T. & T. CLARK, LAW BOOKSELLERS, GEORGE STREET.

GLASGOW: SMITH AND SON.

ABERDEEN: WYLLIE AND SON.

LONDON: STEVENS, SONS, AND HAYNES.

MDCCCLXIV.

MURRAY AND GIBB, PRINTERS, EDINBUrgh.

THE

JOURNAL OF JURISPRUDENCE.

THE SHERIFF COURTS.

The History and Present Constitution of the Sheriff Courts of Scotland. By ROBERT ROBERTSON, Esq., Advocate, Sheriff-substitute of the County of Stirling.

(Continued from page 587, Vol. VII.)

MR ROBERTSON, in the historical sketch which forms the first part of his pamphlet,' sets forth the various statutes which, subsequent to the Jurisdiction Act, have defined the position and prescribed the duties of the Sheriffs and their Substitutes. The enumeration

1 An answer to criticisms on Mr Robertson's history in our last number, appeared in the Stirling Observer, 10th December 1863, which has been printed separately, with large additions, and circulated by Mr Robertson, in such a manner as to justify the inference that he is the writer of the original article. The style of this reply is so utterly unbecoming, that we leave it, without further remark, to the certain condemnation of all who may happen to read it. But we have a word to say of its unfairness. We had attributed to Mr Robertson at least two historical errors: 1. In denying that the Sheriff is a royal-depute; and 2. In denying that that he is the true representative of the old Sheriff, or vicecomes. Now, any contradiction of our views should certainly have referred to, and, if possible, refuted the authorities by which we supported them; i.e., Erskine and Sir Islay Campbell, whose words we again quote: The officer denominated Sheriff-depute, in the Jurisdiction Act, continues in effect to hold the same situation which the Sheriff occupied under the Scottish monarchy. He is now, as the Sheriff was then, an immediate deputy of the king.' The reply in question, however, scouts this idea, as if it were an unfounded 'pretension' of our own, without once alluding to those distinguished lawyers on whose authority-as against the violent assertion of Mr Robert Robertson-we were and are content to rely. The repetition of blunders, without any attempt to justify them, even though enlivened by vehement abuse of your opponent, is not a style of controversy either very seemly in itself, or very well calculated to serve the single object of bringing out truth.'

VOL. VIII. NO. LXXXV.-JANUARY 1864.

A

of the statutes is accurate enough, but a gloss is thrown over the whole narration; and it concludes with blunders which do credit even to Mr Robertson's imagination. The story of the statutes may be told, without any gloss, very shortly. By the Jurisdiction Act, Sheriffs were required to reside four months in their counties. During their absence the formal business of the Court was discharged by resident Substitutes. As the legal necessities of the country increased with her increasing wealth and prosperity, the judicial work which devolved on these Substitutes grew in extent and importance. Accordingly, in 1826, a statute was passed, requiring that such assurance of legal knowledge as is afforded by a man being an advocate, or a writer to the Signet, or a solicitor before the Supreme Courts, or a country practitioner of three years' standing, should be an indispensable qualification for the office of Sheriff-substitute; and in order to ensure the existence of such qualification, the consent of the Lord President and the Lord Justice-Clerk was required to the appointment of any Substitute by the Sheriff. From the first, however, most of the Sheriffs evaded the requisition of four months' residence; while others, again, erred on the side of extreme obedience, and never left their counties at all. This latter irregularity proved, in the opinion of competent judges, very much the worse of the two. Sir Islay Campbell-one of the most eminent men who ever sat on the Scotch Bench-entertained, and often expressed, a strong conviction of the mischief arising from the system of 'country-gentlemen Sheriffs.' Lord Cockburn was wont to declare, with his characteristic force of expression, that 'their heads became filled with prejudices, and emptied of law.'

Say the Commissioners of 1818: By the 29th section of the Jurisdiction Act, it was provided that the Sheriffs-depute should be resident within their several counties for four months in every year. We think it necessary to explain, that a considerable relaxation has taken place in the observance of the rule thus laid down; and that in the greatest number of cases, the Sheriffs-depute are now in use, without adhering to the exact period specified in the Act, to visit their jurisdictions at such times and for such continuance, as they in their discretion think necessary in the circumstances of each sheriffdom.'

The Commissioners, however, did not consider this deviation from the exact statutory requirement as at all blameworthy, or as arising from any other motive than an anxious desire on the part

of the Sheriffs-depute to adopt whatever course might most conduce to the efficient discharge of their duties. On the contrary, they express their opinion that the Sheriffs-depute ought always to be chosen out of those members of the Faculty of Advocates who are in constant attendance in the Supreme Courts of law, and must, on this account, have their residence in Edinburgh.' Similar views were enforced by the Commissioners of 1834; and so strongly did experience teach their correctness, that a statute making attendance at the sittings of the Supreme Courts compulsory on the Sheriffsdepute, was passed by Lord Advocate Murray in 1838.

This statute is regarded by Mr Robertson as the Magna Charta of Sheriff-substitutes; and it may be well, therefore, to see what it actually did. It enacts that the Sheriffs (with the exception of the Sheriffs of Edinburgh and Lanark)' shall be in habitual attendance on the Court of Session; and instead of residing in their counties for four months, they are required to hold eight courts during the year, and also to attend personally within their sheriffdoms upon all necessary and proper occasions.' It enacts that the Sheriff-substitutes shall not be absent from their jurisdiction for more than six weeks during the year, or for more than two weeks at any one time; it requires the same consent from the heads of the Court for the removal of that officer by the Sheriff, as were before required for his appointment; and it provides that on the death or resignation of the Sheriff, the Sheriff-substitute shall continue in office. without the necessity of any appointment from his successor. Lastly, the statute of 1853 requires the Sheriffs to hold only four -in some counties three-sittings during the year. This provision is apparently a relaxation of the statute of 1838, but it is not so in reality; for the sittings' here required may, and generally do, embrace several of the ordinary Courts' required by that statute; and besides, must take place at intervals of not less than six weeks. Now, these are the sole provisions of the Legislature since the Jurisdiction Act, which have introduced any change in the relative positions of Sheriffs and their Substitutes; and it cannot be denied, that from these Mr Robertson has contrived to deduce corollaries of the most startling kind.

Mr Robertson assures his readers, that the Sheriff-substitute is no more the Substitute of the Sheriff than the Justice-Clerk is the clerk of the Justice-General;' and that he is as truly independent of 1 Maintaining in this point the provisions of 3 Geo. IV. c. 49.