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which, without being expressly enacted by statute,
derives its force from the tacit consent of king THE LAW OF SCOTLAND.
and people; which consent is presumed from the
ancient custom of the community.' Cufom, as it GENERAL OBSERVATIONS.
is equally founded in the will of the lawgiver with The former countries, confids partly of ftaHE MUNICIPAL LAW of Scotland, as of written law, has therefore the same effects: Hence,
as one statute may be explained or repealed by antutable or written law, which has the express au- other, fo a statute may be explained by the unithority of the legisative power; partly of custom- form practice of the community, and even go into ary, or unwritten law, which derives force from disuse by a pofterior contrary custom. presumed or tacit confent.
7. An uniform train of the judgments or deci. 2. Under our ftatutable or written law is com- fions of the court of session is commonly considerprehended, 1. Our acts of parliament; not only ed as part of our customary law, because such unithose which were made in the reign of James I. formity establishes what is the custom in each para of Scotland, and from thence down to our union ticular case. with England in 1907, but such of the British Ita 8 The SCOTS Acts of parliament were, by our tutes enacted since the union as concern this part most ancient cuftom, proclaimed in all the diffeof the united kingdom.
rent fhires, boroughs, and baron-courts, of the 3. A collection of law books under the title of kingdom. But after our statutes came to be printREGIAM MAJESTATem was published by Sir John ed, that custom was gradually neglected; and at Skene, at the commencement of the 16th century. laft, the publication of our laws, at the marketIt confifts of the Regiam Majeftatem, now gene- cross of Edinburgh, was declared sufficient; and rally deemed to be a mere transcript from a work they became obligatory 40 days thereafter. Briof Glanville, an English lawyer, called Regiam Po- tish statutes are deemed sufficiently notified, with. teftatem, interlarded with a few of the laws and out formal promulgation; though, for the inforparticular customs of this country, the Borough mation of the lieges in general, copies of every Laws, the laws of K. Malcolm, &c. Though we public statute are now forwarded to each diftrict are inclined to think these books unworthy
to be of every county throughout the kingdom, at the ranked as part of the ftatute law of this country, public expense. After a law is published, no preyet as their authenticity was much agitated by the tence of ignorance can excuse the breach of it. legal antiquarians
of the last century, we may, 9. As laws are given for the rule of our conduct, under the article Regiam MAJESTATEM, give a they can regulate future cases only; for paft acThort abftract of the dispute.
tions being out of our power, can admit of no, 4. Our written law also comprehends, 3. The rule. New laws can therefore have no retrospect. acts of federunt, which are ordinances for regu. Io. By the rules of interpreting statute law res lating the forms of proceeding before the court of ceived in Scotland, an argument may be used session in the adminiftration of justice, made by from the title to the act itself;-a rubro ad nja the judges, who have a delegated power from the grum; at least, where the rubric has been either legiNature for that purpofe.
originally framed, or afterwards adopted, by the s. The civil, or Roman and canon laws, though legislature. they are not perhaps to be deemed proper parts 11. But the rules for the interpretation of laws of our written law, have undoubtedly had the in Scotland being, in general, nearly the came with greateft influence in Scotland. The Roman law those observed for the interpretation and construcHill continues to have great authority in all cases tion of the statute laws in England, it is unneces. where it is not derogated from by any statute or fary to repeat them here. See Part II. Sect. V. cuftom, aod where the genius of our law suffers 12. The objects of the laws of Scotland, accord. os to apply it.
ing to Mr Erskine in his Institute, are, Persons, 6. Our unwritten, or customary law, is that Tbing, and Afione. VOL. XIII, Part I.
travelling merchant, a personal citation againft Of PERSONS.
him within the territory is sufficient to found the
judge's jurifdicion over him, even in civil quesAMONG perfons, judges, who are invested with tions. As the defender is not obliged to appear jurisdiction, deserve the first confideration. before a court to wbich he is not subject, the Sect. I. Of JURISDICTION and JUDGES in
pursuer must follow the defender's domicile.
