cially as the English Judges are so celebrated for the clear exposition which they are in the practice of giving of the principles and reasons of their decisions.

11. SCOTS ACTS OF SEDERUNT.

"It is the best law which allows least discretion to the Judge, and the best Judge who allows least to himself."--Opinion of Lord Chancellor BACON.

There are many clauses in the new bill, which, it must be adinitted, would introduce some salutary improvements in the administration of the law. But still it appears surprising, that after taking the opinious of so many eminent and learned individuals, with respect to the whole range of abuses in our courts of law, that so little should be comprehended in the new bill, and such defective and objectionable measures proposed for the benefit and approbation of the people of Scotland. If the authors of those measures have the ambition to be handed down to posterity with immortal honour, they have now the opportunity of entitling themselves to be "numbered among the founders and institutors of laws," by proposing wise, comprehensive, and really beneficial measures, for the double object of relief to the Judges, and the great body of the people.

But the proposed bill appears, in many respects, radically defective, and not such as is calculated to give much satisfaction to the people of Scotland. If so, the promoters of the bill would act prudently and wisely, if they were, in deference to public opinion, to withdraw the bill at present, and to frame a new bill altogether, which should, by a set of plain and obvious rules, regulate, by legislative enactments, the whole forms of the administration of justice from the beginning of the action till the decree is obtained, and put in execution, by seizing the estate and effects or person of the debtor.

The great and leading object of this bill seems merely to be, to introduce a more skilful manner of preparing causes for judgment, and thereby saving trouble to the Judges of Scotland, and the Lord Chancellor of England. But almost all the Scotch Acts of Sederunt, at least for the last fifty years, may be traced to the same principle, in so far as the

Scotch Judges and their clerks were concerned; and it is alleged, we will not say correctly, that those Acts originally introduced and sanctioned! almost all the abuses in the forms of proceedings, and the high dues of Court levied from the suitors, for behoof of the clerks of Court, and clerks of the Judges, of which, and the expenses of process, the people of Scotland now so generally and justly complain. Every regulation which has for its object the saving of unnecessary trouble to the Judges and their clerks, and the clerks of Court, will no doubt be duly appreciated by the people of Scotland.

But while this is conceded, we humbly presume to observe, that it is no less necessary that regulations should be enacted by Parliament, the principle of which shall be the diminution of the fees of Court, and of the expenses of the whole forms of process and writs in the administration of justice in Scotland; that the Scotch Judges themselves should also shew some deference to the opinion of the public, and an intelligent profession; and that their duties should be confined exclusively to their proper functions—the impartial administration of justice. Lord Chancellor Bacon authoritatively, and it would now seem prophetically, said, Let not" their decrees go forth silently; but the Judges render the reasons of their opinion, and that publicly, and in a circle of bystanders; so that what is truly unfettered in the power MAY YET, BY NOTORIETY AND OPINION, BE CIRCUMSCRIBED." The Act of Parliament,—the Royal instructions,-the reports of the late and former Commissioners, and the Appendix to the last Report, bring before the public, as in a mirror, the defects and faults of the forms and practice of the Scotch Courts, and shew whether the precepts of Lord Bacon have been always observed, even by the Judges.

But the proposed bill does not contain any clause-1, To abolish the fee-fund dues; 2, For the avowed purpose of diminishing the expenses of process; 3, For abolishing the present system of signet summonses, arrestments, inhibitions, hornings, poindings, and captions, and substituting a more simple and less ex

pensive set of writs: 4, It is proposed that the Jury Court shall not only be continued as a separate establishment, but the Judges and its jurisdiction increased, with, no doubt, suitable salaries to those Judges, and to additional officers or clerks of court; that maritime causes be transferred to it, and the Admiralty jurisdiction and court-the best-regulated and the cheapest of the Supreme Courts-virtually abolished: 5, The prize jurisdiction of the Scotch Admiralty Court is to be transferred to the English Admiralty Court: 6, Moreover, the forms of process of the Supreme and Inferior Courts, now and in all time coming, are to be regulated by Acts of Sederunt of the Scotch Judges.

