COURTS OF SCOTLAND. 



495 



before the taking of the vote of guilty or not guilty ; and it is 

 made a question whether they have, a right to vote upon that 

 question ; and Mr Wooddesou seems to he of opinion that they 

 have not this right. The reason for this distinction between 

 them and the temporal peers is, that the character of their pro. 

 Cession ought to exclude, as well as excuse, them from taking 

 a part in the final decision of a question of life and death. The 

 proceeding of which we have been speaking is by indictment 

 before this tribunal as a court of judicature, during the session 

 of parliament ; and, during the recess of parliament, such trials 

 take place before a court of peers, summoned by the lord high 

 steward, consisting of not less than thirty-five peers, who for- 

 merly might be summoned at the discretion of that officer ; 

 but, to avoid the abuses to which such a power might be liable, 

 the statute of 7 and 8 William III., chap. 3, provides that all 

 the peers shall be summoned to attend. A majority of twelve 

 is necessary in order to a conviction in this court. The last 

 trial before this court, up to the present time, WHS that of lord 

 Delamere, in the reign of James 11. There is still another form 

 of proceeding before this tribunal, as a court of judicature, 

 namely, that by impeachment by the house of commons. Im- 

 peachments may he made, in Great Britain, against any person 

 and for any misdemeanour, though it is a mode of accusation 

 ordinarily adopted only against p'iil.lic officers in relation to 

 some abuse of their trusts ; as the trial of Warren Hastings, 

 for alleged maladministration as governor of India, which last- 

 ed for seven years. As all these judicial proceedings, both 

 civil and criminal, are analogous to those of other courts, they 

 are not dissolved by the prorogation or dissolution of the par- 

 liament ; and though, in the ordinary business of legislation, 

 any peer may vote by proxy, he cannot so vote in his judicial 

 capacity. At the first view, it would seem to admit of a ques- 

 tion whether a body constituted like that of the house of lords 

 would be the best calculated to act as the judicial tribunal of 

 ultimate jurisdiction ; but it is to be considered, that the chan- 

 rellor, who is necessarily one of the ablest law officers of the 

 kingdom, presides in all the civil trials, and in those and all 

 other cases, the judges of the superior courts and the attorney- 

 general are present, and their opinions are taken on all diffi- 

 cult questions. The court, therefore, combines the collected 

 wisdom, talent, learning, and dignity of the kingdom. Bills of 

 attainder, and of pains and penalties, an anomalous kind of ju. 

 risdictioo, is also exercised by parliament, as constituted for 

 the ordinary purposes of legislation, consisting of the king, 

 lords, and commons, who, by their concurrent voices, have 

 occasionally acted as judges, in particular cases, at the same 

 time making the law, if they choose, and punishing the offence 

 (already committed) for which the law is made. When a bill 

 of this description was introduced into the house of lords, in 

 1820, against the queen, Mr Brougham commenced the defence 

 by urging objections to this mode of proceeding in any case. 

 Though such a bill is passed like any other in parliament, yet 

 witnesses may be examined, and the party heard by counsel, as 

 in any trial before a judicial tribunal. 



