HISTORY AND NATURE OF LAWS. 



declared ; another is called a ' multiplepoinding,' 

 which may be raised by a man having money in 

 his hands which more than one person is claiming, 

 that he may know to whom he can legally pay it : 

 by a fiction analogous to those we have seen in 

 the law of England, this action may also be raised, 

 in the name of the holder of the money, by any 

 of the claimants. Trial by jury was not, until 

 lately, added to the jurisdiction of this court. It 

 is limited to certain descriptions of cases, and 

 has never become popular. The functions of the 

 Court of Exchequer for revenue cases, and of the 

 Court of Plantation of Kirks and the allocation 

 of Teinds, have now been practically united with 

 the Court of Session, though the Court of Teinds 

 is still nominally a separate tribunal. 



The principal criminal court is the Court 

 of Justiciary, consisting of seven judges of the 

 Court of Session, who sit in Edinburgh, and hold 

 circuits in the country. The most remarkable 

 peculiarity in Scottish legal usages is the practice 

 of criminal prosecution, which is clear, simple, and 

 effective. All crimes of a high class are prosecuted 

 at the instance of the Lord Advocate, or chief 

 public prosecutor, at the expense of the country. 

 Lesser crimes are prosecuted by procurators- 

 Jiscal, of whom one is attached to each sheriff- 

 dom. In no case is the party injured put to 

 any trouble or expense. The Lord Advocate, 

 appointed by the crown, along with crown-counsel, 

 judges of the propriety of prosecuting for crimes, 

 there being no grand jury. The right of private 

 parties to prosecute still exists, but is scarcely 

 ever exercised. The jury before whom cases for 

 trial are brought consists of fifteen persons selected 

 by lot from forty-five summoned jurors, and the 

 decision or verdict is by a majority. The Scottish 

 criminal law is partly statute, partly founded on long 

 usage. There are many offences punishable with 

 death, if the prosecutor do not restrict the extent 

 of punishment to be awarded, which he now does 

 in almost every case except murder. The sheriffs, 

 or local judges of counties, have important judicial 

 powers, both civil and criminal. The former ex- 

 tends to every description of dispute regarding 

 property, except such as depend on the title to 

 land. The powers of these judges have lately 

 received extensive additions, especially in matters 

 of insolvency and bankruptcy. They do not em- 

 ploy a jury, except in criminal cases, in which 

 their power of inflicting punishment does not 

 exceed imprisonment. The sheriffs, called sheriffs- 

 Principal, or sometimes sheriffs-depute, because 

 they were originally deputes of the hereditary 

 sheriffs of the Scottish counties, are advocates, 

 practising before the supreme courts, not honorary 

 functionaries, as in England. In each county 

 there are, besides, one or more resident sheriffs, or 

 sheriffs- substitute, who issue warrants and hold 

 civil and criminal courts. An appeal lies from the 

 decision in civil cases to the sheriff-depute, and 

 rfrom him to the Court of Session. 



THE FRENCH CODES. 



The ancient laws of France were a mixture of 

 the civil, canon, and feudal law, but there was a 

 great distinction between the law of the northern 

 and southern provinces : in the former, called 

 jpays coutumier,\hz customs, as in England, formed 

 the basis of the law, and the civil law of Rome was 



only applied where these were silent or doubtful; 

 in the latter, called pays du droit e"crit, the 

 Roman, which for long was the only written law 

 was the basis, though modified by particular 

 usages and the feudal law. Partly they were the 

 doctrines of the authorities on the civil law, and 

 partly they were the ordinances issued by the 

 various monarchs. By far the greatest portion, 

 however, in bulk, consisted of the peculiar feudal 

 customs of the various provinces. In these the 

 feudal system was sometimes retained in so high 

 a state of purity, that the collections of provincial 

 customs are esteemed excellent authorities on the 

 subject. But it was not merely in each province 

 that there was a local custom. The power of the 

 crown, or any other paramount legislature, was so 

 feeble, that wherever an assembly of men were 

 held together by one common tie, as where they 

 were co-vassals of one lord, or members of the 

 same civic community, they had in some measure 

 a code of laws of their own. The royal codes 

 were estimated at about 300, but of the number of 

 inferior local customs it would be impossible to 

 make an estimate. Voltaire observes, that a man 

 travelling through his country has to change laws 

 as often as horses, and that the most learned 

 barrister in one village will be a complete ignor- 

 amus a few miles off. The principal courts of law 

 were the parliaments of the respective provinces. 

 Seats in them were generally held by purchase, or 

 were in the hereditary succession of great families, 

 who thus constituted a species of professional 

 nobility. The decrees of these bodies were 

 often baffled or reversed by the royal authority. 

 These alterations of the decisions of the courts, 

 however, were performed, not as a judicial re- 

 vision, but by the simple authority of the king ; 

 and thus the parliaments, being subject to no 

 judicial control or responsibility, adhered but 

 slightly to fixed rules of law, and often acted 

 according to their own will and discretion. The 

 jury, even so much of it as may have existed 

 under the old feudal form, had entirely dis- 

 appeared, and proceedings were conducted in 

 secret. Criminal investigations, instead of ter- 

 minating in a conclusive trial, as in England, were 

 greatly protracted ; the torture was extensively 

 employed, but in the general case, only when 

 there was as much circumstantial evidence as 

 would justify a conviction in this country. 



The whole of this system was swept suddenly 

 away by the Revolution. In 1800, Napoleon 

 appointed a commission to draw up a project of a 

 civil code. The project, when prepared, was circu- 

 lated for comment and suggestion, and was after- 

 wards, along with the observations made on it by the 

 different courts of law, discussed in the council of 

 state and the tribunate. Thus was formed the 

 Code Civil, or civil code of France, more gener- 

 ally known by the term Code Napoleon, which 

 was applied to it under the Empire. Nearly at 

 the same time, and in the same manner, was 

 framed the Code de Procedure Civile, or code for 

 regulating the form of process in civil actions, and 

 specifying the jurisdictions of the various courts. 

 Being a subject more connected with technical 

 detail, and involving less of general principle than 

 the civil code, its provisions were left almost 

 entirely to the arrangement of the lawyers. 

 Besides the technical directions, there are in 

 this manual many which concern the ordinary 



