who stands in an equal degree of propinquity to both parties, let it be ever so near, cannot be declined; because there the bias or partial affection must be also presumed equal. But, first, Admitting this to be a good reason why the law ought to stand so, the rule contained in the act 1681 makes no such exception. And, 2dly, There is the same reason for declining a judge who stands in an equal relation to both parties, as for rejecting the testimony of a witness in the like situation; for which see below, B. 4. T. 2. § 24. It would seem, that though the marriage which first created the affinity between the judge and the party should be dissolved, the judge continues disqualified from voting in that party's cause, not only from the words of the act, but from the reason of the thing: For though the affection which works the bias in the judge had its first rise from the marriage, it is seldom or never taken off by the dissolution of it. In the House of Lords of Great Britain, every member of that sovereign court may judge, not only in any kinsman's cause, but even in his own. That privilege however is seldom if ever used. A judge may likewise be suspected on account of his dependence on a superior. Thus a cause may be carried to the court of session from a deputy, because the principal judge is a party to it, 1555, C. 39. in fine. And though Lord Stair limits that act to the case of removing tenants, which is the special subject of it, B. 4. T. 37. § 20.; yet it seems to have required an express statute, to authorise deputies to judge in the causes of the principal, 1579, C. 84 4. Where a judge is himself party to a cause so similar to the one brought before him, that both fall to be decided by the same rules, he is said in the Canon law, fovere consimilem causam, and by that law may be declined, Decretal. L. 2. T. 1. C..18. 27. Prorogated jurisdiction is that which is, by the consent of parties, conferred on a judge, who, without such consent, would be incompetent. The Romans, who were strangers to the word prorogate, gave it the name of jurisdictio in consentientes. It is authorised by L. 1. De. judic.; where two things are required as essential to it ; the consent of parties, and jurisdiction in the judge. First, The parties must consent; for where a judge is incompetent, he can have no authority, till his jurisdiction be rendered competent by the consent of him who is not subject to it. It is not therefore sufficient, that no appearance be made in behalf of the defender; for one is under no necessity to appear before a judge who has no right to call him to judgment, L. 20. De jurisd., unless he acquiesce in his authority, either by an express declaration in word or writing, or tacitly, by some act which implies consent. Tacit prorogation is inferred against a pursuer, by bringing his cause before the judge; and against a defender, by his appearing, and offering defences in the cause, either dilatory or peremptory; which the law considers as an acknowledgment of the competency of the court, according to the rule, Primus actus judicii est judicis approbatorius. The offering of a declinature is so far from importing an acquiescence in the judge's jurisdiction, that it is an express disowning of it. Where a declinature has been offered by the party and repelled by the judge, the party is not understood to pass from it, though he should afterwards offer defences in causa, Fount. July 29. 1696, Schaw, (DICT. 41 This statute extends only to a few special cases. The general rule seems to be stated with more accuracy in Mr Erskine's Principles, h. t. § 13. "A deputy may be declined, as suspected, where the principal judge is a party, 1555, c. 39. § ult., ex"cept in causes in which he is authorised to judge by special statute, 1579, c. 84." 66 As (Dicт. p. 7314.); but this is commonly done, under protestation, TITLE II. tration in the books of a court does not import prorogation. 28. A clause of registration, though it bear a consent to register Clause of registhe deed in the books of a particular court, does not import prorogation, so as to found that court in a jurisdiction, in questions that may arise afterwards upon its validity or legal effects. The consent is confined to the registration, which is quodammodo jurisdic-tionis voluntariæ; though therefore it has the effect to support the diligence which is founded on the registration, it is not to be so stretched by implication, as to confer judicial powers on the judge in acts of contentious jurisdiction. Thus, though a bond for a sum exceeding L.40 Scots should bear an express consent for registration in the books of any commissariot, the commissary is not thereby authorised to judge of the import of that bond in any