EDINBURGH MAGAZINE, JANUARY-DECEMBER, 1852. EDINBURGH: SUTHERLAND AND KNOX; PARTRIDGE AND OAKEY, LONDON; AND JOHN ROBERTSON, DUBLIN. MDCCCLU. TAIT'S EDINBURGH MAGAZINE. JANUARY, 1852. THE LAW OF PARTNERSHIP. LAW-REFORM is now the great question of the day. I was acquired or usurped in the feudal ages; yet The public mind is fairly awakened to its impor- it still remains, a triumph of clerical craft over the tance, and the alterations and amendments which superstitious fears of mankind. Is there one subhave recently been made may only be considered stantial reason why this anomaly should be suffered as the prelude to more sweeping changes. More, to continue? Is there one substantial reason why perhaps, has been done within the last five years in the ordinary legal tribunals should not decide upon the way of legal and judicial reforms than through- all those questions which are now settled by a out the previous century. The establishment of much more expensive and dilatory process at County-courts in England, the modification of Doctors' Commons? Some twenty years ago the entails in Scotland, and the recent alteration in the Consistorial Courts in Scotland, which possessed a law of evidence, by means of which principals are jurisdiction analogous to that of the English not only permitted but compellable to give testi- Ecclesiastical Courts, were abolished, and the mony in the superior tribunals of the former functions exercised by them are now performed by country, are perhaps the most important measures, the Court of Session to the entire satisfaction of as far as the public are concerned, that have re- the public. The change was made in accordance ceived the sanction of the Legislature during the with the progressive spirit of the age in which we period in question. On the two first public opinion live, and we doubt not that a similar change in has already pronounced its verdict. The County- England would be attended with similar results. courts in England have at length rendered justice Of the Court of Chancery and its gigantic abuses accessible to the poor man; and the abolition of we shall not at present speak. It still continues, the pernicious entail law, which for nearly two in the emphatic words of Sydney Smith, "to centuries has enabled any owner of land in Scot- weigh heavily upon the energies of mankind." land to fix it irrevocably in the possession of a The peddling reforms of the last session are a certain family or series of families, has already mere concession to the loudly and justly-expressed been the means of transferring thousands of ill- popular discontent. They do not touch, or profess cultivated acres from the hands of penniless pro- to touch, the root of the evil. The public, moreprietors to those who have both the means and the over, seem to have lost all faith in Chancery will to improve them. Of the recently-introduced Reform; and while Lord John Russell and his rule of evidence, by which both parties to an action colleagues have been busy creating new Courts of may be personally examined, it would be prema- Appeal, with newly-invented titles for their judges, ture to speak. One result, however, can hardly an opinion has rapidly been gaining ground among fail to ensue from its adoption. If the law stand all classes of society that Courts of Equity, as at —as stand we believe it will-it must hasten the present constituted, are an anomaly and a nuisance, downfall of all subordinate devices for the defeat and that if not speedily remodelled they must of justice. It must lead to a total revolution in inevitably be swept away. the procedure of the Common-law Courts; in other words, to the abolition of special pleading, with all its scholastic absurdities, and the substitution in its place of forms of process which, like those of the recently-promulgated New York code, shall be short, simple, and intelligible to all the world. The truth is, that although we have done much of late, the work of law-reform is but in its infancy. Look at the Ecclesiastical Courts, which in England still retain a monkish jurisdiction over our wills, our marriages and our divorces. This jurisdiction VOL. XIX.NO. CCXVII. The commercial law of Great Britain-for, practically speaking, the mercantile law of England is also that of Scotland-calls less for the attention of the law-reformer than any of the other departments of jurisprudence to which we have referred. The reason of this is obvious enough. The mercantile law is entirely of modern growth; and it has its foundations, not in the arbitrary principles of feudalism, but in the experience and the necessities of mankind. As at present administered, the law merchants of England may be said to B |