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which they are compellable, as a condition of whose exploits were the admiration of the and in exchange for a discharge in their own world. The first of these orders was established favour, to divest themselves by assignment to at Jerusalem in the year 1118, the twentieth the beneficiaries.
of the Christian dominion in Syria, by nine In the case both of companies and of trusts pious and valiant knights, who formed themit would appear that some unexpected and selves into an association, the objects of which undesirable results must, or may, follow upon were to defend the Temple and City of Jerusalem, indemnities in favour of professional employees. to entertain Christian strangers and pilgrims Thus, take the case of such an indemnity as charitably, and guard them safely through has been held to exist in favour of the auditors the Holy Land. King Baldwin the Second of the City Equitable Co. That indemnity assigned to them for their dwelling a part of was contained in the articles of association, his palace. He and his barons contributed and it must therefore rule unless, and until, the to their support, and the abbot and canons articles are validly altered in terms of law. of the Temple assigned to them, for the keeping Needless to say, no reference was made to the of their arms and magazines, the street between indemnity in the annual resolution of the it and the royal palace, and hence they took shareholders for the appointment or reappoint- the name of the soldiery of the Temple, or ment of auditors, but the extraordinary position Templars. is that, standing the articles of association, it For some years after their institution the would apparently not have been competent for Templars lived in poverty and humility, the company to appoint auditors on the basis and no new members joined their society, of full and unrestricted professional responsi- which was eclipsed by that of St John. bility and liability, and that any attempt so to The kingdom of Jerusalem had been in a express the appointment would have been very extraordinary state from the date of ultra vires and inept, which is surely an extra- its conquest. It lay between two enemies, ordinary position. Again, if we are to conceive the Egyptians on the south and the Turks of a case where an indemnity has been validly on the north, and these Moslems, though of created in favour of surveyors and valuators, it opposite and hostile sects, agreed in hatred would apparently be beyond the power of the of the Christians, and a desire to take Jerusalem, directors or trustees to employ a surveyor or which was to them also the Holy City, out of valuator except on a basis which would free the the hands of the western infidels. The indepenemployee of responsibility for breach or failure dent Arabs of the desert were also inimical of duty, provided only he had gone wrong to the Christians. Hence, the Holy Land through an honest misconception of what his was continually infested by predatory bands duty was. This seems absurd and indeed in- who robbed and plundered all who fell in tolerable. Incidentally, it may be suggested their way. The King had been a captive in that a valuation obtained by trustees on such the hands of the Turks, and on his liberation a basis would not be a valuation obtained in the he sought every means of strengthening his sense of the Trust Act, and would not protect kingdom. As the Templars had displayed the trustees under that Act, which, however, such eminent valour and devotion wherever it may be said, would be neither here nor there, they had been engaged, he resolved to obtain for in such a case there would almost certainly for them all the influence and consideration be an absolute indemnity also in favour of the in his power. Accordingly, he sent two of trustees. The conclusion of the whole matter their members as his envoys 'to lay before appears to be that the indemnity idea is the Pope the state of the Holy Land, and also excellent and beneficial, but only within proper furnished them with
strong letter of limits.
recommendation to the celebrated Bernard of Clairvaux, the nephew of one of the
envoys. Bernard highly approved of the TEMPLE LANDS.
objects and institution of the order. Certain
of the brethren thereafter appeared before the By WM. YEAMAN.
