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Mr. Smith bimself

. This is the inconsistency that lawyers of England; but English and Scotch law we cannot comprehend the ground for maintaining differ widely, and an appeal from the Court of We do not ask the public to rise as one man, or Session in Scotland to the House of Peers, is from to petition, or protest, or to do anything bathetic those who should know, to those who are not or pathetic, but merely to be amused at the droll necessarily required to know, the subject on which laws made by the lawyers for their special behoof, the appeal is taken. A remedy for this obvious and to continue to pay the costs for such a period inconsistency has been sought in the elevation of as they may please to be amused, and occasionally some of the Scotch judges to the peerage. The to see parties ruined. It is absurd, of course, to proposal was clogged with awkward conditions, for say that the poor and rich have equal justice; but these law Peers of the north were neither to deli. wc are weary with what people call the exposure berate nor to vote in the upper house, but only to of absurdities in legislation. We don't want any. decide Scotch law pleas. They might have been body to be angry with the abuse of the appellative smuggled into the House upon the life-peerage power, or Mr. Roebuck's Administrative Reform principle, but that has been crushed or postponed. Association to take the slightest notice of the law Scotch appeals to English peers may work well in in these cases.

practice, but in theory the scheme is ridiculous, England is more cursed than Scotland with without a saving feature, and can only be rendered diverse jurisdictions, capable of giving opposing seemly by bestowing peerages upon a number of views of the same facts; for in Scotland we have Scotch judges, and removing these learned personconsiderable regularity from the Sheriff Substitute ages from the lower courts. These peerages would to the Sheriff Depute, thence into the Court of | in turn become ridiculous, unless they were supSession, and out of that to the House of Peers, ported by greater private fortunes than our Scotch where, except by the exercise of unusual ingenuity lawyers have au opportunity to acquire, for few of and wealthi, the movements terminate. England, them have ample inheritances. The adoption of instead of a series of courts, straightforward or life-peerages appears, therefore, to be the only upward, has several parallel lines. Litigants may means of reconciling these matters with equity and take, or be thrust into, either of these lines, with reason ; while, if the hereditary legislators feel different results upon the same description of cases. their privileges endangered by the admission of Thus, we have heard that, in the prosecution by able men to their benches, whose eldest sons may depositors of shareholders in the Royal British have to make their way in life, we can only hope Bank, the Court of Exchequer issued execution, for a separation of the judicial from the legislative the Court of Queen's Bench doubted the propriety functions. of that measure, and the Court of Common Pleas The Scotch small debt courts only possess a deferred the step until the judges beard argument limited jurisdiction. They can try cases not -all at, or nearly, the same date, upon precisely exceeding £8 6s. 8d. in amount; but creditors similar cases. The law of England, as interpreted often limit much larger debts to that sum, in order by these three jurisdictions, has three opinions, to obtain the advantage of cheap and rapid deci. although that is no gain to the contributors, nor sions, although the small debt courts have the loss to the depositors who got into the Court of same sheriffs for judges who, “in another House," Exchequer. The question whether a partner in a occupy the first step in superior actions. In the bank is liable to a creditor of the bank is plain small debt courts, neither the pursued nor the and simple in equity. The legislature has always pursuer can appeal ; but in the superior courts upheld the unlimited liability of shareholders in both parties have that privilege provided. The banks and insurance companies, or in any other practice in the superior sheriff courts, until very company where by act or charter a limitation was recently, involyed enormous papers and much not provided. The case of the English share writing. Many statements which must have been holders in the Tipperary bank forms no exception, made recently upon foolscap, are now given in even if the legislature had anything to do with the vira roce pleadings. The new arrangements also decision, which was given by the Lord Chancellor cut short the interminable replies or rejoinders that of Ireland, not upon the responsibility of share were tolerated in times when railways were young, holders, but upon the question whether a certain not so long ago. It is now possible to get a case number of persons had ever become shareholders past both sheriffs in a reasonable time. In Scotin the flesh-pot of the Sadleirs. The merits of the land the power of small debt courts should be litigation are not however canvassed by us, who extended, and in large towns their sittings should only ridicule the idea of conflicting courts and be more frequent; but the sheriffs of counties conconflicting decisions upon the same facts at the taining a large population have arduous work, and same time.

