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things in which it might have been supposed possible to introduce, especially after so long a time, very close similarity in the laws of the two countries, and yet with regard to which any such assimilation is at present neither likely nor desirable. But there seems to be no reason why assimilation should not be prosecuted in many important portions of the laws affecting the domestic relations, in the laws of succession, in the laws affecting the relations of landlord and tenant, as well as in the laws of bankruptcy and mercantile law generally, and many others that might be named.
Even in the laws relating to real property a good deal might probably be accomplished with mutual advantage. The experience of between two and three centuries has proved in Scotland the immense advantages of her registrational system, on which the land rights of Scotland are now firmly based, and I believe the Scottish people to be too well aware of its manifold benefits to consent to impair its efficiency, and still less to part with it. Those benefits have at times commended themselves to the regard of English lawyers, who have more than once contemplated the establishing for their own country of a proper and uniform system of records. Should they ever address themselves to that object, with the energy and talent for which they are distinguished, it would probably be accomplished; and in that case we might not be too sanguine in the belief that assimilation even in the conveyancing of the two countries would not be far distant.
Within the recollection of most of us a very great deal has been done in Scotland for the amendment of the law of real property, and if the learned President of this Society shall be successful, as I trust he will, in the present Session of Parliament, not only in carrying those further improvements which he has for some years been maturing, and of which the Society has expressed its cordial approval, but in sweeping away entirely the old feudal tenures, I believe our system of conveyancing will compare favourably, for simplicity and clearness, with that of any other country in Europe. We shall not indeed have arrived at the consummation which law reformers more distinguished for zeal than for knowledge and forethought sometimes aspire to, of transferring lands and houses in the same manner as tables and chairs. That, as we know, is simply impossible. We can transfer such moveables from one living hand to another by actual delivery, simply exchanging them for the price, and that exchange and delivery complete the transaction. In the transfer of tables and chairs we have nothing to do with bonds or securities, with perpetual ground-annuals, with leases to tenants for long terms of years, with rights of feu-duty, rights of teinds, or any similar interests, and therefore no writing whatever is essential. But rights such as these can neither be created nor subsist, nor be made the subject of any transaction, without writing; and it is well known to those, whether lawyers or laymen, who are really acquainted with business, that in very many transactions of
the utmost importance connected with such rights writings of considerable length cannot be dispensed with. But though land and houses can never be transferred in the same manner as moveables, the mode of transferring them may be very short and simple. A conveyance of land frequently contains covenants, separable from the transfer, which add materially to its length, but the conveyance itself may be no more than a few lines. If our system of land tenure be abolished, and the lawyers of England, divesting English conveyances of all technicalities, follow in this respect the example of Scotland, and at the same time accept registration as the basis of their system of land rights, assimilation of the laws of the two countries, even in the conveyance of land, would no longer be difficult, and I believe if so accomplished it would be of incalculable benefit to our English fellow-subjects.
In aiming, however, at assimilation of the law, it must be kept in view that it cannot well be accomplished otherwise than gradually. But if due care be taken to extend, wherever it can properly be done, the sphere of current legislation to both ends of the Island, and to create, in new legislation, no new divergencies, as well as to promote assimilation of the law by measures specially directed to that object, we may reasonably hope that no long time will elapse till it is evident to all that substantial progress has been made.
Possessing a House of Commons that generally embraces lawyers of the first eminence, both at the English and Scotch Bars, we need not doubt that, if careful attention be given to the subject, wellconsidered measures will be devised for assimilating to a large extent, and with mutual benefit, the laws of the two countries. It is an object well entitled to have enlisted on its behalf the abilities both of English and Scotch lawyers, and if the Society, which so early inscribed assimilation on its banner, shall promote it zealously, it may do much to give impetus to a movement of great benefit to the law in both ends of the Island.
II. The laws of marriage formed another of the subjects which the Society at the outset of its career proposed to consider. When it did so, there had been recently issued a most valuable report, dated July 1868, by the Royal Commissioners appointed to investigate that important matter. The report has not been made the basis of any legislative measure, and it is not my intention to detain you by any but a very general reference to it. It is, however, the result of a very exhaustive inquiry, of more than three years' duration, by a Commission embracing some of the most capable men in the three kingdoms, including the present Lord Chancellor, and no less than three others who have at different times occupied the Woolsack, and also the present Lord Justice-General and Lord Advocate of Scotland, the late Mr Murray Dunlop, Lord O'Hagan, the present Lord Chancellor of Ireland, and several others. The report was arrived at not with entire unanimity, but with a near approach to it. Dr. Travers Twiss dissented merely on matter of
detail, not affecting the principles of the report; Mr Monsell and Lord O'Hagan dissented as regards divorce a vinculo, believing, as Roman Catholics, such divorce by any civil power to be contrary to the law of God; and the only other dissentient, and the sole dissentient as to the principles which should regulate the mode of contracting marriage, was the Lord Justice-General, who is of opinion, shared by many witnesses from Scotland, that the principle of the existing law of Scotland that mutual consent de præsenti of itself constitutes marriage, without any form whatever, should be maintained. That view-I need not say from no want of ability in its advocate, and notwithstanding that it was supported by many Scotch witnesses of acknowledged weight and position-did not receive the sanction of any other member, Scotch, English, or Irish, of the Commission. The Commissioners expressed the opinion that neither the English, the Irish, nor the Scotch law of marriage should be adopted; but that one plain, simple, and secure marriage law, based on absolute impartiality as between the members of different religious bodies, and giving every proper and reasonable facility for celebrating marriage, but at the same time discouraging and placing obstacles in the way of sudden and clandestine marriages, should be established for the Empire. The accomplishment of this result must necessarily imply that the present law of Scotland, which requires no solemnity or form of any kind to the constitution of marriage, shall be in that respect altered. Such a principle obviously interferes with the certainty of the contract, which must be admitted to be a consideration of the highest importance, and if we adhere to it the practical result must be that one law of marriage for Her Majesty's dominions cannot be established. It is said by some, however, to conduce to morality in Scotland, and to tend in some measure to explain the far greater morality existing here than elsewhere. But it may not be absolutely certain, and it is not easy to ascertain from any authentic statistics, that such greater morality exists; nor is it clear that imposing marriage as a penalty on breaches of the moral laws contributes to foster morality or ministers to the well-being and happiness of the parties themselves. One thing does appear from statistics which have been gathered since the passing of Lord Elcho's Act in 1854, viz. that the entire irregular marriages of every description, for eight years following that Act, did not exceed one in a thousand of the marriages actually registered; and as probably only a few even of this very small number were secret consensual marriages, there arises the important question whether, giving our present marriage law credit for all the good effects attributed to it by its friends, these be after all so material as to warrant the maintaining it as an obstacle to an imperial marriage law.