fathers, who were assembled in Council at There are many landed estates and heritable Troyes, and detailed the.maxims and deeds of properties in Scotland called Temple lands the Templars. The fathers expressed their and Temple tenements, and it is proposed to approbation, the order was pronounced good explain why that name was applied to them. and useful, and some additions, taken from that
At a very remote period there existed two of the Benedictines, were made to their rule. orders of religious knights, viz. the Knights In a short time, thanks to what at the Templars and the Johannites, or Knights of present day is known as propaganda work, St John of Jerusalem, who have been re- the order rapidly increased in wealth and ferred to as
an extraordinary race of men consequence; gifts in abundance flowed in
on it and large possessions were bestowed on Malphy and the Kingdom of Naples, who, it in all countries of the west, and it became trading to Palestine, obtained leave from the very powerful and opulent. There was scarcely Sultan of Egypt, upon paying a certain tribute, a country in Europe in which the lavish piety to build a church and monastery at Jerusalem of princes and nobles had not bestowed on the for the reception of pilgrims. Upon the Templars a considerable portion of the wealth capture of this city by Godfrey of Bullogne, of the state, for in every province the order Gerrard Martiques, à native of Provence, had its churches and chapels, villages, farm- built there a larger church and hospital for houses, mills, corn lands, pastures, woods, the sick and for pilgrims, in honour of St John, rights of venison and fisheries. The entire and therein placed these Knights, who took annual income of the order has been estimated their name from that hospital and from the at not less than six millions sterling. The saint to whom it was consecrated. The Knights Templars soon became, in fact, the most of St John were styled “Hospitallers." One distinguished of the Christian warriors. The circumstance is very remarkable. Although revenue they enjoyed enabled them to draw the Templars had been dispossessed and had to their standard valiant secular knights and been succeeded by the Hospitallers, the lands stout and hardy footmen. The chivalry of formerly in their occupancy still retained St John vied with them, it is true, in prowess the distinguishing appellation of Terræ and valour, but they do not occupy the same Templariæ,” and in process of time this was space in the history of the crusades. The extended to the original estates of the Templars were from the outset solely devoted Hospitallers, so that at the time of the Reformato arms; and the warm interest which St tion, when the order dissolved, the Bernard, whose influence was so great, took whole lands, excepting the larger baronies, in their welfare, and the circumstance that were indiscriminately called Temple lands. the King of Jerusalem was a member of their Perhaps one reason for this was the right of body, combined to throw a splendour about sanctuary, which conferred an importance them which the Knights of St John could and value on Temple property which did not not claim, but which also gave occasion to attach to any other. their more speedy corruption and augmented The Hospitallers had also been introduced the number of their enemies. Their enormous into Scotland by King David the First, and wealth, together with the luxury and other they were protected by, and received extensive evils which it engendered, provoked the hatred properties from many of the kings of Scotland. of the secular clergy and laity, and paved the The Preceptory of Torphichen, in West Lothian, way to the spoliation of the order.
was their first, and continued to be their chief The Knights of the Temple came to Scotland residence, and by the accession of the Temple before 1153, in the reign of David the First, lands and other additions their property at who established them at Temple on the South- the time of the Reformation was immense. esk. This monarch was very liberal to them, When that event took place the chief dignitary and his successors still more As the or Grand Preceptor of the Order in Scotland, bounty and piety of the kings of Scotland with a seat as a peer in Parliament, was Sir and their nobles during a dark and super- James Sandilands of the family of Calder, stitious age were continually directed towards who, as is well known to readers of Scottish the religious orders, the Templars acquired history, was the private friend of John Knox, such extensive possessions throughout the and one of the first persons of distinction to whole of Scotland that there was scarcely a embrace the reformed religion. The whole town or parish in which there were not property possessions of the combined Templars and or lands belonging to the order. Besides Hospitallers were declared forfeited to the the establishment at Temple, there were state, on the ground that the principal cause the following establishments or priories of of the foundation of the Preceptory of the order, viz.: Ballantradock, now called Torphichen was the service enjoined to the Arniston, in Midlothian, St Germains in East Preceptor on oath to defend and advance Lothian, Inchynan in Renfrewshire, Maryculter the Roman Catholic religion. Thereafter Sir in Kincardineshire, Aggerstone in Stirlingshire, James, or, as he was termed, Lord St Johns, and Aboyne in Aberdeenshire.
resigned the whole possessions before referred About 1307 the spoliation of the Templars to into the hands of Mary Queen of Scots. of Scotland and of other countries began, and The Queen erected these united possessions the order of the Temple and all its extensive into a temporal lordship, and for a consideration domains and property of every description were granted a charter in favour of Sir James and gifted to the Knights of St John of Jerusalem. his heirs. In this grant he is specially designed
This second military order owed its origin Lord St Johns, which title he subsequently to certain devout merchants of the City of exchanged for that of Lord Torphichen.
