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Session, and one of them the Lord President. It is divided into what is called the Inner House, and the Outer House.
The Inner House is divided into two courts of concurrent jurisdiction, called the First division, and the Second division, in each of which there are five jedges, three of whom form a quorum.
'The Outer House is composed of the five junior judges, four of whom are called Lords Ordinary, and the fifth, Lord Ordinary on the Bills. The four Lords Ordinary officiate alternately, each of them a week, in one of the courts of the Outer House, where causes are commenced before him; he then sits in another court of the Outer House to finish the causes commenced during the preceding week.
There is also a jury court composed of three judges called "The Lords Com"missioners of the jury court in civil "cases." This court was instituted in 1815, for the trial and ascertainment of disputed matters of fact in civil causes, remitted to it from either of the houses of the Court of Session, or from the Court of Admiralty.
In the country, the Sheriff's Court, the judicial functions of which are exercised by a sheriff depute, or his substitute, sits once a week or oftener during the greater part of the year, and has jurisdiction in all personal actions upon contract or obligation, to the greatest extent, and generally in all civil matters, which are not, by special law or custom, appropriated to other courts.
These are the chief courts for the decision of civil causes; and the following is a brief outline of the mode of proceeding.
With the exception of certain cases touching infancy, lunacy, absence from the country, the elective franchise, and the process for distributing the effects of bankrupts, the Inner House forms only a court of review or appeal, and causes are ordinarily commenced in the Sheriff's Court, or before a Lord Ordinary of the Outer House. In the Sheriff's Court they may be commenced before the sheriff depute, or his substitute: if before his substitute, an appeal lies to the sheriff depute. After final judgment in the Sheriff's Court the cause may be removed into the Court of Session, not as a matter of course, but with the assent of the Lord Ordinary on the Bills, after presenting a
bill to him praying such a removal, upon which bill he may have a debate by counsel, or agents, touching the propriety of removing the cause. If it be removed, the party removing gives security for costs.
When a cause is commenced before the Lord Ordinary, he grants his warrant for the citation of the defender, who must put in his defences within a certain time, after which the cause is entered for debate before the Lord Ordinary for the week, who, if no matter of fact be contested, either pronounces judgment, or takes the cause into consideration. The unsuccessful party, by a written statement called a representation (prepared and signed by counsel) may request the Lord Ordinary to re-consider his judgment. This request the Lord Ordinary may at once refuse, or require a written answer to he made. If he adheres to his first judgment, he may prohibit any further application to himself for review; but if he omit to make such prohibition, the unsuccessful party may call for a second review. If the request for a second review be refused, the case is still subject to review by the Lords of the Inner House. This review is not allowed before one representation to the Lord Ordinary, unless he dispenses with the representation, and it is only obtained by a printed petition, called a reclaiming petition, similar to a representation. The Court hears counsel, and either refuses the prayer of the petition, or requires printed answers, in which case they hear another argument of counsel, and then pronounce judgment. This judgment, like that of the Outer House, may be re-considered on a petition from the unsuccessful party; but a judgment of the Inner House, concurring with one before pronounced, is final in Scotland, and can only be reviewed in the House of Lords. At every stage of the proceedings, an interlocutory judgment is open to the same re-consideration as a. final judgment, and if the former judg ment be reversed, the new judgment is open to the same review as an original one.
Here then we may have seven stages of appeal for every Sheriff's Court cause: for every Court of Session cause, six, and often more. 1. From the Substitute to the Sheriff-depute. 2. From the Sheriff's Court to the Lord Ordinary. 3. From the Lord Ordinary to himself: and this consists of
two stages; first, the debate to induce him | circumstances may seem to require; former
to consider whether he shall re-consider; secondly, the debate uponre-consideration. 4. From the Lord Ordinary to the Inner House in which there are two stages as before the Lord Ordinary. 5. From the Inner House to itself: in which there are likewise two stages. 6. To the British House of Lords: from which tribunal it is frequently necessary to send the cause back for the further consideration of the Court of Session; after which it sometime finds its way to the House of Lords again.
statements are at the same time retracted or explained away; and thus, while the complexion of the case varies at every turn, new questions in point of law are started, and sometimes a fresh source of litigation is opened up in the very last stage, and just when every thing seemed to have been brought to a conclusion.
"This system, which is peculiarly hurtful in a court where there are so many steps of review, is itself aggravated and re-acted upon by the very circumstance, that such a repeated process of committing himself, endeavours to fish out, not review is competent. A party, before finally only the case of his adversary, but the leaning also of the judge. Having, as he thinks, attained this, his statement of facts is attempted to be views of the judge; and even then, looking proshaped so as best to chime in with the supposed ten-spectively to the further progress of the cause, this is done in such a way, and under so many qualifications and reserved implications, as to leave it open to put a new gloss on the matter, if that shall be found necessary, when the case ultimately comes before the Inner House.
