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Sheriff Scotland

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SHERIFF (SCOTLAND). In Scot land the duties of the sheriff are not, as in England, almost entirely executive. He exercises an extensive judicial authority, and a large portion of the general litiga tion of the country proceeds before this class of local judges. In earlier times his authority appears to have been merely of an executive character, and, appointed by the crown, he was the person to whom the royal writs, issuing from the supreme courts, were usually directed. He was the ordinary conservator of the peace within the local limits of his authority. Ile was an important fiscal officer, hav ing in the general case the duty of levy ing the feudal casualties, forfeitures, and other items of revenue; and by statute he was vested with the power of muster ing the military force of the country to the weapon-showing. In very early times, his tenure of office appears to have been limited by the grant ; at a period comparatively later, the office became, in the general case, hereditary. The precise principle on which that division into shires, by which the boundaries of each sheriff's authority were marked, is not generally known. In all Latin docu ments he was called the vice-comes, and it might thence be inferred that each sheriff was the deputy of a comes or earl. There has, however, no trace been found of the dignity of an earl in Scotland in volving the right to exercise judicial or executive functions, nor did that title, like the authority of the sheriff, bear any reference to the boundaries of the shire or to any other territorial allotment. The terms of the Act for abolishing heritable jurisdictions in Scotland, which will be noticed below, might encourage the supposition that they were founded on the idea of the sheriff being a depute or subordinate officer, if it were not pretty clear that the structure of that Act was in some measure affected by a confusion between the office of high sheriff in Eng land and that of sheriff in Scotland. The Act, viewing the appointment of a sheriff principal or high sheriff from among the unprofessional gentry, and of the acting judicial officer from the legal profession, provides that " it shall not be lawful for any principal or high sheriff or stewart in Scotland personally to judge in any cause, civil or criminal, within his shire or stewartry in virtue of such his office; any law or usage in any ways to the con trary notwithstanding." (20 Geo. Il. c. 43, § 30.) By the same statute the prin cipal or high sheriff can only be ap pointed during pleasure, or for a period not exceeding a year. It is not easy to discover how such a nominal office came into existence, if it actually was in ex istence before the passing of the Act. The commissioners who reported on the courts of justice in Scotland in 1818 stated that they could not discover any functions which it was the duty or privi lege of the holder of that office to per form ; and in reference to the provisions of the Act, they say "It is to be noticed that his majesty's right of appointing an officer called a principal or high sheriff was not touched by the statute of George II., although it was no longer competent to confer such an office heritably. These appointments continued to be made sub sequent to the statute, and it was well known that commissions of this kind have, even in very recent times, been granted by the crown, for purposes of the executive government, and connected with the office of lord-lieutenant. But what ever may have been the views of the legislature as to the proper ministerial or other functions of such an officer in time coming, it is certain that by the enactment referred to the whole judicial powers of the ordinary magistrate for the county are thus expressly reserved and excepted from any grant to be thereafter made of the office of sheriff in this part of the kingdom. And these provisions were in strict conformity with the previous and most ancient state of the law." The Act above referred to, generally called the Jurisdiction Act, was passed for the pur pose of abolishing all those remnants of the feudal courts of Scotland which were hereditary, or in any other shape of the nature of property ; of bringing all ju dicial offices within the appointment of the crown, and their holders under re sponsibility to the public. It was passed in consequence of the insurrection of 1745, and it is the point from which we have to date the equal administration of justice in Scotland. By the same statute, the sheriff is authorised to appoint one or more Substitutes. This was in conformity with old practice, by which the sheriff, who might not himself be trained to the law, generally appointed a legal practi tioner to act as his substitute. At the present day there is a substitute in every county, and in the larger counties there are two or more. Both the sheriff and his substitute are lawyers, but the latter is the local resident judge, the former generally frequenting the courts in Edin burgh, where he hears appeals from his substitute, and making occasional visits to his county. By the Jurisdiction Act it was provided that each sheriff should reside in his county during four months in each year. This provision fell into

