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junior placed on a simple intelligible basis, allowing each man calmly and without haste to judge what position he should take up, and to act on his own responsibility. If such a change were made, it may be that after all had been done experience might shew that it would have been better to let matters rest as at present. But even in that case, it would be more endurable that the error should be that of the Bar itself, and within its own power to remedy, than that it should find itself by its own act, hopelessly given over to a power from without, the interference of which it had itself invoked, though powerless to control it when once set in motion.
A BRITISH CODE.
SIR THOMAS CRAIG in his prefatory address to King James I., after congratulating his Majesty upon the happy union of the two crowns, proceeds—“ Haec autem adunatio sive conjunctio ut solida esset et suis omnibus numeris absoluta, conventum etiam jurisconsultorum utriusque Regni dudum instituisti, qui de legibus utriusque populi inter se sermones conferrent, et in quibus convenirent et dissiderent despicerent, si fieri possit ut in utroque eaedem leges iidemque mores obseryentur.” He wrote his book, as he says, for the purpose of removing the common error that the laws of England and Scotland were fundamentally different, and after comparing them he declares that he found them to have “maximam inter se affinitatem” --a conclusion which will not be contradicted at the present day. The proposal for the assimilation of the laws of the two countries remains, however, much where it was in Sir Thomas Craig's time. Nor is it to be much regretted that two centuries have passed since the change was first mooted. Laws cannot be altered as one shifts his coat, and the memory of recent hostilities between the two countries was too fresh to allow of the adoption of the same leges et mores at once. But the time that has passed since our James VI. went to England as king has been fruitful in a silent assimilation of the interests, manners, and customs of the two countries. They have become substantially one nation, welded together by a history which is neither English nor Scotch. The “mores” have now become so similar, that there is at length rational foundation for an assimilation of the “ leges.”
That the two countries have gained much by the preservation after the Union of their respective peculiarities in customs and laws cannot be denied. But it is not desirable, and if desirable it would not be possible, that such national distinctions should be perpetually kept up. In the give and take of constant intercourse for two cen
turies it was inevitable that the peculiarities and prejudices which kept Scotland apart from England should be rubbed off
. Our national character has entered into the common stock which makes up the greatness of Britain. It is now time that our laws should follow our customs, and that the two countries should be united under a common legislation, as hitherto under a common legislature.
Excepting, possibly, the Wallace Monument Committee, most Scotchmen would willingly see some arrangement to render men's legal rights the same in Midlothian as in Middlesex. It strikes the outer world as somewhat absurd that to the Queen's Courts in Scotland an Englishman is still as much a foreigner as he would have been immediately after Flodden. And of course the Queen's Courts in England view all Scotchmen and even Scotch tribunals as foreign too. Hence endless bickerings and practical inconveniences. But lately, as our readers must remember, the English Courts were in the habit of impounding Scotch wards trusted by their simple tutors or curators in an English school. The Marquis of Bute's case has, however, after much serio-comic debate, done something to settle the exercise of the rival jurisdictions upon the basis of the benefit
Time would fail us to tell of adventurous youths and maidens fleeing from paternal frowns to the ready aid of the Scotch smith at Gretna, of debt-laden barristers trying the effect of the Scotch sequestration law, and of happy pairs seeking the benefits of a Scotch divorce. It is the commercial classes who have chiefly felt the evils of the existing dissimilarity of laws. Once across our ancient border line, their steps are at every moment surrounded by legal pitfalls, against which their previous local experience in business is no protection. Mercantile men accordingly have long demanded a uniform law for both countries. They have now obtained a code for all British shipping, and they have got a Mercantile Law Amendment Act, and a Companies' Act; but these are only alleviations. Our English neighbours, on the other hand, have got our Divorce Courts, and something like our registers for deeds—both rather spoiled in the stealing, and no thanks given to the inventors. They are about to take openly our Bankrupt Law, and it is understood the Marriage Law of the United Kingdom is to be made the same at some future day. But after all, though our laws are becoming assimilated, it is in a truly British hap-hazard style, and at a pace which may perhaps lead to the goal in about a century.
If we are convinced that, after a preparation of more than two centuries, circumstances are at last ripe for legal assimilation, there are but two obstacles to our immediate enjoyment of the fruits of this long time of waiting and growth. These are—(1.) The neglect of
legal reformers to set up the proposed assimilation as a definite practical object for their labours. (2.) The mutual ignorance which prevails among those engaged in the administration of each system of law respectively regarding the merits or demerits of any law but their own. How, then, are these difficulties to be overcome? We
think that for this purpose an extremely favourable opportunity has arisen in connection with the report of the Royal Commissioners upon the expediency of a Digest, recently published.
The Commissioners propose in the first place to ascertain what the law of England is. That law is scattered, as they tell us, through 45 volumes of statutes, and 1300 volumes containing judicial decisions and dicta in some 100,000 cases. Such is the chaotic pile which forins
“ The lawless science of our law, That codeless myriad of precedent,
That wilderness of single instances.” It is no severe reproach to Scotch lawyers that they are baffled in projects for assimilation by their ignorance of this tangled forest of English growth. The first thing, then, the Commissioners say, is to reduce this mass to order, and to present it in the approachable form of an authoritative Digest. For this task-cloacas Augiae purgare—they anticipate that several years will be required, and we doubt not they are right. But when the Digest has been framed what will they do with it? Having ascertained by it what the existing law really is, they propose to make it a basis for alterations and amendments whence may result a code for England.
