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THERE are two questions
which meet the student of Scottish criminal procedure on the threshold
of his study. What was the origin of the Procurator-Fiscal, and by what
process of evolution has his office developed into its present shape?
Neither question has been satisfactorily answered. Legal antiquarians
have neglected the subject, and other persons have lacked either the
opportunity or the inclination to make the requisite researches. The
title is sufficiently familiar as applied to prosecutors in the public
interest before various inferior tribunals both of the past and
present—bishop, commissary, baron, sheriff, justice of peace, burgh—each
of which has or had an official bearing the name. The type of the whole,
and the officer who is invariably denoted in modern practice by the
unqualified expression, is the sheriff's procurator-fiscal. The
pre-eminent position of this officer, as compared with others of the
same class, is due to the readiness with which his powers and duties
have proved themselves capable of adaptation to the circumstances of
different periods, and to the political and financial necessities of
successive governments. It is the result of a curious process of
evolution and development, which merits attentive consideration from all
who interest themselves in historical and social problems.
In spite of its Latin
name, the office did not come to Scotland from Rome. There were two
public officials under the Roman Emperors whose titles certainly suggest
that of the procurator-fiscal, namely, the procurator fisci and
praetor fiscalis, but these were merely administrators of the
imperial finance, the latter occupying a position analogous to a Baron
of Exchequer. Sir George Mackenzie of Rosehaugh, in his Discourses,
after mentioned, quotes as if from the Civil Law a passage which would
establish a great antiquity for the office if it could be found in the
Codex Justiniani—'si procurator fiscalis calumniose instigat judicem ad
inquirendum, tenetur in damna actione injuri-arum et concremari debet.'
The reference is to the law in Codex III., 26, 9 ; but readers who have
the original beside them will see that that law dealt with false and
malicious accusations made by the procurator Caesaris. The procurator
fiscalis is not named there or elsewhere in the Civil Law.
The title came into use
in the Middle Ages. It was then well known to continental jurists with
the signification of a public prosecutor. For example, the expression
procurator fiscalis occurs in a law of James II. of Majorca, describing
a functionary who conducted prosecutions in the public interest.
Montesquieu, in his Spirit of Laws, expresses an opinion that the custom
of judicial combats was opposed to the idea of an officer who should
have the care of public prosecution, for, as he naturally remarks, who
is it that would choose to make himself every man's champion against all
the world? In confirmation of this view, he adduces the fact that the
advocatus de parte publica under the Laws of the Lombards, who was agent
of the public for the management of political and domestic affairs, had
the privilege of fighting, when he sought to vindicate the right of the
Exchequer in a particular matter, such as the share of succession which
a parricide had forfeited by his crime. But although the idea of such an
officer charged with the duty of public prosecution was uncongenial to
the national spirit of some countries, it was congenial to the judicial
system of France, and accordingly we find the term procureur fiscal
established in the nomenclature of French jurisprudence. It is defined
in Cotgrave's Dictionary as ' A Lord High Justicer's ordinarie Attorney,
who pleads and prosecutes within his circuit, all causes wherein the
publicke, or his Lord's inheritance (i.e., his fisk), or both be
interested.' Without being too positive in regard to a matter which is
open to considerable doubt, we may fairly conjecture that the title of
procurator-fiscal was introduced into Scotland from France, and
conferred upon certain officials whose duties were akin to those of
their prototype.
