« PreviousContinue »
This was consequent on the general demand for that a high rate of interest alone was not the removal of all restrictions upon usury, and inconsistent with fair dealing, and accordingly the individualists, headed by James Stuart rejected the proposal that the Legislature should Mill, were the loudest in their advocacy of fix a maximum limit upon the rate of interest freedom of contract. But no sooner were the chargeable upon loans of money. But the existing laws against usury repealed than the committee did recommend that where a high community at large began to regret the removal rate of interest was charged on a loan, that the of all restrictions upon the rate of interest Courts of law should be empowered to open chargeable on loans of money. The most up the transaction on the ground of it being outrageous terms were imposed by money- “harsh and unconscionable,” to enquire into lenders
upon borrowers, and the latter were left all the circumstances of the loan and of any practically at the unrestrained mercy of their past transactions of a similar nature, and to creditors. It is true that the Courts of equity make any order which seemed to them reasonwere able to relieve a borrower against fraud, able. for the equitable doctrine of relief against The committee presented their report to fraud existed independent of the usury laws, and Parliament in 1898, and the Legislature prowas therefore unaffected by their repeal. But ceeded at once to carry it into effect. The in practice it is usually difficult to prove the result was the Money-Lenders Act of 1900, which existence of fraud; and, speaking generally, is the principal statute dealing with usury at there is no fraud where a needy borrower agrees the present time, the Money-Lenders Act of 1911 to pay a money-lender a high rate of interest merely containing an amendment to the prinfor the benefits of immediate cash. For these cipal Act in regard to the validity of bona fide reasons the borrower was in the great majority assignments for value. Now it cannot be said of cases left entirely without means of redress. that the evils rampant between 1854 (the year On the other hand, the money-lender had only in which the laws against usury were abolished) to go before a judge in chambers, prove the and 1900 have been reproduced in full since the existence of the debt, produce the bill of latter date, but it is abundantly clear that the exchange or promissory note, and thereupon Money-Lenders Act of 1900 has failed to achieve get judgment for the amount specified in the the main object for which it was designed. It bill or note; the unfortunate borrower must is true that section 1 (1) of the Money-Lenders then pay up or suffer the bailiffs to take Act, 1900, empowers a Court of law to re-open possession of his house. In order to avoid a transaction which is "harsh and unconscionhaving an execution levied against his property, able," but it will be generally conceded that the borrower frequently came to an arrange- harsh and unconscionable is a somewhat ment with the money-lender whereby the latter elastic term, and the Courts have been comagreed to stay his hand on certain terms. pelled to decide each case before them on its own Needless to say, these terms were always in merits. While the Courts have administered favour of the lender, and the harassed borrower the Money-Lenders Acts with scrupulous care was compelled to seek a fresh loan in order to and fairness to both parties to a money-lending meet the new arrangement. Thus the last transaction, yet, owing to the past reluctance stage of that borrower was worse than the first; of the Legislature to fix a maximum rate of and when the blow finally fell the borrower had interest on loans, the money-lending fraternity frequently pledged all his worldly belongings as have been able in a great number of instances a security for the loan to his creditor.
to impose a far heavier rate of interest upon the In 1897 a committee of the House of Com- unfortunate borrower than is either equitable mons was appointed to enquire into the alleged or proper in the circumstances. And it stands evils attendant on borrowing money at high to reason that the very existence of an abstract rates of interest. The voluminous evidence definition, such as “ harsh and unconscionable,"
, given before the committee created a pro- in a statute dealing with a concrete subject found sensation and deeply shocked the public necessarily involves a lack of uniformity in conscience. Not one, but scores of instances judicial decisions and consequent uncertainty were disclosed in which the borrower had on the part of the public as to the state of the been sold out of house and home in order law in practice. The existing law, moreover, to pay a debt which he had already satisfied does nothing to prevent temptation from being two or three times over by payment of put in the way of the foolish or inexperienced interest alone. The committee found that individual who happens to be financially the removal of all restrictions upon usurious embarrassed. The continuous flow of moneytransactions was productive of bankruptcy, lendersi circulars affords an excellent illustration crime, extortion of the debtor's friends and of the rapid strides made by modern methods relatives, and other evils to the community. of advertising. These circulars are usually The committee were of opinion, however, I addressed to young men from the universities,
young men recently come of age with consider- of interest exceeding 20 per cent. is to be able expectations, officers of the naval and deemed excessive, and the transaction is theremilitary forces, lawyers, doctors, clergymen, upon to be regarded as harsh and unconscionable. bank clerks, and Government officials, com- Both measures contain a number of elaborate prising the large class of people who fear loss provisions concerning the proper setting out of of either family or social prestige through the details of the transaction. Lord Carson financial exposure.
