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B04980 A representation to the High Court of Parliament, of some of the most palpable grievances in the Colledge of Justice, (both as to its constitution and administration) and several members thereof. 1689 (1689) Wing R1109B; ESTC R182675 9,853 13

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a person to be promoted to the foresaid Station and by this the Bench will as well have a Natural as a Legal Supperiotity to the Barr For it cannot but be thought that Mens Abilities are much misplaced when the Reasons of these at the Barr are too strong for these who are to Judge of them The Discovery whereof will force that Respect to be transferred to the Barr which ought to be payed to the Bench and make Clients murmure when that which is proponed for them is not discust with Reasons suitable to these alledged in their Favours And tho at first Fifteen was a sufficient number for all the matters that then did occur yet now seeing there is at least ten Causes for one and Lawyers are arived to that pitch of Debating both with greater Accuratness and length Nor was at the Infancie of the said Colledge that it may seem rational that the number of the Lords should be augmented that none of them shold be Members of any other Court thereby to divert their Attendance And if any thing occur in other Courts as in Council or Exchequer that requires the opinion of Lawyers which was the first pretences for putting some of them there that the opinion of the whole Lords be taken thereanent and not to be determined by any particular one that may chance to sit there 3tio These admitted to the said Office being only Lawyers of known Ability and Integrity if it be not fit that they preside per vices at the least that nine of them which by our Law is declared to be the Quorum of the Session may be capable of that Office Whereby there will great Advantage accress to the Leiges seeing there will be greater dispatch of Justice throw delay whereof most persons are ruined For none will deny considering the present throng of Affairs but that it is impossible that one single person can digestedly consider not only all the Causes debate in presentia but also twenty or thirty Prolix Bills and tedious Informations of causes to be reported in one day which must either be fully digested by him or the matter will be only Superficially scruified over which gives al 's great ground of new Billing or informing as if the matter had never been heard And President Stair for himself in the Epistle Dedicatory to the first volume of his Practicks Declares that the uneasiness thereof made him to quite that Office which he observed to have sunk Sir John Gillmor his predecessor a man of great strength both of Body and Spirit Likeas albeit there were not the inconvenience foresaid in the constancie thereof which is sufficient to enforce an Alteration Yet the Leiges are not so fully secured in point of Justice because the fixing the Presidency in one makes such an unequal Ballance in that Court that what ever side he shall favour or incline to is almost certain to carry the cause Whereas if it be lodged in a Plurality or in them all by turns there will be no such hazard And it is commonly received that Plures Difficilius corumpuntur quam pautiores and that plus vident oculi quam oculus From all which it is most consequential both from Reason Justice and the Practick of other Nations that either the Office be Circulat among all or the Plurality thereof as said is 4to Seeing great inconveniencie and confusion does arise throw the advising of Causes receiving of Reports and reading of Bills with closs doors neither Parties nor Advocats being allowed to be present whereby there is great mistakes at the time of adviseing Causes where the Probation is by an great number of Witnesses or by many several Writs which is only overly read by the Clerk which occasions great mistakes in the Lords whom that part in the Witnesses Depositions which evinces the Probandum have escaped especially where it may be Culled only out of two of twenty And the like may be also said where many writes are produced for proving Whereas if matters were advised with open doors and Advocats present who have seriously consulted the samen it would be easy for them to point out to the Lords the particular Testimonies and Clauses of Writs or the parts thereof that do evince what is to be proven And as for the taking in Reports of Causes debate in the utter House the inconveniencie is yet greater seeing it is Notture as having dayly occured that where there are several points to be reported some of them are omitted yea even where there is but one yet if it be so far followed in the Debate as to come the length of Triples or Quadruples some of these at least the principal Reasons enforcing the Relevancy thereof will also be omitted and which are the occasions of the many numerous Bills which are dayly given into rectifie such mistakes And which would be altogether needless if things were done with open doors in presence of Parties and Procurators as said is And which is the known Practise of most if not all other Nations 5to All the Premisses being thus rectified If it be not both Just and expedient that Extrajudicial Solistations be discharged either by the Clients or any other person who may be thought to have Interest in or Influence upon the Judge and that under the Certification that it shall be equal to Bribery if the Judge shall willingly receive the samen and if the Party or any from him shall obtrude it that either he shall cadere causa or at least the Judge shall be incapable to vote in that cause which as it is Just and Expedient So it is Consonant to the Act of Sederunt made against Solistations 6. November 1677. And the Practice of all other Nations where Solisting is lookt upon as equal to corrupting 6to That in regard the Sons and Brethren of the Judges are ordinarly imployed upon the presumption of the supposed Influence that they may have upon or ready access to him That therefore none be allowed to Judge or singly to Cognosce any cause where such Dependents or Relations are imployed as Advocats or Agents And that it shall be a sufficient Declinator of the Judge that any such was imployed in it It may be also thought most improper if not Absurd that the Clerk of Register should be an ordinar Judge as one of the Lords of Session For it was never heard nor is it consistent with the Constitution of any Court that one person should both be Clerk and Judge therein and the common Brocard of Law is that Judex Clericus faciunt forum which states them as clear distinct Offices and it is as incongruous as for one Man both to be Clerk Advocat For the Clerk is truly the common Trusty of the Court for writting and putting in Record what is there Debate and decerned And which after it is put in an Act or Decreet can neither be recalled nor redargued if fairly done either by the Judge or Advocat So that
