Mr. Smith himself. This is the inconsistency that | lawyers of England; but English and Scotch law we cannot comprehend the ground for maintaining. We do not ask the public to rise as one man, or to petition, or protest, or to do anything bathetic or pathetic, but merely to be amused at the droll laws made by the lawyers for their special behoof, and to continue to pay the costs for such a period as they may please to be amused, and occasionally to see parties ruined. It is absurd, of course, to say that the poor and rich have equal justice; but we are weary with what people call the exposure of absurdities in legislation. We don't want any body to be angry with the abuse of the appellative power, or Mr. Roebuck's Administrative Reform Association to take the slightest notice of the law in these cases. England is more cursed than Scotland with diverse jurisdictions, capable of giving opposing views of the same facts; for in Scotland we have considerable regularity from the Sheriff Substitute to the Sheriff Depute, thence into the Court of Session, and out of that to the House of Peers, where, except by the exercise of unusual ingenuity and wealth, the movements terminate. England, instead of a series of courts, straightforward or upward, has several parallel lines. Litigants may take, or be thrust into, either of these lines, with different results upon the same description of cases. Thus, we have heard that, in the prosecution by depositors of shareholders in the Royal British Bank, the Court of Exchequer issued execution, the Court of Queen's Bench doubted the propriety of that measure, and the Court of Common Pleas deferred the step until the judges heard argument -all at, or nearly, the same date, upon precisely similar cases. The law of England, as interpreted by these three jurisdictions, has three opinions, although that is no gain to the contributors, nor loss to the depositors who got into the Court of Exchequer. The question whether a partner in a bank is liable to a creditor of the bank is plain and simple in equity. The legislature has always upheld the unlimited liability of shareholders in banks and insurance companies, or in any other company where by act or charter a limitation was not provided. The case of the English shareholders in the Tipperary bank forms no exception, even if the legislature had anything to do with the decision, which was given by the Lord Chancellor of Ireland, not upon the responsibility of shareholders, but upon the question whether a certain number of persons had ever become shareholders in the flesh-pot of the Sadleirs. The merits of the litigation are not however canvassed by us, who only ridicule the idea of conflicting courts and conflicting decisions upon the same facts at the same time. The Scotch courts proceed in a definite series of steps to gross absurdity at the pinnacle. An appeal to the peers, from English law courts, is reasonable, because the lay peers interfere rarely indeed with any case, and the law peers do the work. These learned barons should be the best differ widely, and an appeal from the Court of Session in Scotland to the House of Peers, is from those who should know, to those who are not necessarily required to know, the subject on which the appeal is taken. A remedy for this obvious inconsistency has been sought in the elevation of some of the Scotch judges to the peerage. The proposal was clogged with awkward conditions, for these law Peers of the north were neither to deliberate nor to vote in the upper house, but only to decide Scotch law pleas. They might have been smuggled into the House upon the life-peerage principle, but that has been crushed or postponed. Scotch appeals to English peers may work well in practice, but in theory the scheme is ridiculous, without a saving feature, and can only be rendered seemly by bestowing peerages upon a number of Scotch judges, and removing these learned personages from the lower courts. These peerages would in turn become ridiculous, unless they were supported by greater private fortunes than our Scotch lawyers have an opportunity to acquire, for few of them have ample inheritances. The adoption of life-peerages appears, therefore, to be the only means of reconciling these matters with equity and reason; while, if the hereditary legislators feel their privileges endangered by the admission of able men to their benches, whose eldest sons may have to make their way in life, we can only hope for a separation of the judicial from the legislative functions. The Scotch small debt courts only possess a limited jurisdiction. They can try cases not exceeding £8 6s. 8d. in amount; but creditors often limit much larger debts to that sum, in order to obtain the advantage of cheap and rapid deci sions, although the small debt courts have the same sheriffs for judges who, “in another House," occupy the first step in superior actions. In the small debt courts, neither the pursued nor the pursuer can appeal; but in the superior courts both parties have that privilege provided. The practice in the superior sheriff courts, until very recently, involved enormous papers and much writing. Many statements which must have been made recently upon foolscap, are now given in viva voce pleadings. The new arrangements also cut short the interminable replies or rejoinders that were tolerated in times when railways were young, not so long ago. It is now possible to get a case past both sheriffs in a reasonable time. In Scotland the power of small debt courts should be extended, and in large towns their sittings should be more frequent; but the sheriff's of counties containing a large population have arduous work, and a catalogue of their doings in Lanarkshire, which we lately read, was sufficient to deter any man from secking the occupation. For some years past we have observed occasional attempts to assimilate the Scotch to the English law, encouraged in Glasgow and some other towns in Scotland. The