TRIAL BY JURY IN SCOTLAND.

HC Deb 01 April 1830 vol 23 cc1138-76

he Lord Advocate

said, the subject which it was his duty to introduce to the consideration of the House was one of the utmost importance, It affected the general ad- ministration of justice in a large portion of the United Kingdom, and he hoped consequently that it would not be deemed unworthy of their notice. The object of the Bill which, with the permission of the House he meant then to bring forward, had been, at an early period of the Session, explained, so far as regarded its principles and bearing, by his right hon. friend, the Secretary of State, who declared the intention upon the part of the Government to propose those changes which it embraced, and which were destined for the improvement of the administration of justice in Scotland. He regretted that he had been prevented by circumstances from introducing this measure until the present advanced period, though the House must be aware that the delay was no fault of his. Having said this, he would now observe, that the statement of his right hon. friend was general, and consequently, that it devolved on him to detail more minutely the objects and principles of the. Bill, that they might be better understood by the House and the country. In doing this, however, he would not fatigue the House by touching upon unnecessary points. He would briefly address himself to the principles of the Bill, and these were twofold; the first and chief was the improvement in the administration of justice in Scotland, which was essentially and continually kept in view; and the other was the effecting of a considerable saving in the public expenditure. These were the two ruling principles of the measure; and if it should further appear that in carrying them into effect there would be a great sacrifice of patronage, he trusted it would not render them less acceptable to the House. The first and most important part of the measure was to give to Scotland the form of Trial by Jury in civil process, by uniting it with the proceeding in the Court of Session. Some Members might not be, perhaps, aware that it was not yet fifteen years since Trial by Jury was introduced into Scotland. Previous to that period the practice was, before trial, when any difference as to a point of fact was involved, to appoint a commission to examine witnesses, and take down their depositions in writing, without any means of examining into the relative situation or motives of the witnesses, and without any limitation in respect of the nature of the evidence which was to be taken. Now, the peculiar inconveniences of this system were very great, particularly in Appeal cases brought before the House of Lords, which being overwhelmed with the mass of papers laid before it, had the best opportunity of observing the evils it induced, and were consequently most anxious to provide some remedy. Accordingly, in 1815, an Act was passed to remedy this by substituting parole evidence and Trial by Jury for the old plan of examining witnesses by a commission. That Act first gave Trial by Jury to Scotland in civil causes. In doing so, however, they found it necessary to proceed with extreme caution, for the people were wedded to old forms; and therefore it was only brought forward in a separate court, at the head of which was placed an individual of great general knowledge, who was well acquainted with the process of Trial by Jury in England, and who was also known to unite to the highest good feeling towards Scotland a great knowledge of its laws. The jurisdiction of his court was for four years confined to special issues, sent to it as a Jury Court from the Courts of Law. But it having been afterwards found that Scotland was not so averse from this form of trial as had been at first imagined, a new Act was passed in 1819, which permitted not merely issues, or points in particular causes, but the whole cause to be sent from the Court of Session before the Jury Court. Thus did Trial by Jury go on from year to year till it became acceptable to all classes of Scotsmen. And he wished it specially to be remarked that, during this whole period, it was intended, upon the part of Government, that Trial by Jury should be united with the proceedings of the ordinary courts. This appeared in all the Reports, and in all the Acts of Parliament; and even so late as 1825 an Act had passed, which extended the powers of the Jury Court in a variety of ways, and bringing under: its jurisdiction a much greater number of causes cognizable by that mode of trial alone than before. By that Act also it was determined, in order that the union of the Jury Court with the Court of Session might take place on the 30th of June, 1830, that the New Court should exist only to that time. A commission having been appointed to inquire at what time the union might be made, and in what manner it might be best effected, reported, in 1827, that it might be made at any time after June 30th, 1830, and that union it was now his intention to propose. He could lake upon himself to say, that the people of Scotland were now perfectly reconciled to it, and the only difficulty in its way was the very existence of that separate court which had been created as an experiment of the system of Trial by Jury; and which, in consequence of the number of causes referred to it from other courts, was attended with considerable delay and expense. He was convinced, that when the powers of Trial by Jury were extended, all these objections would disappear. He did not calculate on opposition from any hon. Member present—the benefits of the system were so obvious, and so dearly prized by those who had the happiness to enjoy them. He was prepared to say a great deal on the subject, but it would be a mere waste of words, because he was sure the House was already disposed to go with him, and because he could state that it was the general desire of Scotland that the change should take place. This he declared was in accordance with the feeling expressed by the Scottish bar, and by the people of the country. And if there were one opinion whereby the House ought to be influenced more than by any other, it was that of the chief of the jury Court, who, for a period of fifteen years, by his great talents, impartiality, temper, and accommodating spirit, had laid the prejudices of the country under his feet, and had bestowed such a been on her, that Scotland, he was well convinced, would continue to honour his memory to the latest times. For himself, there was nothing he was not disposed to say in his praise—nothing which he would not amply deserve. And when it was stated that this gentleman had declared in evidence that the Trial by Jury might be taken from his hands, and out of his court, and made comparatively general, he conceived that he had laid before the House a most powerful reason for according with his proposition. He would now detail the general provisions of the Bill. The first was, that it should come into operation on the 5th of October, which might be considered as the close of their year, the Circuits being over, and the proceedings for another year not commenced. The second point was, to send all causes now triable in the Jury Court before the Court of Session, but to try them there after the same fashion; namely, by a Jury. No choice was to be admitted in this case, and means were to be taken to increase, instead of diminishing, the number of causes in which Jury Trial might be had of the Court of Session. Next, it was proposed to confine the trial of issues to the presidents of the first and second division, who alone were to preside in all such trials, because they were men of the highest talent, well read in the law, and intimately acquainted with practice. Besides, advantage was to be taken of the services of the Chief Commissioner, the Judge who now presided in the Jury Court. His days were unfortunately drawing to a close in the ordinary course of nature; he was now fourscore; but while he lived, no trial of issues would take place, unless he (the Chief Commissioner) or one of the two Presidents, was on the Bench. This was to last for a period of three years subsequent to the appointed time, and on these terms he believed the union would be more satisfactorily accomplished than it could be upon any other. It was the Lord President of the Court of Session who had suggested this to him; and he was certain of success in the prosecution of the general measure, from the good feeling which existed between the two Courts. Next, he proposed by the Bill to abolish all the separate Clerkships of the Jury Court, and attach the Clerks to the Court of Session. These alterations would undoubtedly be useful to the country, and occasion a great saving of expense. Further, he intended that the Court of Admiralty, as it was then constituted, should cease to exist. Scotland had, in days of yore, like England, her Lord High Admiral, who administered justice, and presided in this Court. At the time of the Union between the countries, however, this Court was, by a special clause, placed under the English Court of Admiralty, and it was thus declared that "the Court of Admiralty of Scotland is to remain in the same manner after the Union as now, until the Parliament of Great Britain shall make such regulations and alterations as shall be judged expedient for the whole United Kingdom, so as there be always continued in Scotland a Court of Admiralty, such as that in England, for determination of all maritime eases relating to private rights in Scotland, competent to the jurisdiction of the Admiralty Court, subject nevertheless to such regulations and alterations as shall be thought proper to be made by the Parliament of Great Britain," Matters remained in this state until the present time. The Vice-admiral of Scotland had appointed his Deputy, but in 1784 he was appointed for life by the Crown, and the Court had a jurisdiction in mercantile as well as criminal cases. The judgments of this Court of Admiralty, however, were liable to the revision of the Courts of Common Law. Thus, it appeared it was an inferior Court, for other Courts had a concurrent jurisdiction, as well in the trial of crimes and misdemeanours committed on the high seas as in mercantile cases. It could not, therefore, be advocated as useful. It was not a superior Court, nor had it the advantages of a local Court in cheapness or convenience, because all men, even from the remotest parts of Scotland, must come to Edinburgh, if concerned in proceedings of that Court respecting a matter from 30s. to 5l. It was, therefore, the intention of Government to do away with this Court altogether. There were some cases in which the sum in dispute was under 25l. where the parties went before the Sheriff, who judged them as in ordinary cases; but when the sum in dispute exceeded 25l. it went before the Judges of the Court of Session. He thought that what he was now about to propose was an obvious improvement upon the present system of the administration of justice in Scotland; and that among its other advantages it would save both delay and trouble to the suitor. He thought it right to mention in this place that what he proposed was not such an alteration as would be a violation of any article of the Union: by some persons it was imagined to be so; but he had read the article of Union relating to this subject, and he was entirely of a different opinion. That article stated, "that the Court of