HC Deb 30 June 1823 vol 9 cc1337-41
The Lord Advocate

, in moving that the order of the day be read for the third reading of this bill, took the opportunity of entering into an explanation of the object and provisions of the bill. He observed, that it was by no means intended to abolish by the bill the forty-three Commissary Courts, but to transfer the business of them to the sheriffs depute. This would be generally advantageous; as it would have the effect of allowing the cases of litigants to be tried nearer home.

Lord A. Hamilton

complained of the manner in which the learned lord had conducted business in the present session, which was such, that bills arrived at their third reading, without any chance of an opportunity to any hon. member to deliver his sentiments upon them. The necessity under which the learned lord had just felt himself, of explaining the object of the present bill, on moving the order of the day for its third reading, was a striking illustration of the fact. With regard to the present bill, the learned lord had, on a former occasion, declared that the fault lay with him (lord A. H.). That he positively denied; and he appealed to his hon. friends near him, whether he had not sought most diligently during two months for an opportunity to give his opinion on a bill, which, as it was an original measure, ought to have been fully discussed in every stage. Was that a proper time of the session was that a proper state of the House, in which to press a bill of so much importance? He could scarcely believe, that the only two ministers of the Crown present would be induced to give their support to such a measure. He did not think that the learned lord had followed the report of the commissioners in many material points; one especially with regard to the discretionary power of requiring fees. One of the offices, that of the Procurator Fiscal, was stated, both in the reports of 1808, and 1817, as proper to be abolished; but, notwithstanding this recommendation, a sum of 500l. had been given by an individual for that situation. Why was the sale of offices permitted in such a manner; and particularly, when the commissioners declared, that the office of Procurator Fiscal had long ceased to be of any practical utility? Another important point embraced in the bill, was the compensation given to persons deprived of offices by the abolition of the Commissaries. Now, in the report made in 1808, it was expressly recommended, that the right of compensation should be withheld from all persons who might, subsequently to that period, be appointed to those situations. Had this reservation been made in the present bill? He would here observe, that he was favourable to the object of this bill; although he was opposed to the mode in which it had been framed. He had himself last year moved for leave to bring in a measure of a similar nature, which he had afterwards withdrawn. But he could not help expressing his astonishment that the learned lord should suffer the evils which the commissioners complained of in their reports, to remain in existence from the year 1814 to the present hour. The government had been most neglectful of its duty, in allowing those evils to go on year after year, without applying a remedy. It was indeed true, that about three lord-advocates ago, if he might so express himself, a bill like the present was brought in and read a second time, but from that period till the year 1823 nothing had been done. And now, when the learned lord undertook to remove the evils, in what manner did he attempt to do so? The first step in this bill involved a principle which he could not conceive how either the learned lord or his majesty's ministers could sanction. It did not direct what other persons were to do in obedience to the legislature, but it gave authority to certain individuals in Scotland to legislate themselves, merely with this provision, that they were to have regard to the report of the commissioners. The main object of the bill was, to abolish the inferior commissary courts; and if the learned lord meant that the sheriffs and stewards should perform the duty of the commissioners, why did he not lay the expenses which would be thus incurred before the House? This course was recommended in the report of the commissioners; but instead of that, the learned lord delegated a power to the lords of the courts of session to determine those expenses. With respect to the courts of the sheriffs, the learned lord there again delegated the power to legislate to the court of session. The regulation of those courts, instead of being framed by the learned lord in conformity with the recommendation of the commissioners, and embodied in the bill itself, were to be submitted by the sheriffs to the lords of the court of session for their approval. If, then, there should, on this point, be any difference of opinion between the sheriffs and the lords of the court of session, the present measure must prove abortive; for the only guide which the lords of the session had was, the report of the commissioners. It was true, that the sheriffs were to record those acts by acts of sederunt, but the learned lord ought to know, that the people of Scotland considered all acts of sederunt as encroachments, and therefore as obnoxious to their rights and privileges. The present bill, however, not only went to multiply those acts now, but to render them necessary in all times to come. Why had not the learned lord avoided this course, by first ascertaining the collective wisdom of the court of session, and submitting it to the House before he brought in his bill? The power of legislating would then be placed in parliament, and not delegated (as it now was) to the judges of an inferior court. A clause, indeed, was introduced by way of salvo, providing that a copy of the regulations made by the lords of the session should be laid before each house of parliament, before the expiration of two months after it next met, and that they were not to become law previous to that period. But why did not the learned lord obtain this information in the first instance, and embody it in his bill before its arrival at the present stage? There was another point to which he would call the attention of the House—he alluded to the mode in which compensation was to be awarded under the present bill. And here he could not help again observing, that if the right to compensation had been withdrawn from persons appointed since the report of the commissioners in 1808, there would, perhaps, be no claimant for it under the provisions of this act. But, laying that consideration aside, those persons were to have their claims decided by the barons of the Exchequer, who were to investigate their legality. Now, he could not understand what was meant by legality in that instance; for he denied as a principle, that any of the individuals in question had a right to compensation at all; and yet the barons of the Exchequer were to award each of them either a gross sum or an annuity, in lieu of the emoluments of which they were deprived. He would say, that the measure, though in its last stage, had never yet been discussed. In its present shape, he considered it discreditable to his majesty's government, and should vote against it.

Mr. K. Douglas

hoped the House would not be induced, by what had fallen from the noble lord, to reject the present bill. Some of the noble lord's objections, however, were not unworthy of attention. As to the measure itself, it was of great importance to the people of Scotland. The districts, under the jurisdiction of the commissaries, were so extensive, that the revenue was, in consequence, defrauded to a large amount, and the, administration of justice generally obstructed. The persons, too, who held the situation of commissaries were not bred to the law, but were mostly country gentlemen; whereas, the sheriffs appointed to discharge their duty by the present bill, possessed legal knowledge, and were thus qualified for the office. The hon. gentleman then proceeded to mention the other evils which the measure was intended to remedy, and concluded by giving it his support.

Mr. Kennedy

objected to several clauses of the bill. One of these transferred the duties of the commissaries to the sheriffs, who were enabled to depute their power to their substitutes, who again were to do the duty without granting them any additional remuneration. He could not allow that opportunity to pass, without observing that sheriff substitutes of Scotland were a very respectable body of men, but very ill paid; and he hoped that their situation would soon be considered in the proper quarter, and that a provision would be made for them, more suitable to their station and the various important duties which they had to perform.

The Lord Advocate

concurred in what had been said by the hon. member, with respect to the respectability of the sheriff substitutes, and was anxious that a suitable addition should be made to their incomes; but the hon. gentleman must be aware that it rested with the treasury to give that compensation.

The House divided:—Ayes 56. Noes 21. The bill was then passed.