A Representation to the High Court of PARLIAMENT, of some of the most Palpable Grievances in the COLLEGE 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 fixed College of Justice Institute, to consist of Fourteen able Qualfied Persons, and a Precedent; 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 Privileges and Immunities granted to the said's Lords as is at length therein contained, and by the 93. Act of the 7. Parliament of the said King, these privileges are again ratified, and the Pope's 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 Privileges. 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 ordinarily 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, expressly 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 otherways 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 ways to have been looked upon, as deeds not Approvable 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 their 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 ●●●ium bona Quindecim hominum arbitrio sunt commissa quibus & perpetua est potestas, & Imperium plane Tyrannicum: Quip, quorum arbitria sola sunt pro legibus. I think it not fit to Translate it in English, lest 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 seeing in many things the same is faulty both as to its Constitution and inability of the Members, as also in the male Administration though rightly constitute, their Points are offered as worthy Consideration, Relative to the Lords, Advocats, and King's Advocate, 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 Practic of the Laws, and having sufficient living of their own; and farther that none be admitted, unless they be sufficiently tried and known by the King and Lords, and have in yearly Rent an 1000 Marks, or 20. chalders of Victual; If in Justice or Law any aught 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 Employment 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 gratify, 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 putting of Persons in that Office not qualified as said is, must inevitably occasion great purloining and delaying of Justice, to the prejudice and ruin (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 consistence, as to have many Subtleties and Niceties both in our Statutes, Customs and Practics, that none be admitted to the said's Offices, but such (beside what is above mentioned) as have also been Legally admitted Advocats, according to the usual forms of Trial; and have practised several years therein Candidly, and with that Integrity and Ability which ought to be Indispensably requisite in a person to be promoted to the foresaid Station, and by this the Bench will as well have a Natural, as a Legal Supperiotity to the Bar: For it cannot but be thought that men's Abilities are much misplaced, when the Reasons of these at the Bar, are too strong for these who are to Judge of them. The Discovery whereof, will force that Respect to be transferred to the Bar, which ought to be paid to the Bench, and make Clients murmur when that which is proponed for them, is not discussed with Reasons suitable to these alleged in their Favours; And though at first Fifteen was a sufficient number, for all the matters that then did occur, yet now seeing there is at least ten Causes for one, and Lawyers are arrived to that pitch of Debating, both with greater Accuratness and length; Nor was at the Infancy of the said College, that it may seem rational that the number of the Lords should be augmented, & that none of them should be Members of any other Court, thereby to divert their Attendance; And if any thing occur in other Courts, as in Council or Exchequer, that requires the opinion of Lawyers, (which was the first pretences for putting some of them there) that the opinion of the whole Lords be taken thereanent, and not to be determined by any particular one, that may chance to sit there.  
3tio. These admitted to the said Office, being only Lawyers of known Ability and Integrity, if it be not fit that they preside per vices, at the least, that nine of them (which by our Law is declared to be the Quorum of the Session) may be capable of that Office. Whereby there will great Advantage accress to the Liege's, seeing there will be greater dispatch of Justice; (throw delay whereof most persons are ruined) For none will deny considering the present throng of Affairs,) but that it is impossible that one single person can digestedly consider, not only all the Causes debate in presentia, but also twenty or thirty Prolix Bills, and tedious Informations of causes to be reported in one day, which must either be fully digested by him, or the matter will be only Superficially scruified over, which giveth als great ground of new Billing or informing as if the matter had never been heard: And Precedent Stair for himself, in the Epistle Dedicatory to the first volume of his Practics; Declares that the uneasiness thereof made him to quite that Office, which he observed to have sunk Sir John Gillmor his predecessor a man of great strength, both of Body and Spirit: Likeas, albeit there were not the inconvenience foresaid in the constancy thereof, which is sufficient to enforce an Alteration; Yet the Liege's are not so fully secured in point of Justice, because the fixing the Presidency in one, makes such an unequal Balance in that Court, that what ever side he shall favour or incline to, is almost certain to carry the cause; Whereas if it be lodged in a Plurality, or in them all by turns, there will be no such hazard; And it is commonly received that Plures Difficilius corumpuntur quam pautiores, and that plus vident oculi quam oculus: From all which it is most consequential both from Reason, Justice and the Practic of other Nations, that either the Office be Circulat among all, or the Plurality thereof, as said is  