Scotch law is bad, costly, ENGLISH AND SCOTTISH LAW. and dilatory in some of its forms; but that is no reason for going farther and faring worse. England can supply Scotland with few improvements in any department of the civil law; and the adoption of English forms would only tend to stay proceedings against those who should be proceeded with. Thus, if we be not mistaken, the law of England requires personal service of a writ before proceedings can be adopted against any man in the superior courts; unless by particular application to the judge-a course attended by fresh expense. Even this step is useless against a gentleman" who is out of the country upon his business, which may, of course, lead him from Archangel to Rio de Janeiro, without a single call being made by him at home for his letters. The English law, except in the City of London, or one or two more places-if there be more, and we do not know of any-has no means of attaching property. A creditor may be acquainted with the possession of property by a debtor, but he has no means of attaching it in England. The debtor claims his own dues and puts them in his purse before the eyes of the provoked creditor, who has no right to provide for his payment, except upon a judgment, and only then by the seizure of the person or property, instead of the arrestment of the money. 113 The extreme procceding against the person is very different in England from the course adopted in Scotland, and much harsher. An incarcerating creditor in Scotland must pay for the support of an imprisoned debtor. He is not required to contribute a farthing for that purpose in England. So far as he is concerned, the debtor may starve. The county will feed him on lower fare than its felons or its pickpockets; but unless the prisoner possess earnings or means from some personal source, he must be contented to live on in illustration of the truth-" Man wants but little here below." We need scarcely add that the laws of both countries could bear improvement in this respect, and that justice requires the adoption of means to incarce rate the fraudulent and protect the unfortunate debtor, with or without the active concurrence of the creditors. A number of persons have constituted themselves a committee for the reform of mercantile law, under the most influential and promising auspices. They wish to assimilate the laws of the three countries, but, as usual in similar cases, they will be tempted to assimilate the laws of Scotland to those of England, rather than all our laws to equity and justice. The mercantile law of Ireland closely resembles the English law at least in all its inconveniences. We recollect that an Irish acceptor to a bill, having been unable to make payment, was prosecuted. The bill was held by a Scotchman, who was the drawer. Being in Ireland, he called upon the attorney who had charge of the proceedings, and in answer to the inquiry how matters prospered, he was shown a bundle of papers. Curiosity induced him to read them, and rather startled at one passage, he said, "Nonsense," answered the attorney, "how should he do that ?" "Oh, here," he says, " and as it seems to me, he swears that he did not make the bill." "True," said the professional adviser, "but that is only a form." Then," responded the pursuer, "I can only say it is a strange form that requires a man first to tell a falsehood, and in doing so, to charge another man with forgery." Judgment was ultimately obtained for the pursuer, with costs. Payment never was obtained, neither of costs nor principal, and the former considerably exceeded the latter. The defence of forms and proceedings of this nature is very difficult, and we want them swept all away. The law of arrestments in Scotland is ludicrously loose. It is obvious injustice. Any man may apply for and obtain arrestments of moneys due to another man, whom he is pleased to call or consider his debtor, before he has issued a summons, or even made an affidavit that his claim is correct. The power exists, but is not often used, except in cases of clear indebtedness, or we should have an injustice so obvious speedily repealed." Why this fellow charges me with forgery." The remedy is an action of damages; but as the wrong will scarcely ever be committed by those who can pay damages, virtually "there is a wrong without a remedy." We do not invite England to copy this mistake; but between the over abundance of attaching power in Scotland and its absence in England a happy medium might be struck. England adopted, two years ago, the old law of Scotland respecting proceedings upon bills of exchange, with slight alterations. Before the date of that Act, a bill did not facilitate the recovery of the debt which it represented. It was indeed an evidence that the debt had been incurred; although numerous forms of defence existed, and some of them necessarily good. It did not in any other respect shorten the period during which the debt might remain unpaid without proceedings. It was of no earthly use during the vacations, and there are several, while one of them is long. That long vacation was the saturnalia of debtors, and if they abstain from acceptances to bills, and keep their involvements over fifty pounds each, they may be happy still. Now, however, bills are recoverable at any period of the year, "upon the shortest notice" that a prudent drawer could desire. The sufferers from reform naturally tremble at its progress. The process of winding up public companies was, if we remember rightly, a reform. The Courts of Chancery and the Rolls have the carriage of proceedings in these cases. They are, we believe, conducted by officials who are anxious to discharge their duties. These duties, have, however, been so cleverly mystified, that until recently the opinion was generally received among solicitors in even considerable practice, that when a company came to be wound up the shareholders could not be individually prosecuted during that H