The Statesman.
London, England, 1819-03-24 00:00:00

STATUTE. LAW OF SCOTLAND.

Sir JOHN NEWPORT said, the length
of lime which the preceding discussion had occupied.
lise should be inescosable if he called the attention of
the Hesse long to this subject, although undoubtedly
it was one of considerable importance. The motion
which be rose to submit to their consideration related
to the practice of the Lords of Session and other
Judges, who administered the Laws of Scotland, in
In declaring that parts of Ilse Statute Law of the
land, remaining •nrepealed on the Statate-books,
had fallen into deseetode, and was no longer binding
en the sehjerts. He believed, when this practice was
first alluded to in the Mose, he did, by gesture, ex-
press his dissent, and lie certainly received a pretty
lecture from the Noble Lord opposite, for his igno-
rance. lie thought it necessary that the House
shushd know how the matter stood, so that the power I
belungisig solely to the Le,cislatere might lint be
assumed by the Judicature. The course he meant
to per... was, to propose art Address to his Royal
Highness the Prince Regent, praying that he would
•ppoint Commissioners to enquire into the subject.—
lie adopted that mode, because he thought that,
in the coarse of Ge enquiry, it might be necessary
to apply for information to the Judges of Scotland,
end that could hest he done through the medium of a
Commission. had left at large, and with the Go-
tipernment Of the country, the manner in which the
enquiry should lie conducted. Not only were some
laws said to lase f.,:l.ri into &summit., but parts of
some Statutes were in force, and other parts of the
cause Statutes is desuetude. W.ts it to he toterm.-11
that a great proportion of the Ut.ited Kingdom
should remain in such a state of uncertainty re4ard-
ling the Statute Law, when the sit! ject hod Leen
brought under the consideration of the House? The
Rixht lion. Brrosset then mowed that an humble Ad-
dress be presen'eti to his Royal Highness the Prince
Regent, praying that be would direct an enquiry to
be instituted into the nature, exteot, and limits of
She power possessed by the Lords of Session, the
J tr!4es of the Courts of Judicature, and the Barons
of Exchequer in Scotland, of declaring any part of
the law of the land to be in desuetude, oh•olete, staid
pot biiidiag on subjects; and particularly whence
such authority has arisen, and in whit manner the
Courts of Judicature promulgated their optuions on
this subject to the People of Scoillorl; GNI pat
that a list of such Statutes, end pars of Statutes, as
base fillet, into desuetude, be laid before the House,
for the purpose of being erased from tbe Statute-
book.

The LORD ADVOCATE thought, that if Ibis
practice, which had been so reprobated by the Right
lien. Bart., did really me, there would have been
foiled someone of the natives of Scotland who would
Piave brought it before the notice of the House. Bet
from the time of the Union, till the Right lion. Bart.
bed raised the question, no permitted comprehended
that this leaded to bring the Laws Into disrepute.—
lie apprehended the Right ilen. Bert. had misunder-
stood the subject which he hod undertaken to bring
forward. As to the Court of Eschequer iii Scotland,
it was as English Court, and never exercised any
power different from that of the English Court of ,
Escbequer. And neither the Court of Session nor
Atte Courts of lancets', had ever assumed the power
of deckling that • Statute wes no longer bindinz
an the People of Scotland. They did not decls,e
'what statute was law, and what was not law ; but they
decided on cases before them, on those fundamental
principles which were coeval with the ties them-
seise', and which were to be found in their Code of
Civil laws, and in the Civil I.lws of every nation
in Europe. Tile Right Hon. Baronet hail called the
power lied in this camp by the Courts, en as-
sumed poser, which implied that it was stserch.eil
against the law of the lend. Ti show that thia was
not the case, he should telt« the isheity of reaing
an extract from a work of tae biabeit *lnborn'', on
tho i.ow of Scotland. [The I...mined Lord then real
an wettest from Erskine's Institutfrc of the
Scotland, in which it was said, that posterior
custom may prevail astir prior Statute."] NOM,
here the principle was laid duets clearly, that a Statute
tog be repealed by long mud constant consuetude.
Bet this principle did not rest on the authority of in-
stitutional writers, for it was recognised in the:

great and fonclament•l foonda.ion of Seoreb
she coins of Rights. When in it they stated slut
James 11. had forfeited hie right to the Crown, one
of the reasons assigned was, that he had used ohs...
lete la ws. .1 heir great men, who knew what the
liberties of the country were, as well as the 'tight
honourable Baronet, declared that the practice of
raising •p obsolete liars was a pound far deposing a
:Monarch. And yet we were now told that the lose.
t ice of rejecting obsolete le as might to be eompl.ined
of by the People of Scotland—not Cost it le.oly was
complained of. fur they had tosser raised their
•oieet against it. Ile spoke as one totally on.
learned in the law of Eng:and, but he believed that
ell the Statutes before the time of (~chard 11. might
be gut the better of by cllTl.Jetude. If the Cum.
leissioners appointed on the prmeot motion wr,e
be Judges, they would hate expresaly that power
icb the Right Ilowourahle (limpet dtweeetrd, for
Commissioners world iu last have the power of
!raining what laws should be considered obsolete.
thougbt, thtlefore, that the sppoiutatent of such

a Commission would be hi,,hly improper. If the Ho.
nourable Ltaronet would read the Cr-de, he would
flod that'inarty of the laws were net 'Hateable to the
present circumstances of the country. It was impoth
tibia not to rec,itlect that many of the old &litotes
were directed against lieiglishinen. There was one
Statute against tie Wiwi/ istiort of 111411111111 (a lough).
which he thought the Right Honourable Heron,t
would hate no ohjection tr. see faith'{ into deassetedm
ay that S•state every Scotchn.aii was liable in pales
and p•nslttes for britoting iti,iitneti oser.—(A lough.)
—T., Learned Lord c0n0nd,...1 by flpreesing hit de-
termination so oppoif the rei,lion.
hlr. HUN' E could not agree with the Learned
Lord, because no person fro::. Scotland bad brneglit
forward this subject in the House, there mere there.
fare no complaints in that country. Such was the
present uncertainty respecting the laws of Scotland.
that no man in the country, going into • Coati of 1
I.lOllll'P, could know by Whit kw his cause was to he
decided. It appearo,l by the rrgatar documents he.,
fore the 11-ese, 111.1 isy Iluchanun's Repeals of De-
-1 risbtruc, that one of li.e Lords of Session had slid,
that he considered Acts of Sederunt (Acts merle by
the Lords of Session) am paramount to Arts of Par.
hornets t---Lilear, hear! ! —The Hon. (;•ntleman
I then referred to a particular instance of abuse arisine
from th'spractlce, in the c.a. of lily. He bad teed
all the Acts of Stroland.—(4 lough.)—lle did not
are what should Parity • laugh on this occasion, since
the Acta of the Scotch Parliament were comprehend.
ed in three 12ma. volumes. The Judge. appeared to
him to he the itiftscier• of the Claim of Rights.

The LOUD ADVOCATE implanted. The Learn.
ed Lord alluded to, the Lord President lip., bad
not used the expressions charged upon him respecting
Acts of *iederuitt.

Mr. BOSW ELL said, that since he happened to
hare mm.64El part of the law in his pocket, be should
read a passage, which proved that contrary custom
was considered as abrogating the laws of Parliament.
nut, while such a p•actice continued, how could any
nisei say what was, t.r what was not, an Act of Par.
Himont, unless he could afford to has. the question
argued before the Co art of Session! No men could
lists a doubt in repeating many old Acts. The task
was arduous, but not impossible. The law might to
he explicit, and the Judges ought to be relieved from
the difficult dor of pr log laws obsolete.
Mr. VALENTINE BLAKE made a few ob.
serrations.

Lord BINNING contended that his Learned
Friend (Mr. Boswell) bad misunderstood the motion.
Th. ,emaikg of the lion. Gentleman opposite (Mr.
Home) had as little rotation to the lasts of Scotland
as to thy judicial system of India. If Lord President
Hope had oiled sech language, he ought not to sit an
hour on the Bauch. Laws were not declared to have
gun.. into dasneiodia by Acts of Serierunt.
Mr. BOSWELL and Mr. RUNE explabsed.
Lord A.IIAMILTON sopported the motion. Ile
ronceired that the state of the law needed the en.
quiry. It was to him the same whether • Judge
made a law which was blotting, or declared that void
which ought to he binding. The principle, in both
cases, was ball, sod 'herald be pet an end to.
r. FORBES said a few words, in sepport of the
mot (we bettor.).
Mr. 6E':NEDYe.weeived, that whatever might
be the resolt of the proposed enquiry, the motion
ought to he agreed to.
Sir JO!IN NIiWPOILT replied.
sue I r owe then divided:—
F'•
r Ote. ...t, ib it, $3 I Majwit,lo.
Mr. bite:: brooght up the Iteport of the
Committee of Supply, which was fell, and agreed to.