Subsequently the lordship was disintegrated Society in England. While admitting that no to a very great extent and sold, but at the legal objection can be taken to the employment present day conveyancers still find in their of unqualified agents for certain subsidiary clients' titles, lands, etc., preceded by the name purposes, the Council observes that it is for
Temple,” the origin of which the writer has the ultimate benefit of the profession that endeavoured to explain from the researches solicitors should, as far as possible, employ he has made in the books and Court of Session only solicitors to act as their agents with regard records relative to the subject.
to work which is usually done by solicitors. And, of course, in the case here the Court was
emphatic in declaring that the preparation of NOTES FROM PARLIAMENT precognitions should be done only by solicitors HOUSE.
or their qualified clerks.
After a good deal of desultory and largely It is now announced that the American and ill-informed discussion, the Scottish ConCanadian Bar Associations have accepted an veyancing Bill, which it was generally supposed invitation to a reception in Parliament House would become law at an early date, was on the evening of Monday, 28th July. The shelved for the time being by the Scottish occasion will undoubtedly be an interesting Grand Committee's postponing its considera
That it is awaited with pleasurable tion. Although in form and substance practianticipation on the other side of the Atlantic cally identical with the measure which, in may be inferred from the references made in amended form, received the more or less cordial the American press to the kindred entertain-approval of all our legal bodies, the Bill, an ments planned for London. It is announced elaborate one with 48 clauses and 34 schedules, that England will open its heart to more than was viewed with suspicion by those members a thousand American and Canadian lawyers, (a majority) who did not understand it, and, who, with their wives and families, will arrive on although designed to simplify the law and thus 19th July. One of the greatest rounds of to favour the interests of the community at entertainment ever planned for overseas' visitors large, the measure was actually denounced as will be given by the Government, the King and class legislation.
This was a case of omne Queen, and the Bench and Bar. There ignotum pro mirifico with a vengeance. Some will be no lack of liquid refreshments for the members who should have known better dry American guests, for the inns and temples seemed to think it was a party measure. Others, will get out all their ancient loving-cups and again, took up the attitude that it is useless to fill them to the brim.” Although we do not tinker at the law and amend it by easy stages; have official loving-cups in Scotland, it is to be why not wait and sweep the whole thing away hoped that our overseas' visitors will enjoy at a blow ? Some there were who thought that our hospitality to the full.
a question like this would be better discussed The suspension by the Court of a law agent when
Scots Parliament; profor the period of one year on account of gross ceedings in the Grand Committee suggest doubts professional irregularities draws attention once as to this. The Bill has now, however, been more to the non-existence in Scotland of a approved by the Committee after a second Discipline Committee such as the solicitors discussion. have in England. It is surprising that the Two recent English cases have aroused much bodies of law agents in Scotland do not take interest on both sides of the Border. The steps to secure such a committee in Scotland, interest in one is purely legal, in the other for proceedings before it for dealing with un- perhaps rather less so. The cases are those of satisfactory members of the profession are Rex v. Norman and Russell v. Russell. In the expeditious and inexpensive compared with former case, the Court of Criminal Appeal held our cumbrous practice in Scotland. They are (contrary to the ruling in M'Donald v. H.M. also effective, for the Court in England, as the Advocate, 1917 J.C. 17) that because a prisoner Lord Chief Justice remarked in a recent case, has once been held to be a habitual criminal he " is very reluctant to interfere with the findings must not always as a necessary consequence be of that experienced body.” In the same case held to be such. In the latter, the House of Mr Justice Roche seemed to doubt the Court's Lords held (what is not yet the law of Scotland) power to review the quantum of a sentence that the evidence of a husband as to nonpassed by the Discipline Committee. In the access was inadmissible in divorce proceedings Scottish case the agent was at fault in employ- to prove a wife's adultery. The common ing a “tout” to prepare precognitions, without feature of these cases was the marked division proper supervision. In this connection it is of judicial opinion. In the Norman case the interesting to note the terms of a circular Lord Chief Justice and seven judges formed recently issued by the Council of the Law | the majority, and there were four judges in the
minority. One judge could not make up his that, in his opinion, the abolition of the death mind. The Russell case
extra- penalty would lead to a disastrous increase in ordinary, for from first to last six judges, viz. the crime of murder, and that those who Mr Justice Hill, the late Lord Sterndale denied the deterrent effect of capital punish(Master of the Rolls), Lords Justices Warrington ment must be persons who had never witnessed, and Scrutton, and Lords Sumner and Carson, much less taken part in, a trial for a serious were in favour of the view which has not murder, he went on : Take as an illustration prevailed, while only three, viz. Lords the probable result of such an alteration in the Birkenhead, Dunedin, and Finlay, have carried law. Take the case of a burglar who has the day against them, for they comprised the already suffered penal servitude for burglary. House of Lords majority. This is the kind of Is it to be supposed, when he is engaged on his thing which makes the layman gird at the law, next burglary after coming out of prison, that but it is hard to find a remedy. The state of he will be deterred from killing anybody who matters would be no better if each judge attempts to capture him by the fear of a few carried so many points according to his position more years' imprisonment, knowing, of course, in the hierarchy, and the successful litigant that if he is captured his fate will be seven or was to be found in the man with the best ten years' penal servitude for burglary alone ? percentage at the end of the day.
