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Entituled, An Act for the better regulating the Forms of Process in the

Courts of Law in Scotland.


“ If it were possible, by proper regulations, to remove these evils," a new cha. racter would be given to the administration of justice in Scotland, favourable to the litigants, honourable to the Judges, and, in time, affording effectual relief to the Court of ultimate Appeal."— Report of Mr Cleghorn-A/ pendix, p. 76.

The public are aware that the Principal Clerk of Session, were ap. present system of the forms of ade pointed Commissioners; and Royal ministering justice in Scotland has instructions were issued to those been almost entirely regulated, since Commissioners. The opinions of sethe Union, by Acts of Sederunt. It veral eminent and learned persons in is undeniable that great

abuses now
Scotland were taken.

Those opiexist. They have been forced upon nions, in an Appendix, and the Rethe attention of the Legislature by port of the Commissioners, have been the extraordinary number of appeals printed. An Act of Parliament has from Scotlanı, in comparison with been since introduced, which, after a those from England and Ireland. considerable struggle, was got postSome think that all the evils which poned till next Session, in order to have arisen are to be traced to the afford the people of Scotland an opBench; others, that “ the principal portunity of expressing their opinions, point is, that Government shall do This liberality on the part of the its duty by giving us learned, expe- Legislature, although nothing more rienced, and conscientious Judges, than what the people were entitled who have not to learn their law on

no , be the Bench."-(Opinion of Mr For- appreciated by the public. It is, in

All deed, more liberal than any measure agreed that our forms of process established by the Acts of Sederunt “ stand in need of some improve of the Scotch Judges since the Union, ment, or at least of some alteration,' as to any of which it was never and that “ there never can be a bet- thought necessary to take the opinion ter opportunity than the present, of the country, for discussing and ascertaining what It has been truly observed, that are the improvements or alterations “no measure since the Union has most proper to be adopted, and how been set on foot, which is likely to they can be most effectually carried be attended with more important reinto execution.”– Opinion of Mr sults to Scotland than this CommisSwinton, W. S.)

sion ; and no Scotsman can await the This subject originated in the Re. resolutions which may be adopted, port of a Committee of the House of without the most anxious solicitude.” Lords. Afterwards, the Act of 4 - Opinion of Mr Pat. Robertson, Geo. IV. c. 85, “to the intent that Advocate.) salutary regulations should be made While appeals are competent to and established,” authorised his Ma. the House of Lords, and decided by jesty to appoint Commissioners to in- an English Judge, it is not difficult quire into the forms of process in the to anticipate, that, in the progress of Courts of Scotland, and appeals in time, the Scotch forms and principles the House of Lords. The Presidents of law must be assimilated to those of the Session,

Exchequer, and Jury in England. From a conviction that Courts,-two Ordinary Judges of the the English system, upon the whole, Court of Session,-one of the Barons is better adapted for dispatch, and of Exchequer,--the Lord Advocate the impartial administration of jus. and Solicitor-General,-two Masters tice, than the Scots system, and that in Chancery,—two English Barrise the mode of administering justice in ters,—two Scots Advocates, and one England has been attended with

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happier effects in raising the public regiam urbem ejusque observantiam spirit, and increasing the happiness sequi.” (Justinian, L. iv., T. 11., of the productive and most interest- § 7.). The same forms and rules ing classes of the people, than in any should obviously be observed in the other country, we cordially approve provinces as well as at the seat of the of the speedy introduction of the Supreme Judicature. English system into Scotland. No Previous to the French Revolution, doubt, there are defects in the English different rules prevailed in every prosystem; and, in many respects, the vince ; and appeals to Paris, where a principles and forms of the Scots are different rule was observed, were decidedly superior to those in England. endless. But the French Code esBut we are not blind admirers of the tablished one set of rules as well for many abuses which exist in the Eng- the Capital as for the Provinces, and lish system. These must be attack, thus appeals became almost unueed with an unsparing hand. The cessary. The people of this country abuses in both systems should be are not yet, perhaps, sufficiently free abolished, and the best forms and from prejudices to appreciate the bea principles of the two systems adopt- neficial consequences to our former ed. Great Britain and Ireland, being enemies of such a measure.

