It was very

njustice so obvious, that he should ther to the cases of persons who die have thought it unnecessary to do suddenly or violently. Mr. Fellowes more than harely to state the object thought that the bill should extend of his motion, if a similar measure to copyhold, as well as freehold had not been formerly proposed property, because, in many cases, unsuccessfully. By the law, as it these were so blended, that it might then stood, a man might contract be difficult to sell the one, without debts to any amount, not evidenced selling the other. The master of by bond or other legal instrument; the rolls (sir W. Grant) thought, yet dying with property amply suf. that the effect of this measure, would ficient to satisfy those demands, his be to do away that solemnity which estate would pass to his heir at law, the policy of the British law re. and his creditor would remain un. quired in transactions affecting free, paid: or, were the proprietor of hold property. By the principle of such estate to make, before his this bill, the security of entails death, a testamentary assignment, would be destroyed. The fact was,

, however capricious, to a stranger in

that the parties, by their own act, blood, that stranger might, if he decided the terms of the contract. chose, look with indifference on the The creditor who trusted to the simruin of the creditors.

ple contract, knew that he was not surprizing that this evil should have in the same situation as if he had a been allowed so long to exist; more bond; and vice versa. -But one of especially wheu the extent of com. the objects of the measure, he under. merce in this country was consider, stood to be, to prevent frauds by ed, and when it was recollected, that persons who might involve them all debts on negotiable security were selves in debt, and, with money bor. . merely simple contract debts.--Sir rowed, purchase freehold property, Samuel, after a farther illustration which would descend to their heirs of the injustice and hardships flowing without becoming responsible for from this law, and the inadequacy these debts. This was a case, which of the means occasionally resorted had sometimes occurred, and which

to for palliating those hardships, deought to be prevented. But the | clared his opinion, that the law as measure proposed went in one rea

it then stood, was pure, unmixed spect beyond its object, while, in evil. He therefore made a motion, another, it fell short of it. Such to the purport already stated: and cases of frauds were confined to pro. leave to bring in a bill was granted.perty purchased by the debtor, and -- On the question being put, Febru. the bill, by extending to all freehold ary 18th, for the second reading of property, went beyond its object. the bill, it was opposed by Mr. W. But, by being limited to freehold, Herbert, on the ground that it would and not including copyhold prochange the whole law of landed pro. perty, it fell short of its object. It perty; lower the value of freehold was not, however, his intention to property; and interfere with the oppose the second reading of the elective franchise, which depended bill, or even its going into a com. altogether on freehold property. He mittee, when his honourable and would have no objection, he said, to learned friend would perceive the the measure, if it were confined altoge. necessity, for the attainment of his

OWN

own object, of making some altera. there. Ile stated cases, in which tions in the measure.

the children of simple contract cre. The solicitor-general regretted ditors to any amount, might be drivery much, that the master of the ven to the support of casual bene. ro'ls, to whom he had submitted a volence or parochial relief.

The copy of the bill, had not favoured state of the law, respecting free. him with his objections to it sooner. hold estates, was a reproach io the If his right honourable and learned country : it was peculiar to this friend had not been present when, country, and to Ireland. Neither on a former day, he stated the in Scotland, nor in the rest of Eu. grounds of that measure, the fault rope, could property descend to the did not lie with him : he had on that heir without being char eable with occasion stated, that the law of all the debts of the ancestor: nor landed property had been framed was the law, on this head, in Scot. with a view to a feudal state of so- land attended with any diminution ciety, which no longer existed: it in the value of freehold estates. It was to pay too great veneration to had been said, that credit had already the wisdom of our ancestors, as it been carried to too great extent was called, to continue that law in this country: if this was the case, analtered, when the state of society there was an effectua' mode of check. had undergone a change that ren. ing it, and one that would be at. dered it inapplicable to its existing tended with mutual advantage, state. This had become a great which was, the abolition for imprisoncommercial country, and therefore ment for debt. Mr. Canning, after it was necessary to adapt the law repeating the arguments of the masof property to such a situation of ter of the rols, expressed his conthings. As to the objection, that viction that the general doctrine of the principle of the bill would in the adaptation of laws to the supposed volve, in its opération, entailed state of the country, would open a estates; why should it not? It was door for all reformation. After a a maxim in our high courts of equity, review of the reign of the philosothat men should always be taken to phers of France, he said, he would do that which they ought to do : and undertake to prove to the conviction certainly, as the tenant in tail, by of speculative men, and many others, suffering a common recovery, might that there was nothing so venerable in have made the estate liable to his our law as not to require reforma. specialty debts, there was no good tion. If they should begin with reason why the principle should not such notions, there would be no extend to such estates. It would end of them. indeed be extremely desireable that The attorney-general, (sir Ar. copyholds should also be made lia. thur Pigott) supported the bill, on ble to debts; but it was best to pro- the grounds of justice and morality; ceed gradually: this bill, as a sin. and his only wonder was, that a mea gle measure, would be highly bene. sure of this nature had not been brought ficial, and as a first step of a system,

forward sooner.

Mr. Perceval was, an important measure;

for he on the whole, rather disposed to fa. trusted, that if the house adopted vour the bill. Mr. Morris favoured it his measure, they would not stop decidedly, and replied to Mr. Can.

