BOTH in past and present times many varying views have been taken of the Treaty of Union; some agree with that conceited and sententious individual Andrew Fairservice, who attributed to the ‘sad and sorrowful Union’ every symptom of depravity or degeneracy which he remarked among his countrymen, ‘more especially the inflammation of reckonings and the diminished size of pint-stoups;’ others again prefer the opinion of that more sagacious personage, Bailie Nicol Jarvie, who foresaw that the incorporating Union of Scotland with England would open wide the fields for Scottish enterprise and energy all the world over, and would lead to the commercial greatness of his own beloved city of St. Mungo. But whatever view be taken on the subject generally, no one can refuse to acknowledge that the persons who negotiated the Union on behalf of Scotland took every means in their power to secure the permanence and stability of the two great national institutions – the Scottish Church and the Scottish system of Law and Judicature. As is well known, anxious provision is made regarding these matters in the Treaty of Union, Article 9 of which not only provides for the maintenance and preservation of the Courts of Scotland with the full authority which they have always claimed and exercised, but expressly enacts that ‘no cause in Scotland shall be cognoscible by the Courts of Chancery, Queen’s Bench, Common Pleas, or any other Courts in Westminster Hall,’ and that ‘the said Courts, or any others of the like nature. after the Union shall not have any power to cognose or alter a cause or sentence of the Judicatories within Scotland, or stop the execution of the same.’ It was indeed both right and necessary that these institutions should be thus protected, connected so closely with the constitution of the State as they then were. Scottish education, commerce and agriculture have been able to look after themselves, and would have done so whatever provisions were made in the Treaty of Union; but the judicial system of a country, unless it had been secured by solemn contract, on entering into union with a larger and more powerful State, would inevitably have suffered grievous damage. The provisions thus made served till within recent years to secure Scotsmen against being taken before the English courts, and preserved to them the benefits of their own laws in all ordinary cases. It is true, indeed, that the Court of Chancery every now and again exercised its jurisdiction as opportunity afforded over Scottish persons and Scottish estates. It did this just as it might have done, and in point of fact has done, with regard to other and entirely foreign countries. But the opportunities for the exercise of its jurisdiction were exceedingly rare till the modern facilities for travelling, and for intercourse between the two countries occasionally brought about circumstances which enabled the Court of Chancery to enforce its assumed jurisdiction over Scotsmen by the threat of the legal compulsitors of imprisonment of the person or the attachment of funds.
We shall revert to the topic of Chancery jurisdiction, hereafter, and in the meantime will confine ourselves to the history and present position of the assumed jurisdiction of the English Courts over Scotsmen in the province of common law. This province embraces almost all the ordinary business affairs of life, all actions arising out of contracts of whatever kind, buying and selling, chartering ships, becoming parties to bills or other mercantile documents, and in short almost every transaction by which one man can become debtor to another. The Chancery jurisdiction, again, embraces such matters as the administration of estates, the guardianship of pupils and minors, or as they are termed in English law ‘infants,’ the interpretation of trusts and wills, the administration of the laws relating to pubic companies, patents and other matters that from time to time have been relegated to the Chancery Courts either by statute or by custom.
To return to Common Law. It may well be asked how has it happened that the encroachments of the English Courts on those of Scotland was reserved to the present day, when national sentiment seems to be so strong and pronounced; and how it is that the Courts of Scotland have been unable to protect their own countrymen against these encroachments? To understand this we must go back to the passing of what is known as the Judgments Extension Act of 1868, in itself a useful and valuable measure if it had been limited in its operation by sufficient safeguards. It was, in short, a measure for making the judgments of the Courts of England, Scotland, and Ireland, available all over the United Kingdom without the necessity of bringing new actions. Formerly, if one Scotsman got a judgment against another, and the defender went to live in England, there required to be a new action raised in England founding upon the Scottish judgment; and so in the case of England and Ireland; but the Judgments Extension Act provided that by registering any judgment of the Supreme Court of any one of the three kingdoms, for debts, damages, or costs in the Courts of the country where it was to be enforced, it received the same effect as a judgment of the Court of that country. The advantages of this are obvious, and that the measure was a right one, looking to the close relations of the three countries there can be no doubt. At the time it was passed, however, neither the English nor the Irish Courts possessed the anomalous jurisdiction over Scotsmen which, as we shall see, was afterwards conferred on them by the rules enacted under authority of the Judicature Acts. At that time the only jurisdiction besides that claimed by Chancery which might sometimes be used oppressively was the jurisdiction founded on arrestments possessed by the Scottish Courts over Englishmen and other persons not resident in Scotland. But very properly a clause was inserted in the Judgments Extension Act, (we believe on the suggestion of some of the Scottish Chambers of Commerce), providing that a judgment pronounced in absence in an action proceeding on an arrestment to found jurisdiction in Scotland should not have the benefits of the Act. This of course necessitated the enforcing of such a decree in the Courts of England or Ireland as the case might be; and these Courts thus had in their power to refuse to enforce it. But it is, after all, not surprising that no general clause was inserted in the Judgments Extension Act to limit its operation to judgments pronounced in virtue of the then existing jurisdictions of the various Courts.
The original common law rule in England was that the Courts would not permit the service of a summons on any one who was not resident in or could not be found within the territorial jurisdiction of the Court This rule, however, was found to lead to inconvenience in many cases, as for instance where persons had entered into contracts in England and undertaken to fulfil them there, and then had gone, perhaps temporarily, abroad so as to avoid being served with a summons, till it should suit their convenience to return. Accordingly in 1852 a Bill was introduced which afterwards passed into the Common Law Procedure Act of 1852, and it contained a clause permitting service out of the jurisdiction. Thanks to the care and vigilance of the present Lord Justice Clerk, Lord Moncreiff, who was then in Parliament, the question was raised as to the effect of this upon Scotland and Ireland, and in the course of the passage of the Bill through Parliament the clause was amended to the effect of exempting both those countries from its operation. In 1854 another attempt was made to draw Scotsmen within the jurisdiction of the English Courts by the provisions of an Act of Parliament, but it was again defeated. The successful resistance of these attempts to extend the jurisdiction of English Courts over Scotsmen was evidently still in the recollection of the framers of the Supreme Court of Judicature Act passed in 1873, for no attempt of the kind was made during the passage through Parliament of that statute. But in the early part of the session of 1875 a Bill was introduced to repeal the clause of the Act of 1852 which exempted Scotland from the operation of that Act. This was detected just in time after the Bill had passed through committee; but the Convention of Scottish Royal Burghs having called the attention of the Lord Advocate for Scotland and the Solicitor-General for Ireland to the Bill, it was thrown out. But strange to relate the legislative settlement of the question which had taken place in 1852 and had virtually been ratified in 1854, 1873, and 1875, was overset without Parliamentary discussion in the last of these years. This was accomplished by embodying a provision sanctioning service of writs in Scotland and elsewhere abroad without exception in one of the ‘Rule of Court’ contained in the schedule annexed to the Judicature Act of 1875. Scottish Members of Parliament naturally supposed that they had no concern with the private rules of the English Courts, and that nothing therein contained would be likely to affect them or their constituents. The rule accordingly entirely escaped notice, and being in the schedule of an Act of Parliament had virtually the force of law, though owing to its position it passed without observation through Parliament. Thus it was that the jurisdiction of the English Courts of common law was extended over Scotsmen without the voice of their representatives being heard in Parliament on the question. Here the mischievous effect of the Judgments Extension Act, 1868, came in; for, by giving to judgments of the English Courts the force of judgments of the Supreme Courts of Scotland, that Act precluded the Scottish Courts from reviewing or suspending these judgments, and thus deprived Scotsmen of the protection of their own Courts of Law. It will shortly be seen how completely the provisions of the Treaty of Union were evaded by the combined operation of the legislation of 1868 and 1875.
