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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Mr. Patrick Haldane, Advocate, on his own behalf, and Robert Dundas, Esq; his Majesty's Advocate for Scotland, on behalf of the Crown v. The Dean and Faculty of Advocates, and the principal Clerks of Session [1723] UKHL Robertson_422 (4 February 1723)
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Cite as: [1723] UKHL Robertson_422
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SCOTTISH_HoL_JURY_COURT
Page: 422↓
(1723) Robertson 422
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 95.
v.
Subject_Appeal. —
The Court of Session having refused to put Mr. Haldane, (who had obtained the king's letter of appointment, as an Ordinary Lord of Session,) upon trial for what the Court deemed want of due service, as an advocate, an appeal lay from the determination of the Court.
Subject_College of Justice. —
Mr. Haldane, who had been a member of the faculty of advocates for seven years, but who by being a member of parliament, and a commissioner for the forfeited estates, during great part of that time, did not then attend in the College of Justice, was nevertheless qualified to be a Lord of Session.
By the acts of parliament 1579, c. 93. and 1592, c. 134. it was enacted, That when the place of any Ordinary Lord of Session became vacant, the Crown was to present and nominate a man that feared God, of good literature, practice, judgment, and understanding of the laws, of good same, having sufficient living of his own, and who could make good expedition and dispatch of matters touching the lieges of the realm, who should be first sufficiently tried and examined by the Lords of Session: and in case the person presented should not be found so qualified by them, it should be lawful to the said Lords to refuse the person presented to them; and the king's majesty was to present another so oft as he pleased, till the person presented were found qualified for using the said place.
By the 19th article of the Union, it is declared, “That hereafter none shall be named by her majesty, or her royal successors, to be Ordinary Lords of Session, but such who have served in the college of justice as advocates, or principal clerks of session for the space of five years; or as writers to the signet for the space of ten years: with this provision, that no writer to the signet be capable to be admitted, unless he undergo a private and public trial, on the civil law, before the faculty of advocates; and be found by them qualified for the said office two years before he be named to be a lord of the session; yet so as the qualifications made or to be made, for capacitating persons to be named ordinary lords of session, may be altered by the parliament of Great Britain.”
The appellant Mr. Haldane was admitted an advocate on the 18th of January 1715; and on the demise of Lord Fountainhall, he obtained his majesty's letter, bearing date the 12th of December 1721, nominating and presenting him to be an Ordinary Lord of Session, and requiring the court effectually to try, and thereafter
Page: 423↓
Upon the 27th of December, the dean and faculty of advocates put in their petition, setting forth that Mr. Haldane, immediately after his admission as an advocate, left the Court of Session, and went into the country to make interest for his election as a member of parliament: that for the three subsequent sessions he attended parliament constantly till the latter end of the year 1716, when he was appointed one of the commissioners of the forfeited estates: that from that time forward Mr. Haldane regularly attended the parliament whilst it sat, and during the intervals of parliament attended his office as commissioner of inquiry; and that office being kept at Edinburgh, he sometimes came into the Court of Session among his brethren the advocates; and on certain occasions not exceeding three or four times in the whole, appeared at the bar: and the petitioners thence suggested, that Mr. Haldane had not served as an advocate in the terms of the 19th article of the Union; and concluded, that he ought not to be found qualified to be an Ordinary Lord of Session. A petition to the same purpose was presented by the principal clerks of Session.
The Court thereupon ordered Mr. Haldane to give in a special condescendance of his service as an advocate in the College of Justice, since his admission in January 1715. This he accordingly did, and insisted, that he had been near seven years an advocate in the College of Justice, and had practised as such; except when his attendance in parliament called for his attendance there; and and he stated more particularly that he had attended locally at the bar, part of ten different Sessions, when he had practised. At that time the Session took up six months of the year, viz. the months of November, December, January, and February, as the winter Session, and the months of June and July, as the summer Session.
