§ Mr. Wallace
rose to move, in pursuance of notice, that a Committee be appointed to inquire into the mode of administering justice in Scotland. In bringing under the consideration of the House this very important subject, he should endeavour to do so in a manner that would divest it of anything that could possibly admit of its being construed into a political question. The judges of the Scottish courts were pretty nearly equally divided in political opinions. He desired no other Committee but such as would give a pure and disinterested decision upon the questions which would be brought before them. He understood that an opinion prevailed, that questions of this kind ought not to be submitted to the consideration of a committee, but that it should be left to the government to point out and prescribe such rules as were sufficient, and effect the changes necessary in the jurisprudence of the country. In the year 1834, an hon. Member obtained a committee to take into consideration the amount of salary to be paid to the judges in the courts of Scotland, and also to inquire into the nature of the duties of those judges. Here, then, was a precedent for his present motion. He meant to bring under the consideration of the House the present state of the court of session, of the jury trial by that court, of the trial before the court of appeal, the mode of trial before the justiciary and general courts, and the node of proceeding in the criminal and civil courts, and also in the court of teinds. But before he drew the attention of the House to the first point that he had mentioned, he wished to observe that there wag, no doubt, over all the land an anxious desire for an alteration and for an improvement in the administration of justice; it appeared that small debt courts 315 were to be improved, and they were also led to understand that local courts were to be introduced. In the City of London there were many small courts, which did great credit to the persons presiding in them, and the administration of justice therein was so acceptable that he hoped to see their principle extended. He would on the first point then, refer the House to a speech of Lord Grenville, delivered in 1807 in the other House of Parliament, of course, on the Scotch Judicature Bill, in which his Lordship pointed out the evils of the then system.* He knew that it would be contended that since 1807 a great alteration had taken place, and that it would be said, that many improvements had been since made in the court, but this he denied. There had, indeed, been many alterations and some improvements, but lieges in general who were plundered of their money, and whose time was wasted in 1807, were now quite as much plundered, and had their time now wasted. He would challenge the hon. and learned Gentleman opposite to deny this, and if he did he called upon him to venture before a committee. Lord Grenville went on to complain that the Table of the House of Lords was loaded with appeals, the greater part of which were from the court of session in Scotland, and it was now equally well known that there were now annually before the House of Lords more cases of appeal from Scotland than from all the rest of the two other countries. To what was this owing? It was because they had no such thing as a responsible court in Scotland. No judge was responsible for any opinion he might give, and, consequently, he was not forced to apply the law under such responsibility to the cases brought before him. Nay, the opinions of the judges often differed, and sometimes out of the thirteen judges there were six one way and seven the other. This was strictly the fact, and no man who went before the supreme court would doubt the truth of what he was saying. And in his opinion the Government would never be able to effect a perfect system till they undertook to introduce a code of laws for all the three countries, which would unite the best part of the laws of each. To one other point of Lord Grenville's speech he wished to call the especial attention of the House. His Lordship* See Hansard's Debates Vol. viii. p. 788.316 complained of the use of written evidence and pleadings, to the exclusion of all other, and he declared that at that given period it was almost impossible to persevere with written and printed pleadings. But this had been continued notwithstanding, and one of the best authorities had stated that "evidence taken in writing was not evidence at all; that it was words only, and not evidence;" and unless the witnesses were present before the judge, unless the court could form an opinion of the countenance and the manner, it was not possible to form a correct estimate of the value of his testimony. They, in Scotland, knew nothing of vivâ voce evidence; everything was done by commission; the commission was issued, the witnesses were examined, the testimony was written down and it was sent to the judges, and it was entirely at their discretion whether it was read or not. He said, that it was so; for it was impossible for any one to read the whole of the quantity of trash which was written down for evidence; in short, no good would be effected till the witness was brought face to face with the counsel. He would be glad to know of the learned Gentleman opposite (the Attorney-general) why the bar of Scotland was not as competent as the English counsel to examine a witness. He believed, that there was no reason for the continuance of the present Session, except the continuance of a prejudice, that where there was a great number of judges there was a great quantity of justice. He believed, however, that the direct contrary of this was the fact—that it was rather, the fewer the judges, the greater the justice. Lord Grenville also said, that the system was the more imperfect from the want of a clear distinction between the law and the fact. What would learned Gentlemen in England think if the judges were judges of the law, of the Fact, and of equity? He hoped, that the hon. Member