§ On the motion of the Lord Advocate of Scotland for the third reading of this bill,
§ Mr. Adam
rose and addressed the house as follows:*—Mr. Speaker; I rise in a very thin house, not at a very early hour, and at a very late period of the session, to discuss a subject of the greatest consequence to the part of the united kingdom to which it relates.—My intention is to discuss, and not to oppose; and my object is to make some parts relating to this most important subject generally known and attended to by means of discussion in this place.—It is highly necessary that many of the regulations, proposed by this bill, should be well understood, and that others should be suggested for consideration. [At this period an interruption took place, owing to some members leaving the house, when Mr. Adam said, with some eagerness]— Sir, I know how little interesting this subject must be to many gentlemen present; I am not, therefore, surprised at their departure; but I should conceive, late even as it is in the session, and exhausted as the house may be with previous business, it will hardly be thought decent to have it said, that a system of civil judicature, relating to the most important interests of Scotland, and affecting no less than two millions and a half of his majesty's subjects, has been discussed and passed in a house not sufficient, according to its cod-* From the original edition, printed for John Murray, Fleet-street, 1808.1063 stitution, to do any act whatever. [Here the Speaker rose and stopt Mr. Adam, saying, that as the hon. member had noticed the state of the house, and hinted that there were not 40 members present, it must be counted. The Speaker accordingly counted the house, and by the return of some of those who were leaving the house, it appeared, on counting, that 43 members were present. Mr. Adam then proceeded.]—Sir, I regret that the slight interruption that I met with should have put me off my guard, and should have given you the trouble to count the house. It was not my intention; and, much as I may regret the thinness of the attendance, I should have had more to regret still, if the house had not been able, from defect of members, to proceed with this business. —The subject of the bill, the effect it will produce, its being the commencement of the improvement of the civil judicature of Scotland (though far short of what ought to be done) are reasons sufficient for this feeling. But I should have regretted it likewise for reasons personal to myself. The learned lord, who has now moved the third reading of the bill, had postponed the second reading of it, for my accommodation, several weeks ago, so that my illness (which was the cause of that short delay), may possibly be the cause of the proceeding being retarded to the present time. If my health had permitted, I would have attended the Committee some days ago, and offered, on that occasion, what occurs to me on the subject; but I was unable for such an attendance, and I doubt how far I shall have strength, even now, to discharge the task which I think it incumbent on me, at this last stage of the proceeding, to perform.—The judicature of Scotland, in all its parts, has been for very many years, the subject of my most deliberate and anxious attention. I have been excited to it by particular causes, which I need not now relate. In the civil branch of it, I have been led by my practice as a lawyer, in the Court of Apellate Jurisdiction, and by my connection with that country, and the sincere interest, which I take in all its concerns, to see and feel the defects of its judicial system. And I should have been extremely concerned, indeed, if this bill had passed the legislature without my having had an opportunity of delivering some opinions on the subject, which are strongly impressed on my mind, and which I flatter myself may prove useful.—A system of judicial juris- 1064 prudence is one of the most interesting subjects that can employ the human mind. It is interesting as deciding upon all the real and personal rights of the community to which it relates, and as turning on principles of jurisprudence which raise it much beyond an ordinary subject of legislative discussion.—The bill under consideration proposes to divide the Court into two Chambers, or Courts. Whatever observations may occur to me respecting the defects of other parts of it, that regulation is alone sufficient to make me think that it should pass into a law. It would be most mischievous indeed to defeat that object, or to do any thing by delay or debate which should frustrate, or even procrastinate, the measure. In other respects, there is much ground for observation; but I can assure the house, that my intention is to make those observations without any spirit of hostile debate. On the contrary, I shall endeavour to avoid all eagerness of argument, and to preserve that calmness, and (if I may use the expression,) that judicial tone of discussion which ought to prevail on this most important and interesting subject of judicial jurisprudence.—One of the chambers into which it is proposed to divide the Court of Session, is to be presided over by the president, consisting of the president, and seven ordinary lords. The other is to be presided over by the justice-clerk, and to consist of the justice-clerk and six ordinary lords.—The division into two courts is important, in-as-much as it removes a great defect in the judicial system of Scotland, by giving a choice of forums. At present, there is but one court, consisting of fifteen judges, so that, though the suitor can select the lord ordinary, before whom he will bring his action, he has no choice of tribunal when the cause goes before the whole court. The effect of-the present system, therefore, is to exclude all competition. Where there is one court, there is no effort arising from a desire to excel, as there is when there are several courts of co-ordinate jurisdiction, taking cognizance of the same causes;—and we cannot disguise, that it is in justice, as in every thing else, that competition begets exertion, and that with exertion duty is more perfectly discharged. In this country (England), the suitor having three courts open in all matters of law and equity, the King's Bench, the Common Pleas, and Law side of the Exchequer, for actions at law,—the Court of Chancery, the Rolls, and the Equity side 1065 of the Exchequer, for suits in equity, there is an ample choice of tribunals, awl a perfect inducement to excel by competition; and suitors, if they have any objection to the modes and habits of one court, may go to another.—i have no doubt, that it would have been much better, if the court of session was likewise to have been divided into three courts.