But a under one Sovereign and Govern- similar measure in this country ment, and the intercourse becoming seems urgently called for, the Scotoh greater every day between every part and British Acts of Parliament, and of the three kingdoms, it is necessary, Acts of Sederunt, having become so especially to the commercial and ma- voluminous. The House of Lords, ritime classes, that one set of laws which is the supreme and highest and forms should be observed in court in His Majesty's dominions, every Court of his Majesty's domie cannot be employed with more dig. nions. There are, no doubt, preju- nity and utility than in framing one dices in Scotland against the intro- set of rules, to be sanctioned by the duction of such a system. But that Legislature, and equally applicable which Government has already ef- to the supreme and inferior judicafected, and has in contemplation, tories. with respect to the systems of the The Royal instructions seem to be excise and customs, and the com- the result of a considerable knową mercial and navigation laws, demon- ledge of some of the faults of the strates the practicability of introdu- Scotch practice. If these instructions cing one uniform system in qur laws were not prepared, in the first inand courts.

stance, by the Lord Chancellor El. It seems impossible to peruse the don, they at least seem to embrace Act of Parliament and the Royal in many of the remarks which that structions to the Commissioners, with. eminent Judge, (whose judgments out being convinced that his Majes- have given very general satisfaction ty's Government have conferred a in Scotland) was in the course ocmaterial boon on Scotland, by order casionally of making. ing an inquiry into the existing One great evil in the practice of grievances in the administration of the Scotch Courts is the loose jumble justice in Scotland. Much, however, of matters of fact, equity, and law; remains to be done. This report is and even the Lord Chancellor had certainly one important step. But great difficulty, sometimes, in discowe trust that Government and the vering whether the decision of the Legislature will go farther, and gra- Lords of Session turned upon one or duaily assimilate the jurisdictions, other of these grounds. Two of the practical forms, and principles of the Scotch Judges have been in the praclaws of Great Britain, Ireland, and tice of giving the reasons of their judgthe Colonies. “Quam formam non ments; but with these exceptions, the solum in hac regia urbe, sed etiam in general practice certainly has been omnibus nostris provinciis, (etsi prop- to frame the interlocutors and judgter imperitiam forte aliter celebra. ments of the Judges with great loose. lur,) obtinere censemus; cum necesse This practice must have apsit, oinnes provincias caput omnium peared to the Lord Chancellor io postrarum civitatum, id est, hanc require an amendment, more espee


. It is the best law which allows Icast discretion

cially as the English Judges are so Scotcle Judges and their clerks were celebrated for the clear exposition concerned ; and it is alleged, we will which they are in the practice of not say correctly, that those Acts giving of the principles and reasons originally introduced and sanctioned of their decisions.

alınost all the abuses in the forins of

proceedings, and the high dues of 11. SCOTS ACTS OF SEDERUNT. Court levied from the suitors, for be

hoof of the clerks of Court, and to the Judge, and the best Judge who allows least clerks of the Judges, of which, and to himself."-Opinion of Lord Chanell: BACON.

the expenses of process, the people There are many clauses in the new of Scotland now so generally and bill, which, it must be admitted, justly complain. Every regulation would introduce some salutary in which has for its object the saving provements in the administration of of unnecessary trouble to the Judges the law. But still it appears sur- and their clerks, and the clerks of prising, that after taking the opinions Court, will no doubt be duly appreof so many eminent and learned in- ciated by the people of Scotland. dividuals, with respect to the whole But while this is conceded, we range of abuses in our courts of law, humbly presumne to observe, that it that so little should be comprehended is no less necessary that regulations in the new bill, and such defective should be enacted by Parliament, and objectionable measures proposed the principle of which shall be the for the benefit and approbation of the diminution of the fees of Court, and people of Scotland. If the authors of the expenses of the whole forms of those incasures have the ambition of process and writs in the administo be handed down to posterity with tration of justice in Scotland ; that immortal honour, they have now the the Scotch Judges themselves should opportunity of entitling themselves also shew some deference to the opito be “ numbered among the foun- nion of the public, and an intelligent ders, and institutors of laws,” by profession ; and that their duties proposing wise, comprehensive, and should be confined exclusively to really beneficial measures, for the their proper functions—the impartial double object of relief to the Judges, administration of justice. Lord Chanand the great body of the people. cellor Bacon authoritatively, and it