To these few observations I will only add that whatever opinions may be formed of the recommendations contained in the Commissioners' Report, into the details of which it would be out of
place for me now to enter, all will readily acknowledge the moderation and ability with which it is framed, as well as the great importance of the subject. That such a report has not yet formed the subject of a legislative measure, or even of discussion in Parliament, may be accounted for by the extent to which, for the last few years, other, and in particular Irish questions, of great importance and interest, have occupied the time of the Legislature, thus rendering it of little avail to moot a large imperial question such as this, on which difference of opinion prevails. This also may have been the reason why this Society has not yet addressed itself to the consideration of the Commissioners' Report. Let us hope that the time is not far distant when other measures more immediately urgent may have received the attention they claim from the Legislature, in which case discussion of the question of one law of marriage for the Empire is not likely-pioneered as it has been by an exhaustive inquiry-to be much longer deferred.
III. The third topic to which the Society proposed to direct its attention was our Scottish courts of law. For some years before it was associated much interest had been excited in questions relating to the constitution of our courts of law, supreme and inferior, and it is difficult to say whether those relating to our superior courts of law, or those attaching to the inferior courts, received most attention and criticism. It would be in vain to disguise that, with a Bench neither wanting in the number nor in the learning and ability of its occupants, the Court of Session has not always maintained the position in public estimation which its well-wishers would desire; and it must be obvious to those best able to estimate the character of the judges, and the manner in which the judicial function is and has been performed, that the shortcomings which have formed the subject of such widespread complaints have been attributable to the system, not to those who administer it.
The existence for many years of very great dissatisfaction, both in and out of the profession, was evident from the published reports of various legal bodies, advocates and writers, both in Edinburgh and the provinces, all uniting in complaints of the great expense and delay of Court of Session procedure. Such complaints do not find expression in the profession until dissatisfaction pervades pretty extensively the community at large; and in this instance they culminated in a public address by one of the Judges of the Court of Session itself, dwelling at large upon the evils complained of, admitting their existence, and attributing them to supposed defects in the constitution of the Court, for which a specific remedy was suggested.
The address contained some statistics as to the business of the Court, directed to shew a continuous diminution for a great many years, and that from 1831 to 1867 that diminution was represented by about 1956 causes enrolled in the Outer House Rolls in 1831,
as compared with an average of about 1100 so enrolled for some years immediately preceding 1867.
The views and suggestions of the learned Judge were, as might have been anticipated, extensively canvassed, and the opinion of those supporting them seemed to be that the present system of permanent Lords Ordinary should be abolished, and a system of divisions established in lieu of it. Under such an arrangement the Court, instead of being distributed, as at present, into two divisions, each consisting of four Judges, with five permanent Lords Ordinary, would be distributed exclusively into divisions, each Judge of the Court being attached to one of the divisions, but being competent either to sit from time to time in any other, as convenience should require and the Court itself prescribe, or to sit singly, whether at chambers, or at the trial of causes, or otherwise, exercising, in so far as committed to him in the particular case, the whole powers of the Court. It seemed also to be thought that a Court of Appeal might be created out of the Court itself-the appeal not to be matter of absolute right, but to be allowed only where difference of opinion should exist on the Bench, or where liberty to appeal should be granted by the Court.
These suggestions, coupled with proposals to simplify very much the procedure before the Court, by shortening the pleadings, and preparing them under the superintendence of clerks of court, and of judges at chambers, represent in substance the material changes which, in order to save expense and delay, a large number of persons have desired to make on the present constitution and practice of our Supreme Court.
With respect to the constitution of the Sheriff Courts, the main objection which has been taken is the existence within them of two tribunals, each consisting only of a single judge, usually a member of the Bar, the two often not materially differing from each other in their professional qualifications, or in the public estimate of their opinions, and yet there being a right of appeal—and indeed of several appeals during the progress of each case-from the one single judge to the other.
Objection has also been made to vesting in the appeal Sheriff the right of appointing the sheriffs whose judgments are appealed to him, many entertaining the opinion that judicial appointments of this importance ought to be conferred only by the Crown, upon the recommendation of its responsible advisers, and should not be a piece of patronage which one member of the Bar may confer upon another.
In November 1868, a few weeks after this Society was constituted, a royal commission was issued, embracing many persons of learning and experience in England and Scotland, " to inquire into the constitution and jurisdiction of the various Courts for the administration of justice in Scotland;" "the forms of writs and pleadings;" "the rules of procedure;" "the privileges of agents;"