that a high rate of interest alone was not inconsistent with fair dealing, and accordingly rejected the proposal that the Legislature should fix a maximum limit upon the rate of interest chargeable upon loans of money. But the committee did recommend that where a high rate of interest was charged on a loan, that the Courts of law should be empowered to open up the transaction on the ground of it being "harsh and unconscionable," to enquire into all the circumstances of the loan and of any past transactions of a similar nature, and to make any order which seemed to them reasonable. This was consequent on the general demand for the removal of all restrictions upon usury, and the individualists, headed by James Stuart Mill, were the loudest in their advocacy of freedom of contract. But no sooner were the existing laws against usury repealed than the community at large began to regret the removal of all restrictions upon the rate of interest chargeable on loans of money. The most outrageous terms were imposed by moneylenders upon borrowers, and the latter were left practically at the unrestrained mercy of their creditors. It is true that the Courts of equity were able to relieve a borrower against fraud, 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 arrangeharsh 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 unfortunate borrower than is either equitable or proper in the circumstances. And it stands to reason that the very existence of an abstract definition, such as "harsh and unconscionable,' in a statute dealing with a concrete subject necessarily involves a lack of uniformity in judicial decisions and consequent uncertainty on the part of the public as to the state of the law in practice. The existing law, moreover, does nothing to prevent temptation from being put in the way of the foolish or inexperienced individual who happens to be financially embarrassed. The continuous flow of moneylenders' circulars affords an excellent illustration of the rapid strides made by modern methods of advertising. These circulars are usually addressed to young men from the universities, In 1897 a committee of the House of Commons was appointed to enquire into the alleged evils attendant on borrowing money at high rates of interest. The voluminous evidence given before the committee created a profound sensation and deeply shocked the public conscience. Not one, but scores of instances were disclosed in which the borrower had been sold out of house and home in order to pay a debt which he had already satisfied two or three times over by payment of interest alone. The committee found that the removal of all restrictions upon usurious transactions was productive of bankruptcy, crime, extortion of the debtor's friends and relatives, and other evils to the community. The committee were of opinion, however, y* young men recently come of age with considerable expectations, officers of the naval and military forces, lawyers, doctors, clergymen, bank clerks, and Government officials, comprising the large class of people who fear loss of either family or social prestige through financial exposure. It will be observed, therefore, that the money-lenders' circulars are in the main directed to those persons who usually possess merely personal security, and this class has ever formed the bulk of the money-lenders' clientele. The borrower on real substantial security may usually obtain good terms from a bank or insurance company, and he only applies to the professional money-lenders through inexperience or from a desire for secrecy. It is now proposed to remedy the foregoing defects, and the combined efforts of Lord Carson in the Upper House and Mr Wells in the House of Commons suggest a number of radical amendments to the existing law relating to money-lending transactions; and it is really highly desirable that the Legislature should intervene again in these matters. A distinguished judge once said: "The law cannot prevent a man from being a fool." No doubt that is very true; but there is no reason why the law should not intervene to prevent people from taking advantage of fools. And that must be the guiding principle of any statute which attempts to mitigate the evils of usury. The most important feature of any moneylending contract is the rate of interest charged upon the loan. Now, it is clear that the Legislature should fix some limit to the rate of interest, and this is exactly what the new measures propose to do. Lord Carson suggests that where the interest charged in respect of the sum actually lent exceeds 15 per cent. that the Court thereafter is to presume excess of interest and may re-open the transaction as being a "harsh and unconscionable" bargain within the meaning of section 1 (1) of the Money-Lenders Act of 1900. But Lord Carson appreciates the fact that a higher rate of interest may be reasonable in circumstances where the borrower has no security, or no appreciable security, to offer for the loan; and the parties may apply to the Registrar of the County Court, who will be empowered to enquire into the details of the proposed transaction and to exercise his discretion in dispensing with the limitation of 15 per cent. Where the amount of the loan does not exceed £20, Lord Carson proposes to limit the interest charged to 10 per cent. per annum. Compound interest will be prohibited in every money-lending transaction. Mr Wells deals with the question of interest very briefly, and he simply proposes that a rate of interest exceeding 20 per cent. is to be deemed excessive, and the transaction is thereupon to be regarded as harsh and unconscionable. Both measures contain a number