HC Deb 12 April 1839 vol 46 cc1327-35

On the question, "that the Speaker do leave the chair to go into Committee on the Supreme Courts (Scotland) Bill."

Mr. Wallace

rose with reluctance, to bring forward the amendment, of which he had given notice, because he was quite aware that this measure had already received very considerable discussion; but he conceived it to be his duty to use his best endeavours to prevent this bill passing further than it had done just now, without they were assured, at the same time, that when increasing the salaries of the judges, they should have a thorough reform of those courts over which they presided. The hon. Member moved, "that an humble address be presented to her Majesty, praying that she will be graciously pleased to direct an enquiry to be made by persons unconnected with Scotland—first, into the nature and extent of the duties incumbent on the thirteen judges of the Supreme Court in Scotland, keeping in view the short period those judges sit on the bench, the great length of the vacations they enjoy, and the continious large decrease of suits tried before them. Secondly, whether one Court of Review, consisting of four judges, instead of two Review Courts of co-ordinate jurisdiction under eight judges, as at present, would not facilitate the ends of justice in the Supreme Court of Scotland, and effect a saving to the country of 14,000l. a-year. Thirdly, whether substantial and more speedy justice would be insured to the people of Scotland by extending the Sessions of the Supreme Court from five to eight months of the year, and the sittings of the judges from less than two hours to five hours daily, with the substitution of oral for written evidence, and an increase of viva voce procedure."

Mr. Edward Ellice

in seconding the amendment, said, that he really had hoped, after all that had passed, both in and out of that House, some notice would have been taken of the statements that had gone forth with reference to the capacities and efficiency of the present bench of judges in the Supreme Court. He regretted extremely that her Majesty's Government, who had heard the statements over and over again reiterated, had not thought it proper to make some inquiry into the facts of the case, or into the truth of allegations which represented those in whose favour hon. Members were then called upon to vote a heavy addition to the public expenditure, as drawbacks, rather than otherwise, on the due administration of justice in Scotland. He still more regretted that his hon. Friend, the Member for Aberdeen, was not then found in his place, to persist in the motion of which he had given notice on a former occasion, for a Commission to examine into the efficiency of the judges. In reference to a remark which had fallen from the hon. Baronet, the Member for Stamford, on a former debate, when he said that actions for libel would have been brought against the authors of those statements, had they not been protected by the privileges of that House, he begged then to state to the hon. Baronet, that if he wished it, he (Mr. Ellice) would at any time direct his attention to statements made in the public press going far beyond, in detail and assertion, any thing that had passed in Parliament. He begged to ask the hon. Baronet whether, as it was currently reported, the friends of the learned judges who had been alluded to, had not had a meeting with reference to the proposed prosecution of a newspaper which contained one of those articles, and whether the idea of prosecuting had not been at once abandoned, on account of the unanimous opinion of the meeting, that they had no chance of obtaining a verdict in their favour? He begged to assure the House, that although he stood alone, as it appeared he then did, in that matter, exposed to much animadversion both there and elsewhere, he still did not repent having brought, what he considered a great public grievance, under the attention of the House. He could only regret that other hon. Members, who he knew were well aware of the existence of those grievances, had not thought themselves in a condition to come forward and give him their assistance in endeavouring to obtain redress. This being, however, not the case, and knowing that he alone could do no good in moving for a Commission similar to that which had been formerly suggested by hon. Friend the Member for Aberdeen, which would be opposed generally by both sides of the House, he would not trouble the House farther, merely contenting himself with recording his decided opinion on the subject. He then begged to second the amendment of his hon. Friend, the Member for Greenock, which, however, only referred to the system of judicature in Scotland

