Page images

his mastery of the law, that one forgot the hesitating utterance and imperfect expression in the broad clear stream of his argument. But remarkable as this distinguished instance was, let not the true moral of it be mistaken. Although "Ammon's great son one shoulder had too high," it does not follow that the defect is characteristic of a conqueror. Clearness and accuracy of expression and elocu tion ought to be the subjects of steady and careful practice, and within these walls you have the requisite opportunity. When this art is fairly attained in reasonable measure, you are comparatively free to consider with a mind at ease the substance and method of your speech. Secondly, lucidity and arrangement both of statement and argument should be the subject of deliberate training. The first vice of a young pleader is brevity, or rather exiguity, of reasoning. He says what he has to say and has done it, not throwing into it the light and shadow necessary to make the picture effective. The second vice is intolerable prolixity. Having overcome the first obstacle by attaining fluency and expression, he has neglected the second requisite of precision, method, and scientific arrangement of his argument. If I may take the liberty of saying so, the last is the error to which our present practice tends. When I came to the bar, the Judges, who had been trained in the school of written pleadings, were impatient of oral debate in the Inner House. Whether they are impatient of it now or not, the outward indication is suppressed ; but, if they are, they have much more reason."

A Question under the new Trusts Act.-Some inconvenience has arisen from an interpretation put by some of the judges on the words in § 16 of this Act (30 and 31 Vict. c. 97), providing that applications under the Act "shall be brought in the first instance before one of the Lords Ordinary officiating in the Outer House, who may direct such intimation and service thereof, and such investigation or inquiry as he may think fit, and the power of the Lord Ordinary, before whom the petition is enrolled, may be exercised by the Lord Ordinary on the Bills during Vacation, and all such petitions shall, as respects procedure, disposal, and review, be subject to the same. rules and regulations as are enacted with respect to petitions coming before the Junior Lord Ordinary in virtue of the Act 20 and 21 Vict. c. 56." Lord Curriehill and Lord Mure have held, as it appears, that petitions under the Act (such as petitions for leave to feu trust-estates, of which several were presented in the autumn months) cannot competently be brought for the first time before the Lord Ordinary on the Bills in Vacation, in consequence of the words of this section, which seem to require enrolment before one of the Lords Ordinary before the case can be dealt with in the Bill Chamber. Further, sect. 10 of the Act of 1857 gives the Lord Ordinary on the Bills in Vacation the same powers as the Junior Lord Ordinary only in regard to certain classes of petitions there specified, among which, of course, such petitions as those in question are not enumerated. We cannot but regard the construction now put on the Act as erroneous. The section quoted confers on the Lord Ordinary in Vacation the power of the Lord Ordinary before whom the petition is enrolled, and that power must apply to the first stage in the petition as much as to any other. A petition may surely be enrolled before any of the Lords Ordinary in Vacation, although it is first written upon by the Bill Chamber judge as his locum tenens. It may be said that the Lord Ordinary is not sitting, and has no function in Vacation; but the Act expressly confers all the power

which he could exercise on the Bill Chamber judge; and to say that a case can only be "enrolled" before the Lord Ordinary during Session, is defeating the plain meaning of the Act in order to give effect to a plausible quibble. The condition of enrolment may, if literal fulfilment be insisted on, be satisfied by putting the Lord Ordinary's name on the back of the petition, and enrolling it in his office for the first day of Session, which may be as well done on the 21st July as the 11th of November. The words of the 10th sect. of the Act of 1857, limiting the power of the Lord Ordinary to certain classes of petitions, are enlarged by, and do not restrict, the terms of the 16th sect. of the Act of 1867. This view is confirmed by the fact that Lord Barcaple, who officiated in the Bill Chamber when the first petition under the Act was presented, ordered intimation and service without hesitation, although the petitioner, in consequence of the doubt suggested by the subsequent decisions, has seen fit to take a renewed order after the meeting of the Court. It is fortunate that the inconvenience and delay caused by this perverse construction of the Act are not likely to be so great in future, many parties having been long waiting to take advantage of the Act, and having presented their petitions at the earliest possible moment after its passing. It may, however, be still desirable that the point should be cleared by a decision of the Court, or by being noticed in any Act or Sederunt which may be passed on the subject.

