페이지 이미지
PDF
ePub

pute is, whether a previous conviction is admissible as evidence of guilty knowledge, to confirm the inference deducible from the res gesta of the case. The prevailing practice of the Court has been, we should have said, to withhold such evidence from the jury as evidence on the substantive charge, and to consider proof of previous conviction as a consideration for the Judge to hold in view in pronouncing sentence, not for the jury to regard in arriving at their verdict on the principal charge. And so much does this view harmonise with the logical theory of our law, that every man is to be presumed innocent until he is proved guilty, that a desire bas frequently been expressed that the practice which prevails in England of proving convictions after the verdict of the jury has been returned, should be adopted in this country. It is difficult, on the other hand, to dispute that a good deal may be said on the other side of the question. In the other case to which we refer, the Second Division have decided that an action of reduction, except in the way of exception as provided by the Bankruptcy Law Amendment Act, is not competent in the Sheriff Court. It is certainly taking very narrow ground to say that a form of process which is competent by way of exception shall not be competent by way of action. But there is no doubt that the strict construction which the Court have put upon the statute is in accordance with the general theory that declaratory actions are incompetent in the Inferior Court. It is well that the question has been raised, and an authoritative judgment pronounced, for we understand that there is a practice in some Sheriff Courts to the contrary, and it is notorious that there are at least two volumes containing forms of styles which are observed in the practice of these Courts.

Writs Registration Bill.We have much pleasure in calling attention to an admirably clear and concise pamphlet on this subject, from the pen of Mr Donald Beith, W.S. Mr Beith contrasts the Bill of the Lord Advocate with Mr Dunlop’s Bill of 1865, and gives his support to the former, as tending to reduce the number of registrars, and thereby lessen expense, as well as to add security generally to the system of registration of land rights. It is quite impossible within our limits to advert to the details of the discussion. Mr Beith’s remarks are well worthy of perusal, and will be found eminently practical and useful.

Legal Appointments.—The appointment of Mr Charles Morton, W.S., Crown Agent, in room of Mr Murray, had hardly taken

as

when the Ministry resigned. Mr Andrew Murray has been appointed Agent for the Commissioners of Woods and Forests in room of Mr Donald Horne resigned.

Bills in Parliament.— The Lunacy Act Amendment Bill, to which we some time ago called attention, has passed into law. A measure has been for some time before Parliament which might have been expected to attract greater notice from the bearing which it has upon important interests in Scotland. Its title being called the Crown Lands Bill may afford some explanation of the comparative silence which the press has observed in regard to it. Its leading provision is to transfer to the Board of Trade the management of the fore-shore, and to withdraw the powers of the Commissioners of Woods and Forests. We observe that a Bill has been brought in to diminish the expenses and delay in decisions to the settlement of paupers

in Scotland. Everything, of course, that has a tendency to reduce expense is to be commended, and there is no doubt that the parochial funds of the country have been recklessly employed for no better purpose than to obtain decisions on nice points of law. And the delay of the Court of Session bears injuriously upon that class of cases as much as on any other. But we are at a loss to discover a reason why they should be singled out to receive a preference. Indeed there are no cases which in a certain sense stand less in need of expedition ; for the paupers whose settlement is in dispute have no interest in the issue of the cause, they being provided for and maintained during its progress, and the parishes would seem just to have as little, for they have claims for past advances against the party who is ultimately found unsuccessful, although undoubtedly some inconvenience to individual ratepayers arises from the changes in the occupancy of land which are taking place every year, rendering it desirable to have all current expenses cleared off as nearly as possible year by year. we forget that no preference can be given to those public boards except at the expense of delay to ordinary suitors whose all may be at stake in the litigations in which they are concerned. The Court before wbom proceedings in this matter under this bill are to take place, is to consist of any three of the Lords Ordinary of the Court of Session.

The Breadalbane Case.— The Court, by a majority of ten to two, have decided this important case in favour of Glenfalloch, the party in possession.

Nor can

THE

JOURNAL OF JURISPRUDENCE.

LAW STUDIES.

No. III.-LONDON.

