At the Restoration, it was judged necessary that the commissary court should be reinstated in their ancient rights and forms, as during the usurpation of Oliver Cromwell, they had suffered very considerable innovation. In consequence, they received a new set of instructions by his majesty king Charles II., on the 21st January 1666, as follows:

1. You are to decide in causes concerning benefices, teinds, scandal, confirmation of testaments, all causes testamentary, and all causes wherein oath is required, if the same exceed not forty pounds, and in all other causes where parties submit themselves to your jurisdiction. 2. In cases of declarator of nullity of marriages, divorces, bastardy, or adherence, where the same has any connexion with the lawfulness of marriage, or adultery; all which belong to the commissaries of Edinburgh privative; but when the adherence is pursued on account of malicious desertion only, and where there is no question of the nullity or lawfulness of the marriage, the inferior commissaries may decide. 3. That in processes for res leves not exceeding forty pounds, there be two diets of citation: and the defender's oath, if instantly offered, shall be taken. If the defender desire to see, a short time shall be given. If the claim be referred to his oath, and he appear not to be warned pro tertio, and cited personally, to be holden as confest. If the claim be small, and neither referred to oath, nor instantly verified, he is to get a short time to answer verbo; and if convened as representing any other person, as executor, intromittor, &c., you are to assign a term to qualify, and give in his defences in writing. 4. The same methods must be observed in arduis, and that the dispute be in writing, as the difficulty of the case requires. 5. The clerk shall have one book for all the ordinary diets and acts, and another for acts of litis-contestation, wherein shall be summarily set down the substance of the libels, allegeances, and litis-contestations thereon: which record shall be sufficient, without necessity of either extract or register, or extracting an act of litis-contestation ad longum, except the parties desire a long extract of the same. 6. That your clerks keep a register of all decreets, and those within forty pounds be curtly recorded. 7. After litis-contestation, the party cannot pass from his compearance, but all such acts and decreets shall be parte comparente. 8. That your summons be execute by a sufficient man before two witnesses, and questioning the same shall not stop the prin cipal cause and if any of your executions be found false and unproven, the contrivers and abettors thereof, depending on your court, shall be declared incapable of trust thereafter, and farther punished according to their accession thereto. 9. You may summon witnesses to compear, under such pecunial fines, as you may think fit; and, on contempt, your officers are to uplift those fines, and poind therefor, the half thereof to your own use, and the other to the poor; and to fine them in greater sums on the second summons, or to raise letters of horning, as you think fit: and that you be still present at examining of witnesses, so your procurators shall not persist to make frivolous allegeances, under pain of deprivation. 11. At advising, you are not to consult or suffer any procurator to be present. 12. You shall decern liberal expenses, and ordain execution therefor, as for the principal sum. 13. You may direct your precepts to your own officers, messengers, or any other officer in your bounds: and on their deforcement, you may judge thereon, and inflict the ordinary punishment of deforcers, excepting escheat, which must be sued for before the judge competent. 14. If temporal judges cognosce in causes belonging to you, you may direct precepts inhibiting them. 15. You shall give forth inhibition of great and small teinds, on sight of the parties' title allenarly. 16. If reduction be intended before the commissaries of Edinburgh, of any of your decreets, you may not the less cause your sentence to be executed: and if not pursued within year and day, the party being of age and in the kingdom, your decreet stands unreduceable. 17. You and your clerk must live within the commissariat, under pain of deprivation, except, on grave occasions, you have liberty from the bishop. 18. You shall have a register of all the testaments you confirm, and shall yearly give authentic doubles thereof to the bishop. 19. The clerk at compting on the first day of May and November yearly, shall depone to the bishop, that all the testaments confirmed are booked in the books then produced. 20. You shall give forth no precepts in matters above forty pounds, till the

decreet be extracted. 21. On your being sick or declined, the bishop is to depute another in your room. 22. You must find caution to compear the first day of May and November yearly, and compt with the bishop or his quote-master for the quote and contribution money to the commissaries of Edinburgh, under pain of five hundred pounds toties quoties. 23. If your clerk confirm testaments which are not booked and compted for to the bishop, your office vaiks ipso facto. 24. Your bishop's license must be had to admit your procurators, who with yourselves, are to wear gowns: but you may create your own officers. 25. That of the profits of summonses, sentences, and other writs, with the seal and signet, two parts to be the commissaries', and the third the clerk's, he furnishing paper, wax, ink, and chamber.

All matrimonial cases, such as actions of declarator of marriage, legitimacy, nearness of kin, adherence, divorce, bastardy, &c., belong to the private jurisdiction of the commissaries. In questions of bastardy, their jurisdiction is limited to the life of the alleged bastard. An action for having it declared that one deceased was a bastard, and that his estate is fallen to the king, like all other declarators of escheat, must be pursued before the court of session. All testamentary cases, making up titles to personal estates of defuncts by confirmation, questions concerning executory, and division thereof, constitutions of the debts of deceased persons, separation a mensa et thoro, &c., belong to the diocesan jurisdiction. In causes having only a remote resemblance to consistorial causes, the jurisdiction of the commissaries is cumulative with other judges ordinary: such as in actions of benefices, tithes or teinds, applications for inspecting or sealing up the writings of persons deceased: or actions brought by their creditors or legatees against the executors. But when a privileged creditor brings an action purely to constitute his debt, without a conclusion for payment, such an action is deemed purely consistorial, and must be brought before the commissaries prima instantia. Questions of scandal, or verbal injuries, have been always looked upon as consistorial; and, so, proper to the cognizance of the commissaries and in all instructions given from time to time by the crown to these judges, actions of scandal are also mentioned as falling under their jurisdiction.