Scottish Criminal Statistics.-Last month, in a paragraph chiefly founded on a leading article in the Scotsman, the usual accuracy of which journal was to us a sufficient guarantee of the truth of the statements it contained, we were induced to condemn in too broad terms the system of judicial statistics for Scotland. We have been reminded that that condemnation ought not to apply, at least in the same measure or on the same grounds, to the Tables of Criminal Offenders reported by Her Majesty's Advocate under 1 Wm. IV., c. 37, a sentence in which formed the immediate text of the Scotsman's article. A glaring and evidently accidental mistake committed by an official new to the work, and made prominent by quotation in a paper read before the Social Science Association, has caused this set of tables to be involved in the vituperation which is deservedly bestowed on the statistics, or rather no statistics, of the Scotch civil tribunals. It is just as well to point out that whatever may be the defects of this set of tables, there are as great in those of the sister country relating to the same matter,* and that they are pre

A paper by Mr C. S. Greaves, Q.C., in the Law Magazine and Law Review for Nov. 1866, shews that the English Returns are far from being immaculate. The most important paper on Scotch Criminal Statistics with which we are acquainted is one by Mr J. F. M Lennan, in the Social Science Transactions for 1863, desiderating improvements in the system of procuring and preparing these statistics-improvements which can only be effected by the Legislature or by the Secretary of State under the existing Act. Mr M'Lennan assumes the correctness of the returns, and as he had evidently examined them carefully, it is, in fact, the testimony of a very competent authority to the general accuracy with which they are got up in the Lord Advocate's Chambers.

pared with great care and without any remuneration by the Chief Clerk to the Lord Advocate for the time being. We have looked over the returns for several years as printed, and we are bound to say that the public have no reason to complain while such labour is bestowed almost gratuitously. The process of preparing the abstract of returns in question, which is no mere fly-sheet, but a pamphlet of twenty folio pages, representing returns (not published) of 120 printed folios, is somewhat as follows:-The classified and unclassified returns, prepared by the Sheriff-clerks of counties, assisted by the Procurator-fiscals and other officials, are transmitted to the Lord Advocate on 1st January of every year, signed in conformity with the Statute by the Sheriff. The Classified Rsturn contains three tables, the first showing "the number of persons committed for trial or bailed, and the result of the proceedings," and consisting of thirty-six columns; the second, showing the age, sex, and degree of instruction of persons committed for trial or bailed, with thirty-two columns; the third, showing the courts in which persons committed for trial or bailed, were tried, the number of the convicts previously convicted of similar offences, and the number convicted of other offences at the same trial, distinguishing the sex, in these and other particulars, and containing thirty-one columns. The Unclassified Return, which contains the names of the persons committed for trial, with the various particulars enumerated in the Classified Return, is transmitted to the Lord Advocate for the purpose of checking its accuracy with the numbers given in the tables of the Classified Return, which last is required by the Act of Parliament to be transmitted to the Home Office. When these returns are received on January 1st at the Lord Advocate's office, the duty which the chief Clerk has to perform consists, first, in checking the returns, and then copying, on folio sheets. all the Classified Returns, for transmission to the Home Office. From these he then prepares (1.) three similar tables, showing a Classified Return for the whole of Scotland; (2) A table showing, in each county collectively, the total number of persons committed for trial or bailed, and the result of the proceedings (thirty-six columns); (3.) and (4.) Tables showing, in each county collectively, the age, sex, and degree of instruction of the total number of persons committed for trial or bailed; in each county collectively, the total number of persons tried in each court, the total number of the convicts previously convicted of similar offences, and the total number convicted of other offences at the same trial, distinguishing the sex in these and other particulars, (thirty columns); and (5.) (6.) (7.) and (8.) Tables showing, in each county collectively, the total number of persons committed for trial or bailed for each description of offences; a comparative table, showing the sex of persons committed for trial or bailed in each of the last ten years, the total in each of the two quinquennial periods, and the number in each county respectively; a comparative table, showing the number of persons committed for trial or bailed in each of the last ten years, the total in each of the two quinquennial

periods, and the offences with which the persons stood charged; and a comparative table, showing the number of persons committed for trial or bailed in each of the last ten years, the total in each of the two quinquennial periods, and the number in each county separately. The abstract of these tables is then prepared, and transmitted, with the various tables for each county and the general tables, by the Lord Advocate, with an official communication, on the 1st of March, annually, to the Home Secretary, to be printed and laid before Parliament. The observation made by the Scotsman that "the returns for Scotland come forth unauthenticated by any name" is incorrect, as they are, in the first place, authenticated by all the Sheriffs of Scotland, and afterwards by the Lord Advocate. It appears from a note in the abstract that the Home Office has endeavoured to procure returns from Scotland as nearly as may be the same in form as those for England. It is stated that


"The following Tables for Scotland have, by directions from the Home Office, been substituted for the form specified in the Statute 1 Gul. IV., c. 37, with the view of more nearly assimilating them to the criminal tables now in use to be presented to Parliament for England. In consequence of the different systems of criminal procedure in the two countries, a complete assimilation was impracticable; but to assist in bringing the assimilation more close for comparative investigation, a comparative table of the respective classifications of offences is here annexed." This statement of facts is enough to show not only that the returns of criminals now made up for Scotland cost no little labour, but also we think that they provide the statesman and the philanthropist with data of considerable value. The plan on which the tables are arranged might possibly be altered for the better, and additional information might be required. But as the law stands, such changes must come from the Home Office, and probably officials there feel that they cannot fairly require more (the wonder to us is that they have the face to take what they now get) without a vote by Parliament of adequate remuneration. Perhaps no higher proof can be found of the care which has for many years been bestowed by underpaid officials on this task than the fact that the writer in the Scotsman, writing no doubt with the best intentions and the most patriotic desire to expose abuses, could find none more grievous than an arithmetical error, which Mr Tennent ought to have detected, and he no doubt did discover by a moment's attention.

