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which they are compellable, as a condition of and in exchange for a discharge in their own favour, to divest themselves by assignment to the beneficiaries.
In the case both of companies and of trusts it would appear that some unexpected and undesirable results must, or may, follow upon indemnities in favour of professional employees. Thus, take the case of such an indemnity as has been held to exist in favour of the auditors of the City Equitable Co. That indemnity was contained in the articles of association, and it must therefore rule unless, and until, the articles are validly altered in terms of law. Needless to say, no reference was made to the indemnity in the annual resolution of the shareholders for the appointment or reappointment of auditors, but the extraordinary position is that, standing the articles of association, it would apparently not have been competent for the company to appoint auditors on the basis of full and unrestricted professional responsibility and liability, and that any attempt so to express the appointment would have been ultra vires and inept, which is surely an extraordinary position. Again, if we are to conceive of a case where an indemnity has been validly created in favour of surveyors and valuators, it would apparently be beyond the power of the directors or trustees to employ a surveyor or valuator except on a basis which would free the employee of responsibility for breach or failure of duty, provided only he had gone wrong through an honest misconception of what his duty was. This seems absurd and indeed intolerable. Incidentally, it may be suggested that a valuation obtained by trustees on such a basis would not be a valuation obtained in the sense of the Trust Act, and would not protect the trustees under that Act, which, however, it may be said, would be neither here nor there, for in such a case there would almost certainly be an absolute indemnity also in favour of the trustees. The conclusion of the whole matter appears to be that the indemnity idea is excellent and beneficial, but only within proper limits.
By WM. YEAMAN.
There are many landed estates and heritable properties in Scotland called Temple lands and Temple tenements, and it is proposed to explain why that name was applied to them.
At a very remote period there existed two orders of religious knights, viz. the Knights Templars and the Johannites, or Knights of St John of Jerusalem, who have been referred to as an extraordinary race of men
whose exploits were the admiration of the world. The first of these orders was established at Jerusalem in the year 1118, the twentieth of the Christian dominion in Syria, by nine pious and valiant knights, who formed themselves into an association, the objects of which were to defend the Temple and City of Jerusalem, to entertain Christian strangers and pilgrims charitably, and guard them safely through the Holy Land. King Baldwin the Second assigned to them for their dwelling a part of his palace. He and his barons contributed to their support, and the abbot and canons of the Temple assigned to them, for the keeping of their arms and magazines, the street between it and the royal palace, and hence they took the name of the soldiery of the Temple, or Templars.
For some years after their institution the Templars lived in poverty and humility, and no new members joined their society, which was eclipsed by that of St John.
The kingdom of Jerusalem had been in a very extraordinary state from the date of its conquest. It lay between two enemies, the Egyptians on the south and the Turks on the north, and these Moslems, though of opposite and hostile sects, agreed in hatred of the Christians, and a desire to take Jerusalem, which was to them also the Holy City, out of the hands of the western infidels. The independent Arabs of the desert were also inimical to the Christians. Hence, the Holy Land was continually infested by predatory bands who robbed and plundered all who fell in their way. The King had been a captive in the hands of the Turks, and on his liberation he sought every means of strengthening his kingdom. As the Templars had displayed such eminent valour and devotion wherever they had been engaged, he resolved to obtain for them all the influence and consideration in his power. Accordingly, he sent two of their members as his envoys to lay before the Pope the state of the Holy Land, and also furnished them with a strong letter of recommendation to the celebrated Bernard of Clairvaux, the nephew of one of the envoys. Bernard highly approved of the objects and institution of the order. Certain of the brethren thereafter appeared before the fathers, who were assembled in Council at Troyes, and detailed the maxims and deeds of the Templars. The fathers expressed their approbation, the order was pronounced good and useful, and some additions, taken from that of the Benedictines, were made to their rule.
