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on the Digest of Cases, more especially of those English Cases specially interesting to Scotch lawyers. All the Statutes relating to Scotland will, as hitherto, be published without abridgment. In the articles specially addressed to the Practitioner (which will in future be less of an elementary character), the current of recent Decisions will be traced, and a practical view exhibited of the changes introduced by Statute, and the progress of the Law generally. The JOURNAL will thus continue to be a complete compendium of the Law and Legislation of the year; while increasing attention will be paid to the discussion of measures in progress, and reforms contemplated.
38, GEORGE STREET, EDINBURGH,
30th November 1851.
JOURNAL OF JURISPRUDENCE.
Review of the
The Legislation of the past Year, The Codification of the English
Statutes—Consolidation of the Statute-Law of Scotland-State of Business in the Court of Session-Remedies proposed-A Third Chamber-Operation of the Sheriff Court Act-- Working of the Bankrupt Statute-Fees in Justiciary- Responsibility of Masters
for Injuries to Servants—Colonial Appointments. The meeting of Parliament is at hand, and an additional volume of statutes is in prospect, even while the Acts passed during the last session can be scarcely yet said to have been brought into practical operation. Since the year 1696, there has not been a session of Parliament which has given to the country so many practical statutes, as the last. In the year 1696 were passed some of that class of statutes that mark an epoch in the history of the law. Stair and Mackenzie, at the time were dead, and the very name of the author of a legislation which has survived the changes of a century and a half, has passed away into obscurity. In this respect, the Lord Advocate will be more fortunate. It is due to the tact, with which he managed the Parliamentary business of last session, that such a series of important statutes were given to the country; and, it is because of the success which he has achieved, that we now propose to remind him, that only a tithe of his labour is accomplished, and that the country still demands, at his hands, the redress of very clamant grievances.
Of the legislation of last year, we have, first, the new Act as to bankruptcy, which makes pretensions to the completeness of a code. We shall have occasion to speak more particularly of it immediately. Of course, it requires to be tested by experience, and, as is shown in another article, it is not, perhaps, to be wondered at (seeing that there were so many hands at the making it), that things are ordered to be done “in the form set forth in schedules,” which have been forgotten
VOL. I.-NO. 1. JANUARY 1857.
to be added. The Mercantile Law Amendment Bill is also a measure of the greatest moment. Many of its clauses must, no doubt, hereafter give rise to questions, some of which are hinted at in the article, the first of a series which we this month give to our readers. But, in addition to these two measures, there was also the Court of Exchequer Bill, which transferred over the whole of the Crown business to the Court of Session- the statute as to the registration of voters —that relative to industrial schools—that relative to joint-stock banks—that relative to the amendment of the law of marriage—and other measures of a practical character, which effect great improvements upon existing statutes.
Of course, those acts that are specially applicable to Scotland, drawn in this country, are only exposed to the ordinary defects which must esist even in the most skilful handiwork of a practised Scottish lawyer. But, where the people of Scotland are made subject
to laws--and these are the large majority of the statutes-drawn by English lawyers, they find themselves stopped by a multitude of words utterly unknown to the nomenclature of the Scottish law, and are not unfrequently desired or forbidden to apply for redress, by “ certiorari,” to the Courts of Westminster Hall. The innumerable questions and difficulties that have arisen, in construing the statutes, have been created simply by the carelessness or parsimony of the Government, in not submitting every measure, intended to operate over the United Kingdom, to the revision of a Scottish lawyer. It is, of course, idle to expect an officer, so overburdened as the Lord Advocate, with public and private affairs, to do this draftsman's work. It is no part of his duty; but it is a duty that must be performed by some one, if the intentions of the Government, as to the revision of the statute-law, be correctly reported.
For, in a letter, recently published, from Sir Fitzroy Kelly to Lord Brougham, Sir Fitzroy states, that the Government have put into his hands full powers to reduce the whole statute-law to the consistency and dimensions of a practical code. They have given to him the office of Chief Commissioner, with absolute authority to take any assistance that he might require—the funds for which were to be provided by the State. He has been engaged for upwards of a year, with the assistance of eight barristers, in this laborious duty. The principle upon which he proceeds, " is to take the statutes at large, from Magna Charta, to the last act of Victoria ; to expunge and reject from the statute-book every act and every enactment, which is either repealed, expired, or obsolete, and then to take what remains (which will consist of all that is law in force, and to continue in force), to digest and to arrange this body of law, by dividing it into classes, and sub-dividing each class into single subjects; and then to reduce the whole into single bills, each bill being on a single subject, but comprising the whole of that subject. The result of consolidation will be, that forty vols. of statutes will be reduced to four-that 16,000 Acts of Parliament, upon public general law, will be reduced to between 300 and 400--that 36 volumes of useless matter will have disappeared—and that the four volumes, which will then constitute the statutes at large, will contain between 300 and 400 Acts of Parliament only, the whole of these acts being in actual force and operation, and in an arranged and digested form and order, enabling any inquirer to find, at once, all the statute-law upon any particular subject in the one statute in which the law upon that subject is consolidated."
