The more frequent return of the weaker sex is matter of remark, and as to both sexes, leads to the conclusion that habitual criminals should be treated in the same manner as incurable lunatics, rather than in these fitful committals and releases, with much expense to the State and no benefit to the individual. The fact, as shewn by the Report, of 72 inmates being in the lunatic department, clearly establishes the close connection which lunacy or imbecility has with crime. We may on this head refer to an able paper in the January number of the Journal of Medical Science, by Dr. Burman, on "Larceny as Committed by Patients in the Earlier Stages of General Paralysis."

It is gratifying, and reflects no small praise on the management of the General Prison at Perth, to learn that the work done by prisoners there yielded £8626, and after deducting £4498 for material and implements, left a free balance to the credit of the prison of £4128, being an average profit to each prisoner of £5, 7s. 4d. ; leaving the cost of each prisoner at £18, 14s. 8d. The estimated cost of the inmate of an Industrial School, to prevent crime, does not exceed one-half of that sum.

Dr. Hill Burton adds a Supplementary Report on "The Register of Criminals under the Prevention of Crimes Act 1871." He ably points out the working of the Act, and its many defects. He chiefly directs attention to the photographic machinery of the Statute. We close with the following amusing and characteristic paragraph, recommending the whole Report, with its numerous tables, to the study of the economist and politician:

"The number of photographic portraits received under the Act, and preserved in this office at the end of the year, was 870. Each sheet, with its photogram, description, and what may be termed criminal biography, is filed. The Governors of the Prisons in Scotland send a duplicate photogram in each case, with a brief note of the more important particulars, such as the name, age, date of conviction, cause of trial, and the like. These are all pasted consecutively into a large book, which is a kind of pictorial index to the more elaborate record formed by filing the returns. A police officer in search of a face which he knows, will readily find it by turning up the leaves of the pictorial index, which will refer him to the sheet of the register, with its fuller details." H. B.

353

PAPERS OF THE SCOTTISH LAW AMENDMENT SOCIETY.1

“THE LAW AGENTS (SCOTLAND) BILL, 1873."

Committee.-Messrs. JOHN M'LAREN, WILLIAM GUTHRIE, Advocates; WILLIAM REID, W.S.; ALEX. MORISON, S.S.C.; and J. C. LORIMER, Advocate.

THE Committee concur in the principle of the Bill, so far as it aims at putting all Law Agents in Scotland on the same footing.

It appears, however, to the Committee, that the provisions in the Bill as to the examination of proposed applicants for admission as Law Agents are defective. The 5th Section makes provision for the indenture and service of the applicants, but it says nothing about general knowledge, either preliminary to, or during the apprenticeship. The 7th Section provides that any person qualified, as therein before provided, may present a Petition, and the Court shall examine and inquire, by such ways and means as they shall think proper, touching the indenture and service, "and the fitness and capacity of such person to act as a Law Agent," and if the Court shall be satisfied by such examination, that such person is fit and competent to act as a Law Agent, then the applicant shall be admitted. And the 8th Section provides, that for the purpose of facilitating the inquiry, touching the due service and the fitness and capacity of any person to act as a Law Agent, it shall be lawful for the Court to nominate and appoint fit persons, being enrolled Law Agents, and in practice as such, to be examiners, and it shall be lawful for the Judges, from time to time, to make rules for conducting such examinations.

Now it appears to the Committee, that these provisions as to examinations apply, if not exclusively, at all events mainly, to examinations in Law, and they suggest that provisions should be made regarding the qualifications of applicants, in general knowledge as well as in Law, either in the Act itself, or by giving the Court of Session power to make such regulations as they may think proper, in regard both to general and professional examinations. In this view they think that the choice of examiners in general knowledge should not be restricted to enrolled Law Agents.

The Committee think that there should only be one standard of knowledge for all Law Agents, and they therefore think that the portions of the 19th Clause-whereby it is provided that the Court may accept a certificate of admission by any Society incorporated prior to 1865 to any person, as equivalent to a certificate of qualification and fitness from examiners appointed under the Act, provided the Court shall be satisfied that such certificate may be

The papers selected for publication by the Council of this Society will, by arrangement, be published in the Journal of Jurisprudence; but the Society is not to be understood as becoming in any sense responsible for the other contents of the Journal; and the conductors of the Journal do not assume any responsibility for the style or opinions of the Papers of the Scottish Law Amendment Society. 2 c

VOL. XVII. NO. CXCIX.-JULY 1873.

properly accepted as evidence of qualification of fitness-should be struck out.

Under such a provision as this there would be no guarantee whatever for the applicants being properly qualified. There is no machinery provided by which the Court are to investigate these matters; and besides there seems no reason why such a burden should be laid upon the Judges. In short, such a provision would take away the whole effect of the other provisions of the Bill. Applicants would go up for admission to the Society where they thought the examination would be easiest, and the same vicious system would be encouraged as existed before the Procurators Act was passed.

Two members of the Committee think the provisions in Sections 13 and 14 for striking off the roll of Law Agents practising in the Court of Session and Sheriff-Courts respectively, the names of such Agents as cease to have a place of business in Edinburgh or Leith, or within the Sheriff-Court jurisdiction, should be deleted, but the other members of Committee are of opinion that the restriction in question is expedient.

