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The other consisted in calling the church | completely demolished in the masterly revenues property, in denouncing all in- speech of Mr. Brougham, who pointed terference with them as spoliation, and affirming that the House might, with equal right, seize upon the lay tithes, and the property of corporations. To these arguments Mr. Canning added (what is of en more effective than argument) vituperation: "he had never heard a principle so base propounded for consideration

"in that House*."

out the inherent distinctions between the revenues of the Church and private property, and the consequent inapplicability of such a term as spoliation to any mea sure for regulating their amount. Spoliation,-whatever be meant by spoliation, must at any rate be spoliation of somebody. The spoliation in question, if such it is to be called, would not be spoliation of the present incumbents, since it was proposed to leave their incomes untouched: it would not be spoliation of their children, or heirs, since these would not have got the incomes, and therefore cannot lose them. No man, no person, no actually existing being would be deprived by the proposed measure of any thing which he has, nor of any thing which he is entitled to expect. Of whom then would it be spoliation? Of an ideal being; a mere imaginary entity: an ab

Having no better arguments than these, it is no wonder that Mr. Canning should have had recourse to the old expedient of "flinging dirt." It is the characteristic of a bad cause to resort to such helps, as it is of a good one to have no need of them.

The first argument is defective in two ways: in the first place, because, as was remarked by Sir Francis Burdett in his pointed answer to Mr. Canning, the Act of Union is not a law of the Medes and Persians; in the next place, because, supposing it were so, the opponents of the motion failed, on their own shewing, in making it out to be a violation of the Union. It is a mockery to say, that, in merely enacting that the churches of England and Ireland should be united in one Protestant Episcopalian church, to be sub-stract idea: a name, a sound. It would, ject to the same laws, it was ever intended in one word, be spoliation of nobody. to tie up the hands of the legislature from introducing any reform into either, which might render it more conducive to its object, or to the good of the state. Mr. Peel attempted to bolster up this flimsy argument, by referring to that article of the Union by which it was provided, that the Irish bishops should succeed in a certain order to seats in Parliament: this he called recognizing the number of bishops; and so it was: recognizing the actual number; recognizing it as being the actual number: but not surely as a number never to be altered, should any other number be, in the opinion of the legislature, more eligible. Is a law to be construed as giving perpetuity to every thing, the existence of which it takes for granted as a fact, and provides for the consequences of it accordingly? If there had been a provision in the Union to regulate the right of pasturage upon a common, or of cutting turf upon a bog, would it have been a consequence of that provision, that the common should never be ploughed up, the bog never drained? If a man had bound himself by a contract to give his footman a livery, would he by that contract have debarred himself from ever parting with his footman?

The other argument, which turns upon the words property and spoliation, was

* Ante, p. 270.

SCOTLAND.

Scotch Judicalure Bill. THE mode of administering justice in this country, is so far from being what it ought to be; the progress of improve ment, in this department, is so slow, and impeded by so many obstacles; that it is matter of great interest and instruction to watch every alteration that may be called for and effected in any part of the empire. We consider it a duty, therefore, to point out what has been done by the Scotch Judicature act, which passed the legislature last session.

In order to make the matter intelligible to an English reader, it will be necessary briefly to describe the judicial establishment in Scotland; at least as far as regards civil matters.

The Court of Session at Edinburgh, is the supreme court of civil judicature, from which there is no appeal, except to the House of Lords. This court is composed of fifteen judges, called Lords of

Session, and one of them the Lord President. It is divided into what is called the Inner House, and the Outer House.

The Inner House is divided into two courts of concurrent jurisdiction, called the First division, and the Second division, in each of which there are five judges, three of whom form a quorum.

The Outer House is composed of the five junior judges, four of whom are called Lords Ordinary, and the fifth, Lord Ordinary on the Bills. The four Lords Ordinary officiate alternately, each of them a week, in one of the courts of the Outer House, where causes are commenced before him; he then sits in another court of the Outer House to finish the causes commenced during the preceding week.

bill to him praying such a removal, upon which bill he may have a debate by counsel, or agents, touching the propriety of removing the cause. If it be removed, the party removing gives security for costs.