the newly appointed judge in that House, or, as he did not see the other judge present, he trusted the hon. and learned Member for Dublin would say whether a judge could properly determine the law, the fact, and the equity. This evil was increased in Lord Grenville's time by the large number of judges—fifteen; for there were fifteen judges then, but there was a devil's dozen now. Nothing, said Lord Grenville, was more conducive to the due administration of justice than 317 the clear distinction of law, and of fact; that the facts of a case should be brought to an issue of fact, and that the law as applicable to those facts, should be clearly distinguished; that thus confusion would be avoided, and the law and the facts of each case being clearly pointed out, justice would be administered with clearness and precision; but then "no care was taken to separate the facts from the law." He asserted, that such was precisely the state of things now; there was no difference between the period when Lord Grenville, in 1807, delivered his beautiful and true speech, and the present time; the state of things was now precisely as it was then. He felt much difficulty in proceeding to the next observation, with regard to the mode in which the court of session was at present constituted. There was no man in the House more unwilling than himself to say anything to hurt the feelings of any individual, but he could not avoid doing so, if it were necessary, in the discharge of his duty as a Member for a place in Scotland; the condition of many of the members of the supreme court was such as to render them in some measure unfitted; the extreme age at which some of them had arrived, the infirmities with which it had seemed fit in the wisdom of the Almighty to afflict others, reduced the number of the judges in that court from a state of efficiency to one which was very far from being effectual. There was not one individual presiding in that court who did not deserve the public sympathy for his high attainments and for his great public virtue; there was not one of whom one disrespectful word could he spoken, and he would not, in the slightest degree, act otherwise than respectfully to them, nor would he allude to them otherwise than in the discharge of his duty. But it was his business not to conceal from the House, that the heads of the supreme court were, from circumstances, some of them of a late date in a state not fit to be the heads of courts. An infirmity of a heavy nature afflicted one, whilst another was also visited with severe illness, although he sincerely hoped, that it would only be of a temporary nature. What, however, had this judge done? He had appointed a person to officiate in his absence than whom no better man could exist; but he had, he believed attained the age of 90, or thereabouts. [An hon. Member: He was 80 last birthday.] 318 He might be mistaken as to the exact age, but even if he were eighty was that a time of life for a man to be appointed as the substitute for a judge? The judges altogether were of extreme age—their age varied from, as he believed, ninety or not much less, down to sixty-five or sixty-six years. There were no young men on the bench in Scotland, and, therefore, it was, that he said, that if they had fewer judges, they would have a better system, and that they ought to have more efficient men. More upon that point, he would not state, except to remark, that it was not from great attention, or great labour, that these learned men became so little efficient. The supreme court only sat 104 days in a year, and the volume he held in his hand contained evidence, that they did not sit on each of those days more than one hour and a half or two hours. He would put it, therefore, to the learned Gentleman (the Attorney-general) whether this was such an attendance as ought to be expected. He believed, that the judges in England sat for ten months in the year, and why should they not sit the same time in Scotland? They had in Scotland at least as wholesome a climate,—the air was even more bracing, and there could be no harm if the judges in Scotland also sat for the ten months. He held in his hand two returns, both for the year 1836, which would exemplify this—one was from the courts of common law at Westminster, and the other from the court of sessions in Scotland, which, for the same period, allowed of a striking contrast. In the courts at Westminster there were 95,964 causes set down, of which 43,321 were in the Court of Queen's Bench alone, and the number of litigated causes were 16,000. He then came to the return for the courts in the other part of the kingdom, and he found that there were in the year 1836, before the five lords ordinary 1,707 causes of reclaimed notices in the inner house 456, and of proceedings chiefly formal only 1,734, making a total of 3,960 for thirteen judges. There was the difference between ten months and three months' work. He came to the next branch of his subject, and the House would be astonished to find, that such was the wisdom of the thirty-two sheriffs, such was their sense of justice, and such was their respect for the proceedings of that House, that in spite of the clauses in the act which 319 had passed that house relative to the acts of sederunt, it was now quite possible for no less than forty-three papers to be presented in one cause. He had last year procured returns which made an exposure which would not otherwise be believed. Those returns had been reduced to figures, so as to give a numerical result, and the facts which they demonstrated were most extraordinary. He took the amended return of the sheriffs of Renfrew, and he found that the average endurance of an action (all short actions—those terminated within a year being excluded) was 1,193 days, or a cause was, on an average, three years and ninety-eight days before the Court; and this after an Act had been passed which declared it expedient to accelerate the administration of justice. The average