of elaborate provisions concerning the proper setting out of the details of the transaction. Lord Carson and Mr Wells agree that the lender and borrower, or their respective agents, must deliver to the other within one week of the making of the contract a written statement signed by both parties to the transaction. This statement must set out the names of the parties, the date of the contract, the amount of the loan, the amount actually paid over, the amount retained in respect of interest or other charges, the rate of interest, and the intervals of payment. In two important directions Lord Carson goes further than Mr Wells. Lord Carson proposes that bankruptcy proceedings shall not be taken in respect of a loan unless the lender has first obtained an order from the County Court for payment of the debt due by instalments, and the borrower has made default in payment of an instalment so fixed; and he bars the applications of the Debtors' Act, 1869, to public officers whose pay, salary, or emoluments are by law forbidden to be assigned or taken in execution for any debt. Lord Carson also proposes to extend his scheme to Scotland, but there is no provision to that effect in the measure introduced by Mr Wells. In comparing the two measures in all the foregoing respects it is submitted that Lord Carson's proposals are preferable to those of Mr Wells, but that, of course, is a matter of opinion which may not be generally endorsed. Both measures propose to deal with the special evils arising from the circularisation of invitations to borrowers. In order to put an end to this obnoxious practice Lord Carson aims at prohibiting the sending of any document inviting money-borrowing from the moneylender, and the insertion of advertisements in any newspaper or other periodical for the purpose of inducing people to have recourse to money-lenders. The employment by a moneylender of an agent or canvasser for the purpose of inviting people to borrow money is also forbidden. Any money-lending transaction brought about by any of the foregoing means is to be declared void. Lord Carson finally proposes that section 16 of the Post Office Act, 1908, shall be applied to money-lenders' circulars. Armed with this statutory power the Post Office will then be able to make regulations to prevent the transmission of money-lenders' documents through the post along the lines at present applicable to obscene and indecent matter. Mr Wells desires to achieve the above objects in similar fashion, and his proposals 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. The 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 intended to be. Lord Carson and Mr Wells are in agreement as to the penalties to be inflicted. On summary conviction the delinquent may be sent to prison for a term not exceeding one month, or fined a sum not exceeding £20, or both. Convictions on indictment are made punishable by imprisonment up to three months, or a fine not exceeding £100, or both. In conclusion, it may be said that both bills are valuable and well-considered efforts to cope with the existing evils of money-lending. Lord Carson and Mr Wells deserve our gratitude for having attacked a problem which presents a number of practical difficulties, but is by no means insoluble. And it is to be hoped that the joint parliamentary committee who are now considering the two proposed measures will be able to evolve an Act which represents the best elements of both. NOTES FROM PARLIAMENT HOUSE. The session now at an end leaves the question of Court of Session reform much where it was at its beginning-that is to say, there is no word of a Royal Commission, while the committee of the various legal bodies sitting to consider the matter has not as yet made public any recommendations. The closing session has not by any means been noted for the volume of its work, although, perhaps, the optimist might see grounds for reviving hope in a number of proofs which actually were heard in its closing weeks. The summer has rather been noted for its fine weather and for the unprecedented masses of American visitors who day after day during these latter weeks have thronged our halls. Those responsible for their progress through our city are under no illusions as to the importance of the Law Courts, for five minutes seem to be considered ample time in which to do" them and the Advocates' Library. One visitor, who made bold to speak to two members of Faculty, introduced himself as judge of the Supreme Court in a Middle West State. What impressed him more than anything else in the building apart from its historic background ("you see we have nothing of this kind," he said, our Courts are just plain marble!")-was the fact that advocates left their papers lying about in open boxes. "Why, we wouldn't dare do that where I come from," he said, "it The Bill for converting the Advocates' Library into the Scottish National Library has been introduced into the House of Lords, where it has been read three times. The House of Commons, which is congested with work, has had no time for it as yet, and it will be difficult to find time. But the measure is an agreed one, and the Bill will doubtless become law in the course of the autumn session, when it should have its opportunity. Among other provisions it is, of course, enacted that the library of general literature shall pass from the Faculty to the nation, and thereafter the privilege of borrowing books shall be confined to present members of Faculty, while future members shall have no privilege beyond that of members of the general public. It is plain that in a sense the long literary tradition 