When a cause is commenced before the Lord Ordinary, he grants his warrant for the citation of the defender, who must put in his defences within a certain time, after which the cause is entered for debate before the Lord Ordinary for the week, who, if no matter of fact be contested, either pronounces judgment, or takes the cause into consideration. The unsuccess ful party, by a written statement called a representation (prepared and signed by counsel) may request the Lord Ordinary to re-consider his judgment. This request the Lord Ordinary may at once refuse, or require a written answer to he made. If he adheres to his first judgment, he may prohibit any further application to himself for review; but if he omit to make such prohibition, the unsuccessful party may call for a second review. If the request for a second review be refused, the case is still subject to review by the In the country, the Sheriff's Court, the Lords of the Inner House. This review judicial functions of which are exercised is not allowed before one representation by a sheriff depute, or his substitute, sits to the Lord Ordinary, unless he dispenses once a week or oftener during the greater with the representation, and it is only part of the year, and has jurisdiction in obtained by a printed petition, called a all personal actions upon contract or obli- reclaiming petition, similar to a represengation, to the greatest extent, and gene-tation. The Court hears counsel, and rally in all civil matters, which are not, by special law or custom, appropriated to other courts.

There is also a jury court composed of three judges called "The Lords Com"missioners of the jury court in civil "cases." This court was instituted in 1815, for the trial and ascertainment of disputed matters of fact in civil causes, remitted to it from either of the houses of the Court of Session, or from the Court of Admiralty.

These are the chief courts for the decision of civil causes; and the following is a brief outline of the mode of proceeding.

With the exception of certain cases touching infancy, lunacy, absence from the country, the elective franchise, and the process for distributing the effects of bankrupts, the Inner House forms only a court of review or appeal, and causes are ordinarily commenced in the Sheriff's Court, or before a Lord Ordinary of the Outer House. In the Sheriff's Court they may be commenced before the sheriff depute, or his substitute: if before his substitute, an appeal lies to the sheriff depute. After final judgment in the Sheriff's Court the cause may be removed into the Court of Session, not as a matter of course, but with the assent of the Lord Ordinary on the Bills, after presenting a

either refuses the prayer of the petition, or requires printed answers, in which case they hear another argument of counsel, and then pronounce judgment. This judgment, like that of the Outer House, may be re-considered on a petition from the unsuccessful party; but a judgment of the Inner House, concurring with one before pronounced, is final in Scotland, and can only be reviewed in the House of Lords. At every stage of the proceedings, an interlocutory judgment is open to the same re-consideration as a. final judgment, and if the former judg ment be reversed, the new judgment is open to the same review as an original one.

Here then we may have seven stages of appeal for every Sheriff's Court cause: for every Court of Session cause, six, and often more. 1. From the Substitute to the Sheriff-depute. 2. From the Sheriff's Court to the Lord Ordinary. 3. From the Lord Ordinary to himself: and this consists of

two stages; first, the debate to induce him | circumstances may seem to require; former

to consider whether he shall re-consider; secondly, the debate uponre-consideration. 4. From the Lord Ordinary to the Inner House in which there are two stages as before the Lord Ordinary. 5. From the Inner House to itself: in which there are likewise two stages. 6. To the British House of Lords: from which tribunal it is frequently necessary to send the cause back for the further consideration of the Court of Session; after which it sometime finds its way to the House of Lords again.

statements are at the same time retracted or explained away; and thus, while the complexion of the case varies at every turn, new questions in point of law are started, and sometimes a fresh source of litigation is opened up in the very last stage, and just when every thing seemed to have been brought to a conclusion.

"This system, which is peculiarly hurtful in a court where there are so many steps of review, is itself aggravated and re-acted upon by the very circumstance, that such a repeated process of committing himself, endeavours to fish out, not review is competent. A party, before finally only the case of his adversary, but the leaning also of the judge. Having, as he thinks, attained this, his statement of facts is attempted to be But there was another vice in the sys-views of the judge; and even then, looking proshaped so as best to chime in with the supposed tem of Scotch Judicature, if possible, ten- spectively to the further progress of the cause, this fold more mischievous, even than this is done in such a way, and under so many qualireiterated faculty of appeal. In England, fications and reserved implications, as to leave it expensive and inconsistent as our system open to put a new gloss on the matter, if that shall be found necessary, when the case ultimately of written pleadings is, at least it has the comes before the Inner House. merit of ascertaining before the hearing, all the questions of law or fact on which the Court is required to decide. But in Scotland, the parties, instead of being compelled to state their whole case at once, were permitted to introduce new averments of fact and new pleas in law, at every interval, down to the last stage of the cause; so that the judgment in one stage was often apparently at variance with the judgment in another stage, and each stage might form as it were the commencement of a new suit. Mr. Ivory says, that

"It is obvious that the successive judgments obtained by a course of pleading such as this, though often leading to different results, are not always in reality at variance with each other. They are truly judgments pronounced on questions distinct in themselves; and all of them may be equally sound in the legal principles on which rendered necessary only by the new shape in they rest; alteration and reversal having been which the case has been presented by the parties.