In answer to Mr. Haldane's condescendance, the dean and faculty of advocates presented a memorial, wherein they observed: 1st, That whereas there were 30 Session months in five years, it appeared by Mr. Haldane's own admission, that he had served no more than the half of that time. 2dly, That though he stated as time of service, the whole Session time that he remained in Scotland, yet in reality except 3 or 4 appearances, he did not serve at all during that space, having been employed in his office of Commissioner of Enquiry, the office hours of which were the same with the sederunt hours, of the Lords of Session; and he very rarely gave himself the trouble to put on his gown. And 3dly, That as his accidental attendance on some few occasions did not come up to the terms of the 19th article of Union, so neither did it at all answer the intention thereof; because a lawyer whose attendance was interrupted, was not in the way of thereby gaining employment or experience in business.
Page: 424↓
On the 28th of December 1721, the Court pronounced the following interlocutor, “The Lords having considered the 19th article of the treaty of Union, his royal majesty's letter requiring the Lords effectually to try, and afterwards receive Mr. Patrick Haldane to the place of an Ordinary Lord of Session, with the condescendances given in to them for the said Mr. Patrick Haldane, and the several representations and petitions by the dean and faculty of advocates, and by the six principal clerks of Session; they find the facts contained in the two condescendances given in by the said Mr. Patrick Haldane, are not sufficient to make it appear that he is qualified to be an Ordinary Lord of Session, according to the 19th article of the Union.”
On the 23d of January 1722, a representation was exhibited to the Court of Session by the appellant Robert Dundas, his majesty's advocate for Scotland, (said to be done by the king's special command,) insisting that they had no power to refuse his majesty's nomination, founded on the 19th article of the Union, and at same time a petition was presented for Mr. Haldane praying to be admitted to trial in common form. The Court of Session, in an address to the king, laid before his majesty the reasons why they apprehended that they had jurisdiction, and on the 26th of January 1722, “superceded to advise Mr. Haldane's petition until the competency of the Court of Session to judge of the qualification required by the 19th article of the Union be determined.”
This objection to the competency of the Court having been waived by a letter directed to the Court of Session, from one of his majesty's principal Secretaries of state; and answers having been put in to the petition of Mr. Haldane by the dean and faculty of advocates, the Court on the 8th of June 1722, “adhered to the interlocutor dated 28th December last 1721, and therefore find they cannot admit the petitioner to trial on his other qualifications required by law.”
Entered, 23 Oct. 1722.
The appeal was brought from “several interlocutory sentences of the Lords of Session of the 28th of December 1721, the 26th of January following, and 8th of June 1722.”
The respondent gave in answers, wherein they admit the several interlocutors appealed from to have been pronounced, but say, That as these sentences are not acts of judgment or decrees, in questions of private right betwixt parties pleading in a civil court, but acts regarding the public policy of the nation, in execution of a trust reposed by divers statutes in the Court of Session for maintaining the regulations made for the better constitution of that court; they submit it to the judgment of this most honourable house, whether the appellants have properly brought their appeal, and whether in a case of this nature, where the respondent had no patrimonial or pecuniary interest their appearing to inform the Court of Session of facts material towards the determination of the question before them, did properly entitle the appellants to make them parties to the appeal.”
Page: 425↓
Journal, 6 Dec. 1722.
The several proceedings out of the Journals in 1702, in the cause between Thomas Lord Wharton, and Robert Squire; and the order upon receiving the appeal of James Greenshields, clerk, the 25th of March 1710 (a), being read; it was resolved that counsel on both sides should be heard upon this point only, whether the matter complained of by the appellants be proper to be determined by the house of Lords upon appeal.
On this Preliminary Point (a).— Argument of the Appellants.
The appellants humbly apprehend their appeal is regularly and properly brought; for Mr. Haldane received from the crown a grant of the office of one of the judges of the Court of Session, and insisted in the regular way before that court to have his right ascertained, and he admitted to his office; and the respondents appeared in Court, and objected to his right, on pretence that the grant in his favour was hurtful to a right and privilege established in them by the 19th article of the Union, and prayed judgment upon their right, and against the right of Mr. Haldane. And accordingly the Court of Session, after considering the petition of the respondents, the answer for Mr. Haldane, and reply for the respondents, given in, in form of memorials, pronounced the interlocutor first recited to the hurt of the appellants' right.