Admiralty Courts. The admiralty court, in England, is 

 coeval at least, perhaps anterior, to the others in its origin, as 

 we meet with it in the most remote periods of the judicial his- 

 tory of the country. This court formerly maintained a long 

 and arduous, and, in some respects, an unsuccessful struggle 

 for jurisdiction against the common law courts, in which strife 

 it was encumbered with the disadvantage of being allied, in its 

 torms of proceeding, to the ecclesiastical courts; since both 

 these descriptions of judicial tribunals, as well as the chancery, 

 borrow their forms of process from the civil law ; and they, 

 therefore, had formerly to encounter the prejudices of the na- 

 tion, which set very strcnglyagaiust the civil law, as associat- 

 ed with the papal usurpations. By a comparison with the 

 French courts, we shall see how much the jurisdiction of the 

 British admiralty has been curtailed.. The French code assigns 

 the jurisdiction of prize questions to a distinct court. The tri- 

 bunals of commerce have jurisdiction of all disputes relative to 

 engagements and transactions between merchants, traders, and 

 bankers, and all commercial contracts or affairs, viz., purchases 

 of goods for the purpose of selling them, either in the same 

 state or after labour done upon them, and agreements for hir- 

 ing the use of chattels ; all undertakings in manufactures for 

 commissions, or for transportation by land or water ; all agree- 

 ments for supplying provisions, and for agencies ; all those re- 

 lating to sale by auction ; all operations of banking, exchange, 

 and brokerage ; all those of the public banking companies ; all 

 obligations between merchants, traders, and bankers ; all bills 

 of exchange, or remittances of money between whatever per- 

 sons ; all agreements for the purchase, building, sale, or resale 

 of vessels, used either in foreign or domestic trade ; all mari- 

 time undertakings ; every purchase or sale of rigging, apparel, 

 or provisions for vessels ; agreements for freight or charter- 

 party ; loans on bottomry, or respoftdentia ; contracts of insur- 

 ance, or other contracts respecting marine commerce ; every 

 contract with seamen in regard to their services on board of 

 merchant vessels. The boundaries of the jurisdiction of the 

 corresponding courts in England are much narrower, and the 

 reasons and principles on which its extent has been settled, are, 

 as stated in the reports, involved in the greatest confusion, 

 obscurity, and contradiction, as is fully shown in the learned 

 and profound investigation of the subject by judge Story, 

 in the case of De Lovio against Boit, in the 1st volume of 

 Gallison's Reports. The judge of the high court of admiralty 

 in England holds his office by two commissions. (See the 

 article Admiralty Courts.') It does not appear that the Eng- 

 lish admiralty ever had a jurisdiction commensurate with that 

 of the present Frencli tribunals of commerce ; but it does ap- 

 pear that a part of that which it formerly enjoyed has been ex- 

 torted from it by the comrpon law courts. In a great .part of 

 wat now remains to it, the common law court* have a con- 



current jurisdiction. As a prize court, the admiralty has re. 

 turned its jurisdiction unimpaired; and it is in the :uliii in:.- 1 ra- 

 tion of this branch of the juiisdiction, for the most part, that 

 Sir William Scott, (afterwards l..rd Stowell), shed so much 

 splendour upon his court, and gave so many profound and lu. 

 minoiis expositions of the law of nations and of coirmerce. In 

 regard to the other branches of its jurisdiction, all piracies, 

 robberies, and lelouies committed on the high seas, are exclu- 

 sively within its cognizance, and they are tried, not according 

 to the forms of the civil law, but, by the statute of the *8ih 

 year of Henry VIII., in the same manner as similar offences 

 committed on land are tried by the courts of common law. In 

 respect to minor offences, it has a concurrent jurisdiction with 

 the common law courts. In matters of commerce, these latter 

 courts have, in the most important subjects, a jurisdiction ex- 

 clusive of the admiralty ; as, for example, over bills of ex- 

 change, promissory notes, charter-parties, bills of lading, and 

 policies of insurance. In others, the jurisdiction is again con- 

 current, as in respect to victualling and repairing ships, mari- 

 ners' wages, hypothecation of the ship or goods by instruments 

 of bottomry, or respondtntia. In matters of salvage, or the 

 recovery, at sea, of lost goods, the jurisdiction is in the admi- 

 ralty ; and so are also questions of seamen's wages , and it is 

 resorted to for the purpose of enforcing liens against the ship, 

 as in bottomry or suits for mariners' wages. It has also juris- 

 diction of all stipulations made by the parties to a suit in re- 

 ference to the subject of dispute in a cae pending in the court ; 

 as, for example, where the goods, which are the subject of con- 

 troversy, are delivered to one party on his agreement, in the 

 nature of a recognizance, to answer for their value in case ihe 

 opposite party prevails ; in which case execution is forthwith 

 issued on the stipulation. The admiralty jurisdiction of the. 

 courts of the United States is adopted into the American from 

 the British laws. 



