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JUSTICE CLERK OF SCOTLAND. 



JUSTICES, LORDS. 



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an objection to the whole panel or list of jurors returned for some 

 partiality or default in the sheriff or the under-sheriff by whom it has 

 been arrayed. Challenges to the polls are objections to particular 

 jurors, either on the ground of incompeteney (as if they be aliens, or 

 of insufficient qualification within the provisions of the Jury Act, 

 6 Geo. IV., cap. 50), or of bias or partiality, or of infamy, as having 

 been convicted of some crime which the law deems infamous. Upon 

 these challenges the cause of objection must in each case be expressly 

 shown to the court ; but in trials for capital offences the accused is 

 entitled to challenge peremptorily (that is, without giving any reason) 

 thirty-five jurors. The king, however, as nominal prosecutor, has no 

 right of peremptory challenge, though he is not compelled to show 

 his cause of challenge until the panel is gone through, and unless 

 a full jury cannot be formed without the person objected to. 



The trial by jury, originally introduced into the law of France in 

 criminal cases by the National Assembly, was retained in the French 

 code. An account of the proceeding and of the qualifications and for- 

 mation of the jury will be found in the ' Code d'Instruction Criminelle,' 

 Uvre ii., tit. 2, chap. iv. and v. It has often been remarked as a 

 singular fact, that the institution which in England has been highly 

 prized as a security to the subject against the crown, should have been 

 preserved in France by a despotic monarch, in the zenith of his power, 

 and certainly not disposed to enlarge popular authority. The advan- 

 tage of the trial by jury has been frequently the subject of debate 

 among German and French jurists, and in particular the propriety of 

 its introduction has been discussed in the various commissions 

 issued with a view to reforming the laws of several of the German 

 States. 



Anciently in Scotland all offences were tried by juries ; at present all 

 prosecutions of a higher nature must proceed by an assize or jury of 

 15 men, who determine their verdict by a majority of voices. 

 (Erekine's ' Principles of the Law of Scotland,' book iv. tit. 4.) In the 

 course of many attempted improvements of the Court of Session, 

 several efforts have been made to introduce the trial by jury into civil 

 proceedings in Scotland ; but great and general opposition has been 

 made to it by the courts and the legal profession in Edinburgh. It 

 cannot be said to have been fairly tried as yet, for no judges have been 

 trained to its use, and no generation has had opportunity to learn how 

 to act as jurymen. Whether the people of Scotland shall ever obtain 

 the advantages of our English trial by jury, it seems difficult to gay. 

 Recent legislation on the subject, and recent observations in the House 

 of Lords, have demonstrated that as an instrument in the adminis- 

 tration of civil justice, trial by jury is not yet practicable in Scotland. 



JUSTICE CLERK OF SCOTLAND, is now the second president 

 of the Court of Justiciary in Scotland, being originally the clerk of 

 court of the chief justice, or Lord Justice General of Scotland. 



At the institution of the Court of Session in 1532, the justice clerk 

 was made one of the judges. This will not surprise us when we con- 

 sider the constitution of that court. It was essentially an ecclesiastical 

 tribunal, and, agreeably to the practice of such, deliberated in secret 

 with shut doors. It was necessary therefore for the security of the 

 crown that some of the crown officers should be continually present. 

 The justice clerk was one of these : he was public prosecutor on behalf 

 of the crown. The king's treasurer was another; and accordingly 

 both these were lords of session. 



A further rise of official dignity took 'place : for it having become 

 usual to appoint certain lords of session as assessors or assistant judges 

 to the lord justice-general, the justice clerk began in the early part of 

 the 1 7th century to be appointed to that duty ; and about the middle 

 of the same century he had acquired the style of " lord justice clerk." 

 In ten years afterwards the privy council declared the justice clerk a 

 constituent part of the justice court; and in 1672, he was made 

 U:nt 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 1811, when the Court of 

 Session, was, by 48 Geo. III., c. 151, divided into two chambers, the 

 utice clerk was made ex qfficio president of the second division. 



With respect to the juttice clerk depute, that officer was long so 



termed ; but when the justice clerk acquired the style of lord, and 



became a constituent part of the Court of Justiciary, his depute came 



to be termed " the principal clerk of justiciary," and this becoming a 



.re, he got himself a " depute " about the middle of last century, 



he second depute indue course an "assistant;" all of whom, 



except the first sinecure office, the holder of which was a few years ago 



bdught off by government, continue to this day, and are in the gift of 



the lord justice clerk. 



les these there are three other justice clerk deputes, and his 

 appointees. They are commonly called the " circuit clerks," being his 

 .'& 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, in place of the former practice of the justiciar passing through 

 the n ;ilm from shire to shire successively. 



JUSTICE, LORDS, OF APPEAL IN CHANCERY. These judges, 

 who aro two in number, were created by the statute 14 & 15 Viet. c. 