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 nom-de-plume of " Advocate," to point out what, to him at least, appears to be the inevitable consequence. "The Faculty of Advocates, alone among the legal bodies of the capital of Scotland, will for the future be without a library of general literature." It will lose its position in the national life, it will cease to attract members of the cultivated classes, it will sink to the level of a mere association of practitioners of a particular branch of the law-and not, it is to be feared, a particularly prosperous one." word, the Scottish Bar will lose its character and standing. The writer suggests that either the Faculty must make a great effort and start its own library of modern literature, or else— and here is the real sting of his letter "fall back as a remedy upon the course which certain countries have resorted to the fusion of the two branches of the legal profession." It is all very dreadful. What an end to the Faculty! In order to attain the higher standards of W.S.'s and S.S.C.'s who enjoy free access to the works of Mr Burroughs and Miss Dell, it must needs submerge itself in one of these "inferior" bodies. Perhaps a grain of comfort may be derived from the fact that members of the Bar of England have never enjoyed such adventitious aids, yet many of them have attained to a very fair degree of culture. But Advocate may truly be the Cassandra of a new age, and if he lives long enough may yet enjoy the melancholy satisfaction of saying "I told you so." 66 In a 66 " and "a Bill to be a menace to the oppressed Members of the Scottish Bar continue to do better outside their native land than within the confines of Parliament Hall. The Glasgow Bill, with all its offshoots and ramifications, continued to rage with unabated fury until the end of the session, and on its demise was to be succeeded by other Bills from Scotland. There must have been days during the summer when more members of Faculty were actively engaged in London than in Edinburgh. This is a solemn thought, and its solemnity is brought home not only to Scots practitioners but to English, for members of Faculty have invaded the pre-mittee rests with the Lord President, and not, serves of the Parliamentary Bar to some purpose even in matters unconnected with Scotland. The promotion by the Corporations of Liverpool and Birkenhead of a Bill for the construction of a goods' vehicle tunnel under the Mersey was the occasion of considerable comment in the London newspapers. Leading counsel for the promoters was Mr H. P. Macmillan, K.C., who now seems to have abandoned our Courts altogether in favour of the Parliamentary Bar, where he is well established as a leader. Mr A. Moncrieff, K.C., was leading counsel for the opposition. The circumstance thus occurred of two Scots advocates being invited to occupy the foremost positions at the Bar in a purely English question. There is, happily, no indication of reprisals as yet; indeed, were reprisals meditated, it is hard to see how or where they could be begun. The passage through Scottish Grand Committee of the Law Agents (Scotland) Bill gave rise to a good deal of criticism, both in Parliament and in the press, much of which was very ill-informed. The Bill was originally introduced to Parliament by Lord Dunedin, and it has behind it the approval of the Scottish legal bodies concerned. It is designed to provide a better and more effective method than any at present available for dealing with complaints against law agents, and for having dishonest solicitors struck off the rolls more expeditiously than is at present possible. It is proposed to institute a committee of from four to seven law agents, to be appointed by the Lord President, with the necessary powers to consider questions of misconduct. This is merely following the method pursued in England since 1888, which has proved to be quite satisfactory. It is hard to see on what basis of fact are founded the dark suspicions of various members of Parliament and of (largely anonymous) writers to the daily press. But they profess to fear that political considerations will somehow enter into the manner of determining what is and what is not misconduct. As there is a right of appeal to the Court of Session for both parties, the objection would not, in any event, appear to be one of great substance. Those who declare the as was alternatively proposed by the critics, with the Secretary for Scotland for the time being, who, whatever his merits may be, is bound more or less to be concerned with political considerations. Yet opposition to the Bill has been so persistent that Mr Rosslyn Mitchell has decided not to proceed with it for the time being. As announced in these columns some time ago, the committee appointed to consider the question of a Court of Criminal Appeal in Scotland has reported unanimously in favour of the establishment of such a Court. If it be the case that Court of Session reform is ever to be seriously considered, it might be well to delay the criminal reform until it could be introduced simultaneously with the no doubt considerable changes which would be brought about by a radical enquiry into the defects of our present system of civil procedure. Whether either will ever be effected seems to be a little doubtful. Meantime Sir Herbert Stephen, a learned and experienced critic, has pointed out in a letter communicated to the "Times" how Scotland might benefit by avoiding what he describes as "serious defects" in the present English system. "A Court of Criminal Appeal," he says, "ought to have power to order a new trial. This is so generally admitted that I do not propose to