HC Deb 23 March 1819 vol 39 cc1138-43
Sir John Newport

said, the subject to which he was about to call the attention of the House was one of very great importance. The object of his rac- tion was to obtain information as to the state of the law of Scotland, as to what acts of the legislature were deemed by the courts of that country to be in force, and what acts were deemed to be in desuetude. When he had last brought the subject before the House, the learned Lord Advocate had read him a lecture on his ignorance of the laws of Scotland. It had astonished him, and he thought it would astonish every person who did not belong that part of the empire, to learn that its judges united in themselves judicial and legislative powers; that they had, as was stated by the learned lord, the power of declaring what acts of the legislature were now binding on the people, and what were no longer in force; and that they exercised this power without control. The House ought to know what limits there were to this power of the courts of session and justiciary in Scotland, and whether these acts were binding in the other courts of judicature. He proposed to bring the whole subject before the House, that they might see whether this power, which if exercised at all, ought to be exercised only under the control of the legislature, was really assumed by the courts of session and justiciary. He had adopted the course of moving an address to the Prince Regent to derect an inquiry to be made into this subject. This would leave the subject with government. He could anticipate no objection to his motion. He thought that so valuable a part of the empire of which the people were distinguished by their ability, intelligence, spirit and gallantry, ought not to be at the mercy of a court of judicature. He had been told that the judges of Scotland not only declared entire statutes to be in a state of desuetude, but also declared parts of statutes to be in desuetude, while other parts remained in force. Was it to be tolerated, that a great portion of the united kingdom should remain in a state like this? He should therefore move, "That an humble address be presented to his royal highness the Prince Regent, praying that his Royal Highness may be pleased to direct an inquiry to be instituded into the nature, extent, and limits of the power exercised by the lords of session, judges of the court of justiciary, and barons of the exchequer, in Scotland, of declaring any part of the statute law of the land remaining with-out repeal on the statute book, to be in desuetude, or obsolete, and no longer of force to bind his majesty's subjects of that part of the united kingdom; and, in particular, into the authority from whence such power is derived, into the manner in which the courts of justice promulgate their decisions upon these Questions to the people of Scotland, and how far the decisions of any court of justice thereupon are held to bind their successors in such court, and the judges in the other courts of justice, finally and irrevocably; and to pray his royal highness, that the result of such inquiry, together with a list of such statutes, or parts of statutes, as have been declared to be in desuetude, may be laid before the House."

The Lord Advocate

thought, considering the eulogium which the right hon. baronet had passed on the natives of Scotland, it might have been expected, that if the power so reprobated had been of that grievous description, at least some one of those natives would ere this have raised his voice against it in that House. But, since the year 1707, up to the present moment, no person belonging to that country had ever complained of the power in question. The right hon. baronet had proceeded altogether under a misapprehension. In the first place, the courts of session and justiciary never declared that statutes were no longer binding on the natives of Scotland; but it was a fundamental principle, coeval with the law of that country, and a principle in that great code on which the law of Scotland was founded, and which was the law of all the countries of Europe, with the exception of England, namely the civil law, that laws enacted by the legislature, by contrary consuetude fell into desuetude, or became obsolete. The right hon. baronet had stated this as an assumed power contrary to law. But he would read a passage from the principle institutional writer of that country, Mr. Erskine, who stated the law in these terms [Here the learned lord read a passage in which it was declared, that as a posterior statute explained or repealed a former statute, so a posterior custom derogated from the authority of a prior statute.] This principle was also laid down by lord Stair, one of the most constitutional writers Scotland had ever produced. But this matter did not rest with institutional writers, nor the decisions of courts, recognized by the House of Lords; but it was also recognized in the great foundation of the constitutional liberties of Scotland, the claim of rights, in which one of the grounds on which the parliament of Scot-land declared king James had forfeited his crown, was his having prosecuted his subjects on old and obsolete laws. This power was not a subject of complaint with the people of Scotland. They had never raised their voices against it. The judges of Scotland had never yet issued one decree pronouncing any law of the united parliament to be in desuetude; and if gentlemen would look into the statute law of Scotland, which was all contained in three small pocket volumes, they would find many of the statutes not very applicable to the present state of affairs. There was one law which he believed the right hon. baronet was not ambitious of violating; but it did not accord with the sentiments of many of his countrymen, who frequently honoured the people of Scotland with their visits. There was a statute against the importation of the Irish; and every Scotchman was liable to pains and penalties for importing them into the country [a laugh]. There were also laws against the exportation of black cattle or eggs.