number of times on which each sheriff gave judgment was four; and the average time during which the causes were lying waiting for judgment, was 277 days and a fraction. In answer to this he might very likely be told, that a royal commission had been issued; that there were among the Members, as he admitted, several excellent persons, and among them the hon. and learned Gentleman opposite, whose ability he freely acknowledged, and that this commission was doing the same duties as he proposed for the consideration of the Committee; but in answer to this he would read to the House—and if they granted him a committee he would prove—what was the opinion of one of the present judges with respect to this law commission:—" As there are no reporters present," said this judge, "I may quietly tell you that you need be under no apprehension on account of the law commissioners, or think that they will injure the Court of Session. A set of old advocates and writers are too shrewd and sensible to break their own heads." [Name, name!] He thought that he had a better hold over the House by not naming the author; but give him a committee, and he would name him at once. Was he not there to gain his cause if he could? He was not going about the bush, but he was setting about his business fairly and honourably. Now as to the jury trials, he had no returns of what the commissioners had done; and when he wanted to know even what witnesses had been examined, he got a reply, perhaps sufficiently explicit and sufficiently courteous, that "when the report was produced, he would know who the wit- 320 nesses were." As to the Court of Teinds, it never got through its business; but this was no fault of the presiding officers. In many parishes there were two great questions unsettled, and he believed, that in some parishes there were three questions still open; but this delay arose entirely out of the forms of the Court, which were extremely improper. He came next to a subject which would be one of great delicacy if they did not all know the unimpeachable character of his hon. Friend opposite (the Lord Advocate). He came to the question of the criminal judicature which he believed was in a more objectionable state than any other. There would not be any blame, however, attributable to the present Lord Advocate, for he believed that no Lord Advocate would have time to look into this subject fully. He knew the great energies of the present Lord Advocate and of his predecessor, Lord' Jeffery. He knew the duties they performed, and he believed it was not possible for the power of nature to permit them to go through more fatigue; and if the improvement were to be effected at all, it must be done by some one not connected with the administration of justice. He knew the duties of the office of Lord Advocate, and he believed that they had been honestly, zealously, and faithfully performed by the present Lord Advocate and his predecessor, but it was quite impossible that either could effect an amendment. Let the House consider how the Lord Advocate was appointed. He was some distinguished Advocate who had risen, like the Chief Justice in England, to the very top of his profession, but without devoting any of his attention to this branch of the system, for the Scottish system of circuits did not admit of the attendance of the highest Members of the profession—in fact, the circuits were attended by mere youths and tyros, and this was owing to the deficiencies in Scotland of jury trials. He alleged nothing personal against the administration of justice, but he only contended that the system which was acted upon was one which was injurious in the highest degree to the rights and privileges of the people. The powers intrusted to junior branches of the profession far exceeded that to which their experience or their situation entitled them. It was the system, however, he repeated, which he considered to be improper, and not the persons who were engaged in 321 carrying it out; it was of the law which was executed, and not of the judges by whom it was put in force that he complained. He had himself gone a circuit, with a view to ascertain the extent of the mischief which existed, and it appeared to him that it was most indecent that it should be in the power of Gentlemen so young as those who acted for the Lord Advocate to say who was to be tried and who to be discharged, and therefore he said it was absolutely necessary, with a view to the general revision of the system, that a committee should be appointed to look into the jurisdiction and powers of the criminal courts. With regard to the sheriffs' courts, which were the next to which he would refer, he did not mean to enter largely into the question affecting them, because he had endeavoured to obtain a committee upon the subject last Session, but, in consequence of the hon. Gentleman opposite voting against him, his object had been defeated; but, he must say, that he thought it of essential consequence that that part of the jurisprudence should be inquired into, and he thought that the other House of Parliament ought not to be permitted by its interference to reject the most useful part of a measure which was proposed to them, without any reason being assigned, for he had no hesitation in saying that he had watched the proceedings of the bill before the two houses of Parliament last Session, in its progress through the House of Lords, and no reason whatever had been assigned by the noble Lord who suggested the expulsion of four clauses contained in it for so doing, and those clauses were of exceeding importance. In pointing out to the House the effect of the existing system, he could not do so better than by stating that the fact was, that the people appeared to have been made for the laws and lawyers, and not the laws and lawyers for the people. It amounted to that. The system authorizing Acts of sederunt was in itself one of extreme injustice. As the law stood, it was in the power of the Lords of Session