L2

ning's ning's reasoning from the French ed, instead of a leviating, only increa. revolution. The bill was then read a sed the weight of business, and ren. second time, and ordered to be com. dered it more cumbersome. These mitted to morrow ge’nnight; but it were the principal sources of the evils was thrown out on the third reading, with great reason complained of in

If great respect was paid by the course or forms of process in the England to Scotland, in the discus. administration of justice in Scot and; sions arising from the measure pro. of the 'aw's expence and the aw's posed by Mr. Whitbread for pro. delay. Concerning the introduction moting industry, and relieving or of juries in civii trial, there was preventing the necessities of the poor a difference of opinion; though it on the score of education, that re- wasgeneral y admitted, that it would spect was amply repaid by the homage be a very desireable improvement in almost the whole of the Scotch certain cases, and in certain cases nation paid to the mode of administer. on y. But what had been always ing justice, the grand basis of in. considered as a grievance by dustry of every kind in England. all, was the great number of judges It was universally admitted, that sitting together in the supreme court justice was better administered by of civil judicature. And that grie. twelve judges in the whole of Eng- vance must have been very palpable, land, than in Scotland, so much in. since it had been able to draw into ferior in both extent and population, one opinion, a nation so abundant in by fifteen. There was not, nor is lawyers, authors, and so many there yet, at the time of writing other classes, neither under-rating this, any trial by jury, except in their own powers of rezsoning and criminal cases. In the court of invention, nor at all remiss in the ex. session, formed very much on the ercise of them. For remedying the modes of the parliament of Paris*, evils here stated, lord Grenville causes may be brought again and had, in the preceding session, laid again under the consideration of the before the house of peers, a plan judges, whose decisions are not so in the form of resolutions t, which tightly bound down as in England by were printed and ordered to lie over the anchors of rules and precedents, till next session of parliament, for but float more on the waving surface consideration. The same nobleman of abstract reasoning. And the great presented his bill for the better re. number of judges, with the debates gulation of the courts of justice in and alterations which, this occasion. Scotland, to the house of lords,

* James I. of Scotland, who, being intercepted in his way to France, was educated in England, instituted a court of session in 1425; and James IV. instituted a daily council in 1503; but James V. not satisficd with any of these judicatories, instituted, in 1592, the present college of justice, and being much prejudiced in favour of France, with which he was intimately connected by intermarriages and other ties against England, he borrowed from the parliament of Paris, certain forms of administering justice, and made them part of his new instiiution. Trial by juries in all cases, was the ancient law of Scotland; the abolition of juries, and the taking of proofs in writing, and by commission, with several other usages in the Scotch laws, as it stands at present, are of French extraction, + See Vol. XLVIII. History of Europe, p. 95,

Feb.

Feb. 16, 1807; disclaiming, at the administration of justice than the same time, any intention or wish to clear distinction between law assimilate the law of Scotland to and fact: that the facts of a case that of England. It must be obvi. should be brought to an issue of fact, ous, he said to their lordships, that upon which a jury might decide, some measure of this nature was ab. and that the law, as applicable to solutely necessary.'

Their table those facts, should be clearly dis. was now loaded with appeals, the tinguished. This could be effected greater part of which were from only by the trial by jury. In ex. the court of session in Scotland, and tending this institution to civil cases which increased so much faster than in Scotland, it was proposed to it was possible for their lordships to confine it to suits respecting what decide upon them ; that their house, he would call personal rights, and with respect to the administration not to extend it to suits respecting of justice, had nearly become bank. landed estates : the rights to which, rupt. He now proposed to carry from the nature of the law of Scots into effect the measure, the outline land, became wholly questions of of which had been proposed last ses. law, and did not involve any ques. sion, with such alterations and im. tion of law on which a jury could provements as had been suggested decide. by a farther consideration. The The only remaining point to be leading point was the division of the touched upon, was the institution court of session into three chambers, of an intermediate court of appeal. of five judges each.

With the smal. The necessity of some such arrangeler number of judges, much less ment was obvious. In order still time would be taken up in delivering further to prevent too frequent apopinions, and there would be a less peals, it was proposed, that appeals chance of difference of opinion. to that house should lie only against It would be, besides, of the greatest final judgments, and not against in. advantage that there should be two terlocutory decrees. The mode in or three courts of justice of co-ordi. which this intermediate court of Date jurisdiction, the decisions in appeal, or court of revision, was which openly made, and opinions proposed to be constituted, was, to openly delivered, would be imme. empower his majesty to appoint a diately canvassed by an én ightened president of that court, and also te bar, and would be soon examined appoint the lord chief baron of the by public opinion. The suitor ha. exchequer in Scotland, a lord of ving his choice to commence his session, and a member of the court suit in either of these courts, public of appeal. The three presidents of opinion would soon point out, by the three chambers into which it was the preference given, in which, if in proposed, that the court of session any, there was the superiority of should be divided, were also to be learning, or enlightened decisions. members of that court. Lord G. The next point to be considered, proposed that in order to give time was, the extension of the trial by for the due consideration of the sub. jury Scotland to civil cases. No. ject, the second reading of the bill thing was more conducive to the due should not take place until that day

L 3

three

three weeks. Lord Eldon expres. the second reading of the bill, for sed his entire approbation of the that day month, instead of three general principle of the bill, and weeks. Lord Hawkesbury appro. declared his wish to give his assis. ved the principle of the measure, tance in promoting its object. He but thought that the extension of entirely approved of the proposed the trial by jury should be detached measure of having three chambers from the bil, and made the subject or courts, and a court of revision; of a separate bill. Lord Ellen. convinced that the most essential borough considered this part of the advantages resulted from the three bill as so great a boon to Scotland, courts of law in Westminster-hall, that nothing but petitions from the which were in fact, courts of revi- whole population of Scotland could sion with respect to each other. As convince him that it was unwise or to the trial by jury, the court of inexpedient. The lord chancellor session was a court of equity, as (lord Erskine) also highly approved well as of law: great care would of the whole of the proposed plan. therefore be requisite in framing It was agreed, that the second read. provisions, for forming issues of ing of the bill should take place on fact to be tried by a jury. He that day three weeks, and the com. thought it would be advisable to fix mitment on that day four weeks.