Imágenes de páginas

Mercantile Guarantees, On, 537

Moir, The Late Mr George, 618

Negligence, Proof of, res ipsa loquitur, 561,
New Chair of Commercial and Political
Economy, and Mercantile Law in Edin-
burgh University, The, 619, 664


Guthrie's Erskine's Principles of the Law

of Scotland, 147

Essays upon the Form of the Law, by
T. E. Holland, M.A., 202
Shelford's Law of Railways, 317
Shelford's Joint-Stock Companies, 317
Law Magazine and Law Review, 368,

Brief Summary of the Law of Intestate
Succession in Scotland, 369
M'Laren's Bell's Commentaries on the
Law of Scotland, and on the Principles
of Mercantile Jurisprudence, 432, 565
Thomson on Limitation of Civil Suits in
India, 656

Jurisprudence, or the Philosophy of
Positive Law, 504

Scotch and English Systems of Procedure,
Mr Mellish, Q.C., on, 326

Scotch Appeals, 1870, 512

Sheriff Court, Procedure in the, 99

Sheriff Court Amendment Act, 1870, 33

Vict., c. 86, The, 615

Sheriff Court Business of Aberdeen and

Kincardine Shires, Re-arrangements of

the, 623

Sheriff Courts Bill, The Expected Little, 325
Sheriffs' Bill, The, 439
Sheriff-Substitutes' Claim for Promotion,


Trade Marks, Copyright in, 570

Translation of the Title of the Pandects
ad Legem Aquiliam, (ix. 2), A, 593, 649

A. C. S. M. Dunlop, Esq. of Corsock, Truck Commission, 513

Outer House and the Bar Again, The, 437
Outer House and the Dissentient Commis-
sioners, The, 609



PAPERS OF THE SCOTTISH LAW AMENDMENT SOCIETY.* THE LORD-ADVOCATE'S ADDRESS AS PRESIDENT, NOV. 29, 1869. It is my duty and privilege to address you on this occasion from the chair which, by your favour, I am permitted to occupy. In considering how I might most profitably discharge this duty and exercise this privilege, I have turned my attention to various subjects which have occupied my own thoughts and those of others who take an interest in the amendment of our laws, not theoretical merely, but practical, and with a desire to lend a hand in furthering the good work. It has been a question with me whether it would be more expedient to confine myself to one subject which I might attempt to deal with exhaustively, or to take notice of several subjects, with the necessity of treating each more superficially and briefly. I have chosen the latter course, as more suitable to the occasion. As matter of necessity, however, I must limit the range of subjects; and, obeying this necessary law, I propose to confine myself to real property, and to advert only to a few subjects immediately relating to it, upon which it seems to me that the law may be amended.

At the outset, I deem it prudent and becoming to state explicitly that, in what I have to say to you, I do not speak as a member of the Government, and am not to be held as announcing any intentions on my part in that capacity. I shall speak only as a member of this Society; and, while I shall not seek to conceal my opinions on the several subjects which I have to bring under your notice, it is not to

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.

VOL. XIV., NO. CLVII.-JAN., 1870.


be understood that I give any pledge or at all commit myself respecting the expediency or possibility of legislative action at any particular time or in any particular manner. There is another observation of a general and preliminary character which I desire to make and to commend to your special attention as a society of law reformers. It is this, that the first and indispensable condition to the just consideration of any question of law reform is, that every selfish suggestion shall be conscientiously and resolutely rejected, and that each for himself shall be watchfully on his guard against the bias and prompting of individual and professional interest. It is a hard condition to observe, and it is not matter of wonder that it should often be violated both consciously and unconsciously. It is so natural, with reference to any proposal, for every man to think how he will be individually affected by it, or what influence it will have on the prosperity of the professional body to which he belongs, that it requires an effort of will, and a submission to conscience of no ordinary character, to reject the thought, and concentrate the attention on the true merits of the question as it affects the general good of the whole community. Further, the mind is very subtle in its endeavours to reconcile the public good with individual or class interests, and this subtlety, unless we earnestly guard against it, is sure to lead us wrong. To a large extent, the thoughts and resulting influences to which I allude are short-sighted, the true eventual interest of the individual or the class being really in harmony with that of the general public. At the same time, it is impossible to deny that the general good, which it is the object of every sincere law reformer to promote, not unfrequently requires that individual and professional interests shall be sacrificed; and he who is not ready to make the sacrifice is but a lukewarm member of this or any similar society. If any one would realise the extent and pernicious operation of the narrow and selfish interests against which I seek to guard all who would aid the good work which we wish to further, let him consider the vast variety of the views and suggestions which are put forward and advocated with reference to any subject on which a reform is proposed, and endeavouring honestly and intelligently to trace them to their sources, let him notice how each individual stream is coloured -in some instances I might say polluted-according to the character of the spring from which it issues. It is the same everywhere; class interests, more or less disguised, will assert themselves, and it is impossible to over-estimate their power as obstacles to even manifestly desirable reforms. They are not the less but the more obstinate and