—First, Because there is a certainty, by that division, of settling the law more satisfactorily, the opinion of two bodies, on a doubtful question, leaving the mind less satisfied than that of three; and, because where there is a difference of opinion, on similar questions of law, the third tribunal casts the balance, and fixes the point.—Secondly, Because, by making more divisions, each of the courts would be reduced to a smaller number, which certainly renders the tribunal more perfect.—It. may be observed here, that a court consisting of four is the best number; because, when there is a difference of opinion, and the court is equally divided, the matter may go to the higher tribunal; if it is not equally divided, there must be a majority of three to one, the greatest majority that any number affords, and which is, of course, calculated to give more satisfaction to the suitors, and the public, than any other number that can be pitched upon.—On these topics, however, I do not now mean to enlarge. I only throw them out, not as opposing the present bill, but as suggestions for future improvement. It ought, however, in fairness, to be observed, that the courts or chambers will not be so numerous as they appear.—There will be one or two lords from each court employed in discharging the duty of lords ordinary, during the sitting of the chamber to which they belong, so that the president's court will usually be six—never more than seven; and the justice-clerk's court will be usually five— never more than six;—so that we have every reason to hope, that, by this regulation of the bill, the tribunal for the discussion of civil rights in Scotland, thus reduced and constituted, will lose the character which is alledged now to belong to it, of being too numerous, and as having more resemblance to a popular assembly, than is fitting for a court of justice.—Sir, the bill now under consideration, does not, ill its preamble, assign the sound principles of judicial jurisprudence, to which I have just referred, as the reason for its enactments; but alleges only the great increase of business. It runs thus: 'Where- 1066 'as, the great extension of agriculture, 'commerce, manufactures, and population, 'and the consequent multiplication of 'transactions in Scotland, have greatly increased the number of law-suits brought 'into the court of session, whereby it has 'become expedient to make some new 'arrangements in that court, to facilitate 'the dispatch of business."—Now, Sir, it is somewhat singular, that the increase of law-suits, from commerce, population, and agriculture, should be assigned as the reason for this measure, and that the language of the bill, respecting the introduction of trial by jury, should be so tame and discouraging; for it is manifest, to every person accustomed to that in comparable system of judicature (trial by jury) that if the increase of judicial business has arisen from the causes assigned in this preamble, there ought to have been an immediate introduction of trial by jury in those cases, as being peculiarly suited for that tribunal.—Questions on policies of insurance, on bills of exchange, on mercantile contracts of every description, all those personal actions which are the result of increased population, and increased dealings between man and man, in agriculture, manufactures, and commerce, are peculiarly suited to trial by jury. The cases arising out of such transactions are, necessarily, mere matters of fact, in which the most simple and the shortest forms of pleading only can be necessary to be put on the record. As nothing is required, almost in any of those cases, but the simple allegation of the plaintiff or pursuer, stating the injury of which he complains, and the equally simple denial of the defendant. What in England constitutes and is called the declaration, and a plea of the general issue, and what in Scotland constitutes and is termed the summons and the defences.—It is material to observe, likewise, that the introduction of the trial by jury, in those cases in which it is practicable, would give the greatest possible relief to the appellate jurisdiction of the house of lords. A jury takes to itself, exclusively, all matter of fact, whereas, at present, the facts, in, every case that is appealed, must go to the house of lords, forcing that tribunal to examine into the fact, as well as to decide upon the law, and go through most voluminous and ill-ascertained proofs, liable to much uncertainty, extremely, inaccurate and confused; whereas nothing should be carried to an appellate judicature but mere matter of law.—I own that I feel 1067 most earnest and anxious to take this public opportunity of impressing the importance of introducing trial by jury; and I am the more anxious to do so, because, when I consider the manner in which the commissioners, created by this act for inquiring and reporting on this subject, are to be appointed, when I perceive that that appointment rests with the ministers of the crown, or rather, with those who are the authors of this bill, I am very apprehensive that there is still less chance of the trial by jury being introduced at all into the civil judicature of Scotland.—I know that it is the opinion of a person of great, influence, one who will be much listened to on this subject—it is the opinion of a judge who has a most profound knowledge of the law of Scotland, I mean the president of the court of session, that questions of the sort to which I have referred, namely, questions on bills of exchange and policies of insurance, are not lit to be tried by jury.—When the resolutions of the house of lords, preparatory to another bill, afterwards brought forward by lord Grenville, (the measure-which first introduced the amelioration of the Scots judicial system in civil causes to the notice of parliament,) were in circulation, I considered it to be my duty, on this important public subject, to have a conference with that learned judge, and at his desire I waited upon him for that purpose. The object of us both was purely public. I listened with great attention to opinions and views, coming from a person of the highest respectability for legal rank, knowledge and experience, and I afterwards made them known to the noble person who then promoted the measure for improving the judicature of Scotland. Among other things, he expressed himself to be a friend to the introduction of the trial by jury, where it was practicable, according to the forms and rules of proceeding in the law of Scotland. He shewed me that such had been his opinion when a reform in the court of session had been discussed many years ago; and that, in a pamphlet which he had written at that time, he had recommended it. But, he added, that he considered it to be applicable only to mere personal injuries or delicts, for which reparation in damages was required, such as assaults, libels, or the like. He particularly mentioned, that to questions arising out of bills of exchange, and likewise I think, he said, out of policies of insurance, it was not applicable, That they were 1068 the great source of increased business in the court of session. That in the former especially, nice and difficult matter frequently arises as to the consideration given for a bill, and how far it is a mere accommodation note, for which no value originally passed.