operation, for the debts of the company, and were We presume We have read, while this sheet was nearly ready solvent, without losses by bad debts, fire, or shipwreck to an amazing extent; and only have assets equal to ten per cent. of his debts. However, we believe that the Australian trade has been more of a loss than a gain since the discovery of gold, not to individuals, but to the nation. Our reference to this case-for individual cases cannot be safely discussed in our pages-is merely to say that we have before us a dozen, or perhaps nearly a score, if they would repay the time required to count them, of claims by one person on estates in bankruptcy, under the precious law of England, in which not one penny has ever been paid by way of dividend or anything else. The mercantile and monetary interests, and nearly all interests require greater simplicity in forms, fewer of them, less expense, and more rapidity-more justice and less law. That is the reform needed; and one that may not be easily obtained. A discussion of all the changes essential to the thorough revision of our civil law forms no part of our present design. We argue only for cheap and valid decisions upon a system of uniformity; and, while acknowledging many improvements in recent years, we yet fall back upon the vulgar fact that a man may be charged, condemned, and hung out of all power of appeal in three months, in two, even perhaps in one from the date of his offence; while another man may appeal for years against a decision that involved originally only a few pounds sterling. The civil law is over cautious, and the criminal law is occasionally reckless. Messrs. Redpath and Robson should even now be in the enjoyment of appeals; or many litigants who have obtained judgments are exposed to costly and dangerous ordeals. If Messrs. Strahan, Paul, and Company had been brought into a civil court, on matters relating to the possession of ten acres of muir land, they might have fenced off a judg ment to the present day; but as they were tried in a criminal court, upon a subject that involved their commercial character and existence, they have been for a long period inmates of the hulks. These are facts that cannot be reconciled, and that should be entirely remedied, if the civil law is to be rendered consistent with justice. SIR JOHN MALCOLM. * SECOND NOTICE. India, came into collision with Sir Harford Jones, who was sent there as the representative of the British King. They both claimed that character, and the Persians must have been puzzled to decide between them. Malcolm, as an old acquaintance at the Court of Teheran, was naturally preferred; but Sir Harford was superior in bribes-known as presents. Both gentlemen wrote an account of their mission. Both claimed the honour of representing the British sovereign at the Court of Persia; and of introducing potatoes into the country! It was a ridiculous competition. At that time the Schah wanted aid against Russia. Futteh Ali Shah, the man of that time, was wiser than his successor, who now rules. He was willing to accept either of our ambassadors, who would afford to him military aid; and Malcolm succeeded in procuring for him the services of a few British officers; but at that time the Persian soldiers were not in a good fighting state, and they would not be taught. The interview between Malcolm and the Schah was pleasant, and a triumph over Sir Harford Jones:— It is singular now that Bushire and Karnac have been taken, to read of Sir John Malcolm's anxiety to obtain an island or two, or more, in the Persian Gulf, when he sojourned at Teheran as the ambassador of the Marquis of Wellesley-the Governor-General of India. It seems as if these Anglo-Indian diplomatists pursued a relentless march to the west, never abandoning an idea, but biding their time, like Freedom's battle, handed from sire to son. After the Wellingtonian campaigns in India, Sir John Malcolm was employed long in settling the affairs of the territories that had been annexed. He acquired at a very early date the art and mystery of making settlements in eastern territories. He inspired the natives with a deep and permanent idea of his incorruptibility. They felt themselves in the hands of a just man. He was blamed for lavish arrangements with the deposed native princes; but if he crred, it was upon the generous side. When the government at home quarrelled with the Marquis Wellesley, and that nobleman was to depart for England, he was anxious that Malcolm should accompany him; and it is a very remarkable feature in his history that he declined, among other reasons, from the state of his monetary affairs. He then would have possessed an income of £800 per annum, and yet he had negotiated and settled upon an Indian prince revenue of £60,000 per annum. Sir John Malcolm married the daughter of Colonel Campbell. The name is so common, and furnishes so many officers to the army, that Colonel Campbell, like Mr. Smith, is scarcely a distinctive term. The earlier years of the century, while his old friend Wellington was pushing the French back through one peninsula, were passed by Malcolm in organising agriculture, finance, and politics, in the territories of native princes in another peninsula. He discharged these duties in the most irreproach-glad to see Malcolm. He told him that he always was, and able manner. Upon his third visit to Persia, whilst at Shiraz, he was informed by the minister "That a valuable present of jewels, suited to a lady of rank, would be given to Mrs. Malcolm." He replied, "Tell your master that when I was at Mysore, the minister there would gladly have heaped costly presents upon us, but instead of this, on my persuasion, he made a fine new road that was much wanted, and dedicated it to Mrs. Malcolm. Such are the presents I like." We would have been much obliged now if Sir John Malcolm had succeeded in persuading the Persian Minister to make a fine new road, which is really much wanted from Bushire