§ On the Order of the day for the House to go into Committee of Supply being moved,
§ Mr. Wallace
rose to bring forward the motion of which he had given notice, viz.—To call the attention of the House to the report of the select committee, appointed to inquire into the administration of the law in the Supreme Court of Scotland; and to move, that an humble address be presented to her Majesty, praying that in virtue of the provision in the Act 2 and 3 Vic. c. 36, and in consequence of the facts which have been disclosed in the evidence taken before the select committee, appointed to inquire into the administration of the law in the Supreme Court of Scotland, that her Majesty will be graciously pleased to command the thirteen judges of the said Court, to extend the period of their sitting in Court by two calendar months in each year; and that this shall be effected by extending the current summer Session by one month also. Also, to call the at- 600 tention of the House to the nature and extent of the duties appertaining to the office of Lord Advocate of Scotland, with a view to their being defined and better regulated.Availing myself, the hon. Member said, of Unconstitutional practice of this House, I rise for the purpose of bringing forward a case which I consider to be one of grievance to the public, and wish, in the first place, to call the attention of the House to a report which has been lately made to this House on the conduct of the judges of the Supreme Court of Scotland. At this late period of the Session, I shall endeavour to be as brief as the nature' of the case will admit, while I shall, to the best of my ability, bring the question before the House in such a shape as to make it fully understood. The report to which I allude is now in the hands of hon. Members, and, in my humble judgment, is not a report, properly so called, but a running commentary, and there is no one instance in which the Chairman who prepared the report, has ventured to make reference to the particular parts of the evidence on which that report is founded. Sir, in the course of the statement which I purpose to make to this House, I shall not only allude to this report, but to the effect which the office of Lord Advocate has had as regards the judicial business performed in the Courts of Scotland, and also as regards the manner in which the business of Scotland generally is conducted in this House. Sir, I beg to assure the House and my hon. Friend the Lord Advocate, that, whatever I may say respecting his office, I shall endeavour, to the best of my ability, not to forget that position which he holds, and deservedly holds, in the estimation of the country, as a distinguished officer of the Crown, as well as a distinguished member of the College of Justice in Scotland. Many of those who belonged to the committee to the report of which I have alluded are of the legal profession, and I am bound in justice to say, that those who really did attend, gave the most patient and zealous attention to the evidence. The people of Scotland are much indebted to the members of the English and Irish bar who attended, and it will be seen that they, at any rate, fully appreciated the real objects of the committee, which were, to ascertain whether, by improving the system, and increasing with. The other four gentlemen of high 601 the sessions, and diminishing the vacations, the number of judges might not be diminished. In the first place, the report from the Chairman, or, more properly speaking, from the Lord Advocate, upon which I am now commenting, the object appears to be, to declare, that great dissatisfaction prevails generally in Scotland as to the administration of justice, and so decidedly has that feeling pervaded the mind of the framer of the report, that the word dissatisfaction occurs not less than thirteen times in the report—there thus being one application of the term dissatisfaction for every judge in our Court. Sir, the witnesses who were brought before that committee, were, as I believe, of a very unusual kind. They were fourteen in number, and in the list there is the present Lord Advocate, the late Lord Advocate Sir William Rae, the late Solicitor-general, now Lord Ivory, Mr. Hope, the Dean of Faculty, who is at the head of the Scotch bar, and Mr. M'Neil, who, I may also say, is at the head of the Scotch bar. Here are five witnesses who have been called to speak to the propriety of diminishing the number of the judges, each of whom is an expectant in the event of a vacancy, according to the political party which happens to be in power at the time. Now, Sir, I say that this is a most extraordinary selection, and one which I must say, being made by my right hon. Friend the Lord Advocate did surprise me. The next witnesses are two official gentlemen, namely, Clerks of Court, and a third is a professional gentleman who filled the office of Secretary to the Scotch Law Commission. Now, if the position of these gentlemen be looked to, and if you are to carry out the principle that no one shall sit on the bench who has any interest in the case to be tried, I insist that the opinions of these gentlemen are not entitled to the weight which they would otherwise have had. On the other hand, I produced only five witnesses out of the fourteen. I thought it vain to seek for witnesses among the profession of advocates, but sought them in the profession known in this country by the title of solicitors, who can have no interest in the situation of a judge. One of these gentlemen admitted, that if the business of the Court of Session was no better done than it is at present, one Court of Review could be very easily dispensed legal information and constant practice in 602 the courts, and whose testimony could not be shaken or impugned, distinctly, and in the strongest terms declared, that nine judges would not only do the whole duties of the Court of Session, but would do it in a much more satisfactory manner than thirteen. This evidence should have the greatest credit attached to it, because these gentlemen have no personal interest in the matter, whether there be thirteen or thirty judges, while it signified very much to the first five witnesses, if not to more of them, who at some future period, would certainly be considered eligible candidates for any vacancies that might occur. I will beg the House to look to the proceedings of this committee, and they will there find a circumstance which to me appears quite unprecedented, namely, that a question put by a member of the committee, has been expunged by an unanimous vote of that committee, the Member excepted, who had put the question. Now Sir, I must here read to the House the question so expunged. The question was this, and put by myself:—It appears, among other correspondence in what is commonly called the Corehouse Papers, that Lord Corehouse, having been struck with a permanent infirmity, was not in court after the 26th of January last year, from which date nearly one half of the actual judicial sittings of the long winter Session was unexpired; and he was advised by two of his brethren on the bench, that the Lord President and Lord Gillies."—
§ Mr. Sergeant Jackson
Sir, I rise to order. I would submit whether it be competent for an hon. Member to read and discuss in the House a question which was considered irrelevant by the committee, and was expunged by them.