Clause 22 provides for the sharing of fees of Agents acting for the same client. The Committee approve of this provision, but they think the present fees would require to be readjusted.

If the Bill passes the effect would no doubt be to supersede the action of the General Council of Procurators, in regard to the admission of Agents to practise in the Sheriff-Courts; and as this was the chief purpose for which that body was constituted, it may deserve consideration whether there will be any necessity for its continuance. If it is desirable that there should be a General Council representing the profession of Law Agents in Scotland, such as the Incorporated Law Society of England, that Council should be established upon a wider basis, and provision should be made for the representation in it of the Societies of Writers to the Signet and Solicitors in the Supreme Courts, which are at present unrepresented in the General Council of Procurators.

I concur generally in the foregoing Report if the Bill is to have reference to Law Agents only: but I think the time has come when all the legal bodies, including Advocates, should be put upon an equal footing; that the same standard of education-and it ought to be high-should be applicable to all; and that there is no reason why, all having got the same general and legal education, it should not be left to each man, after he has had some experience in the profession, to take to Chamber business or pleading according as circumstances and his special qualifications may suggest. ALEX. MORISON.

EDINBURGH, 22d May 1873.

RESOLUTION of the Society on the foregoing Report.

The Society approve of the Report of the Committee, with the exception of that part referring to the 13th and 14th sections of the Bill, on which they adopt the opinion of the minority of the Committee. The Society are further of opinion that in any general Council of Law Agents provision should be made for the representation of all Societies of Law Agents in Scotland, including those which are at present unrepresented in the General Council of Procurators.

"THE CUSTODY OF INFANTS BILL.”

Committee.-Messrs. P. FRASER, G. H. THOMS, ÆNEAS MACKAY, C. T. COUPER, J. C. LORIMER, Advocates; J. F. RODGER, S.S.C.; W. ROBSON, S.S.C. THE Committee has had under consideration an English Bill to amend the law as to the Custody of Infants. That Bill as originally framed was applicable to Scotland, but its promoters afterwards thought it better to limit its operation to England and Ireland, leaving Scotland to be dealt with by a separate measure.

The main object of the Bill, which has now become an Act, is to give the Court of Chancery greater power in regulating the custody of children when disputes arise between parents. It authorises the Court to give a mother access to or the custody of children up to the age of 16. Formerly the Court could not award to the mother the custody of children above seven years of age. The Divorce Court, however, under the jurisdiction recently conferred, had power in divorce and separation suits to make such orders as it might deem just and proper in regard to the custody, maintenance, and education of the children of the marriage, and exercised this authority up to the age of 16.

In Scotland there has always been a large discretionary power in the Court in dealing with the custody of pupil children. But by several recent decisions the Court has laid down very stringent rules defining the circumstances in which alone they will interfere with the common law rights of the father, and award the custody to the mother. "Our common law," (it has been laid down from the bench,) "justifies our interference with a father's rights to the custody of his pupil children only when it can be shewn that the children's health, life, or morals will be endangered by their remaining in their father's custody." Another judge uses the following language, "I think the only grounds for interference in such a matter are that the physical or moral interests of the children are in danger. It is not that he (the father) has committed faults, but that he teaches, or is likely to teach, evil to them, or to corrupt their morals, that can alone entitle us to interfere:" and the same views have repeatedly been expressed in similar language. In all such cases, undoubtedly, the welfare of

the children is the paramount consideration. But if young children can be equally well cared for by the mother as by the father, that consideration does not solve the question. The advantage to a child of being brought up in the society of its brothers and sisters is also undoubted, but not more so than the benefit of a mother's care. The feelings and instincts of a mother who is free from blame for domestic feuds should not, as at present, be ignored; nor should so much deference be paid to the patria potestas of a father who has proved himself an intemperate and violent husband. In this state of the law, when a wife can no longer continue to cohabit with her husband on account of his violent or cruel conduct, whether she sue for judicial separation on these grounds or not, she is deprived of the custody, and to a large extent of the society, of the pupil children. Unless it can be shewn that their life, health, or morals are endangered in the husband's hands, the Court will not consider the claims and feelings of the mother, however blameless, -the Court also holding that violence towards the mother and intemperance are not indications of such danger.

This subject was considered by the Society last year, when a Paper was read explaining and contrasting the Laws of England and Scotland, and advocating some relaxation in favour of mothers in the latter. The views therein expressed were generally approved at a meeting of the Society.

Without entering into greater detail, the Committee submit for the consideration of the Society the draft of a Bill which they have prepared with a view to remedy the present unsatisfactory state of the Law in Scotland.

A Bill to Declare and Amend the Law in Scotland in regard to the Custody of Pupil Children.

WHEREAS it is expedient to declare and amend the law in regard to the custody of pupil children: Be it therefore enacted, &c.—

1. In the determination of any dispute between parents as to the custody of their pupil children, the Court shall have regard, not merely to the welfare of such pupil children, in health, morals, and otherwise, and to the rights of the father at common law, but also, so far as not inconsistent with the welfare of such pupil children, to the feelings and interests of the mother, provided she is not disqualified by reason of intemperate habits, or immoral conduct or otherwise, from being a suitable custodier of such pupil children: And whenever decree of judicial separation or divorce has been obtained at the instance of the mother (and in the same process without any conclusions in the summons in regard thereto), or whenever