our endeavour to simplify our procedure, and to establish something like a substantial uniformity of process in the supreme courts of the United Kingdom.

THE CIRCUITS.

FOR a period so long that it would be useless to compute it except by centuries, it has been the custom of the Judges of the High or Supreme Court of Justiciary to make progresses through the length and breadth of the land, exercising their functions in the chief cities and towns, from Dumfries in the south to Inverness in the north, and from Aberdeen in the east to Inverary in the west. How they travelled in the earliest times does not appear; but within the memory of men still living, their Lordships, with all their attendant array of clerks and macers, trumpeters and counsel, used to ride the Circuits,' as these judicial progresses were called. Many ludicrous incidents thence resulted; for neither the bench nor the clerk's table are good riding schools. It was all very well for the younger advocates, who were both light and active; but the seniors, who had grown stiff and heavy, suffered sorely. At length, however, the riding went out; the judges travelled in their own carriages, and the other officials and counsel went by the Mail. A third time everything is changed: judges, clerks, trumpeters, macers, and counsel go like common creatures by the railway; and though the civic authorities still meet the Lords' at the station, the cavalcade which takes them to their hotel is a very sorry one, composed of hackney coaches.

With these changes in the mode of travelling the Circuits, great changes have taken place in their importance as public institutions. When the Lords' rode, the calendars were always heavy, and in particular the number of capital charges was very great. Sheepstealing, forgery, and even theft, were still punished with death. When the Lords' posted, the calendars were gradually getting lighter; and, as the result of more humane legislation, the number of capital charges was greatly diminished. Now that 'the Lords' travel by railway, there is, unless at Perth and Glasgow, nothing for them to do, except to pronounce sentences of penal servitude upon habit and repute and previously convicted thieves.

We have, however, as yet made no mention of the civil business

VOL. VII. NO. LXXXIII.-NOVEMBER 1863.

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transacted at Circuit. By the 34th section of the Heritable Jurisdictions Act (20 Geo. II. c. 43), a right of appeal to the Circuit was given from the final decrees of all inferior judges in matters civil, where the subject-matter of the suit did not exceed in value the sum of L.12 sterling. In consequence of this provision, which was subsequently extended to suits of the value of L.25, a very large number of appeals were taken from Sheriffs' judgments; and it was no uncommon thing for the Circuit Courts to be occupied several days in hearing them. Counsel of standing came down from Edinburgh to argue them, and very keen debates often ensued. But all this was changed by the Sheriff Court Act (16 & 17 Vict. c. 80), which by its 22d section abolishes all review in cases under the value of L.25. It is true, by the Small Debt Act of 1837 (1 Vict. c. 41), an appeal to the Circuit is made competent, on certain specified grounds, against decrees for sums less than L.8, 6s. 8d.; and this provision was extended to decrees for sums less than L.12 by the Sheriff Court Act. But the enumerated grounds of appeal-corruption, or malice and oppression, on the part of the Sheriff; or incompetency, including defect of jurisdiction and wilful deviations from the statutory forms, which have prevented substantial justice from being done-are such, that practically, except when the Court or the counsel are more than ordinarily adroit in driving a coachand-six through an Act of Parliament, all appeal in civil cases is excluded. It remains to be mentioned, that under one or two special statutes, such as the recent Salmon Fisheries Act, a very limited appeal is given to the Circuit. But the business thence resulting is exceedingly trifling.

Now, the question arises, whether the large expense attending the holding of Circuit Courts is justified, considering the small amount of work done by them. We are quite aware that some persons would object to this mode of stating the question, and would think that it is not a matter to be tested in this way at all. They think that the appearance of the Supreme Criminal Judges in the various Circuit towns, and their holding courts there, exercises so powerful and so beneficial an influence on the surrounding population, and especially on the ill-disposed members of it, that the public money is well spent, though the cases tried are exceedingly few. We confess to having once attached great weight to this consideration, but more mature reflection has led us to change our opinion. We do not now believe that the sight of two elderly gentlemen in scarlet

and white, with horse-hair wigs, strikes terror into the breast of hardened offenders, particularly when, as sometimes happens, these elderly gentlemen are puisne civil judges, glad of an opportunity of 'getting out their horns' (we crave pardon for the familiarity), and much more apt to wrangle with each other than is consistent with judicial decorum. Putting aside, then, this view as undeserving of support, the question occurs, whether it might not be wise to adopt steps for increasing the work of the Circuits, and thus rendering them more worthy of the expense incurred in keeping them up. To deal with the criminal business first, many think that a serious mistake has been made by increasing the number of cases sent for trial before the Sheriff-substitutes. It is a false policy, these consider, to commit the cognizance of so many offences, and the question of the liberty and character of so many of the citizens, to inferior magistrates such as the Sheriff-substitutes. We confess we do not sympathise with those who hold this opinion. It is true, some of the gentlemen who hold these offices are not very fit for them. But the proper course for the Government to take, is to insist that none but really competent persons are appointed to them. If this were done, then there exists no reason why the present system should not be maintained. It is very satisfactory to know that the same result is pointed at by the fact of the marked diminution of crime still going on. At the recent Social Science meeting, Mr Hill Burton, the Secretary of the Prison Board, said that on entirely trustworthy evidence it appeared that there was not one half of the crime in Scotland now which there was twelve years ago. What the reason for this is, we do not now pause to inquire. But the fact itself supports the maintenance, and even the development, of the present system of judicial arrangement.

