was
kind enough to take charge of the affairs of widows, orphans,
and all personae miserabiles, all questions of slander, all
disputes between churchmen, the whole management of Notaries
Public, questions arising upon covenant when the covenant was
sanctioned by an oath, the large class of business connected
with wills, testaments, probates, executry — in a word, of all
moveable succession, and perhaps of succession in heritage, for
there was a time when Scotch heritage could be left by will . ."

1 Registrum Episcopatus Moraviensis, 382, applicable to the year 1398.



699567



viii. INTRODUCTION.

Regard must also be had to " the business brought into their
Courts by consent of parties, and add to that all the influence
of all the Notaries, the largest class of ' men of business,' as
we call them, and who were all churchmen, or dependents of
churchmen, and so preferring the ecclesiastical courts." ■

James I. got Parliament to pass a number of enactments,
and these and posterior provisions gradually superseded the
Regiam referred to. Generally the law of Scotland strongly
resembles that of England in regard to those branches which
have either been created or greatly extended through the
progress of modern civilization. Trial by jury in civil cases,
and many of the most important parts of mercantile and
maritime law, though differing considerably in form, are sub-
stantially English.

In early times litigants were accustomed to appear in Court
in propria persona, but an altered system obtained towards the
close of the fifteenth century, when the personal attendance of
the parties to civil actions was dispensed with, excepting " when
the proceedings might result in the defender being declared
infamous." In ordinary cases parties were permitted to appear
by a representative or substitute, called a procurator, who had
been formally appointed "to win or tyne the cause." The term
"procurator" was at first held to be sufficiently wide in its
meaning to include " any one patron or friend, to whom a
litigant committed the management of the proceedings in an
action."

Lord Bankton expresses the view that prior to the institution
of the present Court of Session in 1532 there were "no advocates
licensed by public authority." As Sheriff Begg remarks.s how-

1 " Lectures on Scotch Legal Antiquities," by Cosmo Innes, pp. 238-39.

2 "A Treatise on the Law of Scotland relating to Law Agents," by J. Henderson Begg,
Sheriff Substitute, 2nd edition, 1883, p. 5.



INTRODUCTION. ix.

ever, we " know that long before that date the forms of civil
jurisdiction were so complicated and the proceedings so technical
as to render it very difficult for a non-professional person to
conduct his own cause. Moreover, as far back as our statutes
and the extant records of our temporal courts extend, we find
numerous references to forspekars or forespeakers (prolocutores
or prcelocutores) and advocates, terms which seem to have been
used as synonymous." The following provision of a statute
passed by James I. in 1424, seems to recognise the persons so
designated as professional pleaders : —

Ande gif thar be ony pure creature that for defalt of cunnyng or dispense
can not or may not folow his cause, the king for the lufe of God sail ordain
that the Juge before quham the cause suld be determyt purvay and get a lele
and a wyse advocate to folow sic pure creatures cause. And gif sic cause be
obtenyt the wranger sail assyth bath the party scathit and the advocates costes
and travale.

A fire unfortunately took place in the office of the Com-
missary Clerk of Aberdeenshire, at Aberdeen, in October, 1721
(September, 1 719, according to the Society's first Crown Charter),
when the documents and books which would doubtless have
disclosed the date of the formation of the Society, were destroyed.
Sufficient writs remain, however, to show that by the middle of
the sixteenth century the procurators (or advocates as they were
then frequently designated) in practice in Aberdeen acted in
concert for the defence of their interests as well as for the
maintenance of the dignity and standing of their profession.
Only those of good character, education and ability were
admitted as members, and applicants for admission have several
times been rejected as unsuitable on one or other of those
heads. The following Golden Rules for professional conduct
were adjusted and subscribed by the sixteen members composing
the Society in January, 1764, the eight members next admitted

b



X. INTRODUCTION.

being also required to subscribe in acquiescence : —

i. To act without fraud or dissimulation.

