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THE public are aware that the present system of the forms of administering justice in Scotland has been almost entirely regulated, since the Union, by Acts of Sederunt. It is undeniable that great abuses now exist. They have been forced upon the attention of the Legislature by the extraordinary number of appeals from Scotland, in comparison with those from England and Ireland. Some think that all the evils which have arisen are to be traced to the Bench; others, that "the principal point is, that Government shall do its duty by giving us learned, experienced, and conscientious Judges, who have not to learn their law on the Bench."-(Opinion of Mr For syth, Advocate, p. 146. All are agreed that our forms of process "stand in need of some improvement, or at least of some alteration," and that "there never can be a better opportunity than the present, for discussing and ascertaining what are the improvements or alterations most proper to be adopted, and how they can be most effectually carried into execution."-(Opinion of Mr Swinton, W. S.)

This subject originated in the Report of a Committee of the House of Lords. Afterwards, the Act of 4 Geo. IV. c. 85, " to the intent that salutary regulations should be made and established,” authorised his Majesty to appoint Commissioners to inquire into the forms of process in the Courts of Scotland, and appeals in the House of Lords. The Presidents of the Session, Exchequer, and Jury Courts, two Ordinary Judges of the Court of Session,—one of the Barons of Exchequer, the Lord Advocate and Solicitor-General,-two Masters in Chancery, two English Barristers,—two Scots Advocates,―and one

Principal Clerk of Session, were ap pointed Commissioners; and Royal instructions were issued to those Commissioners. The opinions of several eminent and learned persons in Scotland were taken. Those opinions, in an Appendix, and the Report of the Commissioners, have been printed. An Act of Parliament has been since introduced, which, after a considerable struggle, was got postponed till next Session, in order to afford the people of Scotland an opportunity of expressing their opinions. This liberality on the part of the Legislature, although nothing more than what the people were entitled to expect, will, no doubt, be duly appreciated by the public. It is, indeed, more liberal than any measure established by the Acts of Sederunt of the Scotch Judges since the Union, as to any of which it was thought necessary to take the opinion of the country.

never

It has been truly observed, that "no measure since the Union has been set on foot, which is likely to be attended with more important results to Scotland than this Commission; and no Scotsman can await the resolutions which may be adopted, without the most anxious solicitude." (Opinion of Mr Pat. Robertson, Advocate.)

While appeals are competent to the House of Lords, and decided by an English Judge, it is not difficult to anticipate, that, in the progress of time, the Scotch forms and principles of law must be assimilated to those in England. From a conviction that the English system, upon the whole, is better adapted for dispatch, and the impartial administration of jus tice, than the Scots system, and that the mode of administering justice in England has been attended with

happier effects in raising the public spirit, and increasing the happiness of the productive and most interesting classes of the people, than in any other country, we cordially approve of the speedy introduction of the English system into Scotland. No doubt, there are defects in the English system; and, in many respects, the principles and forms of the Scots are decidedly superior to those in England. But we are not blind admirers of the many abuses which exist in the English system. These must be attacked with an unsparing hand. The abuses in both systems should be abolished, and the best forms and principles of the two systems adopted. Great Britain and Ireland, being under one Sovereign and Government, and the intercourse becoming greater every day between every part of the three kingdoms, it is necessary, especially to the commercial and maritime classes, that one set of laws and forms should be observed in every Court of his Majesty's dominions. There are, no doubt, prejudices in Scotland against the introduction of such a system. But that which Government has already effected, and has in contemplation, with respect to the systems of the excise and customs, and the commercial and navigation laws, demonstrates the practicability of introducing one uniform system in our laws and courts.

It seems impossible to peruse the Act of Parliament and the Royal instructions to the Commissioners, with out being convinced that his Majesty's Government have conferred a material boon on Scotland, by ordering an inquiry into the existing grievances in the administration of justice in Scotland. Much, however, remains to be done. This report is certainly one important step. But we trust that Government and the Legislature will go farther, and gradually assimilate the jurisdictions, practical forms, and principles of the laws of Great Britain, Ireland, and the Colonies. "Quam formam non solum in hac regia urbe, sed etiam in omnibus nostris provinciis, (etsi propter imperitiam forte aliter celebratur,) obtinere censemus; cum necesse sit, omnes provincias caput omnium nostrarum civitatum, id est, hanc

regiam urbem ejusque observantiam sequi." (Justinian, L. iv., T. 11., §7.)