to Shiraz. A curious dispute occurred at this time, which could not have elevated our diplomatic service in the eyes of the Persians. Sir John Malcolm, upon an embassy from the Governor-General of Malcolm had prepared a set speech; but when the time came for its delivery, he made no great progress with the oration, "Come," said the King, smiling, "you are an old friend, I do not put you on a footing with other men. Compose yourself. I know what you would say," and he commenced a speech of fulsome panegyric. Then breaking into laughter, he said. "Now your speech is made, let me know jesty's favour, be satisfied with the mere reflection of that Gracious beyond example was Futteh Ali. He was really always must be, his prime favourite beyond all Europeans. Then he spoke of the state of India-Europe-of his own country; and then returned to talk of Malcolm himself; "I heard," said he, "that you were going to England; but I have caught you, and you must not expect to escape for at least four years. Your fame in India for settling countries has reached me; and your labour is wanted here." He then asked a multitude of questions concerning the organization of the Indian army. Malcolm spoke not only of its discipline, but of the admirable invalid and pension establishments. " Discipline," said the King, "will always defeat valour; but discipline alone is nothing. It is the whole constitution of the military branch of government which makes superior armies." To this Malcolm assented; and then the King began to speak of Buonaparte, whom he styled the first of heroes, and said, "What does he want ?" "The world," said Malcolm. "Right," said the King, "you are right, Malcolm-but in truth, he is a great soldier." Then he asked many ques tions about the state of Spain; and thence, turning again to personal matters, he inquired about the officers of Malcolm's * Life of Sir John Malcolm. By J, W. Kaye. 2 vols. Smith, Elder, and Co. 116 SIR JOHN AT THE COURT OF PERSIA. suite, and asked particularly about the engineers. "Mr. Jins to But the King and Abbas Merza, the heir-apparent, desired Malcolm to remain in Persia, to aid with his advice, if not with his personal assistance, the operations of the coming campaign against their Russian enemies. Sir Harford Jones pressed this matter warmly upon him, and the two envoys went together on the following day into the royal camp and had a long conference on the subject with the Persian ministers. Malcolm's opinions regarding the best means of prosecuting the campaign were eagerly sought. His advice was eminently judicious. "I strongly recommended them," he wrote to Lord Minto, "not to attack the Russians in line, or in their strong posts; but to keep their newly-raised infantry and ill-equipped artillery in reserve, and limit their employment to the defence of forts and difficult passes, whilst they pushed forward every horseman the country could furnish to distress and harass the enemy, whose numbers I understand to be about ten thousand, of which a very small portion are cavalry. | Malcolm returned from Teheran by way of Bagdad, and that, instead of the route by Shiraz, is the proper course. It is, however, in Turkey, and so our expedition can make no use of the Tigris. When Malcolm was there, the city was in danger from the Arabs, and he stopped with his retinue for some time to afford protection to the resident and his wife. He wrote: We pass our time very pleasantly; we have races almost every morning; games of chess after breakfast; and in the evening swim in the Tigris and play bowls. The troubles, however, grew into civil war. The Pacha of Bagdad is the most independent of the Turkish Satraps, next to the Egyptian. The Sultan sent orders to displace the ruling Pacha. After much fighting the Arabs succeeded in giving effect to their master's orders, and sent the Pacha's head in a box to Bagdad. The people met and elected his successor. At that time, therefore, there was a good deal of independence in the old capital of the Tigris. a very After Malcolm's return to India, he resided for some years at Bombay. The European society of the western capital, had then assumed that refined tone which it has maintained subsequently. The diplomatic soldier's intercourse with such men as Sir James Mackintosh, the lawyer, and Henry Martyn, the missionary, was useful to him in his literary work. Of Henry Martyn he wrote that his knowledge of Arabic is superior to that of He described the any Englishman in India." learned and cheereminent missionary as ful man, but a great enthusiast in his holy calling." For the latter reason Henry Martyn had not been so much at home then in Bombay, as he would have been at a future period, or at the present Mount Stewart Elphinstone, who acquired day. just celebrity as an authority on Indian affairs, was then also a resident of the western presidency. An arrangement was formed among them that Elphinstone was to write a description of Affghanistan, Malcolm of Persia, and Pottinger of Beloochistan and Scinde. To that arrangement the public are indebted for the completeness of Malcolm's work on Persia. Malcolm returned to England in 1811. He The intervening again left for India in 1817. years were exciting from the magnitude of the events, and a considerable part of the second volume is occupied with them, although Sir John Malcolm was not an actor, but a spectator. In 1817 he was engaged in military services against the Pindarees, and fought the battle of the Mehidpoor towards the close of the year. He was not in the chief command of the army, but in the command of the division which had the principal fighting with Holkar's brilliant army. The Indian prince was sadly defeated, and Malcolm was enabled to negociate a permanent peace in that quarter. The year 1818 was chiefly, but not exclusively, passed in negotiations. He had, however, to Early in disperse the followers of Badjee Rao. 1819, he was compelled to lay siege to the fortress |