COURTS OF JUSTICE IN SCOTLAND.

HC Deb 30 March 1824 vol 11 cc18-31

Lord A. Hamilton

rose, in pursuance of notice, to move to refer the twelve reports of the commissioners of inquiry into courts of justice in Scotland to a committee of the Whole House. The noble lord observed? that so long as ten years ago; his right hon. friend, the member for Water-ford, had succeeded in getting commis- sions appointed to examine into the courts of justice in England, Scotland, and Ireland. But, though the commission, which had been appointed to examine into the Scotch courts had presented several voluminous reports to the House, little or nothing had been done to remove the evils of which they complained. His object in bringing forward his present motion was, first of all to discover, whether government had any proposition to bring forward in furtherance of those reports, and then if they had not, to suggest himself such propositions as he thought were required by the circumstances of the country. When he formerly alluded in his place in parliament to the first three, or four reports, which were presented by the commissioners, he was told by the then Lord Advocate, and also by the government, to wait till the whole subject had been under their consideration, and not to attempt prematurely to discover the intentions of government. He had now waited to the full extent of time which had been required of him, and sure he was, that the country would be disappointed at finding that one large portion of this important subject had received no adequate notice, and that another large portion of it had received no notice at all.

He would state to the House, first, what the reports declared ought to be done; and then, what had been actually done; and he trusted, that by that statement he should convince the House that a great deal was still left for it to do. He would likewise show, that the proceedings of government were so slow in executing the recommendations of its own commissioners, that it was absolutely necessary for the House to apply a stimulus to the members of it. Though the bill for the abolition of the inferior commissary courts was a measure recommended to the adoption of government so far back as the year 1808, and though the Scotch judges had repeatedly expressed their concurrence in its provisions, it had not been carried into effect until the year 1823. If this was the way, in which the recommendation of commissioners was to be received, it was nothing else but a mockery to appoint them. Those commissioners had sat for seven or eight years at an expense of 5,000l. a year, and had so cost the country about 40,000l.; and yet their recommendation had not been attended to, when they proposed to make certain alterations in the, Scotch courts, which would have saved 6,000l. a year to the public, and 12,000l. a year to the suitors in them. Was such conduct fair, either to the country, or to the individual commissioners? The government had, indeed, made some saving; but he believed it did not amount altogether to 5,000l. The commissioners had likewise recommended the abolition of ninety offices; but, if the offices in the inferior commissary courts were excepted, it would be found that not more than fifteen had been abolished.

He did not think it necessary to proceed into the details of the different courts, and should therefore confine himself to mentioning the number of offices to be abolished, without enumerating them more particularly, unless he was forced to such enumeration by any denial on the part of hon. gentlemen opposite. In the court of Session it was proposed to abolish ten offices. Now, three only had been abolished. When he thus found that the recommendations of the commissioners had not been carried into effect, he thought it was fitting that he should appeal from the judgment of his majesty's ministers to that of the legislature. It was calculated that a saving of 6,000l. a year would have been effected in this court, if the proposed alterations had been made. The ostensible saving by reductions was, however, only 1,600l.; and if from that sum they deducted the addition made to the salaries of the judges' clerks (contrary to the recommendation of the commissioners), it would be found that the entire saving made by his majesty's government amounted to no more than 380l. a year. One half of the propositions made by the commissioners appeared never to have been considered; and the result derived from those recommendations which had been attended to were not so beneficial as they ought to have been; since, though expense had been reduced in one quarter, it was increased in another. The next courts were the Commissaries' court of Edinburgh, and the inferior Commissaries' courts. In these courts it was recommended to reduce five officers, but one only had been removed. The total amount of retrenchment in those courts, if the recommendation had been obeyed, would have been 1,800l. a-year; but a saving of only 400l. a-year had been effected. The next court noticed by the commissioners was the Scottish Chancery. In that court very great abuses existed with respect to the collection of fees, especially in the director's department, which was executed wholly by deputy. He was not aware that any alteration, conformably with the recommendation of the sixth report of the commissioners, had been made in that court; but he wished to get some insight into the subject from the learned Lord Advocate. The commissioners, in the report he had just mentioned, referred to a very extraordinary charge which was made by the clerk of Chancery under the denomination of treatment money. That charge amounted, in 1816, to 677l.; in 1817, to 800l.; and in 1818, to 680l. The commissioners did not appear to understand on what ground the demand was made.—