But there was another vice in the system of Scotch Judicature, if possible, fold more mischievous, even than this reiterated faculty of appeal. In England, expensive and inconsistent as our system of written pleadings is, at least it has the merit of ascertaining before the hearing, all the questions of law or fact on which the Court is required to decide. But in Scotland, the parties, instead of being compelled to state their whole case at once, were permitted to introduce new averments of fact and new pleas in law, at every interval, down to the last stage of the cause; so that the judgment in one stage was often apparently at variance with the judgment in another stage, and each stage might form as it were the commencement of a new suit. Mr. Ivory says, that
"Much of the looseness and inaccuracy of statement at present complained of at the commencement of a cause, is to be attributed to the general laxity of the whole system of procedure, which prevails in the practice of our courts. Both parties are aware, that at almost every stage of a long litigation, the defects, whether of their previous statements in point of fact, or of their previous pleadings in point of law, may be corrected and supplied. Relying on this, there is not unfrequently in the outset an inclination on either side rather to withhold and keep in the back ground many of the facts, in the view of trying the adversary's strength, and of bringing out, as far as possible, the important points on which his pleas are to be rested. This tentative sort of process is productive, not only of great pense and delay, but has a tendency to involve the case in needless perplexity, and to create a degree of confusion difficult afterwards to be got the
"It is obvious that the successive judgments obtained by a course of pleading such as this, though often leading to different results, are not always in reality at variance with each other. They are truly judgments pronounced on questions distinct in themselves; and all of them may be equally sound in the legal principles on which rendered necessary only by the new shape in they rest; alteration and reversal having been which the case has been presented by the parties.
"If a system of pleading could be devised, whereby parties, before any judgment was pronounced, should be held finally concluded on the facts of the case, and on the more important legal pleas, arising out of these facts, incalculable benefit would arise, not only directly, in its immediate consequence to individual suitors, but still more, perhaps, indirectly, in its ultimate effect of securing a settled and well-defined system of law. There would no longer, as at present, be a seeming conflict in the successive interlocutors pronounced even by one and the same judge; but besides, the final sentence of that judge, when submitted to review, would much seldomer be altered; and a result equally beneficial might reasonably be expected in the court of last resort. A very slight attention to the cases which occur in practice must convince every one, that it is not in the abstract principles of law, as applicable to a settled state of facts, that difference of opinion usually arises, but in the different views which suggest themselves to different minds in regard to an unsettled state of facts, as presented in the long, confused, and contradictory pleadings of ex-parties." -"The number and extent of our written pleadings is at present a very serious evil. Were business conducted as it ought to be, they must be admitted, at the very least, to be useless; for surely if a case be once stated fully and accurately, there cannot be any necessity for reiterating the statement in one pleading after another, until the judge's table absolutely groans under the burden of the records. Yet, in point of fact, if almost any one process be taken up and examined, the written pleadings will be found, in the shape of argumentive condescendences on the grounds of action, memorials, minutes, representations, petitions, informations, &c., to be nothing more from beginning to end.
"From the same cause many actions are brought without either the pursuer or his advisers baving formed any very distinct idea how they are to be supported; and many defences, on the other hand, are set up for no other reason than to procure delay, and because the party does not find it convenient at the moment to give that consideration to the matter in dispute which is cssential towards maturing it for a judicial decision. The important facts are afterwards drot in as
Seven or more stages of appeal! The parties put to the expence of printing the statement of their differences! with an almost interminable faculty of starting new causes of action and new defences, and of pursuing the new game through all the stages which had occupied the chase of the old! Mr. Cook, however, (one of the persons consulted by the Commissioners appointed by Parliament to inquire into the matter,) "most highly ap"preciates" this system, and considers "that every, the most minute alteration, "ought to be made with the greatest pos"sible caution." And Mr. Chalmer, another of the persons consulted, says, "the "form of proceeding long established in "Scotland appears to me fully sufficient to "attain the ends of justice, with dispatch "and advantage to the suitor."
than an uninterrupted series of repetitions, in | outset of the cause, to set forth in precise which, most frequently, little more is done than terms, the ground and extent of his de serving up the same identical argument under a mand, and the defender, all the defences different arrangement of its heads *." both dilatory and peremptory, on which he meaus to rely. When the Lord Ordinary is satisfied that no further disclosure of facts is necessary, he is to call on the parties to declare whether they are willing to abide by their respective statements. If they agree to do so, the record is made up: but if they do not agree, he may require them to put in a condescendence and answer, or mutual con descences, containing a final statement. This final statement each party is to revise, and make the necessary alterations to meet the opposite averments; and of these revised pleadings, there is to be a concise note signed by counsel.—Here, is enough to occupy the lawyers many weeks, with what the judge, if the parties were called before him, could often do in half an hour.-Where facts are disputed, the Lord Ordinary may give such orders for the Fortunately, the legislature has come to ascertainment of them as he thinks fit, a different conclusion; and though Parlia- or remit them for investigation by the ment has not sufficient resolution or ac-jury court. The parties are then (when quaintance with the subject to establish an entirely new system, they are willing as far as posible to palliate the mischiefs of the old.