subsequent question, without a proper prorogation. proroga 29. The second requisite of prorogation is, That the judge have such jurisdiction as may be a proper or habile subject of tion, L. 3. C. De jurisd. For this reason, there is no place for prorogation, where the jurisdiction is vacated, or its term expired, which doctors call prorogatio de tempore in tempus: For no private consent can create jurisdiction; and a magistrate or judge, after the term of his office is elapsed, or his commission revoked, is no longer a magistrate or judge. Neither can jurisdiction be prorogated de loco in locum; i. e. parties cannot subject themselves to the jurisdiction of a judge while he is without his territory; for a judge extra territorium is no better than a private person. But prorogalio de loco in locum has been admitted in our practice, when understood in a different sense: If, for instance, one who resides in the shire of Haddington, shall appear before the sheriff of Edinburgh, and exhibit defences in causa, without pleading the præscriptio fori, he thereby brings himself within the territory of that sheriff, and. so is understood to acquiesce in his jurisdiction, Feb. 23. 1627, Service, (Dict. p. 7305.). Yet it still remains a doubt, whether prorogatio de loco in locum ought to be extended to the case where the defender's domicil is not within the judge's territory, more than it can be to the case where the judge sits in judgment in a place with out it 42. When there is no room for prorogation. Prorogatio de loco in locum. causa in causam. 30. Jurisdiction is said to be prorogated de causa in causam, Prorogatio de when parties consent, that a judge, who hath jurisdiction in causes of a particular kind, or to a particular extent, shall have the cognisance of a cause of a different kind, or to an higher extent. By the Roman law, prorogation from civil causes to criminal was rejected, L. 1. C. Ubi causæ fisc. because the power of the sword was not included in civil jurisdiction: But a judge appointed to a determinate kind of civil causes might, by the consent of parties, take cognisance of civil causes of a different kind, L. 1. C. De jurisd. omn. jud. By our law, the limiting of jurisdiction to a certain sort of 42 Yet such a prorogation of the Commissaries' jurisdiction was lately sustaiped in a question of divorce between English parties, and in reference to a marriage contracted in Ireland, where the defender, having only been a few days in Scotland, had of course acquired no sort of domicil; Murray, 8th March 1805, Fac. Coll. DICT. v. FORUM COMP. App. No. 5. BOOK I. No prorogation in baron courts, nor where the judge may be declined from propinquity. of civil causes, imports a denial of it, in causes of an higher or different nature, Pr. Falc. 13. (Bethune, Dicт. p. 7307.); in which therefore there can be no prorogation, though both parties should acknowledge the judge's jurisdiction in the most express terms. Thus no consent of parties can give force to the sentence of a sheriff in an action for declaring the property of heritage, or in a sale or ranking of a bankrupt estate. Thus also the jurisdiction of the justices of the peace ought not to be prorogated to actions upon common debts. The powers conferred upon them were intended solely for preserving the public peace, and maintaining a well-regulated police over the kingdom. They seem therefore to have no radical jurisdiction in civil causes, which may be the proper subject of prorogation, Fac. Coll. ii. 170.(Barclay, Dicт. p. 7611.)*43. But in questions of the same nature with that to which the judge is confessedly competent, though the law may have confined his ju-risdiction to causes within a stated sum, parties may prorogate it to causes beyond that sum; as the transition is easier from a smaller sum to a greater, than from a cause of one kind to one of a quite different kind, June 25. 1668, Black, (DICT. p. 7309.). 31. Prorogation of jurisdiction is, in special cases, excluded by statute. Thus, first, No prorogation can, by the late jurisdictionact, 20° Geo. II., be received in baron-courts; so that baron-bailies are shut out from the cognisance of causes which exceed the sum to which that statute has limited the baron's judicial powers44. 2dly, The ground of declinature arising from the judge's propinquity to one of the parties, is so strongly founded, that no consent of parties can enable or qualify the judge to take cognisance of such causes; for all right of judging in them is expressly denied to him by the following words of the act 1681, C. 13. that the judge shall not sit, nor * There is some reason to doubt if the case here quoted supports the doctrine of the text. In a later question, a person being sued for grass-mail before the justices, pleaded his defences, which were overruled. He suspended; but the court found the letters orderly proceeded, Jan. 24. 