It is unnecessary to quote here the rule which effected the change, but the purport of it is, that while it does not expressly give the English courts jurisdiction over Scotland, it authorises service out of the jurisdiction (in Scotland and elsewhere) to be made in almost every conceivable case which can arise between an Englishman on the one side and any person else on the other, so that it practically enabled the English Courts to subject Scotsmen to their jurisdiction in all ordinary actions, and if the Scotsman did not appear judgment was pronounced against him by default, which, after being registered in terms of the Judgments Extension Act could be enforced against him by poinding and imprisonment, as if it had been a decree pronounced in the Court of Session.
The effect of the new rule soon began to be felt, and caused great dissatisfaction both in Scotland and Ireland, and in the beginning of May, 1876, a large and influential deputation from Scotland and another from Ireland, waited upon the Home Secretary and upon Lord Chancellor Cairns. The Lord Chancellor was compelled to admit that there had been an abuse of the power to serve summonses out of the jurisdiction, and promised to make an alteration on the rule which he thought would be sufficient to obviate the grievances complained of for the future. He accordingly got a new rule enacted which provided that any English judge in exercising his discretion as to granting leave to serve writs out of the jurisdiction should have regard to the amount or value of the property in dispute, the existence at the place of residence of the defendant, if resident in Scotland or Ireland, of a local court of limited jurisdiction competent to deal with the question and to the comparative cost and convenience of proceeding in England or in the place of the defendant’s residence, and requiring all particulars necessary to enable the judge to exercise his discretion to be set forth in affidavits. This amendment turned out to be of no use in mitigating the evil. In the first place the English judges, as they themselves avowed, always exercised their discretion from the point of view of the English plaintiff and not of the Scottish defendant; and as to the affidavits which were relied on as likely to secure a just exercise of the discretion, it is no exaggeration to say that they were drawn up and sworn to quite regardless of truth. They seemed to have been framed by English solicitors simply with the view of obtaining the service they wished, and being regarded as mere matter of form, were sworn to as true, although the statements in almost every one of them that came to be considered by the courts turned out to be absolutely false.
In case this should be thought to be an exaggeration, it may be stated that in almost every one of these affidavits it was sworn that there was no competent court of jurisdiction near the defendant’s residence, and this was said in cases which might have been tried in the ordinary Sheriff Court or the Court of Session; and the affidavits invariably wound up with the assertion that the case could be more conveniently tried in London than anywhere else, adding occasionally the most preposterous reasons, as, for instance, that it involved questions of mercantile and maritime law, as if, forsooth, there were no courts in Scotland capable of dealing with such questions. In this connection we may refer to the remarks of two judges – one a Scotch judge, Lord Young – who in the case of Comber v. Maclean remarked that some of the statements in the affidavits were wilfully and deliberately false, and to the remarks of the late Lord Justice Lush in the case of Fowler v. Barstow who pointed out that the affidavits of the plaintiff Fowler only required a mens rea to be proved to subject him to an indictment for perjury. In both these cases, which were very gross ones, the Scottish defendant managed to upset the order for service granted by the English courts, but only after a long and expensive litigation in London which went no further than settling the question as to where the case should be tried, and in both of which of course the injured Scotsman had a heavy account of extra judicial expenses to pay out of his own pocket to his solicitor in London.
It may be understood that with practices of this kind. Lord Cairns’s amended rule proved absolutely valueless, and the result was that so long as the rules of 1875 and 1876 were in operation, Scotsmen were constantly subjected to the very greatest hardship and inconvenience by being forced to litigate their causes before the English courts. Whatever was the cause of action, the English plaintiff seemed to be always able to obtain service of the summons on a Scottish defendant. In the Parliamentary return procured by Mr. Dick Peddie, which we shall afterwards refer to, it appears that rent, freight, demurrage, board and tuition, wages, carriage of goods, fees of architects, surveyors and solicitors, work done and services rendered of various kinds, commissions or premiums, money lent, goods sold, money due on guarantees and bills of ex- change, were among the varieties of alleged debts for recovery of which the English Courts asserted their jurisdiction over Scotsmen.
One or two instances may show how the rules worked in practice. In one case a grain merchant in Dumfries purchased from a miller in Liverpool a quantity of meal at the price of £28. The purchase was effected by letters passing between the parties. When the meal came to Scotland it turned out to be very bad, and the grain merchant refused to have it. Forthwith the Liverpool miller raised an action against the grain merchant in the High Court of Justice in England for the £27 and six guineas of expenses. The Dumfries grain merchant objected to this, and tried to get the order for ser- vice discharged, and a contest of affidavits on each side was then entered into, the principal question discussed being the comparative cost of trying the case in the Debts Recovery Court at Dumfries, where it could have been settled for a few shillings, or in the High Court of Justice in England. The ultimate result was that the case was sent for trial at the County Court at Liverpool. But by this time our Dumfries friend had sufficient experience of litigation in English Courts, and in disgust at the whole business gave up what he believed was a just defence, agreed to keep the worthless meal to feed his pigs with, and paid the £28 and expenses. These expenses, after a liberal abatement by his own agents, amounted to £50; and this sum, be it remarked, was incurred in discussing though not settling the question, whether a claim could be more cheaply tried in England or in Scotland.