But the proposed bill appears, in would now seem prophetically, said, many respects, radically defective, Let not “ their decrees go forth siand not such as is calculated to lently; but the Judges render the give much satisfaction to the people reasons of their opinion, and that pubof Scotland. If so, the promoters of licly, and in a circle of bystanders ; the bill would act prudently and so that what is truly unfettered in the wisely, if they were, in deference to power MAY YET, BY NOTORIETY AND public opinion, to withdraw the bill OPINION, BE CIRCUMSCRIBED.” The at present, and to frame a new bill Act of Parliament,—the Royal inaltogether, which should, by a set structions, the reports of the late of plain and obvious rules, regulate, and former Commissioners, and the by legislative enactments, the whole Appendix to the last Report, bring forms of the administration of jus- before the public, as in a mirror, the tice from the beginning of the action defects and faults of the forms and till the decree is obtained, and put in practice of the Scotch Courts, and execution, by seizing the estate and shew whether the precepts of Lord effects or person of the debtor. Bacon have been always observed,

The great and leading object of even by the Judges. this bill seems merely to be, to in- But the proposed bill does not controduce a more skilful manner of tain any clause-1, To abolish the preparing causes for judgment, and fee-fund dues ; 2, For the avowed ihereby saving trouble to the Judges purpose of diminishing the expenses of Scotland, and the Lord Chancel- of process ; 3, For abolishing the prelor of England. But almost all the sent system of signet summonses, Scotch Acts of Sederunt, at least for arrestinents, inhibitions, hornings, the last fifty years, may be traced to poindings, and captions, and subthe same principlc, in so far as the stituting a more simple and less ex



pensive set of writs: 4, It is pro- chased or read. Lord Cringletie, in poseel that the Jury Court shall not his Report, truly observes, " Indeed, only be continued as a separate es- many of the practitioners are unactablishment, but the Judges and its quainted with these Acts, as they are juristiction increased, with, no doubt, not printed and sold by the booksuitable salaries to those Judges, and sellers till a considerable time after to additional officers or clerks of they are enacted. I therefore think, coart; that maritime causes be trans- that the regulations I have proposed, ferred to it, and the Admiralty juris- if they be thought worthy of adopdiction and court-the best-regulated tion, or any other radical amendand the cheapest of the Supreme ments which may be made, ought to Courts-virtually abolished: 5, The be enforced by Act of Parliament, as prize jurisdiction of the Scotch Admi- were those introduced in 1672 and ralty Court is to be transferred to the 1695." English Admiralty Court : 6, More- (3.) The Scotch Acts of Sederunt over, the forins of process of the Su- might, with as much controul of preine and Inferior Courts, now and public opinion, issue from the Conin all time coming, are to be regula- clave of Rome or the Divan of Conted by Acts of Sederunt of the Scotch stantinople: For although the people Judges.

may petition Parliament, and pubThe forms of process, in the Scotch licly express their opinions, without Courts only, seem, more especially danger, on any measure under consince the Union, to have been chief sideration of Parliament, they have ly regulated by the Acts of Sederunt no power whatever of stating their of the Ju:lges. Whether or not the opinions, while the expediency of Legislature even ought, according to Acts of Selerunt is under considerathe true spirit of the British consti- tion in the robing rooin, with shut tution, to delegate its legislative doors, or elsewhere. After the Acts powers and proper functions to ir. of Sederunt are once issuell, it responsible Judges, who are equally might be construed into disrespect in lependent of the crown and of and contempt, to present a petition public opinion, may, without the im- to the Judges impeaching the wisputation of the slightest disrespect or dom of those Acis; an experiment, dissatisfaction, be fairly doubted. indeed, which, it is said, no counCertain it is, that those Acts of Sede- sel or agent of character or calrunt, after the experience of upwards culation, with the exception of one of a hundred years, have not had the or two imprudent, or alleged insane desired effect. If they have not in- individuals,) or even the public botroduced or sanctioned many abuses, dies connected with the College of and the present heavy dues of court Justice, would venture to make. and enormous expences of process, The people of Scotland, so far as we they have at least become so volumi- have been able to learn, are entirely nous, that they are seldom read, and ignorant of the manner in which the of course are little known to the ad. Acts of Sederunt are concocted, or vocates, agents, the great body of the whether the Judges consider them. people, or even to the Judges them- selves bound to consult, as their selves : and how excellent soever Privy Councillors, even the Faculty these acts in themselves may be, they of Advocates, the Writers to the (it is alleged by many individuals of Signet, or Solicitors before the Suconsiderable experience) are liable preme Courts. It is reported, that to the following objections:

the latter body, some time ago, in(1.) The legislative functions and timated a desire to know something powers ought not to be entrusted of the progress of Acts of Sederunt; and delegated to those who adminis- but that no notice was taken of the ter the laws. Lord Chancellor Ba- application ; and that, in point of con long ago observed, that “ The fact, that Society and the public know power of supplying, or extending, or nothing of the progress or concoction limiting the laws, is not very distant of these Acts till passed. from the power of making them." (4.) Regulations formed in this

(2.) The Scotch Acts of Sederunt manner may have the dangerous ten. are little known, and seldom pur. dency of placing the Judges in odium


with their fellow-subjects, and bring- -and of course disregarded, noting the very administration of jus- withstanding of anyeulogiums in tice itself into suspicion. These are their favour, or harsh compulsitors effects which no Scotsman, or lover by the Judges, to enforce their obof his country, would imagine even to servance. be possible, without regret.

In submitting objections to the But whether these, and other ob- Scotch Acts of Sederunt, we have no jections which might be stated, are intention of attributing any blame well or ill founded, we are sorry to personally to the present Judges, seobserve, that the present bill proposes veral of whom cordially wish these still to delegate to the Scotch Jud- Acts abolished. The present Judges ges to regulate, by Acts of Sederunt, are not responsible for the Acts of not only the new forms of process their predecessors, who may also have before the Court of Session, the Jury, been actuated by the best, although, Admiralty, and Inferior Courts, but as experience has proved, mistaken to regulate these forms in ull time intentions. We look to the tendency coming:

of Acts of Sederunt, as it may affect It appears to us that it is highly not only the Judges, the profession, inexpedient that the Judges ought and the people of Scotland, but the to be required, or permitted, to per- due administration of justice ; and form the proper functions of Legis- in every point of view, we humbly Jators ;-that the whole Acts of Se. conceive that all the existing Acts of derunt ought to be abolished ;-that Sederunt should be repealed, and the regulations proposing to embrace the powers of the Scotch Judges, to enact better regulation of the whole forms any new Acts of Sederunt, for ever of process, and all kinds of judicial abolished by the Legislature. writs, should be prepared, submitted to Parliament and the country at large, and calmly and deliberately " It appears to us an important object to faciliconsidered, and publicly discussed,

tate the administration of justice," and to "relieve

it of every superfluous charge.” Third Report of and finally enacted, not by Acts of Commissioners in 1818. Seilerunt, but by Acts of Parliament. We have now to call the attention “Let the contradictory laws,” says of the public to one of the greatest Lord Bacon, be revised and exa- abuses which exists in the Scotch forms mined “ by persons chosen for the the present mode of bringing parpurpose, and then submitted to the

ties into Court, and enforcing the deassemblies, that what is approved of crees of the Judges; that is, the present may be established and fixed by suff- system of signet summonses, letters rage ;” and “in laws of an ordinary of suspension and advocation, hornand political kind, where, for the ings, captions, and other writs passinost part, no one takes advice of ing the Signet. The whole of these lawyers (advocates), but trusts to his writs, it seems sufficiently obvious, own interpretation, every thing ought require to be reformed, if not totally to be unfolded more at large, and abolished. The superfluous and unpointed out, as it were, to the vulgar necessary expenses of such writs apprehension."

form one of the heaviest and most The regulations of our forms of oppressive taxes upon the lieges, in process by legislative enactments the administration of justice. would have this important advan- The Judges, in their characters of tage, that they would be printed at Legislators, or the Faculty of Advothe public expense,-known and dis- cates, have never directed their attributed in every part of His Majes- tention to the reformation or amendty's dominions,—and treated by the ment of this abuse. It is left to the people, including the profession, fostering care of the Society of Wriwith suitable respect and observance; ters to the Signet, who are interested whereas Acts of Sederunt, how excel- in supporting and maintaining the lent soever their objects or rules may monopoly at the expense of the peobe, are not printed at the public ex- ple of Scotland. The Judges, indeed, pense, so far as we know; they are, by some of their late judgments, Eherefore, seldom purchased, or read seem to have taken this monopoly consequently not generally known under their special protection. The

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