New Books.

A Treatise on the Law of Trusts and Trust Settlements: Including its Application to Practical Conveyancing. By JOHN M'LAREN, Esq., Advocate. In Two Volumes, Royal 8vo.

T. and T. Clark.

Edinburgh:

THIS is a work of very great and meritorious labour, which supplies a long felt want, and which will take rank among the best treatises on the law of Scotland.

It deals with a subject the proper treatment of which was surrounded by many difficulties. The law of Trusts is still in an immature condition in Scotland, and may be said (so far as native authority is concerned) to rest upon decisions pronounced within the last fifty years. The great quarry of the Roman law, from whence our elder judges extracted the simple and philosophical system now existing as the Scottish law, is, upon the matter of trusts, singularly deficient and fragmentary. To this, perhaps, may be attributed the little aid to a knowledge of the subject that can be procured from our early decisions. They were few in number, and are of little authority in the present day; and so, while Mr M'Laren had other obstacles to surmount, he had not to undergo the toilsome drudgery of a hunt for his materials in our ancient lawbooks, or in contracted manuscript.

He has given us all our native decisions, with a careful fingerpost erected here and there to guide the reader on his way, so as to avoid overruled and unauthoritative judgments. But along with this he has furnished, within a manageable compass, and with a clearness and precision worthy of all praise, as admirable a commentary as could be wished upon the vast mass of decisions of the English Courts, which, upon the subject of trusts, are exceedingly interesting and instructive. We did not need the English Courts to give us our law of contracts, of succession, and of real property. But, undoubtedly, we are indebted to English lawyers, and particularly to the House of Lords, for the leading authoritative precedents in the law of trusts; and great is our gratitude to a writer who has placed so clearly and concisely before us the principles of a thousand decisions buried in volumes accessible to few Scottish lawyers. Even as regards the decisions of the Scotch Courts, Mr

M'Laren's book will save many a weary search for authorities. The cases are hidden under the oddest titles in our digests,-' succession'-'testament'-'provisions to heirs and children'—and even 'jus tertii' and 'member of Parliament.' Any one who brings these scattered precedents into daylight, does a service not merely to the profession, but to the law itself.

We are not going to criticise in detail a practical treatise on law. Its merits can only be appreciated by experience; and we will be much disappointed if every day's experience will not add to the estimate of its value. It seems to be all conscientiously done. The author has no pet chapter on which he expended all his force, while he left other parts to the fate of taskwork. Having tested the references at various places, and in reference to different matters, we have found every place characterized by originality of labour and research. He has resisted, too, the very strong temptation of long quotations from his authorities. This is sometimes necessary, but the practice is too often abused; and hence we have many books which are--if not a collection of rubrics-a collection of reports in extenso, under the guise of an original treatise.

The range of ground over which the author has gone is great. Of course we expected a treatise on all kinds of trusts, the trust disposition and settlement, the trust for behoof of creditors,charitable trusts; but we were not prepared for a commentary on the law of legacies, marriage contracts, the separate estates of married women, and the Conjugal Rights Act. As, however, these collateral subjects are handled with the same care and the same precision as the rest of the book, the profession can only be grateful that they have got more than they had a right to expect.

Altogether, this book is creditable to the bar. It is the work of one who first mastered his subject, and then reduced his materials to order and method. Not a word is thrown away, and therefore it is one of the best examples of a practical law-book. We have little doubt that the author will find, in his future career, that it was one of the most fortunate circumstances for himself, that he spent some of the years of his early professional life in writing such a work as this.

There yet, however, remains one word of remonstrance that must be said. The author has dug so much among English decisions, that some of the legal terminology of the English Courts has stuck to him. We object to this when we have Scottish law language as

good, if not better, to express the same idea. Is 'election' better than approbate and reprobate?' Why should we have 'secus' or 'semble?' Neither are we acquainted with 'equitable interests' under trusts, nor with 'conversion' or 'reconversion.'

P. F.

THE MONTH.

Privilege of the Confessional.-The commitment of a Roman. Catholic priest by the Justice of Peace Court in Glasgow, for refusing to divulge a confession made to him by an accused party, raises two very important questions of law, the one having relation to the supposed privilege of spiritual advisers; the other, concerning the power of inferior magistrates to imprison for contempt of Court. We must admit our inability to sympathize with, or even to comprehend, the distinction taken by the learned Assessor between confessions made in the confessional of a Roman Catholic chapel, and confessions made elsewhere to clergymen either of the Roman Catholic or any other persuasion. It will be admitted, we suppose, that the creeds of all denominations of Christians recognise and inculcate the duty of seeking spiritual advice and consolation from their ministers; and in the case of a penitent, whose conscience is afflicted with the burden of a crime for which he is amenable to the law and for which he is desirous of making atonement, a confession of the fault, whether absolutely enjoined by the Church or no, comes fairly within the scope of the relations which ought to subsist between the penitent and his spiritual adviser. If, therefore, the Assessor to the Lanarkshire Justices was right in holding that there was a custom binding on the Court to respect the secrets of the confessional, the reason of the custom ought in equity to have protected a communication which was substantially a confession, although not made in the formal manner enjoined by the canons of the Roman Catholic Church. To hold otherwise, is simply to allow Roman Catholic priests to usurp a privilege not conceded to ministers of other denominations who may receive confessions, but who have not the institution of the confessional.