The Lord Advocate

opposed the amendment. He did not mean to say, that the system of judicature which was in operation in Scotland, was altogether free from defects. Ever since he had been in that House he had been studiously anxious to do every thing in his power to improve the system, and much of late had been done to remedy the defects which were acknowledged to exist. But, while he stated thus much, he was bound to say, that the system which the hon. Gentleman so decidedly opposed, had met with the approbation of some of the most eminent lawyers in England, and had received the sanction of an Act of Parliament. He could not see how the hon. Gentleman opposite could refuse to make a necessary addition to the salaries of the Scotch Judges, considering that the salaries of the English Judges had been increased, and considering also the great reduction which had been made in the annual expense of the system of judicature established in Scotland. By the reductions which had taken place, upwards of 50,000l. had been saved, and the suitors also had been largely benefited, as the fees of the Court had been diminished about 14,000l. But this was not all. He was of opinion, that the vacations were longer than, perhaps, they ought to be, and, accordingly, the bill before the House made essential alterations in regard to this part of the system. By the bill a power was given by which the judges, when necessary, would be empowered to sit for two months longer than the period allowed by the former Act. With regard to the jury system in civil cases, he would only say, that he was fully persuaded, that the more it was known the more it would rise in the estimation of the people of Scotland, and that, in the end, it would be universally approved of.

Sir W. Rae

said, that the ground upon which the hon. Member for St. Andrews founded his complaints against the Court of Session before the Committee which sat to inquire into this subject, rested upon the evidence of a Mr. Campbell, the editor of a certain law journal, and of another person who had been under clerk in the Court of Session. But when he (Sir W. Rae) came to examine those gentlemen, they broke down in their evidence most completely, as was proved by the minutes of evidence taken before the Committee. What his right hon. and learned Friend was now doing, was but an act of justice to the individuals who now sat upon the bench, and to the country itself. He had himself seen the Lord President of the Court of Session obliged to go to a court in a hackney coach. No large fortunes were made at the Scotch bar, and the only way in which the judges could provide for their families, was by insuring their own lives.

Mr. Gillon

supported Mr. Wallace's motion. He observed, that the House had not too much popularity to lose, and he thought the passing of the present measure would by no means increase it. The judges were paid smaller salaries when they had less business before them, and living was more expensive. Notwithstanding the reductions for which credit had been taken in the abolition of other courts, the business before the Court of Session had continued to decrease. The average number of cases enrolled for the four years previous to the passing of the Judicature Act in 1825, was 2,143. By a return for the year 1833, the number was 2,031; and by a similar return for the past year, it was 1,486; thus exhibiting a diminution of about a third. Much had been said of the saving created by the reduction; but that saving was owing to retiring allowances, and other circumstances more prospective than immediate. It was notorious that the judges had but five months of session, while they had seven of vacation, and that even during session the judges of the inner house sat on an average only an hour and a-half per day. Previously to 1810, the salaries of the judges were 1,280l. per annum, and at that time they were raised on account of the high price of provisions and other necessaries. Circumstances had, since that time, been favourable to persons enjoying fixed incomes. That was the dearest period of the war. There had since been a reduction of rents, a fall in the price of provisions, and a spirit of economy introduced, which was to be extended to every class except the favoured Edinburgh lawyers. Much had been said of the pro- priety of giving such salaries as would tempt eminent lawyers to accept of seats on the bench. The practical working, even, of the present system had been, that the bench drained the bar of its talent.

The Attorney-General

entirely agreed in the bill in all its parts. There was no necessity for any further inquiry whatever. Whether the bill was popular or unpopular he did not care, as it was but a bare act of justice to individuals and to the public.

The House divided on the motion that the Speaker do leave the Chair:—Ayes 56, Noes 11—Majority 45.

