end of the thirteenth century, the same summary greatest improvements of their practice are still process lay open to a creditor for attaching the land borrowed from our jurisprudence. The wisdom of as the moveable goods of his debtor; and although the Scotch Legislature had, an hundred and eighty the influence of the nobles struggled hard, in later years ago, established a summary and cheap process times, to throw obstacles in the way of the seizure of for the recovery of the sums in bills of exchange by their estates for civil debts, yet they did so with so the simple expedient of registering them, so as to little success, and the wisdom of the Scottish Parlia- give them the effect of a decree. This was done by ment interposed so effectually to preserve open the the Act 1681, c. 20, in regard to foreign bills, and access of creditors to the estates of their debtors, that by Act 1695, c. 36, in regard to inland bills. Down the balance was turned the other way; and the in- to the middle of the nineteenth century, however, justice done for centuries was the undue power af- nothing of the kind was thought of in England, forded to creditors of carrying off great landed and the sums in bills in that country, till within estates for inconsiderable money debts-a power to these six years, could only be recovered by an action the use and abuse of which many of the greatest in Westminster Hall at a cost of £30 or £40. estates now existing in Scotland owe their origin. At length Lord Brougham, in 1856, copied the Repeated statutes have been passed to check this Scotch Acts presented to him by a learned gentleabuse (the statutes 1549, 1617, 1663, 1672), and at man in this city, Mr Robert Watt, into an English length the principles of a just accounting between Bill, which passed into law, and under the name debtor and creditor were established, and as much of the English "Bills of Exchange Act, 1856," land allowed to be attached only as was equivalent imported into that country the advantages, in this to the amount of the debt; but no fetters upon the particular, which the laws of Scotland had so long execution against real estates ever existed similar to afforded to its inhabitants. Till the most recent those so much complained of in the neighbouring times, the law of England allowed a woman, who part of the island, and land lay always as much ex- had been delivered of a bastard, to "swear it," as it posed to the process of creditors in the person of the was called, against any person she chose, who, withheir as it was in that of his predecessor; nay, in out farther evidence, was forthwith decreed to mainsomes cases, by special statute a preference was tain it. The enormous injustice of this strange given, a hundred and seventy years ago, to the proceeding had long been complained of to the south creditors of the ancestor over those of the heir. We of the Tweed, the more especially as no such extracould easily extend this enumeration to double its ordinary privilege was accorded to such women in present length, without exhausting the evidence this country, where the mother of a natural child which the Scottish Parliament have left in their was always obliged, in addition to her own oath, to legislative measures of the admirable political wis- establish her case by a semiplona probatio. At dom and truly independent spirit by which they were length, in a Bastardy Bill in 1846, in England, on actuated. Enough--and, perhaps, many may think a motion of the Duke of Wellington, the Scotch law more than enough-has already been done to estab- was imported into England, by requiring the plaintiff, lish their just claim to the character of free, just, in such actions, to adduce "corroborating proof." and upright legislators. We shall only, therefore, add what is perhaps the most surprising matter of all, and what the English lawyers, accustomed to the multorum camelorum onus of their statutory law, will fully appreciate, that such was the laudable brevity of those ancient times, that the whole Scottish Acts of Parliament, down to the Union, are contained in three duodecimo volumes. And yet, in these little volumes, we hesitate not to say, is to be found more of the spirit of real freedom, more wise resolution and practically beneficial legislation, better provisions fur the liberty of the subject, and a more equitable settlement of all the objects of the popular party at this time, than is to be found in the whole forty quarto volumes of the statutes at large, and all the efforts of English freedom from Magua Charta to the Reform Bill.

Nor has the transplantation of Scotch law into England ceased in recent times; on the contrary, the