In a short time, thanks to what at the present day is known as propaganda work, the order rapidly increased in wealth and consequence; gifts in abundance flowed in
on it and large possessions were bestowed on it in all countries of the west, and it became very powerful and opulent. There was scarcely a country in Europe in which the lavish piety of princes and nobles had not bestowed on the Templars a considerable portion of the wealth of the state, for in every province the order had its churches and chapels, villages, farmhouses, mills, corn lands, pastures, woods, rights of venison and fisheries. The entire annual income of the order has been estimated at not less than six millions sterling. The Templars soon became, in fact, the most distinguished of the Christian warriors. The revenue they enjoyed enabled them to draw to their standard valiant secular knights and stout and hardy footmen. The chivalry of St John vied with them, it is true, in prowess and valour, but they do not occupy the same space in the history of the crusades. The Templars were from the outset solely devoted to arms; and the warm interest which St Bernard, whose influence was so great, took in their welfare, and the circumstance that the King of Jerusalem was a member of their body, combined to throw a splendour about them which the Knights of St John could not claim, but which also gave occasion to their more speedy corruption and augmented the number of their enemies. Their enormous wealth, together with the luxury and other evils which it engendered, provoked the hatred of the secular clergy and laity, and paved the way to the spoliation of the order.
The Knights of the Temple came to Scotland before 1153, in the reign of David the First, who established them at Temple on the Southesk. This monarch was very liberal to them, and his successors still more So. As the bounty and piety of the kings of Scotland and their nobles during a dark and superstitious age were continually directed towards the religious orders, the Templars acquired such extensive possessions throughout the whole of Scotland that there was scarcely a town or parish in which there were not property or lands belonging to the order. Besides the establishment at Temple, there were the following establishments or priories of the order, viz.: Ballantradock, now called Arniston, in Midlothian, St Germains in East Lothian, Inchynan in Renfrewshire, Maryculter in Kincardineshire, Aggerstone in Stirlingshire, and Aboyne in Aberdeenshire.
About 1307 the spoliation of the Templars of Scotland and of other countries began, and the order of the Temple and all its extensive domains and property of every description were gifted to the Knights of St John of Jerusalem.
This second military order owed its origin to certain devout merchants of the City of
Malphy and the Kingdom of Naples, who, trading to Palestine, obtained leave from the Sultan of Egypt, upon paying a certain tribute, to build a church and monastery at Jerusalem for the reception of pilgrims. Upon the capture of this city by Godfrey of Bullogne, Gerrard Martiques, a native of Provence, built there a larger church and hospital for the sick and for pilgrims, in honour of St John, and therein placed these Knights, who took their name from that hospital and from the saint to whom it was consecrated. The Knights of St John were styled "Hospitallers." One circumstance is very remarkable. Although the Templars had been dispossessed and had been succeeded by the Hospitallers, the lands formerly in their occupancy still retained the distinguishing appellation of Terræ Templariæ, and in process of time this was extended to the original estates of the Hospitallers, so that at the time of the Reformation, when the order was dissolved, the whole lands, excepting the larger baronies, were indiscriminately called Temple lands. Perhaps one reason for this was the right of sanctuary, which conferred an importance and value on Temple property which did not attach to any other.
The Hospitallers had also been introduced into Scotland by King David the First, and they were protected by, and received extensive properties from many of the kings of Scotland. The Preceptory of Torphichen, in West Lothian, was their first, and continued to be their chief residence, and by the accession of the Temple lands and other additions their property at the time of the Reformation was immense. When that event took place the chief dignitary or Grand Preceptor of the Order in Scotland, with a seat as a peer in Parliament, was Sir James Sandilands of the family of Calder, who, as is well known to readers of Scottish history, was the private friend of John Knox, and one of the first persons of distinction to embrace the reformed religion. The whole possessions of the combined Templars and Hospitallers were declared forfeited to the state, on the ground that the principal cause of the foundation of the Preceptory of Torphichen was the service enjoined to the Preceptor on oath to defend and advance the Roman Catholic religion. Thereafter Sir James, or, as he was termed, Lord St Johns, resigned the whole possessions before referred to into the hands of Mary Queen of Scots. The Queen erected these united possessions into a temporal lordship, and for a consideration granted a charter in favour of Sir James and his heirs. In this grant he is specially designed Lord St Johns, which title he subsequently exchanged for that of Lord Torphichen.
Subsequently the lordship was disintegrated to a very great extent and sold, but at the present day conveyancers still find in their clients' titles, lands, etc., preceded by the name "Temple," the origin of which the writer has endeavoured to explain from the researches he has made in the books and Court of Session records relative to the subject.