So much for leaving the question of jurisdiction to the discretion of the English courts. Another case in the grain trade which arose about the same time, furnishes an instructive example of the further progress of such cases. A firm of grain merchants in Morayshire sold a cargo of grain to a firm of maltsters in Lincolnshire. The grain was delivered and received without objection. The price had been prepaid, but after delivery the maltsters alleged, rightly or wrongly, that the grain was not according to guaranteed quality and raised an action of damages in the High Court of Justice in England. The Morayshire grain merchants found that they must defend themselves in the English Courts, or have a decree in absence pronounced against them and enforced by registration in Scotland under the Judgments Extension Act; and so they appeared. The case was sent for trial to the York assizes – it does not very well appear why, unless it was an indication that Scotland was to be in future administered in matters judicial as a part of the English Northern Circuit. The defendants were informed by their solicitors that the case would very likely not come on for trial at the assize but that they must have counsel and witnesses there in case it should come on. In these circumstances the Morayshire firm thought it was better to compromise than to be at the risk and expense of taking some fifteen witnesses, being the various farmers from whom they had purchased the grain, some hundreds of miles to York and home again without anything being done, and the great part of which expense they must have lost even if they ultimately gained the case. The expense actually incurred by them amounted to over £100. They accordingly compromised the case at a heavy, and as they believed, an unjust loss to themselves. The order for service of the summons in this case was obtained on an affidavit which admitted there was a court at Elgin twelve miles distant from where the defendants resided but suggesting that the case should be tried at York, which was about forty or fifty miles from the plantiffs’ residence, and about four hundred miles from the defendants.
Numerous similar cases occurred in all sorts of trades. The well known firm of McMillan & Sons, Dumbarton, were made to answer in the London courts for some disputes about steamers constructed for the ‘Monarch’ Line, built at Dumbarton, and delivered in the Clyde, because the contract had been signed in London. Similarly a shipbuilding firm at Campbeltown were made to answer in the English Courts though nothing connected with the ship which was built was done in England, except the writing of the letters by the persons who ordered it. But it was held there as in other cases that the contract having been partly entered into in England gave the English Courts the right to try the question under the rules above mentioned. Another very notable case was the case of Minton & Company v. Hawley, where the defendant who resided and carried on business entirely in Edinburgh, was served with a summons in the High Court of Justice for the sum of £33 3s. 5d. said to be due by him to the plaintiffs, the well-known tile manufacturers of Stoke-upon-Trent. This case was brought before no less than four tribunals on the mere preliminary question of where it ought to be tried. The defendant’s cost in defending himself in the English courts, on the question of jurisdiction alone, amounted to over £31, nearly as large as the whole sum in dispute, and of which he recovered only £24. To the extent, therefore, of about £8 of judicial expenses, besides those incurred by his own solicitors, he was out of pocket by the unfair and ultimately unsuccessful attempt to subject him to the jurisdiction of the English Courts.
It would, however, be endless to produce illustrations. One direction in which the hardship was very severely felt was, that while in Scotland sums under £12 could only be sued for in the Small Debt Courts, where the expenses are limited to a few shillings, in England such cases are competent before the High Court of Justice. In one such case an innkeeper in Kelso was sued in the High Court of Justice in London for £8, being the alleged amount of an account for goods ordered by him personally from the plaintiff, who was a merchant in the neighbouring town of Berwick-upon-Tweed. Service out of the jurisdiction was, nevertheless, promptly ordered by the English court, although Kelso is only a few miles from Jedburgh where there is a resident Sheriff, and where the case might very well have been tried in the Small Debt Court. Although the account was grossly overcharged, the defender preferred to pay it and the bill of costs rather than contest the case in London. And in the return we have alluded to, there appeared one case where the sum concluded for was £7 14s. In our own Supreme Courts an action for this amount would be incompetent, but the English creditor coolly summoned his supposed debtor to the High Court of Justice in London to defend himself against this paltry claim and at the same time informed him that if he intended to resist it, he must first of all pay down £2 18s. in name of costs of said proceedings. In such cases the canny Scotsman, however good his defence, would probably pay the sum and costs to be acquitted of the whole affair, rather than be engaged in a London law suit.
It will be seen from these cases that in several respects very great hardship and injustice was inflicted on Scotsmen by being rendered subject to the jurisdiction of the English courts. They were liable to be sued in the Supreme Courts of England at relatively enormous cost, for petty sums for which they could only have been competently sued, according to the law of Scotland in the popular and inexpensive Small Debt and other Sheriff Courts; while even in cases which might have been tried in the Supreme Courts of Scotland, the expense of litigation in England was much heavier. Lastly, by being taken before the English Courts, Scotsmen were subjected to a system of law different in some important respects from their own. For instance, according to Scotch law merchants’ accounts prescribe in three years from the date of the last item in the account, and after that time the existence of the debt can only be established by the writing of the alleged debtor or by his oath. In consequence of this rule of law, it is a common practice in Scotland to preserve discharged accounts or receipts for only three years, and supposing a Scotsman to have paid an account to an English creditor, and got a receipt in due form, but to have lost it after keeping it carefully for more than three years but less than six, he would most likely before an English Court be found liable in a second payment of the account, supposing the receipt to be the only available evidence of payment. Another material difference between the laws of the two countries is with regard to what is known as ‘breaking bulk’ in goods, for in Scotland a purchaser is not entitled to use or keep the whole or a part of a parcel of goods, and then sue for damages, on the ground of alleged defective quality; he must reject them at once, or keep and pay for them in full. But this salutary rule has no place in English law, and while the rules we are speaking of were in force, many Scotch merchants complained that they were sued for damages in the English Courts by English traders, who kept the goods and then put forward claims for alleged defects, with a view to getting a discount from the price. Of course, besides all this there was the great hardship of a double litigation being forced in all these cases upon Scotsmen who wished to call in question the jurisdiction of the English Courts – one litigation on the question of where the case should be tried, and the other on the merits of the case itself.
The evil inflicted by these rules was by no means partial or trifling. From the Parliamentary return we have already referred to, it appears that between 1st March, 1877, and 1st March, 1881, 418 summonses in all, were issued against Scotsmen by the English Courts, and it is almost certain that that does not represent the whole cases, because with regard to two of the divisions of the High Court of Justice the number is merely an approximate or assumed one. The sums sued for in these actions were mostly small, more than three-fifths of the whole number being under £100, and the majority are for such sums as would in Scotland have been most probably recovered in the Debts Recovery Court. It may be imagined from this how widespread was the inconvenience and injustice produced by the system in question.