4to. Seeing great inconveniency and confusion does arise throw the advising of Causes, receiving of Reports, and reading of Bills with closely doors, neither Parties nor Advocats being allowed to be present, whereby there is great mistakes at the time of adviseing Causes, where the Probation is by an great number of Witnesses, or by many several Writs, which is only overly read by the Clerk, which occasions great mistakes in the Lords, whom that part in the Witnesses Depositions which evinces the Probandum have escaped, especially where it may be Culled only out of two, of twenty: And the like may be also said, where many writes are produced for proving; Whereas if matters were advised with open doors, and Advocats present who have seriously consulted the samen, it would be easy for them to point out to the Lords, the particular Testimonies and Clauses of Writs; or the parts thereof that do evince what is to be proven: And as for the taking in Reports of Causes debate in the utter House, the inconveniency is yet greater; seeing it is Notture (as having daily occured) that where there are several points to be reported, some of them are omitted, yea even where there is but one, yet if it be so far followed in the Debate, as to come the length of Triples, or Quadruples, some of these, at least the principal Reasons enforcing, the Relevancy thereof will also be omitted, and which are the occasions of the many numerous Bills, which are daily given into rectify such mistakes; And which would be altogether needless, if things were done with open doors, in presence of Parties and Procurators, as said is: And which is the known Practice of most (if not all) other Nations.  
5to. All the Premises being thus rectified; If it be not both Just and expedient, that Extrajudicial Solistations be discharged, either by the Clients, or any other person, who may be thought to have Interest in, or Influence upon the Judge, and that under the Certification that it shall be equal to Bribery, if the Judge shall willingly receive the samen, and if the Party or any from him shall obtrude it, that either he shall cadere causa, or at least the Judge shall be incapable to vote in that cause, which as it is Just and Expedient: So it is Consonant to the Act of Sederunt, made against Solistations, 6. November, 1677. And the Practice of all other Nations, where Solisting is looked upon as equal to corrupting.  
6to. That in regard the Sons and Brethren of the Judges, are ordinarily employed upon the presumption of the supposed Influence, that they may have upon or ready access to him. That therefore none be allowed to Judge, or singly to Cognosce any cause, where such Dependants or Relations are employed as Advocats or Agents; And that it shall be a sufficient Declinator of the Judge, that any such was employed in it.  
It may be also thought most improper, (if not Absurd) that the Clerk of Register should be an ordinar Judge, as one of the Lords of Session; For it was never heard, nor is it consistent with the Constitution of any Court, that one person should both be Clerk and Judge therein, and the common Brocard of Law is, that Judex & Clericus faciunt forum, which states them as clear distinct Offices; and it is as incongruous as for one Man both to be Clerk & Advocate: For the Clerk is truly the common Trusty of the Court, for writing and putting in Record what is there Debate and discerned; And which after it is put in an Act or Decreet, can neither be recalled nor redargued (if fairly done) either by the Judge or Advocate: So that 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 expressly says, nec credendum Judici, nec clerico, nisi quatenus constat ex acts; 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 omit. And most of these being Offices wherein things pass of Course, and have Emoluments that might gratify very considerable persons; Yet are all swallowed up by this Leviathan, which therefore ought to be divided, and these entrusted to depend immediately upon his Majesty. Especially seeing there is now so many men, and yet few employments, 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 privileges granted by the Emperors thereto, does sufficiently demonstrat with what respect it was looked upon by them: For Theodosius and Valentinian by a Novel Constitution, expressed 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 Republic, but the private Interest and lives of Persons. And the Emperor Leo, farther adds, in their 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 Trial by public 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 Salary. Likeas that it shall be a sufficient Defence for any party against whom any such Advocate shall be employed, that he was not Legally admitted, as said is.  