to refuse to promulgate the acts of sederunt, and they had even said, that there was no necessity for them to be posted against the walls of the courthouse, although by these very acts the people were taxed to the amount of two millions. There were no means by which this amount might be reduced or taxed—no means by which the people of Scotland 322 might complain against any items; but it was determined on within closed doors, and those whose purses were to be sweated were not made acquainted with the contents of the bills until they were actually called upon to pay; nay, even the sale of the acts at the shop of the printer, by whom they were prepared for circulation, had been refused, on the ground that they were private. Jeremy Bentham, in his observations upon the state of the Scottish people, said, that they were so completely fettered by the legal profession, that no good could come of it, that improvements were then in the course of being made, but that whatever alteration might be granted, the lawyers would contrive, by some means or other to keep the people back, and this prediction it was obvious had been but too truly verified. He begged to ask the learned Attorney-General, why the people of Scotland generally would not be allowed to have a general jury system? Why were they not as well able to judge of cases as the particular inhabitants of the city of Edinburgh? When Lord Brougham, in 1834, abandoned those clauses of the Local Courts Bill, which would have given the courts jurisdiction in cases of debts amounting to 20l., he said, that his reason for doing so was, that, if it were carried, it would "sweep clean Westminster Hall;" and he supposed the same description of reason would prevail in Scotland under similar circumstances. There could be no doubt, that the most ample justice was done in the local courts as they were now constituted, and the appeal given from them to the chief sheriff was a perfect absurdity, and he thought this would be obvious on his mentioning facts. The number of cases of small debts disposed of before the sheriff substitute in one year, in Perthshire, was 3,887, while the appeals to the chief sheriff were 118 only in number. In the same county of Perthshire also, while 528 civil causes had been disposed of, 213 criminal trials had taken place, so that 213 persons were allowed to be tried before juries without one of them being allowed to obtain civil justice by the same means. The total number of cases in fact laid before the one sheriff substitute was between six and seven thousand, while the appeals to the thirty sinecure sheriffs were 3,600 only in number. The effect of the mode, too, in which the busi, 323 ness was arranged, was to cause immense delay, and it was impossible for a case to come before the Court of Session until it had been going on and pending for between two and three years; but he thought the House must agree with him that the system which he had endeavoured to describe was in its nature far inferior to that which he advocated as being the most advantageous—the jury system. He had now endeavoured to state to the House his reasons for asking them to grant a Committee, with a view to an inquiry into the general state of the administration of justice in Scotland. He was quite prepared to say, that over the breadth of the country no confidence existed in the courts to which suitors were now obliged to go, and no man expected the measure of justice he was entitled to receive, either in due time, or in a just and equitable manner. The expenses were enormous; the delay was similarly injurious; and both these matters, so properly complained of, arose out of the present inconvenient method of proceeding, and of the enormous extent of writing and printing employed. He defied hon. Gentlemen opposite to show him where the law required either this delay or this expense. It was nowhere required, but the system was one which had merely grown up, and had been supported by the remnant of the Scottish Parliament, now called the Court of Session. He did not blame the present men for their having originated the system, but he did blame them for their maintenance and support of its unjust effects. The evil might be easily remedied if this House would permit an inquiry to be made, and he must say, that he thought that object could be in no way better fulfilled than by adopting the course which he suggested. Before he sat down, he must add, that he thought that the appointment of the commission which had sat was most unsuitable, because it was composed wholly of those gentlemen who, if they had no interest in the subject, must at least be supposed to have strong prejudices. He asked the House, however, why they should have the present system continued, under the advice of men whose prejudices or whose interests were concerned in supporting a monopoly which was most obnoxious? Would the House, when they desired to break up the East-Indian monopoly, have employed the monopolists themselves to advise upon the propriety of the step, or would they, when 324 they desired to put an end to slavery, have asked the advice of those who were interested in its continuance? No, they would not, and why, then, had an opposite course been pursued here, and why had persons whose interest it was to support the existing system been employed to report upon the necessity of its alteration? He had before stated his belief upon the same subject upon the same grounds, but the application which he had made was refused. He was convinced, however, that if a mixed Committee were granted, the result of their deliberations would be of a character very different from that of the commission which had already sat, and the suggestions and recommendations which they would make he was persuaded would be altogether opposed to those which had hitherto been acted upon. In conclusion, the hon. Member moved that a Select Committee should be appointed to inquire into the mode of administering justice in Scotland.