—Such questions, his lordship thought, could not be tried by a jury.—To those who are accustomed to the course of justice in this country (England), this will seem most surprising, when we all know that the sittings at Guildhall are almost entirely employed in trying causes arising out of policies of insurance, charter-parties, bills of exchange, and, other commercial transactions; and that deviation in a voyage, or want of consideration for a bill of exchange, are mere questions of fact, peculiarly calculated for a jury. But if such is the prepossession of a person of so much learning in the law of the country where he presides, respecting the introduction of this mode of trying those causes, it behaves us to do our utmost not to let such opinions operate to prevent the introduction of trial by jury, but, if possible, to enforce its introduction in mercantile causes, as they will receive a more satisfactory and more speedy decision in that than in any other tribunal. — Persons accustomed to the judicial system of England, would naturally and justly suppose, that the preamble to the bill (to the expressions of which I have already referred) would have been followed with an immediate enactment, introducing trial by jury in all cases of litigation connected with the causes assigned for the great increase of judicial business in Scotland. But instead of this being the case, mark how the bill proceeds:—Commissioners are proposed to be appointed to inquire into and report concerning the propriety of the introduction of trial by jury in civil causes. The words of the clause in the recital relating to this matter, are: 'and whereas it has been conceived, 'that it might be for the utility of the 'subjects within Scotland, that jury trials 'should be introduced into the proceedings 'in certain causes before the Court of Ses'sion in Scotland.'—The tame, hesitating, indecisive language of this recital is but a poor encouragement to report in favour of the introduction of trial by jury. Instead of exciting the commissioners to recommend the introduction of that institution, it is calculated to repress the ardour which gave rise to the idea of introducing this 1069 most important improvement into the law of Scotland.—I am confident, sir, that this tameness of expression in the bill is not consonant to the general feelings of that country on the subject. It is quite clear, that the people of Scotland wish the trial by jury to be introduced in civil causes, and it is to be observed, that they have always had it in criminal prosecutions. Many parts of the country have expressed themselves strongly in favour of the measure, and there has not been an opinion expressed against it anywhere. Two meetings of the Faculty of Advocates have been held on this subject; the first, where the resolutions brought forward by lord Granville were discussed. The introduction of trial by jury in civil causes was then considered by that learned and enlightened body, and it was eagerly approved. At another meeting of the Faculty of Advocates, held on the 23d of February last, called by persons not supposed to be favourers of lord Grenville's measure, and not attended at all by those who were supposed to be more particularly the supporters of that measure, it was resolved, 'That the introduction of 'the trial by jury, in certain civil causes, 'would be of evident utility to the subjects within Scotland, and that the commissioners should report in what manner 'and form it could be most usefully established.' This resolution of the Faculty of Advocates was, I believe, the real cause of introducing the recital I have just mentioned into the bill. Had it not been for that resolution, I verily believe the introduction of trial by jury would not have been thought of by the framers of the bill. All this gives but little hope of the accomplishment of that great object; and when I observe how much the language of the bill fails short of the resolutions, I confess my fears are very much increased on this subject.—In the resolutions, it is said, that it would be 'of evident utility to the subjects within Scotland 'to introduce the trial by jury. In the bill, all that is said is, that 'it has been conceived that it 'might be for their utility to introduce it.' If the legislature thus discourages the measure which it pretends to promote, it is quite impossible to be sanguine on the subject.—it is farther material to observe on this head, that the bill requires that the commissioners shall report, as speedily as may be, on the subject of the trial by jury, but that it does not require a speedy report on any other of the matters referred 1070 to the commissioners. Under other circumstances, I should have anxiously wished for a speedy report on the introduction of trial by jury, but as things are now circumstanced, I sincerely hope that the commissioners will take all the latitude, and use all the delay that the act will allow —'that they will take full time to deliberate—that, by repeated consideration, and mature deliberation, they will become gradually convinced of its fitness for those commercial and other causes to which I have so often alluded, and which are the assigned motives for the introduction of the bill now under consideration—that they will thus be induced to report in favour of trial by jury in every competent case. It is clear, that a hasty report, under the prejudices which now clearly exist, must be an unfavourable report, and the people of Scotland may thus be deprived, not only of the best and west institution for the administration of justice, in issues of fact, which the wit of man has ever yet contrived, but of an institution which has the greatest possible influence in forming the national character.—When men are daily called upon to administer justice to their equals, to consider and weigh the rights of others, they are sure to contract the habit of forming a just understanding of their own rights and privileges; and although the administration of justice, on sound principles of judicial jurisprudence, is the primary object of the measure under consideration, yet it is no unimportant feature in the case, that the means of accomplishing it will have the effect of elevating the general character of the nation, by calling the general mass of the community into a new sphere of action, calculated to make them feel their importance and independence.