There was of course a great deal of grumbling all over Scotland at this practice. But the subject was never systematically taken up till the end of 1881. On 19th December, 1881, a meeting of delegates from nearly all the legal faculties and societies throughout Scotland was held in the Parliament House, Edinburgh, on the invitation of a committee which the Faculty of Advocates had appointed for that purpose. A feeling was expressed at that meeting that the legal bodies of Scotland were, so to say, ex officio, the proper persons to look after the laws and privileges of their countrymen so far as these were connected with the administration of justice. Resolutions were unanimously come to, to the effect that the new rules of the English Courts had been productive of great hardship, injustice, and inconvenience to Scotsmen, that in operation they involved a breach of the 19th article of the Act of Union and of the well recognised principles of international law, and that a remedy should at once be sought for the grievance by having an Act of Parliament passed exempting Scotland from the operation of these rules or any similar enactments for the future. They further instructed a deputation to wait on the law officers of the Crown for Scotland, and Lord Rosebery, as Under Secretary of State for the Home Department, and lay the matter before them, and to take such other steps as they should be advised for bringing the matter under the notice of the country and of Parliament; and they appointed an Executive Committee to carry out these instructions. The Executive Committee accordingly set about preparing memorials and collecting cases to illustrate the statements therein made, and transmitted copies of all these to Scottish members of Parliament. They also specially laid the matter before the then Lord Advocate, the Right Hon. J. B. Balfour, who took the question up most heartily, and who, in view of a new edition of the Rules of Court being then under consideration of the Lord Chancellor and a committee of English judges, had various interviews with the Lord Chancellor on the subject, besides submitting the views of Scottish lawyers and the community in Scotland generally regarding the operation of the rules of 1875 and 1876, in a series of very able notes. The Committee, however, did not rest satisfied with this. They drafted a bill which, with some alterations, was ordered by the House of Commons to be printed, on 9th May, 1883. It was backed by the following Scottish members – Mr. George Anderson, then M.P. for Glasgow, Mr. Cochran-Patrick, then M.P. for North Ayrshire, Mr. Buchanan, M.P. for Edinburgh, Mr. James Campbell, M.P. for Glasgow and Aberdeen Universities, Mr. Bolton, M.P. for Stirlingshire, Mr. Arthur Elliot, M.P. for Roxburghshire, and Mr. Armitstead, M.P. for Dundee. This modest bill, which was only twenty-two lines in length, provided for the practical abrogation of the rules complained of, so far as Scotland was concerned. It was warmly supported by almost all the Scottish members, with the result that the Government declared themselves in favour of a second reading of the bill. A hope was at the same time expressed that the new rules about to be published by the Lord Chancellor would obviate the grievances complained of, without the necessity of an Act of Parliament. It was believed at the time, and probably with good reason, that this announcement was of some effect in inducing the Lord Chancellor to alter very considerably the rules for service out of the jurisdiction so far as Scotland was concerned. At all events, these rules as published in July, 1883, were so framed that it would not be easy to take exception to any of them so far as the Common Law Courts are concerned. There were possible ambiguities here and there, but these have mostly been decided favourably to Scotsmen in cases that have arisen since then; and it may be therefore said that at this moment there is practically no very substantial grievance regarding the service of common law summonses upon Scotsmen.
It may be well to insert here the rules relating to service out of the jurisdiction, as showing the footing on which the matter now rests, and as setting forth the only cases in which the English Courts can order service of summonses upon persons resident in Scotland.
‘1. Service out of the jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the Court or a Judge whenever-
‘(a) The whole subject matter of the action is land situate within the jurisdiction (with or without rents or profits); or
‘(b) Any act, deed, will, contract, obligation, or liability affecting land or hereditaments situate within the jurisdiction is sought to be construed, rectified, set aside, or enforced in the action; or
‘(c) Any relief is sought against any person domiciled or ordinarily resident within the jurisdiction; or
‘(d) The action is for the administration of the personal estate of any deceased person, who at the time of his death was domiciled within the jurisdiction, or for the execution (as to property situate within the jurisdiction) of the trusts of any written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of England; or
‘(e) The action is founded on any breach or alleged breach within the jurisdiction of any contract wherever made, which, according to the terms thereof, ought to be performed within the jurisdiction, unless the defendant is domiciled or ordinarily resident in Scotland or Ireland; or
‘(f) Any injunction is sought as to anything to be done within the jurisdiction, or any nuisance within the jurisdiction is sought to be prevented or removed, whether damages are or are not also sought in respect thereof; or
‘(g) Any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction.
‘2. Where leave is asked from the Court or a Judge to serve a writ, under the last preceding Rule, in Scotland or in Ireland, if it shall appear to the Court or Judge that there may be a concurrent remedy in Scotland or in Ireland (as the case may be) the Court or Judge shall have regard to the comparative cost and convenience of proceeding in England, or in the place of residence of the defendant or person sought to be served, and particularly in cases of small demands to the powers and jurisdiction, under the statutes establishing or regulating them, of the Sheriffs’ Courts, or Small Debts Courts in Scotland, and of the Civil Bill Courts in Ireland, respectively.
‘3. In Probate actions service of a writ of summons or notice of a writ of summons may by leave of the Court or a Judge be allowed out of the jurisdiction.
‘4. Every application for leave to serve such writ or notice on a defendant out of the jurisdiction shall be supported by affidavit, or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether such defendant is a British subject or not, and the grounds upon which the application is made; and no such leave shall be granted unless it shall be made sufficiently to appear to the Court or Judge that the case is a proper one for service out of the jurisdiction under this order.’
As showing the vigilance that requires to be exercised in scanning proposed Acts of Parliament dealing with legal process, in order to see that they do not injuriously affect the rights of Scotsmen, it may be noted that during what may be called the agitation regarding the Common Law Rules, there were no fewer than four bills before Parliament which called for the notice and the interposition of the Committee of Scottish legal bodies already referred to. These were – first, the Inferior Courts Judgments Extension Act. This Act, as introduced into Parliament by Mr. Monk on behalf of the Associated Chambers of Commerce, would have given the Inferior Courts of England the same mischievous power over Scotsmen as was conferred upon the Supreme Courts by the Judgments Extension Act of 1868. The then Lord Advocate, the Right Honourable J. B. Balfour, however, to whose assiduity and firmness in dealing with this and cognate matters his countrymen are deeply indebted, succeeded in introducing a clause into the bill exempting from its application all judgments obtained against persons over whom the Inferior Courts of the United Kingdom had no jurisdiction, according to the Rules of International Law. Second, the English Bankruptcy Bill. This bill, as originally introduced, contained a clause which would have given the English Bankruptcy Court jurisdiction in almost any case where an English creditor chose to sequestrate a Scottish debtor, and if it had passed in that shape, there can be little doubt that enormous numbers of Scottish sequestrations would have been taken to England and administered there. Fortunately upon the Grand Committee, to whom the bill was remitted, there were several Scottish members well acquainted with the subject, among others Mr. Asher, then Solicitor General for Scotland, and Mr. George Anderson, late M.P. for Glasgow. Mr. Asher, as a Scottish lawyer, naturally took a lead in the matter, and succeeded not only in having the obnoxious clause amended, but in introducing other clauses similar to those which had been found beneficial in the Scotch Bankruptcy Statutes, and among others a clause facilitating the transference of sequestrations from England to Scotland, where that might be found to be proper and convenient, just as is provided in the Scottish sequestration statutes with regard to England. Third, the Patent Bills, with regard to which at one time there seemed to be some danger of the jurisdiction of the Scottish Courts being invaded: and fourth, an absurd Act regarding declarators of legitimacy, which was introduced into the House of Lords, but was very soon rejected, owing to the action of Lord Watson and the Lord Chancellor, whose attention he had directed to the matter.