A Representation to the High Court of PARLIAMENT of some of the most Palpable Grievances in the COLLEDGE of JUSTICE both as to its Constitution and Administration and several Members thereof IT is evident from the whole Tract and Current of our Statutes and Records that the King's Council were first Institut the Supreme Judges in all Civil Causes and that the Council was Nominat and appointed for advising the King in all matters of State and others by His Great Court of Parliament But by the 65. Act Par. 3. James 1. It is Statute that there be some Commissioners of Parliament chosen per vices who with the Chancellor shall sit at three times in the year for cognoscing and Determining of all Causes that were formerly cognosced by the King or his Council and who were also called Lords of Session as is clear by the Act 61. par 14. Ja. 2. Of which Judicature so Constitute there was small or no Alteration until the 36. Act 5. par Ja. 5. Whereby in place of the said Committee of Parliament there is a fixt Colledge of Justice Institute to consist of Fourteen able Qualfied Persons and a President And for declaring their Qualifications and prefixing Rules for Administration of Justice the whole subsequent Acts of that Parliament were made And by the 68. Act thereof there is several Priviledges and Immunities granted to the saids Lords as is at length therein contained and by the 93. Act of the 7. Parliament of the said King these priviledges are again ratified and the Popes Approbation and Confirmation thereof and which is also ratified by Queen Mary Parliament 2. Cap. 1. and James the 6. Parliament 1. Cap. 18. And by many other subsequent Acts of his and all other Parliaments All which do still go on in the style of ratifying and approving of the foresaids Priviledges But till this day never any Restrictions or Limitations put either upon their Nominations or exercising the said Office which has been got waved by the Interest of these who were Nominat and in Office and their Sway and Power which they had in all Succeeding Councils and Parliaments whereof many of them were also ordinarly Members So that their power is of a long time come almost to be Arbitrary Seeing they assume not only the Power of making Acts of Sederunt whereupon some of the greatest Estates and Securities of the Nation are now founded but also to expound clear Acts of Parliament expresly contrair the positive words thereof which is in effect to repeal the samen thereby assuming the Legislative Power since ejus est interpretare cujus est tondere And albeit they might pretend they could not otherwayes explicat their Jurisdiction and whatever they might claim right to during the interval of Parliaments yet after they are incited and sitting all such Acts and Interpretations ought to have a Parliamentary Sanction and Ratification other wayes to have been lookt upon as deeds not Approveable by the States nor Wisdom and Justice of the Nation And all this was predicted by the Learned and Sagacious Buchannan who in the 14. Book of his History near the end thereof does express himself in thir Terms Quo die collegium Judicum Edinburgi constititum est ab its cum ab initio multa utiliter essent ex cogitata ut jus equabile Diceretur tamen qui sperabatur eventus non est confecutus Nam cum in Scotia nullae pene sint Leges praeter conventuum decreta eaque pleraque non in perpetuum sed in tempus facta judicesque quod in se est lationem legum impediant omnium ●●●ium bona Quindecim hominum arbitrio sunt commissa quibus perpetua est potestas Imperium plane Tyrannicum Quippe quorum arbitria sola sunt pro legibus I think it not fit to Translate it in English least the Vulgar should be tempted to look upon him as a Prophet It may be therefore justly thought that in this healing Juncture there be a slender Representation made of such things as seem to be palpable grounds of Grievance in that Court in the right Constitution and Administration whereof all persons from highest to the lowest are or may be eminently and dearly concerned Seeing their Lives and Fortunes may become the Subject of their consideration and therefore there can be nothing more acceptable to the People or worthy the trouble of the Representatives of the Nation nor to redress what may be amiss therein and seing in many things the same is faulty both as to its Constitution and Inhability of the Members as also in the male Administration though rightly constitute thir Points are offered as worthy Consideration Relative to the Lords Advocats and Kings Advocat Lord Register and Clerks of Inner and Utter House And also an hint of some particular Grievances of which in Order Primo Seeing by the Laws of all Nations and in special by the Act 134. Par. 12. Ja. 6. It is thereby Statute that to all Vacations in Session none shall be presented but Men fearing GOD of good Learning Knowledge and Practick of the Laws and having sufficient living of their own and farther that none be admitted unless they be sufficiently tryed and known by the King and Lords and have in yearly Rent an 1000. Merks or 20. chalders of Victual If in Justice or Law any ought to be admitted to that Function but such as Quadrat therewith the samen never being yet repealled by any Act of Parliament whatever Violations or Subversions have been made thereof by unjust streatches and Court Recommendations whereby persons have been thrust into that Office whose Inclinations not Education did never Level at the meanest Imployment in that Court. And it arrived to that height of Indifference what persons were admitted to that Office that it was the ordinar Assurance to such as the Court intended to gratifie that they should either be one of the Lords of Session or a Captain of Foot a pretty Alternative indeed as was lately proposed to a Gentleman to move him to end a Bargan with an then Eminent Statesman 2do Seeing that the puting of Persons in that Office not qualified as said is must inevitably occasion great purloining and delaying of Justice to the prejudice and ruine if not all at least of many who shall come to have Dependencies before them If it be not therefore the Concern of the States and People that not only the said Law be brought in Observance but some new Sanction superaded thereto that may make the samen more effectual And in special that seeing we are now come to that consistance as to have many Subtilities and Niceties both in our Statutes Customes and Practicks that none be admitted to the saids Offices but such beside what is above mentioned as have also been Legally admitted Advocats according to the usual forms of Tryal and have practised several years therein Candidly and with that Integrity and Ability which ought to be Indispensably requisite in