9. It is founded, 2. Ratione rei ftæ, if the fubGENERAL.
ject in question lie within the territory. If that 1. JURISDICTION is a power conferred upon a fubject be immoveable, the judge, whofe jurisdic. judge or magiftrate, to take cognisance of, and de- tion is founded in this way, is the sole judge comcide causes according to law, and to carry his fen- petent, excluding the jådge of the domicile. tences into execution. The tract of ground, or 10. Where one, who has not his domicile with. district, within which a judge has the right of ju- in the territory, is to be sued before an inferior rifdi&ion, is called his territory : and every act of court, ratione rei fita, the court of seffion must be jurisdiction exercised by a judge without his'terri- applied to, whose jurisdiction is universal, and tory, either by pronouncing sentence, or carrying who, of course, grant letters of supplement to it into execution, is null.
cite the defender to appear before the inferior 2. The supreme power, which has the right of judge. Where the party to be sued refides in anenacting laws, naturally has the right of erecting other kingdom, and has an estate in this, the court courts, and appointing judges, who may apply of feflion is the only proper court, as the comthose laws to particular cases: but, in Scotland, mune forum to all persons residing abroad ; and this right has been al intrusted with the the defender, if his eftate be heritable, is conficrown as having the executive power of the state, dered as lawfully summoned to that court, by a
3. Jurisdi&tion is either supreme, inferior, or citation at the market cross of Edinburgh, and mixed. That jurisdition is supreme, from which pier and thore of Leith : but where a stranger, not there lies no appeal to a higher court. Inferior à native of Scotland, has only a moveable estate courts are those whose sentences are subject to the in this kingdom, he is deemed to be so little fubreview of the fupreme courts, and whole jurisdic. ject to the jurisdiction of our courts, that action tion is confined to a particular territory. Mixed cannot be brought against him till his effects be jurisdi&ion participates of the nature both of the first attached by an arreftment jurifdi&tionis funsupreme and inferior: Thus the judge of the high dandæ caufa ; which is laid on by a warrant issuing court of admiralty, and the commissaries of Edin- from the supreme courts of feffion, or admiralty, burgh, have an universal jurisdiction over Scot- or from that within whose territory the subject is land, and they can review the decrees of inferior situated, at the suit of the creditor. admirals and commissaries; but as their own de 11. A judge may, in special causes, arrest or fecrees are subject to the review of the courts of care the persons of such as bave neither domicile fesfion or juriciary, they are, in that respect, in- nor estate within his territory, even for civil debts. ferior courts.
Thus, on the border between Scotland and Eng4. Jurisdiction is either civil or criminal : By land, warrants are granted of course by the judge the first, questions of private right are decided; ordinary of either fide, against those who have by the 2d, crimes are punished. But, in all juris- their domicile upon the opposite side, for arreftdictions, though merely civil, there is a power in- ing their persons, till they give caution judicio fifti : herent in the judge, to punish, either corporally, and even the persons of citizens or natives may be or by a pecuniary fine, those who offend during so secured, where there is just reason to suspect the proceedings of the court, or who fhall after that they are in meditatione fuga, i.e. that they wards obstruct the execution of the sentence. intend suddenly to withdraw from the kingdom;
s. Jurisdiction is either privative or cumulative. upon which suspicion, the creditor who applies Private jurisdiction is that which belongs only for the warrant must make oath. An inhabitant to one court to the exclusion of all others. Choof a borough royal, who has furnished one who mulative, otherwise called concurrent, is that which lives without the borough in meat, clothes, or may be exercised by any one of two or more other merchandise, and who has no fecurity for it courts in the same cause.
but his own account book, may arreft his debtor, 6. All heritable jurisdictions, except thofe of ad- till he give security judicio fifti. miralty and a small pittance reserved to barons, 12. A judge may be declined, i.e. his jurisdicare either abolished, or annexed to the crown. tion disowned judicially, 1. Ratione causa, from See JURISDICTION, S III.
