AE E56 13 ENCYCLOPÆDIA PERTHENSIS. 2. PART III. THE LAW OF SCOTLAND. GENERAL OBSERVATIONS. LA W. THE HE MUNICIPAL LAW of Scotland, as of moft other countries, confifts partly of ftatutable or written law, which has the exprefs authority of the legislative power; partly of cuftomary or unwritten law, which derives force from prefumed or tacit confent. 2. Under our ftatutable or written law is comprehended, 1. Our acts of parliament; not only those which were made in the reign of James I. of Scotland, and from thence down to our union with England in 1707, but such of the British statutes enacted fince the union as concern this part of the united kingdom. 3. A collection of law books under the title of REGIAM MAJESTATEM was published by Sir John Skene, at the commencement of the 16th century. It confifts of the Regiam Majeftatem, now generally deemed to be a mere tranfcript from a work of Glanville, an English lawyer, called Regiam Poteftatem, inteṛlarded with a few of the laws and particular cuftoms of this country, the Borough Laws, the laws of K. Malcolm, &c. Though we are inclined to think these books unworthy to be ranked as part of the ftatute law of this country, yet as their authenticity was much agitated by the legal antiquarians of the laft century, we may, under the article REGIAM MAJESTATEM, give a fhort abftract of the dispute. 4. Our written law also comprehends, 2. The acts of federunt, which are ordinances for regulating the forms of proceeding before the court of feffion in the adminiftration of juftice, made by the judges, who have a delegated power from the legiflature for that purpose. 5. The civil, or Roman and canon laws, though they are not perhaps to be deemed proper parts of our written law, have undoubtedly had the greatest influence in Scotland. The Roman law Atill continues to have great authority in all cafes where it is not derogated from by any ftatute or cuftom, and where the genius of our law fuffers us to apply it. 6. Our unwritten, or customary law, is that VOL. XIII. PART I. which, without being expressly enacted by statute, derives its force from the tacit confent of king and people; which confent is prefumed from the ancient custom of the community. Custom, as it is equally founded in the will of the lawgiver with written law, has therefore the fame effects: Hence, as one ftatute may be explained or repealed by another, fo a ftatute may be explained by the uniform practice of the community, and even go into difuse by a posterior contrary custom. 7. An uniform train of the judgments or decifions of the court of feffion is commonly confidered as part of our customary law, because such uniformity establishes what is the custom in each particular case. 8 The SCOTS ACTS of parliament were, by our moft ancient custom, proclaimed in all the different fhires, boroughs, and baron-courts, of the kingdom. But after our ftatutes came to be printed, that cuftom was gradually neglected; and at laft, the publication of our laws, at the marketcross of Edinburgh, was declared fufficient; and they became obligatory 40 days thereafter. Britifh ftatutes are deemed fufficiently notified, with out formal promulgation; though, for the information of the lieges in general, copies of every public ftatute are now forwarded to each district of every county throughout the kingdom, at the public expense. After a law is published, no pretence of ignorance can excufe the breach of it. 9. As laws are given for the rule of our conduct, they can regulate future cafes only; for paft actions being out of our power, can admit of no rule. New laws can therefore have no retrospect. 10. By the rules of interpreting statute law re ceived in Scotland, an argument may be used from the title to the act itfelf;-a rubro ad nigrum; at least, where the rubric has been either originally framed, or afterwards adopted, by the legislature. 11. But the rules for the interpretation of laws in Scotland being, in general, nearly the Lame with thofe obferved for the interpretation and conftruction of the ftatute laws in England, it is unneceffary to repeat them here. See PART II. SECT. V. 12. The objects of the laws of Scotland, according to Mr Erskine in his Inftitute, are, Persons, Things, and Actions. CHAP A CHAP. I. Of PERSONS. AMONG perfons, judges, who are invefted with jurifdiction, deferve the firft confideration. SECT. I. Of JURISDICTION and JUDGES in GENERAL. 