—That trial by jury in civil causes, and in misdemeanours, has had most important effects on the English character; that it has fostered that just anxiety which prevails in the minds of Englishmen, respecting their political as well as their civil liberty, cannot be doubted; and there is every reason to suppose, that it would produce a similar effect on the people of Scotland. I cannot, therefore, avoid deprecating the tame, insipid, spiritless, and discouraging language which is applied to this most admirable institution in the bill before us. An institution which the experience of ages, in this country, has proved to be the most satisfactory and expeditious mode for trying all these questions, which do 1071 not belong peculiarly to a court of equity, and more particularly adapted to questions, arising from increased commerce, population and agriculture, which the preamble to this bill assigns as the cause of the increased number of law-suits brought into the Court of Session.—Sir, it is impossible not to observe, that the commissioners under this bill, are to be appointed by the selection of the ministers of the crown, and not by the choice of the legislature. To this mode of appointment, at an earlier stage of the proceeding, (if I had been able to be present), I would have given a most decided opposition, as a mode equally unconstitutional and inexpedient. But I forbear to enlarge upon it now, because, in the situation in which the house now is, it can be attended with no practical effect to press it, and it might be attended with the loss of the bill, which is by no means my object, for the reasons already stated. My object, in this stage, is rather to discuss the subjects which the commissioners are to consider, than to enter into the question of their appointment, however objectionable.—Sir, there are many points for discussion, arising out of this measure: but, in the present state of the house, at this period of the session, and in the state of my health, I shall select those which appear to me to be most important.—The house will observe, in the third page of the printed bill, that it is proposed to be enacted, 'That it shall be competent to 'the judges of either division, or a quorum 'thereof, in any cases which shall appear 'to them to be cases of importance and 'difficulty, to state questions of law in 'writing arising on such cases, to require 'the opinion of the judges of the other division to be given thereupon; and such 'judges are bound collectively, or as individual judges, to communicate their 'opinion to the court referring to them. —This regulation I consider to be both at variance with the principle of the bill itself, and a violation of those sound, well-known, and established rules, which ought, invariably, to prevail in every well regulated judicial system. I feel this so strongly, that I wish now to have it understood, that it is my present intention to propose, in the next session of parliament, to bring in a bill, on purpose to repeal this clause. —By the bill, there is 'a choice of tribunals established, and the judicial system of Scotland is thus most materially and importantly improved. Where a suit is in- 1072 stituted, the plaintiff or pursuer has it in his power to choose either the chamber of the president, or that of the justice-clerk. But, by this clause, questions of law, arising in a cause, are liable to be transferred from the tribunal which the party has chosen, to that which he has avoided,— not by any act of his own, but at the will of others,—by the independent act of the court in which he brought his action, who are placed beyond the influence of his argument, and whom he cannot controul by any application, calculated to operate on their discretion, or stay their proceedings. This is not like the act of a losing party proceeding to another tribunal, by appeal, but an act of the court, to obtain a legal opinion, which, it is to be presumed, may decide the cause. But this is not all; the division or chamber, which is to state the question of law in writing, for the opinion of the other division or chamber, are to be themselves the framers of that question. The party, whose rights is to be decided by it, are to have no share in framing it. It is not to be submitted to them, nor the terms of it settled in their presence. It is not to be settled by the interposition of their counsel, or by any public proceeding of the court; but by the act of the judges of the division, in private, behind the back of the parties, and without any discussion, to set right any mistakes, in the view which may be adopted of the question.—Those who know any thing of the proceedings of courts of justice, are well aware, that the soundness of an answer to a question of law, depends upon the correctness of the statement of it; that the most important rights may receive a perfectly different decision, by the manner m which the case is framed, or the question stated. What shall-we say then of an institution which enables the tribunal, before which a case is brought, to state the question of law-, not only without the mutual discussion of the advocates on both sides, but in their absence; that the case so stated, shall decide the cause: a regulation, which shall enable the judges of one tribunal, privately, to draw up a question for the collective or individual opinion of the judges of the other tribunal: an institution, by which the judges who are to give their opinion on the question of law, are not only not bound to do it in public, but where it is clear that it is meant that they shall do it in private; so that a case privately drawn up by one division, or tri- 1073 bunal, is to be privately pronounced upon by the judges of the other division, thus again violating the best and soundest rules of judicial jurisprudence—rules which the wisdom of the framers of the judicial system of this country (England) have thought so essential to the pure administration of justice. Namely* that judgments shall be pronounced in public, before a critical well-informed bar; and in a court where all the world has a right to enter, to hear the opinion of the judges publicly delivered. Is it possible, that such a violation of all the best and wisest maxims for securing judicial purity, calculated equally to preserve individual righs, and to give satisfaction to the public mind, in matters of judgment, should be allowed to stand in your statute-book! —But, sir, I have not even How stated all the mischief and anomaly of this regulation. I believe, there is no person who knows any thing of the administration of justice, who does not admit, that the judge or tribunal, that is to decide, receives the greatest benefit from having the case discussed by counsel at the bar. This is a topic on which I need not enlarge, it is so universally admitted. No mind, however enlightened, can have the law present to it in all its parts, and in every aspect. The arguments of Counsel refresh the recollection, and inform the understanding of