mischievous when, as frequently happens, those who are really under their influence have succeeded in persuading themselves, and indeed quite believe, that they are not. Of the particular subjects which I intend briefly to notice, I begin with the law which governs titles to land in this country.

Our system of land rights is, I need hardly observe in this place, very old and very artificial. Modern good sense has abolished or modified some of its absurdities, which, even in our own times, were held in reverence; but in the main the system stands as it did in remote ages, when the condition of the country and the genius, pursuits, and habits of the people were very different from what they are now. It would, of course, be foolish to take exception to it merely because it is old; and if it serve its purpose in these days, it is nothing against it, but the reverse, that it was also found to answer in the days of our forefathers. Further, if it occasion no practical grievances of a serious character, I for one would not be disposed to meddle with it only because it is deformed (as we in these days may think) by some quaint ornamentations of a superfluous character which the taste of our ancestors approved. But the charges which thoughtful men have for a long time made and are now beginning somewhat more earnestly to press against the systemn, are of a more serious character than that it is old and harmlessly absurd. They say that it is cumbrous, and that, so far from being necessary or conducive to the security of title, it really occasions the only dangers to title with which in these days we are practically acquainted, or which we have reason to apprehend. They also say that it is attended with very unnecessary expense. The subject is peculiar, or seems to me to be so, in this respect, that those who suffer from the grievances connected with it (assuming that they are real, as I think they are to a great extent) are not so clamorous for a remedy as most other sufferers from an objectionable law. It is not, I think, difficult to assign reasons for this-the chief reason probably being that the subject itself is a mystery to all except professional lawyers, and that those of the public who are so fortunate as to possess land do not know how it comes to pass that their titles are so voluminous and expensive, and find it impossible to understand the defects and flaws which require the conveyancer's skilled assistance or lead to litigation. A proprietor generally knows no more than this-that he has his lawyer's assurance that his title has been made all right at a certain necessary cost, and that the deeds are in his charter-chest. An heir

succeeding only knows that he has to pay so much for making up his title; but he knows absolutely nothing of what it consists. A purchaser is in the same position. Permit me to invite your intelligent and skilled attention to these questions:-Is the system right? Is it necessary, and, if not necessary, is it expedient that the feudal system shall continue to exist? Is it possible, and, if possible, is it not desirable, to assimilate land to other subjects of property with respect to the evidence of the proprietor's title and (which is really the same question) the mode of transmission? My observations at present on this great and interesting subject must of necessity be brief and general. But, although I cannot now submit to you all the grounds of it, I have no hesitation in stating it as my opinion-the result of frequent and careful consideration-that the feudal system may be altogether abolished with advantage to the whole community, and that superiorities may be made to cease without sacrificing any of the substantial patrimonial rights of those who are now called superiors. It is probably known to many of you that this was the opinion of one of the most skilled adepts of our day in the mystery of Scotch Conveyancing, I mean the late Lord Curriehill. I have never heard what I thought to be even a plausible reason assigned for maintaining the relation of superior and vassal. It is assuredly not necessary to enable a proprietor to sell land subject to an annual payment, or to secure the stipulated payment. It is not necessary to the security of title; on the contrary, it leads only to danger by the multiplicity of deeds which it requires. When a proprietor dies, and is succeeded by his son, why should the son be under the necessity, as he is now, of taking a charter from a superior? or, as frequently happens, when the estate consists of several parts acquired at different times, a dozen charters from a dozen superiors? Why should the heir not be allowed to enter upon and possess the estate upon his dead father's title? When an estate descends to an heir, or is acquired by a purchaser, does any one believe that there would not be sufficient safety in such a simple rule as this that the ancestor's title shall be imputed to the heir, and the seller's to the purchaser? I am not, of course, to be understood as suggesting that the ordinary evidence shall not be required of the heir's right and the purchaser's acquisition. But why should the subject of title be complicated with a consideration of superiorities? The difficulties and dangers connected with the examination and completion of a progress of titles do not consist in tracing direct transmissions of the dominium utile, but in noticing the creation of mid

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