2. To be lovers of peace, and bridle the passions.

3. To be haters of chicane and unnecessary contention.

4. To lose no opportunity of doing good.

5. To show mercy and compassion to all in distress.

6. To relieve the distressed and oppressed.

7. To do charitable actions to the poor.

8. To plead the cause of the widow and fatherless.

9. To be bountiful.

10. To avoid covetousness.

n. To examine well in the beginning that the cause we take in hand

(we have reason to believe) is just ; at least that it is not obviously

unjust.

12. To be ever willing to take up with reasonable terms.

13. To study and practise humanity, material equity, strict honour and

integrity.

14. To avoid calumnys, dissension, and fomenting of pleas.

15. Not to support wrong nor combine with knaves.

16. To despise bribery and corruption.

17. To avoid rash swearing and perjury and tampering with witnesses.

18. We should not promise too much, nor say and gainsay.

19. To avoid hypocrisy and not pretend law, and preach up religion, at

same time trampling on both.

20. To be very cautious in accepting of Trusts, and only on just con-

siderations ; and to execute the same with honour, and candour,
without extravagant and unjust exactions, or taking advantage of
the necessitys of those concerned.

21. To avoid buying up of law pleas or controverted claims.

22. To avoid encouraging Bankrupt Debitors to defraud their just and

lawfull Creditors.

23. Men of liberal professions should not deal in illiberal practices; par-

ticularly to abstain from sordidness about their fees ; employing
the first qualitys of the mind and chief virtues of the heart.



INTRODUCTION. XI.

Many hold that the Society was not formed till October,

1633, ar| d as evidence they cite the following order passed by

Sheriff Principal Thomas Crombie : —

(2 Octr 1633)

The quhilk day the Shref Principall forsaid causit call and convein befoir
him the persones particularlie following quha ar the ordinar advocates and
procuratores of this judicatorie and hes bein in use to procuir in all causes
They ar to say Mr. Alexr Irvving Mr. Williame Barclay Mr. Williame Lumsden
Mr. James Irwing Mr. Alexander Davidson Mr. George Andersone Mr. Alexander
Reid Mr. Alexander Paip Mr. Robert Reid Alexander Thomsone Mr. Alexr.
Gardyn George Middiltoun Williame Cordoner John Hunter Mr. Andrew Clerk
and George Merser Quhilkis persones being all personallie present and the
Shreff understanding of thair abilitie honestie and judgement to continow as
memberis ordinar advocates and procuratores of this seat The said Shreff be
wertew of his office and authoritie Resaiwit and Admittit them and everie ane of
them to that place and priviledge and causit them all to be solemlie sworne for
thair dew obedience and reverence to the seat and for faithfull and trew useing
and discharging of thair place and charge and for obseruing of sick guid and
laudabill lawes actes statutes and ordinances as sould be sett down and prescry wit
And farther the said Shref Declairit and Ordainit and expreslie dischargit all
uther persones quhatsumewir of all libertie or priviledge to compeir or procuir
befoir the Shref or his deputtis at any tyme heireftir in quhatsumewir caus or to
tak upon them to be advocates or procuratores except they be first lauchfullie
admittit be the Shreff and his license and libertie purchessit giwin and grantit to
that effect. l

Crombie, who was laird of Kemnay, a Writer to the Signet,
Member of Parliament, and a Privy Councillor, proved a zealous
Sheriff as well as a stickler for etiquette. The date of his
appointment as Sheriff is not recorded, but he issued no orders
prior to August, 1633, two months before the date of the above
record of his first meeting with the Aberdeen bar. The clause,
" the Shreff understanding of thair abilitie honestie and judge-
ment to continow as memberis ordinar advocates and procuratores
of this seat," clearly proves that 1633 was not the date of the
origin of the combination or Society.

1 Littlejohn's " Sheriff Court Records," II., pp. 34344.



Xll. INTRODUCTION.

In the petition presented to the Sheriff Principal and his
Deputies on 7th October, 1656, by Andrew Thomson, " nottar
publick in Aberdeen," the crave is submitted that his lordship
may, " with the advice and consent of the procurators of his
judicatory, admit the petitioner to be an ordinary procurator
before the samen judicatory." The same procedure was gone
through until a comparatively recent date, followed before
admission by the administration by the Sheriff to the applicant
of the oath de fideli.