Session, or College of Justice, do after the Union, and notwithstanding thereof, remain in all time coming within Scotland;" and it made the same provision with respect to the Court of Justiciary and the Admiralty Jurisdiction, and then further provided "that no causes in Scotland be cognoscible by the Court of Chancery, Queen's Bench, Common Pleas, or any other Court in Westminster Hall; and that none of these Courts should have the power to alter or review the judgments of the Courts of Scotland." It was clear, therefore, that the object of the Legislatures of the two countries was, that parties should not be obliged to come to England to obtain justice. In that respect he should not violate the articles of the Union, for what he was prepared to do was, to give to the people a more useful Court than that which they now enjoyed. On these grounds he proposed to do away entirely with the Court of Admiralty, and to substitute the jurisdiction of the Courts of Common Law, the Sheriff's Court, and the Court of Session for it. The next point in which he intended to introduce any alteration was, in what might be called the Consistorial Court of Scotland. That Court was originally an Ecclesiastical Court; it afterwards exercised a jurisdiction not strictly Ecclesiastical, but it resembled that species of tribunal more than any other. It was not, however, confined to cases that properly came within an Ecclesiastical jurisdiction, as in England, but decided on other causes, and was subject to have its decisions reviewed by the Court of Session. In making these appeals, the course had been, after obtaining the judgment of this Court, to go to what is called the Outer Court, and then again to the Inner House, so that, in fact, the case was decided on three times before it was finally settled. The jurisdiction which this Court possessed was of a two-fold nature. In the first place, it had the power of granting administrations of wills, or grants and confirmations, as they were called in Scotland—by which executors were named, and received their authority to carry into effect the directions of the deceased. These proceedings, of course, took place during all limes of the year. That part of its jurisdiction which related to grants and confirmations would not be altered; it was well enough in its operation as it stood at present: but there were other parts of its jurisdiction which required revision. The Court of Commissaries, or Consistorial Court as he might call it, gave judgment in a most important class of cases. It decided in all cases upon questions relating to the civil condition of individuals, on questions relating to legitimacy or illegitimacy; and in that Court alone could suits brought to determine such questions be instituted. It decided, too, upon questions relating to the validity of marriages, it declared whether they were good or bad, valid or null; and it possessed the power, not only of awarding a decree of divorce a mensa et thoro, but of issuing a decree of actual divorce—a power, which in this country (as the proceedings of that night had furnished an example) required all the authority of Parliament. The decision of the Court of Commissaries of Scotland was subject to the review of the higher tribunals; and it was now meant to refer the jurisdiction of all the classes of cases he had mentioned from that Court to the Court of Session. That was the measure which he now proposed to carry into execution. He contended that that proposition was in no way unconstitutional, but on every ground highly expedient. He admitted that this Court did not stand on exactly the same ground with the other; but in all an appeal lay to the Court of Session. He proposed to place the decision of all these cases in the hands of the Judges of the Court of Session. That the Court of Session was originally intended to possess that power was clear from the Act of Parliament passed in Scotland relative to this subject. In the Act of Parliament made in Scotland for the purpose of defining the jurisdiction of this Court, it was said, that if the Commissaries did not do their duty in the matters brought before them, the Lords of Session should have the power to determine the same, and that because the Lords of Session were his Majesty's great Consistory for cases of this description, and possessed the highest jurisdiction to hear and determine the same. Such was the language of the Scotch Act of Parliament, and in his opinion it showed most clearly, that, according to the original intention of the Legislature, these powers were to be exercised by the Court of Session. Considering the great importance of the class of cases he had referred to, he trusted that the House would see at once that their decision should be confided to the hands of those most fit to determine them. He saw the necessity of this alteration the more particularly, as in the present state of opinion in this country relative to questions of marriage and legitimacy, he was convinced that if some change did not take place, and a steady principle were not adopted in the decision of these cases, there would be, some day or other, a remedy applied very different from that which he proposed to adopt. Though he had not the slightest wish to do any injustice to the individuals who composed that Court, and though he was most anxious to say that they discharged their duty with the utmost possible attention, he was yet convinced (and it was no fault of theirs) that many actions of collusion took place in the Court. He would refer to a return, which would go some way to justify him in this assertion. During the last two years, forty-eight claims for divorce were entered, and in only nine of these cases was appearance entered for the defenders, so that in thirty-nine cases of divorce, they were carried on entirely at the instance of only one of the parties; and when, besides this, it was recollected that divorces were granted for more than one cause in Scotland, that they were granted not only for adultery but for what was called non-adherence; that is, that if a man and his wife did not live together for four years, that would be a ground for obtaining a divorce; he said, when the House recollected all this, they would see in how many cases of divorce it was likely that collusive actions would arise. By coming to the Court of Session, he thought a check would be imposed upon the practice. From the publicity that would then be necessary, and from the mode in which the cases would be treated, in all probability the parties who now brought these collusive actions would abstain from them in future, and that a number of these cases would never appear; or, if they did appear, the verdict would be founded upon examinations more strict than hitherto. He repeated that, in making these observations, he meant to throw no imputation upon the learned individuals who now composed that Court, for the evil was beyond their power of preventing. The only exception that was even hinted to the plan he had now proposed was, that it would be cruel in its operation upon the poorer classes, for that they could not, but at a great expense, obtain a divorce, if these alterations were effected. He did not think that this objection was valid, for even if it were true that great expense would be necessary in order to obtain a divorce, he was not sure but that, in such actions as these, increased expense would operate beneficially rather than otherwise. But he thought that the merits of the measure could not be disputed on these grounds; for it must be granted to him, that in cases of appeal from the Consistory Court to the Court of Session, the expense must be greater than it could be if the suit were commenced in the Court of Session. From a return which had been communicated to him by a gentleman well acquainted with the subject, he believed that the expense would be found to amount, under the operation of the measure he now proposed, to a sum of 53l. 19s., at present it was upwards of 20l., and he thought, that if a decree for a divorce could be obtained at such an expense, there could be little objection, on that score, to his plan. The other point that required attention, as to the measure he now proposed, was as to the mode of proof to be adopted in these cases. It would be a question whether it would be right to remit these cases to the decision of a Jury Trial? He did not mean to exclude that mode of trial altogether, but he thought it would be expedient to leave the Court to judge what were the cases in which it was fitting that the decision should be by that mode of inquiry. With this view, he should propose to reserve one of the Commissaries out of the four now appointed, in order that he might examine the nature of the proofs submitted, and then remit them to the Court of Session. Such was the plan he now proposed for the adoption of the House—a plan by which the Court of Commissaries would not be entirely done away, but three out of four of their number might be dispensed with. He begged to apologise to the House for the length of detail into which he had gone, but he had felt bound to do so, as the subject was one of great interest in that part of the country to which he belonged. Having thus proposed to give the Court of Session a great additional duty connected with the Jury Trial, and with the decision of cases now determined in the Admiralty Court, or in the Commissaries Court, he should proceed to state an alteration of another kind which he also proposed to effect. Notwithstanding all these additional duties, he was prepared to propose a reduction of two of the Judges of the Court of Session. He was under the necessity here of explaining the reasons why two of these Judges could be reduced, and why only two were to be reduced. The House might probably not require a reason for the last of these propositions; but as in Scotland there was a feeling, and a strong feeling, that this ancient Court ought not to consist of a less number of persons than had hitherto composed it, the explanation was strictly necessary. The Court of Session owed its origin to the Privy Council of Scotland. James 5th, in the year 1537, constituted fifteen persons Judges of the Court of Session; the Lord Chancellor was a member of the Court, and the Judges were to have the power of adding four of the great men of his household to their number. At the time of the Union the Court did consist of all these persons—of the Lord Chancellor, the Lord President, and fourteen Judges, together with the four additional Judges of whom he had already spoken. At that time they sat at what would now be considered an extraordinary hour—they sat at eight o'clock in the morning and rose at eleven. The objection made to that part of his plan which he was now discussing was the same he had before adverted to—namely, that it was contrary to the Articles of Union. Now, on referring to the Articles of Union, he found that the Courts then in existence were to remain in Scotland, "with the same authority and privileges as before the Union, subject, nevertheless, to such regulations for the better administration of justice as shall be made by the Parliament of Great Britain." Under that power, it was quite clear that the Government was fully warranted in reducing the number of Judges as Parliament might think fit. The terms of the Article were, that the Courts should remain as they were then constituted; but it was clear that that did not refer to the