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COURT OF SESSION.

These concurrent jurisdictions and the want of trained lawyers in either Court, with the uncertain times of the sittings of both, led to the establishment of the Court of Session in 1532, which, beginning with great unpopularity, and deserving the condemnation that it met with at the time, has lived down that censure, and has become the worthy rival of the learned judicatures of England in their purest time.

It is well known, says Daines Barrington,' that there is no legal argument which has such force in our courts of law as those which are drawn from the words of ancient writs, and that the Registrum brevium is therefore looked upon to be the very foundation of the common-law; and he quotes for his authority Sir Edward Coke, who supposes that the Register of Writs is the most ancient book in the English law.

Even without that, we cannot but look with interest upon these writs, which show us the earliest subjects of controversy, and the original manner of obtaining redress in the King's Courts. Seen by the light of these original brieves, with their verdicts attached to them, we can better appreciate the value of those collections found in our old мs. law books, headed " Brevia," written as styles for use-styles, that is, for the royal precepts to form the foun1 Barrington, p. 126.

dation of civil suits, and bring them into court. Our collections of styles of Brevia have not been printed. Mr. Dickson has been good enough to make fine copies for me of the two most important ancient collections from the Ayr and the Bute Mss.

You will not expect me, in a lecture like the present, to give you a detailed account of these writs, the foundation of all civil process of old; but let me try to convey to you some idea of the subjects about which men went to law in the old time; and then see with what precision and in what nice terms the various proceedings are set forth.

I pass by the common actions for compelling payment of debts, for compelling implement of contracts the brieves of mortancestry, of novel diseisin, of recognition, of perambulation, brieves of partition, of ward; and I come to one that was in constant demand, the brief de nativis et fugitivis, and you have the whole law to be drawn from the words of this brief. It runs in the name of the King, addressed to justiciars, sheriffs, provosts, and their bailies, commanding them that wherever the bailies or attorneys of I. de B., the bearer of the present writ, shall find his native and fugitive men -nativos et fugitivos homines-outwith the king's lordship, burghs and wards, who ought to be his,

of law and reason-qui sui esse debent de jure et ratione -of his lands, or of the land of R., that they shall have the said natives for inhabiting the said lands, and no one is to withhold them upon the King's full forfeiture. Observe, first, that the natives were to be nativi sui, or nativi de terra sua, as the English lawyers have it, neyfs in gross, or neyfs regardant, slaves to their master, or serfs bound to the soil. Secondly, the King's writ does not infringe the protection given by his own domains, his own royal burghs, or wardlands within which no man might seize fugitives on a general warrant.

The next brief is not a commencement of law pleadings; it is rather a stop to all such. It is a style of a royal writ, however, in common use. The King in the simplest terms declares that he has made R., who was his slave and native man-servus et nativus homo noster—a free man, a "Frank," as the emancipated villein in England loved to call himself.

In the time of these venerable styles churchmen still looked to the State and to the King's courts for recovering their rights, and even for enforcing the jurisdiction of the Church. In one of them the King commands his justiciars, sheriffs, and other officers to compel payment to churchmen of the rents, duties, etc.-de redditibus canis, etc.

In another the King commands his officers to imprison those in their bailiaries and burghs who have been for forty days or more under the greater excommunication by sentence of the bishop or official, despising the keys of Holy Mother Church, and to compel them to satisfy God and the Church. Another brief of the King commanded his civil officers to seize and to deliver over to their ecclesiastical superiors apostatizing members of religious fraternities.

But while thus stretching out the civil arm to enforce the jurisdiction of the Church, our sovereigns drew the line and boundary of that jurisdiction. One brief, addressed to archdeacon or dean, prohibits them from entertaining in their courts a plea respecting a lay fee held of the King in capite, seeing that that belongs to the King's Court; and a similar writ is directed to an abbot. The next writ is addressed to a bishop or his commissary; and the King writes thus: "A. has complained to us that B. prosecutes him in the Consistorial Court before you, concerning a lay tenement-super laico tenemento-for which he does forinsec service-the cognition of which ought to pertain to our royal Court-wherefore we command, etc. Next, in a similar cause, a writ is addressed to the lieges to compel the contumacious prosecutor in the court of Christianity

to desist from his prosecution by distraining of goods, etc.

We find all the initiatives of giving and taking and recovering seisin, of fixing the amount of dowry, terce and tutory, and we have others not now so well known. The King addresses his writ to the relatives and friends of B., commanding them to relieve him in the poverty into which he has fallen, and to free him from the fine which he incurred for the death of a certain person imputed to him; "each of you according to that belongs to you-quantum ad eadem pertinet, as was the custom in the time of King David."

Again the King commands his sheriff to make inquiry whether A., the bearer of the present writ, from the inconsiderate heat of anger, and not by murthir nor forethoct felony, killed B., and whether B. gave occasion to his death, and how far, and what were the circumstances. That and most of the brieves addressed to the sheriff were for making inquisition per bonos et fideles patrie non suspectos, and the first duty of the sheriff was to proclaim the writ in his court, and then to empannel an assize for trying it, and for making answers to the points of the brief.

I shall now lay before you the steps of procedure, which are minutely described in the brief of right