From the preceding enumeration, imperfect as it will appear to all persons acquainted with Scottish jurisprudence, it is evident that the wisdom and public spirit of the Scottish Parliament, anterior to the Union, had not only procured for the people of Scotland all the elements of real freedom, but had effected a settlement, on the most secure and equitable basis, of all the great questions which it is the professed object of the patriotic party to resolve in a satisfactory manner at this time. It appears that, above two hundred years ago, the Scottish Parliament had not only effected a settlement on the most equitable footing of the difficult and complicated tithe question, so as to relieve entirely the cultivators of that burden, but established an admirable system of poor laws, the efficacy and security of which have been proved by the experience of nearly three centuries, till they were obliterated by the decisions of the Court of Session; provided an effectual remedy

against the evils of arbitrary or illegal imprisonment; century, were secured for Scotland by her native established a complete and universal system of Legislature before the end of the seventeenth. public instruction; introduced a humane but effective system of criminal law; giving to the meanest prisoner, charged with an ordinary offence, the same privileges which the English law concedes only to State offenders accused of high treason; awarded to all prisoners the right of being defended by counsel, and heard by them upon the evidence; provided for the protection of the poor in litigation against the rich; laid the foundations of an admirable system of banking, the security and benefits of which subsequent experience has abundantly verified, even in the most trying circumstances; afforded a humane relief to insolvent debtors, so as to check completely the evils of prolonged imprisonment; extended their care even to the aliment of poor prisoners in jail unable to provide for themselves; established that retrospective period in bankruptcy which English wisdom did not adopt for a century afterwards, giving absolute security to the cultivators of the soil in the enjoyment of their leasehold rights; effectually prevented the oppression of the husbandman by the exactions of middlemen, or the distraining for more than their own rents by the owners of the soil; never admitted the hideous injustice arising from the corruption of the blood in cases of high treason, but limited the punishment to the person and moveable estate of the transgressor; established an admirable and universal system of registration for all titles and mortgages relating to real property; introduced a lucid and intelligible system for the conveyance of landed estates, and the burdens created thereon; brought cheap justice home to every man's door by an unexceptionable system of local Courts; provided for the just and effectual prosecution of crimes by the establishment of a public officer, entrusted with the discharge of that important function; giving a comparatively ready access to creditors against the real estates of their debtors, and allowed execution to proceed at once against the person and estate of the debtor; and established a cheap, summary, and efficacious process for recovery of sums in bills, which the English did not adopt for an hundred and seventy years after.

In another particular of the very highest importance in social life, the recent law and practice of England has been entirely borrowed from that of Scotland. From a very remote period, the law of this country has permitted divorce, at the instance of either of the spouses, on the ground of adultery or wilful desertion for four years, under the limitation only that the guilty parties cannot afterwards marry each other. During all that time the English law permitted no divorce even for adultery, except by an Act of Parliament, which virtually confined the remedy to persons who could afford to pay three or four thousand pounds for a legislative enactment. By the statute passed in 1858, however, the English at length adopted the Scotch law, with this variation only, that the divorce on the ground of non-adherence is not introduced, and divorce even for adultery, as against the husband, must be accompanied with proof of cruelty. The subsequent intermarriage of the parties concerned in the adultery is not in every case prohibited, but a public officer is permitted to intervene in cases where collusion is proved, to prevent decree of divorce going out. The vast number of cases-so much greater than was anticipated—which have come before Sir Cresswell Cresswell since this Act came into operation, is the most decisive proof of the necessity that existed for such a remedy in the English practice, and of the superior wisdom of the Scotch law, which, from a very remote period, allowed the remedy by the decree of the ordinary Courts, and not by the costly practice of legislative enactment.

Whether these were important objects to have been gained, great and glorious attempts to have been made by the Parliament of a remote, inconsiderable, and distracted kingdom, during the fifteenth, sixteenth, and seventeenth centuries, we leave it to others to judge; but this we will affirm, that if they were not, then are the whole friends of their country of Great Britain at fault, and wandering in the dark at the present time; for almost the whole objects for the acquisition of which they profess, with justice, such anxiety in England, in the middle of the nineteenth

If the importation of the Scotch law of divorce into the English practice has been a most important step in the improvement of their law relating to the rights of parties, a change not less material has been introduced in the last Session of Parliament by the adoption of some of the most important provisions of the Scotch Bankrupt Law. By the existing Bankrupt Act for Scotland, passed in 1856, the remedy of applying for sequestration was formerly competent only for per sons engaged in trade or commerce, was declared competent against all debtors whatever, without any distinction of their profession or calling, and th right of suing out such a sequestration, which for merly was competent only to one creditor whose deb amounted to £100, or two or more of £150, ha been reduced to one whose debt is £50, and two o £75. That this was a most important change calculated in the end to work out an entire re volution in the law of debtor and creditor in tha country, cannot for a moment be doubted; and i is perhaps surprising that it has not been attende by more wide-spread and material effects in thi country than it has been. But if that is a jus