The forms of process, in the Scotch Courts only, seem, more especially since the Union, to have been chiefly regulated by the Acts of Sederunt of the Judges. Whether or not the Legislature even ought, according to the true spirit of the British constitution, to delegate its legislative powers and proper functions to irresponsible Judges, who are equally independent of the crown and of public opinion, may, without the imputation of the slightest disrespect or dissatisfaction, be fairly doubted. Certain it is, that those Acts of Sederunt, after the experience of upwards of a hundred years, have not had the desired effect. If they have not introduced or sanctioned many abuses, and the present heavy dues of court and enormous expences of process, they have at least become so voluminous, that they are seldom read, and of course are little known to the advocates, agents, the great body of the people, or even to the Judges them selves and how excellent soever these acts in themselves may be, they (it is alleged by many individuals of considerable experience) are liable to the following objections:

(1.) The legislative functions and powers ought not to be entrusted and delegated to those who administer the laws. Lord Chancellor Bacon long ago observed, that "The power of supplying, or extending, or limiting the laws, is not very distant from the power of making them."

(2.) The Scotch Acts of Sederunt are little known, and seldom pur

chased or read. Lord Cringletie, in his Report, truly observes, "Indeed, many of the practitioners are unacquainted with these Acts, as they are not printed and sold by the booksellers till a considerable time after they are enacted. I therefore think, that the regulations I have proposed, if they be thought worthy of adoption, or any other radical amendments which may be made, ought to be enforced by Act of Parliament, as were those introduced in 1672 and 1695."

(3.) The Scotch Acts of Sederunt might, with as much controul of public opinion, issue from the Conclave of Rome or the Divan of Constantinople: For although the people may petition Parliament, and publicly express their opinions, without danger, on any measure under consideration of Parliament, they have no power whatever of stating their opinions, while the expediency of Acts of Sederunt is under consideration in the robing room, with shut doors, or elsewhere. After the Acts of Sederunt are once issued, it might be construed into disrespect and contempt, to present a petition to the Judges impeaching the wisdom of those Acts; an experiment, indeed, which, it is said, no counsel or agent of character or calculation, (with the exception of one or two imprudent, or alleged insane individuals,) or even the public bodies connected with the College of Justice, would venture to make. The people of Scotland, so far as we have been able to learn, are entirely ignorant of the manner in which the Acts of Sederunt are concocted, or whether the Judges consider themselves bound to consult, as their Privy Councillors, even the Faculty of Advocates, the Writers to the Signet, or Solicitors before the Supreme Courts. It is reported, that the latter body, some time ago, intimated a desire to know something of the progress of Acts of Sederunt; but that no notice was taken of the application; and that, in point of fact, that Society and the public know nothing of the progress or concoction of these Acts till passed.

(4.) Regulations formed in this manner may have the dangerous tendency of placing the Judges in odium

ing the very administration of justice itself into suspicion. These are effects which no Scotsman, or lover of his country, would imagine even to be possible, without regret.

But whether these, and other objections which might be stated, are well or ill founded, we are sorry to observe, that the present bill proposes still to delegate to the Scotch Judges to regulate, by Acts of Sederunt, not only the new forms of process before the Court of Session, the Jury, Admiralty, and Inferior Courts, but to regulate these forms in all time coming.

It appears to us that it is highly inexpedient that the Judges ought to be required, or permitted, to perform the proper functions of Legislators; that the whole Acts of Sederunt ought to be abolished ;-that regulations proposing to embrace the better regulation of the whole forms of process, and all kinds of judicial writs, should be prepared, submitted to Parliament and the country at large, and calmly and deliberately considered, and publicly discussed, and finally enacted, not by Acts of Sederunt, but by Acts of Parliament. "Let the contradictory laws," says Lord Bacon, be revised and examined by persons chosen for the purpose, and then submitted to the assemblies, that what is approved of may be established and fixed by suffrage;" and "in laws of an ordinary and political kind, where, for the most part, no one takes advice of lawyers (advocates), but trusts to his own interpretation, every thing ought to be unfolded more at large, and pointed out, as it were, to the vulgar apprehension."