The main object of the bill is to compel the parties to give in before the hearing of the cause, a complete and definite statement of the points in dispute between them, instead of allowing them as heretofore to start new facts and new pleas ad infinitum at every interval of the cause. The obvious mode of obtaining such a statement in the most trustworthy shape, and at the least expence of time and money, would be to summon both parties at once before the judge,-to allow him to extract it from them by interrogation and counter interrogation, in public, and himself to commit the whole to writing, as in the case of a prosecution for felony in Englaud. The legislature, however, has chosen rather to follow the model of the written pleadings in our courts, which, though more likely to bring the case to a conclusion than the former system in Scotland, is still, fearfully dilatory and expensive.
The pursuer is now required in the
Appendix to the Report of the Commissioners appointed to inquire into the forms of process in the Court of Session, and the course of appeals to
the House of Lords, 1824. See p. 160.
See Appendix to Report, p. 62.
the facts have been ascertained) called for judgment, and upon that occasion may be further heard.
The bill reduces the number of Lords to form a court for each of the divisions of the Inner House from five to four, and increases the number of the Lords Ordinary from five to seven. In cases of difficulty, it also enables the Lords of Session to order a hearing in the presence of their whole number; instead of one division sending, as formerly, for the written opinion of the judges of the other division, upon cases of this nature.
Upon an appeal from a Lord Ordinary to a division of the Inner House, the Lord Ordinary is allowed to sit and form a constituent part of the court of appeal. This must place all the five in a very unpleasant situation, and not afford the best chance of having the first decision reversed where justice may require it.
In the Sheriff's Court, in causes not exceeding 121. value, the decision of the sheriff depute is to be final; but causes beyond the value of 401. may be removed for jury trial as well as appeal, which was not allowed before.
The bill then proceeds to extend the class of cases which may be submitted to the jury court, and to abolish the practice of each party furnishing the other, previously to the trial with a list of witnesses,
a practice which had been found productive of more inconvenience than advantage.
Such are the principal alterations effected by the present measure, and as far as they go, they are in the main beneficial; they are also interesting, as indications, that the spirit of improvement is awake upon this most hopeless of all institutions, and that the government is ready to proceed as far as its information permits. It is lamentable, nevertheless, to think how small a portion of the evils attendant on our jurisprudence these alterations will remove, and how few persons there are in the legislature, able and willing to devote their minds to the subject. Scotland, however, in her Sheriff's Courts pos sesses a prodigious advantage over England. In them to a certain extent, justice is weekly brought home to the doors of the suitor. If six out of the seven stages of appeal were cut off; if but one review of the case were allowed, and that, upon a statement of facts, drawn up by the judge, and sent post free to a metropolitan court, there could be little complaint as to the delay and expense of judicia! proceedings. As the subject passed off so briefly in Parliament, and as it will require a further notice in our article on County Courts, we shall not, at present, enter upon it more at length; we must, however, seize the first opportunity of developing the mode in which that main support of civilized society may be attained, a cheap and expeditious administration of justice.
Colonial Trade Bill. CONCURRING, as we do, for the most part, in the truth of Mr. Huskisson's observations with respect to our colonial trade, we feel ourselves relieved from the neceseity of discussing them one by one, and of examining his speech in detail. More acceptable service may be rendered by an explanation of the principles upon which his measure of last session is founded, and its probable results in practice; the more especially as little notice is taken of this important part of the inquiry in Mr. Huskisson's speech.
To investigate the probable effects of commercial measures by the help of scientific principles, is too commonly a tedious
effort, and is felt by the House of Commons as a task of peculiar irksomeness; in this instance, as in so many others, the distaste for accurate reasoning exhibited by that assembly only renders it more incumbent upon us to expound those principles upon paper, which failed, from their abstruseness, to find publicity in the parliamentary debates.
The proposition, however, by which we shall begin, is by no means alarmingly recondite. What is wanted, as the end of all commercial laws, is the production of the greatest quantity of commodities at the lowest cost. Now those, who agree with Mr. Huskisson, assert that, as the greatest quantity of any single commodity is produced by dividing the labour of individual workmen, so the greatest amount of all commodities is obtained when each nation addicts itself to such branches of production as its peculiar facilities may suggest.