The same forms and rules should obviously be observed in the provinces as well as at the seat of the Supreme Judicature.

But a

Previous to the French Revolution, different rules prevailed in every province; and appeals to Paris, where a different rule was observed, were endless. But the French Code established one set of rules as well for the Capital as for the Provinces, and thus appeals became almost unnecessary. The people of this country are not yet, perhaps, sufficiently free from prejudices to appreciate the be neficial consequences to our former enemies of such a measure. similar measure seems urgently called for, the Scotch and British Acts of Parliament, and Acts of Sederunt, having become so voluminous. The House of Lords, which is the supreme and highest court in His Majesty's dominions, cannot be employed with more dignity and utility than in framing one set of rules, to be sanctioned by the Legislature, and equally applicable to the supreme and inferior judicatories.

in this country

The Royal instructions seem to be the result of a considerable knowledge of some of the faults of the Scotch practice. If these instructions were not prepared, in the first instance, by the Lord Chancellor Eldon, they at least seem to embrace many of the remarks which that eminent Judge, (whose judgments have given very general satisfaction in Scotland) was in the course occasionally of making.

One great evil in the practice of the Scotch Courts is the loose jumble of matters of fact, equity, and law; and even the Lord Chancellor had great difficulty, sometimes, in discovering whether the decision of the Lords of Session turned upon one or other of these grounds. Two of the Scotch Judges have been in the tice of giving the reasons of their judgments; but with these exceptions, the general practice certainly has been to frame the interlocutors and judgments of the Judges with great loose

ness.

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This practice must have appeared to the Lord Chancellor to require an amendment, more espe

cially as the English Judges are so celebrated for the clear exposition which they are in the practice of giving of the principles and reasons of their decisions.

11. SCOTS ACTS OF SEDERUNT.

"It is the best law which allows least discretion to the Judge, and the best Judge who allows least to himself."-Opinion of Lord Chancellər BACON.

There are many clauses in the new bill, which, it must be admitted, would introduce some salutary improvements in the administration of the law. But still it appears surprising, that after taking the opinions of so many eminent and learned individuals, with respect to the whole range of abuses in our courts of law, that so little should be comprehended in the new bill, and such defective and objectionable measures proposed for the benefit and approbation of the people of Scotland. If the authors of those measures have the ambition to be handed down to posterity with immortal honour, they have now the opportunity of entitling themselves to be numbered among the founders and institutors of laws," by proposing wise, comprehensive, and really beneficial measures, for the double object of relief to the Judges, and the great body of the people.

But the proposed bill appears, in many respects, radically defective, and not such as is calculated to give much satisfaction to the people of Scotland. If so, the promoters of the bill would act prudently and wisely, if they were, in deference to public opinion, to withdraw the bill at present, and to frame a new bill altogether, which should, by a set of plain and obvious rules, regulate, by legislative enactments, the whole forms of the administration of justice from the beginning of the action till the decree is obtained, and put in execution, by seizing the estate and effects or person of the debtor.

The great and leading object of this bill seems merely to be, to introduce a more skilful manner of preparing causes for judgment, and thereby saving trouble to the Judges of Scotland, and the Lord Chancellor of England. But almost all the Scotch Acts of Sederunt, at least for the last fifty years, may be traced to the same principle, in so far as the

Scotch Judges and their clerks were concerned; and it is alleged, we will not say correctly, that those Acts originally introduced and sanctioned alinost all the abuses in the forms of proceedings, and the high dues of Court levied from the suitors, for behoof of the clerks of Court, and clerks of the Judges, of which, and the expenses of process, the people of Scotland now so generally and justly complain. Every regulation which has for its object the saving of unnecessary trouble to the Judges and their clerks, and the clerks of Court, will no doubt be duly appre ciated by the people of Scotland.

