§ Lord A. Hamilton
said, he rose to move for leave to bring in a bill to abolish several useless offices in Scotland. The House would be surprised to hear that those offices had been twice reported on by two separate commissions, agreeing that they ought to be abolished. He would state, in the first place, what the offices were; secondly, the grounds on which he would move that they should be abolished; and, thirdly, the means of effecting it. It would be necessary to travel far back, were he to trace minutely the origin of those offices. They were remnants of the old ecclesiastical jurisdictions in the counties of Scotland, and were conducted by 23 commissaries, who succeeded to the jurisdiction of the Scotch bishops. There were 23 commissary clerks, and 23 procurators fiscal; not paid, it was true, by government, but paid, by the subject, from whose pockets the money, in the shape of arbitrary fees, was extracted. Now, as to the grounds for their abolition, he would remind the House, that they were declared not only useless but inconvenient, by a commission appointed as long ago as the year 1808, and which reported in 1810; and from 1810, his majesty's government and the successive lords advocate were culpable in not having followed up the recommendation of that Report. The present lord advocate, indeed, had the least share of blame; because he had been the least time in office. The noble lord then proceeded to state the substance of the Report of 1810, by which the House was informed, that under all the circumstances, the inferior commissary courts were not only useless, but even injurious to the subject, and ought to be abolished, and their jurisdiction transferred to the sheriffs' court. This Report, which ought not to have been neglected, was not acted upon for five years; at the end of which time, the then lord advocate brought in a bill, which, among other objects, had in view the abolition of those courts at the expiration of two months from its passing. The bill was read a first time on the motion of the lord advocate, and, he believed, a second 459 time; but, after having gone so far, the learned lord abstracted the bill from parliament; and why? The pretext was, that another commission on those offices had been moved for; and the lord advocate hoped, perhaps, that that commission would take a different view of the subject from what the former one did. The Second report was made in 1818; and not only did that report agree with the former, hilt it stated, that the number of gross and flagrant abuses which existed in those courts ought to accelerate their abolition. The bill which the lord advocate introduced in 1815, had not only for its object the abolition of those offices, but to prevent the sale of the offices of procurators or clerks in the commissary court. The noble lord then repeated the observation of the reports of the two commissioners, contending, that the system of abuse and fraud which was stated to exist in the inferior commissary courts called upon parliament, in the strongest manner, for their abolition. He proceeded to show, that there were payments exacted in the shape of fees, which were not ascertained by any determinate scale, but were at the discretion of the officers. He then referred to the evidence taken before the commission, which went to prove that there was no fixed rule of fees; but that they varied according to the will of the clerk and of the parties concerned; and this practice had been going on for 14 years, notwithstanding the two reports and the introduction of the lord advocate's bill. The commission stated, that the fees were not only improperly exacted, but were in some instances made exorbitant, with a view to proportionate compensation, in case the offices should be abolished. But if the learned lord would agree to the abolition, he hoped they should not materially differ as to the amount of compensation; for no one could suppose that where such abuse existed, much compensation could be claimed.—The noble lord then went on to show the means by which the object of his motion was to be effected; and observed, that he should have felt himself inadequate to the task of abolishing above twenty courts, although nuisances, and transferring their jurisdictions, if he had not to his hand the reports of the commissioners, and the bill of the lord advocate. There might he some few who were entitled to compensation; but the bulk of the persons affected by the bill 460 had no claim to any whatever. The noble lord then moved, "That leave be given to bring in a Bill to abolish the Inferior Commissary Courts of Scotland."
The Lord Advocate
said, that if the noble lord had communicated with him, either in the House or out of it, the facts which he could have stated, might have precluded the necessity of the present application. He begged to state, that he had been, for some time in direct communication with the different individuals concerned in the offices in question, and that he stood prepared to submit, in the course of the session, the same description of bill which the noble lord asked leave to introduce. Under such circumstances, he trusted the noble lord would withdraw his motion. The noble lord had thrown great blame upon his predecessors in office, for their neglect of the measure in question. For those who had preceded him he could not speak; but certainly he took no blame to himself for delay. He had found on his table, when he succeeded to his office, eight reports of commissioners proposing different reductions. That any man should consider all these reports in one session was impossible; but he had commenced, and he meant to go on seriatim, until they were finished. Still time must be allowed. It might naturally be supposed that all the parties concerned were anxious to have their cases individually investigated. One of the courts at present sought to be abolished was a court for the recovery of debts under 3l. That court might at once be dispensed with, because its operation was little else than mischievous: it called persons from long distances, to arrange matters better settled by local jurisdiction; and abuse having existed, it might be got rid of without compensation. But there were other courts attacked by the measure now proposed, which stood in a situation extremely different—courts, as to which the commissioners had reported, that only such fees as were reasonable had been taken. Now, to the officers of those courts, compensation would be insisted on; and the amount of that compensation would not be trifling, for the salaries amounted to between four and fine thousand a year. Let it be recollected; that those salaries were now no charge upon government; they arose out of feel received upon the transacting of business; and if parliament at once abolished and gave compensation, they saddled, in fact 461 so much new expense upon the public. He certainly did not intend to make a proposal to any such effect; and if he had been inclined to make such a proposal, could he have had any hope that it would be acceded to? What he did mean to suggest was this:—Let the court, for the recovery of small debts be forthwith put an end to; and let the other offices be gradually abolished: let them be got rid of as the present incumbents died, without putting government to the cost of compensation. Independent, however, of the question of compensation, the whole matter required consideration and arrangement. The offices to be gradually abolished must be regulated during the remainder of their existence. Then the duties of those offices must be transferred to some other hand; and it must be decided to what hand they should go. If the sheriff undertook them, he would require in some way to be remunerated for the trouble; and was that remuneration to arise, out of salary, or out of fees? All these were matters, which, of necessity, must be looked to, and provided for. Was the noble lord prepared to go into them; or would he consent to withdraw the present motion, and wait for the bill which he (the Lord Advocate) would bring in?
§ Sir John Newport
said, that if compensations were to be given, in any cases, they could only be given where the proceedings had been legal. Now, it was doubtful whether most of the officers in question had not long been taking monies to which they were not entitled. When individuals were convicted of misconduct, it was usual to dismiss them without compensation; and why should not the same course be taken with respect to classes?
§ Mr. W. Dundas
was of opinion, that the cases of fraud, instead of being general, were confined to a very few instances.
§ Lord A. Hamilton
declared, that in the reports of the commissioners, scarcely an individual was named who had not been guilty of exaction. The truth was, that the abolition ought to have taken place ten years ago; but, as there were forty places to be at once disposed of, such a waver of patronage was not likely to be hastily made. The noble lord then proposed that the Lord Advocate should acquiesce in the present motion for leave; and that he should afterwards bring in the 462 bill to which he alluded, with which he (Lord A. Hamilton) would not interfere, us long as it was sedulously prosecuted.
The Lord Advocate
pledged himself to bring in his bill as soon as possible; but thought it would come more regularly, if the noble lord withdrew his present motion.
§ After some further conversation, the motion was negatived.