NOTES FROM PARLIAMENT
It is now announced that the American and Canadian Bar Associations have accepted an invitation to a reception in Parliament House on the evening of Monday, 28th July. The occasion will undoubtedly be an interesting one. That it is awaited with pleasurable anticipation on the other side of the Atlantic may be inferred from the references made in the American press to the kindred entertainments planned for London. It is announced that " England will open its heart to more than a thousand American and Canadian lawyers, who, with their wives and families, will arrive on 19th July. One of the greatest rounds of entertainment ever planned for overseas' visitors will be given by the Government, the King and Queen, and the Bench and Bar. There will be no lack of liquid refreshments for the dry American guests, for the inns and temples will get out all their ancient loving-cups and fill them to the brim." Although we do not have official loving-cups in Scotland, it is to be hoped that our overseas' visitors" will enjoy our hospitality to the full.
. . .
The suspension by the Court of a law agent for the period of one year on account of gross professional irregularities draws attention once more to the non-existence in Scotland of a Discipline Committee such as the solicitors have in England. It is surprising that the bodies of law agents in Scotland do not take steps to secure such a committee in Scotland, for proceedings before it for dealing with unsatisfactory members of the profession are expeditious and inexpensive compared with our cumbrous practice in Scotland. They are also effective, for the Court in England, as the Lord Chief Justice remarked in a recent case, .66 is very reluctant to interfere with the findings of that experienced body." In the same case Mr Justice Roche seemed to doubt the Court's power to review the quantum of a sentence passed by the Discipline Committee. In the Scottish case the agent was at fault in employing a tout" to prepare precognitions, without proper supervision. In this connection it is interesting to note the terms of a circular recently issued by the Council of the Law
Society in England. While admitting that no legal objection can be taken to the employment of unqualified agents for certain subsidiary purposes, the Council observes that it is for the ultimate benefit of the profession that solicitors should, as far as possible, employ only solicitors to act as their agents with regard 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 precognitions should be done only by solicitors or their qualified clerks.
After a good deal of desultory and largely ill-informed discussion, the Scottish Conveyancing Bill, which it was generally supposed would become law at an early date, was shelved for the time being by the Scottish Grand Committee's postponing its consideration. Although in form and substance practically identical with the measure which, in amended form, received the more or less cordial approval of all our legal bodies, the Bill, an elaborate one with 48 clauses and 34 schedules, was viewed with suspicion by those members (a majority) who did not understand it, and, although designed to simplify the law and thus to favour the interests of the community at large, the measure was actually denounced as "class legislation." class legislation." This was a case of omne ignotum pro mirifico with a vengeance. Some members who should have known better seemed to think it was a party measure. Others, again, took up the attitude that it is useless to tinker at the law and amend it by easy stages; why not wait and sweep the whole thing away at a blow? Some there were who thought that a question like this would be better discussed when we have a Scots Parliament; proceedings in the Grand Committee suggest doubts as to this. The Bill has now, however, been approved by the Committee after a second discussion.
Two recent English cases have aroused much interest on both sides of the Border. The interest in one is purely legal, in the other perhaps rather less so. The cases are those of Rex v. Norman and Russell v. Russell. In the former case, the Court of Criminal Appeal held (contrary to the ruling in M'Donald v. H.M. Advocate, 1917 J.C. 17) that because a prisoner has once been held to be a habitual criminal he must not always as a necessary consequence be held to be such. In the latter, the House of Lords held (what is not yet the law of Scotland) that the evidence of a husband as to nonaccess was inadmissible in divorce proceedings to prove a wife's adultery. The common feature of these cases was the marked division of judicial opinion. In the Norman case the Lord Chief Justice and seven judges formed the majority, and there were four judges in the
minority. One judge could not make up his mind. The Russell case was more extraordinary, for from first to last six judges, viz. Mr Justice Hill, the late Lord Sterndale (Master of the Rolls), Lords Justices Warrington and Scrutton, and Lords Sumner and Carson, were in favour of the view which has not prevailed, while only three, viz. Lords Birkenhead, Dunedin, and Finlay, have carried the day against them, for they comprised the House of Lords majority. This is the kind of thing which makes the layman gird at the law, but it is hard to find a remedy. The state of matters would be no better if each judge carried so many points according to his position in the hierarchy, and the successful litigant was to be found in the man with the best percentage at the end of the day.