The varieties of climate, situation, and soil, afford to every country some advantages, in the employment of industry, not possessed by others. By making use of such advantages, not only will a country contribute its greatest power in the production of wealth, but will obtain the greatest share of wealth for its own enjoyment. Suppose, for instance, the silk consumed in Great Britain to be the produce of a capital of 1,000,000l. If the facilities possessed by France for the raising of silk exceed our own by 25 per cent., it is clear that capital of the value of 800,000l. would produce the same amount of silk in France, with the British capital of 1,000,000l.: it follows, then (since the produce of the same amounts of capital,other things remaining the same, must exchange for one another), that Great Britain, by employing four-fifths of this capital in the production of other articles for which a demand might exist in France, and for whose production that country possessed inferior facilities to herself, would obtain the same amount of silk, and set free 20,000l. worth of capital, to be employed in other branches of industry. The consumers of silk would then obtain the same quantity as before, at four-fifths of the former cost, retaining the remaining fifth for the satisfaction of other wants; and that not only without injuring, but with a similar advantage to, the French producer.
The inference is both obvious and satisfactory: it is, that every nation derives the greatest benefit by the separate exercise of those facilities which art or accident have bestowed upon her.
were in request in the countries exporting that metal. In consequence of the abundance of its gold, the value of that metal would sink, and so afford an inlet for importation from all other countries, who would find their gain in purchasing its gold, though not its raw produce or manufactures. By successive operations of this sort, its trade would be long retained and constantly reproduced. So difficult is it even to conceive a case where national interchange shall not exist; and imagina tion cannot suggest an instance, in which, if left to its natural course, it can exist without reciprocal benefit to the parties between whom it is carried on.
vention of a third country. Could we suppose a country so neglected by nature, and so destitute of artificial superiority, as to find itself outdone, by all the other countries of the globe, in every single branch of It may, however, be objected that industry, in a degree, too, exactly proporFrance might possess superior facilities tionate to the cost of production of each, of production in every article. Would and absolutely in want of some one comthat exclude the inter-national traffic? By modity, as, for instance, gold,—an exno means. For it is not necessary to the travagant case, indeed, but necessary existence of a trade between two coun- for demonstrating the perfect truth of tries, that each should possess over the the hypothesis;-such a country would other an absolute facility in the produc- not fail to trade with its more fortunate tion of the commodity which it exports, neighbours: its commerce would be carbut only a relative facility as compared tied on through the medium of the prewith its power of producing the article cious metal; at any rate it would pur which it imports. Thus, for instance, chase gold, though at a greater compasuppose England to be desirous of im-rative cost, with such commodities as porting French silk, which she would pay for in manufactured cotton; now although both silks and cottons could be manufactured with less labour in France than in England, it does not follow that it would not be the interest of France to confine herself wholly to the manufacture of silk, and to import her cottons from England. If in France a bale of silk could be manufactured by 50 days' labour, and a bale of cotton by 60 days' labour, whilst in England a bale of cotton required 70 days' and a bale of silk 80 days', it would be advantageous to both parties that a French bale of silk should be exchanged for an English bale of cotton; because France would thus receive in exchange for a bale of silk which had cost her 50 days' labour, a bale of cotton which would have cost her 60 days', whilst England would also gain by giving a bale of cotton which had cost her 70 days', for a bale of silk which would have cost her 80 days'. Thus each party would save 10 days' labour by the exchange. It is manifest, then, that so long as different countries possess a different relative facility in the production of the various articles of consumption, commerce will continue to exist, and every nation will be able to find some commodities on which it may profitably employ its labour, with the view of exchanging them for the production of its neighbours,
But even putting the extreme case, in which England should not possess the means of producing a single commodity for which a demand existed in France; ■ commercial intercourse might still be carried on between them, through the inter
It is clear then, that, as the interest of every country will incline it to those branches of production for which it is best qualified; so it is impossible to divert its industry from that channel by compulsory means, without diminishing the aggregate of its revenue, and impeding its prosperity. What a country is forced to consume or produce, it consumes or produces at a loss; at least to itself. But a forced production or consumption is the end, and has always been the effect, of most commercial regulations; which are accordingly useless, at best, and, for the most part, merely mischievous. The mischief, however, is not confined to the actual operation of such regulations as we speak of: when once imposed, they create a mass of artificial interests, whose existence depends on the system from which they sprang, and which are swept away, whenever a change of circumstances or the prevalence of the general interest over that of the few, gives birth to a change in the commercial system. Here, then, is a second source of