It is now time that we should turn to the conflict that has arisen between the Courts of England and Scotland in connection with the Chancery jurisdiction of the English Courts. The best known cases in connection with this subject are the cases relating to the administration of the estates of the late Sir William Maxwell of Pollok and Keir, and of the late John Orr Ewing of Glasgow; and as regards the custody of a minor, the case of Stuart v. Stuart, which related to the disposal of the person of the present Marquess of Bute while in minority. It must be noticed, however, that the jurisdiction claimed by the Court of Chancery over the estates of deceased Scotsmen, or the persons of Scotsmen in minority is not of recent origin, but has for long been recognised in Chancery practice, not only with regard to the estates and persons of Scotsmen, but with regard to the estates and person of any foreigner. It has further to be noticed that the Chancery judgments in such cases are not enforcible in Scotland under the Judgments Extension Act, and therefore can only be enforced by an appeal to the Scottish Courts, or by the much more direct and powerful method of doing legal diligence by fine or imprisonment against the persons of those interested in an estate, or against such minors as are sought to be subjected to the order of the Court, if these persons can be found within the jurisdiction of the Court of Chancery. It is, however, perfectly certain that this jurisdiction would have existed and would have been enforced, as far as the Court of Chancery itself could do so, even although Scotland and England had remained absolutely separate and distinct kingdoms. The real grievance which Scotsmen have a right to complain of is, that when the Courts in Scotland, following Scots law and the rules of general International law, have decided not to enforce the orders of the Court of Chancery, the litigants who desire to have these orders enforced can appeal to the House of Lords. The result in almost every case has been that the House of Lords has to a greater or less extent upheld the Chancery proceedings. It therefore would seem as if there was a necessity for some Act of Parliament being passed which should distinctly lay down that unless all parties interested were agreed, there should be no administration of the estates of deceased Scotsmen by the English Courts, after confirmation of these estates had been granted in Scotland, and that the Courts of Scotland should have the sole and exclusive jurisdiction in all matters relating to such estates except with regard to such portions thereof as might be situated in England, or unless the deceased had left a will expressing his desire to have the whole or part of his estate administered in England; and further, that the Courts of Scotland should have the sole power of regulating the custody of pupils who are domiciled in Scotland, and whose ordinary place of residence is there. Such an Act is all the more called for because nowadays, owing to the great facilities for travelling which exist, and the constant intercourse that goes on between England and Scotland, the Court of Chancery can enforce the abnormal jurisdiction which it claims in a great number of cases by getting hold of trustees in England and forcing them, by imprisonment or otherwise to obey its orders or by getting hold of the persons of Scottish minors while resident in England for temporary purposes such as education.
It might perhaps be well here to explain what an administration suit is, for, until the Orr Ewing case, the Scottish public were happily ignorant of that sort of action altogether, although they might have read in works of fiction and elsewhere of estates being thrown into Chancery, frequently with the result of never re-appearing again, or re-appearing in a state of bankruptcy, or in the shape of a deficit and a claim of costs. An administration suit, then, simply consists in this, that the Court of Chancery, by its judges, chief clerks, and clerks, undertakes the whole management of an estate, as a rule sells and realizes the whole moveable estate, and invests it in Consols, and manages landed or other estate which cannot be disposed of, under regulations which cause enormous expense and trouble. Thus in the Stirling-Maxwell case, in which the estates of Keir and Pollok were taken under the grandmotherly care of the Chancery Division, the trustees were unable to make the smallest payment in connection with these estates without the express authority of the Court, given by means of the masters or the chief clerks of Chancery. It is the duty of these officials to go over the accounts and vouchers of the estates with the solicitors of the parties, and to certify to the judge what payments if any have in their opinion been rightly made, and what ought not to be allowed. The judge then makes an order in accordance with the clerks’ certificate or hears counsel for and against the allowance if necessary. This procedure is obviously costly and tedious. It involves the employment of English in addition to the Scottish solicitors, and necessitates the services of a solicitor or his clerk whenever an account is to be passed, or any trifling matter to be brought before the chief clerk. All this of course forms a charge on the estate, and the accounts and vouchers required are of the most minute and detailed character. Not a blacksmith’s or joiner’s account on the estates mentioned could be paid without passing through this process. The consequence of course is great inconvenience in the management of estates, and, we need hardly add, very great expense.
It may exemplify the practice of the Court of Chancery to state shortly the facts of the two cases we have alluded to. The late Sir William Stirling Maxwell of Pollok and Keir left a will leaving six executors. By his will he appointed these persons the guardians of his two infant sons, to whom he left nearly all his property, including the estates of Pollok and Keir. The estates were being managed by these executors in the ordinary way, when, owing probably to some trivial disagreement, one of the executors brought a Chancery administration suit, calling himself, as by a fiction of English law he was enabled to do, the next friend of the testator’s sons. The other five executors very properly objected to this procedure, and maintained that the Court of Chancery, at all events, should confine its administration order to such personal estate as was situated in England, and that in no wise had they any business to interfere with Scottish landed estates. This pleading was rejected by the Vice-Chancellor, who gave the ordinary administration judgment, whereupon the five executors appealed, but the Vice-Chancellor’s judgment was affirmed by the Court of Appeal, simply on the ground, as stated by Lord Justice James, that the decree was entirely in accordance with the established practice of the Court. ‘Decrees have been made constantly in this Court,’ he goes on to say, ‘with respect to the assets of an Englishman domiciled abroad, or the assets of a foreigner domiciled abroad, if a person is found here who is accountable for them, or who is within the jurisdiction of the Court. I am not aware that it was ever laid down that there ought to be a limitation of the decree in that respect’ And the result has been that ever since 1879 the estates of Sir William Stirling Maxwell have been administered in Chancery, and that positively an attempt was made in the Scottish Courts to plead that the trustees could not be made answerable there because of the dependence of the administration suit in Chancery. The Scottish Courts, however, very summarily disposed of this plea, and the English Chancery judges seem to have thought it wise to acquiesce in their decision.