1. JURISDICTION is a power conferred upon a judge or magiftrate, to take cognisance of, and decide caufes according to law, and to carry his fentences into execution. The tract of ground, or diftrict, within which a judge has the right of jurifdiction, is called his territory: and every act of jurifdiction exercised by a judge without his territory, either by pronouncing fentence, or carrying it into execution, is null. 2. The fupreme power, which has the right of enacting laws, naturally has the right of erecting courts, and appointing judges, who may apply thofe laws to particular cafes: but, in Scotland, this right has been always intrufted with the crown as having the executive power of the state. 3. Jurifdiction is either fupreme, inferior, or mixed. That jurisdiction is fupreme, from which there lies no appeal to a higher court. Inferior courts are thofe whofe fentences are subject to the review of the fupreme courts, and whofe jurifdic. tion is confined to a particular territory. Mixed jurifdiction participates of the nature both of the fupreme and inferior: Thus the judge of the high court of admiralty, and the commiffaries of Edinburgh, have an univerfal jurisdiction over Scotland, and they can review the decrees of inferior admirals and commiffaries; but as their own decrees are fubject to the review of the courts of feffion or justiciary, they are, in that respect, inferior courts. 4. Jurifdiction is either civil or criminal: By the firft, questions of private right are decided; by the 2d, crimes are punished. But, in all jurifdictions, though merely civil, there is a power inherent in the judge, to punish, either corporally, or by a pecuniary fine, thofe who offend during the proceedings of the court, or who fhall afterwards obftruct the execution of the fentence. 5. Jurifdiction is either privative or cumulative. Private jurifdiction is that which belongs only to one court to the exclufion of all others. Cu mulative, otherwife called concurrent, is that which may be exercifed by any one of two or more courts in the fame caufe. 6. All heritable jurisdictions, except thofe of admiralty and a small pittance referved to barons, are either abolished, or annexed to the crown. See JURISDICTION, § III. 7. Jurifdiction is either proper or delegated. Proper jurifdiction is that which belongs to a judge or magiftrate himself, in virtue of his office. Delegated is that which is communicated by the judge to another called a depute, or fubftitute. 8. Civil jurifdiction is founded, 1. Ratione domicili, if the defender has his domicile within the judge's territory. A domicile is the dwelling place where a perfon lives with an intention to remain; and cuftom has fixed it as a rule, that refidence for 40 days founds jurifdiction. If one has no fixed dwelling place, e. g. a foldier, or a travelling merchant, a perfonal citation against him within the territory is fufficient to found the judge's jurifdiction over him, even in civil queftions. As the defender is not obliged to appear before a court to which he is not fubject, the purfuer muft follow the defender's domicile. 9. It is founded, 2. Ratione rei fita, if the fubject in queftion lie within the territory. If that fubject be immoveable, the judge, whofe jurifdiction is founded in this way, is the fole judge competent, excluding the judge of the domicile. 10. Where one, who has not his domicile with in the territory, is to be fued before an inferior court, ratione rei fita, the court of feffion must be applied to, whofe jurifdiction is univerfal, and who, of course, grant letters of fupplement to cite the defender to appear before the inferior judge. Where the party to be fued refides in another kingdom, and has an estate in this, the court of feffion is the only proper court, as the commune forum to all perfons refiding abroad; and the defender, if his eftate be heritable, is confidered as lawfully fummoned to that court, by a citation at the market crofs of Edinburgh, and pier and fhore of Leith: but where a stranger, not a native of Scotland, has only a moveable eftate in this kingdom, he is deemed to be fo little fubject to the jurifdiction of our courts, that action cannot be brought against him till his effects be firft attached by an arreftment jurifdi&tionis fundande caufa; which is laid on by a warrant iffuing from the fupreme courts of feffion, or admiralty, or from that within whofe territory the subject is fituated, at the fuit of the creditor. 