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.THE

SCOTTISH REVIEW.

JANUARY, 1887.

ART. I.-ON THE JURISDICTION OF THE ENGLISH

cu RTS OVER SCOTSMEN.

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OTH in past and present times many varying views have

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 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

cause

or

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 cognosce or alter a 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 public 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

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.

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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 Rules 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

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