But while this is conceded, we humbly presume to observe, that it is no less necessary that regulations should be enacted by Parliament, the principle of which shall be the diminution of the fees of Court, and of the expenses of the whole forms of process and writs in the administration of justice in Scotland; that the Scotch Judges themselves should also shew some deference to the opinion of the public, and an intelligent profession; and that their duties should be confined exclusively to their proper functions—the impartial administration of justice. Lord Chancellor Bacon authoritatively, and it would now seem prophetically, said, Let not "their decrees go forth silently; but the Judges render the reasons of their opinion, and that publicly, and in a circle of bystanders › so that what is truly unfettered in the power MAY YET, BY NOTORIETY AND OPINION, BE CIRCUMSCRIBED." The Act of Parliament,-the Royal instructions, the reports of the late and former Commissioners, and the Appendix to the last Report, bring before the public, as in a mirror, the defects and faults of the forms and practice of the Scotch Courts, and shew whether the precepts of Lord Bacon have been always obscrved, even by the Judges.

But the proposed bill does not contain any clause-1, To abolish the fee-fund dues; 2, For the avowed purpose of diminishing the expenses of process; 3, For abolishing the present system of signet summonses, arrestiments, inhibitions, hornings, poindings, and captions, and substituting a more simple and less ex

pensive set of writs: 4, It is proposed that the Jury Court shall not only be continued as a separate establishment, but the Judges and its jurisdiction increased, with, no doubt, suitable salaries to those Judges, and to additional officers or clerks of court; that maritime causes be transferred to it, and the Admiralty jurisdiction and court-the best-regulated and the cheapest of the Supreme Courts-virtually abolished: 5, The prize jurisdiction of the Scotch Admiralty Court is to be transferred to the English Admiralty Court: 6, Moreover, the forms of process of the Supreme and Inferior Courts, now and in all time coming, are to be regulated by Acts of Sederunt of the Scotch Judges.

The forms of process, in the Scotch Courts only, seem, more especially since the Union, to have been chiefly regulated by the Acts of Sederunt of the Julges. Whether or not the Legislature even ought, according to the true spirit of the British constitution, to delegate its legislative powers and proper functions to irresponsible Judges, who are equally independent of the crown and of public opinion, may, without the imputation of the slightest disrespect or dissatisfaction, be fairly doubted. Certain it is, that those Acts of Sederunt, after the experience of upwards of a hundred years, have not had the desired effect. If they have not introduced or sanctioned many abuses, and the present heavy dues of court and enormous expences of process, they have at least become so voluminous, that they are seldom read, and of course are little known to the advocates, agents, the great body of the people, or even to the Judges them selves and how excellent soever these acts in themselves may be, they (it is alleged by many individuals of considerable experience) are liable to the following objections:

(1.) The legislative functions and powers ought not to be entrusted and delegated to those who administer the laws. Lord Chancellor Bacon long ago observed, that "The power of supplying, or extending, or limiting the laws, is not very distant from the power of making them."

(2.) The Scotch Acts of Sederunt are little known, and seldom pur

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chased or read. Lord Cringletie, in his Report, truly observes, Indeed, many of the practitioners are unacquainted with these Acts, as they are not printed and sold by the booksellers till a considerable time after they are enacted. I therefore think, that the regulations I have proposed, if they be thought worthy of adoption, or any other radical amendments which may be made, ought to be enforced by Act of Parliament, as were those introduced in 1672 and 1695."