It is scarcely possible to imagine conditions more favourable to the formation of a great school of law than those which, to a stranger's eye, appear to exist in the metropolis. When you pass from the bustle of Holborn, or the roar of Fleet Street, into the quiet precincts of Lincoln's Inn, or the monastic Courts of the Temple, you can scarcely believe that such a school has not existed for ages. Even when you are persuaded that it is not, you still ask, why should it not be ? For many centuries these spots have been the local habitation of a proud, powerful, rich, ambitious brotherhood, bound together by many cherished associations and by the ties which common interests and common pursuits engender, -a brotherhood which numbers in its ranks every class of person, from the humblest attorney's clerk to the president of the House of Peers,—whose branches shoot upwards and whose roots strike downwards in every conceivable direction, and whose mere fiat, sincerely spoken, would actually suffice, at any moment, to call such an institution into existence. Those who belong to the highest branch of this fraternity—who are in priest's orders, so to speak—are the persons by whose instrumentality, if at all, such a school must be created, and for whose benefit it would mainly exist. Of these many are very learned, after the English conception of learning. Some are accurate scholars, thoroughly acquainted, not with the languages only, but with the institutions and opinions of the classical nations. To these acquisitions of

VOL. X. NO. CXVI. - AUGUST 1866.

their earlier days, they have added, since they joined their profession, an intimacy with the civil life of England to which no man but a lawyer ever attains. Others again, trained as mathematicians, have become conversant with the latest discoveries of physical research ; and are able to bring to bear on other departments of study those habits of methodical and concentrated effort which are the most valuable results of such pursuits. The vast majority of them are gentlemen and men of the world, beyond any other class of persons of which this country, or any other country in the world, can boast. Of these men, thus endowed and thus circumstanced, not one half engage--and a very large proportion never seriously wish to engage, —in practice. . They are men of fortune and of leisure, who have joined the body mainly for the attractions which its society offers; or else they are men whose ambition, from the first, has sought its gratification in learned occupations or in political life, to both of which careers the bar opens avenues to its members which are closed against the laity without.

To such a profession, and to such individuals as we have here described, a school of scientific jurisprudence, dealing, not with the narrower professional learning only, but with philosophy, history, politics, and economics, and this not in the abstract forms in which they are suitable subjects for academical prelection, but in their more immediate applications to the existing conditions of English life, offers advantages so great, so obvious and so readily attainable, that few things, as we have said, are more mysterious than that they should have failed for ages to secure them. Apart from all more material advantages, it is obvious that such a scientific nucleus would vastly enrich and beautify the life even of those who did not directly participate in the labours which it engendered, and increase their value in the eyes of the rest of the community. The gown and the coif would regain the reverence which they owed originally to the general intellectual pre-eminence of their wearers, quite as much as to their special skill. Why then has it not been created ?

Many immediate answers might be given; but the ultimate answer lies in peculiarities of our national character so strange as to be inconceivable to foreigners, and so deepseated and familiar as generally to escape our own observation altogether. To define them, or to trace them to their

historical, ethnological, and other sources, is impossible here ; but perhaps they may be described as a sort of vague terror for the systematical and reasoned, and a passionate clinging to the immethodical and irrational in our whole social organization. Just as many theologians are afraid to be learned in case they should cease to be pious, so almost all Englishmen are afraid to think or to reason on the laws which govern society, lest they should become convinced of the desirableness of greater freedom, or of the necessity of more perfect order, than is compatible with the constitution of society as it exists, or with what they believe to be British traditions. This propensity, rooted in national temperament and national circumstances, was vastly strengthened by the spectacle which Continental Europe presented towards the close of last century.

From causes baving very little analogy to any that ever were operative amongst us, France was then led to reconsider the whole subject of her political and social organization, and she reconsidered it rashly and hastily, and arrived at conclusions which all true Englishmen have ever since seen excellent reasons to repudiate. But the inference which all true Englishmen drew from this occurrence was one which, though warranted to some extent for the time being, becomes, as a permanent rule, untenable and almost unstateable—the inference, viz. : that men ought never to reconsider such matters, or to reason about them at all that all “discussion of first principles” leads necessarily to error, and that, if we must “progress,” the only safe course is to progress in the dark, to follow the stream, and to go we know not whither! Now that such a rule of conduct would be very likely to be called in question, were a great central school of jurisprudence and politics founded in the metropolis is obvious, and this consideration, (for we cannot call it a reason,) has all along formed and forms still, we believe, the great objection to it in many honest minds. So long as such studies are confined to the universities they are regarded as tolerably safe, because, from the youth of those by whom they are carried on, they are necessarily fruitless for immediate action; and before the time for action comes they are generally forgotten. But introduce them amongst men who are already mingling in the great world of London, and their influence on public opinion and on legislation would be inevitable, and nobody could tell what might become of it!

But though these views in the main have prevailed, they have

« 이전계속 »