He would next call the attention of the House to the Exchequer court. It was recommended, that five offices should be reduced in this court; but, in point of fact, none had been abolished. It was very true, that the situations of one baron of the Exchequer, and of one deputy-remembrancer, had not been filled up when the vacancies occurred; but they ought to be abolished regularly by legislative enactment. He was convinced that the recommendation of the commissioners ought to be fully carried into effect with reference to this court; for no doubt could be entertained that four barons were amply sufficient to perform all the duties connected with it. In this court the saving ought to have been 5,000l. but he believed that, in reality, not a single shilling of the existing expense had been reduced. According to the sixth report it appeared, that enormous abuses were found in this court. The king's deputy-remembrancer had got his office secured to him, by patent, for life, while the principal only held his situation during pleasure. So that the deputy existed wholly independent of the principal; independent of any responsibility to which, under other circumstances, he would be liable. And here he could not avoid making a remark on the subject, which was very often brought before the House. He meant the doctrine of vested rights. He would read to the House four or five lines, which would shew what the commissioners thought of that doctrine. In the sixth report, they said, "It is thus, we may remark, that abuse in those matters originates, and is too apt to be perpetuated. An individual succeeds in exacting an illegal sum for a considerable length of time—his successor pursues the practice which he finds—and thus it goes on, until it is impossible to stop it, and that which was originally wrong, is finally elaimed as a vested right." Under circumstances such as these, compensations had been demanded from, and awarded by, this House, for vested interests, which, if the allegations had been properly examined, would never have been admitted, It was recommended to reduce the expense of the court of Lyon to the extent of 1,000l. a-year; but nothing had been done in consequence of that recommendation. The justice of Peace court was the next which the commissioners noticed; and they recommended an abridged form of proceeding in actions before that court. That recommendation had not, however, been adopted. In his opinion, the small debt jurisdiction of that court ought to be extended to a higher sum. At present the sum was confined to 5l. It ought, he conceived to be enlarged to 10l; and he had made up his mind to bring in a bill for that purpose.

He now came to the borough courts; and he believed there never was a subject investigated by that House which required so much revision and reform as the internal state of the Scotch borough courts. He had not been fortunate enough to persuade the House to sanction a measure which he had brought in on the subject; and that which the noble lord had brought in and carried was wholly inadequate to the intended purpose. The reports of the commissioners fully confirmed his assertion, that the internal state of those borough courts required revision and reform. Of sixty of these borough courts, at least one half were liable to the strongest objection. Nothing had been done with respect to them; and he thought ministers were censurable, when twelve reports had been laid before parliament, in abstaining from taking the subject into their serious consideration. There was no uniformity—he mightsay there was no honesty—of charge in those courts. Many of the charges had been stigmatised by the commissioners as illegal. It appeared that, with respect to the Court of Session, little had been done. No bill had been brought in relative to the Chancery Court. In the Court of Exchequer, the vacancy of one baron and a deputy remembrancer had not been filled up. As to any intended alteration in the Sheriff's Court, the Lord Lyon's Court, the Justice of Peace Court, or the Borough Courts, he knew nothing. Certainly there was no bill or measure of any description, relative to any of them now pending in parliament. He wished therefore, that the reports of the commissioners should be referred to a committee. They would then hear from the learned lord what could be said in defence of the total neglect of the reforms recommended by the commissioners. The noble lord then moved "That the twelve Reports of the commissioners of Inquiry into Courts of Justice in Scotland be referred to a committee of the whole House."