number of the Judges; and the power of Parliament to making any alteration in that respect at least, was proved by what had happened within a few years after the Union. In the year 1723 an Act was passed for the purpose of declaring that whenever the places of the four Extraordinary Lords of Session, or any one or more of them, should become vacant, no presentation or nomination to fill up the vacancy or vacancies should be made by his Majesty. That enactment showed what was the sense of Parliament as to their competency to make a reduction in the number of the Judges of the Court. Other changes had occurred since. The one Court had been divided into two Courts, at first consisting of five Judges each, and now of four; the remaining Judges being employed upon a totally different duty. He regretted that he was obliged to go into these details, which were very tiresome he was afraid; but it was necessary for the due understanding of the case. All trials were first held before one of the Judges of the Court of Session-; and if the case was terminated there to the satisfaction of the parties, there was an end of the matter; if not, there was an appeal to the other Judges of the Court. In 1813 an Act of Parliament was passed for separating the Court into two divisions of five Judges each, and appointing the remaining five Judges permanent Lords Ordinary. It so continued down to 1825; but at that lime the number of permanent Lords Ordinary was increased from five to seven. It had appeared since, that that addition was totally unnecessary, and the object of the measure now proposed was, to reduce the number to what it had been before. It was clear that they might be spared; for it appeared from a return which he held in his hand, that the same quantity of business had been performed by five as was now performed by seven. Indeed, not only the same, but a greater quantity of business had been performed by the lesser number. He would read a return, from which it appeared that on the average of the ten years previous to the year 1828, the number of new causes entered amounted to 2,308, while the average number of new causes entered within the last ten years amounted only to 1,564. So that more business had been, in fact, done by five Judges than by seven, and he apprehended that two of the number might well be saved to the country. In that opinion he was confirmed by Judges who had done much of the duty that fell to the lot of Lords of Session, Under these circumstances it was, that he proposed this reduction. But there was another reason why the number should be reduced; and that was, the difficulty that would be found in obtaining the attendance of the Bar. That difficulty had, indeed, been already felt. Each of these seven individuals might hold a separate Court; and with one Bar, the greatest confusion must then prevail in obtaining the proper attendance of Counsel. To remedy that inconvenience these Lords Ordinary only sat two days in the week. But there was another evil connected with this part of the system, and that was, the difficulty of filling up the places of these Judges. Great and powerful as were the talents of the Bar of Scotland, it certainly would not be found sufficient to supply the present number of Judges, at least upon the principle on which they were now selected. The time was, when Judges were chosen for a different reason from that of the possession of legal talent and knowledge, when country gentlemen, on account of their fortune, were appointed to fill the Judicial situations of the country, and when only a few eminent lawyers were put upon the Bench; but since his right hon. friend had had the management of that department no such thing had occurred; and he repeated, that in the present mode of appointing the Judges, the Bar of Scotland would not afford the necessary number, without at least leaving that Bar in such a state that it ought not to be left, for there ought always to be men of such experience and learning as were qualified to advocate the causes of the lieges with due effect. No more, however, than two Judges could be spared. There were now two divisions of the Court, consisting of four members each, and they would not admit of further reduction. Four had been the number of the Judges in the English Courts, and when the experiment was tried in Scotland it was found to answer there. Any further reduction, therefore, must be made out of the remaining five. Now of these one was appointed to determine on applications to stay the service of writs, a duty which required the immediate operation of judicial authority. Those matters which were heard in the Courts of Equity here, were in Scotland determined by one of the Lords Ordinary; such as interdicts, injunctions, and other questions immediately affecting the personal liberty and rights of the subject. Two of the Lords Ordinary attended each division of the Court. No more, therefore, than two of these Judges could be reduced, unless there was a total alteration in the formation of the Courts of Scotland, an alteration which that House certainly would not think of attempting in a country where the people were so well satisfied with the administration of justice, and where the question had been so fully discussed as this had been, by a Commission, composed of the Chief Justice of the Common Pleas, of the Chief Baron of the Exchequer, of Mr. Justice Littledale, of Mr. Courtenay, Sir Samuel Shepherd, and Mr. Adam; by whom no such alteration had been deemed necessary. As he proposed to impose new duties upon the Lords of Session, so he should find it necessary to lengthen the period of their Session. He therefore submitted that one month ought to be added to their time of sitting. They now sat six months, with the exception of a small vacation at Christmas; of which, however, they had almost been deprived by the time now occupied in Civil and Criminal Trials before a Jury. It must not be forgotten that the same Judges sat to decide upon both civil and criminal matters; and he regretted to be obliged to state that their business, in the latter department, had much increased of late years. There were returns on the Table which showed the amount of this increase. In the three years preceding 1810 the average number of criminal trials in the High Court of Justiciary at Edinburgh amounted to fourteen; on the Circuits the number was ninety-one, making a total of 105; while the average of the last three years showed that the criminal trials in the High Court at Edinburgh amounted to ninety-three, and on the Circuits they reached as high as 227, making a total of 320. When there were so many criminal trials, the House would perceive that a considerable portion of the time of the Judges must be devoted to this purpose, for the trials of criminals in Scotland were conducted in a different manner from the same trials in this country. Not only were Counsel allowed to the prisoner, but as it was a fixed principle in the Scotch law that more than one witness was necessary to prove a criminal charge, a considerable space of time was often employed when only one witness could be procured to swear to the direct charge, in order to examine others as to the circumstances which would be sufficient to make up for the want of the other witness. He should not go too far if he asserted that in addition to the six months occupied by trials in the Court of Session, one fortnight was devoted to each sitting on civil trials. Four weeks were employed in civil, two weeks in criminal cases, and the Circuit occupied six weeks, making a total of three months; and if to these was added the month of lengthened Session proposed by his Bill, the House would see that out of the year the Judges were only allowed two months' leisure. Even that time, however, was not a time of leisure; for, from the course of proceeding in the Courts, from the circumstance of the pleadings being all in writing, and requiring to be studied at home, the Judges were, in reality, during a great part of these two months occupied in preparing for the trials that were afterwards to come before them; so that, in fact, they would only have the time absolutely necessary for men of their age to enjoy that relaxation that, was necessary to fit them for the discharge of their active duties. He was glad to say that he was now hastening to a close; but there was still a further subject of reduction which he had to notice. He referred to the office of Lord Justice-general of Scotland, the duties of whose office he proposed to transfer to the Lord President of the Court of Session. That noble person (for the office was held by the Duke of Montrose) was the practical head of the Criminal Judges of Scotland. The noble Duke might, if he so pleased (but he had never done so), go down to Scotland, and assume the chief authority in the Criminal Courts there. The House would agree with him that there was nothing so unfitting as that an individual, not educated to the law, should possess all the chief power of administering the criminal law of the country. It was proper, therefore, that this office should cease, and that the authority belonging to it should be transferred to other hands. It was now in fact a sinecure, and a sinecure meant an office to which no duty, but a large salary, was attached. In transferring the office, as he proposed to do, they would act upon an exactly opposite principle; for they would impose a large duty, but accompany it by no grant of any salary whatever. It was quite impossible that the Lord Justice Clerk could discharge the whole of the duties that would thus devolve upon him; and he had accordingly joined with him, for their due performance, the Lord President, who was to undertake a part of them. Before he proceeded to the last Court to which this Bill would apply, he wished to state that he thought he had shown that the Lord Justice Clerk and the Lord President would have ample occupation. They must be well acquainted with every case, as the country looked especially to their opinions. When once the union, of which he had spoken, was completed, and the country became more acquainted with the nature of the Trial by Jury, and its advantages, he was confident that the number of civil cases would be increased, while the criminal business would not be diminished. It remained for him only to advert to the Court of Exchequer, the origin of which in Scotland might be traced back upwards of 400 years. This was the oldest of all the Courts we knew in Scotland, and indeed from its nature must be so in every country—the Exchequer would be almost coeval with the history of taxation. By the Act of Union it had been preserved to Scotland, with the same powers as the Court of Exchequer of England, and it received its particular shape principally from an Act of Queen Anne. So anxious were the Cramers of the Union to preserve the jurisdiction over revenue cases in the Exchequer, that they distinctly recognized its authority; and the Articles of Union themselves, with unusual particularity, set out the precise amount of revenue derived in Scotland from the Customs and Excise, at that period. By the 15th Article it appeared that the whole amount of the receipts in the Customs' department was 30,000l., and the whole amount of the receipts in the Excise Department was 33,500l., making- in the whole, 63,500l. Since that date the produce of the Customs and Excise had increased in a remarkable degree. It was as follows:—

