judgment) leave is given by the court, or the judges have differed in opinion. When an interlocutory judgment is appealed from, either of these reasons must be certified by two counsel who conducted the case in the Court of Session.2 When final judgment, however, has been pronounced, the appeal may be directed against all or any preceding interlocutors in the case 3 an opinion that there is good ground for appeal must be certified by two of the counsel, who conducted the case, as above. 4

The time within which an appeal must be entered is two years from the day of signing the last judgment complained of, or fourteen days after the first day of the session of Parliament next following the two years." Persons appealing must enter recognizances to the extent of £400 to settle the costs incurred. When an appeal is alleged to be incompetent or irregular, the preliminary question of its admissibility is referred to an Appeal Committee, whose opinion is always followed by the house. Where the House of Lords finds that its judgment will depend on the settlement of some incidental point not clearly enough brought forward in the pleadings before the Court of Session, it frequently remits the case to that court, with instructions. In other cases, having declared its judgment speculatively on the point of law, it remits to the Court of Session the application of it to the particular case.8

The House of Lords has an original jurisdiction in questions regarding the dignity of a peer of the realm, or regarding claims on peerages, separated from patrimonial questions. Such a question may be brought before the House, either in a disputed election of one of the Scottish Peers, or by a claim on any particular peerage. It seems to be pretty clear that a simple question of a right of peerage cannot be tried in the Court of Session. But that court is competent to try genealogical and other questions, the result of which may affect a title of Peerage, and it is not easy to draw a precise line at the point where the absolute jurisdiction of the House of Lords is bounded.9

1 48 Geo. III. c. 151, § 15.-2 Beveridge's Forms of Process, 636. Form of Procedure, 21.—3 48 Geo. III. c. 151, § 15.- Form, &c. ut supra.— 56 Geo. IV. c. 120, § 25.-6 Beveridge's Forms of Process, 643.-7 Form of Procedure, &c. 56. Palmer's Practice on Appeals, 44.-8 Form, &c., 64. Palmer, 69.-9 Wight on Elections, 125. Campbell v. Crawford, 25th July 1824.

Origin and Progress.-THE High Court of Justiciary was constituted according to its present form in the year 1672.1 Its president is the Lord Justice-general, an official whose jurisdiction was moulded from the authority in crimes which remained with the Justiciar after the erection of the College of Justice. This office was, until lately re-constituted, the last instance of an important judicial situation held by an unprofessional person, and it became inconsistent with the safe administration of justice that the Lord Justice-general should sit in judgment. The last instance in which he is known to have done so during the former constitution of the office, was at the trial of James Stewart at Inverary in 1752.3 The office is now conjoined with that of the Lord President of the Court of Session.4 The Lord Justice Clerk is deputy-president of the Court of Justiciary. Five Lords of Session are appointed to act as Lords Commissioners of Justiciary, and the crown may by commission appoint any other of the judges to act as a commissioner of justiciary on circuit, or in the High Court in questions certified from a circuit on which he has acted.5

Jurisdiction. This court has jurisdiction in all offences against the public, except high treason, which is tried, according to the English manner, by a special Commission of Oyer and Terminer, in which three Lords of Justiciary must be included, one of whom must always be of the quorum. Since the abolition of the High Court of Admiralty in 1830 (see above, Chap. I. Sect. 1), the Court of Justiciary has become the tribunal for the more important class of maritime offences. No appeal lies from a decision of the Court of Justiciary. Appeals have been often entered before the House of Lords; but that Court declined the jurisdiction, except in one instance, where the decision on the crime depended on a question of civil right, which was at the same time under the consideration of the House of Lords by appeal from the Court of Session. The Court of Justiciary

1672, c. 16.- H. C. ii. 18.-3 Arnot's Criminal Trials, 192.- 11 Geo. IV. & 1 Wm. IV. c. 69, § 18.-5 2 & 3 Vict. c. 36, § 2.-67 Anne, c. 21, § 1. Proc. of the Church v. Magistrates of Elgin, 9th February 1713; and the King v. Murdison, January and March 1773. Maclaurin's Cr. Cases, 55, 557.

It has the power of

cannot review its own decisions. reviewing the decisions of all inferior criminal courts. Excepting in those crimes which are punishable with death, or to which statute has attached a particular punishment, the power of the Justiciary Court is arbitrary, in applying such punishment, from fine to transportation, as may seem fitting.

The Court have frequently asserted that they possess the power of punishing any new crime, or anything which may be determined to be a crime, though not previously known as such, without the aid of statute. They are said likewise to possess "the exclusive power of providing a remedy for all extraordinary or unforeseen occurrences in the course of criminal business, whether before themselves or any inferior court." The Court of Justiciary sits at Edinburgh during the time of session, on such days as are found convenient, for the trial of cases from all parts of the country.