a catalogue of their doings in Lanarkshire, which The Scotch courts proceed in a definite series of we lately read, was sufficient to deter any man steps to gross absurdity at the pinnacle. An from seeking the occupation. appeal to the peers, from English law courts, is For some years past we have observed occareasonable, because the lay peers interfere rarely sional attempts to assimilate the Scotch to the Enindeed with any case, and the law peers do the glish law, encouraged in Glasgow and some other work. These learned barons should be the best towns in Scotland. The Scotch law is bad, costly,

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the money.

and dilatory in some of its forms; but that is no The extreme proceeding against the person is reason for going farther and faring worse. very different in England from the course adopted England can supply Scotland with few improve-in Scotland, and much harsher. An incarcerating ments in any department of the civil law; and the creditor in Scotland must pay for the support of adoption of English forms would only tend to stay an imprisoned debtor. He is not required to conproceedings against those who should be proceeded tribute a farthing for that purpose in England. So with. Thus, if we be not mistaken, the law far as he is concerned, the debtor may starve. The of England requires personal service of a writ be- county will feed him on lower fare than its selons fore proceedings can be adopted against any man or its pickpockets; but unless the prisoner possess in the superior courts; unless by particular appli- earnings or means from some personal source, le cation to the judge—a course attended by fresh must be contented to live on in illustration of the expense. Even this step is useless against a truth-“Man wants but little here below.” We “gentleman " who is out of the country upon his need scarcely add that the laws of both countries business, which may, of course, Icad him from could bear improvement in this respect, and that Archangel to Rio de Janeiro, without a single call justice requires the adoption of means to incarce. being made by him at home for his letters. rate the fraudulent and protect the unfortunate

The English law, except in the City of London, debtor, with or without the active concurrence of or one or two more places—if there be more, and the creditors. we do not know of any–has no means of attach- A number of persons have constituted them. ing property. A creditor may be acquainted with selves a committee for the reform of mercantile the possession of property by a debtor, but he has law, under the most influential and promising 10 means of attaching it in England. The debtor auspices. They wish to assimilate the laws of claims liis own dues and puts them in his purse the three countries, but, as usual in similar cases, before the eyes of the provoked creditor, who has they will be tempted to assimilate the laws of no right to provide for his payment, except upon Scotland to those of England, rather than all our a judgment, and only then by the seizure of the laws to equity and justice. The mercantile law of person or property, instead of the arrestment of Ireland closely resembles the English law at least

in all its inconveniences. We recollect that an The law of arrestments in Scotland is ludi- Irish acceptor to a bill, having been unable to crously loose. It is obvious injustice. Any man make payment, was prosecuted. The bill was held may apply for and obtain arrestments of moneys by a Scotchman, who was the drawer. Being in due to another man, whom he is pleased to call or Ireland, he called upon the attorney who had consider his debtor, before he has issued a sum- charge of the proceedings, and in answer to the mons, or even made an affidavit that his claim is inquiry how matters prospered, he was shown a correct. The power exists, but is not often used, bundle of papers. Curiosity induced him to read except in cases of clear indebtedness, or we should them, and rather startled at one passage, he said, have an injustice so obvious speedily repealed. "Why this fellow charges me with forgery." The remedy is an action of damages ; but as the Nonsense,” answered the attorney, “how should wrong will scarcely ever be committed by those he do that?” “Oh, here,” le says, " and as it who can pay damages, virtually " there is a wrong seems to me, he swears that he did not make the bill.” without a remedy." We do not invite England "True," said the professional adviser, “but that is to copy this mistake; but between the over abune only a form.” “ Then,” responded the pursuer, dance of attaching power in Scotland and its ab. “I can only say it is a strange form that requires sence in England a happy medium might be struck. a man first to tell a falsehood, and in doing so, to