Customs	£1,376,000
Excise	2,839,000
Making a total of	£4,215,000

If then it was thought, at the date of the Union, that a Court of Exchequer was necessary to Scotland, it could not now probably be disputed that that necessity was not diminished. At the same time, under the existing arrangements, it had been found by Government, after the fullest inquiry, that the number of Judges of the Exchequer might be reduced without disadvantage. Those Judges were formerly four Puisne Barons, besides a Chief Baron; but about nine years since the number had been lessened to three Puisne Barons, and a Chief Baron. It was now proposed to abolish two more of the Puisne Barons, so as to reduce the Court to one Puisne Baron, and the Chief Baron. He contended that the business of this department could not properly be confided to one individual, however competent; and he thought it would be admitted that two were the smallest number of Judges that the Court ought to consist of. If one Judge were absent from accident or illness, there would still remain another to discharge the duties of the situation; whereas, if only one Judge were provided, no such resource would be left. In order to provide against contingencies, a clause could be introduced to enable the Chief Baron and Puisne Baron to call to their assistance one of the Judges of the Court of Session. He was prepared to expect that some hon. Member would argue that the Court of Exchequer in Scot-land might be entirely abolished; he in- sisted, on the contrary, Scotland was entitled to a Court of Exchequer in some shape or other, even if some grounds could be shown why it ought not to exist; she had a just claim, by the terms of the Act of Union, that her Court of Exchequer should not be wholly abolished. He made this assertion with confidence, and with some knowledge of the subject, having for eleven long years attended that Court, and argued every case there under discussion before the Lord Chief Baron, Sir Samuel Shepherd, that most learned and enlightened lawyer. He maintained, also, that to throw the business of the Exchequer into the Court of Session, would not only be most inexpedient but most unjust; neither would it produce any saving of expense, if that were the object, inasmuch as additional labour could not be thrown upon individuals without additional emolument. In such a change, no advantages that he could contemplate would by any means counterbalance the disadvantages. He was happy to say, and no doubt the House would be happy to hear, that he had arrived at the close of his explanation; he had endeavoured to point out, as clearly and as succinctly as he could, the different alterations he proposed to make; but he was aware that he had been necessarily led into some minute and tedious details. He believed that all who heard him would bear him out in the opinion, that the changes were calculated to promote the due administration of jus-lice in Scotland; he was prepared to defend them upon that score, and if they were not so defensible, he, for one, was ready to abandon them, for considerations of expense in such a case were entirely secondary and inferior. It could not, however, be disputed, that if these beneficial reforms were attended also with a saving of the public money, it was an additional recommendation, and that saving might be stated as follows:—

In the Jury Court the saving would be	£11,000
In the salary of the Judge Admiral	800
In the salaries of three Judges in the Commissary Court	1,800
In the salary of the Justice General	2,000
In the salaries of two Judges of the Court of Session	4,000
In the salaries of two Judges of the Court of Exchequer	4,000
	£23,600

In a pecuniary point of view, therefore, the gain to the country would not be inconsiderable; and it would also be ob- vious, that by this arrangement the Government would sustain a loss of patronage, and that not eventual, but immediate: in fact, in some respects, it might be even said to have been forestalled. Eighteen high officers were to be abolished, all connected with the Bar of Scotland—that most influential body, whom, if Ministers were anxious to maintain their popularity, they ought by every means to conciliate. That object would certainly not be accomplished by the plan he now proposed; and be might say that he knew that in the part of the kingdom with which he was best acquainted, this part of the measure would not be well received; the state of the public mind there, was materially different from the state of the public mind here; but he trusted that when the real merits of the Bill were understood, the good sense of the people of Scotland would enable them to value the proposed changes at their real worth. At present they reprobated all changes in the judicial system; and he was aware that some part of the odium attending this measure must rest upon himself. Of this, however, he was quite sure—and it afforded him great satisfaction—that nobody in Scotland or out of it would question the purity of his motives; they might disapprove of the new system, but they would be convinced that his only wish was, to benefit his country; they must, indeed, be short-sighted who thought he could possibly be actuated by any but the most disinterested intentions. He trusted that the measure would be followed by all the benefits anticipated, and that it would reflect upon the Government the just degree of credit due to its exertions and its wishes to improve the administration of justice. After thanking the House for the patience with which it had listened, the learned Lord moved for leave to bring in "A Bill for uniting the Benefits of Jury Trial in Civil Causes with the ordinary Jurisdiction of the Court of Session, and for making certain other Alterations and Reductions in the Judicial Establishments of Scotland."

The Question was put from the Chair.

