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The Evolution of the Procurator-Fiscal
By Henry H. Brown


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.


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