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For many years past, the commissaries of Edinburgh have been members of the faculty of advocates, and appointed by the crown ad vitam aut culpam, and the office has always been esteemed honourable. The crown always appoints the principal commissary clerk ad vitam aut culpam, that is for life or good behaviour. The principal clerk appoints his deputy clerk, who is always appointed during his own life, having no reference to the life of his principal. He is appointed in his commissior extractor of court, with powers to name a substitute under him. Both principal and depute clerks sign summonses, testaments- dative, extracts, and other deeds of court. The crown also appoints the fiscal of court ad vitam aut culpam, whose office is to give concurrence in actions where the same is deemed necessary. The faculty of advocates, and the society of

solicitors, are the practitioners of court. The commissaries appoint their own macer. His duty is to execute edicts and summonses of court; call the rolls in court after the clerks; take charge of the gowns; attend the office; and execute the commands of the commissaries' clerks, and other members of court. The officers of court reside, some within the city, and others throughout the commissariat; they are never admitted but upon petition, and must find caution (that is, security) for their faithful administration.

The court has two seals or signets, one larger and the other smaller, on which are engraven the crown and thistle, with the motto, nemo me impune lacesset; and in the circumscription, sig. officii commissariatus Edinburgens. All consistorial summonses, acts, and diligences therein, and testaments-dative, &c., are signeted with the large seal, and the repositories of dying and deceased persons are sealed up with the smaller

one.

The actions competent to this court may be divided into three classes: 1. Consistorial causes privative to the commissaries, such as declarators of marriage, nullity of marriage, adherence, divorce, desertion, bastardy, separation, and aliment, and the confirmation of testaments. 2. Of actions that have a resemblance to consistorial causes, such as scandal and defamation, actions against the executor confirmed, cognition, &c.; and, 3. Of actions wherein the commissaries have only a cumulative jurisdiction.

Though the decisions of the commissaries were always subject to review in the court of session, still considering the vast importance and delicacy of consistorial questions, it was long thought satisfactory that the accurate and deliberate preparation of such cases was obtained at a moderate expense, in a court not distracted by the multifarious business of the common law courts, and whose judges consequently became peculiarly qualified for their important trust. Of late years, however, it has been thought expedient to transfer the consistorial cases to other courts. In the reign of George IV.* the first step towards this design was by suppressing the district commissaries, transferring their jurisdiction to the sheriff's of counties, and permitting no appeal from them unless directly to the court of session. In the present reign,† the jurisdiction which the commissaries of Edinburgh possessed within their own peculiar district, has now been restricted to the county of Edinburgh; and on the death of the present judges, this restricted portion is to be transferred to the sheriff of Edinburgh while that which extended to Linlithgow and Haddington, has been already transferred to the sheriffs of these counties respectively. In

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* 4 Geo. IV., c. 97.

t1 Wm. IV., c 69.

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the mean time, the commissary court at Edinburgh is the commune forum for the confirmation of testaments of persons dying furth of Scotland; and at its final dissolution, at the death of the present judges, the sheriff court of Edinburgh becomes the common court. No part of the provincial duty was difficult, or very unlike the ordinary business of a sheriff's court; but whether the transference of the privative jurisdiction which the commissaries exercised over Scotland, in the great consistorial questions, to the court of session, be any improvement, must be left to the test of experience.* Till the passing of the recent statute, the court of session

* The transference of the privative jurisdiction of the commissaries of Edinburgh to the supreme court, being attended with some disadvantages, Mr Lothian has the following remarks on their removal:

1. That to secure one of the advantages which was enjoyed in the consistorial court where there were no vacations, the powers of the court of session, when not sitting, should in all consistorial questions, be vested in the lord ordinary. We do not say this, merely because it is required for the peace of mind of the litigant, whose rank and fortune are probably dependant on the issue of the suit, but because very serious and irreparable injury may result from the death of either party during the vacations of that court. If the pursuer of a divorce die before sentence, the guilty party has saved every legal or conventional right. If the defender dies before sentence, the claims of the next of kin, notwithstanding of the adultery, are good against the innocent pursuer. It is sufficient, in both of these events, that there was no divorce. It cannot be pronounced after the death of either party.

2. The court of session should not be limited in the power of granting commissions for taking proofs to the commissaries alone, while they remain in office. It was usual for the commissaries to grant commissions to qualified individuals resident in remote districts or abroad, where the poverty of the party, indisposition of witnesses, or any sufficient cause, called for it. When the proof is not sent to a jury, it is now, however, enacted, "that the remit shall be made to the commissary court of Edinburgh, which court, or any judge thereof, shall take such proof."