Commentaries of doubtful compliment have sometimes been
made on the Society and its members. Thus James Gregory,
writing in 1804, uses tne following sentence — "My dear
countrymen, the Aberdonians, have long been known to be
very sharp folks — so very sharp that it has been estimated that
if their attornies (whom they sometimes call advocates, some-
times proctors, sometimes solicitors) were allowed to practise in
London, they would in seven years have the fee simple of the
whole of the county of Middlesex." Sir Walter Scott in his
"Diary," under date 14th March, 1826, has — "Some lawyer
expressed to Lord Elibank an opinion, that at the Union the
English law should have been extended all over Scotland. ' I
cannot say how that might have answered our purpose,' said
Lord Patrick, who was never non-suited for want of an answer,
' but it would scarce have suited yours, since by this time the
Aberdeen Advocates would have possessed themselves of all the
business in Westminster Hall." Lockhart, who gives the Scott
" Memoirs " to the public, sneeringly remarks in a footnote, that
"The Attorneys of the town of Aberdeen are styled Advocates.
This valuable privilege is said to have been bestowed at an
early period by some (sportive) monarch." As a variant.
Robertson, in his " Book of Bon-Accord," p. 209, remarks —
" On the north side of the Court house is a chamber set apart



INTRODUCTION. xiii.

for the meetings of The Society of Advocates. By this title
(generally confined to the highest branch of the profession) the
practitioners in the courts of the shire and burgh have been
distinguished for more than two hundred and seventy years : by
what authority it was assumed is unknown, but tradition ascribes
its origin to a grant by James VI., in gratitude for a sum of
money advanced by the procurators to his needy majesty."

It was probably on 30th July, 1685, that the scheme
originated in the Society for a fund from which the widows and
orphans of members might be relieved. It has been well
managed, enabling widows to receive an annuity of £70. From
a separate general fund decayed members are granted generous
allowances according to individual circumstances.

The Society has been honoured by the conferment of three
separate Crown Charters, dated 27th January, 1774, 20th
February, 1799, and 13th May, 1862, respectively. Full copies
are given on pp. 1 to 51.

The most cursory perusal of the following pages cannot fail
to impress the reader with the important part played by members
of the Society in the general affairs of the city and county of
Aberdeen, as well as those of adjacent counties. Gratuitous
services of an onerous character, frequently involving pro-
fessional responsibility and monetary expenditure, seem to have
been ungrudgingly rendered, and if rewards were few and
appreciation sometimes slight, there can be no doubt that those
services materially aided in bringing the North-east of Scotland
to its present high standard in educational, commercial and
military affairs.

Of the six hundred and thirteen individual members admitted
since 1549 three fell in battle — Alexander Reid and Robert Reid
at the Crabstone on 13th September, 1644, and Francis Gordon
while fighting under the French flag before September, 1748.



XIV. INTRODUCTION.

The last named supported the disastrous cause of Prince Charlie,
went out with Lord Lewis Gordon, and acted as " General
Quarter Master to the Rebels." In consequence he was refused
a pardon. James Duff was present at the skirmish at Inverurie
on 3rd December, 1745, for which he escaped subsequent
punishment doubtless through his then being only 16 years of
age, and having only newly entered upon his legal apprentice-
ship. James Petrie read the Pretender's Proclamation at the
Market Cross, " assisted the Rebels in all their meetings at
Aberdeen," and " levyed money" on their behalf. John
Hutcheon aided in guarding Napoleon Bonaparte as a prisoner
at St. Helena. Eighty-seven have been officers in Militia,
Volunteer or Territorial forces, many serving as privates as a
stimulus to other young men to do likewise. Two became
clergymen' — David Gordon and William Humphrey. Thomas
Burnett was Purse Bearer to the Lord High Commissioner to
the General Assembly of the Church of Scotland. Four
became Lord Provosts of Aberdeen — John Cheyne, James
Blaikie, Sir Alexander Anderson and John Webster, Jun. In
1853 no fewer than three of the four city baillieships were held by
advocates — Messrs. Alexander Henderson, Robert Ledingham
and William Ross. Of Provosts of Old Aberdeen were James
Scougal and David Robert Morice, while David Littlejohn was
for several years Chief Magistrate of Woodside. John Cheyne
was M.P. for the burgh of Aberdeen in the Scottish Parliament,
Robert Lumsden was representative at the Convention of
Estates, and John Webster, Jun., was representative in the
Imperial Parliament. James Scougal was M.P. for the burgh
of Kintore in the Scottish Parliament. Upwards of one
hundred and forty became proprietors of estates of varying
size and value, and several proved such improving landlords
"as to call forth the marked approbation of the Highland and