desuetude, and it became the usage for such sheriffs as continued to practise at the bar to remain in Edinburgh, while the greater portion, who had given up or had not obtained practice, resided at their country seats, or wherever choice or con venience dictated. This circumstance was the object of much animadversion by the friends of law reform, and a wide difference of opinion was expressed on the matter, some maintaining that the sheriff as well as his Substitute ought to be a resident judge, while, in the words of the Report above cited, the former (who is styled Sheriff Depute) in Edin burgh " was in some degree counte nanced by high legal authorities, who consider the attendance of the sheriffs depute in the court of session, during the sittings, to be more useful than a literal adherence to the statutory rule." It has been supposed that such an attendance tends both towards a higher degree of legal learning in the sheriffs and to uni formity of practice being promoted by their occasionally consulting each other. It was very clear, however, that it was disadvantageous to the public that there should be any of these judges who neither reside within their counties nor at the fountain of Scottish legal learning in Edinburgh, and by the 1 & 2 Viet. C. 119, it was enacted that each sheriff ap pointed after the 31st of December, 1838, shall remain in attendance on the court of session, but shall hold eight courts in his county during the year. The sheriffs of Edinburgh and Lanark are exempted from attendance on the court of session, in the understanding that the business of their respective courts is sufficient fully to occupy their time. It may be men tioned that many law reformers main tain that these two sheriffships are a type of what the others ought to be. The incumbents receive much higher salaries than the other sheriffs, and have their time fully occupied. It has been held that, in regard to the other counties, in stead of appointing persons who are en deavouring to have business at the bar, and giving them duties which only oc cupy part of their time, and salaries for which they would not generally agree to give up their profession, it would be wiser to unite several counties together, and employ lawyers with salaries equal to the full value of their whole time, to these enlarged districts. These various opinions were very actively discussed from ten to fifteen years ago, but it is now pretty clear that it is in the persons of the sheriffs-substitute, or permanent local judges, that the public look for the beneficial working of the system. In civil questions an appeal lies (without new pleadings) from the sheriff-substitute to the sheriff, but wherever the former is a sound lawyer and an industrious man, ne privilege is seldom used. The salaries of the sheriffs•substitute have lately been raised, according to a sound policy advo cated by many of the most cautious and economical politicians of the country ; they average at present about 450/. The salaries of the principal sheriffs vary widely, but the whole amount of their ag gregate incomes, as returned to parlia ment in 1843 (ParliamentaryPapers, 270), when divided by their whole number, gives 551i. to each. From the state in which the profession of the bar of Scot land has been for the past ten years, several of its members have been in duced to accept the office of sheriff substitute as vacancies have occurred. Formerly the office fell to country prac titioners, who, not quite contented with the emoluments, eked them out by private practice; a state of matters seriously de trimental to the equal administration of justice. In some instances, even retired officers in the army or unprofessional country gentlemen were the best qualified persons who would undertake the office. By the Act of 1 & 2 Victoria, it was pro vided that no sheriff-substitutc should act as a law-agent, conveyancer, or banker. By the same Act it was provided that though the sheriff-substitute should con tinue to be appointed by the sheriff, he should not be removable, except with the consent of the lord president and lord justice clerk of the court of session. In terms of the same Act, the substitute must not be absent from his county more than six weeks in one year, or more than two weeks at a time, unless he obtain the consent of the sheriff, who must then act personally or appoint another substi tute. It may be observed, for the sake of preventing some confusion which the phraseology of the statute law in relation to sheriffs may occasion to the general reader, that in one or two instances, as in that of Kirkcudbright, the person who exercises the functions of sheriff is called the Stewart. This designation owes its origin to certain peculiarities of territorial tenure which cannot be briefly explained and are subject to doubt and dispute. After the Reformation, the sheriffs were generally appointed commissaries of the local commissariat districts which most nearly conformed with their respective ju risdictions, and in 1823 (4 Geo. IV. c. 97) the commissariat functions were appointed to be merged in those of the sheriff.

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