The exact date of this
introduction is unknown, but it is likely that the ecclesiastical courts
were the first to adopt the name. The official title of the prosecuting
officer of the Inquisition was Fiscalis, and, probably borrowing this
designation, the Scottish bishops, when they had need of a prosecutor,
nominated a Fiscal. There is preserved in the Pegistrum Episcopatus A
berdonensis a Minute of the Dean and Chapter of Aberdeen, dated 5th
January, 1558, in which they give counsel to the Bishop in regard to the
purification of the diocese from certain grave scandals. Amongst various
suggestions, they advise his lordship to appoint two procurators Fiscal
' in this and in all other causes.' This is the earliest mention of the
expression which has chanced to come under our notice: but seeing that
it occurs in the Minute without explanation, as a phrase whose meaning
was well understood, it cannot have been at that time a novelty. The
Commissaries to whom the Bishops were wont to delegate part of their
jurisdiction, nominated officials to conduct causes before them. These
were distinguished by the same title. In 1578 Mr. Robert Danielstoun was
appointed 'his majesteis procuratour fischall in all actionis and causis
concerning his hienes and his interes before the Commissaris of
Edinburgh, with all feis, casualiteis, and dewiteis belanging thairto
during all the dayis of his lyfe' (Privy Seal Peg., 45, 74). The Burgh
Records show that in 1562 the procurator-fiscal of Edinburgh (which was
constituted by royal grant a sheriff within itself) appeared as pursuer
in a civil action at the instance of the magistrates for removal of the
master of the High School. In 1563 Thomas Swentoun is styled '
procuratour fyscall to our soverane laidy wythin the brugh of Perthe,'
which was also a corporate sheriff. This is an entry of peculiar
interest, as it foreshadows the future exaltation of the office through
its connection with the Crown. It is to be found in the Acts and
Decreets of the Court of Session (26, 387), where also there is an
allusion to the ' pro-curatouris fischallis' of the Sheriff of Fife
under date 22nd January, 1574-5. The Fiscal of Linlithgowshire and his
depute are incidentally referred to in the Sheriff Court Books of that
county during 1595 and 1599, while the Privy Council Register from 1591
onwards mentions the procurators fiscal of certain commissary and burgh
courts, and of at least two barony courts (Auchterhouse and Coupar in
Angus) both belonging to Lords of Parliament. From these facts we may
safely conclude that, from the middle of the 16th century, and it may be
still earlier, officials called 'procurators fiscal,' in varied
orthography, were being appointed in Scotland by bishops, commissaries,
burgh magistrates, barons, and sheriffs. Perhaps it was not the rule in
every court to have such an officer, but there is clear evidence that
the appointments were made in some cases.
It is unfortunate that,
although we are thus apprised of the appointment of procurators fiscal,
we are absolutely ignorant of the causes which led to that result.
Confining our attention to the type of the class, the sheriff's fiscal,
it is important in this connection to observe the original position of
the Sheriff. In 1436 the thirteenth parliament of James I. passed an act
(No. 140) to the effect that trespassers (that is to say, offenders
against the law) were to be apprehended at the Sheriff's bidding, and
prosecuted by him in the king's name if no other prosecutor should
appear. The powers thus vested were not left in desuetude, for the
Fifeshire case in 1574, previously noted, was a prosecution for
deforcement at the joint instance of the Sheriff and his
procurators-fiscal. He was thus authorised to act as prosecutor as well
as judge in his own court. He had, moreover, a personal interest in the
fines and forfeitures there levied. It may be presumed that he had
either perceived the incongruity of a judge acting as prosecutor, or,
what is more likely, had found it to his advantage, in a pecuniary
sense, to appoint an attorney or agent to recover and account for the
fines and forfeitures imposed in his court. Whatever his motive, when he
made such an appointment the most convenient name by which his nominee
might be designated was that already familiar through the continental
jurists and the ecclesiastical courts— procurator fiscalis, the agent of
the fisk. This word 'fisk' (in Latin fiscus) was used to denote both the
revenue of the Crown and the official income of inferior judges. In the
collector of the sheriffs' fisk we find the embryo of the
procurator-fiscal.
The first stage of his
development from this embryo appears to have been forced upon him. The
sheriff had jurisdiction in many crimes inferring sentence of death,
banishment, whipping, or other corporal punishment, for which,
therefore, he could impose no pecuniary fine, and few of the malefactors
would possess personal goods which could be forfeited. The fisk had no
interest in these proceedings. Yet, since we know that such crimes were
prosecuted, we may infer that a system of prosecution in the public
interest had been evolved as supplementary to prosecution on behalf of
the fisk. The duty of conducting these proceedings would naturally
devolve upon the procurator-fiscal. We are compelled to infer this,
because, as we shall see, the fiscal was appearing in prosecutions of
both kinds when we first get a definite account of his duties, and we
have no written evidence as to when or why he began to do so.