§ The Lord Advocate
said, that the only difficulty which he had, was, not in answering any one point put by the hon. Member as a ground for the granting of the committee for which he prayed, but the selection of one which presented the smallest reason for the motion being acceded to. The hon. Gentleman had gone over every department of the law of Scotland, and had made observations on most of them, none of which, however, appeared to be founded on any very strong ground. He had often expressed a wish that the hon. Gentleman would attend the Court of Session for a month, and he had expressed his belief, that the hon. Member in that time would have an opportunity of acquiring some knowledge in reference to their proceedings. He was confident that if the hon. Member had acted upon this suggestion, he would have received a great deal of information, and he would have viewed the matter in a very different light from that in which he now looked upon it. What was the nature of the present motion, however? Was the hon. Member serious in making it? The hon. Gentleman must recollect that on the one subject alone of Sheriff's Courts, a committee of this House had sat in the last year. What better right had the House then to believe that any committee now appointed, would be more successful in its inquiries than that? If the hon. Member had desired to set up any par- 325 ticular grievance, he should have brought forward that point before the House, and should have made it out, but according to the hon. Member's speech, it would be necessary to have ten or twelve different committees to inquire into the various topics on which he had treated. He must say, however, that there was no instance in which any law had been so sedulously and carefully examined into, and in which so many attempts had been made to improve it, as the law of Scotland, since the time of Lord Grenville's speech. At that time jury trials were utterly unknown in Scotland, and the hon. Member now said, why not have them in every case? He could not be so well aware as those who were acquainted with the difficulties attending such undertakings of the great danger and trouble accompanying the introduction of an entirely new system throughout a country, however excellent that system might be in its effect elsewhere. No man could be more anxious, or more zealous than he was, in endeavouring to introduce reforms, when they were heeded; but it was impossible to suppose that an attempt to introduce a system like that of trial by jury in all cases could be at first and at once successful. It had been in existence, and in operation in England for a long period; and not only judges, but juries and witnesses had acquired a knowledge of its usefulness and importance; but the introduction of such a system fresh into a country where it was previously unknown, was an undertaking which would be attended with infinitely greater difficulties than could be surmounted very soon. If the absence of the jury system were complained of in some cases, however, it could not be denied, that it was in some cases highly beneficial, and he conceived also, that in many particulars the Scotch law, as it now stood, was far superior to the law as it existed in this country. Take, for instance, the ecclesiastical courts, the chancery courts, and the Admiralty courts. While these jurisdictions in England, formed the subject of consideration in various courts, in Scotland the separate courts of jurisdiction had been abolished, and all the various duties were performed under one system. The hon. Member spoke of the number of judges; but did he consider how many situations had been by this means abolished? First, five of the judges of the Exchequer had been 326 removed, and their duties were now performed by one of the judges of the court of session. The judges of the Admiralty courts had also been removed, and their duties taken in like manner; four commissaries, whose powers exceeded those of the ecclesiastical courts in England, had here in like manner been taken away, and their duties apportioned among the court of session, and two members of that body itself had also been taken off the list. Had the hon. Gentleman, too, considered the great increase of business caused by the removal of the jurisdictions of those courts to the court of session? The committee which had sat upon this subject, had inquired into the possibility of any reduction taking place, and the evidence of one person, the Dean of the Faculty had been, that the number had already been too far reduced, while two others who were examined, declared that it was impossible that the number could be any further diminished. He could not concede, therefore, that on this point either there was any ground for appointing a committee. With regard to the present system of trial by means of depositions, he was prepared to admit that it was attended with some difficulty; but it had been introduced long before the jury system was known there, and the alteration, he repeated, would be a matter of too great difficulty to attempt to accomplish at once. The question had been considered again and again, but if the hon. Gentleman could point out any practicable measure, by means of which the defects of which he complained, might be remedied, he knew there was no person more disposed to give it the most liberal and immediate attention than he (the Lord Advocate). With regard to the statement made as to the rejection of the four clauses of the bill of last Session, in the other House of Parliament, that surely could not be urged as a reason for a committee being granted; for could it be contended that this House, had any power over the proceedings of the House of Peers? Did any ground, therefore, remain upon which it could be said, that the motion should be acceded to, or upon which it was reasonable to suppose, that any benefit could be reaped? The hon. Member in the course of his observations, had, made some remarks upon the age of the justices of the court of session, and upon their infirmity. It was true that 327 one of the judges was suffering from infirmity; but although a doubt had been expressed whether this had been caused by length of service or the extent of labour to which that functionary was exposed, he could assure the House, that that doubt was one which ought not to have been expressed, for he could assert, that the infirmity of the learned individual was caused, entirely by his too constant and laborious attention to the duties of his office. He believed, that although the infirmity was severe, it was not likely to prove lasting, and that the learned individual would be again able to resume his avocations, and he was confident, that the hon. Member would agree with him in saying, that there could not be any person more zealous than the learned judge in question, in the discharge of his duty, or more desirous of resuming his labours. The hon. Member bad referred also to another instance, and this was indeed a most unfortunate circumstance, for the individual in question was one whose talents and whose character entitled him to the respect of all, and he was one of the most distinguished and most able judges on the bench. As regarded the question of the retiring salaries of the judges, there needed not another committee, for the report of the commission expressly approved of the recommendation, that the judges should be enabled to retire on their full salaries. He denied, that injustice to criminals was usual in Scotland; on the contrary, he called on the hon. Member for Greenock to prove a single instance in which a criminal had not had full justice done to him. Every person accused, was furnished with a copy of the indictment, a list of the witnesses, and a list of the jurors; and no charge was looked on