In the case of Orr Ewing the Court of Chancery founded their jurisdiction partly on the fact that some trustees were resident in England, and also that part of the assets of the estate – about one eighteenth of the whole – was invested in English funds. The administration action was brought at the instance of a Mr. Wellesley Hope, who happened to be the legatee of a legatee of Mr. Orr Ewing, and who, with the view of compelling, as he thought, more speedy payment of his own legacy, threatened a Chancery suit, and finally raised it. He did so, however, under the guise of a so-called next friend to one of the residuary legatees of Mr. Orr Ewing, who was then a minor, with whom, so far as appears from the case, he had no connection in the world, who had several brothers, and whose father was alive. Notwithstanding this the Chancery Division, against the wish of the trustees whom Mr. Ewing had nominated to manage his estate, and of almost all the persons interested in the estate, made an administration order. The trustees ran the gauntlet of all the English Appeal Courts up to the House of Lords, and had the question decided against them, last of all, by that tribunal, simply on the ground that what had been done was in accordance with Chancery practice, and that the Court of Chancery could enforce its jurisdiction against the trustees who were temporarily or permanently resident in England. It ought perhaps to be mentioned that Justice Manisty, before whom the case first of all came, who had been at the Common Law bar, and who was presumably not tainted with the extraordinary notions prevalent at the Chancery bar, decided the case in favour of the Scottish trustees; but this was the only encouragement they got in the English Courts. Some of the beneficiaries, however, being highly dissatisfied with what had been done, raised an action in the Court of Session asking that Court to declare that under Mr. Orr Ewing’s will the trustees were bound to administer his estate according to the law of Scotland and subject to the jurisdiction of the Scottish Courts, and were not entitled to place any of the title deeds of the estate beyond the jurisdiction of the Scottish Courts. The summons proceeded to ask for an interdict against the trustees removing any of the estate or title deeds beyond the control of the Scottish Courts, or from rendering accounts of the estate to or placing the administration thereof under the control of the Court of Chancery. It further asked that the trustees should be removed, that the estate should be sequestrated and a judicial factor appointed upon it. Lord Fraser, who was the judge in the first instance, substantially granted decree in the terms asked by the beneficiaries, and in a perspicuous and trenchant opinion, he stated his grounds for the judgment he had arrived at. He pointed out that so far as could be discovered no such pretension as that which had been set up by the Court of Chancery in England had ever been asserted by the Courts of any other country, that in particular none of the States of America ever asserted the right to bring into their Courts the estates of a citizen domiciled in another State of the Union, merely because he had dollars invested in the State of the ancillary administration. He further pointed out that the practice of the Court of Chancery was totally opposed to all International law as expounded by the best writers, British, American, and foreign upon that subject; and he arrived at the conclusion ‘that the orders of the Court of Chancery in England are inconsistent with the rules and practice between independent nations, and that therefore the courts of the domicile are bound, in the protection of the interests of the estate within the domicile, to grant interdict against compliance with these orders.’ This judgment was appealed to the First Division of the Court of Session who, after hearing the parties, pronounced an interlocutor virtually affirming Lord Fraser’s, though formally recalling it, and in addition thereto they sequestrated the estate of Mr. Orr Ewing, and appointed Mr. George Auldjo Jamieson, chartered accountant in Edinburgh, to be judicial factor upon it. They further granted interdict against removing the estate or titles beyond the jurisdiction of this Court. After a good deal of procedure the infant plaintiff, as he was called, and his next friend, were allowed to appeal against this judgment The case came up to House of Lords, who, be it observed, had formerly affirmed the decision of the Court of Chancery in the first case. Their Lordships took what may be called a middle course. They reversed the judgment of the Court of Session, in so far as it affirmed the exclusive jurisdiction of the Scottish Courts, but they affirmed the practical part of the interlocutor, inasmuch as they held that the Scottish Courts had full jurisdiction to sequestrate the estate in Scotland, on the ground of the persons of the trustees and the trust property being there and they upheld the appointment of a judicial factor, because in the circumstances a prima facie case of convenience in favour of a judicial administration in Scotland had been made out. Since this judgment there has been a sort of double administration going on in the Chancery Division in England and under the judicial factor in the Court of Session; but the principles on which the House of Lords will proceed in such cases seem for the time to be settled, and the result seems to be that the only escape from a Chancery administration suit, in the case of a Scottish trust, is to set up a rival administration in Scotland, and the only form in which this can be done is by getting the estate sequestrated and put under the administration of a judicial factor – in other words, by ousting from the management, the trustees whom the testator appointed to manage the estate, and to look after the interests of the beneficiaries under his will. It can hardly be doubted that this is exceedingly unsatisfactory, and that a legislative remedy is strongly called for. As we have above indicated, it ought to be sufficient to oust the jurisdiction of the English Courts, that the trustees and executors should have taken out confirmation in Scotland, and found security in the Scotch Courts that they will perform their duties properly. Unless the present assumption by the Court of Chancery of jurisdiction over Scottish estates is put a stop to, there is reason to fear that Scotsmen will soon become unhappily familiar with the expense and delays of Chancery suit. Much of the wealth of Scotsmen is invested in England, so that one ground of the jurisdiction assumed by the Court of Chancery will be present with ever increasing frequency. Again the daily intercourse between the two countries, both social and commercial, renders it more and more frequent for Scotsmen to nominate one or more English friends among their trustees and executors, parties, it may be, to whom they are related by marriage, or as in the Orr-Ewing case, relations of their own who have settled in London. The practice in the Scottish Courts in regard to interference with the arrangements made by deceased persons for the management of their estates after their death, is very different from that of the Court of Chancery, and is much more commendable. The Lord President in the Orr-Ewing case thus states the principles on which it proceeds:-
‘The great principle in the administration of Scottish testamentary trusts is to leave the administration where the testator himself has placed it, unless from fault or accident the trust has become unworkable, and even in that case the court do not undertake the administration, but appoint new trustees or a judicial factor, who will occupy the same position and possess the same powers of extra judicial administration which the trustees named by the testator occupy and possess. After this explanation, it may seem almost superfluous to say that an administration suit of the kind, used and sanctioned in the English Court of Chancery, is altogether unknown to Scottish practice. I trust I do not exceed the true limit of judicial utterance when I add that it is very fortunate for the people of Scotland that it is so.’
