« 이전계속 »
of empowering their lordships to take proofs—or rather by preventing their granting commissions to take proofs in Edinburghcoupling this with power to take them on their blank days. The working of this system under the conjugal rights act, with the aid of an interpreter, has proved an entire success.
So the Lord Advocate could not, in introducing a short Bill to effect this object, be charged with proposing speculative changes, of which the effect is uncertain; and he could calculate on support from all branches of the profession, for we know of none who are satisfied with the present mode of taking proofs. His lordship himself showed that he was not satisfied with the existing state of matters, for he himself proposed a change in his procedure acts. We, therefore, call upon his lordship not to withhold an improvement which all desire merely because it is simple and convenient of ascertained efficiency.
Poor Law.—In another part of our columns we publish the report of a case recently disposed of in the House of Lords, which raises a very important point in the practical administration of this branch of law. The House of Lords, affirming a judgment of the Court of Session, obtained only by a majority of one—the judges being seven to six-have found that a parochial board is not entitled to apply its poors' fund in relief of able-bodied persons who are, from want of employment or other causes, temporarily in distress, but are not in the sense of the statute proper objects of parochial relief. The arguments in the Court above, as in the Court here, turned mainly on the construction of the section of the Poor Law Amendment Act, and, keeping in view the stringency of its provisions, with the literal and technical tendencies of the House of Lords, the result was to be anticipated. Yet we think there is cause for regret that the more equitable and practical views of the minority of the Court of Session have not prevailed. No doubt a great many evils are to be apprehended from any diversion of parochial funds from their appointed object, and there are few local economics in which a greater number and variety of interests are involved. But that is the very reason why the discretion which was proposed to be extended to the inspector of poor is not likely to be abused. Beyond this risk there was nothing against the views upon which the appellants relied except the peremptoriness of the Act of Parliament; and we must confess, although quite aware that we are
not advancing a legal argument, that the opinion of the Lord President, the framer of the Poor Law Amendment Act, to the effect that he considered, and he had intended so to frame it, that the clause in question did not exclude the class of persons which were sought to be brought under its operation, does not seem to us to have been treated with the respect and consideration which, we think, it ought to have been received. There never, perhaps, was a case more strongly justifying a departure from the traditions of the Court of Appeal, looking to the practical benefits that might be looked for from the views of the minority in the Court below. Because the history of our country in recent years has made it quite evident that occasions of derangement and disturbance, such as was proposed to be relieved by the Parochial Board of Dundee, are likely from time to time to arise. These must be met, of course, in some way or other, and as the interference of Boards has been declared illegal, it is difficult to see where any other remedy is to be found except in direct and general legislation.
Lord Lyon King-at-Arms.—By the death of the Earl of Kinnoull, the high post of Lord Lyon King-at-Arms in Scotland, equivalent to the office of Earl Marshall in England, has become vacant. The late Earl's commission was dated as far back as 1796, and was issued in favour of his father and himself conjointly. However the vacancy may be filled up, we hope the opportunity will not be lost of sweeping away the many cobwebs that have gathered round and somewhat obscured the practical utility of the office, and that the light of day will be allowed to enter into the administration generally. We recommend the regulations that prevail in regard to fees to serious consideration.
It was but the other day that we called attention to the importance of this department in the Register House, both in regard to heraldry and genealogies, and as regulating and controlling the whole body of messengers-at-arms. The days are past when the mysteries of this last office were such as to require regulation by a separate department. The baton, or “rod of peace,” is nearly as much devoid of terror as the “horn," and the advantages of the office, generally, instead of being so great as to make it necessary to limit the number of messengers by statute, are so reduced that the difficulty is, except in larger towns, to find men to undertake its duties and responsibilities ; of which the natural consequence
and the evidence is, that there are constant applications to the Court of Session to grant authority to sheriff-officers to serve writs which, without such warrant, could be served only by messengers.
The general inference is, that between the transfer of business to sheriff-courts, and the simplification of forms generally, the functions of the messenger-at-arms are nearly at an end.
The impression to be gathered from the report of “The Commissioners on the Courts of Justice,” of which we give an extract below, is that the control exercised by the Lyon office over messengers was not on a satisfactory footing when the Commission sat (1822), it is not likely that the diminished importance of the messenger's office has led to increased efficiency; we would suggest, as matter for enquiry, whether the remaining functions of messengers might not be transferred to sheriff-officers. This might require some little adjustment of the qualications of the latter body, but we are satisfied that, with the aid of the sheriffs, the regulations as to their admission might easily be made such as to satisfy the requirements of the public safety.
From the remarkable length of time during which Lord Kinnoull held office-no less than seventy years—the report of the Commissioners has not been dealt with, and nearly half a century has elapsed since it was given in, which necessarily detracts from its value. One or two extracts may, however, not be without interest at the present time :
“With respect to the jurisdiction of the Lord Lyon in the granting and matriculating of arms, we think it enough to state, that the rules to be observed by him in the exercise of these powers, do not appear to be fixed with precision; and that in so far as it shall be considered material to have the same ascertained, a new revision of these rules by competent authority seems to be required.”
