SCOTCH JUDICATURE BILL. (Hansard, 13 June 1809)

§ Mr. Horner
spoke at considerable length upon a great and oppressive defect existing in the mode of proceeding in the court of session in Scotland, and for which this bill afforded no remedy; notwithstanding 1017 that the subject had occupied so much of the deliberation of the house of lords, both in a former and the present session. This defect was the necessity under which suitors were placed, when answering the allegations of their opponents, of first taking out copies of all the elaborate pleadings required to be entered by the other side, as records of the court, before they could proceed to any replication by plea or evidence. These pleadings, in some instances that came within his own knowledge, amounted to a volume of 1500 pages, the copy of each of which required the signature of an officer of the court, who must receive a fee upon each: and he had known instances where though the sum in litigation did not exceed 200l. or 300l. the fees of court alone amounted to 500l. or 700l. and one in such case to 1500l. Such an arrangement had long prevailed in the practice of the Scotch courts, for no other reason that he could see, than to create a revenue for the Scotch law officers; but it was a bar in the pursuit of justice wholly insurmountable to all suitors in ordinary circumstances; and even where a suitor was successful, and his antagonist chose to appeal to the house of lords, the parties could not proceed thither without taking out complete copies of the proceedings in the courts below, although not of the least use to them, nor competent to furnish any new light to his advocates before the higher tribunal. The hon. and learned member forcibly urged the necessity of easing the people of Scotland from that intolerable tax on the legal justice of their country, on the necessity of assimilating the proceedings there to those in England, and of extending thither the advantage of trial by jury in civil cases; and he thought this bill ought not to pass the house without such an amelioration of the judicature it purported to amend.

§ Mr. R. Dundas
said, that a measure such as that recommended by the hon. and learned member could not be adopted, without a most important alteration in the legal practice of Scotland for 300 years, and therefore the house ought not precipitately to adopt any such proceedings, but wait deliberately, to hear the final opinions of the commissioners appointed to discuss the subject, and to examine it in all its bearings; and he knew that there were many of the highest legal authorities in Scotland, who differed in opinion on the subject.

Mr. Abercrombie
admitted that the house 1018 should do nothing precipitately on the subject; but he was at a loss where to cast the blame, for the delay which had taken place in not bringing forward the final report of those commissioners to examine this subject; for whose appointment a bill passed late in the last session, although the commission was not signed by his majesty until last January. He understood that a majority of three commissioners were in favour of the alteration suggested by his hon. and learned friend; and that the only point on which they had not yet been able to make up their minds, was how the officers were to be compensated for the loss of fees that must accrue from the alteration. They had, indeed, suggested the transferring those fees to another quarter, but one equally objectionable with that on which they were now imposed.

The Chancellor of the Exchequer
supported the opinion of Mr. Dundas as to the deliberate caution with which any alteration should be attempted in legal proceedings so long established. He admitted that it was desirable to extend to Scotland the trial by jury, but this only provided it was agreeable to those most concerned, and who best understood the usage and feeling of the country.