We come now, however, to consider whether the civil business of the Circuits might not with advantage be increased. The only direction in which any one could suggest that this should be done, is by giving greater facilities for appealing to them from the judgments of the Sheriffs. Accordingly, we find in the 218th section of the Court of Session Bill, now attracting so much attention from the public and the legal profession, a proposal to allow either party, in all civil actions instituted in the inferior Courts below the value of L.50, to appeal to the Circuit Court from the final judgment of the inferior Court upon any matter of law or competency. That there should be an appeal in such circumstances, and on these

grounds, we are quite agreed with the promoters of the Bill. But we differ from them as to the tribunal before whom the appeal should be brought. All experience, both ancient and modern, has shown that for civil business the Circuit is an exceedingly bad court. Doubtless the days have gone by for ever, in which judges would hear appeals in bed or after dinner; but it has always been found quite impossible to get their Lordships to give that attention to the appeals which they readily devote to the criminal trials. When this is considered, along with the great inconvenience both to the Court and the counsel,-that there are no printed papers,—and that it is almost impossible to obtain access in the Circuit towns to law books either for consultation or use in Court, we think we have shown enough to justify our conclusion, that nothing should be done to increase the civil business of the Circuits. By all means, as we have already said, let there be an appeal in the circumstances set out in the 218th section of the Bill. But let it be to two of the Judges of the Court of Session sitting in Edinburgh. Let every facility be given for making the appeal a summary one, and let effect be given to the excellent provision in the Bill as to the preparation by the inferior Judge of a special case, setting forth the facts necessary for the determination of the matter of law or competency on which the appeal is grounded.

Our conclusion, therefore, is, that whether as Courts of criminal or civil jurisdiction, the Circuits should be abolished. All the civil appeals we have suggested, should be taken to the Court of Session. Wherever a criminal trial, from its magnitude or intricacy, requires delicate handling, it should take place before the High Court of Justiciary in Edinburgh. Both the prosecution and the defence will then be enabled to have the benefit of the best forensic assistance, which, with all deference to both sides of the bar, they sometimes lack at present. The power of pronouncing sentences of penal servitude should be given to the Sheriffs. In the first instance it might perhaps be well to confine the power of inflicting it to the Sheriffs-principal, who should be required, as they might very well be, to hold Courts for criminal trials more frequently than they do at present. Probably it would be right arbitrarily to fix that no Sheriff should have power to impose a sentence of penal servitude for more than say ten or fifteen years; and of course, as we would not propose that trials for proper capital offences should be taken before the Sheriff, these would have to go before the High Court, unless

the public prosecutor, on calling the indictment, minuted that he would move for an arbitrary sentence only.

The immense population and frequent crime of the city of Glasgow seem to render it necessary that extraordinary provision should be made for the trial of its offenders. What we would suggest would be, that twice or three times a year two of the Judges of the High Court of Justiciary—the Lord Justice-General or the Lord Justice-Clerk always being one of them—should hold special sittings in Glasgow, carrying with them the officials of the High Court. These special sittings would of course be during the vacations of the Court of Session, and the leading Crown counsel would therefore be enabled to attend and prosecute in person.

Before we conclude this paper, we have two other revolutionary suggestions to make. The first is, that the number of jurors on a criminal trial should be made the same (twelve) as on a civil trial; and that the rules which have recently been introduced as to the returning of verdicts in civil cases, should be extended to those in criminal cases. There seems no reason in the world, beyond the merest old-world prejudice, why twelve men should not be sufficient to try an issue in a criminal as well as in a civil case. The convenience to the public from such a change would be very considerable, as the list of assize might consist of one-fifth fewer names than it does at present. We have not space to enter at present on the consideration of a larger measure of relief to which the present class of jurymen may fairly lay claim; we mean the repeal of the exist ing exemptions. The exempted class includes those who are at once the most highly qualified for the duty by intelligence and acquirements, as well as the best able to support the expense of giving attendance at the sittings.

Our last suggestion is, that there should be introduced into the practice of the Court of Justiciary the system of pleading diets, which has worked so well in the Sheriff Courts. This change would be particularly beneficial if our larger suggestions were adopted, and the heavier cases from the whole country were taken to Edinburgh. But whether these larger suggestions are adopted or not, it would be well, we think, to enable the prosecutor, in the vast number of cases in which the panel pleads guilty, to save the country the expense of the citation and attendance of hosts of witnesses.