Ireland. It is difficult to get the pure bred English lawyer to remember, that there is any part of the world where his own technical phraseology is not predominant; and that there are parts of the Empire over which her Majesty's Courts of Record at Westminster, and the system they administer, hold no authority. The words advocation,' reclaiming note,' suspension,' and condescendence,' are as applicable to practice in England as certiorari,' writ of error,' and 'imparlance' to that of Scotland; yet in acts of parliament applying to the whole realm, and which must be enforced in Scotland, these are the terms out of which the administrators of the law must divine a method of putting it in force. The act for the regulation of Benefit Building Societies,* contains clauses applicable solely to English conveyancing; such as mortgage,' equity of redemption,' &c., which have no more meaning in Scotland than wadset' or adjudication in implement' would have in England. When such inapplicable phraseology is used in relation to the proceedings of courts, no practice can take place upon the act, without its at once being perceived whether the courts of law in Scotland consider themselves bound or entitled to put it in execution; but when the phraseology applies to property or transactions, latent defects may have accumulated to a great extent before they are discovered. We do not know if there is any authority for holding, that this act can be put in force in Scotland; but perhaps at a distant day, when some respectable body of artisans, formed into a Benefit Society, have expended their whole social funds, and a considerable sum besides in the Court of Session and House of Lords, it may be known whether the act is capable of being worked in Scotland or not.

1

The apportionment act' was passed in 1834, and was called an act to amend an act of the eleventh year of King George II. respecting the apportionment of rents, annuities, 'and other periodical payments.' This act of the 11th George II. was specially limited to England, excluding Scotland and Ireland. Its object was, in the case of the granter of a temporary right in land terminable by his death, dying between terms, to enable his representatives to recover rent from the tenant proportioned to the period of the broken term. The act of 1834 was passed avowedly to remove some doubts regarding the extent of this provision. So far as it did so, it could of course only extend to the portion of the Empire to which the doubtful provisions applied, viz. England. But a further clause appeared

*. 6 and 7 W. IV. C. 32.

+4 and 5 W. IV. c. 22.

6

in the act, not embraced in its title, by which in the case of annuitants, or other persons entitled to receive sums of money at fixed periods, dying between the periods of payment, their executors became entitled to receive a proportion corresponding to the period between the death and the preceding term of payment. As if the person who drew the act had been under the influence of the spirit of wanton mischief, this clause was declared to extend to all rents, annuities, pensions, moduses, compositions, and all other payments of every description in the United Kingdom of Great Britain and Ireland, made payable or becoming due at fixed periods,' &c. Eight years after this act had passed, some discursive reader of statutes stumbled on this clause; and since it has been brought to light, it appears to have created a wider change in the law of Scotland than many statutes which have been dispersed among the legal bodies, discussed at county meetings, or town-councils, and only passed after they have struggled through several sessions. The Judge before whom the question under the act was raised, according to a form peculiar to the practice of Scotland, Reported the case for the direction of the whole Court; and the shape in which he made his report shows how great a revolution the clause, were it law, created Till the year 1842, no lawyer or man of business practising in any of our 'courts, was aware that any change had been recently made on 'the rights of heir and executor in Scotland. Since 1834, it is 'manifest that landed property in this country, to a very large 'amount, must have passed from ancestor to heir; but in cases of 'intestacy, it has been divided between the two classes of heirs," "according to the ancient law of Scotland, no one supposing that it had been rescinded or disturbed. It is alleged, however," ' in the Summons in the present action, that an act of parliament was passed in 1834, whereby the whole legal rights of heir and executor in the rents and annual proceeds of every estate in Scotland were changed.' The Court, by a narrow majority," found that they could not overlook the direct comprehensive terms of the act, and that it must be held applicable to Scotland. The case is now under appeal. Lord Jeffrey, who concurred in the view of the majority, made the following remarks, which are eminently applicable to the carelessness with which such matters are managed. It is right I should mention, that, though Lord Advocate at the time, I can'not say that I was aware of the passing of the act. 'from the Mirror of Parliament, and otherwise, that it occa'sioned little discussion; and, having given directions that notice ' of all proposed measures affecting Scotland should be given to

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" me, if I had been asked at the time if such an act had been passed, I would have said No-no notice having been given to the officer, whose duty and right it was to be advised of any change proposed to be made in the law of this country.?* p Whatever tends to uniformity between the statute law of England and that of Scotland, is generally a great gain to the latter country; but it is not by overlooking the existence of the northern part of the island in legislation for the southern, that uniformity is attained. Like all good things, it will more naturally arise as the fruit of care, labour, and skill, than of disorder and neglect. In a recent Number of this Journal, we censured the doctrine which has been reduced to practice by the Scottish Criminal Courts, that they can administer a law of their own making, in those cases for which the legislature has not provided. This objectionable feature, which has long distinguished the Scottish practice, both in the civil and criminal courts, is fostered, if it is not in a great measure caused, by the slovenly uncertainty of the statute law. If it become a nice point of criticism, whether a statuté applies to Scotland or not, the Judges must act upon general impressions and critical deductions; they have no other guide. It would be impossible to find, in the decisions of the Scottish Courts, any absolute criterion of the applicability of an act to their part of the Empire. In some cases, the use of the phraseology of the English law, and the circumstance that the legislative draftsman seems not to have dreamed of the existence of that part of great Britain called Scotland,' are conclusive against the extension of the act; but in other instances of similar phraseology, it has been held that the act being as much needed in Scotland as in England, the mischief that would accrue from its not taking effect, and the general understanding of the public that it was a measure national to all Britain, have been reasons for translating the technicalities of the English into the parallel terms of the Scottish law, and acting as if these had been embodied in the statute.