Sir Michael Shaw Stewart

said, although he could not but regret the delay that had taken place since notice was first given for the introduction of this bill—a delay that could not but be inconvenient to the Lord Advocate himself, and to all the Members connected with Scotland, as well as displeasing to the people of Scotland, who are so deeply interested in this Bill, yet he must confess that he had heard with much satisfaction the details as far as they went, and as he understood them, of the bill as now proposed to be introduced by his learned friend, the Lord Advocate, who, he must say, had upon all occasions within his experience always shown much candour and readiness in promoting any measure of public improvement that he felt himself, in the exercise of his great official responsibility, justified in consenting to. But there was something so new and so liberal in the proposed improvements and curtailments in the system and expenditure of the administration of the law in Scotland, that he could not but mainly attribute them to the enlightened mind of his right hon. friend the Secretary of State for the Home Department, in conjunction with the noble and learned Lord at the head of the administration of justice in this country; and under this conviction, he could not help expressing an anxious hope, that when the multiplied and important public claims that pressed so heavily upon his right hon. friend would allow him leisure to look more and more into the details of the courts of law in Scotland, that he would be disposed to feel the incumbent propriety of carrying the effects of his salutary revision considerably beyond the scope of the Bill now before the House; and he could assure him (and he wished to speak with becoming moderation on the subject, and with sincere veneration for the institutions of his own country, and for the able and excellent individuals who preside over them), yet he could assure his right hon. friend, that he would have for his recompense the gratitude of the people of Scotland, for it was a revision that in some important respects was, he believed, much required. Without presuming to enter at present, prematurely and imperfectly as he must always under any circumstances do, into the details of the Bill, he might be permitted to say that he thought there could be but one opinion as to the great advantage of promoting the extension of Trial by Jury in Scotland; for although, limited as it had hitherto been to a separate court, its benefits may have appeared doubtful to some, yet when it becomes co-extensive and united with the jurisdiction of the Court of Session in all civil causes, as he understood it to be the object of this Bill to make it, its beneficial effects in shortening' the length, and thereby diminishing the expense, as well as in giving more exactness and certainty to the proceedings of the courts of law, would, he was persuaded, be speedily and gratefully experienced; and he trusted that these benefits of Trial by Jury would not be limited to the Court of Session, but that, in conformity with a very general wish among the people of Scotland, it would be found expedient and just to extend it to every provincial Sheriff Court in that part of the kingdom. As a very effectual means of reducing the great expense of law proceedings in Scotland, not included in the Bill, but to which he would entreat the particular attention of the right hon. the Secretary of State, and the Lord Advocate, viz. a revision of the Fees to Clerks of Courts, which were, he believed, a ceaseless source of heavy expense to every litigant in Scotland. These fees were, he was aware, regulated and sanctioned by the Court of Session; and it was for this very reason that he asked his right hon. friend to take them under his own immediate revision; for he was convinced of his sincere desire, as he forcibly expressed it in his able statement on a former night in developing the proposed law reforms, to make justice as cheap and also as expeditious as possible; and he had indeed given substantial and beneficial proofs of the sincerity of that desire, and of his great ability to carry it into effect. Perhaps the House would permit him to read a part of a letter he had received, among others, from a most respectable and experienced professional gentleman in Edinburgh, as it would convey some information on the subject much more concisely than he could relate it: — "The first improvement in the Court of Session, and the one which would diminish expense most, would be to abolish all fees to Clerks of Court, and let Government pay the salaries of the necessary Clerks as well as of the Judges. If this were clone, it would not cost above one-fourth for Clerks of what it does at present. The six principal Clerks and six Depute Clerks of Session are nearly sinecures, and for them the litigants are charged with a fee-fund of about 9,000l. a-year. There is a second fee-fund for fifteen Lords' Clerks, whose fees were introduced by Sir Islay Campbell, and cost the litigants about 6,000l. Then there are closet-keepers, extractors, &c. all paid by fees on every step of procedure in the Court, so as to cost the litigants upwards of 20,000l. for Clerks of Court. If Government were to remodel the Clerks, they could get the business better done for about 5,000l. or 6,000l. They might continue as much of the fee-fund as would pay the present Clerks till they die out. The expense of litigation is so great, that it soon exceeds the amount of the sum in dispute, if it be of moderate amount; and it becomes often better to acquiesce in an unjust demand than incur the risk and expense of a law-suit. There seems no reason why the litigants should be taxed to pay the Clerks of Court more than the Judges; and Government have set the example in the Jury Court, where they pay all the Clerks. If they were to new model the Clerks, and fix moderate salaries for no more than are absolutly necessary, they would confer a great benefit on the country at a very moderate cost to Government." He would only beg to add, that whether Government would consent to pay the fees of Court or not, he trusted the result of a revision would be, a great reduction of these fees, and a greater reduction of the Clerks than was proposed by the bill before the House. There was another point to which he must advert, and not mentioned in the Bill, yet entailing-great expense and greater inconvenience on the people of Scotland, and he hoped the learned Lord would give his immediate consideration to it—he meant the cumbrous and multifarious forms of deeds and writings at present in use for the transmission of heritable property from one individual to another, and for mortgaging the same. He was convinced that the good sense of the country at large, and he believed the majority of the learned profession, were impatient to have these forms superseded by forms drawn in simple and precise terms, and divested of all that technical tautology which leads, from the mere inaccuracy of clerks in a single word in copying these complicated forms, to consequences the most serious and severe. He trusted that the learned Lord would yield to the general feeling of Scotland, and would bring in a bill to abolish altogether infeoffments and seisins, and enact that the deeds of transfer of heritable property and heritable securities be publicly registered in their stead, letting the regulated fees of seisins be paid on these deeds, so protecting the invested: interests, and he trusted also, thus muffling, if not altogether arresting, any opposition to this great improvement from the principal keeper of seisins and all his subordinates. He thought that the practice of introducing into many recent Acts of Parliament condensed forms of writing for the purchase of land for rail-roads, canals, &c. and for borrowing money on the credit of these, afforded a direct and useful precedent for what he had ventured to suggest, He believed that bequests left to public bodies and heritable institutions were worded in very concise terms, which were held to be binding on executors, and to be good in law; and if he were not mistaken, the largest mercantile transactions were securely completed, simply by an invoice and a bill of exchange. It seemed, therefore, very hard and absurd to his unprofessional mind, that land should be the only species of property that in its transmission should not enjoy the great benefit of concise and secure forms. But he was persuaded that his learned friend must feel the necessity of an alteration in this respect, and he trusted he would, with his usual liberality, undertake and effect it. There was one other point to which he would beg leave at present to allude, and as it was one of heavy expense and complaint among the people of Scotland, he should feel that he was not doing his duty were he to omit it on this occasion: he- alluded to the high rate of Writers' charges. These charges were a heavy tax on all the property of Scotland, and he called upon his hon. friends, the representatives and gentlemen of Scotland, to refute or confirm what he now stated; and he begged to say, that he made this statement with all due respect for that able and intelligent body of gentlemen, the Writers to the Signet of Scotland. He blamed not them, for these fees were, he understood, regulated and sanctioned by the Court of Session, and that being the case, he felt that he ought not, as a trustee of the people's money, to consent to any augmentation to the salaries of these controlling judges, until he had received some assurance from the learned Lord that there should be a revision and reduction of these charges of which he complained in the name of the people of Scotland. And abundant reason the people had to seek every possible reduction of legal expense; for the sum annually consumed by law, in all its gradations, shapes, and varieties, in Scotland, was, he believed, truly enormous. Leaving to other opportunities, and to abler and more experienced minds, the mote serious duty of going into the details of this Bill, and suggesting such amendments as might be thought practically advisable,—and many such, he trusted, would be matured and adopted on this most vitally important measure for Scotland—he would only at present beg leave further to express his unfeigned respect for the very able and distinguished individuals that now presided in the courts of law in Scotland. He believed the bench altogether never was more ably filled; and the truly efficient Judges of the outer House—all of whom were, he believed, appointed by his right hon. friend (and their appointment reflected the highest credit upon him), have given great, and general satisfaction in the country. And it was because the Judges were so efficient that he rejoiced to see, by the provisions of this bill—although he would have liked it better had the number of Judges been reduced to twelve—yet he rejoiced to see that, henceforth, Scotland was likely to derive a fuller and a juster share of benefit from the labours, the learning, and the talents of the eminent persons who now administered her laws [cheers].