 83, to assist the Lord Chancellor in the determination of appeals from 



the Master of the Rolls and Vice-Chancellors. They possess besides 

 an original jurisdiction, so that when all the appeals are disposed of, 

 they may hear causes in the first instance. The Lord Chancellor 

 may sit with them, or separately, as a Court of Appeal. In Bank- 

 ruptcy the Lords Justices constitute the Court of Appeal ; in matters 

 of lunacy they have, under the sign manual, the same authority as the 

 Lord Chancellor. 



JUSTICES, LORDS. Our kings have been, ever since the Conqr.est, 

 in the habit of appointing, as occasion required, one or more persons to 

 act for a time as their substitutes in the supreme government either of 

 the whole kingdom or of a part of it. When William I. returned to 

 Normandy, the year after the Conquest, he left his half-brother Odo, 

 Bishop of Bayeux, and William Fitzherbert, to be Custodcs Regni, or 

 guardians of the realm, during his absence ; and similar appointments 

 were very frequent under the early Norman and Plantagenet kings. 

 Down to the present time, indeed, similar officers have been appointed 

 under various names, and with more or less extensive powers according 

 to circumstances. Protector, lieutenant, or locum tenens, and regent, 

 have been among the other names by which they have been known. 

 Regents and councils of regency, during the nonage of the king or 

 queen, have been sometimes named by the preceding possessor of the 

 crown ; but in modern times such arrangements have been usually 

 made by statute. Coke remarks (4 ' Inst.' 58) that the methods of 

 appointing a guardian or regent have been -so various, that "the 

 surest way is to have him made by authority of the great council in 

 parliament." 



The most familiar case of the appointment by the crown of a repre- 

 sentative to exercise the supreme executive power, not in a colony or 

 dependency, is that of the appointment of the lord-lieutenant of Ireland, 

 or of a council of government composed of lords justices. 



The governor-general of Ireland under the crown has been styled at 

 different times custos (keeper or guardian), justiciary, warden, procu- 

 rator, seneschal, constable, justice, deputy, and lieutenant. Viceroy is 

 a name of modern introduction. Formerly, upon the avoidance 

 of the office by death or otherwise, the privy council there was 

 authorised to elect a successor, with the restriction that he should 

 be an Englishman and no spiritual person, who held office till the king 

 appointed another. The ancient powers of this officer were almost 

 regal ; he performed every act of government without any previous 

 communication with England ; and when he left the country he even 

 appointed his own deputy. From the Revolution, however, till the 

 reign of George III., the lord-lieutenant resided very little in Ireland ; 

 in several instances the person appointed to the office never went over ; 

 in other cases he went over once in two years to hold the session of 

 parliament ; and the government was very often left in the hands of 

 lords justices, without a lord-lieutenant at all. In modern times the 

 appointment of lords justices for Ireland has only taken place on the 

 occasional absences of the lord-lieutenant ; and the lords justices have 

 usually been the lord primate, the lord chancellor, and the commander 

 of the forces. 



In England lords justices and regents have been repeatedly appointed 

 since the Revolution, on occasion of the king going abroad ; and the 

 appointment has usually, if not always, been made by letters patent, in 

 the same manner as the lords-lieutenant or lords justices of Ireland 

 have always been appointed. In some cases, however, the aid of par- 

 liament has been called in for certain purposes. When King William 

 went over to Ireland, in 1689, he of his own authority appointed the 

 administration of the government to be in the hands of the queen 

 during his absence out of the kingdom, by declaration at the council- 

 table ; and at the same time an act was passed, 1 and 2 W. & M., s. 2, in 

 the preamble of which his majesty's pleasure was recited, and it was 

 enacted, that whensoever his majesty should be absent, it should be 

 lawful for the queen to administer the regal power and government. 

 This act was considered to be necessary, in consequence of the peculiar 

 circumstances in which the queen was placed by the Act of Settlement, 

 which had declared that the entire, perfect, and full exercise of the 

 regal power and government should be only in and executed by his 

 majesty in the names of both their majesties during their joint lives. 

 It was at the same time provided, " That as often as his majesty shall 

 return into this kingdom of England, the sole administration of the 

 regal power and government thereof shall be in his majesty only, as if 

 this act had never been made." After the queen's death lords justices 

 were repeatedly appointed by the king. 



One of the provisions of the statute of 12 & 13 W. III. (passed in 

 1700) for settling the succession in the House of Hanover, was, " That 

 no person who shall hereafter come to the possession of this crown 

 shall go out of the dominions of England, Scotland, or Ireland, without 

 consent of parliament." This clause, however, was repealed in 1718, 

 by 1 George I., stat. 2, c. 51. The repealing act was passed to gratify 

 the king, whose " impatience to visit his German dominions," says 

 Coxe in his ' Life of Walpole,' i. 77, " now became so great as totally 

 to overcome every restraint of prudence and suggestion of propriety, 

 and imperiously to demand indulgence." " The ministry," continues 

 the historian, " were considerably embarrassed on this occasion, and 

 drew up a strong remonstrance representing the inconvenience which 

 would result from the projected journey. The remonstrance, however, 

 not only failed of success, but so far exasperated the king, that he 

 declared he would not endure a longer confinement in this kingdom. 