11. A judge may, in special causes, arrest or secure the perfons of fuch as have neither domicile nor eftate within his territory, even for civil debts. Thus, on the border between Scotland and England, warrants are granted of course by the judge ordinary of either fide, against thofe who have their domicile upon the oppofite fide, for arrefting their perfons, till they give caution judicio fifti: and even the perfons of citizens or natives may be fo fecured, where there is juft reason to fufpect that they are in meditatione fuga, i. e. that they intend fuddenly to withdraw from the kingdom; upon which fufpicion, the creditor who applies for the warrant muft make oath. An inhabitant of a borough royal, who has furnished one who lives without the borough in meat, clothes, or other merchandise, and who has no fecurity for it but his own account book, may arreft his debtor, till he give fecurity judicio fifti. 12. A judge may be declined, i. e. his jurisdiction difowned judicially, 1. Ratione caufæ, from his incompetency to the special cause brought be fore him. 2. Ratione suspecti judicis ; where either the judge himself, or his near kinfman, has an intereft in the fuit. No judge can vote in the cause of his father, brother, or fon, either by confangui nity or affinity; nor in the caufe of his uncle or nephew by confanguinity. 3. Ratione privilegii ; where the party is by privilege exempted from their jurifdict on. 13. Prorogated jurisdiction, jurifdictio in confentientes, is that which is, by the confent of parties, conferred upon a judge who, without fuch confent, would be incompetent. Where a judge is incompetent, every step he takes must be null, till his jurifdiction be made competent by the party's actual fubmiffion to it. It is otherwife where the judge is competent, but may be declined by the party upon privilege. 14. In order to prorogation, the judge muft have jurisdiction, fuch as may be prorogated. Hence prorogation cannot be admitted where the judge's jurifdiction is excluded by ftatute. Yet where the cause is of the fame rature with those to which the judge is competent, though law may have confined his jurisdiction within a certain fum, parties may prorogate it above that fum unless where prorogation is prohibited. Prorogation is not admitted in the king's caufes; for the intereft of the crown cannot be hurt by the negligence of its officers. 15. All judges must at their admiffion fwear, 1. The oath of allegiance, and subscribe the affurance; 2. The oath of abjuration; 3. The oath of fupremacy; 4. laftly, The oath de fideli adminiftratione. 16. A party who has either properly declined the jurifdiction of the judge before whom he had been cited, or who thinks himfelf aggrieved by any proceedings in the cause, may, before decree, apply to the court of feffion to iffue letters of advocation for calling the action from before the inferior court to themselves. 17. That the court of feffion might not wafte their time in trifles, no cause for a fum below 121. Sterling could, as the law formerly stood, be advocated to the court of feffion from the inferior judge competent; and now, by act so Geo. III. c. 112, all caufes not exceeding 251. in value fhall be carried in the first inftance before the inferior judge; but if an inferior judge fhall proceed upon a caufe to which he is incompetent, the caufe may be carried from him by advocation, let the fubject be ever so inconfiderable. SECT. II. Of the SUPREME JUDGES and COURTS of SCOTLAND. 1. THE KING, who is the fountain of jurifdiction, might, by our ancient conftitution, have judged in all caufes, either in his own perfon, or by those whom he was pleased to veft with jurifdiction; but the whole power is now vefted in the latter. 2. The PARLIAMENT of Scotland, as our court of the laft refort, had the right of reviewing the fentences of all our fupreme courts. 3. By the treaty of UNION, in 1707, the parliaments of Scotland and England are united into one parliament of Great Britain. From this period, the British house of peers, as coming in place of the Scots parliament, is become our court of the laft refort, to which appeals lie from all the fupreme courts of Scotland: but that court has no original jurifdiction in civil matters, in which they judge only upon appeal. By art. 22 of that treaty, the Scots fhare of the representation in the houfe of peers is fixed to 16 Scots peers elective; and in the house of commons to 45 commoners, of whom 30 are elected by the freeholders of counties, and 15 by the royal boroughs. The Scots privy council was alfo thereupon abolished, and funk into that of Great Britain; which for the future is declared to have no other powers than the English privy council had at the time of the union. 