Sir G. Warrender

said, unless the effect of the present measure were to produce a considerable improvement and reduction in the judicial establishments of Scotland, he should be the last man to concur in its adoption. But he thought it would be beneficial as far as it went, and felt grateful for it. He fully concurred in what had fallen from the hon. Baronet on the subject of Fees: he himself had received communications, stating that the middle classes in Scotland wore frequently deterred from applying for justice in consequence of the enormous amount of fees. The salaries to clerks derived from fees amounted to 24,000l. a year. Another system with regard to fees should be adopted, and the clerk, instead of being paid by fees as at present, should be remunerated in a different manner. There was no point which the people of Scotland were more desirous of having altered than this, for the extent of the Clerks' fees in Scotland amounted in many cases almost to a denial of justice. He did not quite concur with the learned Lord in what he had said regarding the degree of patronage relinquished by Government in the present Bill, because, in his opinion, judicial appointments ought never to be made the subject of patronage. Such had been once the case, but the practice was now changed, and public opinion would not allow it. It had been said that the Scotch bar had been exhausted by the existing judicial appointments, and he thought he could point out to the learned Lord ten or twelve individuals now at the bar well qualified to fill the situation of Judges. He concurred entirely with what had fallen from the hon. Member for Knaresborough on a former occasion— that men might be found in the middle classes of the Scotch bar fully competent to act in a judicial capacity; and it was to be observed in confirmation, that two of the Judges, whose decisions had given most satisfaction, had not enjoyed practice to the extent of 800l. a year at the time they were appointed. The measure, as far as it went, was good, and he, therefore, thought that they ought to be grateful to the Government for having adopted it. It was a plan that had for many years been suggested, and he had the fullest expectation that it would be found in every respect to succeed. They were all agreed, he believed, that it was proper to decrease the number of Judges, and he hoped that question would be discussed on its own merits, and without any reference to any proposition for increasing the salaries of those who remain. His right hon. friend (the Lord Advocate) had staled, that though the Judges were now employed six months, their work would be increased. He had also stated that fresh labours were to be added by the Admiralty and Consistorial Courts, and by the Jury Court being united to the Court of Session. With respect to the Consistorial Court, his right hon. friend has answered himself, because he had himself stated that all the important cases in the Consistorial Court came by appeal before the Court of Session. But before the House entered into the supposition that the labours of these Judges were to be increased, it would be as well to look at what their duties now were. By the statute they were required to sit 114 days in the year; but how many hours in those days did they sit? Sometimes not more than one hour, and he believed that if he took the average at three hours, he should, make a very fair allowance. If they took their present labour at 300 hours in the year, he believed that, with the proposed additions, it would not amount to more than 438 hours in the year. His right hon. friend had also stated, that the office of Justice-general, which was now a sinecure, was to become, by the new arrangement, an office of business, but without a salary. He believed, from what had been said on a former occasion, that it was the understanding of Parliament, that at the expiration of the existing interest, the office was to be abolished, and he therefore thought that the giving this office to the Lord President was unnecessary. At the same time he was ready to admit, that crime was unfortunately on the increase in Scotland, though he nevertheless thought that the six criminal Judges were fully sufficient to discharge all the duties consequent upon that increase. His right hon. friend, in the course of his speech, had stated the history of the Court of Session pretty fully, as it was constituted in the year 1537, but he had omitted one point of information which, in these times of general distress, was of general interest. When James 5th had instituted the Court of Session, at that period it was observable that he neither imposed a tax on the people for its support, nor exacted any fees from the suitors of the Court. Instead of this, he applied to the Pope, who in this instance acted the part of the reformer, and with his consent he applied some of the ecclesiastical revenues of Scotland for the purpose of discharging the salaries of the officers of the Court. Since that time the expense incurred by this Court had gradually increased; though, as he had stated before, he felt grateful for what the Government had shown itself disposed to do, yet he could not express himself satisfied with even that amount of reduction. Since the year 1799 the whole establishment of that Court had more than doubled. In making this statement, he would not go to the year 1797, nor by that means into the whole question, of the currency, but, at all events, he would venture to state, that the whole expenditure of that establishment had increased 120 per cent since the year 1799. By returns which were in his possession—and which, though they were not on the Table of the House, might be, if they were moved for—it appeared that the whole amount paid by the Receiver-general of Scotland for judicial and civil service, from the 5th January 1828 to the 5th January 1829, was 176,476l., to which 24,700l. were to be added as fees paid to the Clerks of Court by the suitors, which made a total of upwards of 201,000l. Nor was this all, for in addition to those sums there was a number of those officers to which the suitors paid considerable sums in the shape of fees; and with regard to the Court of Session, the increase had been from 18,100l. to 37,300l., which, as he had already stated, was more than double. Now he believed, that though nothing had been said upon the subject, it was well understood that the present measure would be followed up by one proposing to increase the salary of the Scotch Judges. He therefore thought, considering that the additional work proposed was not so great as had been imagined, and that the prices of all things now had so much fallen, that it was out of the question to consent to such an increase. If the returns to landed property were compared with the salary of the Judges in Scotland, it would be found that the Judge was now 1,000l. a year better than the Landholder, in reference to the amount of the emoluments of the Judge in 1810, and the income from land in the same year. An estate which produced 2,000l. a year in 1810, produced now only from 1,000l. to 1,300/. a year. It would be but fair and candid, therefore, on his part to state, that whenever a measure was brought forward to increase the salary of the Judges he should strenuously oppose it—not that he had any wish to embarrass or perplex the Government, but because he thought that, in justice to the pockets of the people, he was bound to set his face against such a course. With regard to the Court of Exchequer, he was ready to admit that a great reduction there, was not to be expected. There was no doubt but that that Court ought to be maintained, for it was most useful in its operations; and though he was disposed to say that a general revision as to salaries was not an unfit thing, yet he did not so much wish to push that point to the Court of Exchequer; though, if additional labours were to be imposed upon the Judges of that Court, he thought that they would be fully compensated by allowing them to remain at the really increased salaries which they had already got. Having said thus much, he would not detain the House any longer, but would reserve any further remarks he had to make to the period when the details should be more before the House. He had only, in conclusion, to beg that the Lord Advocate would seriously consider the fee-fund. No tax could be more heavy than that which produced a denial of justice, and of such a nature was this.

Mr. Fergusson

said, he should abstain at the present moment from giving any opinion on most of the subjects that had been brought before the House by the learned Lord; for, unlearned as he was in the laws of his country—he meant Scotland—he should like to be better acquainted with the opinions of professional men before he hazarded his own. He was capable, however, of forming an opinion of the Lord Advocate, and he begged to say that no one could doubt that the motives of that learned Lord were as pure and as honourable as his exertions were praiseworthy. At the same time he might observe, that he could hardly conceive of any form of case, in aid of which the trial by twelve jurymen as to points of fact, would not be most useful: he therefore thought that it was worthy the attention of the learned Lord to consider whether these trials should be confined to the presidency of two Judges only, as it could not be denied that many of the other Judges were quite competent to the task of presiding over a jury trial. With respect to the reduction of the Court of Admiralty, he thought that that might safely be accomplished, as the causes that came before that Court might as well be tried by the Sheriff or the Court of Session; and, indeed, with respect to maritime cases, it was much more fit that they should come before the last-mentioned Court. With respect to the alterations in the Ecclesiastical Court he was not so well satisfied, as he thought that two Judges ought to be left there in order to give them a jurisdiction. He did not think that the Judges of the Court of Session any more than the Judges of Westminster-hall, could try and determine ecclesiastical causes as well as men who had been trained in that particular department. He did not think that questions of marriage, divorce, and legitimacy, could be safely transferred to such Judges. He, for one, could not agree in the proposition laid down by the learned Lord, that they ought to check litigation by adding to the expense; and as long as the law of Scotland permitted divorce without application to Parliament, he thought that it ought to be as open to the poor as to the rich. Unfortunately such was not the case in this country,—but that was no reason for extending the same measure of injustice to Scotland. The legitimacy of his children was as important to the poor man as it was to the rich man; and he could see no reason for distinguishing between poverty and wealth in such a case. Now in the Consistorial Court the expense to the suitor was not more than 10l. or 15l., while in the Court of Session the expense would be not less than 54l. But the learned Lord had put it upon the footing that all divorce cases were open to collusion. Even if this were so, the Court did all in its power to prevent that collusion, and in so doing discharged its duty. The learned Lord knew that an oath, denying collusion, was administered in the most solemn manner to parties applying for divorce in Scotland; and the learned Lord also knew, that if collusion could be subsequently proved, the sentence and all the proceedings were null and void. There was no such precaution in this country. He should be inclined to reduce the number of the Judges of the Consistorial Court to two; but he was not at present prepared to agree that the Court should be abolished. With respect to the office of Justice-general, it was one which reflected discredit on every Government that had supported it. It was the patronage with which previous Governments could not afford to part. He, however, sincerely believed that that was not the object of the present Government, but that, as far as they could venture, they were willing to steer a more patriotic course; and he therefore trusted that this night that office would be abolished for ever. As to the reduction of the number of Judges, that would of course depend upon whether the proposed number could transact the business. He was not competent to form an opinion on this subject. With respect to the Court of Exchequer, he thought no further reduction than that proposed could be made in it, if the Court were to exist at all. The hon. Baronet who had preceded him had endeavoured to give the House an account of the number of hours during which the Lords of Session were employed. It might be very true that the Judges were in Court for those hours only, but was that all the time they were occu- pied? So far from it, there were a vast variety of legal proceedings, which, by the time they came before the Judges, assumed a most voluminous shape, and every word of which was to be read by those learned persons before they could safely come to a conclusion as to their judgment. These documents formed the "record" which came before them, and was very unlike what was usually called the "record" in England. The principal occupation of the Judges of the Court of Session, therefore, was out of Court; and if they sat only a few hours a day in Court, that did not prove that they had little to do. He therefore thought that he was safely warranted in saying that those Judges in Scotland had full as much employment and labour as the Puisne Judges of this country. Looking to the extent to which the Judges in Scotland laboured, and to the fact that they gave up their whole time to the duties of their office—looking, too, at the sacrifice they generally made, in giving up large incomes as barristers, he thought that their salaries ought to be increased. This was his deliberate opinion; and whenever the question came before the House, he should support a motion for increasing their salaries.