INTRODUCTION. XV.

Agricultural Society, and the admiration of all practically
acquainted with such enterprise."

Of professional appointments, fifteen accepted office as
professors or lecturers, forty-six became Sheriffs, Sheriffs-
Depute, Sheriffs-Substitute or Honorary Sheriffs-Substitute at
Aberdeen, whilst of those who were appointed Sheriffs-Sub-
stitute of outside jurisdictions were — George Forbes, Banffshire,
Patrick Forsyth, Kincardineshire, Hugh Fullerton, Kincardine-
shire, John Law, Sutherlandshire, Thomas Mackenzie, Suther-
land, Ross and Cromarty, Andrew Robertson, Forfarshire, and
James Strachan, Kincardineshire. James Scougal became a
senator of the College of Justice under the title of Lord
Whitehill. Twenty-six were Procurators Fiscal, and fourteen
were Sheriff Clerks of Aberdeenshire. Eight were Town
Clerks of Aberdeen, while several held similar appointments
for other Royal Burghs in the district.

James Scougal was a member of the Faculty of Advocates,
as was Clements Lumsden of the Society of Writers to H.M.
Signet. Three others became members of the Society of
Solicitors in the Supreme Court — Messrs. Robert Collie Gray,
James Ross and James Watson.

In the field of Literature the output by the members is very
creditable. William Kennedy stands unexcelled as a local
annalist, his MS. List of Members of the Society, and List of
Apprentices, forming the groundwork of a large number of the
individual records in this volume. The works of Dr. Grub,
Dr. Littlejohn and Dr. John Stuart are of outstanding merit
in expiscating the religious, commercial, agricultural and general
life of past times. The lighter side had a votary in Charles
Winchester. The Muse was courted by Norval Clyne and
Alexander Gardyne. Heraldry had a careful exponent in
Peter Duguid, Banking in George Walker, Genealogy as well



XVI. INTRODUCTION.

as local Territorial History in George Cadenhead, and statistical
details and general themes in Alexander Emslie Smith. English
Word Study, Bibliography, and ancient northern history have
each been dealt with by Hugh Fraser Campbell, as has Physical
Culture and System of Musical Drill by George Cruden.
Editions of Marischal College Arts Class Records were carefully
edited by Patrick H. Chalmers, F. T. Garden, Harvey Hall,
and T. A. W. A. Youngson, while John Buckley Allan and
William Garden were editors of Records of a similar character
in connection with Aberdeen University. Nor have legal works
been forgotten — George Duncan, W. D. Esslemont, J. T. Jeffrey,
D. R. Morice, David Reith, A. M. Williamson, and R. M.
Williamson having each written on different phases of Scottish
Law.

The Continuity Table given in the Appendix shows that
seventy-four members followed in the footsteps of their father ;
seventeen in those of their father and grandfather, while Arthur
David Morice followed the footsteps of his father, grandfather,
and great-grandfather.

The following remarks by the late Sheriff Comrie Thomson,
when he met the members in the Library on 7th May, 1883,
express with clearness an opinion shared in by all those knowing
the inner working of the Society : —

I have the privilege of looking back upon more than seventeen years of
invaluable assistance, of loyal support, of unvarying kindness at your hands. I
take this Resolution and this meeting rather as the articulate expression of a
feeling to which your constant demeanour during the time that I have been
with you, has borne perhaps a more silent but a not less certain testimony.
Gentlemen, it is always a fortunate circumstance for a professional man to gain