4 A court was erected in 1425, confifting of certain perfons to be named by the king, out of the three eftates of parliament, which was vefted with the jurifdiction formerly lodged in the coun cil, and got the name of the SESSION, because it was ordained to hold annually a certain number of feffions at the places to be specially appointed by the king. This court had a jurifdiction, cumulative with the judge ordinary, in spuilzies and other poffeffory actions, and in debts; but the judge ordinary had no cognisance in queftions of property of heritable fubjects. No appeal lay from the judgments of the feffion to the parlia ment: The judges of this court served by rota, tion, and were changed from time to time, after having fat 40 days. They became fo negligent in the administration of justice, that it was at laft thought neceffary to transfer their jurisdiction to a council to be named by the king, called the daily council. 5. The model of the court of feffion, or college of juftice, was formed in the reign of James V. The judges, who were vefted with an univerfal civil jurifdiction, confifted originally of 7 churchmen, 7 laymen, and a prefident, whom it behoved to be a prelate; but fpiritual judges were in 1584 partly, and in 1640 totally, prohibited. The judges of the court of feffion have been always received by warrants from the crown. An ciently the king feems to have transferred to the court itself the right of choosing a prefident; and in a federunt recorded June 26, 1593, K. James VI. condefcended to prefent to the lords, upon every vacancy in the bench, a lift of three perfons, out of which they were to choose one. But he foon refumed the exercise of both rights, which continued with the crown till the ufurpation; when it was ordained, that the king should name the judges of the feffion, by the advice of parlia ment. After the restoration, the nomination was again declared to be folely in the fovereign. 6. Though judges may, in general, be named at the age of 21 years, the lords of feffion must be at leaft 25. No perfon can be named lord of feffion, who has not ferved as an advocate or principal clerk of session for 5 years, or as a writer to the fignet for 10; and in the cafe of a writer to the fignet, he must undergo the ordinary trials of an advocate upon the Roman law, and be found qualified two years before he can be named. Upon a vacancy in the bench, the king prefents the fucceffor by a letter adreffed to the lords, in which he requires them to try and admit the perfon prefented. The power to reject the presentee upon trial is taken away, and a bare liberty to remonftrate fubftituted. 7. Befides the 15 ordinary judges, the king was allowed to name 3 or 4 lords of his great council, who might fit and vote with them. These extraordinary lords were fuppreffed in the reign of George 1. At the commencement of the winter feffion 1808, these 15 ordinary judges were feparated into two divifions, the one confifting of 8, and the other of 7 members. Each divifion poffeffes the fame powers, and carries on actions under the fame forms, as the whole did formerly, A 2 with with fome improvements, by which the business of the nation is greatly facilitated. 8. The appellation of the COLLEGE OF JUSTICE is not confined to the judges, who are diftinguished by the name of fenators; but comprehends advocates, clerks of feffion, writers to the fignet, and others, as defcribed in an act of federunt, 23d Feb. 1687. Where, therefore, the college of juftice is entitled to any privilege, it extends to all the members of the college. They are exempted from watching, warding, and other fervices within the borough; and from payment of minifters ftipends, and of all customs, &c. im. pofed upon goods carried to or from Edinburgh. Several of thefe privileges and immunities were called in queftion by the city of Edinburgh of late years; but they were found by the court of feffion to be in full force; and their decifion having been appealed from to the Houfe of Lords, was affirmed. 9. Though the jurifdiction of the feffion be properly limited to civil caufes, the judges have always fuftained themselves as competent to the crime of falfehood. Where the falfehood deferves death or demembration, they, after finding the crime proved, remit the criminal to the court of justiciary. Special statute has given to the court of feffion jurifdiction in contraventions of lawburrows, deforcements, and breach of arreftment; and they have been in use to judge in battery pen dente lite, and in ufury. 