The Lord Advocate

said, that as this subject could not be interesting to the majority of gentlemen present, he would make his statement as short as he possibly could. If the noble lord had moved that the twelve reports of the commissioners relative to the fees and emoluments connected with courts of justice in Scotland should be referred to a select committee, to declare what had been and what ought to be done, he could have understood that proceeding; but he was somewhat at a loss to know what the noble lord meant by submitting those documents to a committee of the whole House, although he could perhaps guess at the noble lord's object. The noble lord, it appeared, was anxious that he (the Lord Advocate) should defend himself from the charge of having neglected his duty, by not giving effect to the recommendation of the commissioners. Now, he must say, that the noble lord had been for some years most attentive to individuals holding the situation which he had the honour to fill at present; and it was a matter of great satisfaction to him, considering the various duties he had to perform, to find that the only matter of blame affecting him, which the noble lord could bring before the House, was his supposed neglect of the reports of those commissioners. He, however, denied that he harboured any disinclination to carrying into full effect the recommendations of the commissioners. He was not in parliament when the right hon. baronet, the member for Waterford, made the motion, in consequence of which commissioners of inquiry were appointed. He was, however, glad that the proposition had been carried because much valuable information excellent historical accounts of the different courts, and various important recommendations had arisen from the inquiry. Still, however, looking to the whole sys- tem of the courts in Scotland, it could not be asserted that any thing radically wrong was pointed out in their constitution.

He would now run over the practice of those courts, shortly and generally, but he hoped correctly. Two of the courts which the noble lord had mentioned did not properly come within the instructions of the commissioners—he alluded to the Lyon Court and the Chancery Court. The situation of Lord Lyon was exactly the same in Scotland, as that of Garter King at Arms in England. It was the duty of that officer to find arms for those who had not previously borne them, or in whose armorial bearings an alteration was directed. For this service the individual holding the office received certain fees. It was evident, that this was an office under the Crown—an office, the functions of which were exercised under the king's prerogative; and he felt that it was not competent for him or others to interfere with it. When he learned that an interference was meditated, he sent down an injunction, as he was bound to do, to prevent it from being carried into effect; as the office was one emanating from the king and not from the legislature. As to the Scotch Court of Chancery, it was a mere office. They had, in fact, no such thing as a Court of Chancery. It was a mere office from which certain writs were issued, and in which all charters were recorded. As to the fees of that office, the commissioners reported, that they were not excessive, and that they ought to be continued. The noble lord had stated, that the commissioners found fault that the Director of the Chancery, with his clerks, might levy fees to any extent he thought proper: but the noble lord did not tell the House what the commissioners recommended in consequence. They recommended, that at the termination of the existing interests in that office, the officers should receive a regular salary, and the surplus should be paid over to the public revenue. It was not, however, necessary to follow up that regulation; because, by the act of the 51stof Geo. 3., cap. 64, it was directed, that on the termination of the existing interests, a variety of offices, should be regulated—that salaries should be given to those performing the duties, and that the surplus should go to the revenue. Amongst those offices were, that of director of the Chancery, and the clerk of the Chancery in Scotland. Thus, that which the commissioners had recommended was actually done by act of parliament. When he came into parliament, he had found those reports before the House, and he immediately took measures to carry the recommendation of the commissioners into effect. With respect to the Court of Session, an act was introduced by him, which was deemed sufficient to carry into due effect the intentions of the commissioners. If some offices were not abolished, it only showed that, on mature consideration, it was not thought right to do them away, under existing circumstances. The noble lord, in mentioning the court of Exchequer, had admitted that certain offices in that court had not been filled up. So far, certainly, the recommendation of the commissioners had been complied with. As to the fees taken in that court, the 5th of queen Anne expressly declared, that "no officer shall demand higher fees than are authorized by the barons, and if any person shall exceed the fees fixed by the barons, right shall be done to the party complaining, and the offender shall be punished by fine or suspension from office". Now, in consequence of the recommendation of the commissioners, the court had gone over all those fees, and had regulated every one of them. With respect to the court of Justiciary, it had by the act of 1617, a right to regulate its own fees. Like the court of Exchequer, the judges of that court were authorized to declare what fees should be taken.

