CXXXI. the Court has gone great lengths to make provision for such CHAP. unfortunate persons. When a young woman appearing to be modest submits to improper solicitation, she is much to blame, but if the man be single, she knows the crime is not so aggravating as adultery; she may be inclined to suppose that he will be induced to marry her; there may be such a promise which cannot be legally proved; where both parties are single, there is room for presuming such a promise; the subsequent marriage takes off from the enormity of the offence, and in most countries of Europe even legitimates the issue. At all events, under these circumstances, people are aware that they are doing that which is not of such bad consequence in families. Whereas when a man takes and keeps a mistress under the nose of his wife, who thereupon leaves him, that is such a crime as stares every one in the face. The unhappy plaintiff knew too well the situation of her seducer, and if the real consideration for the bond had been stated on the face of it, it would have been void at law. In Lady Annandale v. Harris, Eq. Cases Abridged 87., the commerce was wholly after the death of the first wife, and before the second marriage. This Court ought not to sanction what would be of bad example in the case of married persons, and encourage people to enter into agreements of this kind. Had she not known that he was married, as if the wife had been at a distance, or any imposition had been practised upon her, she might be entitled to relief. But she entered into the family, the husband and wife living together, and she caused a separation between them. The Court must endeavour to preserve virtue in families. be dismissed, but without costs."* Let the bill In the great case of the Earl of Derby v. Duke of Athol, he decided that the laws of England do not extend to the Isle of Man. Lord Chancellor. "This case concerns a very noble and ancient family, and perhaps the most honourable inheritance any subject of this kingdom can enjoy. Many things are admitted on both sides: that Man is not part of the realm of England; parcel only of the King's Priest v. Parrot, 2 Ves. Sen. 160. CHAP. CXXXI. Lord wicke's de- the effect for treason on Scotch entailed estates. crown of England; a distinct dominion now under the King's grants, and so for a long time past granted; held as a feudatory dominion by Liege Homage of the Kings of England. I am of opinion that the laws of England as such do not extend to it; neither our common law, nor statute law, unless it be expressly named or clearly included in some general legislative enactment. Though the Isle of Man be granted under the Great Seal of England, English law does not necessarily prevail in it. The Great Seal of England operates in all territories subject to the crown of England whatever their laws may be. The King can grant, under the Great Seal of England, lands in Ireland, in the plantations, and in Guernsey and Jersey, because they are all parts of his crown." He then enters at great length into the history of the Isle of Man, showing in a masterly manner how it was to be governed as a separate dominion, subject to the prerogative of the King and the supreme power of parlia There are no regular reports of the decisions in the House of Lords on appeals from the Court of Session till the time of Lord Chancellor Eldon. I am enabled, however, to give a statement of the most important case which came of attainder before Lord Hardwicke from Scotland, that of "Gordon of Park," respecting the effect of attainder for treason on the descent of entailed estates. Sir James Gordon had entailed the Barony of Park, with prohibitory, irritant, and resolutive clauses, on his eldest son William, and his heirs male; whom failing, on his second son James, and his heirs male, &c. After the death of the entailer, his eldest son, Sir William Gordon, engaged in the rebellion of 1745, and escaped to France, but was attainted. The question then arose as to who was entitled to his estate, the Crown, or his younger brother Captain James Gordon, who had remained loyal to King George? An act of the Scotch Parliament, passed in 1690 †, had provided that attainder for treason should not affect entailed estates; but the United Parliament had introduced the English law of treason into Scotland, and CXXXI. enacted that "all persons convicted or attainted of high CHAP. treason in Scotland should be subject and liable to the same corruption of blood, pains, penalties, and forfeitures, as persons convicted or attainted of high treason in England.” * The Scotch Judges unanimously held that Sir William Gordon having forfeited the estate, it should immediately, as if he had died without issue male, descend to his brother James. The Lord Advocate having appealed against this decision, Lord Hardwicke called in the assistance of the English Judges, to whom he submitted certain questions, moulding the terms of the Scottish tenures as nearly as he could to those of England. He then, in accordance with their opinion, advised a reversal, saying, "I am sorry to be obliged to differ from the unanimous decree of the Supreme Court in Scotland, so much entitled to our respect. But the learned senators of the College of Justice are not very familiar with our law of treason, which has been introduced into their country, and they may unconsciously be inclined to adhere to the law which they had to administer before the Union. I do