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AND SOLD BY ALL THE BOOKSELIERS IN THE UNITED KINGDOM.

1816.

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73

ENCYCLOPÆDIA PERTHENSIS.

L A W.

1.

PART III.

which, without being expressly enacted by ftatute,

derives its force from the tacit consent of king THE LAW OF SCOTLAND.

and people; which consent is presumed from the

ancient custom of the community.' Cufom, as it GENERAL OBSERVATIONS.

is equally founded in the will of the lawgiver with The former countries, confids partly of ftaHE MUNICIPAL LAW of Scotland, as of written law, has therefore the same effects: Hence,

as one statute may be explained or repealed by antutable or written law, which has the express au- other, fo a statute may be explained by the unithority of the legisative power; partly of custom- form practice of the community, and even go into ary, or unwritten law, which derives force from disuse by a pofterior contrary custom. presumed or tacit confent.

7. An uniform train of the judgments or deci. 2. Under our ftatutable or written law is com- fions of the court of session is commonly considerprehended, 1. Our acts of parliament; not only ed as part of our customary law, because such unithose which were made in the reign of James I. formity establishes what is the custom in each para of Scotland, and from thence down to our union ticular case. with England in 1907, but such of the British Ita- 8 The SCOTS Acts of parliament were, by our tutes enacted since the union as concern this part most ancient cuftom, proclaimed in all the diffeof the united kingdom.

rent fhires, boroughs, and baron-courts, of the 3. A collection of law books under the title of kingdom. But after our statutes came to be printREGIAM MAJESTATem was published by Sir John ed, that custom was gradually neglected; and at Skene, at the commencement of the 16th century. laft, the publication of our laws, at the marketIt confifts of the Regiam Majeftatem, now gene- cross of Edinburgh, was declared sufficient; and rally deemed to be a mere transcript from a work they became obligatory 40 days thereafter. Briof Glanville, an English lawyer, called Regian Po- tifh statutes are deemed fufficiently notified, with. teftatem, interlarded with a few of the laws and out formal promulgation; though, for the inforparticular customs of this country, the Borough mation of the lieges in general, copies of every Laws, the laws of K. Malcolm, &c. Though we public statute are now forwarded to each diftrict are inclined to think these books unworthy

to be of every county throughout the kingdom, at the ranked as part of the ftatute law of this country, public expense. After a law is published, no preyet as their authenticity was much agitated by the tence of ignorance can excuse the breach of it. legal antiquarians

of the last century, we may, 9. As laws are given for the rule of our conduct, under the article Regiam MAJESTATEM, give a they can regulate future cases only; for paft acThort abftract of the dispute.

tions being out of our power, can admit of no, 4. Our written law also comprehends, 3. The rule. New laws can therefore have no retrospect. acts of federunt, which are ordinances for regu. Io. By the rules of interpreting statute law res lating the forms of proceeding before the court of ceived in Scotland, an argument may be used session in the adminiftration of justice, made by from the title to the act itself;-a rubro ad nja the judges, who have a delegated power from the grum; at least, where the rubric has been either legiNature for that purpose.

originally framed, or afterwards adopted, by the s. The civil, or Roman and canon laws, though legislature. they are not perhaps to be deemed proper parts 11. But the rules for the interpretation of laws of our written law, have undoubtedly had the in Scotland being, in general, nearly the came with greateft influence in Scotland. The Roman law those observed for the interpretation and construcHill continues to have great authority in all cases tion of the statute laws in England, it is unneces. where it is not derogated from by any statute or fary to repeat them here. See Part II. Sect. V. cuftom, aod where the genius of our law suffers 12. The objects of the laws of Scotland, accord. os to apply it.

ing to Mr Erskine in his Institute, are, Persons, 6. Our unwritten, or customary law, is that Tbing, and Afione. VOL. XIII, Part I.

A

CHAP

CHAP. I.

travelling merchant, a personal citation againft Of PERSONS.

him within the territory is sufficient to found the

judge's jurifdicion over him, even in civil quesAMONG perfons, judges, who are invested with tions. As the defender is not obliged to appear jurisdiction, deserve the first confideration. before a court to wbich he is not subject, the Sect. I. Of JURISDICTION and JUDGES in

pursuer must follow the defender's domicile.