Mr. Home Drummond

said, he could not give a silent vote on that occasion; the measures now brought forward were so much in accordance with those he had recommended last session, that he should give them his cordial support. It gave him great satisfaction to see those measures introduced; and he thought they reflected the highest credit on his hon. and learned friend and the right hon. Secretary of State. They could not justly be charged with being rash innovations, for almost all of them had been under discussion for half a century. Upwards of forty years ago the three points of dividing the Court of Session, of introducing into it trial by jury, and reducing the number of Judges, had been recommended in a very able pamphlet, by a Judge of that Court, the late Lord Swinton, than whom no man ever wrote from a more sincere desire to discover the truth, or more uninfluenced by every other consideration than the public good. The measures introduced by his hon. and learned friend, however, had met with so much approbation in the House, that he did not think it necessary to enter into any arguments to enforce their claims to support. There was only one point to-which the hon. and learned Gentleman who spoke last had objected, on which he would say a few words. Every part of the measures had met with that hon. Member's approbation, except the abolition of the Commissary Court, and his objection to the abolition of that Court was, that the Judges of the Court of Session were not so well qualified to decide the peculiar description of cases now decided by the Commissaries as judges more particularly conversant in that department of the law. But the hon. and learned Member seemed to have forgotten that the Judges of the Court of Session received all the most important decisions of the Commissaries, and if they were capable of deciding them on appeal, they must be presumed to understand them in the first instance. He thought there was no doubt of the propriety of giving this. jurisdiction to the Court of Session. He was sorry to differ from the learned Lord in his view of the Scotch Court of Exchequer; the Barons of that Court had two descriptions of duties to perform, which he thought it improper to have united in the same bond. They had not only their Judicial duties, but also the duties of Lords of the Treasury, and such duties as arc discharged in England by the Commissioners of Woods and Forests. This was a bad arrangement, and the latter ought not to continue united to the Judicial Office. The former did not occupy much of their time, and were chiefly such causes as were daily disposed of without difficulty by the English magistrates at their ordinary Sessions of the Peace. He thought one or two of the Lords of Session might be employed to hear causes in the Court of Exchequer without interfering in the least with their other duties. The argument of the learned Lord against the abolition of this Court was chiefly founded on the Union, which he had been accustomed, from the use he had seen made of it in that House, to consider as a last resource in a bad cause. The learned Lord had no objection to remove the Admiralty Court, but the argument drawn from the Treaty of Union was as strong in favour of the Admiralty Court as in favour of the Court of Exchequer. The great object of that part of the Treaty of Union, was, he believed, to prevent the Administration of Justice being removed from Scotland to England. The people of Scotland were afraid that their Courts might be removed, and therefore it was provided, that "the Administration of Justice should not be taken from them, and given to others," in what they considered a foreign country. It was stipulated that there should be a Court of Exchequer at Edinburgh, but it was not stipulated that Judges who had other duties to discharge, should not also discharge the Judicial duties of the Exchequer as well as those of the Admiralty and Commissary Court; and the Lords of Session would not find the Judicial duties of the Exchequer any great addition to their labours. He concurred in what had been said as to the Fees of Courts, and expenses of Law proceedings, and of conveyances of landed property. But he did not think it expedient, even independently of the burden it would throw upon the country, that clerks and other inferior officers should be entirely paid by salaries. The same principle did not apply here as in the case of Judges, as to whom he was happy to say, there was not one in Scotland, from the highest to the lowest, who had any thing to do with Fees, or with the sale of offices, excepting only one instance of the latter, which would soon be abolished by the measures now in progress. He agreed, however, that it was highly desirable that the Fees of Court and of the practitioners, should be revised, and he hoped the subject would meet with due consideration. He should only add that the grounds on which he had urged the postponement of the question of Salaries last year, being removed by the Motion of the learned Lord, he considered himself pledged to give that measure his support, when it should come before the House.

Colonal Lindsay

was understood also to approve of the measures, but to dissent from the objections which had been made to increasing the Judges' salary. He did not believe that the rent of land in Scotland had fallen 40-per-eent; and when ever the proposition to increase the Judges' salaries came before the House, he should give it his strenuous support. The salary ought to be raised so as to tempt men of the highest talents to accept the office, and enable them to subsist like gentlemen while they devoted their time to the public service. He was anxious to see public men well paid.

Mr. Hume

was also anxious to see public men well paid, but he was afraid that his rule for paying public men well differed from that of the hon. Member. There were, at present, he believed, but very few public officers who were not well paid; and should the Administration propose to increase the salaries of the Scotch Judges, they would act very unadvisedly. The test of a sufficient salary was, would it buy the best or sufficiently good services? He should be prepared to show, when the question came before the Mouse, that the Scotch Judges were amply paid. It had been already stated, and correctly stated, that the increase of expense in this department had been greater than in any other. He congratulated the right hon. Gentleman on the measures introduced, and hoped they were only the beginning of improvements. When they were making professions of economy, however, and had these reductions in view, he must express his surprise that they should have lately appointed a Lord Chief Baron, an appointment which was totally uncalled for. There was no man in England who more deserved the appointment than the present Lord Chief Baron; but if he were his own brother, he could not approve of the appointment. That act of the Ministers very much weakened his confidence in their expressions of economy: for at the very moment that they were making the strongest professions, they appointed a Chief Baron, knowing that they meant to reduce two of the Barons of the Exchequer. The duties of the Treasury which were performed in Scotland by the Barons of the Exchequer, were totally inconsistent with their character of Judges. Edinburgh had been brought within forty-eight hours of London; every other public department had been removed, and he did not know why the Treasury should not be removed. The Barons of the Exchequer were at present chiefly employed in managing the business, and dispensing the patronage of the Crown. He in-treated the right hon. Gentleman to look at this matter for himself, and not take the opinion of the learned Lord. If he took the advice of some practical men, he was sure that the right hon. Gentleman would take all the patronage of the Treasury out of the hands of the Barons of the Exchequer. All their judicial duties were very light, and might be done with ease; in fact, the duties of the Judges in Scotland were so light, that, unlike the English Judges, they mixed in all sorts of business," and entered into various Societies. They were Directors and Managers of Infirmaries, Commissioners of Bridges and Gaols, Presidents of Public Charities, and members of the Royal Commission to inquire into Academical Instruction in Scotland. The hon. Member quoted the Edinburgh Almanack to show the different offices of this description filled by the Scotch Judges. He did not find English Judges so engaged. The learned Gentleman, who had stated as a reason for augmenting the Judges' salaries that they had a great deal to do, had forgotten that in 1825, the labour of the Judges had been much diminished by the Act which regulated the Courts. The quantity they had now to read was not excessive, and was not a sufficient reason for augmenting their salaries. They had not more labour now than they had when their salary was 922l. each, and now they had 2,500l. The fees demanded attention, and the sum of 20,000l. now paid as fees was enormous. It made justice dear, which ought to be cheap. In conclusion, the hon. Member expressed his satisfaction with the measures proposed, but could not avoid regretting and blaming the appointment of the Chief Baron.

Mr. Secretary Peel

was happy to find the system so good, that the hon. Member could find out nothing else to blame but that the Judges of Scotland mixed with other classes of society, and engaged in some other business. Among the employments to which the learned Member objected was the being appointed on the Commission to inquire into Academical Instruction; and he stated as an aggravated offence that they were the presidents of charitable Institutions, and the Managers of Infirmaries. All the fault he could find with them was, that they mixed with their fellow citizens. The hon. Gentle-man said, that English Judges did not do such things; but he had sent for the Red Book, and on opening it at the Lying-in-Hospital, he found that Mr. Justice Park and Mr. Justice Gazelee were Vice-Presidents [honorary, said Mr. Hume}. He found that among the six Vice-Presidents of the Foundling Hospital, there were Lord Tenterden, Mr. Justice Gazelee, and Sir John Nicholl.

Mr. Hume

said, he could show that they went farther; some of them might be found amongst the Members of Select Vestries.

Mr. Peel

resumed; the hon. Gentleman charged the Scotch Judges with addicting themselves to secular employments, and instituted comparisons between them and the English Judges, unfavourable to the former, and then he sought to aggravate the charge by saying that the English Judges went a length the Scotch Judges had never been known to go. If that were really and seriously brought as a charge, and sustained in the manner which he had just described, he must be allowed to say that his experience afforded but few parallels to such a mode of parliamentary discussion. It was indeed new to him to hear it brought as matter of accusation against judicial persons, that they were found mixing in deeds of charity with their fellow-citizens at large. The case of the English Judges, to which he had adverted, was certainly such as lay open to no reasonable objection; and he was quite satisfied that the hon. Member for Westminster, who sat opposite, could bear testimony to the benefits which their interference conferred upon the charities with which they were connected. It happened that in Scotland some of them had been appointed Commissioners for the purpose of inquiring into the state of Academical Education, and he should gladly learn what there was in the judicial office to unfit them for such a situation; and he might be allowed to add, that they deserved great credit for the willingness with which they undertook those duties, and the efficiency with which they discharged them. As to the immediate object of the present Motion, he should reserve to himself the right of addressing the House on it at some future occasion —possibly when it came to be discussed in the Committee. As he had a Motion of his own to bring on that night, he might be excused from then saying more.