A search in the Auld
Lawes and Constitutions of Scotland from Malcolm II. to James I.,
collected in the volume known as Regiam Majestatem, discloses no
allusion to the procurator-fiscal. The same may be said of the Scots
Acts of Parliament from James I. to James VI., and of the oldest books
on Scots Law— Balfour's Practicks, written about 1580, and Craig's Jus
Feudale, about 1603. Sir John Skene of Curriehill wrote, circa 1597, his
well-known book, De Verborum Signification, in which he defines and
explains many Scottish legal terms, but not the expression
'procurator-fiscal.' He again omits all mention of this officer in his
short treatise Of Crimes and Judges in Criminall Causes, appended to the
Regiam Majestatem, and published about 1609. The only explanation of
these omissions, in the face of undoubted evidence of the existence of
procurators-fiscal, is the assumption that, although such officials were
being appointed, they were not then deemed of much moment, and were
passed over by Skene because they were not named in the old laws and
acts upon which his treatises were founded.
If we except Skene's
short essay, the first book which treats exclusively of Scottish
criminal law is A Discourse upon the Laws and Customs of Scotland in
Matters Criminal, by Sir George Mackenzie of Rosehaugh. It was published
in 1674, and passed through several editions. For our present purpose
its chief value rests in the circumstance that it furnishes the direct
testimony of one who had the best opportunity of obtaining accurate
information regarding the status of the procurator-fiscal in the
seventeenth century. Sir George fell upon evil days, and in the course
of his public career made many enemies and had many detractors, but his
reputation as a lawyer and a scholar has never been called in question.
His statements, so far as they are pertinent to our subject, are
absolutely trustworthy. They may be briefly summarised. Of old, the
judges appointed denunciatores or delators, whose duty it was to inform
them regarding crimes; but prior to Sir George's time this duty had
become attached to the fisk and its representatives, that is to say, His
Majesty's advocate in the Justice Court, and the fiscal in the inferior
courts. These officers might pursue or inform in inquisitions, without
liability to punishment for false accusations, because suspicion of
malicious accusation of crime ceased in their case as regards what they
denounced ex officio. Procedure before the sheriff court was by way of
an assize or jury, and the Procurator Fiscal was pursuer in place of his
Majesty's Advocate. This duty he shared with particular accusers, such
as the injured person or his friends, but he had the right to prosecute
although no private party should concur. Throughout these passages Sir
George does not deem it necessary to explain what official he means, and
takes it for granted that his readers are as familiar with the title of
the procurator Fiscal as they are with those of the Sheriff or the
King's Advocate.
It also appears from Sir
John Connell's Treatise on Tithes, that a similar standing had been
accorded to the Procurators Fiscal chosen by the Sub-Commissioners for
the valuation of teinds, who, it was held, represented the King's
Advocate in all valuations led before the Sub-Commissioners.
No material change in
this position of affairs took place until the middle of the eighteenth
century. The Fiscal had indeed been promoted from the position of the
Sheriff's agent to that of an independent prosecutor in the public
interest, with powers and privileges akin to those of the Lord Advocate;
but he still held office from the Sheriff alone, was dismissed at his
pleasure, received as remuneration a share of the fines recovered for
the fisk, engaged freely in private business, and was in no sense a
servant of the Crown. It is not likely that he would have been permitted
to occupy a position so anomalous had the Sheriff dealt with a large
proportion of the crime of the country; but as the latter shared this
with several inferior tribunals—in particular, the proprietors of
heritable jurisdictions—his Fiscal had been less in evidence than might
have been expected. The rebellion of 1745 sealed the fate of those
heritable jurisdictions. An Act of the following session of Parliament
abrogated and extinguished them, transferred the cases formerly tried
before them to the King's courts, and directed that all fines,
forfeitures, and penalties, which previously went to the judge, should
be paid into the Exchequer of Edinburgh. The immediate effect of this
statute was to confer upon the Sheriff's Procurator Fiscal a more
extensive jurisdiction, and to constitute him an official of the Crown,
in so far as he had to collect and to account for the fines payable to
the Exchequer. At the same time the gathering importance of the sheriff
court tended to draw to it from the burgh and justice of peace courts
the trial of all criminal offences save those which might be adequately
met by an arbitrary punishment. This did not happen all at once, but
gradually as it became recognised that the sheriff court was the proper
forum for all criminal proceedings of a serious character, which were
not so grave as to require the intervention of the Court of Justiciary.