England adopted, two years ago, the old law of charge another man with forgery.” Judgment was Scotland respecting proceedings upon bills of ex- ultimately obtained for the pursuer, with costs. change, with slight alterations. Before the date Payment never was obtained, neither of costs nor of that Act, a bill did not facilitate the recovery principal, and the former considerably exceeded of the debt which it represented. It was indeed the latter. The defence of forms and proceedings an evidence that the debt had been incurred ; al- of this nature is very difficult, and we want them though numerous forms of defence existed, and swept all away. some of them necessarily good. It did not in any The sufferers from reform naturally tremble at other respect shorten the period during which the its progress. The process of winding up public debt might remain unpaid without proceedings. companies was, if we remember rightly, a reform. It was of no earthly use during the vacations, and The Courts of Chancery and the Rolls have the there are several, while one of them is long. carriage of proceedings in these cases.

They are, That long vacation was the saturnalia of debtors, we believe, cơnducted by officials who are anxious and if they abstain from acceptances to bills, and to discharge their duties. These duties, bave, keep their involvements over fifty pounds each, however, been so cleverly mystified, that until they may be happy still. Now, however, bills are recently the opinion was generally received among recwerable at any period of the year, “ upon the solicitors in even considerable practice, that when shortest notice" that a prudent drawer could a company came to be wound up the shareholders desire.

could not be individually prosecuted during that

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operation, for the debts of the company, and were solvent, without losses by bad debts, fire, or ship- liable only to the calls of the official manager. wreck to an amazing extent; and only have assets From this error, which was generally acted upon equal to ten per cent. of his debts. However, we by creditors, the shareholders of an unsuccessful believe that the Australian trade has been more of company were rather pleased than otherwise to get a loss than a gain since the discovery of gold, not into Chancery. They had a respite of three or to individuals, but to the nation. Our reference four years, and it is a standing question still to this case—for individual cases cannot be safely whether three or four companies have ever finally discussed in our pages—is merely to say that we been wound up? We may expect greater activity have before us a dozen, or perhaps nearly a score, now that it has been settled that this process if they would repay the time required to count in law does not bar the right of a creditor them, of claims by one person on estates in bankto recover from any shareholder the money due ruptcy, under the precious law of England, in to him, by the company, if he can prove the which not one penny has ever been paid by way liability.

of dividend or anything else. We presume that a reform of this nature is not The mercantile and monetary interests, and desirable in any quarter. A simple machinery is nearly all interests require greater simplicity in all that can

desired
the recovery

debts. | forms, wer of them, less expense, and more The country rather needs more common sense and rapidity-more justice and less law. That is the equity brought into its business, than new laws reform needed; and one that may not be easily and statutes. It can only reach this result by obtained. new laws, but great care should be employed upon A discussion of all the changes essential to the their projection; although wisdom exists in the thorough revision of our civil law forms no part multitude of counsellors, folly is bound up in of our present design. We argue only for cheap many words.

and valid decisions upon a system of uniformity; We have read, while this sheet was nearly ready and, while acknowledging many improvements in for press, a correspondence in the Times, regarding recent years, we yet fall back upon the vulgar fact the estate of Messrs. Dickson and Co., Austra- that a man may be charged, condemned, and hung lian merchants of Glasgow, who stopped payments out of all power of appeal in three months, in two, a couple of years since, we believe, for a sum even perhaps in one from the date of his offence; approaching to the debts of the Royal British while another man may appeal for years against a Bank, or nearly four hundred thousand pounds. decision that involved originally only a few pounds An English creditor complains of the delay in sterling. The civil law is over cautious, and the paying a dividend. Nothing appears to have been criminal law is occasionally reckless. Messrs. paid, and the English merchant blames the bank- Redpath and Robson should even now be in the ruptcy law of Scotland. A bankruptcy law, how- enjoyment of appeals; or many litigants who have ever perfect, could not extract tears from a stone, obtained judgments are exposed to costly and danor a dividend from nothing. This is nearly, as gerous ordeals. If Messrs. Strahan, Paul, and the English lawyers say, and the allied soldiers in Company had been brought into a civil court, on the Crimea were wont to say of the Turks, a matters relating to the possession of ten acres of nulla bona affair. Many creditors, we have heard, muir land, they might have fenced off a judg: as everybody has heard, deserved very little divi- ment to the present day; but as they were tried dend from the prices at which their consignments or in a criminal court, upon á subject that involved goods were charged; and certainly the law of their commercial character and existence, they Scotland is defective in its means of examining have been for a long period inmates of the hulks. these matters; while in a community like Glasgow These are facts that cannot be reconciled, and it should be almost impossible, without a foregone that should be entirely remedied, if the civil law is determination, that a merchant could become in. I to be rendered consistent with justice.