as substantiated unless proved by two competent witnesses. In England, on the other hand, there was great room for injustice; for by the practice of the courts it was possible for a man to be tried in the Criminal Court on the very day of his committal by the magistrate. He was thus precluded from making any sufficient preparations for his defence, and great opportunity was given, if a conspiracy existed against him, for the infliction of an unjust sentence. Notwithstanding the greater stringency in Scotland, more convictions in proportion to committals took place in that country than in England or in Ireland, although juries were known in Scotland to be most scru- 328 pulous and conscientious in sifting the whole of the evidence before pronouncing their verdict. As regarded the financial part of the question, it was already in proof, that in the judicial establishment of the country a saving of from 54,000l. to 68,000l. per annum had been effected. On the first of January in the present year, a further alteration had come into effect, by which it was calculated 14,000l. a year would be saved to suitors in Scotland, by reductions in the fees of the courts; yet the hon. Member, before the effect of this new arrangement could be known, called for a committee of inquiry. He by no means denied, that there might not be room for improvement in the administration of the law in Scotland, and he gave the hon. Member full credit for a desire to effect what he conceived to be improvement, for that person was no friend to his country who would not desire to see improvement; but he must say, that the course proposed by the hon. Member was one, that so far from aiding the cause of improvement, was calculated much to retard it, by forcing on the attention of a Committee of that House subjects calculated more to provoke distaste and disgust, from their dryness and want of interest, than to induce a full, fair, and sifting inquiry. He did not conceive it necessary for him to enter further into the question, and he therefore should content himself with opposing the motion, for the reasons he had stated.
Mr. E. Ellice
, jun. (St. Andrew's) without adverting to the various subjects introduced in the speeches of his hon. and learned Friends, would observe on one question alone—the fitness or unfitness of the judicial bench of Scotland for the due discharge of the duties resting upon them. At the present moment four of the judges were disqualified by personal infirmity from serving, so that there was great danger, that the public business might, in the event of illness among the other judges, be suspended altogether until their recovery. Three of the judges in question were disqualified in such a way as to leave no hope of their ever being able again efficiently to perform the duties of their office. He now referred particularly to one (while he desired to express his high respect for his professional character) who, by reason of his great age and other infirmities, had come nearly to a state of mental imbecility. In the next case, the 329 learned individual was stone-deaf, and the third was at the present moment so afflicted by the hand of Providence, that it was extremely unlikely he would ever be able again to preside in a court of justice. In the case of the fourth judge, there was reason to hope that, perhaps he might ere long be enabled to resume his duties. The effect of the present state of things was, however, that, in fact, there were only four efficient judges. The facts he had stated were currently known, and believed in Edinburgh, and, surely they called for some inquiry. He, nevertheless, did not support the motion of the hon. Member for Greenock, because he did not think it calculated to produce favourable results. But he thought, that the observations that had been made in that House on the subject, would have the effect of drawing the public attention to it. He trusted, however, that judges who were past the possibility of further usefulness, would take advantage of the law, which had provided retiring allowances, which he had not the slightest objection to see increased.
§ Mr. Fox Maule
felt it his duty, after what had fallen from his hon. Friend, to say a few words, because if what he had stated were really the fact, it could not but reflect discredit on the Government that they had not looked with sufficient vigilance to the administration of justice in Scotland. With regard to what his hon. Friend had stated, this was the first time he had heard that that distinguished and venerable judge (Lord Gillies) was afflicted with mental imbecility, That he was not bending under the weight of years, he (Mr. Maule) was not prepared to assert; but that his mental faculties were not adequate to the discharge of his duties he was prepared to deny. It was not surprising that men of large families should struggle, even under the weight of declining years, to maintain their position and receive their salaries from the public to an hour when perhaps it would be more prudent that they should retire from the discharge of their public duties. Was it to be concluded however, that the feelings of a father in leaning to the interests of his family should wholly overlook the interest of the public. For the first time in twenty-eight years, after active and zealous services, one distinguished judge was absent from his post.—No one who had looked to the administration of justice in Scotland, could hesitate in dealing out to the Lord Justice 330 Clerk the fullest meed of praise for the manner in which he had discharged his duties; and it was gratifying to find that after a short interval of absence he was likely to return to his Court with recruited strength, not only of body but of mind. With respect to the venerable individual who presided in hi Court n his absence, he had the Lord Justice Clerk's Assurance that he was fully able to discharge the duties of his office. As to the gentleman who had been afflicted suddenly in Edinburgh, it would be ungracious in him to say further than that it would be hard to call on him to resign his office. With respect to the general state of the court it was desirable to have young men and efficient men as judges; but how could they expect a general succession going on unless they had a fit and proper allowance for the judges to retire upon as they declined in years? The House owed its thanks to the hon. Member (Mr. Wallace) for bringing forward this question, inasmuch as it would tend to settle it in the public mind. No evil could afflict a country so much as having bad judges; but there was another evil scarcely less, that of having the confidence of the people shaken in the fitness of those who filled the responsible office of Judges. An inquiry by a Committee of the House into the conduct of men sitting on the Bench would be likely to have such an effect, and he deprecated the motion mainly on that principle. It would have no other effect than to unsettle the minds of the people, and give them a want of confidence in the administration of the justice of that country. With respect to the points mentioned by the hon. Gentleman, he no doubt entertained so clear an opinion on them, that he could not want any evidence to substantiate his views. Why, therefore, did he not come forward and bring in a bill, and lay it on the Table, so that they might discuss, point by point, those reforms which he thought the judicial establishment of Scotland required. He would ask the hon. Member not to make sweeping attacks on the whole judicial administration without submitting some measures, because such a course could have no satisfactory effect. He would not trouble the House further on this subject, believing it would pause long before it agreed to the propositions of the hon. Member.
