CERTIORARI AND THE SCOTTISH COURTS
| Date | 01 July 1962 |
| DOI | http://doi.org/10.1111/j.1468-2230.1962.tb00687.x |
| Author | J. BENNETT MILLER |
| Published date | 01 July 1962 |
CERTIORARI
AND
THE
SCO'M'ISH
COURTS
THE
troubled days surrounding the
Union
of
1707
are
now
comfortably behind us; and
to
commence
an
article by quoting
Lord Belhaven's celebrated
cri
de
coew
(or,
at
lea&,
one
of
wverd
emitted by him more or less at the same time) is perhaps to run
the
risk
of having one's words disregarded by the more forward-
looking
as
a
mild excursion into antiquarianism. Some two years
ago, Professor Mitchell,' quoting the same passage, commented
that, here
as
elsewhere, the noble
Lord's
prognostications have
been hlsi5ed. But in Scotland,
as
with
our neighbours south
of
the border, tradition
still
has its victories; and two recent decisions
in the Court of Session have gone some little way
towards
vindi-
cating what has hitherto been regarded
as
one of Lord Belhaven's
less inspired attempts at veticinetion; for in both cases we have
been dorded the spectacle
of
Scottish judges
''
laying aside their
Practiques and Decisions."
It
is true that, in their ensuing study
of certiorari, they do not appear to have
been
"
gravelled
"
(and
in this it
is
hoped that any English reader erudite in such mysteries
who perseveres with the tortuosities
of
the
following
pages
will
6nd
it possible
to
concur, since the judges
of
Scotland have too long
lain under the slightly damaging imputation
of
Lord Belhaven's
words); but it is detectable that they might have
been
grateful
for more
familiar
fields in which
to
exercise themselves.
While it cannot perhaps be claimed that the Scottish judges
have made any large addition to the store of learning which already
surrounds the prerogative writs in England, they must at least
be
credited with
a
pertinacious refusal
to
be defeated by them, and,
as an additional service, which one imagines was purely coinci-
dental, they have thrown some light upon
a
question which
the
author ventures to assume
was
hitherto obscure to many, namely,
what precisely it was that Lord Belhaven found distasteful. By
most of
us
his
words have been regarded as taking
m
unduly
depressed view of the possibilities
of
Scots law sumiving as an
independent system.
In
its context, however, it now appears that
he was inveighing against the terms of the XIXth Article of the
1
''
I
think
I
nee
our
learned jud
en
la
in anide
their
Pmtiquen
and
Decinionn,
the
Common
Law
of
EngTanj,
ravelled
with
certiorarien
. .
.":
gif$%irtory
of
the Scottish
Union,
p.
d8.
We
are
told
that bin
lordship,
between
two
of
the mont
impassioned
arts
of
hin
harurgue,
wan
over-
whelmed
with
emotion:
ibid.
p.
327;
&cey
and
hit,
Thwghtr
on
the
SCOtti8h
Union,
p.
216.
2
Reflections
on
Law
and
Orders (1968)
J.R.
19
at
p.
99.
8
McDonald and other8
v.
Lanarkrhire Fire Bri
ade
Joint
Committee.
lSs0
S.L.T.
909;
Inland
Reoenue v. Barrs.
1960
S.L.8.
a78,
affd.
1981
S.L.T.
518.
428
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