COURT OF SESSION (SCOTLAND). (Hansard, 2 March 1837)

§ The Lord Advocate

was always unwilling to oppose any motion for returns made to this House, and particularly so when it came from his hon. Friend, the Member for Greenock; he regretted that he had not had an earlier opportunity of making some statement on the notice which had been given by his hon. Friend, who appeared to have proceeded on some very erroneous impressions, when he desired the judges of the Court of Session to assign the reasons which had induced them, under an Act of sederunt, to tax the inhabitants of the counties of Scotland, implying that this taxation had been unequal and arbitrary. They were also required to state the statutes under which they had acted, and their reason for doing so. The judges of the Court of Session, in regulating the fees of sheriff clerks, had acted entirely under the provisions of the 6th Geo. 4th, cap. 23, which required them to revive an Act of sederunt which had been passed in 1204 1748, and to take into consideration what fees they should judge reasonable hereafter to be exacted by clerks; and, in doing so, to take into consideration the Reports of the Commissioners, appointed in 1815, to inquire into the duties and emoluments of persons belonging to judicial establishments in Scotland. There was a provision in that statute, that no clerk, then holding an office, should be bound to accept of them, in lieu of the emoluments to which he was legally entitled, unless he thought fit, and that the regulations should be postponed during his life, unless he agreed. The Court were also directed to appoint five sheriffs to report on these regulations and tables of fees. Soon after, an Act of Parliament was passed, authorizing the Court of Session to make a new form of process for Sheriff Courts. This was prepared in 1826, and materially altered the form of proceedings in Sheriff Courts. In consequence of this change in the proceedings, the construction of the table of fees was attended with great difficulty, as it was necessary to adopt them to the new mode of procedure.—Long and laborious inquiries were made with that view, and Acts of sederunt were passed by the Court of Session in 1830 and 1833. In the course of these inquiries, a temporary table of fees was adopted, which, according to the information the judges received, was considered a commutation of the existing fees, and was not supposed either to increase or to diminish them. The judges had no power to depart from this, so far as regarded the sheriff clerks, who were appointed at the time when the Act was passed, unless with their consent; but they were authorised, with regard to those appointed afterwards, to take into view what fees they should think reasonable. It appeared to the Committee of Judges, that the fees received in many counties afforded more than a reasonable allowance to the sheriff clerks; and upon a Report from a Committee of three of their number, to whom the matter was referred, they lowered the fees to as small a rate as they considered afforded a reasonable allowance to the persons who might hold the office. Their views are explained in that Report, which he would move should be laid before the House. It was signed by a judge of great learning and ability, and most scrupulous in the discharge of every duty intrusted to him. There was no individual holding any situation of public trust less 1205 disposed to exceed any powers delegated to him, than the learned judge to whom he referred. Instead of wishing to tax the suitors, it was that judge's wish, acting under that Act of Parliament, to reduce the fees or taxation, as it has been called, as much as he was empowered to do; but he had no power of providing for the clerks otherwise than from the fees, and he was bound by the Act to leave, in each case, what would afford a reasonable amount. This was a very laborious undertaking imposed upon the judges by Act of Parliament, and delegated by them, in the first instance, to be reported on by a Committee. It might be said, why not fix an uniform fee in every county? And if in small counties that would not afford a suitable maintenance, let the sheriff's clerk be paid otherwise. It was no doubt in the power of the Legislature to have done this, but that was not the power which was delegated to (he judges by the Act of Parliament. They did consider whether they had the power of making an uniform fund, and apportioning fees to the different Sheriff Clerks, according to their duties—but they found they had no such power. Their object, therefore, was, to exercise such power as they had, in the manner most beneficial for the country, and with that view they recommended a reduction of the fees as low as they thought was reasonable in each instance. It was very hard where the object of the judges appears to have been to lower fees, and where they had done so in all the larger counties, and increased them in none, to accuse them of laying on taxation, which must mean that they had increased the fees. If this misapplication had prevailed, he trusted it would be removed by the Report of the Committee of judges made in December, 1835, and he should afterwards move that it, together with the Act of sederunt, should be printed and distributed among the Members of this House. He regretted very much that his hon. Friend had framed his motion in such terms as might have conveyed a very unfavourable impression of what had been done. He was sure that it would be removed from the mind of every person who might peruse that report. In looking forward to judicial reform, there was nothing more important than to keep in view, that justice could not be well administered, and retain its due authority, unless the judges, who sit in courts of law, 1206 received that support and respect from the Legislature to which they were entitled; where they were truly labouring to diminish burthens, they were entitled to the gratitude of the country. Whether such duties should be imposed upon them, or in what terms they should be given, was a very different question, but he asked every person to suspend his judgment in this instance, until he had the proceedings referred to before him, and he would see from the report of that excellent judge, the spirit in which the question was examined, and upon which the regulations of the Court were framed. The character of judges was public property, and where they performed a difficult and laborious duty, with the best resolutions, they were entitled to the support and respect of the House, and of his hon. Friend, who was desirous to improve the administration of justice in Scotland. They could not exceed the powers given them by the Legislature, and any fault that had been found with what was done, applied to the Act of Parliament itself, and to the arrangements which must necessarily be made under it, and not to the judges, who were directed to carry those arrangements into effect. The Legislature imposed various restrictions, and gave limited powers. The report which he now moved should be laid before the House, would show that the judges had followed out the course prescribed to them, with the most anxious desire to fulfil the intentions expressed in the Act of Parliament.