Of course it is not Scotsmen and Scotch estates alone that are treated in this manner by the Court of Chancery. In the case of Enohim v. Wylie (10 House of Lords, cases 13), the Court of Chancery, against the advice of Lord Westbury, who had some notion of what International law really was, undertook the administration of a large estate situated almost wholly in Russia; and we recently heard of a case where, at the instance of some enterprising next friend (possibly the solicitor’s clerk, or some equally disinterested person), a large estate in Australia was ordered to be realised and transmitted to the Court of Chancery in London. But the claim that Scotsmen possess to have the English jurisdiction restricted in this matter rests upon the fact of the two countries being under the same government, and upon the inconvenience that may be entailed upon many of Her Majesty’s subjects by the fact that a journey into England, or a short residence there, may be followed by an estate in which they are interested being transferred to the tender mercies of the Court of Chancery, or they themselves being rendered subject to its jurisdiction. In connection with this we may refer to a curious case in which an eminent Edinburgh lawyer found himself placed in rather an awkward position. At a meeting of debenture holders of one of those numerous new American companies, which is commonly reported have cost the people of Edinburgh and the east of Scotland the loss of some millions of money, he made some remarks on one of the promoters of the company, which that gentleman did not consider very flattering. Shortly after this the lawyer in question had occasion to go to America, and took his passage there and back via Liverpool, and by the Cunard Line. On his return from his trip, and while taking his breakfast on board the steamer Servia, in the Mersey, previous to landing, he was surprised by being served with a writ in an action in the High Court of Justice in England, by a process server who had boarded the vessel in the zealous execution of his duty. At the time the summons in the action was issued, the defendant was on the high seas, but yet he was therein described apparently by anticipation as ‘of Liverpool, in the County of Lancaster,’ though his only connection with Liverpool was his using it as the port from and to which he made his voyages. The summons which he was served with was one of damages for slander, and although he appealed to the English Courts to have the order of service set aside, both the Divisional Court and the Court of Appeal rejected his request, and held that he had been properly subjected to the jurisdiction of the English Courts. Now, while undoubtedly it has always been law in the English Courts that a person is properly subjected to their jurisdiction if served with a summons while personally within that jurisdiction, it does seem rather hard that this rule should be enforced with regard to Scotsmen, who have very frequently occasion to be in England, and who can be made answerable before Her Majesty’s judges in their own country without inflicting any great hardship on persons having claims against them. The rule of Scottish law, which requires residence for forty days in Scotland prior to the citation of a person not domiciled there, seems to be a fair rule in the circumstances, and should be applied in each of the three kingdoms to inhabitants of the other kingdoms. The parties in the case just referred to subsequently came to an understanding with each other, and the case has not proceeded; but it is a very fair in-stance of the inconvenience that may arise from there being no restriction in favour of Her Majesty’s subjects of the rules of jurisdiction in vogue in the English Courts.
With regard to the guardianship of minors, there are two very striking decisions by the House of Lords. The first of these is the case of Johnston v. Beattie (10 Clark and Finelly 42). There a Scotsman had appointed guardians to his child, and executors of his will. His widow took the child to England, where it resided till her death. A dispute then arose between the maternal grandfather, who lived in England, and the guardians, who lived in Scotland, as to the custody of the child. There was no property whatever in England belonging to the child, and there was no doubt that the child’s legal domicile was in Scotland. The question then came to be whether the Courts of England would recognise the Scottish guardians or appoint a guardian of their own. Lord Chancellor Cottenham in the Court of Chancery refused to recognise the Scottish guardians, and referred the case to a Master in Chancery to appoint a guardian. The case was appealed to the House of Lords, who by a majority affirmed the Lord Chancellor’s judgment, and absolutely refused to recognise the authority of the Scottish guardians.
Subsequently, in the Marquess of Bute’s case the House of Lords took a precisely opposite course, and compelled the Scottish Courts to recognise the authority of guardians appointed by the Court of Chancery in England, and this they did proprio motu, and without waiting for the decision of the Court of Session on the point. The result was that the Scottish tutor-at-law, Lieutenant Colonel Stuart, was set aside by an interlocutor of the Court of Session pronounced solely in obedience to an order from the House of Lords, and he was ordered to deliver the person of his ward to Major General Charles Stuart, the guardian appointed by the Court of Chancery. It was in that case that the present Lord President of the Court of Session made his well known protest against the remarks of Lord Campbell in the House of Lords, and the suggestion there made that the Scottish Courts had been influenced in their procedure by the case of Johnston v. Beattie, and also protested against the House of Lords judging in a matter which had not previously been decided by the Court of Session. After pointing out that the decision in Johnston v. Beattie involved a violation of the principles of International law recognised in Scotland and all the States on the continent of Europe, he goes on to say:-
‘The Court, therefore, can hardly have sacrificed any of its dignity by following Johnston v. Beattie; indeed, I am quite at a loss to understand how the dignity of this Court can have been truly involved – either compromised or enhanced by its proceedings in this case. We are not in use to seek the promotion of our dignity, except by the simple and unpretending discharge of our duty. We have no opportunities for the display of our magnanimity. We must be content to rest our reputation on a faithful observation of our oath of office, which binds us to administer the law of Scotland, and we strive to do so with the lights we have to the best of our ability. We have also another duty occasionally to perform, which is to carry out the orders of the House of Lords adversely to our own original opinions, and to this duty we address ourselves most cheerfully and with the fullest reliance in the wisdom of that most honourable House. But we are now, I think for the first time, required to execute a judgment of the House of Lords without the possibility of knowing whether, if we had been allowed to consider and decide the case, our judgment would or would not have been in accordance with that of the Court of Appeal.’