List of the AYES.
Adam, Admiral Hope, G. W.
Attwood, W. Houstoun, G.
Baines, E. Inglis, Sir R. H.
Bannerman, A. Kinnaird, hon. A. F.
Baring, F. T. Lefevre, C. S.
Bernal, R. Loch, J.
Blair, J. Lockhart, A. M.
Briscoe, J. I. Lushington, rt. hn. S.
Buller, E. Mackenzie, T.
Campbell, Sir J. Mackenzie, W. F.
Chalmers, P. Macleod, R.
Clerk, Sir G. M'Taggart, J.
Colquhoun, J. C. Melgund, Lord
Craig, W. G. Murray, rt. hon. J. A.
Dalmeny, Lord Parker, J.
Darby, G. Parnel, rt. hn. Sir H.
Donkin, Sir R. S. Rae, rt hon. Sir W.
Elliot, hon. J. E. Rice, right hon. T. S.
Ferguson, R. Sinclair, Sir G.
Glynne, Sir S. R. Stuart, Lord J.
Godson, R. Strickland, Sir G.
Gordon, hon. Captain Talfourd, Mr. Serjeant
Goulburn, rt. hon. H. Thomson, rt. hn. C. P.
Grant, F. W. Troubridge, Sir E. T.
Hawes, B. Turner, W.
Hayter, W. G. White, A.
Hepburn, Sir. T. B.
Hobhouse, T. B. TELLERS.
Hodgson, R. Maule, hon. F.
Hope, hon. C. Steuart, R.
List of the NOES.
Brotherton, J. Murray, A.
Bruges, W. H. Parker, R. T.
Dundas, C. W. D. Salwey, Colonel
Ellice, E. Vigors, N. A.
Ellis, W. TELLERS.
Hastie, A. Gillon, W. D.
Morris, D. Wallace, R.

The House in Committee.

On Clause 12, which had reference to the increase of the salaries of the judges, being put,

Mr. Gillon

moved to insert the following words, "And whereas the number of causes tried has of late years been materially diminished, and is now in progress of diminution."

The Committee divided:—Ayes 4; Noes 52—Majority 48.

List of the AYES.
Dundas, C. W. D.
Morris, D. TELLERS.
Salwey, Colonel Gillon, Mr.
Vigors, N. A. Wallace, Mr.
List of the NOES.
Adam, Admiral Hope, G. W.
Baring, F. T. Houstoun, G.
Baring, H. B. Hurt, F.
Blair, J. Inglis, Sir R. H.
Broadly, H. Jones, J.
Brotherton, J. Kinnaird, hon. A. F.
Bruges, W. H. L. Loch, J.
Campbell, Sir J. Lockhart, A. M.
Chalmers, P. Lushington, rt. hn. S.
Clerk, Sir G. Mackenzie, T.
Colquhoun, J. C. Mackenzie, W. F.
Craig, W. G. M'Taggart, J.
Darby, G. Melgund, Lord
Easthope, J. Moreton, hon. A. H.
Elliot, hon. J. E. Murray, A.
Ellis, W. Murray, rt. hon. J. A.
Ferguson, R. Rae, rt. hon. Sir W.
Finch, F. Rice, rt. hon. T. S.
French, F. Sinclair, Sir G.
Godson, R. Stanley, E. J.
Goulburn, rt. hon. H. Stuart, Lord J.
Hawes, B. Strickland, Sir G.
Hepburn, Sir T. B. Thomson, rt. hn. C. P.
Hobhouse, T. B. Wood G. W.
Hodgson, R.
Holmes, W. TELLERS.
Hope, hon. C. Maule, hon. F.
Hope, H. T. Steuart, R.

On the question, in the same clause, for filling up the blank of the Lord President's salary at 4,800l.,

Mr. Gillon

objected to the amount, and proposed 4,300l.

The Chancellor of the Exchequer

said, it had been his intention to propose a lower sum at first; but he thought it better to adopt a general principle, and he had been assured that there would be no objection to 3,000l. for the puisne judges. By analogy, the sum of 4,800l. would bear the same proportion to 3,000l. as existed between the puisne and chief judges in England.

