ON THE JUDICIAL ESTABLISHMENTS OF SCOTLAND• IN the article LAw we gave a very brief account of some of the courts of law in Scotland. Since that ar ticle was written, the course of experimental reforma tion, which commenced about twenty years ago, has proceeded, and a statute of last session of parliament,* has introduced changes of so essential a character, that we find it necessary to resume the subject, and record a fuller and more systematical description of our judicial institutions, down to the latest improve ments.
The judicial establishments or jurisdictions of Scot land, are CIVIL, CRIMINAL, and ECCLESIASTICAL, the last of which will form the subject of a separate chap ter.
The civil jurisdictions are Supreme and Inferior. The Supreme Courts are, the Court of Session, the Jury Court, and the Court of Exchequer. The Infe rior Courts now existing are, the .3dmiralty, Commis sary, Sheriff, Burgh Royal, Burgh of Regality and Barony, Baron, Lyon, Justice of Peace, and Commis sioners of Supply Courts. The Admiralty and Com missary Courts are also supreme in a certain sense, but are generally classed with the inferior courts, be cause their sentences are subject to the review of the Court of Session. The presbyteries have also civil jurisdiction in regard to schoolmasters, and as to manses and glebes.
The Court of Session is the highest civil judicatory. It was established in the place of two other courts, the Daily Council and the Session, by the statute 1537, c. 36.f under the name of the Council and Session. James V. dignified it with the name of the College of Justice, and the Judges with that of Senators of the College of Justice. The Judges are now, as they were at first, fifteen in number, including their president; and are all named by the king. Seven were church men till 1640, c. 26; and although that act, as a usur pation act, fell under the general repeal at the Resto ration, its spirit has been followed, and no church man has since sat upon the bench. The court con tinued to sit in one chamber till 1808, when it was di vided into two, called the First and Second Divisions, the Lord President and seven Judges constituting the first, and the Lord Justice Clerk, (the head of the Court of Justiciary) with six Judges, constituting the second. These divisions have independent, but co
ordinate jurisdiction, and are often called to consult together as the entire Court of Session.
The powers of the Court of Session are very exten sive. Its original jurisdiction extends to all matters of civil right not under the value of L.25, with the exception of maritime and eonsistorial cases, brieves, and some others, to be noticed in the sequel; and its powers of review, by advocation, suspension, or re duction, have no limits, but embrace the dccreets of all inferior judges whatsoever, including the Judge Admiral and Commissaries. While its jurisdiction is cumulative generally with that of all other civil courts, it is privative or exclusive in all competitions of heri table rights, reductions and proving the tenor of deeds, mercantile bankruptcy, cessio bonorum, judicial sale, restitution of minors, complaints of irregularities in the election of burgh magistrates and members of par liament, &c. The Court of Session is likewise a court of equity, proceeding not on fixed equity law as in England, but on the rules of conscience, giving aid in the actions brought before them, when there is no remedy in law. It has a yet greater arbitrary power, though now much more sparingly used than anciently, when precedent was less extended and legal principle less settled; this is termed its nobile edam, and was used to remedy all contingent public wrongs, so far as even to interfere in market prices. The power to pass .gets of &dental, as they are called, was like wise in use to trench materially on the law of the land; but has long been limited in practice to regula tions or rules for judicial forms. This is recognised by the very latest statutes; for by the stat. 6. Geo. IV. c. 120. the chief Commissioner of the Jury Court is joined to the Lords of Session, and power given to them jointly to make orders and regulations for the Court of Session, Court of Teinds, Jury Court, and all the inferior courts. Such by-laws, being sanc tioned by statute, have the force of statute so far as they go.