His majesty's advocate, and Mr. Haldane having severally applied for a review of that judgment, the respondents continued to appear as parties, and put in their formal answers, in the same manner as is practised in every other cause; in which they insisted to have the judgment affirmed, which the court did accordingly.
From the face of the proceedings it appears, that this was a regular cause, wherein there were parties litigating upon their different rights and titles, and praying judgment upon them; and that very formal, though erroneous, judgments were given upon the claims, answers and replies of the several parties, which have been entered on record in the same way with other judgments: In consequence of which that decree, extracted in due form, was allowed by the court to be taken out, and now lies before the House of Lords.
The judgments complained of are given by the Court of Session, upon a point of right depending on an explication of an article of the Union, the jurisdiction of which Court of Session, in all cases, is now subordinate to the House of Lords, and consequently their decrees liable to be reviewed upon appeal.
By the express words of the claim of right as ascertained by the convention of estates, at the Revolution, it is declared to be the right and privilege of the subjects, to protest for remeed of law (which is the same with appealing) against sentences pronounced by the Lords of Session without distinction: and the decrees complained of are sentences of that Court, as the answer of the respondents sets forth.
_________________ Footnote _________________
( a) No. 6 of this Collection.
_________________ Footnote _________________
( b) On this point, there is a separate case for the appellants.
Page: 426↓
If the Lords of Session under a specious pretence of an incapacity of the person appointed by the crown to be a judge of that court, may refuse such person; and if such refusal should be final and conclusive, the undoubted right of the crown to appoint such officer will be divested out of the crown, and vested absolutely in the Lords of Session: and the person who may obtain such nomination from the crown, though every way qualified to execute that office, if, through a mistaken judgment of the Lords of Session, he should be represented otherwise, will be deprived of a right, which by law he is justly entitled to, without any manner of relief (a).
Journal, 19 Dec. 1722.
After hearing counsel, for two successive days, (on the 17th and 18th of December) the several proceedings out of the journal upon the petition and appeal of James Greenshields, clerk, being read: and after long debate, a motion was made, and the question was put, “That it is the opinion of this House that the matter complained of in the petition of Mr. Patrick Haldane and Robert Dundas, Esq; is proper to be determined by this House upon an appeal;” it was resolved in the affirmative.
On the Merits—Heads of the Appellants' Argument.
Mr. Haldane was admitted to serve as an advocate near seven years before he was named to be an Ordinary Lord of Session. The 19th article of the Union requires no local attendance at any bar, far less at the bar of the Court of Session, (which is but one court of several that belong to the college of justice), but requires only serving as an advocate in that body of lawyers called the college of justice for the space of five years, &c. This means that the person named to be an Ordinary Lord of Session, shall for the space of five years before such nomination have borne the character of an advocate, without having followed any other employment inconsistent with that character, and discharged the functions of an advocate from time to time as occasions might offer. All this Mr. Haldane has done; for he was not only admitted advocate near seven years before he was named to be an Ordinary Lord of Session, but had practised as occasion offered, actually in the several courts, except when he was called to attend his duty in parliament: and it is hoped that serving in parliament is not inconsistent with serving as an advocate; and consequently that there is no reason for deducting the time of his Serving in parliament from the account of the time he has served as an advocate.
According to the respondents' explication of the article of the Union, if an advocate had practised with the greatest assiduity for never so many years either before the Court of Exchequer, or the Court of Justiciary in Scotland, or part of the time at the bar of the House of Lords; and had even practised in the College of Justice, by chamber practice, in advising and settling pleadings, &c. which were to come and did come before the Court of Session, but had not thought fit to attend at the particular bar of
_________________ Footnote _________________ (
a) No case or argument appears for the respondents upon this point.