The impression left on every reasonable person by a consideration of the cases we have referred to, must, we think, be that the English Courts are very prone to extend their jurisdiction over their neighbours, and that English lawyers, particularly in the Court of Chancery, or, as it is now called, the Chancery Division of the High Court of Justice, have very little appreciation of International law or of the comity due by one nation to another in such questions as the administration of estates and the guardianship of minors. It is, however, not seemly that the courts of two countries so closely connected as England and Scotland should frequently be coming into conflict, for we may be sure that although it is only cases involving large sums of money or the guardianship of some well known person that come before the public, there must be numerous similar cases where hardship is inflicted and suffered but which escape notice in the mass of Chancery business. All this makes it very desirable that there should be a remedy of some kind provided for this state of matters, and that that remedy should not be by way of alterations of the rules of English Courts, which rules may be altered at pleasure of the Lord Chancellor and his Committee of Judges, but by way of an imperial Act of Parliament applicable to all the three kingdoms: such Act, first, prescribing distinctly in what cases the Courts of any one kingdom should have jurisdiction over persons resident in any other; second, forbidding the administration of estates of deceased persons except under the Courts of the country where the deceased person was domiciled unless (a) the testator has otherwise directed, or (b) all parties interested are otherwise agreed; and thirds providing that except with consent of all persons interested or other exceptional cases, minors should be subject only to guardians answerable to the Court of the minor’s own domicile. It would probably also be right that any Act of Parliament to be passed on the subject should contain a clause providing that the other Courts of the Queen should, when necessary, act as ancillary to the Courts of the deceased’s domicile with regard to estates or effects in their jurisdiction, thus carrying out a principle of mutual assistance between the Courts of England, Scotland, and Ireland, which already has been recognised with advantage by the Legislature, in regard to the administration of companies in liquidation and of bankrupt estates.
Nothing has been said about Ireland in this article, but it will be remembered that the Irish made common cause with the Scotch in 1876 in protesting against the rules of the English Courts. In the following year, however, or shortly afterwards, the Irish Courts had similar powers conferred upon them, and apparently believing that this arrangement was for their own benefit they have ceased altogether to give any assistance to Scotsmen in their protest against the encroachments of the English Courts. Not only so, but whenever they get the chance they take full advantage of their newly acquired powers. We recently heard of a case in which an Irish ship had been insured in Glasgow in the usual way by underwriters, the number of whom, if we recollect aright, was about a hundred, and each of whom, of course, was liable only for a comparatively trifling sum. In an ordinary case these underwriters would have all been embraced in one summons, but the Hibernian solicitor evidently thought that this was too good a chance to be lost, and actually issued summonses against every one of the individual underwriters, and under the rules of the Irish Courts obtained service out of the jurisdiction against them all. The case was, we believe compromised, but it is a signal instance of how the power of service out of the jurisdiction may be abused. It may be added that the Irish rules still remain the same as they have always been, and that every now and again summonses are issued from Ireland against Scotsmen just as they were by the English Courts before the publication of the amended rules in 1883. Fortunately the trade between Scotland and Ireland is not very large, and the effect of these rules is not very widely felt; but it forms an additional reason for having one Act of Parliament embracing the whole of the United Kingdom, and laying down equitable rules for all the three countries. In any such Act it would probably be right that the Scotch Courts should give up, with regard to Englishmen and Irishmen, the practice of founding jurisdiction by way of arrestment – a practice which undoubtedly has occasionally given rise to some abuse. It seems absurd that London papers such as the Saturday Review and the Athenæum should be compelled to answer to actions of slander in the Scotch Courts, merely because there may be money due to them by news-agents in Scotland which has been arrested, or because some copies of their papers have been sold here. It is said that the doctrine of jurisdiction founded on arrestment may be carried so far as, that if an Englishman were to leave a box of toothpicks at an inn, jurisdiction might be founded against him by arresting it, and it is alleged that a member of the late Government expressed his entire want of sympathy with the Scotch members, who were trying to have the rules of the English Courts altered, because, as he stated, he had been subjected to an action in the Scotch Courts, owing to having left an umbrella in a hotel at Oban which was arrested to found jurisdiction. It may very well be doubted whether the Scotch Courts would sustain their jurisdiction upon arrestments of subjects of such trivial value, but even where considerable sums are arrested it would seem right with regard to persons resident in England or Ireland, that that ground of jurisdiction should be given up. Of course it would be retained against persons resident in foreign countries, and jurisdiction founded on arrestment would require to be retained by all the three countries, even with regard to subjects of the Queen in matters relating to ships and shipping if for no other reason than this, that maritime proceedings are truly proceedings against the ship, although in Scotland they take the form of a personal action. Subject to these exceptions, however, this ground of jurisdiction should in our opinion be surrendered by the Scotch Courts in the case of Englishmen and Irishmen, and the similar jurisdiction which exists in the city of London would also require to be abrogated as regards Scotsmen and Irishmen.
To sum up the remarks we have made, the present state of the question is as follows:- Scotsmen are practically secure against being summoned before the Common Law Courts in England unless they can be served with a summons while personally in English territory, but this security rests on an unsatisfactory, we had almost said an insecure, foundation because it depends on the rules of the English Courts which have been altered before and may be altered again by a committee of English judges. These rules ought therefore, with regard to Scotsmen and Irishmen to be superseded by an Act of Parliament. The Chancery Courts are still fully vested in the jurisdiction which they have always asserted in disregard of the ordinary principles of International law, and in virtue of their old- established practice they still continue to deal as they think fit with Scotch estates or the persons of Scotch minors whenever they can enforce their decrees by legal diligence, and this they will be able in future to do in an increasing number of cases by reason of the close social, and commercial relations existing between the two countries. Legislation is thus urgently called for to prescribe reasonable limits within which the Chancery Jurisdiction is to be confined in the case of Scotsmen and Irishmen. We have already suggested the direction which such legislation should take.
The powers of the Irish Common Law Courts over Englishmen and Scotsmen ought to be restricted by Act of Parliament as has been done by the amended rules of the English Courts with regard to Scotsmen and Irishmen, and the Irish Chancery Jurisdiction ought to be limited in the same direction as has been suggested in the case of England. The Scottish Courts ought to be deprived in the case of Englishmen and Irishmen of their power to found jurisdiction by the use of arrestments, except in cases connected with ships and shipping.
All these suggested improvements might be readily accomplished by one Act of Parliament, which might be prepared by a Committee or Commission appointed by Parliament, composed of a few judges and practising lawyers, drawn equally from each of the three portions of the United Kingdom. There can be no doubt that such an Act would prove a boon alike to the people and the judicatories of England, Scotland, and Ireland.
It is devoutly to be wished that such an Act will be passed soon if there is any danger of the new-born craze for separate Parliaments having its objects realized; for such legislation as we have suggested will certainly become impossible if there are to be separate Parliaments for England, Scotland, Ireland, and Wales, to say nothing of the Island of Skye, which, being separated by the sea from the adjacent Islands of Great Britain and Ireland, and, having its own native customs and peculiarities, has plainly important claims to a separate Legislature – which, once established, would never consent to the recognition within that sacred isle of anything savouring so much of the hated civilisation of the Saxon, and so repugnant to the noble barbarism of the Gael, as the authority of a Court of Law.
2 thoughts on “Art. I. – ON THE JURISDICTION OF THE ENGLISH COURTS OVER SCOTSMEN., Vol. 9, Jan., 1887, pp.1-31.”