Page images
PDF
EPUB

THE

JOURNAL OF JURISPRUDENCE.

Review of the Alonth.

The Meeting of Parliament-Lawyers and Law Amendment-Effect of Past Reforms-The English Solicitors and the Transfer of Land-Policy of the Profession in Scotland-The Reform Required-English and Scotch Law of Reparation-The Spring Circuits-Diminution of Business-The Defence of Poor Prisoners -Examinations for the English Bar-Defects of the Mercantile Law Amendment Act-Business of the Court for the Summer Session.

THE amount of "calm and concentrated swearing," which is the first business of a new House of Commons, involves a sacrifice of time which we hope to see provided for in the forthcoming ministerial measure relative to Parliamentary oaths. The real business of the session did not commence till Thursday the 8th instant, when a Royal Speech was read, of the usual indefinite character. We are glad to see, however, that the interests which we endeavour to represent, are dignified with a paragraph in this official programme. "Her Majesty commands us (says this document) to recommend to your earnest consideration, measures which will be proposed to you for the consolidation and improvement of the law. Bills will be submitted to you for improving the laws relating to the testamentary and matrimonial jurisdiction now exercised by the Ecclesiastical Courts, and also for checking fraudulent breaches of trust." These are two measures applicable to England only; but an announcement of much more general importance was made by Lord Palmerston on the evening following. We have already alluded, in terms of commendation, to the Address which was moved and agreed to last session, with respect to the establishment of a department of justice. We are happy to find that the Government have had the subject under consideration, and that an arrangement

VOL. I.-NO. V. MAY 1857.

FF

is about to be submitted to the House, which will have the effect of accomplishing the object contemplated. These facts afford satisfactory evidence that Government is sufficiently alive to the necessity of those amendments in the law which the progress of intelligence, and the changes in society, imperatively demand. The measures alluded to are English no doubt; but it is scarcely necessary to say, that the movement of which they are the evidence, cannot be confined to the sister kingdom.

What is to be the nature or extent of the legislation to be attempted with respect to Scotland, we are not in a position to say. As was anticipated, the Registration of Leases Bill of Mr Dunlop, and the Judgments Execution Bill, have been reintroduced, and read a first time. If little can be expected to be done in the brief interval that remains between this and August, there can be no question that, next session, the amendment of the law will form one of the chief matters to which the new Parliament will be called on to address itself. The nature of that amendment will depend much on the position that the legal profession assumes in the discussions which are likely to arise. It is theirs to guide and direct the movement, by the knowledge and experience which the exigencies of daily practice supply. The time has now gone by when it was deemed the true policy of the lawyer, either violently to oppose or to stand coldly aloof from every suggested change. We have no sympathy with those who see in every new bill a fresh inroad on our privileges. On the contrary, we are persuaded, that there can be no conflict between the interests of the public and the interests of the profession. In a country like ours, what is advantageous to the community must be equally so to every class it contains; and the experience we have now had of all the great changes that have been effected, within the last few years, is confirmatory of this opinion. We were to be annihilated by the Small Debt Act; Lord Rutherfurd, in his simplifications of Conveyancing, was secretly plotting our overthrow; the Sheriff Court Act would finish Edinburgh business; the Bankruptcy Statute would have a similar result; in fact, every legal reform that has been accomplished has given rise to the most wailful lamentations as to its probable effects on the legal body. Now, how miserably have all these dolorous anticipations been disappointed! We are not aware that the dangers predicted have ever presented themselves. Isolated instances there may be; but we appeal to the experience of our readers if, on the whole, the legislation of this century has not been to the advantage of the profession. Its whole tendency has been of a liberalising character. Process, generally, has been shortened-the impediments in the way of the efficiency of the local courts removed-the expense of review lessened-and, generally, useless forms have been either abolished or abbreviated. The effect of all this reform has not been to destroy the business of the Courts, but to enlarge its

area.

The consequence is, that there has been no perceptible dimi

nution in employment, but the reverse. And so, we affirm, it ever will be. If a change in practice puts an end to business in one direction, it is sure to spring up in another. Nay, we shall even go the length of saying, that there is no body of the people more deeply interested in having our legal machinery brought to the greatest possible perfection, than the lawyers themselves. However much law may be simplified, there must always be a class to assist in its administration, who make its study the business of their lives. No man can do without a legal adviser; if he does, the reports contain woeful evidence of the consequences which follow. It is perfectly well known, that those who are their own lawyers are our best friends in the end. But the character of the business changes with the habits of the time; and, in this busy age, it is not the complications of a case, or the indefinite prolongation of a process, but the rapid disposal of a vast number, that is the successful practitioner's object. The public want everything done with despatch, or they will not have it done at all. And such being the case, we consider every amendment of the law as really so much professional gain, either in the interpretation which every new statute requires, or in the new interests which it is certain to call into being. We repeat, then, that in the public policy of the profession, as well as in its private practice, the interests of lawyer and client are identical.