It will be observed, and Mr Wells agree that the lender and borrower, therefore, that the money-lenders' circulars are or their respective agents, must deliver to the in the main directed to those persons who other within one week of the making of the usually possess merely personal security, and contract a written statement signed by both this class has ever formed the bulk of the parties to the transaction. This statement money-lenders' clientele. The borrower on real must set out the names of the parties, the date substantial security may usually obtain good of the contract, the amount of the loan, the terms from a bank or insurance company, and amount actually paid over, the amount retained he only applies to the professional money-lenders in respect of interest or other charges, the rate through inexperience or from a desire for of interest, and the intervals of payment. secrecy.
In two important directions Lord Carson It is now proposed to remedy the foregoing goes further than Mr Wells. Lord Carson defects, and the combined efforts of Lord proposes that bankruptcy proceedings shall not Carson in the Upper House and Mr Wells in be taken in respect of a loan unless the lender the House of Commons suggest a number of has first obtained an order from the County radical amendments to the existing law relating Court for payment of the debt due by instalto money-lending transactions, and it is ments, and the borrower has made default in really highly desirable that the Legislature payment of an instalment so fixed; and he should intervene again in these matters. A bars the applications of the Debtors' Act, 1869, distinguished judge once said : “ The law to public officers whose pay, salary, or emolucannot prevent a man from being a fool.” Noments are by law forbidden to be assigned or doubt that is very true; but there is no reason taken in execution for any debt. Lord Carson why the law should not intervene to prevent also proposes to extend his scheme to Scotland, people from taking advantage of fools. And but there is no provision to that effect in the that must be the guiding principle of any measure introduced by Mr Wells. In comparing statute which attempts to mitigate the evils the two measures in all the foregoing respects
it is submitted that Lord Carson's proposals The most important feature of any money- are preferable to those of Mr Wells, but that, lending contract is the rate of interest charged of course, is a matter of opinion which may not upon the loan, Now, it is clear that the Legis- be generally endorsed. lature should fix some limit to the rate of Both measures propose to deal with the interest, and this is exactly what the new special evils arising from the circularisation of measures propose to do. Lord Carson suggests invitations to borrowers. In order to put an that where the interest charged in respect of end to this obnoxious practice Lord Carson the sum actually lent exceeds 15 per cent. that aims at prohibiting the sending of any document the Court thereafter is to presume excess of inviting money-borrowing from the moneyinterest and may re-open the transaction as lender, and the insertion of advertisements in being a “harsh and unconscionable" bargain any newspaper or other periodical for the within the meaning of section 1 (1) of the purpose of inducing people to have recourse to Money-Lenders Act of 1900. But Lord Carson money-lenders. The employment by a moneyappreciates the fact that a higher rate of lender of an agent or canvasser for the purpose interest may be reasonable in circumstances of inviting people to borrow money is also where the borrower has no security, or no forbidden. Any money-lending transaction appreciable security, to offer for the loan; and brought about by any of the foregoing means is the parties may apply to the Registrar of the to be declared void. Lord Carson finally proCounty Court, who will be empowered to enquire poses that section 16 of the Post Office Act, 1908, into the details of the proposed transaction and shall be applied to money-lenders' circulars. to exercise his discretion in dispensing with the Armed with this statutory power the Post limitation of 15 per cent. Where the amount Office will then be able to make regulations to of the loan does not exceed £20, Lord Carson prevent the transmission of money-lenders' proposes to limit the interest charged to 10 per documents through the post along the lines at cent. per annum. Compound interest will be present applicable to obscene and indecent prohibited in every money-lending transaction. matter. Mr Wells desires to achieve the above Mr Wells deals with the question of interest objects in similar fashion, and his proposals very briefly, and he simply proposes that a rate only differ substantially from those of Lord
Carson in two details. Mr Wells does not wouldn't be safe." His companions protested; propose to invoke the assistance of the Post but he was quite firm on the point. Office Act, 1908. In regard to the insertion of difference between your Bar and ours,” he said, money-lenders' advertisements, however, Mr “ is that yours is still drawn chiefly from the Wells proposes to directly lay upon the pro- gentry classes, I fancy, while ours is not ! ” prietors and publishers of newspapers and other What benefit any box-rifler in Parliament House periodicals a duty to refuse acceptance of any would secure for himself is not so clear as the such advertisements or intimations.