It is here, we think, from our Scotch point of view, that the plan is defective. We are so heartily convinced of the benefits of a code, that we should like to see a code, not for England, but for Great Britain ; and this we think is the ultimate object to be kept in view in proceeding with any project for a digest. If a limited plan of a code for England alone is adopted, there is an end of all prospects of assimilation of the laws of the two countries upon fair and equal terms. If a code for England alone be once accomplished, there is an end of Scotch law-an end, not by absorption into an imperial whole, but by throwing away as worthless all that Scotch thought and experience have effected in jurisprudence. The code of England once made, few people would think of perpetuating the differences between the two countries by establishing a separate code for Scotland. The desire for assimilation still remaining, the natural and almost inevitable result will be a wholesale extension of the English code to this country, without much modification.
This is not the assimilation which we desire. We think that Scotland has much to give as well as to receive. This country has worked out its problem of civilisation and jurisprudence distinct from, though side by side with England. Never were there better materials for codification than those which are offered by a comparison of the different results and different processes for attaining the same result which, in not widely different circumstances, the laws of England and Scotland have adopted. We should like to see a code for Britain and not for England alone, and as preparatory to that great reform we deem it mere wanton waste to throw away the valuable suggestions which would be afforded by an impartial comparison of the laws in both parts of the island.
A British code is the great end to be arrived at; and with that in view the proper course is to prepare Digests of Scotch and English law simultaneously.
If these were both completed, assimilation by means of a common British code would be comparatively easy. The lawyers and the people of each country would have in their hands an authoritative exposition of their neighbours' law which would remove the great obstacle of mutual ignorance. Our English fellow-countrymen would perhaps discover that the jurisprudence of Scotland is not quite so barbarous as it is occasionally made to appear in the court of last resort. We on our part would perhaps find that the law of England is not in all respects so technical and confused as it sometimes appears to us at present. Both parties, too, we doubt not, would discover that many differences which now seem insuperable exist more in name than in reality. After removing some of the antique dress with which land rights in both ends of the island are still enveloped—a divestiture which we are already contemplating in Scotland—a common basis would easily be found upon which might be built a code for Great Britain.
We do not discuss in this paper the propriety of codifying the law. Indeed we do not know how the argument in its favour can be better stated than in the words of the Commissioners : "It is, as we conceive, a duty of the State to take care that these laws shall, so far as is practicable, be exhibited in a form, plain, compendious, and accessible, and calculated to bring home actual knowledge of the law to the greatest possible number of persons. The performance of this duty-a duty which other countries in ancient and modern times have held themselves bound to recognise and discharge—has in this country yet to be attempted.” These words we think carry conviction with them on the question of having a code. We wish only that the code which is to be framed shall extend over the whole island. It rests with Scotch members of Parliament at present to see to this, and prevent the absurdity of a partial code for either country alone. It is for them to see that preparations be made in Scotland for a union of the laws, and that upon terms no worse for us than the previous union of the kingdoms.
R. V. C.
We propose in future to give brief notes of the results of the more important decisions of the Court during the month. At present we have space for only a few of these. Some of the more important cases of the session will be dealt with in our “ Notes in the Inner House,” which we hope to be able to resume next month.
Of late years there has been an increasing number of cases involv
ing nice questions as to the effect of wills, or conveyances from the dead to the living, by means of cheques and deposit-receipts. Morris v. Riddick, 1st Division, July 16, was a very instructive case of this kind.
A person, in contemplation of death, handed to his friend a deposit-receipt, blank indorsed, and on a subsequent occasion he also handed to him the bank notes which the donee had obtained for the receipt, and which he bad given to the testator-a condition being added, on both occasions, that if the giver recovered from his illness the
money should be returned to him ; but if not, it should be the absolute property of the donee. The transaction was conclusively proved by the testimony of witnesses ; but, the giver having died, his executor claimed the money as part of his estate, and contended that the alleged gift was merely a legacy, and, being above the amount of £100 Scots, could only be constituted by writing ; or, if not a legacy, that it was a donatio mortis causa, and fell under the same rule. The Court unanimously adopted the view that it was a donatio mortis causa, but was not subject to the rule that applied to the constitution of legacies. It was held that, as property in moveables is transferred by mere delivery, which may be proved by parole, there is no reason for applying a different principle where a condition is adjected-viz., the condition that the gift shall be revocable, and shall revert to the granter if he recover from his illness. The actual delivery was held to come in place of the writing necessary to constitute a proper legacy. The differences between a donatio mortis causa and a legacy, on the one hand, and an absolute donation on the other hand, were very clearly explained in the opinions.
A litigation (Greig v. Simpson and Miles, 19th July, 1st Division) between the parishes of North Leith and South Leith fixes by a judgment of eleven judges out of the whole Court, that a seafaring man who rents a house for his wife and family, to which he himself returns at the conclusion of his voyages, may thereby acquire a residential settlement, under the Poor-law Act, in the parish in which the house is situated. In this case, the pauper's absences on foreign voyages were numerous and protracted, and the question was raised very purely, whether a settlement can ever be acquired except by personal residence? The answer which has been given, that, at least in such an exceptional employment as that of a sailor, it may be so acquired, is not easily reconciled with some former decisions (especially Inspector of Kelton v. Inspector of Tongland, July 6, 1866, 4 Macph., 1033). The Lord President, who dissented along with Lord Benholme, said that the judgment of the Court introduced a very bold method of construing the statute; and cautioned the Court against being misled by sentimental considerations, pointing out that a pauper has really no interest in the question what parish is bound to maintain him. This decision, however, of the whole Court must be held, unless the case goes to the House of Lords, and is reversed there, as overruling the previous cases, and introducing a somewhat novel principle into the law of settlement.