Mr. Hume

, in explanation, said, that he did not find fault with the manner in which the right hon. Secretary had treated his argument, seeing that he was himself much in the habit of treating the reasonings of his own opponents with quite as little ceremony; but he hoped the House would allow him to re-state his argument in a manner that would protect it from the attack of the right hon. Gentleman. He instanced the way in which the Scotch Judges spent their leisure as a proof that they had too much idle time on their hands—or if not too much, that they had plenty of leisure, and that the facility which they possessed of engaging in secular matters tended to produce amongst them an indifference respecting the performance of their Judicial duties—their attention was taken off from their Judicial employments.

Sir C. Forbes

certainly thought it not fair that Scotch Judges should be kept at a salary of 2,500l., while the English Judges had 5,500l. As to the present Motion, it had his fullest support, for something like it had been brought forward by himself some years ago, at which time a sort of pledge was given that a measure like the present should obtain the support of his Majesty's Government. He confessed he heard with much surprise the hon. Member opposite say so much to the disparagement of Scotland and of Scotch Functionaries. He could not have believed it possible that the hon. Member would have so endeavoured to lower Scotland in the estimation of his hearers. Scotland, in his opinion, was well entitled to the consideration and respect of the rest of the empire—it paid as much taxes in proportion to its population as any other portion of the United Kingdom. He regretted to say that of late years it had become too much the custom to press upon Scotland—its interests were by no means so well protected as formerly —the English and Irish Members in the Cabinet seemed to him quite to overpower the Scotchmen, and the consequences were, he thought, deeply injurious to the northern part of the island. The hon. Member then defended the Scotch system of jurisprudence, asserting that very rarely did it happen that an innocent man was condemned in any of the Criminal Courts in Scotland. The vote he should give on the present occasion would be in perfect accordance with the whole tenour of his political life. He was not a man to be convinced in despite of his understanding, and he should always support Ministers when he thought their measures right and expedient.

Mr. Maxwell

said, that the people of Scotland would have reason to feel deeply indebted to Government for having lent their aid in bringing forward the present measure. No doubt there were those who would regard it with distrust and alarm— for some minds were so constituted that they could not help regarding every reform as an innovation, and every change as a deterioration. He thought the Government entitled to high praise for supporting a measure which tended to diminish its own patronage. A reduction of the number of Scotch Judges could not be regarded otherwise than an exercise of self-denial, and a sacrifice on the part of the Government; and he hoped that the general feelings of the Members of that House, and of the country, would do them justice for the noble and better part they had enacted, rather doing what they conceived to be for the public good, than directing their conduct to the advancement of their private ends.

The Solicitor General

felt great pleasure at witnessing the introduction of the present measure. He wished to see the time of the Scotch Judges fairly occupied; but it would be unjust towards them, and mischievous to the public, to overpower them with business. It was not to be disputed that they, like all men, were entitled to that fair allowance of time for their domestic concerns, and for their amusements, he would add, which was alike just towards them and advantageous to the public, The salaries could never be such as would equal the sums obtained by the very highest men at the Bar; but neither should the Judges be selected from the middle classes of the bar: the public ought to have the services of eminent men in the profession, and of the best lawyers, and that could not be had without liberal payment. It was also important that not only should they live respectably, and in such a style as would command the respect of those whose interest they had to decide on, but they should possess such an income as would enable them to effect such savings as might place them above all anxiety with respect to their families, and enable them to devote themselves solely and exclusively to the duties of their situation—giving themselves, head and heart, to the public service. He entirely approved of that part of the measure which went to put an end to the Commissary Court; it would obviously be most convenient and advantageous to transfer its jurisdiction to a superior Court. Besides, by putting an end to that Court, the public service was relieved from the charge of the various Officers and Ministers belonging to that Court. Something had been said of the Court of Exchequer in Scotland; he was not favourable to its abolition—it was the most ancient Court in Scotland, and he thought that something was due to the feelings of the Scotch Nation. Many hon. Members of that House, who were natives of Scotland, had been heard to say that they would not stand upon the strict letter of the Act of Union in any case where what was proposed appeared to be for the public good: since, then, they acted upon the generous principle and the wise principle of not too closely demanding' an observance of the letter of the Act, it behaved the English portion of the Legislature to see that its spirit was in no case violated. Further, he thought it would be not at all conducive to the ends of public justice that the Revenue Laws should be administered in several courts. With respect to the recent appointment to the office of Chief Baron, he could not help reverting to it with extreme satisfaction. The right hon. Gentleman on whom that appointment was conferred, though always in opposition, was chosen by his Majesty's Government to fill the office, and, as might be in the recollection of all who heard him, the appointment was received with universal cheers. Some observations had been made upon the subject of patronage—but surely the House must see that in the present case there was nothing of corrupt or discreditable exercise of patronage. The bar naturally looked up, and so long as human nature remained what it was, would continue to look up to the Government, which had much to bestow—and would continue to look up to it, and be more or less subservient to its wishes, so long as hopes of preferment could reasonably be cherished, and the patronage so producing submission might all the while be exercised with the most perfect correctness; for so long as the matter remained a question of selection between two or three individuals, all equally, or nearly equally qualified, favour might be shown to one or other without the slightest detriment to the public service. A reduction, then, of the number of situations in the gift of the Crown, which might be disposed of in some degree for the purposes of influence, without any disadvantage to the public, was a sacrifice of patronage, for which his Majesty's Government were entitled to unmixed praise. For relinquishing the patronage in the case of the Welsh Judges also, he thought them entitled to unqualified approbation. Upon the subject of the Scotch appeals, he expressed much satisfaction at perceiving that means were to, be taken for reducing their amount. At one period a considerable portion of his business lay amongst Scotch appeals, from which he had since retired; but then and now, he confessed, the great number of Scotch appeals, did appear to him most extraordinary, the value of the subjects of the appeal never appeared to his mind to have any thing to do in influencing the minds of the litigants—whether four pounds or four thousand, great or small, they prosecuted their appeal with equal energy. Though he was not able to discover it, there must nevertheless be some cause for that astonishing disproportion between the Scotch appeals and those which were from other parts of the United Kingdom. If the cause were found out, something might probably be done to lessen, without injury to any person, the quantity of business arising from these appeals.

Mr. R. Gordon

denied, that Ministers were entitled to much praise for having given their support to the present measure. In doing so they did nothing more than their duty—it was their first and most imperative duty to get rid of unnecessary offices, and more especially was it the duty of the present Government, seeing the circumstances of the country and the pledges which the Ministers of the Crown had given to Parliament. An hon. Member, on the opposite side of the House, had said, that the happy days of Scotland had passed away—that it no longer possessed those prompt and powerful advocates so devotedly at its service in former times; hereby the removal from Scotland of the means of corruption was calculated rather to raise than to depress that country. They had been told of the recent appointment of the Lord Chief Baron, and it was stated as a circumstance highly meritorious in that appointment, and cancelling all the evils of the office, that the person appointed to fill it was in the habit of sitting on that side of the House. It was of little importance, in his opinion, whether the individual appointed to that place were a Whig or a Tory—if the office were a useless office it ought to be abolished, no matter who filled it; whether it were conferred as a reward for past services, or a lure for future sub-serviency, If the office were useless it ought to be abolished. As to the particular measure then under consideration, he hoped and believed that it would give general satisfaction; he was quite sure that the intentions of his Majesty's Ministers were good, and he hoped that, while they were reducing one set of offices, pretexts would not be found for the creation of others.

The Lord-Advocate

, in reply, expressed his gratification that the measure had appeared so generally satisfactory. The most important suggestion that bad been thrown out was, the remark of his hon. and learned friend, the Solicitor-general, respecting appeals. He (the Lord Advocate) should certainly look into the subject; but he could tell him that one main cause of the number of Scotch appeals arose from the advantages which appellants had in carrying a cause from a court where the Scotch law was known and easily applied, to a tribunal where it was, comparatively speaking, unknown. With respect to the proposed augmentation of the Judges salaries, in his opinion that was necessary, and would be beneficial to the country.

Leave given and Bill brought in under the following title: "A Bill for uniting the benefits of Jury Trial in Civil Causes with the ordinary jurisdiction of the Court of Session, and for making certain other alterations and reductions in the Judicial Establishments of Scotland."