Page: 427↓
The respondents objected, that Mr. Haldane, before he had been five years an advocate, was appointed a commissioner and trustee of the forfeited estates, which was inconsistent with his serving as an advocate, since it necessarily called him to attend in that court, during the hours of the sitting of the Court of Session. But no law does require a constant attendance for the space of five years in the court-house where the Session sits, and no advocate does attend in that manner. By the same way of reasoning, an advocate who is commissary of Edinburgh, or a sheriff depute, might be objected to as being incapable of being named to be an Ordinary Lord of Session, because the commissary and sheriff courts meet frequently at the same time with the Court of Session. And in fact the being one of the commissioners of the forfeited estates did not hinder Mr. Haldane's attendance as occasion required before the Court of Session, but obliged him several times to attend, when otherwise it would not have been necessary, and to have the particular concern in the management and direction of a great number of causes before the several courts.
Heads of the Respondents' Argument.
The Lords of Session being by the laws of the realm, and the ancient established constitution of that court, to try the qualifications of the persons presented to a seat in it, with power to admit or refuse, and their authority and privileges being ratified and confirmed by the very article which induces the qualification in question, the enacting that qualification, ex necessitate juris, subjects it to the cognizance of those judges, who must determine whether a person be qualified before they can admit him.
Though the words attendance at the bar be not found in the article, yet words of the same force and effect are used. It is impossible to serve in a court without attending it; and, therefore, where the law requires in express words service in the college of
Page: 428↓
When the words of a statute have a clear, determinate, and unambiguous meaning, the legislature may alter them; but judges are not at liberty to explain them in contradiction to their known signification upon any arguments drawn from the presumed reason and intention of the law; and therefore, the article having required service for five years as an advocate in the college of justice, the judges neither could nor ought to have expounded it otherwise, than that attendance for five years in the court, where he was to serve as an advocate, was necessary. But if the meaning of the word service were in itself doubtful, the obvious intention of the article, and the known constitution of the college of justice, would be sufficient to determine it to that sense, in which the judges have understood it.
Advocates are not admitted in Scotland as gentlemen are called to the bar in England, after a certain supposed attendance on the courts, whereby they are presumed to have arrived at a reasonable knowledge of the laws and forms of proceeding proper to their country. But in place of the municipal law of Scotland, gentlemen intending to enter advocates, apply themselves to the study of the civil law generally in foreign universities; upon that law only they are tried, without the least examination into a supposed knowledge of the laws of their own country, and if they are found possessed of a reasonable degree of knowledge of that law, they are admitted advocates. Thus it happens, that an advocate at his admission is not presumed to know the least title of the municipal law of Scotland, or of the forms of proceeding so necessary towards the right distribution of justice; nor has he any other method to arrive at knowledge in these matters, but in a close attendance on the courts, where experience and observation may perfect his skill.
Taking this to be the case, and supposing that by the article of the Union the nation intended to secure to itself judges of knowledge and experience, what must be the meaning of the word service? An advocate of five years standing without attendance, knows probably less of the civil law, without knowing more of the municipal law and form than when he was admitted: an advocate of five years standing, attending on the courts during that space, is in a way of attaining a thorough knowledge of the law and forms of his country.
As the law thus expressly requires five years service, it is a question how far the judges could take upon them to overlook even occasional absence of days or weeks; but surely where the absence is habitual, and the service only occasional, insomuch that the appellant does not think fit to affirm that he served more than 15 session months in almost seven years, no one can imagine that the intention of the law, which requires full five years service, is
Page: 429↓
The respondents never imagined, that the office of member of parliament was inconsistent with that of an advocate: but then they take it to be certain that attendance in the parliament at Westminster is inconsistent with service in the college of justice at Edinburgh, during the space of such attendance. The appellant agrees that he attended locally at Westminster ever since his admission, except about 15 session months: his attendance there, then, made it impossible for him to be where he ought to have served to qualify himself for the character of a judge, in the terms of law; and, consequently, though the offices are, abstractly speaking, consistent, yet since the attendance in the one has made the service in the other impraticable, it has the same effect in the present question, as if the offices were truly inconsistent. The same thing holds good as to the other office of commissioner of inquiry; because, as has been before taken notice of, the office hours of that commission were the same with the hours of business in the Court of Session.