THE CAGED BIRD.

Like a bird of the forest

Confined in a tiny cage,
The lofty soul warreth

With the narrowness of its age.

Its plumes are folded

Close down to its throbbing breastIts form seems moulded

To an attitude of unrest

As the bird without shrinking

Looks up to the sun on high,
The soul that is sinking

Above the earth would fly.

On its pinions are clinging

The weight of each earthly bar-
Until it is springing,

Away to its home afar ! ADRIAN.

SIR JOHN MALCOLM. *

SECOND NOTICE.

It is singular now that Bushire and Karnac have | India, came into collision with Sir Harford Jones, been taken, to read of Sir Jolin Malcolm's anxiety who was sent there as the representative of the to obtain an island or two, or more, in the Per- British King. They both claimed that character, sian Gulf

, when he sojourned at Teheran as the and the Persians must have been puzzled to decide ambassador of the Marquis of Wellesley--the between them. Malcolm, as an old acquaintance Governor-General of India. It seems as if these at the Court of Teheran, was naturally preferred; Anglo-Indian diplomatists pursued a relentless but Sir Harford was superior in bribes-known as march to the west, never abandoning an idea, but presents. Both gentlemen wrote an account of biding their time, like Freedom's battle, banded their mission. Both claimed the hononr of reprefrom sire to son. After the Wellingtonian cam senting the British sovereign at the Court of Perpaigns in India, Sir John Malcolm was employed sia; and of introducing potatoes into the country! long in settling the affairs of the territories that had It was a ridiculous competition. At that time the been annexed. He acquired at a very early date Schah wanted aid against Russia. Futteh Ali the art and mystery of making settlements in Shah, the man of that time, was wiser than his eastern territories. He inspired the natives with successor, who now rules. He was willing to aca deep and permanent idea of his incorruptibility. cept either of our ambassadors, who would afford They felt themselves in the hands of a just man. to him military aid ; and Malcolm succeeded in He was blamed for lavish arrangements with the procuring for him the services of a few British deposed native princes; but if he crred, it was officers ; but at that time the Persian soldiers upon the generous side. When the government were not in a good fighting state, and they would at home quarrelled with the Marquis Wellesley, not be taught. The interview between Malcolm and that nobleman was to depart for England, he and the Schah was pleasant, and a triumph over was anxious that Malcolm should accompany him; Sir Ilarford Jones: and it is a very remarkable feature in his history

Malcolm had prepared a set speech ; but when the time that he declined, among other reasons, from the

came for its delivery, he made no great progress with the state of his monetary affairs. He then would oration, “ Come,” said the King, smiling, “ you are an old have possessed an income of £800 per annum, and friend, I do not put you on a footing with other men. Comyet he had negotiated and settled upon an Indian pose yourself. I know what you would say,” and he comprince revenue of £60,000 per annum.

Sir menced a speech of fulsome panegyric. Then breaking into John Malcolm married the daughter of Colonel Laughter, he said. “Now your speech is made, let me know

about yourself. How have you been these many years P” Campbell. The name is so common, and furnishes

Except for the wish to revisit your Majesty, I have been officers to the army, that Colonel Camp- well and happy,” said Malcolm. “But what," asked the bell

, like Mr. Smith, is scarcely a distinctive term. King, “ made you go back in dudgeon last year, without The earlier years of the century, while his old seeing my son at Shiraz p" “How could he,” said Malfriend Wellingtou was pushing the French back colm, “ who had been warmed by the sunshine of his Ma

jesty's favour, be satisfied with the mere reflection of that through one peninsula, were passed by Malcolm in refulgence through the person of his Majesty's son?” organising agriculture, finance, and politics, in the “Mashallah ! Mashallah !" cried the King, “Malcolm is territories of native princes in another peninsula. himself again !" He discharged these duties in the most irreproach

