Legal Definitions - letter of advocation

A letter of advocation was a historical legal document used in Scots law. It was a formal written order issued by a superior court, such as the Court of Session (Scotland's highest civil court) or the High Court of Justiciary (Scotland's highest criminal court), to an inferior or lower court. The purpose of this letter was to immediately stop the proceedings in the inferior court and transfer the entire case to the issuing superior court for further handling and decision.

Essentially, it was a mechanism for a higher court to "call up" a case from a lower court, often due to concerns about the lower court's jurisdiction, the complexity of the legal issues involved, or the potential for errors in the lower court's proceedings. This legal tool was abolished in 1868 and replaced by the modern system of appeals, where parties can challenge a lower court's decision after it has been made.

Here are some examples illustrating how a letter of advocation might have been used:

• Complex Property Dispute: Imagine in 1845, a dispute arose between two wealthy landowners over the precise boundaries of their estates, involving ancient charters, complex surveying maps, and historical rights of way. The case was initially brought before a local Sheriff Court (an inferior court). One of the landowners, believing the Sheriff Court lacked the specialized expertise to interpret such intricate historical documents and apply complex property law, could petition the Court of Session. If the Court of Session agreed that the case's complexity warranted a higher level of judicial scrutiny, it could issue a letter of advocation. This letter would immediately halt all proceedings in the Sheriff Court and transfer the entire case, including all evidence and arguments, to the Court of Session for a comprehensive review and decision by its more experienced judges.

• Significant Commercial Contract Case: Consider a major commercial dispute in 1820 between a Glasgow merchant and a shipbuilding company regarding a breach of contract for several large vessels. The case was initially filed in a Burgh Court (a local municipal court with limited jurisdiction). Given the substantial financial sums involved, the intricate details of maritime law, and the need for a consistent application of commercial principles across the country, either party might have felt the Burgh Court was not adequately equipped to handle such a high-stakes and specialized matter. The Court of Session, recognizing the national importance and complexity of the commercial issues, could issue a letter of advocation. This would compel the Burgh Court to cease its involvement and send the entire case to the Court of Session, ensuring it was heard by judges with extensive experience in commercial law.

• Criminal Case with Novel Legal Questions: Suppose in 1865, a criminal case in a local Justice of the Peace court involved a new type of industrial espionage, a crime not explicitly covered by existing statutes in a straightforward manner. While the local court could handle minor offenses, the legal implications of this novel crime, its potential impact on emerging industries, and the need to establish a clear legal precedent were significant. The High Court of Justiciary (Scotland's supreme criminal court) might have intervened by issuing a letter of advocation. This would have removed the case from the local court, allowing the High Court to review the evidence, interpret the relevant laws in a broader context, and ensure a consistent and authoritative ruling on a matter of considerable public and legal importance, rather than leaving it to a lower court with potentially limited scope or experience in such unprecedented issues.