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Bills in Parliament.- The Lord Advocate's Conveyancing Bill and Stipendiary Magistrates Bill.-The most important measure affecting Scotland introduced into Parliament is undoubtedly the Lord Advocate's Bill for abolishing Feudal tenures. The future historian will probably be puzzled to explain how it was that the ghost of this mediæval system continued to walk and to exert no little influence on the social habits, the comfort, and the wealth of the Scottish people till near the close of the nineteenth century. We all remember the sensation which was caused in certain quarters by the Lord Advocate's first declaration of war against the technicalities and complexities of our land rights, and with what zest learned conveyancers applied themselves to pick holes in his Lordship's Bills of 1870. Other bills have taken the place of that famous measure, probably more perfectly conceived and drawn, and more likely to disarm opposition; but while they have not lost sight of the main principles of the earlier draft, it may be doubted whether any of them will effect a greater improvement than the Land Bill of 1870 would have done, when improved and modified in committee, as its author intended it to be. In the years that have since passed, the Lord Advocate has gradually been educating the profession and the public up to the point which he wished them to reach in 1870; and while doing so, he has himself made use of many hints given in the discussions of the intervening years. It is hard to say whether in some instances he has adopted these hints in a spirit of conciliation, or from a conviction of their intrinsic value; at all events we are able to say that the Bill, if in some respects it is less sweeping in its changes, has on the whole gained in adaptation to the mind of the working conveyancer, and therefore in its chances of becoming law.
The present Bill is not very materially different from that of last year; but it may be convenient briefly to recapitulate its chief provisions. The third section begins with a definition of an "estate of superiority," which is apt to confuse when compared with a previous definition of the same words in the interpretation clause.. The estate of superiority and estate of property are declared to be separate and independent, and the owner of the latter may complete a title without aid of the superior; and a lawful reservation of any right other than feu-duties, services, and casualties in a conveyance, imports an estate of property to the extent of the right reserved (sec. 3). A person in right of a feu may not get his investiture renewed; charters by progress are to be void; and all laws and usages as to non-entry are repealed (sec. 4). Conditions and covenants" affecting and qualifying" a feu, "whether declared to be real burdens or not," "accompany the feu, and run with the land in all transmissions, without being repeated" (sec. 5).
A superior may discharge his right of superiority in a given form (sec. 7). The rubric and text of sec. 7 are inconsistent, and seem to show a wavering. The rubric bears, " Estate of property may be merged in superiority title," while the text enacts that, when a superior acquires a title to the property of the land, the superiority shall merge in the property and be extinguished.
Every estate descendible to heirs vests without service in the heir immediately entitled to succeed, whether ab intestato, or by special destination, and becomes subject at once to his debts and deeds (sec. 8).
The ninth section deals with the completion of an heir's title. A personal title is as available to an heir as to his ancestor, and an unrecorded disposition to an ancestor may be recorded in favour of the heir on a warrant or a form given. Infeftment of an heir in an estate in which an ancestor died infeft is to be effected by an "instrument of sasine by descent," for which provision is made. Another form of instrument of sasine is given (sec. 10) for disponees of a proprietor who had only a personal right.
An heir is not to be liable for the debts of his ancestor beyond the value of the estate to which he succeeds; and may renounce to the same effect as if he renounced under the present law after a charge to enter.
The right of any person to an estate of inheritance in land by succession as heir is protected from challenge after ten years from his entering into possession; a period which will probably be regarded as too short (sec. 13). Possession is to be prima facie evidence of a right of succession in questions with tenants and others, not themselves claiming such succession.
Instead of a declarator of non-entry, a superior is to be able to recover his casualties by a process either in the Court of Session or Sheriff Court, the decree in which is to contain a warrant to enter into possession. The right to casualties is limited by the same clause (sec. 15). Casualties and services may be redeemed or discharged; and the superiors may require the proprietor to commute them into an annual payment even where the estate is entailed (secs. 16-18). All conditions creating monopolies in favour of a superior's agents are annulled by sec. 19, and casualties are forbidden in all future feus (sec. 20).