Now, nine-tenths of the statute-law in force in Scotland, have been passed since the Union, and are applicable to Scotland only, in common with the rest of the United Kingdom. All the statutes relative to commerce, to manufactures, to shipping, to trade of every kind; much of the criminal law, all the Justice of Peace law; everything, in short, except what relates to heritable estate, and proceedings in Courts of Justice, are common to both kingdoms. 'All this mass of legislation is now being reduced into a code, three-fourths of which, Sir Fitzroy Kelly states, are finished ; and yet no Scotsman has ever been asked an opinion upon the subject. If it be desired to save the country from vexatious litigation, and to render a measure, having so useful an object in view, such as to promote the end intended, it really is time that the Lord Advocate should ask admittance to the deliberations of Sir Fitzroy Kelly and his coadjutors, It seems that, when any difficulty arises as to whether one statute repeals another or modifies it, and to what extent, the point is settled by a consultation between Sir Fitzroy Kelly, Lord Wensleydale, and Mr Greaves. If the Lord Advocate cannot give his attendance as one of the board, he is bound to see that a person equally versant with the law of his country, is there to represent it.
We are not in a position to make any intimation as to intended legislation for Scotland. What we want at present is not so much new laws as the consolidation of those we have ; and, more particularly, the rendering the machinery by which they are worked, a little less cumbrous and uncertain. The state of the law, for example, as to forms of process in the Court of Session, is a scandal in a civilised age. It is to be gathered from a multitude of unconnected, and frequently inconsistent statutes---from volumes of Acts of Sederunt of the Court of Session, which have the force of statute-law-and from thousands of decisions, which no memory can ever master, and whose inconsistency no ingenuity can ever reconcile. If all this law were reduced to a single Act of Parliament, properly and scientifically framed, a great public benefit would be conferred upon the community, who, at the present moment, often find their substantial interests ruined by some mistake on a point of form.
But the matter that requires most immediate consideration, is the present condition of the Court of Session. It certainly requires peremptory notice.
At the commencement of the session, on 12th November 1856, the First Division published a list of 195 cases on the short roll. Since then there have been boxed (including six advocations), 81 additional reclaiming notes, three-fourths of which, or 60, we may infer, went to the short roll-making in all 255. The Division sat from 12th November to the 20th December, inclusive-29 daysand during that period they were able (in consequence of the great pressure of Summar Roll cases) to dispose of only sixteen cases on the short roll. Progressing at the same rate (and no Court could, in the circumstances, progress faster), this Division will have worked off the present mass of business before it, on the short roll, in three years and one hundred and thirteen working days—or nearly four years—there being only 116 working days for the Divisions, in the year, apart from extra sittings. The First Division have, on various occasions, in virtue of statutory powers voluntarily extended this period, in order to keep down the arrear. But, the relief has been temporary, and the evil goes on from day to day, increasing.
We have said nothing of the Summar Roll cases, which are in a favoured and privileged position; and the number of which, at the moment, we are unable to ascertain.
This enormous arrear is coincident with extra sittings and long hearings. No complaint can be made of the Judges. On the contrary, they give the public an amount of daily work as great as the human frame can stand. The sittings are protracted to an hour beyond which counsel, who have been in Court from nine o'clock in the morning, could not be got, and would not be able to attend. The evil is not to be cured, therefore, by a longer day's work; and yet it is an evil which has amounted now to something of the character of a denial of justice. If a case happened to be brought before a Lord Ordinary, in the Outer-House, whose roll is well filled, and marked for the First Division, the unfortunate suitors may calculate, at least, upon the expiry of a period of four years before final judgment is pronounced. They will have eighteen months in the Outer House, and (if there be extra sittings), say two years and a half, in the Inner. To those who are acquainted with the proceedings in the Court, it will not be strange to tell them of cases of cruel and unbearable hardship, resulting from such a state of things-calling loudly upon those who have the responsibility of government, for immediate interference.
What, then, is to be done? In answer to this question, it shall be our duty simply to report the various suggestions which are at the present moment busily circulated among those who take an interest in the subject.
The readiest, and most obvious solution of the difficulty, is that recommended by the Faculty of Advocates, which is, the peremptory and compulsory division of the cases between each Division, and among all the Ordinaries. It is proposed, that, upon each enrolling day, the enrolling-clerk shall, after all the cases liave been given in, begin with the last which has been lodged, and mark it for the First Division, and the immediately preceding one, for the