It is easy to multiply instances of that descripWhatever may be the most cherished con- tion." So far as the judiciary is concerned, victions of the present Government, a belief it is thus certain that a proposal to abolish in capital punishment is certainly not among capital punishment would be met by wholethem. The Home Secretary recently received hearted opposition. We here express a deputation from a number of societies which opinion, but it must be remembered that support the abolition of the death penalty, and judicial prognostications of evil are not always promised to bring the question before his fulfilled." Witness the celebrated protest made colleagues. He admitted that there was little by the occupants of the English bench in evidence of any general public wish for abolition, 1868, when the duty of trying election petitions and pointed out that the question of a satis- was transferred from a parliamentary committee factory alternative punishment would require to the judges. Sir Alexander Cockburn conto be carefully considered. Meantime, he veyed to the Lord Chancellor their strong himself has been extraordinarily ready to and unanimous feeling of insuperable repugreprieve, and the Scottish Secretary has been nance to having these new and objectionable similarly inclined to mercy. The most recent duties thrust upon them.” The inevitable instance in Scotland was the case of a West result, he stated, must be “to lower and of Scotland man who was responsible for degrade the judicial office,” and to destroy what, on the face of it, seems to have been the public confidence in the impartiality of the unusually brutal murder of his wife. Leniency bench. As is well known, nothing of the kind in a case like this must mean a similar step in has happened. the great majority of cases. Most lawyers who have had a prolonged experience of the criminal courts have been strongly in favour of preserving the death penalty, subject_to its
LONDON LETTER. present ample safeguards. Lord Darling
TEMPLE, 20th June 1924. recently wrote: “I cannot agree with those who hold that what they call a final 'sentence of It really does look as though the corner has penal servitude for life is as likely as the high been turned in the matter of work in the probability of hanging to turn a man aside English Courts. The increase in common law from murder. I am convinced that actions and in appeals continues, and there is death is a justifiable and expedient punishment now also an increase in probate and divorce for the crime of wilful murder. Another cases to be recorded. The increase in common English lawyer of great experience, Sir Harry law actions, indeed, is so pronounced that the Polard, speaks thus in his Seventy-two list is four times longer than it was at this time Years at the English Bar": "In bad cases of last year. It should be remembered, however, treason and in all cases of wilful murder it is that the length of the list is partly accounted most desirable that the punishment of death for by the arrears of work which have been should be inflicted on the criminal..... In steadily accumulating during the past term. my experience I have found that the fear of Both in the non-jury list (containing 442 cases) penal servitude is nothing like such a deterrent and the common jury list (containing 196 cases) as the fear of being hanged.” Mr Justice there are a number of actions still pending Avory put the matter with great cogency in which were set down for trial as far back as in a recent English Assize Court. After stating February, and during last term two judges
were virtually out of action-Mr Justice Salter of Rex. v. Davis ( 2 K.B. 855), and Rex fell ill
, and Mr Justice M‘Cardie was occupied v. Stanley ( 2 K.B. 235). Mr Justice for almost the whole period in presiding over Sankey was one of the three judges who tried the phenomenal libel action brought by a late the first case, and Mr Justice Shearman one Lieutenant-Governor of the Punjab against a of the three who tried the second, and the distinguished Indian. Still, even after allow-judgment of the Court in Rex v. Davis was ances have been made for arrears, a King's actually delivered by Mr Justice Sankey. It Bench list of 865 actions in all awaiting trial is is therefore interesting to note that in Rex v. a hopeful sign. The Chancery Division has Norman he refrained from expressing any also lost a judge through illness, Mr Justice opinion. Mr Justice Shearman, on the other Astbury having to take a rest owing to serious hand, adhered to his view. The Scottish case eye trouble. He will not be fit for work again of M'Donald v. Lord Advocate (1917 S.C. (J.) 17) until at least after the long vacation, and a was quoted at the trial, but not followed. substitute has therefore been found in Lord Although the members of the American Bar Buckmaster, the ex-Lord Chancellor, who a Association, who are visiting this country, will short time ago succeeded in reducing with arrive on 19th July, no programme of events marvellous expedition the large arrears of work and entertainments has as yet been officially that then existed in the Probate, Divorce, and published. It is known, however, that they Admiralty Division.