He would next come to the Commissary courts, with respect to which a bill had been brought into the House last session, and the opposition of the noble lord opposite, and of his friends, to that bill, would not be readily forgotten. Really, the individual who filled his (the lord advocate's) situation stood in an enviable predicament! If he proposed new measures, he was resisted at every step; and if he abstained from proposing new measures, he was charged with neglect of duty. The bill which he had introduced last year upon the subject of the Commissary courts, had gone to abolish, at once, three-and-twenty patent places, all of them in the gift of the Crown; and yet that bill—brought in by an officer of government—had been divided against, even on the third reading. He was happy, however, to find, that whatever treatment the measure had experienced in that House, in Scotland it had been received with gratitude, and welcomed as a boon.—With respect to the Sheriff's court, it would be recollected, that he had deferred bringing in a bill, in consequence of a recommendation from the upper House, in favour of a commission generally upon the courts of justice in Scotland. That commission had reported, but the report was not yet in the hands of members. As regarded the state of the Sheriff's court, however, the fact would be found to be this: in the Sheriff's court, during the last year, fifty-two thousand causes had been tried, which, as compared with the business of the court of Session, was in the proportion of one hundred and seventeen to one; and the commissioners recommended, in their report upon the subject, that the practice of the court of Session should be assimilated to that of the Sheriff's court as much as possible.

The hon. and learned lord then proceeded to notice the recommendation of the commissioners, as to an alteration in the jurisdiction of justices of peace in Scotland. At present, the justices had jurisdiction in cases of debts under 5l., and the noble lord opposite had given notice of a motion, to extend that jurisdiction to debts of larger amount. Opinions were something divided as to what should be done in this matter. Some persons thought that the power should extend to debts of 15l.; others thought that it should go only to 10l.; and others were for letting it remain as it was, at 5l. There were circumstances to be considered both ways. No doubt, the cheap and speedy recovery of small claims was an advantage; but, carried too far, it led to indiscriminate credit, and to the imprisonment of men for debt who ought to have paid ready money. Out of 212 persons confined for debt in Edinburgh—the total number confined within the last year—132 had been confined for claims under the sum of 5l. The justices; too, were empowered at present to decide these claims without a jury, and not according to law, but according (in the words of the authority) to "equity and good conscience." This might do very well in disposing of small stakes, but it would scarcely serve in the settlement of large ones; and for this, and a variety of other reasons, he thought the jurisdiction in debts above 5l. would be most conveniently lodged in the court of the sheriff: the justices having, in the last year, disposed of 8,700 causes, had already, as it would seem, as much work on their hands as they could dispense with; and as for himself, he should resist the noble lord's motion, therefore, when ever it came before the House, and move for the appointment of a committee upon the question. But, if he was unwilling to add any thing in the way of civil duty to the business already performed by the justices, there was a right of which he was most anxious to see them in the exercise. Whenever any step was to be taken with respect to arranging the administration of criminal justice in Scotland, it ought at once to be remembered—though the fact generally perhaps was hardly known—that the justices of peace in that country did not, in fact, act magisterially. The appointment of the sheriff, and the nature of the duty intrusted to him, took away all necessity for the interference, in criminal matters, of the justice of peace; but he (the lord advocate) was most anxious to take the country gentlemen from that unprofitable state of quiescence. It would be incomparably better, in his view, to give the justice of peace in Scotland, the same power which was exercised by the justice of peace in England; such a course would raise the consequence of the individuals acting (who were well entitled to so much attention), and would, further, very materially expedite the despatch of business. He repeated, that the giving of this additional power to the magistracy would prevent delays which now arose constantly from all the press of duty lying in one quarter —prisoners detained over from one session to another, and expenses incurred, which a more open course would avoid; and besides, it would awaken the country gentlemen from an apathy which they were inclined to feel upon such matters. At the time of the riots in Glasgow, none of the country gentlemen had come in to offer assistance to the constituted authorities: not from any indisposition, of course, to preserve the peace, or to expose themselves in such discussion; but because they thought the business was one with which they had, by right, nothing to do. But this was not a feeling calculated to aid the safety, or promote the' advantage, of a country. Government was entitled, in time of trouble, to look to the country gentlemen for their assistance personally, and by means of their authority and their influence. With this view, it was most' desirable that they should be accustomed to lake their share in the important duty of administering the criminal justice of the state; and cer- tainly, therefore, his feeling would be, to refer to a committee that part of the report of the commission which referred to the powers of justices of peace in Scotland. The hon. and learned lord then briefly recapitulated the effect of the arrangements which had been made in the several courts of Scotland, as those arrangements bore, in his opinion, upon the observations of the noble lord, the member for Lanark; and, after trusting that he stood clear, at least of having neglected his duty in the matters referred to, sat down, amidst loud and general cheering.