3. It is declared, that the jurisdiction of the commissaries, beyond that possessed by sheriffs being commissaries in the different counties, has entirely ceased, " save and except such as may regard the granting of confirmation of testaments of persons dying furth of Scotland." But it is equally necessary to grant to them, or to some other court in Scotland, jurisdiction in regard to testaments of persons happening not to "die furth of Scotland," and yet not having any fired domicile within it; for example, travelling merchants, soldiers, or foreigners in Scotland on a visit. In regard of these very ordinary cases, by an error in the act, the commune forum is abolished.

4. In regard to the preliminary action of adherence to found a divorce, the commissaries of Edinburgh, till their offices become vacant, and after that, the court of the sheriff of Edinburgh, should be declared the commune forum for citing parties, who, in violation of their conjugal duties, have absconded and gone abroad. As the action of adherence is not made competent in the court of session, and the commune forum, as to this particular, has not been reserved to the commissaries, we do not see, till the act is amended, how a divorce en the head of wilful desertion, where the party has fled out of Scotland, can at present be obtained. This certainly was not intended; and no one can reflect on the circumstances which generally give rise to the action of adherence, without wishing that this error may be speedily corrected.

5. The act seems to have put an end to a form of process, by which a man, doubtful of the legal import of his own conduct towards a woman, was enabled at once to bring it under the judgment of the commissaries. We allude to the action of declarator of freedom and putting to silence, which was often the only mode left to check reports industriously circulated by a woman and her friends, in the hope of ultimately founding a claim of habit and repute. This action is not yet made competent to the court of session, while the clause in the statute which declares, "that the commissary court of Edinburgh shall possess and exercise the same and no other jurisdiction in the sheriffdom of Edinburgh, than that possessed and exercised by sheriffs, being commissaries, in other sheriffdoms in Scotland," which plainly excludes it from the court of the commissaries of Edinburgh, it not being competent in any sheriffdom. 6. It is declared by the statute, that actions of aliment are competent to the sheriff courts. If interim aliment be meant, it was unnecessary to insert any such provision in the statute, because the judge ordinary always had the power of adjudging such aliment. On the other hand, if permanent aliment be meant, it is obvious the sheriffs can only award it on finding

It only judged of

had no jurisdiction, prima instantia, in such causes. them by advocation, and remitted with instructions. But now a clause enacts, "that all actions of declarator of marriage, and of nullity of marriage, and all actions of declarater of legitimacy and of bastardy, and all actions of divorce, and all actions of separation, a mensa et thoro, shall be competent to be brought and insisted on only before the court of session." The same act declares actions for aliment to be competent to the sheriff's court.* As this act does not include the process of adherence necessary to found the action of divorce, it remains with the commissaries of Edinburgh, against parties domiciled within their restricted territory, until their offices become vacant; after which it passes to the sheriff of Edinburgh. The sheriffs of counties are now competent to try actions of adherence against parties resident within their territory.†

THE HIGH COURT OF ADMIRALTY.-The lord high admiral of Scotland had anciently very extensive powers and jurisdiction, both in a judicative and a political capacity, and which were exercised by a person designed the judge of the high court of admiralty. He was the king's lieutenant and justice-general upon the high seas, and the coast and kingdom: in this court, all treaties of commerce with foreign countries were recorded; all embargoes, in time of war, were laid on by its authority; and all letters of marque and reprisal were issued under its seal. It had likewise a radical privative jurisdiction in all maritime and mercantile affairs, both civil and criminal. Some doubts, however, having arisen, with respect to the jurisdiction of this court, its limits and extent were at length fixed and ascertained by the following statute :—†

that either marriage or good ground for separation has been proved: but these questions are, by the same statute, declared to be exclusively competent in the court of session, thus leaving the powers of the judges ordinary in alimentary questions exactly where they were: while a woman in the lower ranks, seeking a separation and separate aliment on the ground of maltreatment, has lost the benefit of the commissary court.

7. It is a grave question too, whether, since the law of Scotland holds marriage to be contracted by express or constructive consent, it be just to deprive the poorer classes of the means which they have hitherto enjoyed, of judicially establishing that such consent has been interchanged. It would be better to abolish the law altogether, under the proffered protection of which, a woman may be induced to surrender herself to a consensual contract, than to put that protection beyond her reach by interposing a tedious and expensive lawsuit But this is an evil which applies to all the cases now transferred to the court of session; and will be felt where the policy of rendering justice accessible to the poor is indisputable: for example, in the case of a poor woman suing for declarator of marriage celebrated in the face of the church.

The whole of these errors might have been avoided, and the full benefit of the statute attained, namely, the prevention of reiterated appeals, simply by adopting the suggestion of the parliamentary commissioners in their third report for 1818, which was to allow only one appeal, and that directly from the commissary court to the inner house of either division of the court of session, passing over the bill chamber and outer house altogether.§