§ Sir George Clerk
rejoiced exceedingly that the hon. Gentleman, the under Secre- 331 tary of State, whose duty it was to ascertain that there was no person remaining on the judicial bench of Scotland who was not perfectly competent to discharge his duty, had come forward and contradicted the statement that had been made. Why it had been said that four Judges of the present Bench of Scotland were incompetent—[Mr. O'Connell—Three] He was surprised to hear the statements made whether of three or two. It was true, that unfortunately one of those learned persons had been obliged to relinquish his duty on account of severe illness, but he trusted that that learned person was in a fair way of recovery, and that before many days had passed he would be able to discharge his duty with the same honour and credit as he had done for the last twenty eight years. When the hon. Gentleman talked of persons being on the Bench who were incompetent from mental imbecility to perform their duty, he begged leave distinctly to deny, that there were any such. He wished that hon. Gentlemen would look at the voluminous judgments delivered by every Judge in that Court in the course of last year. Nothing could reflect greater credit upon any person than the judicial research, the great learning, and the acuteness displayed in those judgments. He believed, that at no period of his life was that learned person more capable of giving judgment to the great satisfaction of all suitors than at the present moment.—The only inference that could be drawn from the speech of the hon. and learned, Member was this, that every person who filled a judicial situation ought to tender his resignation the moment he became indisposed. He hoped, that for the sake of Scotland, Lord Corehouse's health would speedily be restored.
§ Mr. Hope Johnstone
said, it was true his venerable relative the President of the Court of Session was now advanced in years, and he was far from denying, that that advance in years had not told considerably against him. He had been in constant communication with that venerable person, and he could say, that in all the ordinary intercourse of life it was impossible to see the slightest symptoms of that mental debility to which the hon. Member had alluded. The observations of the hon. Bart. the Member for Stamford (Sir G. Clerk) had done away with the necessity of his saying a great deal that he had intended to state; but he could not 332 sit still and hear allusions which he thought might have been made in more gentle language by the hon. Member—and he begged to bear his testimony to the inaccuracy of the hon. Member's statements.