Csurt of Chancery. See Equity. 



Ecclesiastical Courts. There are still subsisting in England 

 divers ecclesiastical courts, of which the most important juris- 

 diction remaining is that relating to the goods of persons de- 

 ceased, which belongs to the prerogative courts of the arch- 

 bishops of Canterbury and York, if the deceased leave goods to 

 the amount of 5 (dona notabilia) in two different dioceses ; 

 otherwise it belongs to the court of the bishop of the diocese. 

 But much of the business of administering upon and determin- 

 ing the distribution of the estates of persons deceased, passes 

 into the court of chancery, under its jurisdiction of trusts ; H 

 large amount of property in Great Britain being put in trust 

 under grants arid wills. 



COURTS OF LAW IN SCOTLAND. The principal courts of law 

 in Scotland consist of a civil, a criminal, and a revenue court. 

 The supreme civil court is the Court of Session, also called the 

 College of Justice, established in 1532 by James V. It was for- 

 merly composed of fourteen judges and a president, before 

 whom all civil causes were tried ; but for the despatch of busi- 

 ness this court is now divided into two chambers ; the one con- 

 sisting of eight, and the other of seven judges. Its decisions are 

 subject to appeal in the house of lords. 



A Jury Court for the trial of civil actions, consisting of five 

 commissioners, was established in 1815 Questions came before 

 this court by remit from the court of session. By an act passed 

 in 1830, the Jury Court was united with the ordinary jurisdic- 

 tion of the Court of Session. 



The Justiciary or Criminal Court, consists of a lord justice- 

 genera!, a lord justice-clerk, and five commissioners of justi- 

 ciary, who are also lords of session. In this court, causes are 

 tried by the verdict of a jury. The judges go on circuit to the 

 principal districts of the country, where they hold courts twice 

 in the year, with the exception of Glasgow, where courts are 

 held three times annually. One lord can hold a circuit court. 



and in these they proceed without a jury. 



The Court of Exchequer is composi-d of the lord chief-baron, 

 and other four barons, who must be either Serjeants at law or 

 English barristers, or Scottish advocates of five years standing ; 

 and they have the same jurisdiction over the revenue iu Scot- 

 land as the English barons have over that in England. All may 

 plead before this court who can practise in the courts of West, 

 minster hall, or in the court of session. 



In the High Court of Admiralty (lately abolished) there was 

 only one judge, who was the king's lieutenant, and justice- 

 general, upon the seas, and in all ports and harbours. He had 

 a jurisdiction in all maritime causes ; and by prescription he had 

 acquired a jurisdiction in mercantile causes not maritime. His 

 decisions wert subject to the review of the court of session in 

 civil, and to that of the court of Justiciary in criminal cases. 

 The jurisdiction of this court is now transferred to the court oi 

 session. 



The College or Faculty of Advocates, answers to the English 

 inns of court ; and, subordinate to them, is B body of inferior 

 lawyers, or attorneys, styled writers to the signet, because they 

 alone can substantiate the writings that pass the signet 



The Commissary Court : consists of four judges nominated by 

 the crown, and has an original jurisdiction in questions of mar 

 riage and divorce, and reviews the decrees of local commissary 

 courts. It sanctions the appointment of executors, and ascer- 

 tains debts relating to the last illness, and funeral charges, of 

 persons deceased, or obligations arising from testaments, or ac- 

 tions of scandal, and upon all debts which do not exceed 40. 



As Scotland is divided into counties, snires, or stewartries, 

 the sheriff or steward, the kinjfJ? lieutenant, enjoys an exten- 

 sive jurisdiction, civil and criminal. Of old, the sheriff or 

 steward reviewed the decrees nf-nche Imron courts within his 

 territories; he mustered the military companies or militia. 



