Page images

of the Highland insurrections, that by an Act of Parliament, called the Heritable Jurisdictions Act, which came into force in 1748, all the local jurisdictions, other than those of the high constable and of the baron-baillie and burgh Courts, were swept away; and the Sheriffship or, to speak accurately, the Sheriff-Deputeship, was confined to the appointees of the Crown, who were required to be in future Advocates of three years' standing. The office of Principal or High Sheriff was, at the same time, annexed to the Crown; the appointment, if for a definite period, limited to one year, and the occupant debarred from exercising any judicial, civil, or criminal authority. The term “ High Sheriff” is, so far as I can find, introduced on this occasion for the first and only time into Scotch legal nomenclature; and, perhaps in consequence of the phraseology of this statute, the Lord Lieutenant of a county is sometimes termed (incorrectly, I think, unless it is in his commission) the Sheriff Principal or High Sheriff. But with the scope of this paper that matter has little

As matter of fact there are now only two Sheriffs -the Sheriff-Depute and the Sheriff-Substitute, or, as they are termed in regard to the county of Kirkcudbright, Steward-Depute and Steward-Substitute. • Steward” was the title given of old to the magistrate of Crown lands; and on the forfeiture to the Crown of the extensive lands of the Balliol and Comyn families in this county, a Crown magistrate was appointed over them. To both Sheriff and Sheriff-Substitute the term Sheriff is indifferently applied, alike in Acts of Parliament and in common usage, unless where it is desired to distinguish the one as Appellate Judge from the other as Judge of first instance.

There are also in every county, except at those Sheriff Courts where there is more than one Sheriff-Substitute, one or two honorary Sheriff-Substitutes, who are appointed by the Sheriff, and hold office during his pleasure, but receive


no remuneration. Their commission authorises them to act during the illness or absence of the Sheriff-Substitute; it confers on them all his powers; and it has the effect of making them ex officio Justices of the Peace, though generally they are so already. With the aid of the SheriffClerk they dispose, when necessary, of routine, incidental, and criminal business. But if matter of difficulty arises, as the commission of each Sheriff-Substitute extends over the whole county, the application is either made to some other Sheriff-Substitute of the county, if there is one, or kept till the return or recovery of the regular SheriffSubstitute. If his illness or absence is of any material length an interim Sheriff-Substitute is appointed at his expense.

Officials.—The officials of a Sheriff Court are the Sheriff, Sheriff-Substitutes, Sheriff-Clerk, Procurator Fiscal, Auditor, Procurators, Sheriff Officers, and Bar Officer.

Sheriff.The Sheriff is appointed and paid by the Crown, holds his office ad vitam aut culpam, and must be an Advocate of three years' standing. Originally his remuneration was derived from fees and fines; but there was so manifest an injustice in such a system of remuneration, and especially in that part of it which consisted of a percentage on the amount of the sentence money, that it was put an end to. A Sheriff may have more counties than one within his jurisdiction. In 1746-7, when the Act abolishing the heritable jurisdictions was passed and matters were put on their present footing, there were twenty-seven Sheriffs for the thirty-three counties of Scotland. As, however, the occasion for their services grew less and the facilities of communication increased, it was found expedient to reduce their number. It is now eighteen, and on the occasion of certain vacancies will fall to fifteen. Their remuneration varies from £500 to £2,000 per annum. According to a Parliamentary Return made for the year 1863

there were then twenty-six Sheriffs in Scotland receiving £18,650 among them, or, on the average, £717 each. The sum now divisible among the eighteen Sheriffs amounts to about £15,675, or, on the average £872 to each. As Sheriffs are not only entitled, but expected, to practise at the Bar, and as a few of them hold other appointments, such as professorships in the University of Edinburgh, and memberships of the Boards of Supervision and Lunacy, the Crown has often been enabled to procure at a much lower rate than it otherwise could have done, considering the importance of the duties they discharged, the services of men of position as Sheriffs of counties. Originally the policy of the Legislature was that the Sheriffs should reside in their counties for the administration of justice as much as possible; but as this interfered with their practice in Edinburgh, and as the Sheriff-Substitutes who worked under and for them came by degrees to be selected from men of a higher competency for the post, a change was made, and the Sheriffs, who up till 1838 had to reside at least four months in the year within their counties, are now not expected to reside in them at all for business purposes. They are understood to be in attendance on the Supreme Court, and as regards fourteen of them the obligation to be so is statutory. Of the remaining four, the Sheriffs of Edinburgh and Lanarkshire are debarred from practice, and bound to reside within six miles of their Courts, while the relaxation of the statutory obligation is personal to the other two Sheriffs, and does not extend to their successors.