insist on it at length. I will observe only that it is not a power which a Court of Criminal Appeal ought to exercise constantly or habitually, but that cases arise now and then in which justice cannot be satisfactorily done in any other way. There is one other point of great importance in which I consider the Criminal Appeal Act unsatisfactory. I cannot see why the Crown should not have an appeal as well as the convicted person. I have always thought so I believe I have said so before-and I still think so. If such an appeal, whether on the law or the facts, were successful, the natural result would, I suppose, be a new trial. There could not in practice be any difficulty in re-arresting the improperly acquitted person, and if he happened to have withdrawn himself from the jurisdiction and could not be re-arrested, that would be a trifling price to pay for having had the law correctly determined, and his guilt sufficently established to make his return unlikely. I hope that His Majesty's advisers will adopt the first of these suggestions, and give careful consideration to the other.' It will probably be thought by many in Scotland that these suggestions run counter to the doctrine of "tholing an assize," and that it is better not to introduce into our criminal jurisprudence any provision which might tend to lessen an accused person's chances of acquittal. If the Crown is unable to establish a panel's guilt after one attempt, there is no need to let it have another, and the law can look after itself—that is probably the attitude of the average citizen to Sir Herbert Stephen's proposal. Nor is it an altogether unreasonable one. But the points which he raises will, no doubt, be considered with care by the responsible authorities. REPORT OF THE COMMITTEE ON CRIMI- This Committee, consisting of The Honourable Lord Mackenzie, LL.D., Sir James M. Dodds, K.C.B., LL.D., and Mr E. Rosslyn Mitchell, M.P., was appointed by the Secretary for Scotland on the 4th February 1925, with the following remit : "To consider whether it is desirable that further provision should be made as regards Scotland for appeal in criminal cases tried on indictment, and, if such further provision be recommended, to advise generally as to its scope and as to the lines to be followed in framing the necessary legislation." The Committee has given the subject of the remit full consideration and has unanimously agreed upon the terms of their report. They desire to express their appreciation of the services of their secretary, Mr M. Millar Craig, advocate, which have been of great assistance to the Committee. The Committee has to consider "whether it is desirable that further provision should be made as regards Scotland for appeal in criminal cases tried on indictment.' In these cases the procedure is regulated by the Criminal Procedure (Scotland) Act, 1887. Review in summary cases is dealt with by the Summary Jurisdiction (Scotland) Act, 1908. An Appeal Court, consisting of not less than three judges of the High Court of Justiciary, was established in Scotland under the Prevention of Crime Act, 1908. That Court, how ever, deals only with appeals against sentences of preventive detention. The Criminal Appeal Act, 1907, which set up a Court of Criminal Appeal in England, was not made to apply to Scotland. DIFFERENCES BETWEEN THE ADMINISTRA TION OF THE CRIMINAL LAW IN There are fundamental differences in the ad ministration of the criminal law in the two countries. In Scotland private prosecution is in practice unknown. The initiation and conduct of all cases tried on indictment is in the hands of the Lord Advocate and those acting for him, viz. the Solicitor-General, the Advocates - Depute, and the Procurators - Fiscal. Before any case goes to trial, the evidence is carefully sifted by the Procurator-Fiscal and considered by Crown Counsel, i.e. the AdvocateDepute, and, in case of need, the SolicitorGeneral and the Lord Advocate. It is Crown Counsel who determine whether the evidence in any case reported to them is enough to justify proceedings being taken. It is for them to decide whether a case is to be sent for trial or not: if it is to go to trial they determine whether it is to be tried in the High Court of Justiciary or by Sheriff and jury. The cases which can be tried only in the High Court of Justiciary are murder, rape, deforcement, breach of duty by a magistrate, and offences against the Official Secrets Acts, 1911 and 1920. Treason is in a separate category. By the Treason Act, 1708, the law and the procedure of England regarding high treason were extended to Scotland, and treason may be tried in Scotland either by the High Court of Justiciary or by a Commission of oyer and terminer in the same manner as in England. The procedure is not regulated by the Criminal Procedure (Scotland) Act, 1887, being excluded by section 75, but as such trials proceed on indictment any provision for appeal in cases tried on indictment would apply to trials for treason. As already stated, no case is tried on indictment by a jury, either in the High Court or the Sheriff Court, without having first been considered by Crown Counsel. At the trial the presiding judge is in all cases a trained lawyer. If the trial is in the Sheriff Court the maximum sentence is two years' imprisonment. Penal servitude cannot be given except by a Lord Commissioner of Justiciary in the High Court of Justiciary. There is nothing in Scotland analogous to the criminal jurisdiction of Quarter Sessions in England. There is public confidence in Scotland in the fairness of juries in criminal cases. Scotland has been spared the experience of such cases as |