“We do not presume, in a question of this nature, to offer any opinion as to the particular regulations which it would be expedient to adopt. If the extent of the Lord Lyon's right in the grant of arms and armoural distinctions shall be defined, the proper allowance for each admits of being ascertained and limited by the same authority.”
Having explained the control which the Lyon Office is supposed to exercise over messengers, they say, “We have already alluded to the obstacles in the
way of the Lord Lyon's control over Messengers-at-Arms, occasioned by the want of any adequate fund for defraying the prosecutions against them, which are competent by the statutes and injunctions."
“We humbly recommend, therefore, that as the duties of the Lyon Depute are of a judicial Lacere, it should be provided, that the peason to be ap
pointed by the Lord Lyon as his Deputy, should be a member of the Faculty of Advocates, of not less than three years standing at the bar; that provision should be made for preventing the union of that office with the office of Lyon Clerk, and that the appointment to the latter office, Damely, that the Lyon Clerk, should hereafter be reserved to His Majesty.
“We humbly recommend that a new regulation of the whole fees should take place, calculated to produce not less than £1800; that the whole amount of these fees should be made payable to Exchequer,” and that instead of the variable receipts “from fees, the Lord Lyon and other officials should be remunerated by salaries, reserving a surplus from the fees which shall be establishlished, of £100 as a fund in Exchequer towards defraying expenses of prosecutions to be carried on by the Procurator Fiscal.”
What arrangements have been made for carrying out these recommendations we are really not aware; the lapse of time since they were made, of itself, suggests the propriety of reconsideration. Effect has been given to the recommendation that the LyonDepute should, as being a judicial officer, be a member of the bar, and whoever knows anything of the state of the Lyon office knows that the result has been to impart a life, and a method, and an efficiency to its operations which have long been unknown.
Legal Intelligence.—The office or Attorney-General at the Cape of Good Hope has been conferred upon an English barrister. We are not aware that any of the legal officials at the Cape are now members of the Scotch bar, It used to be otherwise there, and also in our West India colonies, where the civil law prevailed, and in Ceylon. If ever there were a time when we should have expected the interests of the Scotch bar to be maintained, we should have expected it to be when the Dean of Faculty—the man most interested in the Scotch bar-holds the office of Lord Advocate, that which gives him most power to enforce the claims of the bar. We are glad that he has at least secured a firm hold in the Mauritius, where the offices of Chief Justice and ProcureurGeneral are both held by members of the bar, and we rather think one of the Puisne Judges also, though a native of the Mauritius, studied in Scotland and passed advocate.
English Juries. We notice that a bill has just been brought into Parliament by Sir C. O'Loghlan with the view of relaxing the rigour of the present system of jury trial in England, so far at least as its practical details are concerned. The measure has been suggested by the proceedings that have recently occurred in connection with the case of Charlotte Winsor, whose sentence of
death has twice been respited. The bill proposes to give the judges the power of discharging the jury whenever they consider that step necessary, and of ordering refreshments for the jury, which is at present incompetent by the law of England, and of receiving their verdict on a Sunday, which we suppose to be now illegal, Sunday being dies non juridicus.
Confederate Cruisers. We discussed the Alabama claims last summer at such considerable length that we cannot allow ourselves to resume the subject in consequence of the publication of the correspondence relating to the Shenandoah, in regard to which the position of our Government was still stronger than as to the Alabama. We are pleased to hear from the speech of the Attorney-General the other night in his place in Parliament, that before any of the discussion arose, our Government, conscious that our Foreign Enlistment Act was a most imperfect piece of legislation, proposed to the American Government a joint revision of their act and the British. Even those who have hitherto doubted the good faith of Great Britain must, we should think, now be satisfied; and were anything wanted to complete the true picture of the relative positions of America and Britain, it is to be found in farther statement of Sir Roundell Palmer, that since the close of the struggle the Americans have again refused to enter upon any joint reconsideration of our Foreign Enlistment Acts!! Though this country and America are the two in which the provisions of such acts are most likely to have important bearing on the peace of the world, and although they truly relate to the municipal law, we are inclined to think that other maritime States also might take part in any such discussion as that proposed.
English Law of Sale.—Though fictitious biddings at sales by auction in order to kee pthe price up have been repudiated in the Courts of Law in England, yet, strange to say, the Courts of Equity have interposed in their favour. For some time back the expediency of so doing has been much doubted, and Lord Cranworth, in giving judgment in the case of Mortimer v. Bell in November last, half promised, should the question arise purely, to upset the rule. We are glad to observe that that energetic law reformer, Lord St. Leonards, bas interposed to remove the blot by introducing a bill which will have material effect in correcting the present state of the law.