Sheriff-Substitute.—The Sheriff-Substitute is appointed and paid by the Crown, holds his office ad vitam aut culpam, and must be an Advocate, or a Procurator, of five years' standing. Originally, as I have said, he was appointed by the Sheriff, and did not require to be a lawyer. At first his only remuneration was that derived, like the Sheriff's, from fees and fines. But, as might be expected, it came to be

the custom that the Sheriff should pay his Substitute ; and more than two centuries ago the Court of Session commented on "the indecency" of a Sheriff omitting to do so. As the office rose in utility and importance the necessity for its due remuneration increased, and in 1787 the Crown undertook the burden of its payment; but it was not till 1825 that it was confined to lawyers. The functions discharged by the Sheriff-Substitute of last century consisted chiefly of the disposal of criminal cases, of summary civil work, and of the routine part of the more important civil work. The occupants of the office in this way had little need for a knowledge of law, and owed their appointments to the possession of common sense and business intelligence. They were bankers, factors, retired officers of the army and navy, and the like. Their salaries seldom exceeded £100 a-year; but, from their being able to follow other avocations also, they were frequently able to put together an amount of remuneration higher than that paid till recently to some of their successors. They held their office during the life of their patron and at his pleasure.

Such was the early condition of the office of SheriffSubstitute; but in the beginning of the present century the necessity was recognised of securing for the position men properly qualified to fill it, and of preserving their independence against the caprice of their patrons. It was accordingly enacted in 1825 that a Sheriff-Substitute must be an Advocate, or a Procurator, of three years' standing; and in 1877 the qualification was raised to five years, so that as matter of law an Advocate is eligible for a Sheriffship two years before he is eligible for a Sheriff-Substituteship. In 1838 it was enacted that a Sheriff-Substitute could neither be appointed nor removed without the written approval of the Lord President of the Court of Session and the Lord Justice Clerk; the tenure of his office was made ad vitam aut culpam; and a retiring allowance in the case of permanent

disability after certain periods of service was provided. The same statute also codified the rules of process, but so rapid was the growth of the local Courts in popularity and importance, that in 1853, and again in 1876, still greater facilities and improvements had to be provided; and in 1877 a vast increase was made in regard to their jurisdiction, and the patronage of the office was transferred to the Crown.

There are forty-four Sheriff Courts in Scotland, at which Sheriffs-Substitute preside, and eight more places at which they hold Ordinary Courts, and sixty-three more at which they hold Small Debt Courts. In Glasgow there are five Sheriffs-Substitute, and in Edinburgh and Aberdeen two. There are thus fifty Sheriffs-Substitute in Scotland ; their number used to be greater; it might, perhaps, without disadvantage be much less. In 1871 the population of Scotland was 3,360,018; that of England was 22,712,266, and it has now only fifty-seven County Court Judges. In several of the Scotch local Courts a few weeks would suffice for the disposal of all the work of the year if it could be brought together, and it might probably easily be overtaken by occasional attendance from other Courts, or by a better distribution of the districts attached to the local Courts. It is questionable whether the legislation is not somewhat antiquated which employs the services of a resident Judge, not for the district adjacent to his Court, but for the county, or division of the county, that includes the town at which that Court is situated. In several instances the county town is situated on the verge of the shire. In one case, indeed, it is incumbent on a Sheriff-Substitute to travel thirty miles, and, as the railway terminus is in an adjacent county, to pass the door of another SheriffSubstitute's Court, in order to hold his own Small Debt Court a quarter of a mile nearer home. It might be suggested that there is probably no such judicial rookery

« PreviousContinue »