The respondents agree, that absentia reipublicæ causa, saves to a man all privileges, whereof he stood possessed, when first he undertook public service: and consequently, that if the appellant had been qualified by service as an advocate to be a judge, before he attended the parliament, he could not have lost that qualification by his absence. But they can by no means agree, that a man by entering into the service of the public, can acquire a qualification which the law has said, can no other way be come at, than by service in a particular station. The legislature thought five years service as an advocate absolutely necessary to furnish a person with that knowledge and experience, that is requisite for a judge: now unless five years service as a member of the House of Commons shall be thought as proper a mean of arriving at knowledge and experience of the laws and forms of proceeding in Scotland, as five years service in the Court of Session, the appellant's attendance in parliament brings him as little within the meaning, as it does within the words of the article of Union.
Judgment, 4 Feb. 1722–3.
After hearing counsel, It is ordered and adjudged, that the interlocutory sentences of the 28 th of December 1721, the 26 th of January following, and 8 th of June 1722, complained of in the said appeal, be reversed: and it is further ordered and adjudged, that the appellant Patrick Haldane be forthwith put upon trial according to law.
Counsel: For Appellants,
Rob. Raymond.
Ro. Dundas.
For Respondents,
Dun. Forbes.
Sam. Mead.
Annexed to the case for the respondents is given the following abstract, said to be taken from Mr. Haldane's condescendances
Page: 430↓
|
Sessions since his admission, during which he might and ought to have served. |
During these he affirms he served in the court of Session. |
And thereby admits he did not serve in the court of Session, but attended the parliament. | |||||||
|
Months. |
Weeks. |
Days. |
Months. |
Weeks. |
Days. |
Months. |
Weeks. |
Days. | |
|
In the Winter Session 1714–15, from 18 January to last February |
1 |
1 |
2 |
1 |
— |
— |
— |
1 |
2 |
|
Summer Session 1715 |
2 |
— |
— |
— |
— |
— |
2 |
— |
— |
|
Winter Session following |
4 |
— |
— |
— |
— |
— |
4 |
— |
— |
|
Summer Session 1716 |
2— |
— |
— |
— |
— |
— |
2 |
— |
— |
|
Winter Session following |
4 |
— |
— |
3 |
2 |
— |
— |
2 |
— |
|
Summer Session 1717 |
2 |
— |
— |
— |
— |
— |
2 |
— |
— |
|
Winter Session following |
4 |
— |
— |
1 |
3 |
— |
2 |
1 |
— |
|
Summer Session 1718 |
2 |
— |
— |
2 |
— |
— |
— |
— |
— |
|
Winter Session following |
4 |
— |
— |
1 |
— |
— |
3 |
— |
— |
|
Summer Session 1719 |
2 |
— |
— |
2 |
— |
— |
— |
— |
— |
|
Winter Session following |
4 |
— |
— |
1 |
— |
— |
3 |
— |
— |
|
Summer Session 1720 |
2 |
— |
— |
1 |
— |
— |
1 |
— |
— |
|
Winter Session following |
4 |
— |
— |
1 |
— |
— |
3 |
— |
— |
|
Summer Session 1721 |
2 |
— |
— |
— |
— |
— |
2 |
— |
— |
|
Winter Session following, from 1 Nov. to 12 December |
1 |
1 |
4 |
1 |
— |
— |
— |
1 |
4 |
|
Session time in all |
40 |
2 |
6 |
15 |
1 |
— |
25 |
1 |
6 |
The respondents state, that every article of Mr. Haldane's non-service in this abstract is vouched by his own words, excepting the first of one week, and two days, which is stated by conjecture upon his own acknowledgment, that during the first Session he was absent for some few days about his election to parliament. And all the articles stated to his account as service, depend singly upon the credit of his own assertion, the respondents having all along denied that he served with them as an advocate, except upon some few occasions.
10. G. 1. c. 19.
On the 21st of January 1724, the present appellants presented a petition to the House of Lords, complaining of the further proceedings of the Court of Session, after the judgment given on the appeal; but the Journals do not state the particular grievance. This petition was referred to a committee to consider and report, no report appears upon the Journals, but an act was passed in the
Page: 431↓