Gracious beyond example was Futteh Ali. He was really Upon his third visit to Persia, glad to see Malcolm. He told him that he always was, and

always must be, his prime favourite beyond all Europeans. whilst at Shiraz, he was informed by the minister Then he spoke of the state of India - Europe -of his own " That a valuable present of jewels

, suited to a country; and then returned to talk of Malcolm himself; lady of rank, would be given to Mrs. Malcolm.” “I heard,” said he, “ that you were going to England ; buc He replied,

I have caught you, and you must not expect to escape for

at least four years. Your fame in India for settling countries " Tell your master that when I was at Mysore, the minis- has reached me; and your labour is wanted here.” He then ter there would gladly have heaped costly presents upon us, asked a multitude of questions concerning the organization but instead of this, on my persuasion, he made a fine new of the Indian army. road that was much wanted, and dedicated it to Mrs. Mal- Malcolm spoke not only of its discipline, but of the colm. Sach are the presents I like."

admirable invalid and pension establishments. “Discipline,” We would have been much obliged now if Sir alone is nothing. It is the whole constitution of the mili,

said the King, “will always defeat valour ; but discipline John Malcolm had succeeded in persuading the tary branch of government which makes „superior armies." Persian Minister to make a fine new road, which To this Malcolm assented; and then the King began to is really much wanted from Bushire to Sbiraz. speak of Buonaparte, whom he styled the first of heroes, and

A curious dispute occurred at this time, which said, “What does he want P” “ The world,” said Malcolm. could not have elevated our diplomatic service in truth, he is a great soldier.” Then he asked many ques.

“Right," said the King, " you are right, Malcolm--but in the eyes of the Persians. Sir John Malcolm, tions about the state of Spain ; and thence, turning again to upon an embassy from the Governor-General of personal matters, he inquired about the officers of Malcolm's

so many

able manner.

* Life of Sir John Malcolm. By J, W. Kaye. 2 vols. Smith, Elder, and Co.

116

SIR JOHN AT THE COURT OF PERSIA.

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suite, and asked particularly about the engineers. “Mr. Jins Malcoln returned from Teheran by way of Bag(Sir H. Jones) is a good young man. I have a regard for dad, and that, instead of the route by Shiraz, is him; and those with him, have laboured hard in my service—but you must do everything for me now.” Malcolm

the proper course. It is, however, in Turkey, assured him that he and his Majesty's other servants would and so our expedition can make no use of the do all that lay in their power; and the King was well Tigris. When Malcolm was there, the city was pleased with the assurance. Altogether, the reception was in danger from the Arabs, and he stopped with a most gracious one, and Malcolm quitted the presence his retinue for some time to afford protection to chamber satisfied that he had not failen in the estimation of his old friend. “I was shocked to hear after I came out," the resident and his wife. He wrote:he wrote in his journal, “ that I had talked more and louder We pass our time very pleasantly; we have races almost than his Majesty; but I conld not have given offence, as I every morning; games of chess after breakfast; and in the went away loaded with praises.” On the 1st of July, Mal- evening swim in the Tigris and play bowls. colm, with all due ceremony and becoming state, exhibited The troubles, however, grew into civil war. his presents before the audience tent of the Slah. Chief of The Pacha of Bagdad is the most independent of these were the guns which he brought with him from India, the Turkish Satraps, next to the Egyptian. The and which now with all their equipments were displayed Sultan sent orders to displace the ruling Pacha. before the delighted eyes of the King. It was hard to say whether the Ordnance or the young artilleryman Lindsay, After much fighting the Arabs succeeded in giving with his bright rosy face, and his gigantic proportions, gave effect to their master's orders, and sent the Pacha's his Majesty the greater pleasare. In the latter he saw a head in a box to Bagdad. The people met and young roostum, who was destined to play no insignificant elected his successor. At that time, therefore, part in the war then waging with the Muscovite. The two

there was a good deal of independence in the old galloper guns which Malcolm had brought with his escort were now exercised, as well as the confined space would capital of the Tigris. allow, to the surprise and delight of the Persian monarch. After Malcolm's return to India, he resided for But Malcolm said that they would appear to greater advan. some years at Bombay. The European society tage on the plains of Pujein, whither his Majesty was about of the western capital, had then assumed that to remove his camp, and that, as one of his officers, he would refined tone which it has maintained subsequently. be glad to exercise them there. " Very proper, Malcolm,” said the King, “you shall take charge of my guns at