The tendency of the later English authorities has been to recognise the privilege of clergymen in regard to confessions. In Rex v. Gilham (1 Moody, C. C. Res. 186), it was decided, by the unani

mous opinion of all the English Common Law Judges, that a confession made to a chaplain in prison was receivable as evidence ; but the question was not raised, whether the Court would compel the disclosure of such evidence. When this case was cited to Lord Tenterden, in Broad v. Pitt (3 Car. and P. 519), his Lordship observed: 'I, for one, will never compel a clergyman to disclose confessions made to him by a prisoner.' And in the subsequent case of Reg. v. Griffin, 1853, Baron Alderson expressed his opinion, that conversations between the chaplain of a workhouse and a prisoner charged with murder ought not to be given in evidence. However, in a more recent case,-tried, we think, in 1860, and which was the subject of a conversation in the House of Commons,-Mr Justice Hill committed a Roman Catholic priest for refusing to give evidence as to property which had come into his possession in the course of the exercise of his duties in the confessional; but, somewhat inconsistently, directed him to be liberated immediately afterwards.

The authorities in our own law are conflicting. Baron Hume questions the propriety of allowing such disclosures (2 H. 335); but in another passage he lays down that communications to clergymen are not privileged (p. 350), qualifying his statement, however, by the remark, that no call would probably be made upon a clergyman to disclose a confession of guilt made to him by a prisoner when in jail. In some early cases of this nature the evidence was received, no question being raised as to competency or privilege. On the other hand, the opinions of the late Lord Justice-Clerk Hope and of Sir Archibald Alison are favourable to the privilege claimed by the clergy.

As the case has been brought up by a suspension before the Court of Justiciary, we refrain from offering an opinion further than to say, that if the privilege be conceded, it ought to be personal to the clergyman, and not to the accused. A criminal may divulge a partially executed crime to his spiritual guide, but instead of making amends, may go on to consummate the crime. In such a case, we conceive it might be the duty of the clergyman to inform against the criminal, and, if necessary, to support his information by evidence. At all events, if the clergyman took that view of his duty, has society any interest in refusing to receive the confession? We think not.

The right of inferior judges to punish for contempt is sup

ported by certain general assertions in Erskine (1, 2, 8), and Hume (II. 138). But the examples referred to by these institutionalists do not embrace any cases on appeal from the Sessions of Justices of the Peace. It may be doubted whether the powers of these Courts to punish for contempt extend further than to the imposition of a fine. Supposing imprisonment to be competent, a sentence of thirty days goes beyond all precedent, and indicates a disposition to test the extent of the authority of the Court, rather than to adjust the sentence with a due regard to the nature of the act of contumacy, which we do not suppose to have proceeded from any want of respect for the Court, or, indeed, from any cause except a conscientious and honourable desire to be reticent of a confession imparted under the seal of secrecy.

The Law of Libel.-The result of the action by Mr Digby Seymour against the proprietors of the Law Magazine, is not calculated to restore confidence in Jury Trial as a check upon unfair prosecution for libel, and a guarantee of the freedom of public discussion. Mr Seymour, rightly or wrongly, had been charged with conduct which, in the opinion of the Benchers of the Society to which he belonged, called for investigation. Instead of availing himself of the opportunity which they wished to afford him of clearing himself, by explaining the transactions in question, he in effect declined their jurisdiction. The result of the inquiry, prosecuted in his absence, is well known. Mr Seymour was censured by the Benchers; and he did not take the means that were open to him of obtaining a reversal of their sentence, by appealing to the Court. We understand that he has raised, or is about to raise, an action of damages against the Benchers; but at the time the article containing the alleged libel appeared, Mr Seymour had, to all appearance, acquiesced in the censure that had been pronounced against him. Certainly, no fairer subject for professional criticism could have been chosen by a professional journal; and the jury must have thought the injury done to Mr Seymour very trifling, as they only gave nominal damages. But slight as was the recompense actually given, it was sufficient to turn the tables against the journalist in the matter of costs. The defendant, although

virtually absolved from the charge of wantonly libelling the character of a professional man, has been severely punished by being made to pay costs. And yet his offence consisted only in exercising the