1

Peers.-British peers, and Scottish peers whether elected to sit in Parliament or not, are tried before the peers, presided over by the lord high steward, in all " treasons, misprisions of treason, murders, and other crimes which infer a capital punishment by the law of Scotland, and all felonies and other crimes for which, if committed in England, a peer of the United Kingdom would be tried by his peers.' For these offences (treason excepted) committed in Scotland, peers are, after the finding of a bill by a grand jury, to be tried by the court of the Lord High Steward in the Scottish form, and by the Scottish rules of evidence, any of the judges of the Court of Session, who may be summoned for the purpose, sitting with the English judges to give their opinion on matters of law;3 for minor offences peers may be tried before the Court of Justiciary.

Where Jurisdiction excluded.-In offences against the mutiny acts, or against the discipline of the church, the Court of Justiciary has no jurisdiction, in the same manner that it has no authority to punish those infringements of the legally adopted and enforceable orders and rules of particular societies, when these infringements do not interfere with the public law; but when, in the act by which a breach of regulation is committed, a public crime is involved, as, where a soldier, in committing the military offence of insubordination, stabs his officer, then the Justiciary Court can try the crime, to the superseding of any trial before the court competent to punish the breach of regulation. When the court finds it

1 Alison's Practice, 23.-26 Geo. IV. c. 66, § 1.—3 Ibid. §§ 6, 14.

necessary to protect a witness from trial on the matters concerning which he is to be examined, that he may the more readily give his evidence, the protection will extend to any proceedings which may be instituted against him by a courtmartial or any other authority for breach of duty. Where any other court is appointed by act of Parliament to judge a particular crime, the Court of Justiciary will be understood to have a cumulative jurisdiction with it, if not specially excluded.

Circuit Courts. In spring and autumn the court deputes two judges to each of three several districts, who hold Circuit Courts of Justiciary. The southern circuit is held at Jedburgh, Ayr, and Dumfries; the western at Glasgow, Inverary, and Stirling; and the northern at Perth, Aberdeen, and Inverness. An additional circuit court is held at Glasgow during the Christmas recess. The circuit court is empowered to hear appeals from the decisions of inferior judges in criminal cases, where the sentence does not infer death or demembration, a needless exception, as such punishments are not now inflicted by inferior courts.2 This appeal is seldom known in practice. In civil questions, the judges on circuit may hear appeals, where the matter at issue does not exceed in value £25.3 No appeal lies from the circuit court to the High Court of Justiciary; but a circuit judge, if he think fit, may certify, for the consideration of the High Court, any question as to the relevancy of the indictment (see Index, Libel), or any doubtful matter connected with the process before it goes to the jury, or any doubt which may occur as to the proper sentence or otherwise after the verdict of the jury has been returned.

CHAPTER IV.

COURT OF EXCHEQUER.

Origin and Progress of Jurisdiction.-THE older Scottish law books, and many early acts of Parliament, make provision for all the collectors of the revenue, and other debtors

1 Hume on Crimes, ii. 34, 367.-220 Geo. II. c. 43, § 34.-3 54 Geo. III. c. 67, § 5.

of the crown, accounting in the "chequer" for all moneys received by them. As these sums chiefly arose from casualties and other feudal taxes collected by the sheriffs, the lords. of the exchequer became the king's representatives in acknowledging the titles of his vassals, as the counterpart of their obligation to pay.' The Exchequer was the instrument through which the treasury was supplied, and the Lord Treasurer and his deputies were members of the Court of Commission of Exchequer.2 As commerce increased, and the revenue from that source grew considerable, the exchequer gradually became a court for enforcing the collection of the taxes on commodities.

By the nineteenth article of the treaty of Union the old exchequer was preserved until a new court should be constituted on the model of that of England,-an object which was accomplished in 1707.3 Besides the officers necessary for superintending the feudal property of the crown in Scotland, the several offices then existing in the Exchequer Court in England were adapted to Scotland. The court received full jurisdiction on all questions respecting the revenue and property of the crown in Scotland, and was authorized to proceed according to the forms of the Court of Exchequer in England, with a jury of twelve men having heritable property of the yearly value of £5, or worth £200 in moveables;5 but there was one exception to the adaptation of the powers of the English exchequer, viz. that heritable property should not be attached in Scotland for debts to the crown otherwise than by the law of Scotland. Judgments in the Court of Exchequer are appealed to the House of Lords by the English form of Writ of error.7

The authority of the exchequer was thus divided into three parts. First, It was a court of justice for deciding on cases respecting the collection of the revenue. Second, It acted as the king's representative in revising and passing the titles of his feudal vassals; and, Third, It acted as a board for controlling, auditing, and enrolling the accounts of the

revenue.

Alterations in the Structure of the Court.-The last branch of its duties, in as far as respects the controlling and auditing of the customs and excise accounts, was in 1832 transferred to England, and the accounts have thenceforward been

1 Act 1540, c. 96. Clerk and Scrope's Historical View of the Court of Exchequer, 98, et seq. Sixth Report of Commissioners on the Courts of Scotland, 1819, 5.—3 6 Anne, c. 26.4 Ibid. §§ 2, 3.—5 Ibid. § 6.—6 Ibid. § 8.-7 Ibid. § 12.