American judge's compliment was undoubtedly Lord Carson and Mr Wells are in agreement intended to be. as to the penalties to be inflicted. On summary The Bill for converting the Advocates' conviction the delinquent may be sent to Library into the Scottish National Library has prison for a term not exceeding one month, or been introduced into the House of Lords, where fined a sum not exceeding £20, or both. Con- it has been read three times. The House of Comvictions on indictment are made punishable by mons, which is congested with work, has had no imprisonment up to three months, or a fine not time for it as yet, and it will be difficult to find exceeding £100, or both.
time. But the measure is an agreed one, and the In conclusion, it may be said that both bills Bill will doubtless become law in the course of are valuable and well-considered efforts to cope the autumn session, when it should have its opporwith the existing evils of money-lending. Lord tunity. Among other provisions it is, of course, Carson and Mr Wells deserve our gratitude for enacted that the library of general literature having attacked a problem which presents a shall pass from the Faculty to the nation, and number of practical difficulties, but is by no thereafter the privilege of borrowing books means insoluble. And it is to be hoped that shall be confined to present members of Faculty, the joint parliamentary committee who are now while future members shall have no privilege considering the two proposed measures will be beyond that of members of the general public. able to evolve an Act which represents the best It is plain that in a sense the long literary tradielements of both.
tion of the Faculty will thus come to an end, but it has been left for a correspondent to the
“Scotsman," who signs his letter with the NOTES FROM PARLIAMENT HOUSE.
nom-de-plume of.“ Advocate,” to point out what,
to him at least, appears to be the inevitable conThe session now at an end leaves the question sequence. “The Faculty of Advocates, alone of Court of Session reform much where it was among the legal bodies of the capital of Scotland, at its beginning—that is to say, there is no will for the future be without a library of general word of a Royal Commission, while the com- literature.” It will lose its position in the mittee of the various legal bodies sitting to national life, it will cease to attract members consider the matter has not as yet made public of the cultivated classes, it will “ sink to the any recommendations. The closing session has level of a mere association of practitioners of a not by any means been noted for the volume of particular branch of the law-and not, it is to its work, although, perhaps, the optimist might be feared, a particularly prosperous one.” In a see grounds for reviving hope in a number of word, the Scottish Bar will lose its character proofs which actually were heard in its closing and standing. The writer suggests that either weeks. The summer has rather been noted for the Faculty must make a great effort and start its fine weather and for the unprecedented its own library of modern literature, or elsemasses of American visitors who day after day and here is the real sting of his letter—“fall during these latter weeks have thronged our back as a remedy upon the course which certain halls. Those responsible for their progress countries have resorted to—the fusion of the through our city are under no illusions as to the two branches of the legal profession.” It is all importance of the Law Courts, for five minutes very dreadful. What an end to the Faculty ! seem to be considered ample time in which to In order to attain the higher standards of "do" them and the Advocates' Library. One W.S.'s and S.S.C.'s who enjoy free access to the visitor, who made bold to speak to two members works of Mr Burroughs and Miss Dell, it must of Faculty, introduced himself as judge of the needs submerge itself in one of these “inferior " Supreme Court in a Middle West State. What bodies. Perhaps a grain of comfort may be impressed him more than anything else in the derived from the fact that members of the Bar building—apart from its historic background of England have never enjoyed such adventitious (" you see we have nothing of this kind,” he aids, yet many of them have attained to a very said, our Courts are just plain marble!”)—was fair degree of culture. But “ Advocate may the fact that advocates left their papers lying truly be the Cassandra of a new age, and if he about in open boxes. Why, we wouldn't lives long enough may yet enjoy the melancholy dare do that where I come from,” he said, " it satisfaction of saying “ I told you so."