Even as regards these last, the Sheriff dealt with their initial stages.
There are many sources
from which corroborative evidence can be obtained touching the position
of the Sheriff's Fiscal in the eighteenth century. The Institutes of Mr.
Andrew M'Douall, published in 1752, in dealing with criminal practice in
the inferior courts, make it clear that according to their author's
experience the Procurator Fiscal for the interest of the public supplied
in these courts the place of the King's Advocate. The same information
may be gathered from the pages of Hume; but that great lawyer seems to
have passed hastily over this point, and there is a vagueness in his
language when treating of prosecutors, which makes his work less useful
for our purpose than that of his predecessor. Lastly there may be
mentioned the Regulations framed in 1752 by the Sheriffs and Stewards
for the conduct of criminal cases in their courts.
As has been indicated, it
was originally the practice for the Sheriff to conduct personally the
precognition or preliminary inquiry respecting those charges of crime
which were to be tried before the Court of Justiciary. This practice is
not now followed, except in grave cases; but in those days the Sheriff
or Sheriff-Substitute in person examined the witnesses, collected
evidence, and submitted to the Lord Justice Clerk the facts ascertained.
A set of Rules were, in 1765, issued from the Crown Office for the
guidance of the Sheriffs and other officials in discharging these
duties. No direct mention of the Procurator Fiscal is made in that
document, but annexed to it is a form of Information and Presentment, in
virtue of which the papers were transmitted to Edinburgh, and which runs
in name of, and is directed to be signed by, the Procurator Fiscal. This
is his earliest recognition by the Crown Office. In the following year
(1766) the Barons of Exchequer made an order to the effect that sheriffs
were not to receive from the Treasury expenses incurred by them in
precognitions, which had not been transmitted to His Majesty's Advocate.
The sheriffs, to lighten the burden which this order would have thrown
upon the county funds, directed the transmission to the Lord Advocate of
the papers in every case which they thought should be prosecuted at the
cost of the Crown. The duty of transmission was intrusted to the
Procurator Fiscal as the sheriff's agent, and in this manner he became
an intermediary between the sheriff and the Crown Office, just as he had
already become between the sheriff and the Exchequer. As the sheriffs
and sheriffs-substitute in course of time withdrew from personal
attendance at investigations and precognitions, the conduct of these
fell more and more into the hands of the fiscals, who ultimately
attained the position of being local representatives in criminal
business of the Lord Advocate as well as of the sheriff.
The objectionable system
of remunerating the Procurator Fiscal with a share of the fines was next
abolished. The Treasury undertook the payment of his work by fees
determined according to a regular scale. This method continued until
1850, when overtures were made to the fiscals to accept fixed salaries,
calculated on an average of those fees. With a few exceptions, the
proposals were accepted, and the fiscals were in this way made salaried
servants of the Crown, and in recent appointments have been debarred
from private practice in most cases where the official salary is fairly
adequate. Following as a natural complement to this arrangement, a
statute was passed in 1877 which conferred upon them fixity of tenure,
by requiring the approval of a Secretary of State on the occasion of
their appointment or removal. The effect of these modifications has been
peculiar. They have placed the Procurator Fiscal in the odd situation of
being an official appointed by the sheriff, approved by the Secretary
for Scotland, and remunerated at the pleasure of the Treasury, yet
holding no direct commission from the sovereign.
Thus far has the
evolution of the office proceeded. If our inferences are correct, we
have shown that by a circuitous process, without design, and moved
simply by expediency or political and financial considerations, the
collector of the sheriff's fisk has become the modern Procurator Fiscal.
As such, he is within his district the chief executive officer in
matters criminal of the Lord Advocate and Sheriff, discharging a large
part of the functions performed in England by coroners and examining
magistrates, prosecuting offenders both summarily and on indictment, and
collecting for exchequer the fines imposed in proceedings instituted by
him. In opening this discussion two questions were propounded, to both
of which partial answers have been given. Looking to the many points
still lost in obscurity, it is not prudent to assert that those answers
are accurate and final; but they represent the measure of our present
knowledge respecting the subject, and set forth an instructive lesson as
well as a curious history.
Henry H. Brown. |
