S O T L A N D 





.tUtlifiul 



mi-ills. 



Criminal 

 jurisdiction 

 oi the 

 (.'mm of 



Of the 

 Court of 

 AdariraJ ty. 



Of Sheriff 



andborough 



inagi&tratcs. 



Of the 



justices ot' 

 peace. 



Onwn 

 lawyers. 



Faculty of 

 Advocates. 



Writers to 

 the Signet. 



It is not wonderful that a court of such undefined 

 power as was once the Court of Session, should have 

 -ed power to pumMi crimes; but the < 

 Min crimes has been bestowed on it by hUtutc*, 

 . irforcement of its officers and breach of arre-t- 

 iiient, contravention of Uwburrows, perjury nd su- 

 bornation of perjury arising out of proce.-* in it 

 i-iurt, fraudulent bankruptcy, IV.>m the long dura- 

 tion uf it- evidence lu-in ; un-ii t.iSle to the peremptory 

 diets of the Court of Justiciary, improbation and 

 i V, falsehood committed in the course of their 

 own proceedings, &c. It proceeds without a jury. 



By the act lO'Sl, c. iG, the High Admiral is declared 

 "as the Kin^'- Lieutenant and Justice General on the 

 aeas, and in nil harbours and creeks, and upon tVe^h 

 within the flood mark," to have the sole juris- 

 diction in all maritime and seafaring causes within this 

 realm. He is competent exclusively to try piracy, 

 mutiny on ship board, and all crimes strictly maritime; 

 but only cumulatively murder on shipboard and other 

 crimes not connected with navigation. The Court of 

 Justiciary has frequently sustained its own jurij-diction 

 to try such crimes, although committed within sea 

 mark, as in the case of Mungo Campbell, who murder- 

 ed the Earl of Eglinton within sea-mark. Capital 

 punishment may follow the sentence of the judge ad- 

 mirals, an instance of which occurred in ]8~ K 2 <f two 

 men for a flagrant act of piracy and murder committed 

 on the high seas. The trial in this court is by jury. 



The sheriff is competent to the trial of all crimes ex- 

 cept treason, and the four pleas of the crown, as rob- 

 bery, rape, murder, and wilful fire-raising. It was 

 the ancient law that the sheriff could try murder when 

 the offender was immediately taken rcd/iand as it was 

 called, in which case execution within one sun was to 

 be done upon him. This, however, has long been re- 

 linquished, as unsuitable to the cahnw-ss and dignity of 

 more modern criminal judicature. The sheriff, how- 

 ever, may try hou&e-hreaking, theft, and all le.-ser 

 crimes down to gross immoralities, and breaches of 

 the peace ; and although he cannot transport, he can 

 try capitally. This power, however, is never exercised 

 now-a-days. The criminal jurisdiction of the magis- 

 trate-: of borough*, who exercise the power of sheriffs 

 within borough, are much the same with that of the 

 sheriffs. In important cases the sheriffs try by jury. 



The justices of peace have a criminal jurisdiction in 

 riots, breaches of the peace, poaching, &c. Their 

 chief duty is securing offenders, and taking pre- 

 cognitions to be reported to the crown officers. 



The lawyers of the Crown are the Lord Advocate 

 and Solicitor General. The first, besides most impor- 

 tant ministerial powers and functions which constitute 

 him virtually the minister of the Crown for Scotland, 

 is the public prosecutor of all crimes coming before 

 the Court of Justiciary and Admiralty Court, and in all 

 revenue offences tried before the Court of Exchequer. 

 He and the Solicitor General are advocates practising 

 at the Scottish bar. The latter officer is \irtunlly the 

 Lord Advocate's coadjutor and substitute for the whole 

 of Scotland. His lordship has, besides, three deputies, 

 called Advocates Depute, each of whom goes one of 

 the circuits as public prosecutor, with the full powers 

 of his principal. 



The Scottish bar is called the Faculty of Advocates. 

 They have exclusive right to practise in the supreme 

 courts; and are under no disqualification to plead in 

 any court, down to the most inferior. 



The Writers to the Signet are the first order of at- 

 VOL. xvi x> 



tornies in Scotland. Tht-y keep and hare the sole Maitaler 

 right to ue the king's fcignet, a applied to writ* in the 

 kill's name. They were antiently clerks to the se- 

 cretaries of state, but are now general conveyancer* 

 a?ul practitioners before the court* of law. 



A certain class of agent* pracci* in the supreme 

 courts, who are not writer* to the signet, called 

 toitliejore the Supreme Cvurtt, and lately incorporated, P 

 by royal charter, as uch. Couru. 



The mft nor courts have their own Procuraiuri orto- f 

 liciiort, who are admitted by tfte different inferior courts. n 



Kutnric* Public arc now admitted by the Court of j^ 

 Session. Almost all the writer* to the signet and ao p^bUT" 

 licitnrs both of supreme and inferior courts re nota- 

 ries. 



All the supreme courts have Scalt proper to them- S*i. 

 selves, with which their writs and warrants are sealed. 

 All the Court of Session writs are stamped with the 

 king's signet, .tnd signed by a writer to toe signet 



There is no part or accessory of the judicial estahlifth- 

 ments of Scotland more perfect than its system of Ht~ 

 filtration. There is hence much more w-curity *nd 

 confidence in legal transactions than exists in any other 

 country of Europe. Besides the particular record of 

 each court, there are the records of chancery for pa- 

 tents, services of heirs, &c. ; the record for all rights af- 

 fecting lands for the information of creditors, called 

 the register of sasines ; (Stat. U>17, c. Jb". ) the record 

 for interdictions, inhibition, horning* ; the record of 

 bonds, bills, and other obligations to found personal dili- 

 gence. This last registration has the form of a judicial 

 proc eding, by fiction of law, for no judge is present ; 

 and the books of record for that purpose are those of 

 council and session. The stat. l6'9o*, c. 26', established 

 the register for probative writings in which a 

 clause of registration has been omitted. The record 

 of entails is also a very important record. It is the 

 essential character of the Scottish registration, where 

 the safety of creditors is the end, that the writings 

 are null and void if registration is omitted. 



An account of our ecclesiastical judicial establishment* 

 is given in its place in the following chapter. 



CHAP. VI. ECCLESIASTICAL STATE. 



What was the religious system observed by the an. r rlrsssaii 

 cient Caledonians before the invasion of the Romans, cal us**. 

 it is now impossible to determine. On the arrival of 

 Caesar, the south of Britain could boast of the Druids, 

 a class of men comparatively enlightened : but there 

 is no proof that they were ever known in Scotland. 

 From the classic writers, to whom we owe all we know 

 on the subject, we learn that Druidism was established 

 in France, in the south of England, and in Wales ; and 

 the opinion sometimes entertained and in>i>ted on, that 

 it w.-'s extended to the northern parts of the island, is 

 founded solely on conjecture. It has indeed been 

 argued that Druidism was the religion of the Celtic 

 nations, and that, as Scotland was inhabited by the 

 Celts, that system must have obtained there. Cx&ar, 

 however, affirms that it had its origin in the south of 

 Britain, and was thence translated to Qaul ; a chcum- 

 stance which proves it to have been local, and not the 

 religion of the whole Celtic people. "Since," to use 

 the words of a celebrated writer, " it must have begun 

 to exist after the Celts left their original settlements, it 

 must be considered as British not Celtic ; and it would 

 be as absurd to extend it to all the Celts, because it 

 originated among them, as it would be to expect to 

 to 