In 1835, an act was passed for punishing cruelty to animals.† Its local application is not limited, but two years later an act was passed to remove any doubts that it applied to Ireland:‡ This created doubts of its application to Scotland, and some magistrates enforce it, while others do not. The extensive ameliorations of the Criminal Code commencing in 1827, apply solely to England. Several of the severe acts, however, which

* Bridges v. Fordyce; 6 Bell and Murray's Cases, 968.
† 5 & 6 W. IV. c. 59.

+ 7 W. IV. & 1 Vict. c. 66.

they amend, embrace Scotland, and thus remain unrepealed in their application to that part of the Island. In these cases, the too ample powers for the modification of punishments, divided between the public prosecutor and the court, serve to hide from the public the severity of the written law; and at the same time to palliate and excuse a dangerous license of authority, Within these few past years, several statutes for the mitigation of the Criminal Code have been passed, without any reference to Scotland; and during the present session, a bill was brought in by the Lords, 'intituled an Act for removing some defects in the administration of criminal justice,' of which the phraseology is English, but the application unlimited; and which will, if it pass, and ever be noticed in Scotland, be an addition to those masses of the statute law which the Judges may adopt or reject at their pleasure.

But even where Scotland has been particularly kept in view, the legislature has not, in some instances, been more successful in the applicability of its machinery. The act 52 George III. c. 93, imposes certain penalties on persons keeping greyhounds for the purpose of killing game, without having obtained a certificate in terms of the act. Prosecutions for recovery of penalties were appointed to proceed in the first instance before a Justice of Peace or two Commissioners, but a provision was made for an appeal from their decision in the following terms: And if (such person or persons shall find himself or themselves aggrieved by the judgment of such commissioners or justice, then he or they shall or may appeal to the justices of the peace of the next general quarter session for the county, riding, or division, or to the Justice Clerk or other officer of the Court of Justiciary of the shire, stewartry, city, liberty, or place in Scotland, which courts respectively are hereby empowered to examine witnesses upon oath, and finally to hear 6 and determine the same.'

6

Now, independently of the circumstance that a liberty' is a civil division unknown in Scotland, the definition of the court of appeal was precisely as clear as if, with reference to England, it had been to the Chief-justice, or any other officer of the court of Queen's Bench of the county, riding, or division. A person convicted before two justices in Lanarkshire, brought an appeal before, the circuit court of Justiciary, sitting in Glasgow. The question was discussed before the High Court in Edinburgh, and it was found, though there was a considerable difference of opinion, that the terms of the act did not give that court any jurisdiction in the matter. One of the Judges expressed himself as

follows:

My own, impression is, that the intention of the person who drew the statute was, that the appeal should be lodged with the clerk of some court, which was afterwards to try the case; but is there any "Court of Justiciary of the shire, stewartry, liberty, or place?" It was plainly some local jurisdiction that was contemplated. It was thought that there was a court of justiciary in each county, and a clerk in each such court, here called the Justice Clerk, and jurisdiction was intended to be given, either to the clerk or the court, we do not know which. But we know that we are not a court of a shire, and therefore there is no jurisdiction given to us. Another Judge said "I do not believe that the author of the statute could tell us what he meant; but I am con vinced that if he were told that an appellate jurisdiction was conferred not upon a county court, or one in which the appeal could be heard im mediately, but that the case must be brought to the high court, sitting in Edinburgh, or delayed for months till the next circuit, he would say that this was not the intention of the act.' *

Such was the manner in which it was necessary for the Judges to speak of the proceedings of the legislature.

It is clear that whatever other reforms in the routine of legisla tion may be necessary or expedient, there should be a rule against any measure being passed, which has not been perused by some person acquainted with the law and institutions of Scotland. That part of the Empire has lost the advantage of many valuable reforms by the simple circumstance of having been overlooked by the promoters of the measures. Even when it is part of the plan that a bill shall apply exclusively to England, it is often expedient that some pains should be taken, to unravel its machinery from any such entanglement with Scottish practice as may render the limitation abortive or ambiguous. Where rights and obligations are established with an application solely to England, it is necessary to provide that the law of Scotland shall not afford the means of defeating them, and to do so in such a manner as not to extend the operation of the act to Scotland. In 1844 an act was passed for the winding up of insolvent jointstock companies. † Though there is no territorial limitation that the act is intended for practice solely in England, is clear from its setting in motion the machinery of the English bankruptcy court alone. But it was necessary to introduce a provision for enforcing the legitimate judicial proceedings of the English Court on persons residing in Scotland. These clauses, and the reference of the operation of the act to companies embodied under the patent companies' act, which undoubtedly extends to Scot

Shanks v. Neilson, Swinton's Justiciary Reports, 617. † 7 and 8 Vict. c. 111.