Defence counsel in early modern Scotland: A study based on the High Court of Justiciary

Abstract

This article explores the practice of those advocates who acted as counsel for defenders in Scotland in the High Court of Justiciary in the early seventeenth century. By 1587, defence counsel was confirmed as a ‘right’ in Scotland in every criminal court except the Privy Council. The advocates who acted as counsel were well educated and respected members of their profession, amounting to possibly forty-one per cent of the bar. They served their clients both in and out of court, and their services were vital: a defender was much more likely to be convicted if he did not have defence counsel. Their pleadings also help to illustrate the conservative nature of Scots criminal law. The way in which defence counsel developed and functioned can be seen as an example of the growing professionalization of the law and its institutions in early modern Scotland.