It is evident to the World, how far this Nation has degenerate, 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 College of Justice, and the Custom 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 Soldiers, Merchants and other such Extranious Employments, after they were discouraged in these, were admitted to the said Office, summarily upon a Bill, without any previous Trial, either of their Ability or Integrity. And seeing 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 Designs 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 pliable 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 Proceed, 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 subjoined that if any other Cunning Men would desire to admitted to that Office, they should be received for completing 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 Infancy of the College, when few were educate for that Employment: Yet now when the number of such is so incressed, far above what is , and these Men of Literature, Integrity and Quality, It is not only unjust and unwarrantable in itself summarily, without Trial to admit others, as said is; But is also Discouraging and Disadvantageous to those young Gentlemen, who has spent their Time and Estates at home or abroad, in fitting themselves to serve in that Employment.  
3tio. Seeing there is so many Persons who have Prosecute that Study, so as that upon Trial they may be justly admitted, yet seeing the number has so increased and multiplied 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 retrenched to Forty or Fifty, and that none be admitted but upon their Decease, and that these who are tried 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 Vacancy, whereby also these who have assumed (without any previous trial) 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 Employment is dignified by the Encomia and privileges foresaid, and that they differ from the Lords, not in Kind but Degree; That therefore according to the Custom 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 Privilege, above what is allowed their Servants  
It cannot be denied but the College of Justice was long Institute, before there was any particular person appointed to be King's Advocate; and the first appointed was in Queen Mary's Minority, at which time there was but very few Affairs that did occur, wherein her Majesty's Advocate might be concerned: So that though 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 als 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 more nor was at the said first Appointment; Especially such wherein his Majesty's Advocate is principally concerned, as Riots, private crimes, open Rebellions, besides many other Civil caises unheard of at that time. That therefore his Majesty's interest, and of the State, (whereof he is an Officer) should now at least be lodged in three or four, picked 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 Malicious and groundless Processes against Subjects; Whereas if the Office were Collegiate in a number of fit and Qualified persons, It were not to be feared but upon joint advising, they would discover what Processes were groundless Vexations and State streaches, so as they would be choked 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 forty or sixty days, before they could be got examined by the Advocate, who was otherwise taken up in Session, Council, Exchequer, or other Courts, whereby these Shires are conjectured to have been at the Expense in some few years, of upwards of 300000. Marks, in simple attending at Edinburgh, which was occasioned by the being of one single Advocate as said is. 3tio, As the stating that Office in more, would be Advantageous both to His Majesty and the Liege's 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 lieges, 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 always 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 Majesty's Expense, seeing their many years by past, the salary and Pension allowed to that Office, may be sufficient Competency though divided in four, seeing they will also remain Advocats for the Liege's, and whose Employment will centre 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 public 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 lieges must egregiously suffer either by their Ignorance or fraud, considering how many occasions they have to trinket (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 omit 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 not remed, unless the abuse of the Clerk and the injustice of the thing itself be most gross and palpable, and even when it is such, Persons are put to a vast charge, trouble and expense in clearing thereof and in being reponed against the samen, so that means aught to be fallen upon, for crubbihg of such intolerable 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 wilful, 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 exorbitancy 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 Practic of the Nation, whereby the persons Names are always engrossed in the Acts and Printed, therewith, and particular diets 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 Outdure & throng of a Parliament can only be expected to judge 〈◊〉 there are many others which may truly and fitly be given 〈◊〉 any Commission that shall be appointed for the effect; Such 〈◊〉 to make effectual Laws for discharging the side Bar; Item, To ●●viate the binding officious Compearances in Decreets, (by Advocates) upon the Liege's whereby many of them have been high●● prejudged, when Advocates did either of themselves, or at the desire of Agents, or others, take days for Defenders, to give th●●● Oaths in ordinar Actions, or to produce Writes in Improbation▪ And whereof the Client was never Advertised, but Sentence 〈◊〉 out against them, and which is irrevockable in our Law. T●● 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 liable for 〈◊〉 produced to them, and how long. Item, How long Writes ●●●duced be the Defenders in Reductions and Improbations, oug●● to lie in the Clerks hands, seeing many of them are miscart●● by lying too long therein. Item, If the Principals be once ●●duced, so that the Pursuers may either take Doubles, or N●●● thereof, if they ought to be again produced, until the Caus●● Advised. Item, That the Money lying in the Clerk to the 〈◊〉 Hands, as the Expense modified at suspending inferior Decr●● and Protestation Money, and others of the like nature not ra●●● 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 forty or fifty, as said is: These and in●●● numbers of others of the like nature, which may be both represented to, and regulated by the Commission which may be ●●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.