"If a system of pleading could be devised, whereby parties, before any judgment was pronounced, should be held finally concluded on the facts of the case, and on the more important legal pleas, arising out of these facts, incalculable benefit would arise, not only directly, in its immediate consequence to individual suitors, but still more, perhaps, indirectly, in its ultimate effect of se curing a settled and well-defined system of law. There would no longer, as at present, be a seeming conflict in the successive interlocutors pro

"Much of the looseness and inaccuracy of statement at present complained of at the commencement of a cause, is to be attributed to the general laxity of the whole system of proce-nounced even by one and the same judge; but dure, which prevails in the practice of our courts. Both parties are aware, that at almost every stage of a long litigation, the defects, whether of their previous statements in point of fact, or of their previous pleadings in point of law, may be corrected and supplied. Relying on this, there is not unfrequently in the outset an inclination on either side rather to withhold and keep in the back ground many of the facts, in the view of trying the adversary's strength, and of bringing out, as far as possible, the important points on which his pleas are to be rested. This tentative sort of process is productive, not only of great expense and delay, but has a tendency to involve the case in needless perplexity, and to create a degree of confusion difficult afterwards to be got the better of.

"From the same cause many actions are brought without either the pursuer or his advisers baving formed any very distinct idea how they are to be supported; and many defences, on the other hand, are set up for no other reason than to procure delay, and because the party does not find it convenient at the moment to give that consideration to the matter in dispute which is cssential towards maturing it for a judicial decision. The important facts are afterwards dret in as

besides, the final sentence of that judge, when submitted to review, would much seldomer be altered; and a result equally beneficial might reasonably be expected in the court of last resort. A very slight attention to the cases which occur in practice must convince every one, that it is not in the abstract principles of law, as applicable to a settled state of facts, that difference of opinion usually arises, but in the different views which suggest themselves to different minds in regard to an unsettled state of facts, as presented in the long, confused, and contradictory pleadings of parties."-"The number and extent of our written pleadings is at present a very serious evil. Were business conducted as it ought to be, they must be admitted, at the very least, to be useless; for surely if a case be once stated fully and accurately, there cannot be any necessity for reiterating the statement in one pleading after another, until the judge's table absolutely groans under the burden of the records. Yet, in point of fact, if almost any one process be taken up and examined, the written pleadings will be found, in the shape of argumentive condescendences on the grounds of action, memorials, minutes, representations, petitions, informations, &c., to be nothing more from beginning to end.

Seven or more stages of appeal! The parties put to the expence of printing the statement of their differences! with an almost interminable faculty of starting new causes of action and new defences, and of pursuing the new game through all the stages which had occupied the chase of the old! Mr. Cook, however, (one of the persons consulted by the Commissioners appointed by Parliament to inquire into the matter,) "most highly appreciates" this system, and considers "that every, the most minute alteration, "ought to be made with the greatest pos"sible caution." And Mr. Chalmer, another of the persons consulted, says, "the "form of proceeding long established in "Scotland appears to me fully sufficient to "attain the ends of justice, with dispatch "and advantage to the suilor+."

than an uninterrupted series of repetitions, in | outset of the cause, to set forth in precise which, most frequently, little more is done than terms, the ground and extent of his de serving up the same identical argument under a mand, and the defender, all the defences different arrangement of its heads' both dilatory and peremptory, on which he meaus to rely. When the Lord Ordinary is satisfied that no further disclosure of facts is necessary, he is to call on the parties to declare whether they are willing to abide by their respective state ments. If they agree to do so, the record is made up: but if they do not agree, he may require them to put in a condescendence and answer, or mutual con descences, containing a final statement. This final statement each party is to revise, and make the necessary alterations to meet the opposite averments; and of these revised pleadings, there is to be a concise note signed by counsel. Here, is enough to occupy the lawyers many weeks, with what the judge, if the parties were called before him, could often do in half an hour.- Where facts are disputed, the Lord Ordinary may give such orders for the ascertainment of them as he thinks fit, or remit them for investigation by the jury court. The parties are then (when the facts have been ascertained) called for judgment, and upon that occasion may be further heard.

66

Fortunately, the legislature has come to a different conclusion; and though Parliament has not sufficient resolution or acquaintance with the subject to establish an entirely new system, they are willing as far as posible to palliate the mischiefs of the old.

The main object of the bill is to compel the parties to give in before the hearing of the cause, a complete and definite statement of the points in dispute between them, instead of allowing them as heretofore to start new facts and new pleas ad infinitum at every interval of the The obvious mode of obtaining such a statement in the most trustworthy shape, and at the least expence of time and money, would be to summon both parties at once before the judge,-to allow him to extract it from them by interrogation and counter interrogation, in public, and himself to commit the whole to writing, as in the case of a prosecution for felony in England. The legislature, however, has chosen rather to follow the model of the written pleadings in our courts, which, though more likely to bring the case to a conclusion than the former system in Scotland, is still, fearfully dilatory and expensive.