matter of astonishment here, the very reverse has relations, than to give any extraordinary advantage become a subject of surprise in the neighbouring to litigants on either side by the examination upon kingdom. The Scotch law, in these particulars, is oath of themselves or their near relations. In a parnow introduced into the English Bankrupt Act, and ticular class of cases of an occult nature, the examithe English Bankrupt Act came into operation in nation of parties was permitted by judicial declaraSeptember last. The immediate effect was so pro- tion, but the testimony of themselves or their near digious, that for some weeks the bankruptcies awarded relations upon oath was absolutely prohibited. On in England were at the rate of about 84,000 a year; the other hand, the English practice, mainly governed and although the numbers are now much diminished, by commercial considerations, deemed the speedy yet every London Gazette contains an array of from arrival at the merits of a case, by putting the parties 100 to 150 bankruptcies in England, although prior themselves and their near relations upon oath either to the change of the law, 1400 bankruptcies was for or against themselves, was the great object to reckoned an enormous number for a whole year. which everything else should yield. And, accordThis is certainly a most important change, particularly ingly, the recent Evidence Acts, which introduced when it is recollected that we have the authority of into our practice the English law in these particulars, the Lord Chancellor for the assertion, that while the has made it competent in every case-with some few expense of realising and winding-up a bankrupt exceptions, such as in declaration of marriage and estate in Scotland is 15 per cent. on the assets, it is other actions relating to status-for the parties to in England 33 per cent. Perhaps the English would adduce themselves or their opponents as witnesses, have done well if, in addition to the particulars above and swept entirely away all objections founded on mentioned which they have borrowed from the Scotch interest or near relationship. This was an immense Bankrupt Act, they had borrowed also the provisions change in the Scottish practice, and we are probably vesting the entire management of bankrupt estates in too near the time of its introduction to be able to a trustee and commissioners chosen by the creditors, form a correct opinion as to whether its ultimate tenLot in the official assignees established in their prac- dency is likely to be beneficial or the reverse. So far tice. But be this as it may, one thing is clear that as my own experience goes, I should say decidedly this new English Act, which for good or for evil has that the change has done more harm than good, and worked so vast a change in the practice of the Eng- impressed strongly on my own mind the wisdom of lish law in the matter of bankruptcy, is to be ascribed the old Scotch law founded on the metus perjuriœ entirely to the adoption by them of the prior Scotch No doubt there are persons of so upright a character that they would tell the truth, especially when put upon oath, even to their own loss. But experience has proved that this is by no means the case with all litigants; and even where such an honest litigant does appear, he generally only suffers for his love of truth, for it is ten to one that his opponent will not be equally scrupulous, and thus the dishonest party will reap the fruits of falsehood, and the honest one suffer the penalty of telling the truth. Every gentleman in the Faculty of Procurators, and whom I have the honour to address, must have often experienced this in his own practice. This frequency of perjury in Court, under the temptations introduced by the English practice, is a most serious consideration, and cannot fail to have a very demoralising influence upon society, especially in a country where litigation is so great as it is in this.

statute.

When the law of the neighbouring country has borrowed so much in recent years from the statutes and practice of this, it was not to be expected that some corresponding importation of English law into Scotland should not have taken place. Such an importation has accordingly gone on, and to some considerable extent. In matters of finance and taxes this of course was proper and unavoidable; but in addition to these, several important changes have been made of late years on the old Scotch law, by statutes founded on the English law, which are now matters of daily practice, and the tendency of which it is of the highest importance should be deliberately considered by all bodies in the country capable of forming an impartial opinion on the subject.