not see how the attainder of the heir of tailzie in possession can be considered as equivalent to his death without issue. He is not a mere tenant for life; he is the fiar' the fee is in him, and our doctrine of remainders and reversions does not strictly apply; so that, on a rigid construction of the 7 Anne, c. 21., on his attainder, there is room for contending that there ought to be an absolute forfeiture to the crown of the entailed lands, to the entire extinction of the rights of all substitutes in the entail. But the milder interpretation of the Act will be to hold that the heir of tailzie has in him, and forfeits by his attainder, the same interest as tenant in tail in England — so that upon his attainder the Crown takes the lands during his life-time and while there exists issue who would take by descent through him, leaving other substitutes in the entail unaffected. I would, therefore, advise your Lordships, reversing the interlocutor appealed against, to declare that the Barony of Park is forfeited to the Crown during the life of Sir William ⚫ 7 Anne, c. 21. - CHAP. CXXXI. Censure upon as re gards law reform. Commis sion to in quire into Gordon, and during the existence of issue male who through him would be inheritable thereto - but that upon his death and the extinction of such issue, the remainder in favour of the respondent Captain James Gordon will take effect.” * But I am sadly afraid that however interesting such matters are to the jurisconsult, they are very tiresome to the bulk of my readers, male and female; and I hasten to survey Lord Hardwicke in another sphere. It is mortifying to consider, that although he deserves such high commendation for his upright and enlightened administration of justice, he cannot be praised for any attempt to amend our institutions by legislation. During the twenty years of his sway the act requiring legal proceedings to be carried on in the English language, passed by Lord Chancellor King, still remained the most recent improvement, and the principle was acted upon which was soon after brought forward by Blackstone in his "Commentaries," that our whole juridical system had reached absolute perfection. The only change introduced was a great addition to the severity of the penal code. Many felonies were now rendered capital, which before were only liable to be punished by transportation, and many frauds which at Common Law were simple misdemeanours, such as forgery of deeds and negotiable instruments, being made capital felonies, in practice were always punished with death- although this bloody code did not reach its full measure of atrocity till towards the close of the reign of George III., when it was defended and eulogised by Lord Eldon. In pursuance of an address of the House of Commons to the Crown in the year 1732, a commission had been ap *Morr. Dec. 1728.; Kames's Elucidations, 371.; Sandford on Entails, 177. Lord Kames highly disapproved of this decision, saying, "a remainder with respect to forfeiture is introduced into our law hitherto unknown in Scotland;" and Lord Hardwicke had a sharp correspondence with him upon the subject. But I know not that a better rule could have been laid down. A curious question subsequently arose as to the application of it. Sir William Gordon, after his attainder, married, and had two sons born abroad. On his death, Captain James again claimed the estate, on the ground that as these children were aliens, and could not inherit, the substitution in his favour had come into effect. The Court of Session decided against him; but he succeeded on an appeal to the House of Lords; and, in the life-time of his nephews, became " Laird of Park." СНАР. CXXXI. courts of justice after ten years makes pointed to inquire into all fees in all the superior Courts 66 -To make twixt words and lines large gaps Wide as meridians in maps, To squander paper and spare ink, Or cheat men of their words, some think." A great part of the expence of the suitors," says the timorous report, "arises from the copies of the proceedings, the bills, answers, interrogatories, depositions, orders, and decrees, being often very long, and the copies of them necessary to be taken by the complainant or defendant, and sometimes by both, having but six words to a line and fifteen lines in a sheet, the expence of taking out such copies amounts to a very great sum of money. How this great expence to the suitor may be lessened, whether by reducing the length of such proceedings, by leaving out the immaterial and unnecessary parts of them, or by inserting more words in a line or more lines in a sheet, for which there is more than sufficient room in every sheet, or by reducing the fee usually taken for such copies, or by what other ways or means, the Commissioners humbly submit to the consideration of those who may be better able to judge, and have authority to provide suitable expedients and remedies, and to establish proper regulations whereby justice may be administered to your Majesty's subjects with as much despatch and as little expence as conveniently may be.”* But the prevailing abuses withstood all the long labours of the Commissioners; -" Non anni domuere decem;"-no act of parliament was passed, no orders were made to correct them. The length of the proceedings might have been re * This Report, bearing date 8th November, 1740, is signed by Lord Hardwicke himself, who had been appointed a commissioner when at the bar. a report. |