SCOTCH COURTS OF LAW be had to the homestead, the Post Office, or submarine telegraph, should be called on to do the same duty to foreigners. This would assuredly give instantaneous notice, whereas the official deposit, now existing is not much better than the ancient citation at 66 pier and shore," and withal is without its Ossianic sublimity. We now shortly take up the Court of Session. This Supreme Court is of very ancient origin. It was a fusion of several courts, and the proper title of the judges is "Lords of Council and Session." It was, at length, moulded in its present form, by King James V., so far back as the year 1537, after the model of the parliament of Paris. the law body, including the clerks, advocates, and other practitioners, form what is termed the College of Justice, of which the judges are called its Senators. At one time it consisted of fifteen judges, whilst England was satisfied with twelve. All This Court now consists of only thirteen judges. The Court always had two divisions known as the Outer and Inner House. The former is held in the ancient hall of the Scotch Parliament or Estates, which greatly excels, in every respect, our Westminster Hall, whilst the Inner Courts cast our miserable dens of justice into the shade. All the judges were in use to sit in rotation in the Outer House, and prepare and decide, in the first instance, all cases, either originally brought into the Supreme Court, or carried up by appeal, then called advocation, answering to our certiorari. The single judges, in the Outer House, were and are called Lords Ordinary. An appeal lay to the Inner House where the fifteen judges sat in conclave. It was found, contrary to the opinion of Solomon, that in the multitude of counsellors there was not wisdom. It was seldom that a judgment was unanimous, and, not unfrequently, the Bench assumed the attitude of the Bar, or even descended to the platform of a debating society. In 1806, the Inner House was divided into two sections, called the "First and Second divisions." The Lord President is chief of the first, and the Lord Justice Clerk presides over the second division. The judges in the Outer House are now permanent, and consist of the five younger in office. Each division of the Inner House consists of four judges, and, on a vacancy, the senior in the Outer House takes the vacant chair in the Inner Chamber. There is a separate department known as the "Bill Cham * It was a curious coincidence that in England the number of the jury was always twelve, whilst in Scotland it was fifteen, which is still the rule in criminal practice. It would appear that our ancestors determined to have, in the administration of justice, a fair balance of the lay and the law element. SCOTCH COURTS OF LAW ber," which has an equitable jurisdiction in cases of interdict (injunction). This department is open all the year round, and in time of session, the youngest appointed judge is the genius of the place. During vacation, the judges. who are not on the justiciary list, and do not go circuit, take periodical charge of this chamber. The judge here acts somewhat as a Janitor or Cerberus to the courts, holding the keys of admission, but, whether the gate be opened or closed by the Bill being passed or refused, there is an appeal to the Inner House, and even to the House of Lords. A proposal was made, and received the support of a few of the Commissioners, to re-model the courts, so as to have three divisions or courts, of four judges each. In such an arrangement, all causes were at once to be brought and decided by one of these courts, without any previous judgment by a single judge. Only one Lord Ordinary was to sit in the Outer House, to perform certain minor duties. The judgment by the court was to be final, unless an intermediate Court of Appeal was formed of judges from the other courts. A great majority of the Commission are hostile to any such organic change, in the constitution of the court, and assign their reasons at great length.* The Commission were unanimously against any reduction in the number of the judges of session, but with equal unanimity, and with much modesty, they suggest that "the time has arrived when the Treasury may fairly be asked to reconsider the scale of the remuneration of the judges of the Courts of Sessions, seeing that it is not only less than that of the judges in the Superior Courts at Westminster, but also less than that of the judges in Ireland." We are certain that, the Bench and Bar, of both these countries, will gladly support such an act of justice to Scotland.† *There is at present power given to the judges, in case of an emergency, to create a third division by four Lord Ordinaries. Some years ago this expedient was had recourse to, in order to overtake the great increase of appeals from sheriffs, but this tribunal did not give satisfaction. The pursuer has the choice of the Lord Ordinary; and division before which he may enrol his case. This privilege, extended to one party, has formed the subject of complaint. From its exercise the favourite judge and court is often overloaded with business. To rectify this inequality, the Lord President exercises the power of equalizing the rolls, both of the Outer and Inner Houses, which so far counteracts the seeming favour given to one party to select his judges. There is a very strange and ridiculous order, through which a noviciate judge must pass, before he can take his seat on the Bench. The Crown appointment is unavailing of itself-on its presentation, the presentee is ordered to go to school in the Outer House, and hear a debate on a case before a Lord Ordinary, and next hear one before the Inner House. He then repeats his lesson and his opinion, under the SCOTCH COURTS OF LAW The Commission proceed to suggest certain arrangements and classifications of business, which appear judicious for the disposal thereof, not sacrificing substantial justice, which requires full and mature deliberation in every class of cases, and in every case of any class, whether the value of the subject at issue be great or small. The details of these suggestions, it is unnecessary to place before our southern readers. One subject is of frequent occurrence in the evidence, on which the Commissioners give no deliverance. There is no division of the Bar attached to the courts. Leading advocates are thus often engaged for several cases, at different bars, at the same hours. As the Inner House has the preference over the Outer, this frequently disturbs the progress of a case. It is of no uncommon occurrence that the names of eminent counsel, being printed on the rolls, is all that an unfortunate litigant obtains in return for large fees. A large body of evidence was given as to jury trials in civil cases. The great majority of the witnesses fully warrant the statement of the Commission, "that in 1815 the experiment was tried of transplanting into Scotland jury trial, very much as it then stood flourishing in England. It cannot be said that the experiment has been successful. The