his incompetency to the special cause brought be 7. Jurisdiction is either proper or delegated. fore him. 2. Ratione fufpe&ti judicis ; where either Proper jurisdiction is that which belongs to a the judge himfelf, or his near kinfman, has an injudge or magistrate himself, in virtue of his office. terest in the suit. No judge can vote in the cause Delegatet is that which is communicated by the of his father, brother, or son, either by consangui. judge to another called a depute, or fubftitute. nity or affinity ; nor in the cause of his uncle or
8. Civil jurisdiction is founded, 1. Ratione domi- nephew by confanguinity. 3. Ratione privilegü ; cili, if the defender has his domicile within the where the party is by privilege exempted from judge's territory. A domicile is the dwelling their jurisdict on. place where a person lives with an intention to 13. Prorogated jurisdiction, jurifdiétio in conrenain ; and custom has fixed it as a rule, that sentientes, is that which is, by the content of parresidence for 40 days founds jurisdiction. If one ties, conferred upon a judge who, without such has no fixed dwelling place, c.g. a soldier, or a consent, would be incompetent. Where a judge
is incompetent, every step he takes must be null, the English privy council had at the time of the till his jurisdiction be made competent by the union. party's actual submission to it. It is otherwise 4. A court was erected in 1425, consisting of where the judge is competent, but may be de- certain persons to be named by the king, out of clined by the party upon privilege.
the three estates of parliament, which was vested 14. In order to prorogation, the judge must with the jurisdiction formerly lodged in the coun. have jurisdiction, such as may be prorogated. cil, and got the name of the SESSION, because it Hence prorogation cannot be admitted where the was ordained to hold annually a certain number judge's jurisdiction is excluded by statute. Yet of feffions at the places to be specially appointed where the cause is of the same rature with those by the king. This court had a jurisdiction, cuto which the judge is competent, though law mulative with the judge ordinary, in spuilzies and may have confined his jurisdiction within a cer. other possessory actions, and in debts; but the tain fum, parties may prorogate it above that judge ordinary had no cognisance in questions of fum unless where prorogation is prohibited. Pro- property of heritable subjects. No appeal Jay rogation is not admitted in the king's causes; for from the judgments of the feftion to the parlia. the interest of the crown cannot be hurt by the ment: The judges of this court served by rota, negligence of its officers.
tion, and were changed from time to time, after 13. All judges must at their admission swear, 1. having sat 40 days. They became so negligent The oath of allegiance, and subscribe the assurance; in the adminiftration of justice, that it was at last 2. The oath of abjuration ; 3. The oath of supre- thought necessary to transfer their jurisdiction to macy ; 4. lastly, The oath de fideli adminiftratione. a council to be named by the king, called the
16. A party who has either properly declined daily council. the jurisdiction of the judge before whom he had s. The model of the court of session, or college been cited, or who thinks himself aggrieved by of justice, was formed in the reign of James V. any proceedings in the cause, may, before decree, The judges, who were vested with an universal apply to the court of session to issue letters of ad- civil jurifdi&ion, consisted originally of 7 churchvocation for calling the action from before the in- men, 7 laymen, and a president, whom it beferior court to themselves.
hoved to be a prelate; but spiritual judges were 17. That the court of feffion might not waste in 1584 partly, and in 1640 totally, prohibited. their time in trifles, no cause for a sum below 121. The judges of the court of session have been alSterling could, as the law formerly stood, be ade ways received by warrants from the crown. An vocated to the court of session from the inferior ciently the king feems to have transferred to the judge competent; and now, by act so Geo. III. c. court itself the right of choosing a president; and 112, all caufes not exceeding 251. in value shall in a sederunt recorded June 26, 1593, K. James be carried in the first instance before the inferior VI. condescended to present to the lords, upon judge ; but if an inferior judge shall proceed upon every vacancy in the bench, a list of three perfons, a cause to which he is incompetent, the caufe out of which they were to choose one. But he may be carried from him by advocation, let the foon resumed the exercise of both rights, which fubject be ever so inconfiderable.