Mr. Wallace

said, the House had been led to expect that the puisne judges' salaries would be 2,600l. A proposition had been made to raise them to 3,000l., provided certain reforms accompanied the rise; and he had agreed to it, on condi- tion that there should be an inquiry into the question as to the number of judges required for Scotland. But the Government had made an advance on the terms they had themselves proposed, which were 2,600l. for the puisne judges, leaving the chief judges as they stood—namely, the Lord President 4,300l., and the Lord Justice-Clerk, 4,000l.

Sir W. Rae

defended the advance. Nothing now was left to excite the emulation of the Scottish bar but these two chief judgeships. He thought the Lord President should have 5,000l.

The Committee divided on the original motion:—Ayes 42; Noes 13—Majority 29.

List of the AYES.
Adam, Admiral Houstoun, G.
Bring, F. T. Hurt, F.
Baring, H. B. Inglis, Sir R. H.
Broadley, H. Jones, J.
Campbell, Sir J. Kinnaird, hon. A. F.
Clerk, Sir G. Loch, J.
Colquhoun, J. C. Lockhart, A. M.
Craig, W. G. Lushington, rt. hn. S.
Darby, G. Mackenzie, T.
Easthope, J. Mackenzie, W. F.
Elliot, hon. J. E. Melgund, Lord
Ferguson, R. Moreton, hon. A. H.
French, F. Murray, rt. hn. J. A.
Godson, R. Rae, rt. hon. Sir W.
Goulburn, rt. hon. H. Rice, right hon. T. S.
Hastie, A. Sinclair, Sir G.
Hepburn, Sir T. B. Stanley, E. J.
Hobhouse, T. B. Stuart, Lord J.
Hodgson., R. Thompson, rt. hn. C. P.
Holmes, W.
Hope, hon. C. TELLERS.
Hope, H. T. Maule, hon. F.
Hope, G. W. Steuart, R.
List of the NOES.
Brotherton, J. Murray, A.
Bruges, W. H. L. Salwey, Colonel
Chalmers, P. Strickland, Sir G.
Dundas, C. W. D. Vigors, N. A.
Ellis, W. Wood, G. W.
Finch, F. TELLERS.
Hawes, B. Gillon, W. D.
Morris, D. Wallace, R.

On the 13th Clause being put,

Mr. Gillon

proposed to insert a proviso in it, empowering the Crown to call on any judge who had retired upon a pension upon the ground of ill health, to resume his duties as soon as it appeared that he was in a condition to do so. The hon. Member mentioned the case of Sir Archibald Campbell as an instance of a judge, who after quitting the bench, had been quite restored to health, and was now as capable as ever he had been of exercising the judicial functions.

The Committee divided on the proviso:—Ayes 3; Noes 45—Majority 42.

List of the AYES.
Dundas, C. D. W. TELLERS.
Murray, A. Gillon, W. D.
Vigors, N. A. Wallace, R
List of the NOES.
Adam Admiral Hurt, F.
Baring, F. T. Inglis, Sir R. H.
Baring, H. B. Jones, J.
Broadley, H. Loch, J.
Brotherton, J. Lockhart, A. M.
Bruges, W. H. Lushington, rt. hn. S.
Chalmers, P. Mackenzie, T.
Clerk, Sir G. Mackenzie, W. F.
Craig, W. G. Macleod, R.
Darby, G Maule, hon. F.
Easthope, J. Moreton, hon. A. H.
Ferguson, R. Morris, D.
Finch, F. Murray, rt. hn. J. A.
French, F. Rae, rt. hon. Sir W.
Godson, R. Rice, right hon. T. S.
Goulburn, rt. hon. H. Salwey, Colonel
Hastie, A. Sinclair, Sir G.
Hawes, B. Stanley, E. J.
Hepburn, Sir T. B. Strickland, Sir G.
Hobhouse, T. B. Thomson, rt. hn. C. P.
Hodgson, R. Wood, G. W.
Holmes, W. TELLERS.
Hope, hon. C. Elliot, hon. J. E.
Hope, G. W. Steuart, R.

Other Clauses agreed to, House resumed.