9. It is founded, 2. Ratione rei ftæ, if the fubGENERAL.

ject in question lie within the territory. If that 1. JURISDICTION is a power conferred upon a fubject be immoveable, the judge, whofe jurisdic. judge or magiftrate, to take cognisance of, and de- tion is founded in this way, is the sole judge comcide causes according to law, and to carry his fen- petent, excluding the jådge of the domicile. tences into execution. The tract of ground, or 10. Where one, who has not his domicile with. district, within which a judge has the right of ju- in the territory, is to be sued before an inferior rifdi&ion, is called his territory : and every act of court, ratione rei fita, the court of seffion must be jurisdiction exercised by a judge without his'terri- applied to, whose jurisdiction is universal, and tory, either by pronouncing sentence, or carrying who, of course, grant letters of supplement to it into execution, is null.

cite the defender to appear before the inferior 2. The supreme power, which has the right of judge. Where the party to be sued refides in anenacting laws, naturally has the right of erecting other kingdom, and has an estate in this, the court courts, and appointing judges, who may apply of feflion is the only proper court, as the comthose laws to particular cases: but, in Scotland, mune forum to all persons residing abroad ; and this right has been al intrusted with the the defender, if his eftate be heritable, is conficrown as having the executive power of the state, dered as lawfully summoned to that court, by a

3. Jurisdi&tion is either supreme, inferior, or citation at the market cross of Edinburgh, and mixed. That jurisdition is supreme, from which pier and thore of Leith : but where a stranger, not there lies no appeal to a higher court. Inferior à native of Scotland, has only a moveable estate courts are those whose sentences are subject to the in this kingdom, he is deemed to be so little fubreview of the fupreme courts, and whole jurisdic. ject to the jurisdiction of our courts, that action tion is confined to a particular territory. Mixed cannot be brought against him till his effects be jurisdi&ion participates of the nature both of the first attached by an arreftment jurifdi&tionis funsupreme and inferior: Thus the judge of the high dandæ caufa ; which is laid on by a warrant issuing court of admiralty, and the commissaries of Edin- from the supreme courts of feffion, or admiralty, burgh, have an universal jurisdiction over Scot- or from that within whose territory the subject is land, and they can review the decrees of inferior situated, at the suit of the creditor. admirals and commissaries; but as their own de- 11. A judge may, in special causes, arrest or fecrees are subject to the review of the courts of care the persons of such as bave neither domicile fesfion or juriciary, they are, in that respect, in- nor estate within his territory, even for civil debts. ferior courts.

Thus, on the border between Scotland and Eng4. Jurisdiction is either civil or criminal : By land, warrants are granted of course by the judge the first, questions of private right are decided; ordinary of either fide, against those who have by the 2d, crimes are punished. But, in all juris- their domicile upon the opposite side, for arreftdictions, though merely civil, there is a power in- ing their persons, till they give caution judicio fifti : herent in the judge, to punish, either corporally, and even the persons of citizens or natives may be or by a pecuniary fine, those who offend during so secured, where there is just reason to suspect the proceedings of the court, or who fhall after that they are in meditatione fuga, i.e. that they wards obstruct the execution of the sentence. intend suddenly to withdraw from the kingdom;

s. Jurisdiction is either privative or cumulative. upon which suspicion, the creditor who applies Private jurisdiction is that which belongs only for the warrant must make oath. An inhabitant to one court to the exclusion of all others. Choof a borough royal, who has furnished one who mulative, otherwise called concurrent, is that which lives without the borough in meat, clothes, or may be exercised by any one of two or more other merchandise, and who has no fecurity for it courts in the same cause.

but his own account book, may arreft his debtor, 6. All heritable jurisdictions, except thofe of ad- till he give security judicio fifti. miralty and a small pittance reserved to barons, 12. A judge may be declined, i.e. his jurisdicare either abolished, or annexed to the crown. tion disowned judicially, 1. Ratione causa, from See JURISDICTION, S III.

his incompetency to the special cause brought be 7. Jurisdiction is either proper or delegated. fore him. 2. Ratione fufpe&ti judicis ; where either Proper jurisdiction is that which belongs to a the judge himfelf, or his near kinfman, has an injudge or magistrate himself, in virtue of his office. terest in the suit. No judge can vote in the cause Delegatet is that which is communicated by the of his father, brother, or son, either by consangui. judge to another called a depute, or fubftitute. nity or affinity ; nor in the cause of his uncle or

8. Civil jurisdiction is founded, 1. Ratione domi- nephew by confanguinity. 3. Ratione privilegü ; cili, if the defender has his domicile within the where the party is by privilege exempted from judge's territory. A domicile is the dwelling their jurifdict on. place where a person lives with an intention to 13. Prorogated jurisdiction, jurifdiétio in conrenain ; and custom has fixed it as a rule, that sentientes, is that which is, by the content of parresidence for 40 days founds jurisdiction. If one ties, conferred upon a judge who, without such has no fixed dwelling place, c.g. a soldier, or a consent, would be incompetent. Where a judge

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