Mr. Hume

considered the inhabitants of Scotland as greatly obliged to the right hon. baronet for the pains he had taken in bringing the laws of Scotland before the House. He was far from thinking that, because no individuals from Scotland had raised their voice against the power in question, there were therefore no grounds of complaint against it. Such was the state of the law of Scotland at this moment, that it was impossible for any man before he went into court to know whether any law was in force or not. But the court of session not only decided what laws were, or were not in force; they passed what were called acts of sederunt, setting aside the law of the land. Lord president Hope had declared that acts of sederunt suspended the law of the land. It had also been stated from the Bench, as appeared from Buchanan's Reports of Remarkable Cases—"I do not Care what an act of parliament says on the subject, for I know there is a power paramount to acts of parliament," namely, the court of session. In several cases great injustice had taken place, from the court of session having, by acts of sederunt, declared the provisions of acts of parliament no longer in force. By the Scotch act of 1540, the subjects had a tight to bring their grievances before the courts in person; but in consequence of an act of sederunt, no man could go into court with a petition in his hands which had not the signature of a counsel. There were many of the Scots acts which deserved the character given them by the learned lord; but that was an argument for the inquiry proposed by the right hon. baronet.

The Lord Advocate

explained.

Mr. Boswell

said, he happened to have the third part of the Scots acts in his pocket; and the hon. gentleman then read a passage from an act of Chas. 2nd, to show that the principle of acts of parliament being derogated by custom was recognized in these statutes themselves. It was one of the evils under which that country had suffered, that statute after statute was passed, without any one having ever been repealed. It had been said, that no individual of Scotland ever complained of this. He, as an individual, and many others, complained of this evil, namely, that a certain body of laws and acts were left in that sort of dubious state, that no person could say what act of parliament was in force and what was not, till it was brought before the court of session, and the matter was argued and the custom proved. It had been said by the learned lord, that many of the laws were absurd; but this was the Very objection he had to the system—if these laws were absurd, there was no doubt they ought to be repealed. As every man was bound to know what the law was, he ought to have it in as explicit a state as possible.

Lord Binning

opposed the motion. If the custom of the judges of declaring laws in desuetude was monstrous, yet it was coeval with the existence of law in Scotland. If lord president Hope had used the expression imputed to him, he was certainly unfit to sit upon the bench. Statutes were declared in desuetude, not by acts of sederunt, but by decisions on special cases, argued by counsel. With those decisions the people of Scotland, the only persons interested, were well satisfied. Not a petition from them had been presented to the House on the subject: whereas, if the laws of Scotland had been attacked in that. House, the table would have been covered by petitions.

Lord A. Hamilton

observed that if the laws which were liable to be affected by the power thus exercised by the judges of Scotland, were comprised in three small volumes, it was the more inexcusable hat the parliament did not reduce to a Certainty what parts should be obeyed, and what should be disregarded. To leave to the judges the facility of doing this, was to invest them with legislative power.

Mr. Forbes

paid a compliment to the right hon. mover, to whom he thought Scotland was indebted for the inquiry into its courts of justice. The inquiry proposed might do good, and could be productive of no evil.

Mr. Kennedy

said, that though he was of opinion that the exercise of this power on the part of the Scots judges had been beneficial to the liberties of the people, yet the practice was such an outrage on principle, and so liable to abuse, that he thought the House bound at least to inquire into it.

The House divided: Ayes, 15; Noes, 33.