§ Mr. Boswell, in moving that the report of this bill be brought up, said, he was constrained to admit, that although the statute law of Scotland might be abrogated by contrary custom, this principle could not apply to acts of parliament passed since the union and extending to Scotland. If the present measure were an improper one, he should be the last person to regret that it was checked in its progress; but he was convinced that it would be attended with great benefit.
§ Mr. J. P. Grantadmitted, that the laws of Scotland might fall into desuetude; but he could not go along with the bill. If the hon. gentleman was able to show that doubts could arise on the subject, the legislature would interfere by a declaratory law; but as no man could predicate that doubt was likely to arise, there was no ground for interference. It was certain, that no writer had given it as his opinion, 1202 that an act passed since the Union could fall into desuetude. The doctrine of the statute law of Scotland was, that it might fall into desuetude, because such had been the intention of the legislature; but the doctrine of the law of England was, that there had been no such intention on the part of the legislature, and that therefore it could not be abrogated by contrary usage. He should move, that the report be taken into farther consideration on that day six months.
§ Mr. Tennysonsaid, the objection of the hon. and learned gentleman appeared to be two-fold: first, that no doubts had arisen with respect to the application of desuetude to statutes of the united kingdom, and secondly, that the principle of liability to desuetude in Scotland had attached to the old laws at the period of their enactment, and could not therefore apply to acts passed by the united legislature. With respect to the first head of objection he might observe, that sufficient time had not perhaps elapsed since the union, for laws subsequently made to fall into desuetude, and, therefore no occasion had offered itself to the Scottish courts for the expression of doubts on the subject. But the question was, whether, when in course of time, statutes of the united parliament fell into disuse in Scotland, they would not also lose their validity according to the interpretation of the term desuetude in the Scottish law? The hon. and learned gentleman, it seemed, thought they would not, because the principle of liability to desuetude attached, in his opinion, to the law in its origin. He (Mr. T.) concurred with him in thinking, that if the principle did attach itself to the law at the period of legislation, it could not apply to one made by the united parliament, which certainly did not recognize such a principle. But he doubted whether desuetude did not rather attach to the law in its administration in Scotland, as part of the common law inherent as it were in the soil of that country, until eradicated by the legislature. It would be recollected, that by the articles of union all the laws and customs of Scotland were preserved to her in full integrity; and the courts of session, justiciary, and other courts, were to retain all the powers, jurisdictions and authorities, which they had previously possessed and exercised. As therefore, prior to the Union, they had a power of declaring laws to have fallen into desuetude, so they might still 1203 be considered to retain that power with respect to laws passed since the Union as well as before; especially if, as he always understood, laws relating to Scotland passed after the Union were to affect Scotland, and be administered there precisely as the laws formerly passed by the Scottish parliament. As to the manner in which the courts of Scotland might think proper to act in this matter—if, in fact, desuetude were part of the lex terrœ of Scotland, it could not be competent to them to abrogate it with respect to any particular class of laws, either by abstaining from the practice of determining laws to be in desuetude, and therefore of no validity, or even by the most positive declaration; and to insist that they were competent to this, would be to make a much broader admission respecting the objectionable powers of Scottish courts, than was necessary to support the bill of his honourable friend. But if the hon. gentleman was correct in his opinion, that liability to desuetude in Scotland resulted from a known principle of legislation, formerly recognized in the Scottish parliament, and thus attached itself to the law at the period of its enactment, and not at a period subsequent to legislation, namely, in its administration, then, however extraordinary a legislative principle, which contemplated non-observance, might appear to him, he was constrained to admit that the present bill was unnecessary.
§ Mr. Scarlettthought the measure unnecessary. It was not usual in legislation to provide for the removal of doubts that might possibly arise. He apprehended it-would be an anomaly to say, when the united parliament had passed an act intended to apply to all the kingdom, that it should be binding on this side of the Tweed, and not on the other. The preferable mode of proceeding, would be, to postpone the measure till a doubt should arise on the subject, when a declaratory act might be necessary.
§ The amendment was agreed to. The bill was consequently lost.