The pursuer is now required in the

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The bill reduces the number of Lords to form a court for each of the divisions of the Inner House from five to four, and increases the number of the Lords Or dinary from five to seven. In cases of difficulty, it also enables the Lords of Session to order a hearing in the presence of their whole number; instead of one division sending, as formerly, for the. written opinion of the judges of the other division, upon cases of this nature.

Upon an appeal from a Lord Ordinary to a division of the Inner House, the Lord Ordinary is allowed to sit and form a constituent part of the court of appeal. This must place all the five in a very unpleasant situation, and not afford the best chance of having the first decision reversed where justice may require it.

In the Sheriff's Court, in causes not exceeding 121. value, the decision of the sheriff depute is to be final; but causes beyond the value of 401. may be removed for jury trial as well as appeal, which was not allowed before.

The bill then proceeds to extend the class of cases which may be submitted to the jury court, and to abolish the practice of each party furnishing the other, previously to the trial with a list of witnesses,

!

a practice which had been found productive of more inconvenience than advantage.

effort, and is felt by the House of Commons as a task of peculiar irksomeness; in this instance, as in so many others, the distaste for accurate reasoning exhibited by that assembly only renders it more incumbent upon us to expound those principles upon paper, which failed, from their abstruseness, to find publicity in the parliamentary debates.

Such are the principal alterations effected by the present measure, and as far as they go, they are in the main beneficial; they are also interesting, as indications, that the spirit of improvement is awake upon this most hopeless of all institutions, and that the government is ready to pro- The proposition, however, by which ceed as far as its information permits. It we shall begin, is by no means alarmis lamentable, nevertheless, to think how ingly recondite. What is wanted, as small a portion of the evils attendant on the end of all commercial laws, is the our jurisprudence these alterations will production of the greatest quantity of remove, and how few persons there are commodities at the lowest cost. Now in the legislature, able and willing to those, who agree with Mr. Huskisson, devote their minds to the subject. Scot-assert that, as the greatest quantity land, however, in her Sheriff's Courts pos of any single commodity is produced sesses a prodigious advantage over Eng- by dividing the labour of individual land. In them to a certain extent, justice workmen, so the greatest amount of all is weekly brought home to the doors commodities is obtained when each of the suitor. If six out of the seven nation addicts itself to such branches stages of appeal were cut off; if but one of production as its peculiar facilities review of the case were allowed, and may suggest. that, upon a statement of facts, drawn up by the judge, and sent post free to a metropolitan court, there could be little complaint as to the delay and expense of judicia! proceedings. As the subject passed off so briefly in Parliament, and as it will require a further notice in our article on County Courts, we shall not, at present, enter upon it more at length; we must, however, seize the first opportunity of developing the mode in which that main support of civilized society may be attained, a cheap and expeditious administration of justice.

FOREIGN DEPENDENCIES.

Colonial Trade Bill. CONCURRING, as we do, for the most part, in the truth of Mr. Huskisson's observations with respect to our colonial trade, we feel ourselves relieved from the necessity of discussing them one by one, and of examining his speech in detail. More acceptable service may be rendered by an explanation of the principles upon which bis measure of last session is founded, and its probable results in practice; the more especially as little notice is taken of this important part of the inquiry in Mr. Huskisson's speech.

To investigate the probable effects of commercial measures by the help of scientific principles, is too commonly a tedious

The varieties of climate, situation, and soil, afford to every country some advantages, in the employment of industry, not possessed by others. By making use of such advantages, not only will a country contribute its greatest power in the production of wealth, but will obtain the greatest share of wealth for its own enjoyment. Suppose, for instance, the silk consumed in Great Britain to be the produce of a capital of 1,000,000l. If the facilities possessed by France for the raising of silk exceed our own by 25 per cent., it is clear that capital of the value of 800,000l. would produce the same amount of silk in France, with the British capital of 1,000,000l.: it follows, then (since the produce of the same amounts of capital, other things remaining the same, must exchange for one another), that Great Britain, by employing four-fifths of this capital in the production of other articles for which a demand might exist in France, and for whose production that country possessed inferior facilities to herself, would obtain the same amount of silk, and set free 20,000l. worth of capital, to be employed in other branches of industry. The consumers of silk would then obtain the same quantity as before, at four-fifths of the former cost, retaining the remaining fifth for the satisfaction of other wants; and that not only without injuring, but with a similar advantage to, the French producer.

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