The Want of a Cheap Appeal.-No one can read the newspapers without perceiving daily the great disadvantage which Scotland suffers in not having the means of obtaining an authoritative decision of the numerous points of law which arise in the execution of statutes by magistrates of burghs, parochial boards, justices, and other public boards and officials. We have referred on another page to this grievous defect as it is felt in the Sheriff Small Debt Courts. A curious instance of it is reported to have occurred the other day at Dunbar, where the bailies take opposite views upon the question whether under the General Police Act 1862 the Commissioners of Police are entitled to go into every place and take and dispose of

pig dung, or whether this article falls under the exception in the act of stable and byre dung. Severals persons have, it appears, been prosecuted for contravention of the Act in selling their pig dung, the burgh fiscal adopting the view that the commissioners are entitled to dispose of this. Two magistrates hold that the commissioners have no right at all to enter private places and remove manure, and that they can only do so when asked. Hence a remarkable discrepancy in the decisions in the police-court according to the various views of the presiding magistrates. The state of matters described in the following paragraph is not edifying, and loudly demands a cheap appeal-a boon surely not to be denied when the Court of Session has "no adequate judicial function to perform":

"In a case brought up last week, the two presiding magistrates were of different opinions, and the matter came to a dead-lock. Neither of them would yield to the other the one determined to convict, and the other characterising the whole affair as legal robbery. After a lengthened sederunt, the matter was only adjusted by the Clerk suggesting a merely nominal fine. In another similar case the Fiscal craved a conviction. He considered it hard that poor people generally were compelled to give up their refuse, and those keeping pigs should get off free. Pigs were fed at a profit, and the owners of them were better able to lose the profit of the manure. Bailie Nisbet held that the accused had a perfect right to dispose of the pig manure. All the witnesses stated that there were no ashes among the manure in question, and he did not consider the Commissioners had any claim to it. Bailie Gardner agreed so far with Bailie Nisbet; but, at the same time, he accepted the Fiscal's reading of the Act. He would never convict, however, until they commenced at the beginning and made all parties alike. The Provost read the Act in a different way from the Fiscal. He thought the tacksman of the town's manure had made a mistake. All the Commissioners had to do was to clear the streets, but they had no right to go into private property. If they were to read the Act literally, they might claim all the manures, patent and otherwise, about the town. Bailie Bayne held that horse and cow dung were the only exceptions mentioned in the Act, and that the Commissioners, and consequently the scavengers, had a right to everything else. The Magistrates ultimately agreed to a decision of "Not proven," and the case was dismissed, without, however, any arrangement being made as to how they were to proceed in future."

Obituary. Thomas Pemberton Leigh, LORD KINGSDOWN, who died at Torrehill, Kent, 7th Oct., was born in London 1793. He descended on his father's side from a family in Warrington, and on his mother's from a branch of the Leighs. He was at no public school or University, and began his career in a solicitor's office. He read for the Bar in the chambers of his maternal uncle, Mr Cooke, a distinguished equity lawyer, and in 1816 was called to the Bar. In 1829 he received a silk gown, and for many years, especially after the elevation of Bickersteth to the Bench, he stood at the head of the Bar in the Rolls Court. In 1841, he accepted from Sir R. Peel the office of AttorneyGeneral to the Prince of Wales. In January 1843, the death of his eccentric kinsman, Sir Robert Leigh, placed Mr Pemberton in possession of a life interest in the Wigan estates, amounting to about £17,000 a-year. He retired from the Bar, was sworn of the Privy Council as Chancellor of the Duchy of Cornwall, and shortly after became a member of the Judicial Committee of that body. The duties of that office he performed for twenty years with unremitting diligence, but entirely without emolument, and with no outward recognition of his services except the peerage, which was first offered to him by Lord John Russell in 1853, and eventually conferred on him by Lord Derby in 1858. While at the Bar Mr Pemberton was M.P. for Rye, and afterwards for Ripon. His speeches in Parliament were rare and unimpassioned. Perhaps the most remarkable was that in which he resisted the pretensions of the House on the memorable privilege case of Stockdale v. Hansard. In the House of Lords Lord Kingsdown rarely took part in political debates. He gave his services in the judicial business of the House, although he never approved the constitution or

« EelmineJätka »