Members of the Scottish Bar continue to do Bill to be a menace to the oppressed ” and better outside their native land than within measure of tyrannical and reactionary legislathe confines of Parliament Hall. The Glasgow tion are best answered by the circumstance Bill, with all its offshoots and ramifications, that Mr Rosslyn Mitchell, himself a solicitor continued to rage with unabated fury until the and a Socialist Member of Parliament, is acting end of the session, and on its demise was to be as its sponsor in the House of Commons, and succeeded by other Bills from Scotland. There by the temperate words of Dr Shiels, who is on must have been days during the summer when the same side in the House, pointing out that more members of Faculty were actively engaged “there is a good deal of exaggerated fear in in London than in Edinburgh. This is a solemn regard to political issues arising." Incidentthought, and its solemnity is brought home ally, they would appear much less likely to not only to Scots practitioners but to English, arise so long as the appointment of the comfor members of Faculty have invaded the pre- mittee rests with the Lord President, and not, serves of the Parliamentary Bar to some pur- as was alternatively proposed by the critics, pose even in matters unconnected with Scot- with the Secretary for Scotland for the time land. The promotion by the Corporations of being, who, whatever his merits may be, is Liverpool and Birkenhead of a Bill for the con-bound more or less to be concerned with struction of a goods' vehicle tunnel under the political considerations. Yet opposition to the Mersey was the occasion of considerable com- Bill has been so persistent that Mr Rosslyn ment in the London newspapers. Leading Mitchell has decided not to proceed with it for counsel for the promoters was Mr H. P. Mac- the time being. millan, K.C., who now seems to have abandoned As announced in these columns some time our Courts altogether in favour of the Parlia- ago, the committee appointed to consider mentary Bar, where he is well established as a the question of a Court of Criminal Appeal leader. Mr A. Moncrieff, K.C., was leading in Scotland has reported
Scotland has reported unanimously in counsel for the opposition. The circumstance favour of the establishment of such a court. thus occurred of two Scots advocates being If it be the case that Court of Session reform invited to occupy the foremost positions at the is ever to be seriously considered, it might Bar in a purely English question. There is, be 'well to delay the criminal reform until happily, no indication of reprisals as yet; in- it could be introduced simultaneously with the deed, were reprisals meditated, it is hard to see no doubt considerable changes which would be how or where they could be begun.
brought about by a radical enquiry into the The passage through Scottish Grand Com- defects of our present system of civil procedure. mittee of the Law Agents (Scotland) Bill gave Whether either will ever be effected seems to rise to a good deal of criticism, both in Parlia- be a little doubtful. Meantime Sir Herbert ment and in the press, much of which was very Stephen, a learned and experienced critic, has ill-informed. The Bill was originally intro- pointed out in a letter communicated to the duced to Parliament by Lord Dunedin, and it á Times” how Scotland might benefit by has behind it the approval of the Scottish legal avoiding what he describes as serious defects bodies concerned. It is designed to provide a in the present English system. “A Court of better and more effective method than any at Criminal Appeal,” he says, “ ought to have power present available for dealing with complaints to order a new trial. This is so generally adagainst law agents, and for having dishonest mitted that I do not propose to insist on it at solicitors struck off the rolls more expedi- length. I will observe only that it is not a tiously than is at present possible. It is pro- power which a Court of Criminal Appeal ought posed to institute a committee of from four to to exercise constantly or habitually, but that seven law agents, to be appointed by the Lord cases arise now and then in which justice cannot President, with the necessary powers to consider be satisfactorily done in any other way. There questions of misconduct. This is merely follow- is one other point of great importance in which ing the method pursued in England since 1888, I consider the Criminal Appeal Act unsatiswhich has proved to be quite satisfactory. It factory. I cannot see why the Crown should is hard to see on what basis of fact are founded not have an appeal as well as the convicted the dark suspicions of various members of person. I have always thought so I believe Parliament and of (largely anonymous) writers I have said so before and I still think so. If to the daily press.