continued with the crown till the usurpation;
when it was ordained, that the king should name SECT. II. Of the SUPREME JUDGES and COURTS of SCOTLAND.
the judges of the feffion, by the advice of parlia
ment. After the restoration, the nomination was 1. THE KING, who is the fountain of jurif again declared to be solely in the sovereign. diction, might, by our ancient constitution, have 6. Though judges may, in general, be named judged in all caufes, either in his own person, or at the age of 21 years, the lords of session must be by those whom he was pleased to vest with jurif- at least 25. No person can be named lord of di&tion; but the whole power is now vested in session, who has not served as an advocate or the latter.
principal clerk of session for 5 years, or as a writer 2. The PARLIAMENT of Scotland, as our court to the signet for 10; and in the case of a writer of the laft refort, had the right of reviewing the to the fignet, he must undergo the ordinary trials sentences of all our supreme courts.
of an advocate upon the Roman law, and be 3. By the treaty of Union, in 1709, the parlia- found qualified two years before he can be named. ments of Scotland and England are united into Upon a vacancy in the bench, the king presents one parliament of Great Britain, From this pe. the successor by a letter adressed to the lords, in riod, the British house of peers, as coming in place which he requires them to try and admit the perof the Scots pårliament, is become our court of fon presented. The power to reject the presenthe last resort, to which appeals lie from all the tee upon trial is taken away, and a bare liberty fupreme courts of Scotland: but that court has to remonftrate substituted. bo original jurisdiction in civil matters, in which 7. Besides the 15 ordinary judges, the king was they judge only upon appeal. By art. 22 of that allowed to name 3 or 4 lords of his great council, Creaty, the Scots Thase of the representation in the who might fit and vote with them. These exhouse of peers is fixed to 16 Scots peers ele&tive; traordinary lords were suppressed in the reign of and in the house of commons to 45 commoners, George 1. At the commencement of the winter of whom 30 are elected by the freeholders of session 1808, these 15 ordinary judges were sepacounties, and is by the royal boroughs. The rated into two divisions, the one consisting of 8, Scots privy council was also thereupon abolished, and the other of 7 members. Each division posand funk into that of Great Britain ; which for the felles the same powers, and carries on actions unfuture is declared to have no other powers than der the same forms, as the whole did formerly,
with some improvements, by which the business ers of the kingdom were obliged to attend. Ben of the nation is greatly facilitated.
fides this universal court, special justice ayres were 8. The appellation of the COLLEGE OF JUS- held in all the different shires in the kingdom twice TICE is not confined to the judges, who are dism in the year. These last having gone into disuse, finguished by the name of fenators; but compre- 8 deputies were appointed, two for every quarter hends advocates, clerks of sellion, writers to the of the kingdom, who Kould make their circuits fignet, and others, as described in an a&t of fede. Over the whole in April and O&tober. runt, 23d Feb. 1687. Where, therefore, the col. 12. The office of deputies was suppressed in lege of justice is entitled to any privilege, it ex. 1692 ; and s lords of session were added, as comtends to all the members of the college. They millioners of justiciary, to the justice-general and are exempted from watching, warding, and other justice-clerk. The justice-general, if prefent, is services within the borough ; and from payment constant president of the coort, and in his absence of ministers ftipends, and of all customs, &c, im. the justice-clerk. The kingdom is divided into 3 posed upon goods carried to or from Edinburgh. districts, and two of the judges are appointed to Several of these privileges and immunities were hold circuits in certain boroughs of each diftri& called in question by the city of Edinburgh of late twice in the year; one judge may proceed to bu. years; but they were found by the court of fef- finess in the absence of bis colleague. In trials be. fion to be in full force; and their decision having fore this court the evidence was always taken been appealed from to the House of Lords, was down in writing till the act 23d Geo. JII. was paff. affirmed.
