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SCOTTISH LAW MAGAZINE
SHERIFF COURT REPORTER.
COURT OF SESSION REFORM.*
he is an out and out opponent. He sees nothing good in it—it is English-it is reversing the order of history. Scotland gave England her present race of kings, but the old spirit of conquest still survives, and the southerns are still resolved to conquer unconquered Caledonia in the shape of this Bill. Now this Anglo-phobia may be a very respectable feeling when introduced and used in its proper place, and, as leal and true Scots, we in some measure partake of it ourselves, yet so far as reform in our law is concerned, those who drag it into this discussion use it blindly, and as a mere prejudice or superstition. A lawyer who does so exposes his ignorance of the history of the law he professes to practise, and the incol-herent weakness of the cause he would support. We would be glad to know what part of the law of Scotland is not of foreign origin, directly or indirectly. Roman, English-yes, English-and, above all, Roman-French or purely French-our Parliament, our courts, our magistrates, our forms, our very nomenclature, are French-all have contributed to what we call Scots law, and yet we find men like our "Law Agent" striving to stir up prejudices against a measure which some believe to contain useful and needed reforms for our Supreme Court. On this point we quite concur with Lord Curriehill, who thus expressed himself at the Social Science Meeting at Edinburgh: "The system of administrating justice, like every other system in this free country, must be a progressive one; and in looking forward to improvement, they ought to borrow from England, or any other country where measures were adopted which might be easily adapted to our system, and promote the administration of justice. Alterations, however, should not be adopted without great consideration."
Ir would appear to have been the expectation of some of the opponents of the Court of Session Bill introduced last Session of Parliament, that because it was not pressed on and passed into law, doubtless from the opposition offered to it out of Parliament and within the Parliament House, we should hear no more of it. These expectations have, however, not been realised. The Bill has not only not been withdrawn, but has been reprinted, and in place of having been curtailed, it has had an addition of thirty-three clauses made to it. Of course the alarm it excited in certain quarters on its first appearance has been much increased by its enlarged second edition; and the letters which formerly appeared in the newspapers with such deadly effect, as was supposed, have now been lected in the shape of pamphlets, and, with additions, have been fired off anew. We recently noticed one of these by an Advocate; we have now another before us by a Law Agent. The Advocate treated his subject effectively, with manly vigour and literary skill. He did not whine over his subject, and resort to unworthy prejudices to assist him in winning a hearing; nor did he hesitate to speak his thought through fear. of giving offence to those in office, or to others with whom he might be brought in contact in business or otherwise. In a very different spirit does a "Law Agent" approach the discussion of the Court of Session Bill. The mighty shadow of the Lord Advocate seems quite to have paralyzed him. He is not ashamed to write and print, ay, and reprint, this sentence, "The position and power of the Lord Advocate are such towards the profession as to deprive it to a great extent of free speech." Writing as we do in the free West, and belonging to the profession ourselves, we are almost ashamed to copy this sentence over, and there are others just as timid or slavish. And there is the same feeling expressed towards the Bench; and even the members of the Bar are spoken of with a tone of reverence and awe which to us appears quite laughable, if it did not tend to excite other than hilarious feeling. We would wish, and we hope we do honour all men, especially "those in authority over us," but when we come into the arena of discussion on an important public question, we would discard all apology, speak our free thought freely and fearlessly, yet with all courtesy. But passing over the objectionable spirit in which a "Law Agent" discusses this Bill, we may say that
The Court of Session Bill-1863. A Voice of Warning; with Appendix of Letters published in the Scotsman. By a Law Agent. Edinburgh: Bell & Bradfute.
Suggestions relative to the Improvement of Court of Session Procedure, derived from the Practice of the Courts of Common Law and Chancery in England; with Notes on the Execution of Deeds. By John Boyd Kinnear, Advocate, and of Lincoln's Inn, Barrister-at-Law."
But amid this timidity of spirit and raising false issues, it is quite clear that the "Law Agent" is really what he professes to be. When he writes of the practice of the Court of Session, he shows himself to be a man who knows what he is writing about; but with great respect, he seems to us to look at the Bill not so much as a measure in which clients and the public are concerned, as how it may affect agents. Lawyers, when writing about law reform, seem too often to forget that they, as well as the laws, are only means to ends (and many think rather indifferent means too), and these ends are the attainment, by the best and speediest methods, of the rights of individuals, and the remedy of their wrongs.
