THE SHERIFF COURTS.

The History and Present Constitution of the Sheriff Courts of Scotland. By ROBERT ROBERTSON, Esq., Advocate, Sheriff-substitute of the County of Stirling.

MR ROBERTSON's avowed motive for writing this pamphlet is a very noble one. In somewhat grandiloquent language, he assures us that he has written with the single object of bringing out the truth, for the purpose of dispelling the mists of misapprehension and misrepresentation in which, unfortunately, the subject has been hitherto involved.' The subject referred to is the history and position of the Sheriff Courts in Scotland; and considering that the said subject has not been altogether neglected among us, it costs us a natural pang to be now informed that we know nothing whatever about it. The discussions regarding it have been frequent and exhaustive; two Parliamentary Commissions have reported on it; and it has been more than once carefully considered by the Faculty of Advocates. It says little, therefore, for the intelligence or the honesty of our lawyers, if all this has resulted only in misapprehension and misrepresentation. But there is balm in Gilead: Mr Robert Robertson is Sheriff-substitute of Stirlingshire. It is consolatory to think that we have in him an Aurora at whose appearance the mists and thick darkness of ignorance will flee

away.

Especially, it appears, does this ignorance obscure the minds of our Scotch members. Mr Robertson, in the character of Aurora, seems to have pervaded London last summer, and he records his surprise and grief at having there discovered that many of the Scotch members of Parliament were not at all aware of the changes in the constitution of the Sheriff Courts which modern legislation had introduced. One bright exception was found in the accomplished member for Perthshire, to whom the history of our local tribunals is sufficiently familiar;' and accordingly Mr Robertson has selected one of the few people who, in his opinion, know anything about the matter, as the individual to be especially and directly taught. It is a severe penalty on knowledge, that whenever a man has mastered a subject, he must become the target for all manner of pamphlets thereupon; but there is more logic in Mr Robertson's

method than at first sight appears. His pamphlet is most fittingly addressed to superior knowledge, inasmuch as such knowledge will be least liable to be led astray. But as we cannot rest assured that all those persons whose benighted ignorance Mr Robertson compassionates and would relieve, will refrain from his pages, we propose to show that, as a rule, Mr Robertson reaches his conclusions by erroneous argument from incorrect statements.

A pure love of truth is rare among the sons of men. And when a man declares with unusual vehemence that he is actuated solely by a motive, weak because so lofty, we are pretty safe in concluding that its influence over him is unusually small. We fear, therefore, that it does not reign alone in the breast of our mist-compelling Sheriff-substitute. Motives, we suspect, have urged him on less exalted than a single-minded desire to dispel darkness and enlighten ignorance. What these motives are, we may gather from the last of six propositions which he claims to have established, and which, properly speaking, is a corollary from the preceding five. It is, that the present salaries of the Sheriff-substitutes are altogether inadequate, whether the importance of the office, the engrossing nature of its duties, or the qualifications necessary for its proper discharge are considered.' The use of the words 'its proper discharge,' here, would certainly bring down on Mr Robertson the censures of the Dean of Canterbury, and excites some surprise even in less zealous 'pleaders for the English language.' But whatever we may think of Mr Robertson's style, his meaning is perfectly clear; and could any doubt be supposed to rest upon it, such doubt would be at once removed by a passage in a letter from Mr Robertson, Sheriff-substitute of the Eastern District of Stirlingshire, addressed to Sir De Lacy Evans, and published in 1853 in the Courant newspaper. In that letter the Lord Advocate was called upon to add to the Bill then before Parliament a provision for the gradual extinction of the office of non-resident Sheriff, and for conferring on the present resident Sheriffs the status and character of judges acting under a Royal Commission.' The letter was at least candid-far more so than the pamphlet now before us. The utility of the office of Sheriff is a very fair subject for argument, though it is rather tiresome to be forced into the same discussions at intervals more or less short, according to the fitful humours of self-important Sheriff-substitutes; but such a subject should be approached with forbearance, good temper, and courtesy. We

cannot say that Mr Robertson has so approached it. And while we do not at present propose to enter upon the general question, we think it right to enter our protest against the manner in which the question has been tabled by this fervid partisan.

6

Mr Robertson's end is the abolition of Sheriffs, and the transference of some portion at least of their salaries to their substitutes. He finds his means, naturally enough, in exalting the one office and depreciating the other. The Sheriff-substitute is now a greatly more important officer than the Sheriff was even originally; while the Sheriff has dwindled away into a mere name, a sinecurist, a nominis umbra, and Heaven knows all what besides. But these positions can surely be enforced temperately, and with accuracy of statement. Unfortunately, Mr Robertson has studied neither of these virtues. It is not seemly or becoming for a man professing the single object of bringing out the truth,' to speak of 'the inflated language of interested parties in the Parliament House,' to denounce those who differ from him as idle, and not honest,' as trying to bolster up an office on false pretences,' so that charity can but ascribe to them 'total ignorance.' Certainly we shall not stoop to retort imputations of interested motives;' but we must say, that the reproach of using inflated language' comes with singular inappropriateness from the author of this pamphlet. Far more important, however, than Mr Robertson's violence are his inaccuracies. Filled with a just scorn of his superiors, and oblivious of 9 Geo. IV. c. 29, he ruthlessly denies them the title of Sheriff, according only the lesser glory of Sheriff-depute. We fear this word 'depute' is destined to be a snare unto him. In the letter of 1853 he announced the discovery, that the Sheriff-depute has never been legally entitled to any other designation than that of Sheriff-depute, which is his proper style;' and though here he does not fly quite so directly in the face of a statute, this fatal word depute leads him into strange historical theories. He tells us that the hereditary Sheriffs, Sheriffs for life, Lords of Regality and Barons,' appointed as their judicial representatives all Sheriffs-depute and Stewards-depute, and Bailies of Barony and Regality.' 'The Sheriff-depute,' he adds, 'or Judge of the Sheriff Court, and who received his office from the heritable Sheriff, or Sheriff for life, was generally a churchman or a lawyer, appointed to exercise those legal functions which the Sheriff, from his ignorance of law, was incapable of performing: he was thus the deputy or officer of the Sheriff, and the Judge of his Court, in the

