Imágenes de páginas

But a

happier effects in raising the public regiain 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 unnced with an unsparing hand. The cessary. The people of this country abuses in both systems should be are not yet, perhaps, sufficiently frec abolished, and the best forms and from prejudices to appreciate the beprinciples of the two systems adopt- neficial consequences to our former ed. Great Britain and Ireland, being enemies of such a measure. under one Sovereign and Govern similar measure

in this country ment, and the intercourse becoming seems urgently called for, the Scotch greater every day between every part and British Acts of l’arliainent, and of the three kingdoms, it is necessary, Acts of Sederunt, having become so cspecially 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 Conrt of his Majesty's domi. cannot be employed with more dig. pions. 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 scem to be excise and customs, and the com the result of a considerable know. wercial and navigation laws, demon ledge of some of the faults of thie strates the practieability of introdu Scotch practice. If these instructioris cing one uniform system in our 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 judgınents 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 dually 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 loosetur,) obtinere censemus ; cum necesse This practice must have apsit, omnes provincias caput omnium peared to the Lord Chancellor to nostrarum civitatum, id est, hanc require an amendment, more espc


" It is the best law which allows least discretion

cially as the English Judges are so Scotch 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 forms 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 Chancellor BACON.

the expenses of process, the people There are many clauses in the new of Scotland now so generally and bill, which, it inust be admitted, justly complain. Every regulation would introduce some salutary in which has for its object the saving, provements in the administration of of unpecessary trouble to the Judges The law. But still, it appears sure and their clerks, and the clerks of

, of 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 presume to observe, that is 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 measures have the ambition of process and writs in the adminis. to 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 te the opie to be “ numbered among the foun, nion of the public, and an intelligen? 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 pube of Scotland. If so, the promoters of liely, 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 CIRCUMSCRIBEn.” The at present, and to frame a new bill Act of Parliament,—the Royal ins altogether, 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 whule Appendix to the last Report, bring forms of the adıninistration 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 ihe 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 įns But the proposed bill does not con, troduce a more skilful manner of tain any clause-1, To abolish the preparing causes for judgment, and fee-fund dues; 2, For the avowed I hereby saving trouble to the Judges purpose of diminishing the expenses of Scotland, and the Lord Chancels 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 principle, 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 posed 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 jurisdiction increased, with, no doubt, not printed and sold by the book suitable salaries to those Judges, and sellers till a considerable time after to additional officers or clerks of they are enacted. I therefore think, court; 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 amend. and 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 falty Court is to be transferred to the 1695." English Admiralty Court: 6, More (3.) The Scotch Acts of Sederunt over, the forms of process of the Su- might, with as much controul of preme 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 Juilges. Whether or not the opinions, while the expediency of Legislature even ought, according to Acts of Sederunt is under considera. the true spirit of the British consti- tion in the robing room, with shut tution, to delegate its legislative doors, or elsewhere. After the Acts powers and proper functions to ir- of Sederunt are once issued, it responsible Judges, who are equally might be construed into disrespect independent of the crown and of and contempt, to present a petition public opinion, inay, without the im to the Judges impeaching the wisputation of the slightest disrespect or dom of those Acts; 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 arc 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 thempeople, 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 forined 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 disregardled, not. ing the very administration of jus- withstanding of any, eulogiums 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 be possible, without regret.

In subinitting 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, NCobserve, 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 provedl, mistaken to regulate these forms in all 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 Legi in every point of view, we humbly lators ;-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 forins 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 lurge, and calmly and deliberately “ It appears to us an important object to faciliconsidered, and publicly discussed,

tate the admin stration of justice," and to "relieve

it of every superfluous charge." Third Report of and finally enacted, not by Acts of Commissioners in 1818. Sederunt, 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 establisbed 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 passmost 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 un. pointed 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 ata tributed 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, therefore, seldom purchased, or read seem to have taken this monopoly --consequently not generally known under their special protection. The

new bill.

Solicitors, and other practitioners, ap- writ directed to the Sheriff, and after pear to have a sufficient participation citation and appearance of the defenin this gainful trade, to prevent them dant in Court, the cause of action is from making any complaint. It will, explained by the plaintiff, in a detherefore, depend upon the public claration. Anciently, a similar pracspirit of the country gentlemen, and tice existed in Scotland. In virtue the mercantile and maritime classes, of the Act 1457, c. 62, a brieve was whether Parliament shall be moved obtained from Chancery,(the Kinges to abolish or reform this system. Chuppel,") directed to the Sheriff, to

It is matter of regret, that the call“ the parties before the Lordes. former and last Commissioners, from of Session,” to answer to a matter to a delicacy, perhaps, to the Writers to be then laid against them. So late as the Signet, bave neither made any 1672, the practice of engrossing in inquiry, nor reported to Parliament the summons a full statement of the any opinion on this very important facts and the conclusions, was unsubject. Hence there is no provision known. This practice continued till on the subject in the new bill, al- 1723, when the Writers to the Signet though falling within the compass of obtained an Act of Sederunt directthe inquiry of the last Commission- ing the declaration and conclusions crs, and the professed object of the to be embodied in the summons, and

a copy served on the defender. From The Commissioners in 1818, in- the establishment of the College of deed, admit that they had not made Justice in 1537 till 1723, therefore, the necessary inquiry, and were not it appears that blank suinmonses were prepared “ to state any opinion as to used. The same practice is still conthe expediency of introducing a more tinued in the Admiralty and Teind direct and simple form of personal Courts. execution.” But with respect to the The modern practice of embodydecrees of Sheriffs for suins to the ing a full statement in the summons amount of £.40, those Coinmission seems to have been introduced chiefly ers reported that signet hornings and to secure a monopoly to the Writers captions were unnecessary, and that to the Signet. It appears to have no the decrees of Sheriffs, like those of other recommendation. But by a Magistrates of Royal Burgbs, should decision of the House of Lords' in be an effectual warrant to poind or 1800, the Solicitors were found enimprison,“ without any previous in- titled to a share in the monopoly. terposition of the Supreme Court.” The Scotch practice, however,ought, Their recommendation to this extent on general grounds, to be assimilated has, however, been hitherto disre as near as possible to that of Eng. garded by the Legislature. But the land. The remedy seems easy, and reasons in support of the recommen would be attended with very bencfidation, stated by the Commissioners, cial consequences. All that is necessufficiently shew the expediency of sary is to have either brieves or short abolishing, in ull cases, signet writs, summonses. If the last are preferred, and substituting a more simple and let any statements, or averinents of less expensive mode of bringing ac facts, be excluded, and the summons tions into court, and putting decrees confined shortly to the name of the into execution.

plaintiff and defendant,--the amount Although there is a quarto volume of the debt,—the conclusions, -and of the forms of the different writs the warrant of citation. Of this no passing the Signet, we conceive they amendment should ever be permitmay be resolved chiefly into two ted. The facts on which the sumclasses : 1, Summonses and arrest mons is founded should be stated ments, and inhibitions thereon; and, without argument separately, in a 2, Arrestments, inhibitions, horn- declaration, and served on the deings and poindings, and captions, fender along with citation. The warfollowing upon decrees.

rant of citation should be in a print1. Summonses.

ed form, as in the Admiralty and

Teind Courts, and contain warrant In England, a person is generally also to arrest and inhibit, and in that cited to appear in Court by short state should pass the Signet blank,

« AnteriorContinuar »