Mr. Abercromby

said, he rose hardly for any other purpose than that of expressing his satisfaction at the declaration with which the learned lord had concluded his speech. The learned lord's proposed reform in the manner of administering criminal justice in Scotland was a far greater consideration than the motion immediately before the House; and he most sincerely returned his thanks to the learned lord for the intention. For himself, he had long considered the large jurisdiction held by the sheriffs in Scotland to be a part of the Scottish law most especially requiring revision; because it gave a monopoly to the profession of the law, in the administration of criminal justice, to the entire, and most impolitic, exclusion of the country gentleman; and, what was worse, these high powers being too weighty to be born by the sheriff himself, the country gentlemen, who were deprived of them, had the mortification to see them in fact exercised by the sheriff depute. He did assure the hon. and learned lord, that he had listened with the highest possible pleasure to his suggestion, for increasing the qualifications of the magistrates of Scotland; and with no less, to his objection, that those magistrates should hold the power, in cases of debt above 5l., of deciding without the intervention of a jury. Hearing such opinions expressed from such a quarter, he could hardly entertain a doubt that a further measure of benefit to Scotland—he meant the introduction of the system of grand juries—would at once meet with that reception, to which it was entitled by its importance: and he wished that an instruction to consider the fitness of introducing that measure should be given to the committee for which the learned lord was to move. With regard to the answer which the learned lord had given to his noble friend, he must confess, he was not so well satisfied with that answer, as with the rest of the learned lord's speech. With respect to the court of Session, the commissioners had suggested a saving of 6,000l. a-year; the saving effected had been little more than 1,600l.; and so great a discrepancy ought to be accounted for. Again, with respect to the court of Exchequer, the learned lord said, that the barons had made alterations.—Certainly, they had made such alterations as to them seemed fit and necessary: but, did it appear that the barons had made the alterations suggested by the commissioners? It was mere waste of time for the House to appoint a commission, if the officers of the Crown could say, "We have done what we think right, and we will do no more." The question was, not—had the barons done that which they considered necessary; but had they done that which the House would consider necessary? For these reasons, he should support the motion of his noble friend.

Lord Binning

declined following the noble mover through his speech, because he thought it had been sufficiently answered by his learned friend, the lord advocate. He rose for the purpose of thanking the learned lord, for his intention with respect to the magistracy of Scotland; and hoped the hon. member for Calne would not press the grand-jury question into the same inquiry.

Mr. Hume

admitted that the lord advocate had done more than his predecessors for the Scottish courts; but thought that that admission threw a very heavy blame upon those predecessors. He gave great credit to the noble member for Lanark for his perseverance, and hoped he would press his motion to a division.

Mr. Kennedy

felt so highly pleased with the intention of the lord advocate, with respect to the Scottish magistracy, that he wished to know whether it was meant to be proceeded with in the present session,

The Lord Advocate

said, he had not made up his mind whether he would pursue the suggestion which he had thrown out in this session or the next. He must first know a little of the feeling of the profession in Scotland upon the subject.

Mr. Abercromby

protested that from the manner of the learned lord, he had doubted whether he would not move for the committee before the House adjourned. The case was very much changed indeed, if the matter, which he had been looking upon as certain, was only something which had passed through the learned' lord's mind, On his side of the House, the impression had been, that the learned lord's intention was absolute; but the value of his speech was at least diminished one half by his explanation.

Mr. W. Courtenay

had felt much satisfaction at hearing the declaration of the lord advocate, and conjured him not to allow anything to divert him from prosecuting his view. There might be, and; would be, a division of opinion in Scotland upon the subject; but the view of the learned lord himself was decidedly the enlarged and the liberal one.

Sir R. Fergusson

said, that the lord advocate's speech had deceived the greater part of the House. Certainly, it had been understood that he meant to move for an immediate investigation. But, as the learned lord said, that he wished to consult the feelings of his countrymen upon the question, he begged to know who the parties were whom he wished to consult, and how and when their opinions were to be ascertained?