same way as the Bailie was the official of the Baron's Court; and hence his title of Sheriff-depute. And though Mr Robertson does not in so many words say, he most clearly goes on to imply, that this officer has his exact representative in the Sheriff-depute of the Jurisdiction Act, or, as he is more commonly styled (except by aspiring substitutes), the Sheriff. The reader will be amused to hear that all this ingenious theory of a Sheriff-depute as a representative of the Sheriff is a light-hearted little fiction. As the point is not without interest, we shall give at length the opinion of the Royal Commission of 1818 on the matter, the Report of which Commission was, we believe, written by Sir Islay Campbell himself:

'In the earliest times, of which any authentic records are extant, the Sheriff, or, as he is denominated in these royal grants and other writs which are of Latin style, the Vicecomes, appears as the King's known depute or bailie over a certain district, who was charged with the general execution of his laws, and to whom his precepts were by ordinary course directed.' Gradually the importance of this officer decreased, from various causes, but most of all owing to the number of gifts of regality which the sovereigns were from the earliest times in use to bestow upon their great vassals-in vesting them with a jurisdiction over the baronies so created, often more extensive than that possessed by the Sheriff, who was 'the king's ordinary depute.' This evil, and the wise statesmanship of Duncan Forbes and Lord Hardwicke, led to the Heritable Jurisdiction Act. The nomenclature adopted by that Act is somewhat confusing; but what it really did is easily explained. All jurisdictions belonging to any subject were taken away and vested in the Court of Session, or 'in the Court of the Sheriffs and Stewarts of the shires and counties,' to whom they would have belonged if such jurisdiction had not been created. The Crown still retained the right of appointing a High Sheriff, or Sheriff-principal, though the office was to be no longer heritable, but held during pleasure, or for a year only. This officer is, in modern language, the Lord-Lieutenant. But, says the Report, 'whatever may have been the views of the Legislature as to the proper ministerial or other functions of such an officer in time. coming, it is certain that, by the enactment referred to, the whole judicial powers of the ordinary magistrate for the county are thus expressly reserved and excepted from any grant to be thereafter made of the office of High Sheriff in this part of the kingdom. And these provisions were in strict conformity with the previous

and most ancient state of the law. For by the constitution of the Scottish judicature from the earliest known time, the Vicecomes was the king's principal and immediate officer of justice within the shire; and whatever difficulties may occur in accounting for the ancient title of this officer, with a reference to the title of Comes or Earl, there is no evidence that in Scotland the Sheriff or Vicecomes was ever subject in his judicial capacity to the Earl, or derived his authority from him; or that the latter, whose territorial dignities had no necessary correspondence with the boundaries of the shire, ever possessed an original jurisdiction over these permanent divisions of the kingdom, or was vested with any judicial power, except that which flowed by special grant with the gift of his particular lordship or regality. As to his rank, therefore, and the nature of his jurisdiction generally, the Sheriff, i.e., the officer denominated Sheriff-depute in the Jurisdiction Act, continues in effect to hold the same situation which the Sheriff occupied under the Scottish monarchy. He is now, as the Sheriff was then, an immediate deputy of the king, holding his commission directly from the Crown, and his civil and criminal jurisdiction in the county altogether exclusive of a Principal or High Sheriff, where such officer exists. This explanation is necessary on account of the terms used in this Act, of Sheriff-principal and Sheriff-depute, from which it might naturally be supposed that the one was the deputy of the other, and that the office held by both was one and the same. The fact, however, is not so, as will be evidently seen by comparing sec. 5 with secs. 29 and 30 of the statute. The Sheriff-depute is not the deputy of the High Sheriff, but an entirely independent officer, appointed by the Crown, and performing different functions, which cannot be exercised by the High Sheriff, so that they have truly little or no connection with each other.'

Erskine himself-an author of whom Mr Robertson must, we think, have heard-speaks to the same effect; indeed, he says expressly that the expression Sheriff-depute, in the Jurisdiction Act, was a mistake. Some slight acquaintance with authorities so very accessible as the above, may surely be expected from the mentor of all the Scotch members of Parliament-not to mention such a formidable Telemachus as Mr Stirling-when he writes on 'the History of the Office of Sheriff in Scotland.' But we have perhaps given too much space to a matter rather of historical and antiquarian interest than of direct and immediate importance; especially as Mr