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THE LOCAL ADMINISTRATION IN SCOTLAND

MUNICIPAL INSTITUTIONS.

-Remains of rude magnificence.

SCOTT.

Here is the scroll of every man's name, which is thought fit through all Athens to play in our interlude.

SHAKESPEARE.

HAD the Scotch at the Union been less tenacious of their own peculiar laws and local institutions, and suffered all or the most inessential distinctions to cease, the mutilated fragments of the old government would have been profitably removed; and the people, instead of seeing their old establishments melting away inch by inch as they are now doing, would have fallen under, not the yoke, as was then imagined, but the full influence of the British constitution, in so far as it is enjoyed by the English. This, however, not being done, it thence became in some measure necessary to institute, or at least to acquiesce in the establishment of an officer of the crown, who should exercise a slight supervisionary authority over the inferior separate judicatories, and likewise serve as a channel through which the will of his Majesty's council could be communicated to this part of the nation. The only officer pertaining to the former system, who was left to exercise functions of this nature, was the Se

THE LORD ADVOCATE.

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cretary of State for Scotland; but for some reasons which are now unknown, this officer, as we have said, was withdrawn about forty years after the Union, and the authority of the Secretary of State for the home department extended over Scotland. On the abolition of this useful office, it therefore became necessary on the part of the government to look about for some one in whom could be reposed a species of viceregal power. The minister who was pitched upon to exercise the duties of a local secretary, was the LORD ADVOCATE.

In

When we come to explain the peculiar system which is pursued in Scotland in criminal prosecutions, we shall mention at large the duties of this important functionary. We may here, however, proceed so far as to say, that, agreeable to the legal institutions of the country, no private prosecution is permissible in criminal processes; it is this individual who in almost all cases of this nature assumes to himself the prerogative of bringing the offender to justice. Grand juries being likewise not considered essential in the just administration of the criminal law, it is the duty of this officer of the crown to prepare criminal indictments. the execution of those conjoined powers, the Lord Advocate of Scotland has an authority almost unlimited, and greater than that of any functionary in the British empire. He is not obliged to wait till a complaint is preferred against any individual before he brings him to trial. He has the liberty of seizing on bare suspicion or from caprice, any person residing in the country, without being necessitated to mention his informer, or to give the secret reasons for such arbitrary conduct; and though obliged by the laws to bring prisoners to trial within a certain period, he can either set them free from jail previous to trial, or drop the prosecution entirely after the accused has been brought into court. After a verdict of " guilty" has been given by the assize, he can likewise restrict the judges to a sentence of a mitigated description. All

Edinburgh Review, passim.

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THE LORD ADVOCATE

of which powers he possesses uncontrouled, except by the voice of the public, and can execute freely without being subject to a counter prosecution for damages where the accusation is groundless.

Singular as it may appear to those who consider arbitrary authority in most cases dangerous to freedom, there are not recorded many instances in Scottish history in which these powers of molestation have been decidedly prostituted. Indeed, such now is the force of public opinion, that it is impossible such could be practised with impunity; and were the Lord Advocate either to commence a prosecution obviously of an oppressive character, or to drop the prosecution of a malefactor already obnoxious to public infamy, except he were backed by strong political interest, he could not retain his situation any length of time; for he is always subject to an impeachment in the House of Commons, and to be overhauled by the Secretary of State. In all ordinary cases of robbery, murder, or any other felony, the alert movements of this fiscal officer have been indisputably worthy of the highest commendation. If in some instances he has failed to procure a conviction of desperate offenders, this has to be attributed more to the nature of the particular cases than to a lack of evidence through his means; and it is at least apparent that private prosecution would have been equally inefficacious. With reference, however, to those cases which have come in contact with the political principles of those in power, or the direct interests of the government, it is generally felt, that the Lord Advocate of Scotland has very frequently acted more zealously as the servant of the crown than as protector to the people. In the execution of his authority in times of political ferment, he has often done actions which would not have been tolerated a moment in England, where the liberties of the subject are more clearly defined; and yet which the Scotch had no power to withstand. Although it may be considered questionable whether these discretionary powers could be again used to an extent so injurious to the rights

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of individuals, it is, we think, nevertheless, advisable that a constitutional and definite check should be instituted to restrain them within proper limits.

Such is the functionary on whom the guardianship of this northern portion of the empire was conferred, after the abolition of the office of the Scottish Secre tary of State. By the absence of the court, and the relinquishment of the active duties of the other state officers, he has come to be, by implication rather than by any express warrant, the only visible protector of the local institutions. He is understood to be the applier of the laws; the adviser with the crown, and the supreme and inferior judges; the minister of the interior; the head of the police; the virtual commander of the regular and local troops in times of ferment; and the mainspring of the whole executive in the country moreover, according to the definition of the duties of a Lord Advocate, given by one of these officers many years ago in the House of Commons, it is his high and important duty to quell rebellious or seditious meetings; to preserve the peace of this part of his Majesty's dominions at all hazards; and to have an ever sleepless and watchful eye over all popular movements or secret measures inimical to the preservation of the laws, the religion, or the morality of the kingdom. The warrants of the Lord Advocate are supreme over the whole of Scotland, and supersede every species of criminal diligence. But although he may quash criminal process in any of its early stages, he possesses no dispensatory power of pardoning criminals after condemnation, or even of granting a respite from the slightest punishment; all his authority ceasing as soon as judgment is pronounced.

Notwithstanding of those extensive arbitrary powers, which seem to raise the Lord Advocate of Scotland considerably above the other personages connected with the administration of civil and criminal jurisprudence, it may be mentioned, that he is invested with no outward shew of superiority. While he acts the part of a Lord Lieutenant of Scotland, unlike the Viceroy of Ireland, or the Governor of a British colony,

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THE LORD ADVOCATE.

he passes his life in comparative privacy, and only officially comes into public view on the occurrence of criminal trials. The salary which he is allowed is even less than a moiety of that which is paid to the highest criminal judge; but as he is permitted to retain his private profession as an advocate at the bar of the supreme courts, he may thereby double his fixed income. The Lord Advocate is always chosen from the body of barristers, designated the Faculty of Advocates, among whom he must have been of a certain number of years standing. Besides being thus by profession a gentleman and a scholar, he is in general chosen from some of the Scottish families of rank and influence; and is therefore considered to be removed from the temptation of stooping to the adoption of petty measures of a personal or vindictive character. That he should possess, above all subsidiary attributes, a strong natural understanding, and an appreciation of human character, with a perfect knowledge of the laws, and a firm but finely-tempered disposition, will be readily supposed. It is hence to be anticipated, that, in future, talents of this description will be kept more in view in the nomination of this officer than mere family connexion.

The Lord Advocate is not by any means entitled, from the situation which he holds, to have a seat in either the House of Lords or Commons; but it is deemed absolutely necessary that he should become a member of the latter body at all risks; because there frequently exists a necessity of calling upon him for explanations relative to the separate Scottish establishment, or with regard to the sentiments of the country upon the enactment of some new law. In these respects he answers the purpose of a representative from the legal authorities in Scotland. Should he there

The present Lord Advocate, Sir William Rae of St Cathe rine's, Baronet, cannot be charged with a vitiation of the extraordinary functions of his office. He has, on the contrary, been ever foremost in endeavours for the reform and improvement of the national jurisprudence, and in his judicial character has in all instances leaned to the side of mercy.

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