opinion, but it must be remembered that judicial prognostications of evil are not always fulfilled. Witness the celebrated protest made by the occupants of the English bench in 1868, when the duty of trying election petitions was transferred from a parliamentary committee to the judges. Sir Alexander Cockburn conveyed to the Lord Chancellor their strong and unanimous feeling of insuperable repugnance to having these new and objectionable duties thrust upon them." The inevitable result, he stated, must be to lower and degrade the judicial office," and to destroy public confidence in the impartiality of the bench. As is well known, nothing of the kind has happened.
that, in his opinion, the abolition of the death penalty would lead to a disastrous increase in the crime of murder, and that those who denied the deterrent effect of capital punishment must be persons who had never witnessed, much less taken part in, a trial for a serious murder, he went on : Take as an illustration the probable result of such an alteration in the law. Take the case of a burglar who has already suffered penal servitude for burglary. Is it to be supposed, when he is engaged on his next burglary after coming out of prison, that he will be deterred from killing anybody who attempts to capture him by the fear of a few more years' imprisonment, knowing, of course, that if he is captured his fate will be seven or ten years' penal servitude for burglary alone? 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 no a deputation from a number of societies which support the abolition of the death penalty, and promised to bring the question before his colleagues. He admitted that there was little evidence of any general public wish for abolition, and pointed out that the question of a satisfactory alternative punishment would require to be carefully considered. Meantime, he himself has been extraordinarily ready to reprieve, and the Scottish Secretary has been similarly inclined to mercy. The most recent instance in Scotland was the case of a West of Scotland man who was responsible for what, on the face of it, seems to have been the unusually brutal murder of his wife. Leniency in a case like this must mean a similar step in 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 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 Polard, speaks thus in his Seventy-two Years at the English Bar" "In bad cases of treason and in all cases of wilful murder it is most desirable that the punishment of death should be inflicted on the criminal. . . . In my experience I have found that the fear of penal servitude is nothing like such a deterrent as the fear of being hanged." Mr Justice Avory put the matter with great cogency in a recent English Assize Court. After stating
law actions, indeed, is so pronounced that the list is four times longer than it was at this time last year. It should be remembered, however, that the length of the list is partly accounted for by the arrears of work which have been steadily accumulating during the past term. Both in the non-jury list (containing 442 cases) and the common jury list (containing 196 cases) there are a number of actions still pending which were set down for trial as far back as in 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 Court, and that they will be subjected to the usual rapid succession of dinners, receptions, and garden-parties. There have already been preparations for a Lord Mayor's banquet, a dinner in Westminster Hall, and visits to Sulgrave, Oxford, Cambridge, and Stratford, but there has not as yet been any formal allotment of time for rest and recuperation.
A most unusual bench was constituted to sit on 29th April to hear the appeal of Charles Leslie Norman against his conviction as an habitual criminal. The point that arose was an interesting one, and is so far reported in ( W.N. 199), but the case was also interesting in that the Court of Criminal Appeal consisted of thirteen judges. So large a number 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 a jury exercise their discretion in the matter after hearing evidence called on behalf of the prisoner to shew that he was not at that time an habitual criminal? In other words, as stated in the trial, is it a case of once an habitual criminal always an habitual criminal? The Lord Chief Justice, Horridge, Lush, M'Cardie, Roche, Greer, Swift, and Branson J.J. decided the question in the negative; while Avory, Rowlatt, Bailhache, and Shearman J.J. decided it in the affirmative. Sankey J. expressed no opinion at all. Incidentally, this Court of thirteen judges, in deciding as they did, overruled two earlier decisions of the same Court when constituted as usual, namely, the decisions
charges included corruption and assault, a committee composed of Mr Justice Greer, an alderman, and the Recorder of London, sat to enquire into the matter. The charges against the police were found to be baseless, but the report brought an interesting piece of information to light. The relevant passage of the repórt is as follows:
The galleries were presumably intended to enable members of the public to hear and see what is going on in the Courts and to take an intelligent interest in the proceedings. The accommodation provided at the Central Criminal Court for this purpose is inconvenient and inadequate. The galleries are situated at the side of the