(3.) The Scotch Acts of Sederunt might, with as much controul of public opinion, issue from the Conclave of Rome or the Divan of Constantinople: For although the people may petition Parliament, and publicly express their opinions, without danger, on any measure under consideration of Parliament, they have no power whatever of stating their opinions, while the expediency of Acts of Sederunt is under consideration in the robing room, with shut doors, or elsewhere. After the Acts of Sederunt are once issued, it might be construed into disrespect and contempt, to present a petition to the Judges impeaching the wisdom of those Acts; an experiment, indeed, which, it is said, no counsel or agent of character or calculation, (with the exception of one or two imprudent, or alleged insane individuals,) or even the public bodies connected with the College of Justice, would venture to make. The people of Scotland, so far as we have been able to learn, are entirely ignorant of the manner in which the Acts of Sederunt are concocted, or whether the Judges consider themselves bound to consult, as their Privy Councillors, even the Faculty of Advocates, the Writers to the Signet, or Solicitors before the Supreme Courts. It is reported, that the latter body, some time ago, intimated a desire to know something of the progress of Acts of Sederunt; but that no notice was taken of the application; and that, in point of fact, that Society and the public know nothing of the progress or concoction of these Acts till passed.

(4.) Regulations formed in this manner may have the dangerous ten. deney of placing the Judges in odium

But whether these, and other objections which might be stated, are well or ill founded, we are sorry to observe, that the present bill proposes still to delegate to the Scotch Judges to regulate, by Acts of Sederunt, not only the new forms of process before the Court of Session, the Jury, Admiralty, and Inferior Courts, but to regulate these forms in all time coming.

It appears to us that it is highly inexpedient that the Judges ought to be required, or permitted, to perform the proper functions of Legislators;-that the whole Acts of Sederunt ought to be abolished ;-that regulations proposing to embrace the better regulation of the whole forms of process, and all kinds of judicial writs, should be prepared, submitted to Parliament and the country at large, and calmly and deliberately considered, and publicly discussed, and finally enacted, not by Acts of Sederunt, but by Acts of Parliament. "Let the contradictory laws," says Lord Bacon, be revised and examined by persons chosen for the purpose, and then submitted to the assemblies, that what is approved of may be established and fixed by suffrage;" and "in laws of an ordinary and political kind, where, for the most part, no one takes advice of lawyers (advocates), but trusts to his own interpretation, every thing ought to be unfolded more at large, and pointed out, as it were, to the vulgar apprehension."

The regulations of our forms of process by legislative enactments would have this important advantage, that they would be printed at the public expense,-known and distributed in every part of His Majesty's dominions, and treated by the people, including the profession, with suitable respect and observance; whereas Acts of Sederunt, how excellent soever their objects or rules may be, are not printed at the public expense, so far as we know; they are, therefore, seldom purchased, or read consequently not generally known

servance.

In submitting objections to the Scotch Acts of Sederunt, we have no intention of attributing any blame personally to the present Judges, several of whom cordially wish these Acts abolished. The present Judges are not responsible for the Acts of their predecessors, who may also have been actuated by the best, although, as experience has proved, mistaken intentions. We look to the tendency of Acts of Sederunt, as it may affect not only the Judges, the profession, and the people of Scotland, but the due administration of justice; and in every point of view, we humbly conceive that all the existing Acts of Sederunt should be repealed, and the powers of the Scotch Judges, to enact any new Acts of Sederunt, for ever abolished by the Legislature.

III. SIGNET SUMMONSES AND WRITS.

"It appears to us an important object to facilitate the administration of justice," and to "relieve it of every superfluous charge." Third Report of Commissioners in 1818.

We have now to call the attention of the public to one of the greatest abuses which exists in the Scotch forms

the present mode of bringing parties into Court, and enforcing the decrees of the Judges; that is, the present system of signet summonses, letters of suspension and advocation, hornings, captions, and other writs passing the Signet. The whole of these writs, it seems sufficiently obvious, require to be reformed, if not totally abolished. The superfluous and unnecessary expenses of such writs form one of the heaviest and most oppressive taxes upon the lieges, in the administration of justice.

The Judges, in their characters of Legislators, or the Faculty of Advocates, have never directed their attention to the reformation or amendment of this abuse. It is left to the fostering care of the Society of Writers to the Signet, who are interested in supporting and maintaining the monopoly at the expense of the people of Scotland. The Judges, indeed, by some of their late judgments, seem to have taken this monopoly under their special protection. The