1769, Boyd contra Millar, &c. (DICт. p. 7617.). 43 The principal report here referred to seems irreconcileable with the use that is made of it in the text. According to that report, it appears, that the justices having, in the first instance, sustained their jurisdiction," the defenders appealed to the quar"ter-sessions, who found, that the Justices of Peace were not competent judges in this "process, and dismissed the same;"-but that afterwards the pursuers complaining to the Supreme Court by advocation against this decision," the Lords advocated the "cause; and remitted to the Lord Ordinary to proceed accordingly." It is presumed, however, that some inaccuracy must have crept into the report; for the case is thus abridged in the General Index by the Reporter himself: "Juris"diction of the Justices of the Peace cannot be prorogated;" while in the Folio Dictionary, it is said, "The Lords advocated the cause, upon the ground that Justices "have no jurisdiction in civil matters." Accordingly, the law, as stated by Mr Erskine, was afterwards held to be quite settled; and in Robertson, 15th June 1790, Fac. Coll. DICT. p. 7625, "The Court considered the total incompetency of Justices "of the Peace to judge in any ordinary questions of debt, however small the subject "of litigation might be, as a point so clear, that it did not admit of the smallest doubt." Since this decision, the Justices have been empowered, by special statute, to try and determine all causes and complaints brought before "them concerning the recovery of debts, or the making effectual any demand; provided always, that the debt 66 or demand shall not exceed the value of L.5 Sterling, exclusive of costs;" 39. and 40. Geo. II. c. 46. § 2. But this very proviso seems to exclude the prorogation of their jurisdiction in causes of a higher value, agreeably to the doctrine laid down, § 31. of the text. See infra, tit. 4. § 13. 66 "In the same way, under the provisions of the act 1681, c. 16., which vests a privative jurisdiction in the Court of Admiralty, the jurisdiction of the Court of Session cannot be prorogated in purely maritime causes; Clark, 8th August 1783, Fac. Coll. DICT. p. 7532; Lawrie and Pinkerton, 31st January 1812, Fac. Coll. nor vote. Besides, the statute disables the judge from voting, not only where the party related to him is pursuer, but where he is defender; though it must be evident, that a pursuer who brings before a judge a son or brother of that judge as a defender, does an act, which, in its own nature, infers prorogation, and virtually passes from all grounds of declinature which might have been competent to him against the judge on account of his proximity of blood to the defender. 32. All judges must be just men, that so all who are subject to their jurisdiction may have equal justice done to them, 1449, C. 13. They must have attained to the age of twenty-one years at least; for no person, to whom the law denies the unlimited management of his own property, ought to be entrusted with that of others. They must, by 1567, C. 9., maintain the purity of religion; by which is meant the Reformed Religion, in opposition to Popery: And by Conv. Est. 1689, C. 13., it is declared contrary to law to employ Papists in places of the greatest trust. Lastly, Judges must have a competent estate of their own, out of which they may be punished, if they minister not the law evenly, or be negligent in their offices, 1424, C. 6. & 45.; 1457, C. 76. This last qualification has been borrowed from the Roman law, which provided, that if a judge litem suam fecerit, erred either through ignorance or corruption, he was liable in damages to the party hurt, L. 5. § 4. De obl. et act. But because few persons would adventure on the office of a judge, if an undesigned error, perhaps in apicibus juris, were to subject them to damages, this penalty is, by the usage of Scotland, pointed only against those judges who from wilfulness or a bad heart delay or pervert judgment, July 19. 1706, Black*; Fac. Col. i. 111., (Blaw, DICT. p. 7610. †). Yet where the sentence is glaringly illegal, lata culpa equiparatur dolo; law, from the grossness of the error, presumes a perverse will, Br. 79, (Pitcairn, Dicт. p. 13948 ‡.). All our supreme judges hold their offices ad vitam aut culpam, which is the likeliest way to preserve them from undue influence. There is indeed no statute limiting the crown's right in this respect; but it was declared contrary to law, by Conv. Est. 1689, C. 13., to change a grant of jurisdiction, once made during life, to a commission during pleasure. 