But they profess to fear such an appeal, whether on the law or the that political considerations will somehow enter facts, were successful, the natural result would, into the manner of determining what is and what I suppose, be a new trial. There could not in is not misconduct. As there is a right of appeal practice be any difficulty in re-arresting the imto the Court of Session for both parties, the properly acquitted person, and if he happened objection would not, in any event, appear to be to have withdrawn himself from the jurisone of great substance. Those who declare the diction and could not be re-arrested, that
would be a trifling price to pay for having had ever, deals only with appeals against sentences the law correctly determined, and his guilt of preventive detention. sufficently established to make his return un- The Criminal Appeal Act, 1907, which set up likely. I hope that His Majesty's advisers will a Court of Criminal Appeal in England, was not adopt the first of these suggestions, and give made to apply to Scotland. careful consideration to the other.” It will
." probably be thought by many in Scotland that DIFFERENCES BETWEEN THE ADMINISTRAthese suggestions run counter to the doctrine TION
THE CRIMINAL LAW IN of "tholing an assize," and that it is better not
ENGLAND AND IN SCOTLAND. to introduce into our criminal jurisprudence any provision which might tend to lessen an
There are fundamental differences in the adaccused person's chances of acquittal. If the ministration of the criminal law in the two Crown is unable to establish a panel's guilt after countries. In Scotland private prosecution is one attempt, there is no need to let it have in practice unknown. The initiation and conanother, and the law can look after itself-that duct of all cases tried on indictment is in the is probably the attitude of the average citizen hands of the Lord Advocate and those acting to Sir Herbert Stephen's proposal. Nor is it for him, viz. the Solicitor-General, the Advoan altogether unreasonable one. But the cates - Depute, and the Procurators - Fiscal. points which he raises will, no doubt, be con
Before any case goes to trial, the evidence is sidered with care by the responsible authorities. carefully sifted by the Procurator-Fiscal and
considered by Crown Counsel, i.e. the AdvocateDepute, and, in case of need, the Solicitor
General and the Lord Advocate. It is Crown REPORT OF THE COMMITTEE ON CRIMI- Counsel who determine whether the evidence
NAL APPEAL IN SCOTLAND AP- in any case reported to them is enough to justify POINTED BY THE SECRETARY FOR proceedings being taken. It is for them to SCOTLAND.
decide whether a case is to be sent for trial or
not: if it is to go to trial they determine whether This Committee, consisting of The Honour- it is to be tried in the High Court of Justiciary able Lord Mackenzie, LL.D., Sir James M. or by Sheriff and jury. The cases which can Dodds, K.C.B., LL.D., and Mr E. Rosslyn be tried only in the High Court of Justiciary Mitchell, M.P., was appointed by the Secre- are murder, rape, deforcement, breach of duty tary for Scotland on the 4th February 1925, by a magistrate, and offences against the with the following remit:
Official Secrets Acts, 1911 and 1920. Treason “To consider whether it is desirable that is in a separate category. By the Treason Act,
further provision should be made as re- 1708, the law and the procedure of England gards Scotland for appeal in criminal regarding high treason were extended to Scotcases tried on indictment, and, if such land, and treason may be tried in Scotland further provision be recommended, to either by the High Court of Justiciary or by a advise generally as to its scope and as Commission of oyer and terminer in the same to the lines to be followed in framing the manner as in England. The procedure is not necessary legislation.
regulated by the Criminal Procedure (Scotland) The Committee has given the subject of the Act, 1887, being excluded by section 75, but as remit full consideration and has unanimously such trials proceed on indictment any proagreed upon the terms of their report.
vision for appeal in cases tried on indictment They desire to express their appreciation of would apply to trials for treason. As already the services of their secretary, Mr M. Millar stated, no case is tried on indictment by a jury, Craig, advocate, which have been of great either in the High Court or the Sheriff Court, assistance to the Committee.
without having first been considered by Crown The Committee has to consider" whether it Counsel. At the trial the presiding judge is in is desirable that further provision should be all cases a trained lawyer. If the trial is in
. made as regards Scotland for appeal in criminal the Sheriff Court the maximum sentence is cases tried on indictment." these cases the two years' imprisonment. Penal servitude procedure is regulated by the Criminal Pro- cannot be given except by a Lord Commissioner cedure (Scotland) Act, 1887. Review in sum- of Justiciary in the High Court of Justiciary. mary cases is dealt with by the Summary Juris. There is nothing in Scotland analogous to the diction (Scotland) Act, 1908.
criminal jurisdiction of Quarter Sessions in An Appeal Court, consisting of not less than England. three judges of the High Court of Justiciary, There is public confidence in Scotland in the was established in Scotland under the Pre- fairness of juries in criminal cases. Scotland vention of Crime Act, 1908. That Court, how has been spared the experience of such cases as