the most learned judge; their industry produces analogous cases for consideration, and aids in every respect. The greater the learning, the more enlightened the intellect of the judge, the more anxious is he to have this assistance afforded to him. But, by the measure proposed, the tribunal upon which every thing is to turn, the court which is to decide the difficult question of law, on which the justice of the particular case, and the rights of the parties depends, is to do it without heating the argument of counsel; without any discussion before them, public or private, they are to proceed, upon the mere light of their own understanding, without any aid whatever. Thus it is that the rights of parties are to be dealt with, under this extraordinary and unprecedented regulation. The plaintiff, or pursuer, who has the choice of his tribunal, by the act of the court, without argument, or protest, or appeal, to have the court he has chosen changed upon him. In the same manner, both parties hi a to be subjected to have the case stated without their intervention—to have the judgment on the case so stated 1074 delivered in private, and by judges who have heard no argument, or any discussion on the subject. Is it possible more entirely to subvert every sound and received principle of jurisprudence on the subject of judicature; and is it possible that such a regulation can be allowed to continue! —Sir, in the consideration which I have long, frequently, and repeatedly bestowed on this subject, it has occurred to me, that as the court of session is to be formed into two chambers, a very simple regulation would attain all the effect meant to be got by the institution, on which I have been observing, without violating those principles which should uniformly govern in all judicial establishments; while it would, at the same time, be attended with many other most important improvements in the system.—I readily admit, that it may be very difficult to secure uniformity in the law, where there is nothing to connect the court, and that the two tribunals or divisions of the court, about to be established, would, without mutual communication, in the end, adopt different principles of decision, unless there were some mode of communicating upon and discussing the same points, or some corrective power by the one tribunal over the acts of the other. It is to be observed, that in the court of session, as now constituted, there is a mode of re-hearing a cause, after a decision or interlocutor of the court has been pronounced, by what is called a reclaiming petition. This mode, now that there is but one court, is the only course of proceeding that can be adopted; but it is necessarily attended with a most grievous defect in the judicial system, being an appeal ab eodem ad eundem, from the same court to the same court. Now, is it not most extraordinary, that when the means is obtained, by the division of the court into two chambers, to get rid of the same tribunal judging the same case over again, that the proceeding, by reclaiming petition, for any thing contained in this bill, is left where it was. So that if a suit shall be commenced in the court of the president, and either party discontented with the interlocutor, or decree, the same court or division is to hear it over again. If, instead of leaving this without any regulation, and permitting the reclaiming petition thus to make the same tribunal revise its previous judgment, it had been enacted, that the reclaiming petition should carry the review to the other tribunal. That is, if a judgment pro- 1075 nounced in the president's court, had been carried by reclaiming petition to the court of the justice-clerk, and a judgment of the justice-clerk's court carried by reclaiming petition to that of the president's court, the one would have acted as a court of review upon the other. And thus the parties would have the judgment of all the wisdom of both courts. The satisfaction arising from this would have a direct tendency to stop farther litigation—Appeals to the house of lords would thus gradually diminish—the incongruity of an appeal ab eodem ad eundem would be got rid of; and the law, by being thus liable to be discussed in the same cause by both tribunals, would be kept uniform. This I conceive to be a matter well worthy of consideration, and extremely fit for further regulation by parliament. Nor can it be said that this mode of proceeding would deprive the party of the tribunal which he had originally chosen. It might as well be said, that introducing the Exchequer Chamber (as a court of error) into the judicial system of England would change the tribunal where a writ of error is brought. In this country (England) when a party institutes his action at law, he has it in his choice to commence it in any of the three courts (with the exception of real actions which need not now be entered into), in the King's-bench, Common Picas, or Exchequer. But it never could be said, that when an action is commenced in the King's-bench, that if the losing party carries it to the Exchequer-chamber, the tribunal originally chosen is changed against the will and without the consent of him who chose it. A tribunal cannot be said to be changed when it is appealed from: but if the judges of the King's-bench were authorised to refer the law of a case brought before them to the Court of Common Pleas, and to receive the law from that tribunal, and were to be influenced by and to act on that opinion, then the tribunal would be changed without the consent, nay against the consent of the plaintiff, who had selected, as he was entitled to select, the king's bench to judge his case in the first instance. But if the losing party carried his case by writ of error to the superior tribunal, that would be an appeal to a higher power, not a change to a co-ordinate court. In the same manner, the regulation which I propose would be an appeal to another or reviewing tribunal, and would not be a change of court without or against the consent of the party.