The diplomatic soldier's intercourse with such men Ougein. They cannot be under an ollicer I more esteem. as Sir James Mackintosh, the lawyer, and Henry And at Ougein I will mount my horse, and see both the guns Martyı, the missionary, was useful to him in bis and your troopers exercised. And then,” he added, laughi: literary work. Of Henry Martyn he wrote that ing, “if it is necessary, you may go and anuse yourself

his knowledge of Arabic is superior to that of with breaking the heads of my enemies, the Russians.”

On the following day, Futtch Ali broke up the royal any Englishman in India." He described the encampment at Sultaneah, and marched to the great plain eminent missionary as "a very learned and cheer. in the vicinity of Fabreer. Thither Malcolm and his suite ful man, but a great enthusiast in his holy calling." presently followed by the express desire of his Majesty, by For tbe latter reason Henry Martyn had not been whom the words spoken about his Russian enemies had not

so much at home then in Bombay, as he would been uttered in jest. A few miles from the ground at Ougein, he was met by Sir Harford Jones, who placed in

have been at a future period, or at the present his hands some public despatches received from England, by day. Mount Stewart Elphinstone, who acquired the contents of which it appeared that the Home Govern- just celebrity as an authority on Indian affairs, was ment had determined still to regulate our diplomatic relations then also a resident of the western presidency. with Persia, and had, in prosecution of this intention to

An arrangement was formed amoug them that repudiate the power and authority of the Governor-General in that direction, appointed Sir Gore Ousley ambassador to Elphinstone was to write a description of Affghanthe Court of Teheran. These letters were written after the istan, Malcolm of Persia, and Pottinger of Beloochreceipt of Lord Minto's reference to the Foreign-office on istan and Scinde. To that arrangement the pubthe subject of the future control of our Persian diplomacy ; lic are indebted for the completeness of Malcolm's so Malcolm saw at once that it had become his duty to

work on Persia. bring his mission to a close. His occupation was gone. He could no longer remain at the Persian Court in a recog

Malcolm returned to England in 1811. He nised official position. So he determined to withdraw from again left for India in 1817. The intervening the scene with the least possible delay.

years were exciting from the magnitude of the But the King and Abbas Merza, the heir-apparent, desired events, and a considerable part of the second Malcolm to remain in Persia, to aid with his advice, if not volume is occupied with them, although Sir John with his personal assistance, the operations of the coming Malcolm was not an actor, but a spectator. In campaign against their Russian enemies. Sir Harford 1817 he was engaged in military services against Jones pressed this matter warmly upon him, and the two envoys went together on the following day into the royal the Pindarees, and fought the battle of the Me. camp and had a long conference on the subject with the hidpoor towards the close of the year. He was Persian ministers. Malcolm's opinions regarding the best not in the chief command of the army, but in the means of prosecuting the campaign were eagerly sought. command of the division which had the principal His advice was eminently judicious, “I strongly recommended them,” he wrote to Lord Miuto, “not to attack the fighting with Holkar's brilliant army. The Indian Russians in line, or in their strong posts; but to keep prince was sadly defeated, and Malcolm was enabled their newly-raised infantry and ill-equipped artillery, in to negociate a permanent peace in that quarter. reserve, and limit their employment to the defence of forts

The

year 1818 was chiefly, but not exclusively, and difficult passes, whilst they pushed forward every horseman the country could furnish to distress and harass the passed in negotiations. He had, however, to enemy, whose numbers I understand to be about ten disperse the followers of Badjee Rao. Early in thousand, of which a very small portion are cavalry. 1819, he was compelled to lay siege to the fortress

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