The "Law Agent" and the "Advocate" do not seem to differ much on the grounds on which some measure of reform in the Court of Session is called for. Both agree on the expense, and the vexatious
delays which occur in that Court. In his fourth Letter the "Law Agent" gives an enumeration of the causes of expense, and he condenses them under nine heads, although we doubt if his list is complete; but as he puts it, it is formidable enough. He admits the great delays in the Court, but justifies them slightingly and by a parenthesis by asking, ("and what court is free of them?") He also agrees with the "Advocate" in attributing these delays not only to the agents and counsel, but also to the Bench, for which awful charges he of course duly apologises, as if he had committed the crime of lese majesty. But, admitting all these defects of the Court of Session, what are the remedies which he proposes? From one point of view, which is certainly not that of the "Law Agent," we consider those he proposes to be so unsuitable, that but for the otherwise solemn tone of the pamphlet, we should have suspected them to have been proposed in jest. Reform is wanted-all admit that. The difference lies in the method. He thinks the Court might remedy the whole evils. If that were so, why, let us ask, has not that remedy been long ago applied, before the public began to suggest a remedy of their own, and until some one more in advance in politics and law than others has drafted and presented this formidable and detested measure? But in addition to these powers of the Court, his last paragraph suggests another which appears to us to be the anti-climax of absurdity. He actually and in all seriousness suggests a new edition of 'Darling's Practice," as of more utility than any statute. Surely the force of folly could no farther go. So far our "Law Agent." We scarcely think, notwithstanding some W.S.'s have concurred in his views, that he will make many converts to his opinious, or strengthen those who think with him. This we are certain of, that no one country agent who understands the subject will be swayed by his publication. We said on a former occasion that it was a great mistake, and a singular weakness in the draftsman of the Bill, to adopt any branch of the English system so completely as he has done, even to its phraseology. It needlessly wounded the prejudices of some wellmeaning people, and gave a handle to opposition which was really apart from the merits of the Bill. But, if we are to believe Mr Kinnear, the adoption of the English system was not only a mistake-it was an adoption which showed courage rather than wisdom or knowledge. The Bill is commonly understood to be the production, mainly at least, of a member of the junior bar, who is not a member of the English bar, and whose knowledge of English procedure can only have been got from books. Little experience is needed to say, if this be so, that more extensive knowledge of the system to be imported was absolutely necessary, especially where so much was to be attempted-a priori this might be inferred. But we have the experience of the Jury Court to tell us how even great talent and great experience of two different systems found it impossible to graft and blend a portion of English law into our Scottish system. It appears from Mr Kinnear's pamphlet that the authors of the bill, passing over that system of English pleading which most nearly accords with our Scottish, have adopted that which is most alien to it -is most technical-is most difficult to be understood, and which requires a special study for itself. In place of an adaptation of Chancery pleading, which Mr Kinnear says most nearly approaches our Scottish forms, the forms used in the Common Law Courts have been
taken and attempted to be assimilated to the Scottish Courts. This system is what is known, in and out of the English Courts, as special pleading, and that, in common parlance, conveys an idea not at all in its favour. If the authors of the Bill were to go to England at all, they were under a kind of obligation to disturb our established forms as little as possible, and to adopt those which came nearest our own. The administration of law is a progressive one, as remarked by Lord Curriehill; and we have no special objections to take from any system that which may improve our ownEnglish, French, American, or other: but that should not be done rashly, or without great consideration. No one will be rash enough to give an opinion as to how the Bill, as it now stands, might work; but we are disposed to think the Bill attempts too much in the way of change and the introduction of foreign matter; and our views meantime tend to this. Let the Judges (as they have recently begun to do) check the fees paid to counsel and other expenses-let the preparation of the records be done at chambers by the agents or their clerks-rigidly discountenance prolixity in pleadings, and the continuations of causes between agentsshorten the speeches of counsel, or the number of counsel allowed to speak, or let senior counsel lead, as in England-and let the chair as often as possible deliver the judgment of the Court, and briefly (of which the Lord President offers an admirable example)— these, added to the summary appended to Mr Kinnear's able pamphlet, as the basis of a short Bill, would, we are inclined to think, meet the chief causes which at present obstruct the usefulness, and threaten, in the opinion of some, the very existence of our Supreme Court. We recommend Mr Kinnear's pamphlet to those who wish to know, in brief space, the system which is attempted to be embodied in the new Bill, the difficulties which surround its adoption, and the unwisdom which would press it in its present shape upon the country.
SHORT-SIGHTED mortals that we are, we have got ourselves involved in the thorny mazes of a controversy; and it appears that our antagonists are no less a body than the Sheriff-Substitutes of Scotland, led on by their preux chevalier, sans peur, Mr Robertson, the Sheriff-Substitute of Stirling. Our readers will remember that in our November number we offered some observations on Mr Robertson's Letter to Mr Stirling of Keir, which naturally led us to give our own opinion on the question as to the augmentation of the Sheriff-Substitute's salaries and their change of status. Our opinions on these points are not new, as we took occasion, on the appearance of the Memorial to Parliament, to express them in nearly similar terms as we did in November last. Robertson, however, has favoured us with some observations in correction of our views, the tone of our criticism, as well as our truthfulness and courtesy. Mr Robertson, however, seems to forget that his Letter to Mr Stirling was only one paper of a series, all advocating the same views, and that our observations were not so much directed as an answer to his Letter as an individual effort, as to the whole question between the Sheriff-Substitutes, the public, and the Government. These gentlemen appealed to Government, but received no encouragement to hope for success there. They then prepared a very elaborate paper, enumerating every conceivable duty