ed; by which the judges may try and determine 9. Though the jurisdiction of the feflion be all causes by the verdix of an afize, upon exa. properiy limited to civil causes, the judges have mining the witnesses viva voce, without reducing always sustained themselves as competent to the the teftimony into writing, unless it shall appear crime of falsehood. Where the falsehood de- more expedient to proceed in the former way; serves deaih or demembration, they, after finding which they have it in their power to do. This the crime proved, remit the criminal to the court act was at first temporary, but is now made perof jul iary. Special statute has given to the court petual by 27th Geo. III. cap. 18. of session jurisdiation in contraventions of law 13. By an old ftatufe, the 'crimes of robbery, burrows, deforcements, and breach of arrestment; tape, murder, and wilful fire-raising (the four and they have been in use to judge in battery pen- pleas of the crown), are said to be reserved to the dente lite, and in usury.
king's court of justiciary ; but the only crime in 10. In certain civil causes, the jurisdiction of which, in practice, the jurisdi&tion of justiciary the session is exclusive of all inferior jurisdic. became at last exclusive of all inferior criminat tions; as in declarators of property, and other jurisdiction, was that of high treason. The court competitions of heritable rights, provings of the of jufticary, when fiting at Edinburgh, has a renor, cessiones bonorum, restitution of minors, re- power of advocating causes from all inferior cri. ductions of decrees or of writings, fales of the minal judges, and of suspending their fentences. eftates of minors or bankrupts, &c. In a ad class 14. The CIRCUIT Court can also judge in all of causes, their jurisdiction can be exercised only criminal causes which do not infer death or de. in the way of review, after the cause is brought membration, upon appeal from any inferior court from the inferior court; as in maritime and con- within their district; and has a supreme civil jurit. fiftorial causes, which must be pursued in the first diction, by way of appeal, in all causes not exceed. instance before the admiral or commissary; and ing sal. Sterling, in which their decrees are not in actions below 251. Sterling, which must be com- subject to review ; but no appeal is to lie to the menced before the judge ordinary. In all civil circuit, till the cause be finally determined in the actions, which fall under neither of these classes, inferior court. the jurisdiction of the fefsion is concurrent, even 15. The court of exchEQUER, as the king's in the first inftar.ce, with that of the judge ordi- chamberlain court, judged in all quefions of the nary. The seffion may proceed as a court of revenue. In pursuance of the treaty of Union, equity by the rules of conscience, in abating the that court was abolished, and a new court ereded, rigour of law, and giving aid in proper cases to consisting of the Lord High Treasurer of Great such as in a court of law can have no remedy; Britain, and a chief Baron, with 4 other Barons of and this power is inherent in the supreme court Exchequer; which barons are to be made of sera of every country, where separate coarts are not jeants at law, English barristers or Scots adsoestablished for law and for equity. This court cates of s years standing. This court has a priformerly met upon the 12th of June, and rose vative jurisdiction conferred upon it, as to the dua upon the urth of August, for the summer session; ties of customs, excise, or other revenues apperbut now, io consequence of an act palled in the taining to the king or prince of Scotland, and as session of parliament, 1790, it meets on the 12th to all honours and estates that may accrue to the of May, and rises on the 11th of July, for the sum- crown; in which matters, they are to judge by mer fesfion ; the winter sederunt being still held the forms of proceeding used in the English court as formerly, viz. from the 12th of November to of Exchequer, under the following limitations : the Ith of March inclusive.
that no debt due to the crown fall affect the II. The supreme criminal judge was styled the debtor's real estate in any other manner çhan such Justiciar; and he had anciently an universal civil estate may be affected by the laws of Scotland, juritdiction, even in matters of heritage. He was and that the validity of the crown's titles to any obliged to hold two justice courts of ayres yearly honours or lands Mhall continue to be tried by the at Edinburgh or Peebles, where all the freehold court of session. The barons have the powers of