—I now come to 1076 that part of the subject which I conceive to be by far the most important improvement that can be made in Scots judicature, next to the introduction of trial by jury. I mean the manner in which decided cases are reported, in what are called in this country reports, in Scotland decisions. This subject, important as I conceive it to be, has formed no part of any bill yet brought forward, and has never, as far as I know, received any public discussion any where. It is a subject on which I have thought repeatedly and anxiously; and after considering it in every point of view, I can see no objection whatever to the regulation which I am about to suggest, and which I shall endeavour to carry into effect, by moving to insert it as one of the matters to be referred to the consideration and report of the commissioners. It does not seem to me that there can be the least objection to its introduction in that way, because directing the inquiry concludes nothing; and it must be a great advantage to suggest to the consideration of the commissioners a matter so very important, and what might not otherwise be considered by them as a subject with respect to which they are authorised, by any general words in the bill, to examine and report. But before I enter upon the merits of this most material question, I wish to obviate an objection which I am aware will be made to my amendment. I know it will be said, that what regards the mode of reporting cases, or collecting decisions, is a matter for the court to regulate by rules of court, (in Scotland called acts of sederunt.) To this I answer, that the commissioners are directed to inquire into, and report respecting matters which are equally the subject of acts of sederunt. It appears, by the recital in the fifth page of the bill, that the commissioners are to inquire into the forms of process; and it is enacted in the sixth page, that they should report in what manner the forms of process might be improved, and the particular matters, many of which might be regulated by acts of sederunt, are there specified.—What I shall propose, therefore, is only adding one further head of inquiry to those already inserted of a similar nature, to enable the legislature to judge, with full information, obtained from the report of the commissioners, of a subject which cannot fail to appear to be one of great importance.—But, besides, sir, as the court is now constituted, and as it will remain constituted even after this bill passes into a 1077 law, I despair, without the authoritative intervention of the legislature, of seeing any thing done on this subject. Although the court is divided into two chambers, for the purpose of dispensing justice, the power of making acts of sederunt, or rules of court, is still to remain with the whole body of fifteen Judges acting together for that purpose; so that there is no power given to each chamber or division of making rules for itself. I am not discussing whether this is right or wrong, but shewing that, if the mode of reporting which I have to propose has been viewed with any prejudice by the court of session heretofore, it is probable that that prejudice will continue to operate. But, oesides this, it is very material to know, that the system of reporting which I propose to recommend for introduction, has, in fact, been already attempted, and has been suppressed by the court of session.— A gentleman of the name of Bell, who showed himself highly qualified for the business, whose reports are universally allowed to be most accurate, did commence reporting the opinions of the judges individually. But his reports were forbidden, by the court of session, to be cited as authority in that court; and, by this means, after having acquired great reputation, Mr. Bell was obliged to abandon his pursuit. I do not mention this with a view to find fault with the acts of the court; they may have been influenced by a sense of duty in protecting the regularly appointed collectors of decisions. But I mention it as a most important fact, to show the opinion of the court upon such a subject, and to satisfy the house that, without the interposition of parliament, it is not to be expected, but that the same body will continue the same prejudices, or act, if you will, from, the same sense of duty as they did before. There is nothing that I can see to change their mind; for the objection of the court does not arise to this mode of reporting, from their strictness in refusing information, unless it is known to come from sources of established authority only. On the contrary, the court of session is very liberal in that respect. But Mr. Bell's reports (and his fidelity and accuracy was never doubted) gave the opinion of each judge in detail, a thing to which the court had not been accustomed, and which they disliked. Now, sir, this is exactly what I am anxious to have introduced into the judicial system of Scotland, as one of the most important regula- 1078 tions which can be devised; without which, their law never can be improved, or their judicial conduct reach the perfection of which it is capable.—The giving the opinions of the judges specifically, in detail and in substance, with accuracy and correctness, in the reports of decided cases, goes a greater way to secure an anxious and accurate discharge of the judicial function than almost any other regulation that can be made. When the words of a judge are to be forgotten as soon as spoken, when there is to be no written memorial of what he has said, one great incitement to accuracy and attention is removed; when on the other hand, his words and opinions are sure to be recorded, to the desire of distinguishing himself for the moment, before the bar and bystanders, is added that most powerful of all incitements to human exertion, founded in a propensity deeply planted in the breast of every man who is actuated by an honourable and honest ambition, the desire of having his name and reputation handed down to posterity. When judges are to have their opinions thus set forth to the public in printed volumes, which are to be the authority for future judgments, it insures due and deliberate consideration of what they are to say, and checks any tendency to looseness of thought, defect of information, or inaccuracy in delivering what has been deliberately and previously considered. But the mode of reporting decisions of the court of session, gives no security for any thing of the sort. —This is not the fault of the collectors of decisions, who are always gentlemen of a certain number of years standing at the bar, well qualified no doubt for the discharge of that or any other duty, being-chosen by the faculty of advocates from among their own body. I mean no reflection on them, nor do I mean any reflection on the court; I am discussing natural effects, arising from natural causes, with the freedom which the subject requires, and which this place admits; but I trust I am doing so in strict conformity to what I promised at the outset, that I am stating my views of the subject in a manner strictly judicial, and without any tendency to eagerness of debate.