Mr. K. Douglas

said, that the measure which his learned friend proposed to introduce was one of great importance, and deserved the greatest consideration. If the learned lord could introduce the measure during the present session, he no doubt would do so; but if, on the other hand, the learned lord should find that he could not press the measure, the House, he trusted, would not withdraw their confidence, but would leave in his hands a question, which he had no doubt would be treated by the learned lord with all the consideration which its importance claimed.

The Lord Advocate,

in explanation, stated it to be his intention to go on with the inquiry, but would not pledge himself as to the time.

Lord A. Hamilton

in reply, expressed his surprise at the reluctance of the learned lord, after ten years of indecision, to fix the time. He took that opportunity of justifying his own parliamentary conduct from the aspersions of the learned lord. One assertion of the learned lord was most unjustifiable, and altogether unfounded. The learned lord had charged him with running away from his own country, at a time in which danger was expected from a general rising. This had been put forward in a newspaper, under the immediate sanction, if not di- rection, of the learned lord, in which there was no standee, however false and absurd, that did not find a ready access to the public. The real facts were these. He had delayed his departure for England from his own country, which was also the country of the learned lord, in consequence of notices which were received from the government of an intended general rising. No such event occurred then, though it did afterwards; and he had therefore made his way to Edinburgh, where he inquired for the learned lord, in order to ascertain the real state of affairs. He found that the learned lord was busily engaged in the pursuit of his own political game—he was canvassing for votes; as the general election was at hand. He then called at the office of the Solicitor-general, and found that gentleman as busily occupied as the learned lord, and in the self-same pursuit; so that here was an actual running away of these two learned persons. He then called at the office of the Commander-in-chief, and there he was told, that they had received information of a general rising, but that it had been repeated so often that they began to laugh at it. And these were the grounds upon which he had been accused of running away, by persons in the department of the learned lord, who had heaped upon him the grossest slanders, and the most abominable falsehoods; alleging, in one instance, that the only person executed in the subsequent riots, was a particular friend of his, and that on searching his papers, two letters in his (lord A. H's) hand-writing had been discovered, the whole of which was to be found in a newspaper which was supported and owned by the learned lord and ten other official gentlemen. He believed that there was not one man in the country, and he was certain that no member of that House, would continue to put faith in such calumnies, which they saw were refuted by the most simple reference to the facts.

The House divided—For the motion 76. Against it 124. Majority 48.

List of the Minority.
Abercromby, hon. J.	Buxton, T. F.
Allen, J. H.	Calvert, N.
Althorp, visc.	Campbell, hon. G. P.
Baring, sir Thomas	Clifton, visc.
Barnard, visc.	Colborne, N. W. R.
Bennet, hon. H. G.	Corbet, P.
Benyon, B.	Creevey, T.
Bernal, R.	Crompton, S.
Bentinck, ld. W. H. C.	Cradock, S.

Denison, W. S.	Philips. G. H. jun.
Ebrington, visc.	Pym, Francis
Ellis, hon. G. A.	Rice, T. S.
Farrand, R.	Robarts, A. W.
Fergusson, sir R.	Robarts, G. J.
Fane, J.	Rumbold, C. E.
Graham, S.	Rickford, W.
Guise, sir B. W.	Scott, Jas.
Haldimand, W.	Sebright, sir J. S
Hobhouse, J. C.	Sefton, earl of
Honywood, W. P.	Smit, J.
Hume, J.	Smith, Wm.
Hutchinson, hon. C. H.	Smith, Robert
Jervoise, G. P.	Stuart, lord P. J. E.
Johnstone, W. A.	Sykes, D.
Lambton, J. G.	Taylor, C. M.
Leycester, R.	Taylor, M. A.
Leader, Wm.	Townshend, lord C.
Maberley, W. L.	Tierney, rt. hon. G.
Macdonald, J.	Warre, J. A.
Mackintosh, sir J.	Wharton, John
Marjoribanks, S.	Whitbread, S. C.
Martin, John	Whitbread, W. H.
Milton, visc.	Wilkins, W.
Monck, J. B.	Williams, Wm.
Moore, Peter	Wood, Matthew
Newport, rt. hon. sir J.	Wrottesley, sir J.
Nugent, lord	TELLERS.
Palmer, C.
Palmer C. F.	Hamilton, lord A.
Pares, Thomas	Kennedy, T. F.