10. In certain civil caufes, the jurifdiction of the feffion is exclufive of all inferior jurifdictions; as in declarators of property, and other competitions of heritable rights, provings of the tenor, ceffiones bonorum, reftitution of minors, reductions of decrees or of writings, fales of the eftates of minors or bankrupts, &c. In a 2d clafs of causes, their jurifdiction can be exercised only in the way of review, after the caufe is brought from the inferior court; as in maritime and confiftorial causes, which must be pursued in the first inftance before the admiral or commiffary; and in actions below 251. Sterling, which must be commenced before the judge ordinary. In all civil actions, which fall under neither of thefe claffes, the jurisdiction of the feffion is concurrent, even in the first instance, with that of the judge ordinary. The feffion may proceed as a court of equity by the rules of confcience, in abating the rigour of law, and giving aid in proper cafes to fuck as in a court of law can have no remedy; and this power is inherent in the fupreme court of every country, where feparate courts are not established for law and for equity. This court formerly met upon the 12th of June, and rofe upon the 11th of Auguft, for the fummer feffion; but now, in confequence of an act paffed in the feffion of parliament, 1790, it meets on the 12th of May, and rifes on the 11th of July, for the fummer feffion; the winter federunt being ftill held as formerly, viz. from the 12th of November to the 11th of March inclufive. 11. The fupreme criminal judge was ftyled the Jufticiar; and he had anciently an univerfal civil jurifdiction, even in matters of heritage. He was obliged to hold two juftice courts of ayres yearly at Edinburgh or Peebles, where all the freehold ers of the kingdom were obliged to attend. Befides this univerfal court, special juftice ayres were held in all the different fhires in the kingdom twice in the year. These last having gone into disuse, 8 deputies were appointed, two for every quarter of the kingdom, who should make their circuits over the whole in April and October. 12. The office of deputies was fuppreffed in 1672; and 5 lords of feffion were added, ás com miflioners of jufticiary, to the justice-general and juftice-clerk. The juftice-general, if prefent, is conftant prefident of the court, and in his abfence the juftice-clerk. The kingdom is divided into 3 diftricts, and two of the judges are appointed to hold circuits in certain boroughs of each district twice in the year; one judge may proceed to bu finefs in the abfence of his colleague. In trials before this court the evidence was always taken down in writing till the act 23d Geo. III. was paff. ed; by which the judges may try and determine all caufes by the verdict of an affize, upon examining the witneffes viva voce, without reducing the teftimony into writing, unless it fhall appear more expedient to proceed in the former way, which they have it in their power to do. This act was at firft temporary, but is now made perpetual by 27th Geo. III. cap. 18. 13. By an old ftatute, the crimes of robbery, rape, murder, and wilful fire-railing (the four pleas of the crown), are faid to be referved to the king's court of jufticiary; but the only crime in which, in practice, the jurifdiction of jufticiary became at laft exclufive of all inferior criminal jurifdiction, was that of high treason. The court of jufticary, when fiting at Edinburgh, has a power of advocating caufes from all inferior cri minal judges, and of fufpending their fentences. 14. The CIRCUIT COURT can alfo judge in all criminal caufes which do not infer death or de membration, upon appeal from any inferior court within their district; and has a fupreme civil jurif diction, by way of appeal, in all caufes not exceeding ral. Sterling, in which their decrees are not fubject to review; but no appeal is to lie to the circuit, till the cause be finally determined in the inferior court, 15. The court of EXCHEQUER, as the king's chamberlain court, judged in all questions of the revenue. In purfuance of the treaty of Union, that court was abolished, and a new court erected, confifting of the Lord High Treasurer of Great Britain, and a chief Baron, with 4 other Barons of Exchequer; which barons are to be made of serjeants at law, English barristers or Scots advocates of 5 years ftanding. This court has a privative jurifdiction conferred upon it, as to the duties of cuftoms, excife, or other revenues appertaining to the king or prince of Scotland, and as to all honours and estates that may accrue to the crown; in which matters, they are to judge by the forms of proceeding used in the English court of Exchequer, under the following limitations: that no debt due to the crown fhall affect the debtor's real estate in any other manner than fuch, estate may be affected by the laws of Scotland and that the validity of the crown's titles to any honours or lands fhall continue to be tried by the court of feffion, The barons have the powers of the |