—In Scotland the decisions consist of an abridgement of the arguments on each side, taken from the printed papers in the cause. This is followed by the interlocutor or judgment of the court, which is usually comprised in one short sentence; but not one word is 1079 given of what the judges deliver as the grounds of law on which the interlocutor is founded. When these decisions are to be applied, therefore, there is no way by which the opinion of the court is to be collected. You can only guess that the best arguments, afforded by the side which prevails, were probably the grounds of determination adopted by the court; but if the court went on different grounds, the decisions contain nothing to show it. When the court is divided, nothing appears to show the division; there is no appreciating in such a case the value of the decision, by the weight of the reasoning, or the character of the judges on the one side or the other. When the cases come to the court of appeal, the opinions of the judges below (which are now always asked for) are only to be had from notes ill taken by persons who, from want of habit in taking them, for reports to be published, are not possessed of the art of taking notes. In one recent instance, indeed, the notes of the judges speeches have been revised by themselves, and printed (in the late case respecting the augmentation of ministers' stipends); but this has been very rare, and is not generally practicable, as the judges, even if they were inclined to it, have not always time for it. What I wish, therefore, is, that some plan should be suggested by the report of the commissioners, which may induce the legislature, to put an end to the present system of reporting in Scotland, and to put it on the footing on which it has always stood in this country.—From the period of the year-books to the present time, from the reigns of the Henrys and the Edwards, to the publication of the last number of the Term Reports, it has been the constant and invariable course to give the opinions of all the-judges, when they delivered their opinions seriatim, or to give the solemn judgment of the chief when he delivers the opinion of all the court. It is this habit and custom which has not only served to form the character of English judges and English courts, but it is this which has been the means of unfolding the great and leading maxims of the law, of illustrating and confirming them, and handing them down from age to age, so as to trace them with certainty to the text authors; enabling us thus to confirm their doctrines and principles, or to correct them, and has thereby fixed the law of England upon sure unalterable principles; and thus the reports of English cases are calculated at once to inform 1080 the mind of the student, refresh the recollection of the practising lawyer, to give certainty to the law, and security to our civil rights. These topics have been often dwelt upon by those whose pursuits have led them to consider this subject. But it has been more ably unfolded by a noble friend of mine, in his preface to the reports of the cases decided in the Court of King's-bench, in the time of lord Mansfield, than by any other writer on the law whatever—I mean lord Glenbervie. We are all, sir, well acquainted with the excellence of his reports on subjects materially connected with a most important branch of the duties of this house. But his reports of the decisions of election committees are not more eminent in their line than his law reports are in theirs. I am sure I do not go beyond what all the persons of the profession of the law, now listening to mc, and the bar and bench throughout, will support me in, when I say, that that work, in all its parts, stands as high in reputation as the most eminent reports in the law of England, and that the preface to that work, which gives the history and effect of law reports in England, is most accurate in its details, and most sound in its conclusions. Every part of that preface is, for this purpose, well worth perusing. It shews that the voluntary acts of individuals who, like himself from time to time undertook the duty, were subsequently sanctioned by the court; and that the law has been, by this means, preserved and improved. But my purpose in referring to it now is, to shew the effect which, according to his account, it has had in forming the law of England.—Lord Glenbervie says, in his preface to the King's-bench Reports, 'The immediate province of the 'courts of justice is, to administer the law 'in particular cases. But it is equally a 'branch of their duty, and one of still 'greater importance to the community, to 'expound the law they administer, upon 'such principles of argument and construetion as may furnish rules which shall govern in all similar or analogous cases.' 'Such are the various modifications of 'which property are susceptible, so boundless the diversity of relations which may 'arise in civil life, so infinite the possible 'combinations of events and circumstances, 'that they elude the power of enumeration, 'and are beyond the reach of human foresight. A moment's reflection, therefore, 'serves to evince, that it would be impos- 1081 'sible, by positive and direct legislative 'authority, specially to provide for every 'particular case which may happen. 'Hence it has been found expedient to 'entrust to the wisdom and experience of 'Judges, the power of deducing, from the 'more general proposition of the law, 'such necessary corollaries as shall appear, 'though not expressed in words, to be 'within their intent and meaning. Deductions thus formed and established in 'the adjudication of particular causes, become, in a manner, part of the text of 'the law. Succeeding judges receive 'them as such, and, in general, consider 'themselves as bound to adhere to them 'no less strictly than to the express dictates of the legislature.'—The doctrine here maintained relates to reports which contain the opinion of the judges, with names of each judge prefixed to what, he is reported to have said on the question; and it is to these opinions, so reported, that so much respect is paid. Those are the opinions which succeeding judges 'receive as text law, and to which they 'consider themselves bound to adhere, no 'less strictly than to the express dictates 'of die legislature.'—A nation where the judicial habit has been thus formed and fixed, cannot fail to have advanced as near to certainty and perfection in the distribution of justice as human nature is capable of. To impress this view of the subject, so instrumental in forming the judicial character, so well adapted to fix the principles of law, and so important to substantial justice, I wish to add the eminent authority of sir William Biackstone to that of lord Glenbervie; an authority which is now canonized by death, for, you know, sir, that by the rules of our courts, you cannot quote a living person as a text authority. In the first volume of his commentaries, sir William Blackstone says: 'The decisions of our courts are held in 'the highest regard, and -ire not only preserved as authentic records, but are 'handed to us in the Reports, which form 'the lawyer's library. These Reports contain the arguments on both sides, and 'the reasons which the court gave for its 'judgment, taken down in short notes, by 'persons present at the determination. 