The regulations of our forms of process by legislative enactments would have this important advantage, that they would be printed at the public expense,-known and distributed in every part of His Majesty's dominions,—and treated by the people, including the profession, with suitable respect and observance ; whereas Acts of Sederunt, how excel lent soever their objects or rules may be, are not printed at the public expense, so far as we know; they are, therefore, seldom purchased, or read -consequently not generally known

withstanding of any eulogiums in their favour, or harsh compulsitors by the Judges, to enforce their ob

ser vance.

In submitting objections to the Scotch Acts of Sederunt, we have no intention of attributing any blame personally to the present Judges, several of whom cordially wish these Acts abolished. The present Judges are not responsible for the Acts of their predecessors, who may also have been actuated by the best, although, as experience has proved, mistaken intentions. We look to the tendency of Acts of Sederunt, as it may affect not only the Judges, the profession, and the people of Scotland, but the due administration of justice; and in every point of view, we humbly conceive that all the existing Acts of Sederunt should be repealed, and the powers of the Scotch Judges, to enact any new Acts of Sederunt, for ever abolished by the Legislature.

III. SIGNET SUMMONSES AND WRITS.

"It appears to us an important object to facilitate the administration of justice," and to "relieve it of every superfluous charge." Third Report of Commissioners in 1818.

We have now to call the attention of the public to one of the greatest abuses which exists in the Scotch forms

the present mode of bringing parties into Court, and enforcing the decrees of the Judges; that is, the present system of signet summonses, letters of suspension and advocation, hornings, captions, and other writs passing the Signet. The whole of these writs, it seems sufficiently obvious, require to be reformed, if not totally abolished. The superfluous and unnecessary expenses of such writs form one of the heaviest and most oppressive taxes upon the lieges, in the administration of justice.

The Judges, in their characters of Legislators, or the Faculty of Advo cates, have never directed their attention to the reformation or amendment of this abuse. It is left to the fostering care of the Society of Writers to the Signet, who are interested in supporting and maintaining the monopoly at the expense of the people of Scotland. The Judges, indeed, by some of their late judgments, seem to have taken this monopoly under their special protection. The

Solicitors, and other practitioners, appear to have a sufficient participation in this gainful trade, to prevent them from making any complaint. It will, therefore, depend upon the public spirit of the country gentlemen, and the mercantile and maritime classes, whether Parliament shall be moved to abolish or reform this system.

It is matter of regret, that the former and last Commissioners, from a delicacy, perhaps, to the Writers to the Signet, have neither made any inquiry, nor reported to Parliament any opinion on this very important subject. Hence there is no provision on the subject in the new bill, although falling within the compass of the inquiry of the last Commissioners, and the professed object of the new bill.

The Commissioners in 1818, indeed, admit that they had not made the necessary inquiry, and were not prepared" to state any opinion as to the expediency of introducing a more direct and simple form of personal execution." But with respect to the decrees of Sheriffs for sums to the amount of £.40, those Commissioners reported that signet hornings and captions were unnecessary, and that the decrees of Sheriffs, like those of Magistrates of Royal Burghs, should be an effectual warrant to poind or imprison," without any previous interposition of the Supreme Court." Their recommendation to this extent has, however, been hitherto disregarded by the Legislature. But the reasons in support of the recommendation, stated by the Commissioners, sufficiently shew the expediency of abolishing, in all cases, signet writs, and substituting a more simple and less expensive mode of bringing actions into court, and putting decrees into execution.

Although there is a quarto volume of the forms of the different writs passing the Signet, we conceive they may be resolved chiefly into two classes: 1, Summonses and arrestments, and inhibitions thereon; and, 2, Arrestments, inhibitions, hornings and poindings, and captions, following upon decrees.

1. Summonses.

In England, a person is generally cited to appear in Court by a short

writ directed to the Sheriff, and after citation and appearance of the defendant in Court, the cause of action is explained by the plaintiff, in a declaration. Anciently, a similar practice existed in Scotland. In virtue of the Act 1457, c. 62, a brieve was obtained from Chancery,("the Kinges Chappel,") directed to the Sheriff, to call the parties before the Lordes of Session,' to answer to a matter to be then laid against them. So late as 1672, the practice of engrossing in the summons a full statement of the facts and the conclusions, was unknown. This practice continued till 1723, when the Writers to the Signet obtained an Act of Sederunt directing the declaration and conclusions to be embodied in the summons, and a copy served on the defender. From the establishment of the College of Justice in 1537 till 1723, therefore, it appears that blank summonses were used. The same practice is still continued in the Admiralty and Teind Courts.