This is a topic, we are aware, which it is needless to dwell upon, because there never has been any difference of opinion among the more intelligent members of the profession in this country, on the subject. Almost every reform which has been effected in the law of Scotland, has either emanated from, or has been largely contributed to by, the lawyers themselves. Further, every sensible man knows that, even though it were not for the interest of the profession (which it happens to be), there is no use in resisting a movement it is impossible to withstand; for great as is the influence we possess, in defiance of all we can say or do to the contrary, if the public want law reform, most undoubtedly they will get it. But there are many classes of the non-learned laity from whom we do not get justice in this matter. They look upon us with distrust. The idea is, that we are too conservative, and that no good is to be expected from us. It is presumed that our sole interest is in weaving a web of technicalities, in the accumulation of forms, and generally in causing as much expense, delay, and confusion, as possible. The very reverse is the fact; for it must be apparent, that we have no interest in interposing obstacles to the settlement of every dispute by the Courts of Justice. However, we confess, there is some excuse for the idea, absurd as it is, in the discussions that are at present taking place in England regarding a contemplated measure, in which some of the profession there see nothing but destruction. The proposed amendment has for its object the simplification of the transfer of land, with the introduction of the Scotch system of registration of title. Now, all who know what the

English law of real property is, cannot avoid wishing success to a scheme which will benefit the landowner much, but his solicitor still more. Its obvious effect will be to make land, to a far greater extent than at present, a marketable commodity. It will be more frequently sought for, both as a source of investment and a subject of speculation. Transactions will accordingly be much more numerous; and if any one suffers by the projected bill, certainly it will not be the solicitor, to whom the duty of carrying them through must fall to be entrusted. And yet it would seem that there are some who are so blind to their real interests, and so wedded to things as they are, that, instead of helping on this movement, and by their advice and assistance striving to make the measure as complete as possible, are endeavouring to throw every obstacle in its way. The opposition is alarming the promoters of the scheme and the real friends of the profession. The power of the body is not to be denied. "The truth is (says one writer), the great landed proprietors are in the hands of their men of business. These useful agents know all about the family's affairs, they have lent money on mortgage of the family estates, they can put on the screw' at pleasure; residing in the country, and being brought much into contact with the voters, they possess great personal influence. Besides this, they are lawyers. Their trade is a mystery; and at the same time their aid in the way of that trade is absolutely necessary. The average country gentleman, ignorant as he is of law, finds himself in the hands of a master when he enters his lawyer's office. It is not that attorneys are a bit worse than other people, but circumstances give them more influence. Now, it is quite obvious that unless this powerful class are conciliated, it is idle to expect to pass any bill for facilitating the transfer of land." The means of conciliation are simply a concession of what justice requires. Let them be paid as the Scotch conveyancer is already remunerated, not by the length of the deed, but in proportion to the value of the subject conveyed, and the consequent responsibility involved. This would doubtless be much more satisfactory to the practitioner, because his fees would in most cases be more justly earned; seeing that the length of a document is no test whatever of its value, and at the same time, without diminishing either the trouble or remuneration of solicitors, the quantity of writing required would be considerably lessened.

Now, in Scotland, though our conveyancing is not capable of, and does not require, the same amendment as the English system seems to demand, there are many parts of our practice worthy of reconsideration. What is wanted here, is not so much law reform -meaning thereby an alteration in the great principles of our jurisprudence, as an amendment of our system of process. In other words, the remedy needed is not legislative, but executive. We believe our mode of pleading is, in principle, without exception; but that it is capable of some modification, is shown by the success which has attended the new regulations in sheriff courts, which, it will be

seen, are elsewhere commented on. It is to be remembered also, that our present rules were framed at a time when neither party could be examined in his own case. But that, on the whole, our process does, in its essentials, give satisfaction to the country, is proved by the fact, that arbitrations are no longer so common as they were. This most unsatisfactory of all modes of determining a dispute, appears rapidly on the wane; and, considering its liability to miscarriage, it is no wonder that such is the case. Still, the fact remains that, with the fullest confidence in the equity of our law, and with the most unbounded and universal respect for the learning and integrity of our judges, the interference of our Courts is not asked in one-half of the cases in which, by the interests of justice, it is demanded. It is undeniable that there is a distrust of the Court of Session abroad, which drives suitors from a tribunal to which, otherwise, they would gladly repair. People with both law and equity on their side, are frightened into compromises, into settlements by accountants, and into equally unsatisfactory modes of having their differences adjusted. For all this-by which the legal profession are the chief sufferers-neither they nor our law, but the intolerable delay, is to blame. The complaint is less against the expense than the time. They will not endure, for years it may be, the anxieties of a tedious litigation. It is the worry of such a ceeding that compels them, nolentes volentes, to make an abandonment of their legal rights, either by subsiding into a position of passive inaction, or by permitting some one to toss for the difference. All this, we venture to say, might easily be avoided, and satisfaction to the public more thoroughly rendered, by the adoption of some means which would accelerate the business of the Courts. This is a subject on which we have had occasion every month to speak. The profession are now beginning to be alive to its importance-and our end is so far gained. We trust they will not cease in their efforts till matters are placed on an entirely new footing. If the rolls of Court were clear, why should not every case be called and disposed of in a month? Were this the case, we feel persuaded that the legal business of the country, ere long, would at least be tripled in amount.

pro

Such, then, being the policy which the profession should pursue in this question, it becomes them to guide and direct any movement that may be originated in the mode best calculated to meet the end in view. Law Reform is a good popular cry; it is a favourite with the multitude; and it is a safe topic on every platform, involving no violations of the claims of party, and requiring no public professions that are not easily fulfilled. But those who indulge in it, as a class, are generally little better than rash empirics. They have a vague notion of what is required; but, in their ignorance, they make most lamentable blunders as to the means by which it is to be attained. It devolves, then, on the practical lawyer, conversant with the subject in all its details, and appreciating both the remedy that is needed

« EelmineJätka »