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Justice Clerk of Scotland

court, lord, session, jus, depute, justiciary and tice

JUSTICE CLERK OF SCOTLAND. This name properly designated the clerk of court, of the chief justice or lord jus ticiar, of Scotland ; and originally there were as many justice clerks as there were justiciars, that is to say, one for Gallo way, one for Lothian, or the territory of the Scots king south of the Forth, and one for Scotland then strictly so called, or the territory north of the Forth.

The same circumstances also which reduced the number of justiciars to one justice-general for the whole realm, re duced likewise the number of justice clerics. The calamitous affair of Flod den however, to which we especially re fer, had a further effect on the latter : for by the fall of Lawson and Henryson on that fatal field, the offices of both king's advocate and justice clerk became vacant at one time, and this at a peri.xl when perhaps few remained capable of either. Wishart of Pittarrow was appointed to both places, and in his time a deputy was first constituted, to act as clerk to the jus tice court. This was the first step in the singular rise of the justice clerk from the table to the bench of the Court of Justi ciary.

At the Institution of the court of Ses sion in 1532, the justice clerk was made one of the judges. This will not surprise us when we consider the constitution of that court. It was in fact an eccle siastical tribunal, and, agreeably to the practice of such, deliberated in secret with shut doors. It was necessary there fore for the security of the crown that some of the crown officers should be con tinually present. The justice clerk was one of these : he was public prosecutor on behalf of the crown. The king's trea surer was another; and accordingly both of them were lords of session. For the same reason the king's advocate was made a lord of session : and when from there being no vacancy, or otherwise, such appointment did not or could not take place, these officers had special writs from the crown authorising them to remain in court during its deliberations.

A further rise of official dignity took placet for it having become usual to ap point certain lords of session as assessors or assistant judges to the lord justice general, the justice clerk began in the early part of the seventeenth century to be appointed to that duty ; and about the middle of the same century he had ac quired the sty le of " lord justice clerk."

In ten years afterwards the privy council met and passed an act, declaring the jus tice clerk a constituent part of the justice court ; and in the act of parliament 1672, c. 16, he was made the president of the Court of Justiciary, to preside in absence of the justice-general. His rise in the Court of Session followed ; for in 1766, when Miller, afterwards Sir Thomas Miller of Glenlee, took his seat on the bench, it was, by desire of the court, on the right of the lord president ; to which latter office he himself afterwards rose, being the first justice clerk so promoted. And in 1808, when the Court of Session was, by 48 Geo. III. e. 151, divided into two chambers, the lord justice clerk was made ex officio president of the second division. His salary is 2000l., besides an equal sum as a lord of session.

With respect to the justice clerk depute, that officer was long so termed ; but at length, when the justice clerk acquired the style of lord, and was declared a con stituent part of the Court of Justiciary, his depute came to be termed "the princi pal clerk of justiciary," and this becoming a sinecure, he got himself a "depute" about the middle of last century, and the second depute about thirty years ago an " assistant ;" all of whom continue to this day, and are in the gift of the lord jus tice clerk. It is not a little remarkable, that on both occasions when these changes took place, there took place also not a diminution, as we might expect, but a duplication of the salary ; that of the first depute being raised in 1764 from 1001. to 200/., and that of the second depute, in 1795, from 801. to 150/.

Besides these there are three other jus tice clerk deputes, and his appointees. They are commonly called the "circuit clerks," being his deputies to the three circuits of the Court of Justiciary. They had their origin in the act 1587, c. 82, which directed such circuits to be made, iu place of the former practice of the jus tictar passing the realm from shire to shire successively.