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David Swinfen, Moncreiff: The Life and Career of James Wellwood Moncreiff 1811–1895 1st Baron Moncreiff of Tullibole

Document Cited authorities 2 Cited in Related
Vincent
Author
Pages405-407
Published date01 September 2016
DOI10.3366/elr.2016.0376
Date01 September 2016

“‘i’ before ‘e’ except after ‘c’ and in Lord Justice Clerk Moncreiff”. So I remember being told by Professor Gerald Gordon early on in his lectures to the ordinary Criminal Law class at Edinburgh University in 1975. Most probably (my memory of the specific legal context for the remark is unfortunately much hazier) Professor Gordon made his comment while discussing the case of Simon Fraser (1878) 4 Couper 70, in which Moncreiff had to direct the jury on the criminal liability of an accused who, while in a state of somnambulism, killed his daughter because he believed her to be a wild beast attacking him. I don't recall much other reference to Moncreiff during my LLB years, apart from his famous (if rather inaccurate) definition of mutuality of contract and materiality of breach of contract in Turnbull v McLean & Co (1874) 1 R 730, 748. As Lord Justice Clerk from 1869 to 1888, he seemed to be over-shadowed by the great figure of the Lord Justice General and Lord President throughout that time, John Inglis of Glencorse. And, as Professor Swinfen notes, when Moncreiff retired in 1888, and again when he died seven years later, commentators in the contemporary legal press held his prowess in the civil law (as distinct from the criminal) in less than high regard. It further appears that the troubles of the Second Division under Lord Justice Clerk Macdonald (for which see N J D Kennedy, “The Second Division's Progress” (1896) 8 Juridical Review 268–278) had antecedents in his predecessor's reign (as Kennedy's famous article indeed suggests, while defending Moncreiff personally from blame for the situation).

Yet, as Professor Swinfen's biography amply demonstrates, the contemporary criticism at the end of his judicial career is anything but the sum of the man. Another obituarist described Moncreiff as “amongst the foremost of lawyers and Liberal statesmen produced by Scotland in the present [i.e. nineteenth] century”. Had he lived to complete the unpublished memoir which is Professor Swinfen's major source for his subject's early years and career, Moncreiff would surely have focused most on his nearly two decades as Lord Advocate between 1851 and 1869. Under four Liberal Prime Ministers altogether, including Palmerston and Gladstone, he was much more than the chief criminal prosecutor to which the office has been very largely reduced in modern devolutionary days. The memoirs declare Moncreiff's three ambitions to have been (in Professor Swinfen's words) “to sit down in the House of Commons after a speech amid cheering from all parts of the House...

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