The modern practice of embodying a full statement in the summons seems to have been introduced chiefly to secure a monopoly to the Writers to the Signet. It appears to have no other recommendation. But by a decision of the House of Lords in 1800, the Solicitors were found entitled to a share in the monopoly.

The Scotch practice, however,ought, on general grounds, to be assimilated as near as possible to that of England. The remedy seems easy, and would be attended with very beneficial consequences. All that is necessary is to have either brieves or short

summonses.

If the last are preferred, let any statements, or averments of facts, be excluded, and the summons confined shortly to the name of the plaintiff and defendant,—the amount of the debt,-the conclusions,-and the warrant of citation. Of this no amendment should ever be permitted. The facts on which the summons is founded should be stated without argument separately, in a declaration, and served on the defender along with citation. The warrant of citation should be in a printed form, as in the Admiralty and Teind Courts, and contain warrant also to arrest and inhibit, and in that state should pass the Signet blank,

but be always libelled before service, or using arrestment or inhibition. The arrestment or inhibition should fall to the ground, unless the summons were lodged with the Clerk of Court, on expiry of the inducia. A copy of the summons and executions, as an inhibition recorded in the record of inhibitions, like a copy of a petition for sequestration, should be a sufficient inhibition. Mr Forsyth, Advocate, who has perhaps had more practice, and is better skilled in Scots forms than any other counsel now at the Bar, concurs substantially in approving of this plan. "Return (says he, App. p. 148.,) to blank writs, or writs of style, shewing merely the nature of the demand. Let the pleadings in Court begin with a declaration, or claim by the pursuer, stating his case.'

"

2. Hornings, Cuptions, &c.

When a decree is obtained, the extract should have appended, in a printed form, warrant to charge, arrest, inhibit, poind, and imprison ;and no separate letters of horning and poinding, arrestment, and inhibition and caption, which are quite superfluous and unnecessary, should be permitted. The unnecessary and expensive forms of letters of suspension and advocation, which are abolished in maritime causes, but are carelessly intended by the new bill to be continued, should in all cases be abolished.

The average expense of raising and executing signet-letters, viz. summons, arrestment, inhibitions, suspensions, horning and poinding, and caption, may be stated from £.10 to £.25 upon each debt, although, per

haps, not exceeding £.5 or £.10 in

amount.

By the new plan proposed, the blank warrant of citation, arrestment, and inhibition, should cost about seven shillings, and all the other expenses of letters of horning, arrestment, &c. would be saved, except a trifle for recording an inhibition or charge, because the warrants to arrest, poind, &c. would be contained in, and appended to the original decree.

If, again, these extracts and the copy for the record were allowed, as in the Jury Court, to be prepared by the agents themselves, one extractor might sign all the extracts of the Court of Session, and thus the whole expense of the absurd establishment of so many extractors might be saved.

The only objection to the economical plan proposed, is the vested interest of the Writers to the Signet. It would not be difficult to show that all the compensation which they could fairly claim would be very trifling. But their claims of compensation should be no obstacle to such a national benefit. Let the Barons of Exchequer be empowered to examine these claims, and to sustain them in so far as may be just.

How sweet a little spot is here!
Who'd think, 'mid shapeless hills so drear,
To meet with such a scene?
It seems some fairy solitude,
Where elves resort in lightsome mood,

To sport 'mong copses green.
How calm the little lake doth lie,
Reflecting the soft Summer sky,

One sheet of azure hue!

And, raising their round heads, are seen
The wooded isles of softest green,
Amid the waters blue.

Dark woods hemm'd round on every side,
And tow'ring hills extended wide,

Shut out the world unknown;
No human footstep presses here;
The wild fowl and the dappled deer
Make the lone spot their own.