1. The first of these is the change made on the Law of Evidence, which has been entirely altered by the recent Evidence Acts. I need not tell you that, by the former common law of Scotland, the rule as to the admissibility of witnesses was respectus personarum é meus perjuriæ. Our Scotch law held that it was more important for the best interests of society to shun the temptations to perjury, which would necessarily follow the permitting parties to be examined witnesses in their own cause, or that of their near

The last returns prove that, for the last twenty years, there have 25,000 cases come into the Courts of Lanarkshire every year, in every one of which almost, either party may be examined as a witness for or against himself. It is melancholy to think, in such a mass of litigation, what a number of instances of perjury, from sordid or interested motives, must have occurred, and how often the parties guilty of such a crime reap the fruits of their own iniquity by

derived from the possession of moveables, often of great value, and transferring that advantage to the purchaser who has got delivery, and thereby has become entitled to the benefit of the credit accruing from it. But where sales are validated by written bills of sale and receipts for the price, without change in the possession of the article sold, nothing is so easy as to make out a bill of sale, under properly drawn up instruments, without any real transfer of the property, as a cloak merely to shut out the seller's creditor in the event of bankruptcy, and where the seller, up to the very hour of bankruptcy, retains the goods and reaps the whole benefits of credit arising from their possession; while the purchaser, in many cases, is a mere fictitious or conjunct and confident party put forward to effect the fraud. If the seller becomes bankrupt, the fictitious purchaser steps forward with a got-up bill of sale, perfectly regular and formal, and succeeds in carry

gaining their cause, while the honest pay the penalty of their conscientiousness by losing it. In one painful class of cases, unhappily every day becoming more numerous, perjury, when the cause is contested, is almost of universal occurrence. In actions of filiation, or bastardy, as the English call them, it is almost universal, when appearance is entered for the defender, for both parties to put themselves in the box, and for the pursuer to swear to the connection, and the defender to swear quite the contrary. One or other must be committing perjury in such cases, and very often there is perjury on both sides; for the pursuer, to strengthen her case, falsely swears to corroborating facts, which are not true or otherwise proved; while the defender, to strengthen his, culpably denies the principal act, which he well knows had actually taken place. Nor are these evils, which are of daily occurrence in our Courts, in the least compensated by the superior facility of arriving at the real merits of a case by putting the parties on oathing off the goods ostensibly for himself, but really for or against themselves, for the judges or juries very quickly perceive how little reliance is to be placed on the oaths of parties in their own cause, by being almost always equal and opposite. They are, in consequence, by the common consent of the bar and the bench, cast aside, and struck out of the evidence on either side as virtually destroying each other. Thus the good sense and feeling of justice of professional persons engaged in law suits, on both sides, leads practically to the result which the old Scotch law attained by the exclusion altogether of the parties to the suit as witnesses; with this difference, that the old law arrived at this result by preventing the perjury altogether, the English by admitting it, and thereafter causing it to be thrown aside as useless, and likely to mislead in the decision of the cause.

2. In another important particular the Scotch law has, very recently, undergone a great change by the passing of the Mercantile Amendment Act, copied from the law of England. You are all aware that, by the fixed principle of the old Scotch law, the real right in moveables transferred by sale did not pass till delivery of the article sold passed on the bargain. Till that occurred, the real right remained in the seller, and could be attached by his creditors, while the purchaser was vested only with the jus exigendi to compel delivery and implement of the contract on tender of the price. By the recent Mercantile Law Amendment Act, however, the real right is declared to pass, except where fraud is alleged, by a mere signed bill or missive of sale, without any change in the local position of the goods sold. In this way the great safeguard provided by the Scotch law against fictitious sales, retenta possessione, has been swept away. Delivery is a public act patent to all the world, at once depriving the seller of the credit

for the bankrupt, with whom he is in collusion; while the unfortunate creditor, who sold the goods to the bankrupt on the credit of a well-stored warehouse-stored by similarly deluded brothers in misfortune-is paid often with a dividend of a penny or twopence in the pound. Cases of this sort are of too frequent occurrence in the Scotch Bankruptcy Courts. And it is next to impossible to establish fraud in such cases, for the writings produced are generally quite regular and unexceptionable in form, and the parties privy to them are quite prepared to come forward in their cause and swear to the verity and honesty of the fraudulent transfer. Nothing is more cominon than to hear surprise expressed at the fraudulent devices that come to light in the examinations in bankruptcy before the Sheriff, but nothing is more intelligible to those concerned in such proceedings. The profits of such fraudulent transactions are often very great, and the recent changes in the law have afforded the utmost facility both for their perpetration and effectual concealment from the eyes of justice.