33. The oaths imposed by law on our present judges are, first, The oath of allegiance, with the assurance, the tenor of which is inserted in 1693, C. 6. 2dly, The oath of abjuration, which was first imposed by 6° Ann. C. 14., on all who, by the former laws, were required to swear the allegiance, and subscribe the assurance; and has been since continued by several British statutes. 3dly, The oath of supremacy, which was by 1° Geo. I. C. 13. imposed upon all officers, civil and military, in Britain. This oath contains in substance, that no foreign prince or prelate hath any ecclesiastical authority in this realm; but it hath never been imposed in our practice. 4thly, The oath de fideli administratione, that they shall faithfully discharge the duties of their several offices. VOL. I. N *Forbes, p. 127. DICT. App. II. voce REPARATION. TIT. + Lord Stair, upon this subject, expresses himself thus: "The punishment provided "against judges can go no further than manifest and palpable injustice against law, "which doth always infer fraud by wilful injustice, but reacheth not to dubious cases, "where just and rational men may be of different judgments, unless there be corruption "by bribe or bias; otherwise no man but a beggar or a fool would be a judge." B. 4. tit. 1. § 5. Fac. Coll. Dec. 20. 1789, Laing, Dicт. p. 8555. BOOK I. Whether the Sovereign, the fountain of jurisdiction, has a reserved power of exercising it when once bestowed. Parliament of Greater barons. TIT. III. Of the Supreme Judges and Courts of Scotland. THE ight in himself in the highest degree, which HE Sovereign, from whom all jurisdiction is derived, must he alone could confer upon others. Hence, in all grants of jurisdiction, he was understood to reserve a power, either of investing others with the same jurisdiction, or of taking cognisance by himself of those very causes to which he had made the grantees competent, 1469, C. 26. A strong instance of the last is given by Craig, Lib. 3. Dieg. 7. § 12., in the case of James VI., who having, as heir to Archibald Earl of Angus, laid claim to the Earl's estate, was declared by our supreme court to have a right of pronouncing sentence on the import of his own claim. Charles II. extended this branch of the prerogative so far, as to appoint sheriffs-depute, and even to erect regalities within the bounds of heritable sheriffships; which extension was expressly justified by act 1681, C. 18., declaring that the king, notwithstanding any offices or grants of jurisdiction conferred by him on his subjects, retains a jurisdiction cumulative with the grantees. From this James VII. assumed a power of naming magistrates in several royal boroughs, which by former grants had a right to name their own magistrates. But these steps having been justly looked upon as encroachments on property and patrimonial jurisdiction, were, upon the Revolution, declared contrary to law, Conv. Est. 1689, C. 13.; and soon after the act itself of Charles II. was formally repealed, by 1690, C. 28. It seems now to be agreed, that the several courts on which the crown hath conferred a stated extent and degree of jurisdiction, have, by the immemorial exercise of it, acquired a power of judging according to that usage, exclusive of the Sovereign himself, which cannot be altered without a statute, Hist. Law Tracts, v. 2. p. 7. 2. It admits of no doubt, that the parliament of Scotland, as a court of appeal, was in use to determine all causes in the last resort, unless where the judgments of any court were by special statute declared final. But it may be doubted, whether it had any original civil jurisdiction; for the decisions in parliament mentioned in act 1587, C. 39. are probably to be understood only of decisions upon appeal. Our parliaments consisted at first only of the king's barons or freeholders, St. Malc. II., under which appellation it would seem that the dignified clergy were included on account of their freeholds. These last are expressly mentioned in the introduction to the statutes of William; and they are there, and in the title prefixed to the acts of James V., ranked before the temporal barons. It appears, that parliaments were, in the reign of Robert II., made up of three estates, St. Rob. II. C. 3., of which that of the boroughs was one, ibid. C. 17. § 4. From that period, to the Revolution in 1688, the three estates of parliament were, the clergy, barons, and burgesses. 3. The name of baron was commonly used in France, for some time before the Norman conquest, to denote persons of the first dignity, Du Fresne, Glossar. v. Baro. After that vocable was transplanted into Britain, its signification became more extended, and frequently included all who held their lands immediately of the King. |