'Besides the reporters, there are the ancient writers on the law, from Glanville 'to lord Coke, all which forms the chief 'corner-stone of the laws of England, preserved in our records, explained in our 'reports, and digested in the authoritative 1082 'writings of the memorable sages of the 'law.'—Biackstone here explains the mode in which the reports are made. He shews the reliance which is placed in them, and the effect which they have had in forming, methodizing, and confirming the law of England. I hope I am not guilty of any disregard or want of attachment to the country to which I belong, by shewing great anxiety and extraordinary earnestness to extend to that country a system which has been attended with such real solid benefit in this country, and that I am not deceived by an unjust and partial leaning to the institutions of this country, in which I have contracted my legal habits, and formed my professional opinions, when I consider that the mode used here is calculated to promote and serve all the great objects to which I have so often alluded Namely, responsibility in judges for what they say, as well as what they do, correctness of judicial character, great previous consideration of the subject, and due attention to the mode of delivery; these are its effects on the judges. As to the law, it affords a certain means of discovering the principles of decision in the particular case; of ascertaining the grounds of difference where the court is divided; of appreciating the value of different opinions or judgments which may have taken place. It is the grand and principal source and fountain of the law, and affords a sure and certain mode of ascertaining it at the time, of fixing it, and handing it down to posterity. It is from those voluntary acts of reporting by individuals that the law of this country has derived the most extraordinary advantages. It is to the liberal encouragement thus given by the judges of England to the efforts of individuals, that we are indebted for the re-; ports by which lord chief justice Dyer and sir Edward Coke enriched the law of England, and that we have such just memorials of the decisions of lord Holt and lord Mansfield.—All this, as I have just said, has been the result of the voluntary acts of individuals who have addicted themselves to this pursuit, and it has been fortunate for England that such persons existed; for their labours, without any establishment for the purpose, sanctioned by the subsequent approbation of the courts, where their reports have been received as authentic evidence of judicial opinions, has attained the end.—It may be thought by some, indeed, that an establish- 1083 ment would have aided these exertions. But in England it appears that the authority of the state was not necessary to prevent a particular set of prejudices from obstructing the voluntary labour of individuals in this great work of public judicial utility.—It is not so, however, in Scotland. There are many persons of high authority there who may be unwilling to have it set about at all; and it is very unlikely, especially after what happened to Mr. Bell's reports, that an individual will again attempt reporting upon this plan. To remove all those difficulties, I should think it advisable to counteract the prejudices of the court by legislative authority; and to provide most minutely and particularly for all the means of accomplishing a system of reporting in the most perfect manner, instead of collecting decisions in the present form, where the opinions of the Judges, as I have said, are never given, but only the mere words of the interlocutor or decree.—There ought to be an institution of short hand writers to take notes of the arguments of counsel, and the opinions of the judges; these, when translated from the short-hand, should be delivered over to the collectors of decisions, an institution which might thus be rendered very useful, to methodize and abridge, and give them legal shape, form, and correctness. In extraordinary cases, the judges themselves might revise and correct the account of their opinions. Such an establishment, under proper regulations (not necessary to detail, but easily conceived) would soon alter the whole tone of judicial proceeding. Solemnity in judgment would become the characteristic of the court, and the cases in which there had been a division of opinion on the bench would become the most authentic and useful sources of legal information. Uniformity of decision would be secured from age to age, and the fluctuation of judgment and of law, so much complained of as to Scotland, would be gradually cured.—Sir, I shall trouble the house no longer on this important subject. There are many material parts of the bill, and many topics relating to the general measure on which I have not touched at all, not because I had not much to observe upon them, but because the period of the session, the state of attendance, and, above all, a determination to avoid all eagerness of agitation, by getting into topics where it would have been impossible to avoid comparison with another measure, (lord Gren- 1084 ville's,) has made me avoid them. I am happy in having had the opportunity of delivering myself on this subject, so interesting to the country to which I belong, and of course so interesting to me. I can make no return to that country, which has shewn me much, very much kindness, but by testifying, by every means in my power, that I am devoted to its best interests; that I do my utmost to understand them, and am anxious to make them the subject of public discussion and consideration. I have to return you, sir, and the few gentlemen present, my sincere thanks for the very kind and flattering attention with which you and they have honoured me. I shall only add, that when you come to the part of the bill which relates to the inquiry of the Commissioners, I shall move an amendment on the subject which I have last discussed, as an instruction for the Commissioners to inquire into, and report as to the collecting of decisions. I trust, sir, that both in the nature of my motion, and in the manner in which I have addressed the house, I have performed the promise I made at the outset, and that I have persevered throughout, in a temperate and candid discussion of this grave and interesting subject.
In page 11, line 34, of the bill, after the word 'Sessions,' Mr. Adam moved to insert the following words: "And whereas it would be expedient, that proper regulations should be made for the reporting the decisions of the respective Chambers, with the opinions which the Judges deliver in pronouncing those decisions, and to make proper regulations respecting them. If this recital had been agreed to, Mr. Adam had prepared an enacting clause to answer it; but this motion being negatived, it was not competent to him to move the enacting part.—After a few words from the Lord Advocate of Scotland in support of the bill, it was read a third time and passed.