3. This leads me to observe in the last place that so standing, the law and facilities for fraud in cases of bankruptcy, no effectual provision for checking them by punishment practically exists in our law. The first step taken when a sequestration is issued is to give a personal protection to the bankrupt, and very often that proceeding is adopted at his desire by creditors upon fictitious claims, to obtain that security for his person. The theory of the law is, that the continuance of the protection is committed to the creditors, who may by a majority continue or withdraw the protection. But this answers well only in theory, for experience has proved that in practice it is far from being efficacious. In the first place, it is

the Lord Ordinary in vacation, or of the Court in time of session. This would make our proceedings analogous to those of the Bankruptcy Courts in England, where the judges possess that power, as they do in cessios in Scotland; and this would, in many cases at least, afford a check against the evil now so much complained of, for nothing is more common than to see a case where the bankrupt under examination affords decided evidence of fraud, but where there is no chance of his personal protection being withdrawn by the creditors, and where the Sheriff examinator has no power under the Act to commit the bankrupt, even for a certain time,

I have thus laid before you, at greater length than I at first anticipated, what I have observed of the chief instances in which the law of England has borrowed from that of Scotland. The numerous

very common for creditors in the interest of the bankrupt, with fictitious vouchers of debt, to appear and vote both in the election of the trustee and any subsequent meeting regarding the personal protection of the bankrupt. His friends and associates in this way often get a majority of votes over the real and bona fide creditors, and elect a trustee and commissioner entirely in their own interest, and pledged to support their separate views. In the next place, supposing no such fraudulent attempts to be made, there is such a disinclination in creditors to subject a bankrapt to imprisonment, partly from private friendship, partly from motives of humanity, partly from aversion to more trouble, and partly from disinclination to stand out in such a matter against the views of the majority, that it is very rare indeed to see so extreme a measure adopted. In nine cases out of ten the first protection given to the bankrupt operates as a permanent security to his person, and that notwith-cases in which you see this has been done, and the standing the clearest evidence may be adduced of fraudulent proceedings in the examination of the bankrupt before the Sheriff. Nor is it any security against these evils that it is in the power of the trustee to move or the Sheriff to direct the proceedings to be laid before the public prosecutor, with a view to criminal proceedings against the bankrupt for fraudulent bankruptcy; for such is the complication of matters that generally appear in bankrupt estates, that it is next to impossible, in cases really the worst, to frame an indictment which shall be held relevant in all its parts; and even if this difficulty is overcome it is still more difficult to find a jury who are qualified to understand the case or bring in a correct verdict. The general result of all such prosecutions for fraudulent bankruptcy is, that after two days' hard fighting in the criminal court, and after scarcely any doubt can be entertained of the guilt of the accused, something is awanting to make up, in the opinion of the jury, the proper measure of legal evidence, and a verdict is brought in of, by a plurality-Not Proven.

The obvious remedy for this state of matters is to extend to cases of bankruptcy by sequestration the old practice of Scotch Courts in cases of cessio bonorum, imported into the practice of England in their recent Bankrupt Acts, and that is to invest the judges under the Bankruptcy Acts with the same power which they have in processes of cessio, viz., to withdraw the personal protection for such a time as may appear to be called for by the circumstances of the cases, or to commit the bankrupt to prison for a time where fraud is obvious, subject always to the instant review of

beneficial effects with which the transference has been attended, suggest one solitary and pleasing reflection. As the Scottish law has been found so generally applicable to the wants of mankind as to have been largely imported into the English practice, so the Scotch law itself has proved of such general application and utility in consequence of its being mainly founded on the Roman law. Thus you see that the efforts of enlightened lawyers in no country are lost to the general interests of humanity, but the improvements of one country in jurisprudence, if really founded on the interests of mankind, like the truths of geometry or physical science, are wafted on safely by the floods of time. The books of authority in Scotch criminal law are at this moment quoted as authority in the Courts both of Germany and America. And it is a most curious fact that, when Lucknow was taken in 1858, the only English books that were found in the royal palace were the Duke of Wellington's Field Orders, and my own work on Criminal Law. I ascribe this to no merit in the latter production, but solely to this, that, like the former, it was the exponent of a system suggested by the necessities and adapted to the wants of mankind. And this suggests the pleasing hope-with which I conclude this Address-that the time may one day come when a great and equitable system of jurisprudence may be formed out of the combined efforts of lawyers and judges in all ages and in all countries, and a vast stream be formed, of mingled equity and wisdom, which may flow over all the earth, and materially abridge the sufferings-by establishing the rightsof all the nations by whom it is inhabited.