§ The Attorney-General,
having been alluded to so pointedly by his hon. and learned Friend, the Member for Greenock, begged to make a few observations. He entirely concurred in the view taken of this subject by his learned Friend, the Lord Advocate. He had had a very fair opportunity of seeing how justice was administered in Scotland; and he must say, that, on the whole, it was administered very satisfactorily. That there were abuses, no one would deny, although they had been most monstrously exaggerated by the hon. Member for Greenock. The House would recollect what the hon. Member said about the people of Scotland being mulcted in 2,000,000l. a-year, by the costs they paid in the Sheriffs' Court. It must give English and Irish Members a right notion of the growing wealth of his country—that the people, without any considerable inconvenience, could spare 2,000,000l. a-year for costs in the Sheriffs' Court. The hon. Gentleman had been led away by his zeal to dream of things that were utterly impossible. He agreed, that trial by jury might be more generally introduced; but as to the trouble of making the change, he concurred in what had been said by the Lord Advocate. Trial by jury required to be familiarly understood by witnesses, jurymen, and all concerned in the working of the machinery. There was some inconsistency in what the hon. Gentleman said; he wished trial by jury to be more generally introduced, and yet he said, that where trial by jury had been introduced, the parties were always ruined. His hon. Friend had referred to the office of public prosecutor. Why, what he had said went against the appointment of a public prosecutor altogether; because it would be impossible for the Lord Advocate to be in every court in Scotland, therefore he must have a deputy to represent him, and that deputy must have a discretion as to who should be prosecuted, and how the prosecution should be conducted. There were great reasons for thinking, that the office of public prosecutor might be introduced into England with advantage. He believed, that it would be much better if a prosecution were instituted by a responsible adviser, who was able to say 333 which cases should be brought before a jury and which should not, than that the matter should be left to blind chance, or to the passions of individuals. He did not deny, that great improvements might be advanced or facilitated by the Committee proposed by his hon. Friend: he, himself, had been a Member of the Committee on the Sheriff's Courts, and had gone there day after day, and sometimes there was a quorum and sometimes there was not. There was very little advantage, however, to be obtained by going into all the details of the business of the courts. Such an inquiry would occupy several years, and should, if necessary, form the business of a Commission. He had had the honour of being one of a Commission which would cause no expense to the public, and had effected, he hoped, no inconsiderable improvement. He would not boast of his own services, but he would say he was a zealous member of that Commission. Great talent was devoted for days and months to that service, from which service it was to be expected great improvements would be introduced into that department of the law. Could improvements in the law be expected from a Committee of the House of Commons? Trial by jury might be introduced, so that his hon. Friend would perhaps hereafter have the pleasure of going and hearing in a Scotch court, a suit for 20s. tried and decided by a jury; but he doubted whether the people would regard that as an advantage.
§ Mr. Horsman
would recommend his hon. Friend to withdraw his motion for a Committee, which he was certain nothing but a sense of public duty could have induced his hon. Friend to bring forward. The hon. Baronet, the Member for Stamford, must have misunderstood what had been stated, when he referred to Lord Corehouse; it was, he believed, stated generally, that the Scotch judges were inefficient from age or bad health, but no special allusion was made to Lord Core-house. If the power of securing the comforts of age were withheld from those venerable characters, it was to be expected they would remain on the bench till overtaken by years and infirmity. He thought his hon. Friend had obtained his object in the public attention he had attracted to the state of the judicial bench in Scotland, and he did not foresee any objection to his withdrawing his motion.
said, he was able, from his own personal knowledge, to contradict much that had been stated in respect to the Scotch judges, and he regretted hit hon. Friend, the Member for St. Andrew's, had been led into the statement he had made.
§ Mr. Bannerman
had been in the Court of Session in Edinburgh, and he had there seen a venerable judge, an honourable and upright man, and had heard him deliver his opinion on two short cases. He was in such a state of imbecility, that he regretted to see him, and he was prompted by his brother judges on the right and left. The Lord President was not there on that occasion; and he was sorry to hear his hon. Friend say, that his mind was decayed; he was, however, in bad health. He hoped the Scottish judges would soon be enabled to retire on full salaries, and if his hon. Friend did not bring forward a measure to enable them, he would.
said, the judges of Scotland were not adequately paid for their services. It was impossible they could save money, and yet support their families. It was a paltry species of economy, that they were not allowed to resign on full salaries. Such economy was pursued both in Scotland and Ireland, and was equally bad in both countries.
§ Mr. Pringle
denied, that the venerable Scottish judge alluded to by Mr. Bannerman, was in a state of imbecility; he was in full possession of those splendid abilities for which he had been so much and so justly admired in Scotland. It had been lately his lot to hear him give his opinion on some case, and he could assure the hon. Member, that the learned judge evinced that singular ingenuity of mind by which he had long astonished his hearers. There was no judge in his recollection, who had borne a higher character than that venerable judge had done.
§ Mr. Gillon
denied, that the judges of Scotland were under paid. He thought, considering the short period the judges sat, they were admirably paid for the duties they performed. He thought the public money could not be better applied than by giving the judge a proper retiring provision, but it should be at that time of life when they were incapable of performing their duties.
considered the subject with respect to the Scotch judges had been 335 brought forward prematurely. He thought the hon. Member would not gain much by the appointment of a Committee of the House of Commons, as he considered a Committee of the House of Commons was not the best authority to take up the matter. He was in hopes, however, that what had taken place, would induce her Majesty's Government to take the subject into their serious consideration, for the purpose of revising the whole judicial system in Scotland.
§ Mr. Wallace
thought, that the House had run away from the question, and that it would be vain on his part to attempt to bring them back to it. In answer, however, to the observations of the Attorney-General, he had to complain that they would not allow juries to try for shillings and sixpences in Scotland, but they would for necks. He would not detain the House, to take a division on the subject; but seeing the impression that was entertained, he would withdraw his Motion.
§ Motion withdrawn.