Section 21 abolishes the distinction of feu and burgage holdings. Sec. 22 provides for forms of conveyances; sec. 23 for the registration of conveyances of real burdens.
The period of prescription under the Act 1617, sec. 12, is reduced to twenty years; and where possession without challenge has continued for thirty years, no deduction or allowance is to be made for minority or legal disability. But these provisions are not to affect servitude rights.
Decrees of division of commonty may be registered to the effect of giving all the proprietors sasine (sec. 26). No distinction is to exist between fees of heritage and of conquest (s. 27).
Section 28 assimilates one law as to probative deeds to that of England; and we must confess that it seems to us the most needless provision in the whole Act, and one which is calculated to unsettle a branch of the law which is peculiarly clear and well settled. Sec. 29 allows the persons founding on a defective deed, bearing to be signed before two witnesses, to prove that it was subscribed by the maker. Holograph testamentary writings are to be deemed to have been made of the date they bear, in the absence of evidence to the contrary (sec. 31). One notary and two witnesses may execute a deed for one who cannot write (sec. 32). Inhibitions are to prescribe in five years, but may be registered anew (sec. 33).
Sections 34-36 provide for the completion of the titles of trustees. Section 37 proposes to enable trustees, tutors, or other administrators to deal with the estates under their charge by selling, burdening, or feuing, in a manner which is or might be deemed in excess of these powers, under a petition presented to and disposed of by the Lord President or Lord Justice-Clerk; the authority granted being good against all challenge.
Under sec. 38 heritable securities transmit against heirs and disponees. Wills affect heritage equally with moveable estate (sec. 39).
The offices connected with the Sheriff Court of Chancery are to be abolished, compensation being allowed.
We delay considering Mr. Gordon's Land Bill and the Lord Advocate's Entail Bill until it can be seen whether there is any possibility of either of them passing during the present Session.
It was understood that the Stipendiary Magistrates' Bill introduced by the Lord Advocate was likely to pass without much opposition; but it has been received with some expressions of disapprobation by the Lord Provost of Glasgow, and by various writers in the daily press. We are not enamoured of the idea of creating a new class of judicial officers apart from the Sheriffs, to whom the bulk of the judicial work of the country is already committed; but we are ready to concede that the Bill will confer a very great benefit on the cities which choose to avail themselves of it. Its purpose is to enable the town councils of burghs having more than 25,000 inhabitants, and returning, or contributing to return, members to Parliament, to pass a resolution that a stipendiary magistrate shall be appointed for the burgh, with a salary the amount of which is to be specified in the resolution. The Home Secretary thereupon may, if satisfied of the expediency of the proposed appointment and of the sufficiency of the salary, appoint a fit person, being an advocate of five years standing, to be stipendiary magistrate for such burgh, and a second stipendiary magistrate may be so appointed where the population. exceeds 200,000 (sec. 2). The jurisdiction of the magistrate within the limits of the burgh is to be the same as that of the magistrates
of the burgh, and within the county, and within the county or counties immediately adjacent he shall be entitled to perform the duties and exercise the jurisdiction of a Justice of the Peace.
Upon these sections we may be permitted to remark that nothing is said about a retiring allowance for the magistrate: which surely is indispensable. The experience of England also shows the propriety of providing some machinery whereby, with increasing duties, the magistrate's salary may be increased. In England it has sometimes been necessary, under similar Acts, to resort to the expedient of a sham resignation and re-appointment, in order that an overworked police magistrate might get an indispensable addition to his salary. There should also be some provision for the appointment of a deputy during illness, or the necessary holiday of the magistrate.