will be entertained by each of the four Inns of A most unusual bench was constituted to Court, and that they will be subjected to the sit on 29th April to hear the appeal of Charles usual rapid succession of dinners, receptions, Leslie Norman against his conviction as an and garden-parties. There have already been habitual criminal. The point that arose was preparations for a Lord Mayor's banquet, a an interesting one, and is so far reported in dinner in Westminster Hall, and visits to Sul( W.N. 199), but the case was also interest- grave, Oxford, Cambridge, and Stratford, but ing in that the Court of Criminal Appeal con- there has not as yet been any formal allotment sisted of thirteen judges. So large a number of time for rest and recuperation. of judges has not sat in that Court since its It has long been obvious that the Law Courts creation in 1907. The point in dispute arose in the Strand are a deplorable example of the under the Prevention of Crime Act, 1908, which art of designing public buildings, in that there gives two definitions of an habitual criminal, is practically no co-ordination of means and viz. (1) a person who has been three times ends. The building is more or less impressive previously convicted of a crime, and who is at in a fantastic way from the outside, and it the time leading persistently a dishonest and contains a fine hall, that serves no useful purcriminal life ; (2) one who has previously been pose, inside, but for the rest it is a confused so found to be an habitual criminal and sen- rabbit-warren. We now learn that those tenced to preventive detention. It will be responsible for the new Old Bailey, which both seen that the second category makes no men- inside and out is a vast improvement on the tion of leading persistently a dishonest and Strand building, were not exempt from at least criminal life. Now, it is obviously possible that one unintelligent blunder in design. It appears a man may, although he has at one time been that a man recently attempted to gain adconvicted of being an habitual criminal, lead mission to a particular Court but was turned thereafter. an honest life for twenty or thirty away. He thereupon brought various charges years before committing another crime. Does against the police who were engaged in reguhe, in spite of his long period of honesty, auto- lating the admission of the public. As the matically fall into the second category, or can charges included corruption and assault, a a jury exercise their discretion in the matter committee composed of Mr Justice Greer, an after hearing evidence called on behalf of the alderman, and the Recorder of London, sat to prisoner to shew that he was not at that time enquire into the matter. The charges against an habitual criminal ? In other words, as the police were found to be baseless, but the stated in the trial, is it a case of once an habitual report brought an interesting piece of informacriminal always an habitual criminal ? The tion to light. The relevant passage of the Lord Chief Justice, Horridge, Lush, M'Cardie, report is as follows: Roche, Greer, Swift, and Branson J.J. decided “The galleries were presumably intended the question in the negative; while Avory, to enable members of the public to hear Rowlatt, Bailhache, and Shearman J.J. decided and see what is going on in the Courts and it in the affirmative. Sankey J. expressed no to take an intelligent interest in the proopinion at all. Incidentally, this Court of ceedings. The accommodation provided thirteen judges, in deciding as they did, over- at the Central Criminal Court for this ruled two earlier decisions of the same Court purpose is inconvenient and inadequate. when constituted as usual, namely, the decisions The galleries are situated at the side of the