plant has not taken root and grown as was anticipated, and those who expected great results from the experiment have been disappointed. The jury was at first twelve in number, and required to be unanimous. Afterwards a verdict of nine, after six hours, was held sufficient, which is now reduced to a verdict by a majority of seven, after three hours. In 1866, proofs were authorized to be taken by one of the judges without a jury, and in 1868 the determination of the mode of trial was left to the Court. The evidence and statistics already show the preference of the public for the learned judge, rather than the promiscuous jury. Our readers readers are aware that a similar result has been reached, in the practice of our County Courts. Some of the Commissioners were of opinion, that jury trial was the best tribunal, for the investigation and decision, of questions of pure fact, as well as for the assessment of damages. On the other hand, a considerable majority of the Commissioners were of opinion that jury trial should be altogether abolished, except where both parties consented to that mode funny name of " the Lord Probationer," and thereon his trials, whatever his opinion may be, (often in the sequel found erroneous) are sustained, and he, by this perfunctory performance, is held duly qualified for judgeship. This exhibition is at once impertinent to the Crown, and degrading, alike to its nominee, and to the Bench. We are surprised that the Commissioners, amongst their manifold minute recom. mendations, do not suggest its immediate abrogation. of trial. A majority of the Commissioners, whilst expressing their favour for trial by judges instead of by jury, recommend that both systems be allowed, in the meantime, to exist, but that the Act of 1868 be so far modified as to allow the parties to fix the mode of trial, and, in case of disagreement, that the Court should do so. At present the judges at circuit dispose only of criminal business, with the rare occurrence of appeals, under certain Statutes. These appeals are far from being popular, and are generally dealt with in a very hasty and unsatisfactory manner. At circuits newly fledged counsel first essay the strength of their pinions, and very seldom any seniors go circuits. There is a provision for jury trials at circuit, which, at one time, was had recourse to in some few cases. But it was found much more economical to carry the witnesses to Edinburgh, than to bring counsel to the provinces, and so civil jury trials at circuit have been almost abandoned. The Commissioners suggest, that the judges at circuit should take proofs, when a jury is dispensed with. Perhaps the same objection, on the score of expense, which prevented jury trials at circuit, may be found equally potent, to prevent such arrangement being adopted to any great extent. Some important recommendations are made by the Commissioners as to appeals to the House of Lords, which at present are open to much and grievous abuse. (1st.) Formerly an appeal might be taken at any time within five years. This term was reduced to two years. They recommend that the term should now be limited to six months, if the party appellant is resident within Europe, and twelve months if beyond. (2nd.) That the appeal be presentable, though the House of Lords is not in sederunt, as the present contrary practice has occasioned, not only delay, but gross injustice. (3rd.) They recommend to the Appeal Court, the propriety of reform in the regulations as to the conduct of the cases before them, which at present occasion much unnecessary expense. (4th.) They do not recommend finality in the judgments of the Court of Sessions, on matters of fact. Where the case has been decided, without the intervention of a jury, such finality exists in verdicts, or, where the judgment is given by the Court of Session on appeals from sheriffs, the Courts below are bound to find, separately, matters of fact and of law, and the former are final, but the latter are open to appeal. English lawyers, perhaps, may not perceive why the same rule should not exist, when the facts are decided by the judges, seeing that their decision appears to be otherwise so much preferred to those of juries. A suggestion was made that, where parties consented, an appeal might be taken to the House of Lords from the single judge, the Lord Ordinary, in the Outer House, without the intermediate appeal to the Inner House. A majority of the Commission rejected this suggestion, as inexpedient. The fifth Report embraces the important matter of criminal law. The Commissioners briefly state the mode of procedure. The investigation of all crimes and offences originates with the procurator-fiscals, (another graft from French law), who are appointed by and act under the sheriffs, but they are under the control of the Crown counsel, who consist of the Lord Advocate, Solicitor-General, and four Depute Advocates. An accused party is apprehended, and after a caution given by the magistrate, somewhat similar to that in England, he is interrogated, and what he says in answer, with free will, is recorded in what is termed a "declaration." The difference in our practice and that of Scotland is, that in the latter, following the still severer practice of France, the accused is subject to interrogations, and though he may decline to answer, his refusal is recorded and is sure to tell on the jury, as indicative of guilt. He may be remanded for a period, not fixed by Statute, but which, in practice, does not exceed eight days. A precognition is, in the meantime, taken of the evidence by the fiscal, but not on oath, unless where reluctance is shown. The accused is then liberated, or committed for trial. In crimes which are still nominally capital, no bail can be taken. But in all other minor offences bail must be taken, on a graduated scale, not exceeding 1200l. for a nobleman, 6001. for a landed gentleman, and 60%. for any other inferior person. This, and other privileges of the accused, are regulated by the Act 1701, c. 6. (the Habeas Corpus Act for Scotland.) By giving notice to the prosecutor (technically called running letters) a prisoner may force on his trial, so as to have it completed within 100 days, which, by a mode of procedure peculiar to our northern neighbours, may be extended to 140 days, and then, if not tried, he is for ever liberated from the charge. The precognition and declarations being forwarded to Crown counsel, they direct the charge to be withdrawn, or order the trial to take place summarily before the sheriff, or by him with a jury, or before the High Court of Justiciary at Edinburgh, or at the next district circuit. The fiscal, in minor offences, at once charges the offender summarily before the sheriff, the punishment, in that form, not exceeding a fine of 107. or imprisonment for sixty days. There is a limited appeal to the justiciary circuit, but this is of very rare occurrence. The High Court of Justiciary consists of seven judges of the civil court. The Lord President is chief, and is |