It is probably not expedient to restrict the appointment to advocates. At least we can understand that a town like Dundee or Paisley might be prevented from getting a suitable magistrate by this restriction. At the same time we do not sympathise with the unfortunate jealousy of the Faculty which is being manifested on all occasions when appointments are in question. The gentlemen of the other branch of the profession who so indefatigably write to the newspapers on such occasions, forget their own monopoly of the most profitable kind of legal work; and they not only exaggerate their own qualifications (for we are quite aware that few or none of the leaders among the local practitioners entertain this idea), but are totally unable to conceive the value of the training for judicial office which is implied in the close attendance on a Supreme Court and mixing with a learned bar. No such training is given by years of occasional debating before a Sheriff, and as we indicated lately, one of the greatest reforms needed in Scotland is the reform of Sheriff Court practice by the distribution among the chief of them of advocates trained in Edinburgh or London. The Lord Advocate must be fully aware of this, and for this reason has inserted the clause in question.
But as it is plain that advocates may not always be available, and as it is possible that a paid magistrate at a small salary, and partly engaged in other duties in the locality, might sometimes be useful, we are inclined to suggest that the restriction should be removed. It is also undesirable and unnecessary to protect the Faculty of Advocates by such clauses. Few of its members desire such protection, and are quite willing to be judged upon their own merits. We have no doubt that such corporations as Glasgow and Edinburgh, Dundee and Aberdeen, will generally desire for their own dignity and advantage to get an advocate if they can. We do not deny that as good men for the office as any at the bar are to be found in these cities; but such men settled there generally make more money by other means.
Section 4 makes Sheriff officers, constables, and police officers subject to the orders of the paid magistrate. By the way, the term
Stipendiary Magistrate is not only long and clumsy, but has a want of dignity about it. Burgh or City Magistrate, Burgh Court Judge, Police Magistrate, or Judge of Police, might be substituted, if he is not to have the title of Sheriff. The other clauses of the Bill may be described as executive clauses.
We failed at first to discover what excited the discontent of the Lord Provost. That the appointment of the paid magistrate should be left to the Town Council seemed to us so entirely inconsistent with constitutional principle and expediency, that it could not be what his lordship pointed at. But after all it does appear that the clause limiting the qualification and that vesting the appointment in the Town Council are really objected to by the Corporation of Glasgow. The former, as we have said, ought in our opinion to be withdrawn; but it is impossible at this period of the nineteenth century for the British Parliament to vest such an appointment in any local corporation. It is a hundred and thirty years since the heritable jurisdiction which the barons of Scotland exercised by their baron bailies was taken away; and as all corporations are not as judicious and as upright as the present Town Council of Glasgow, it is impossible that the Lord Advocate or the House of Commons could consent to hand over the administration of criminal justice among several hundreds of thousands of the people to their virtually irremovable nominees. There is no reason why the constitutional rule which vests the appointment to all judicial offices in the Crown should be departed from in this instance. Nor can it be reasonably expected that such a thing as the Town Council of Glasgow proposes should be done at the very time when public opinion is demanding that a similar anomalous patronage should be taken away from the Sheriffs.
Upon the whole, so simple and unobjectionable a Bill has rarely been produced by any parliamentary draughtsman; and we trust that it will have an easy and rapid passage through both Houses of Parliament.
Salaries of Sheriff-Substitutes..-We desire to place on record the answer of Mr. Lowe to Sir David Wedderburn's question on this subject, in the House of Commons on April 3. It is a new illustration of the contempt with which some members of the present Ministry are inclined to treat the legal profession. Sir David Wedderburn's question was " whether the attention of Her Majesty's Government has been directed to the unanimous opinion of the Law Courts (Scotland) Commission in their report of the 12th July 1870, that the remuneration of the Sheriff-substitutes of Scotland is inadequate to their position, and whether the Government are prepared without further delay to give effect to the recommendations of the Commission that these salaries should be increased."
Mr. Lowe said that the Government had had their attention directed to the Law Courts Commissioners' report, to which the Hon. Baronet alluded. The Commissioners recommended that in