§ The Speaker
said, if he understood the question rightly, it was, whether the hon. Member could read that part of the examination taken before the committee which was expunged, and therefore did not form part of the report. That course might certainly be an inconvenient one, but he was bound to say, that he thought the hon. Member quite in order in adopting it.
§ Mr. Wallace
—Sir, if the rule had been otherwise, where, I would ask, is a Member of Committee to seek for justice? I come here for justice. Now, I will proceed with the question—this is where I stopped:— 603The Lord President and Lord Gillies, and also by yourself, to retain his situation, and withhold his resignation till after the Summer Session; those two periods of absence being equal, together, to about two-thirds of the judicial year. Can you inform this committee if this advice was offered in the conviction that Lord Corehouse's services could be dispensed with, and that three Judges had been sufficient and would be found sufficient in his absence, to carry on the business of the Court during the long period specified?''Now, I submit that this was a most proper question, because it goes to prove that the Court had been thoroughly well conducted, and justice duly administered without any fault being found by suitors, the profession, or Judges, during two-thirds of a year, in the absence of that very learned judge. That, therefore, is sufficient to show that one of the judges might be dispensed with. Now, in passing, I may just say, that the evidence which was tendered by the Professor of Scotch Law was of a nature highly creditable to that gentleman's head and heart, and would convince any set of men who look to the subject dispassionately, that the Courts of Scotland now require, and have long been in need of, a great deal of amendment. That learned individual, be it remarked, is a disinterested person; he was not looking for office; he had no expectations of being raised to the bench; he is a distinguished member of the bar; and the evidence is of great importance, as it goes to shew that the whole system of our jurisprudence is extremely defective. The report of the Scotch Law Commission in 1834, is to the same effect, and the same thing will be found upon looking to the volume of the Edinburgh Review, referred to in the evidence which was expunged, the author of the article being none other than the present Lord Jeffrey; and if hon. Members are anxious to pursue the matter further, and will look further into the ninth volume of the Edinburgh Review, a work so obnoxious to some hon. Members of the late Committee, when expressing opinions contrary to their views for the moment, they will there find, even at that distant time, the Court was in the same disrepute as it is now, and in which it will most assuredly remain if the judges are allowed in future to jog on as they do at present, which it is understood is the Lord Advocate's proposal and advice to the Government. On the part of the people of Scotland I insist, 604 that the course pursued by the Scotch judges ought to be altered and their number decreased. The present number of the judges in Scotland is thirteen, and it is the general opinion of all but Edinburgh lawyers that nine would be quite sufficient. Sir Islay Campbell, that highly distinguished judge, and many years President of the Court of Session, was of opinion in 1785 that ten judges would be quite sufficient, at which time the business was far greater than it is at the present moment. The business of the Court has been regularly decreasing for forty years; it has decreased in series of years, and continues to decrease year by year; and yet in the face of this there is a determination on the part of the Ministers and the Lord Advocate to maintain the patronage of thirteen judges. It has been made plain that twelve judges, in the absence of Lord Corehouse, did the duties last year by sitting 113 days, and two or three hours daily; and yet it would seem that thirteen judges must be continued. The returns to this House and the evidence in this respect will show the enormous arrear of business in the courts of the Lords Ordinary; but this exists in three courts only out of five, for I am credibly informed, and shall endeavour to prove it by a return, that two out of the five Lords Ordinary are not intrusted with a single case for debate, but merely with matters of routine, quite unfit to occupy any other but Scotch Judges. Thus three Lords Ordinary, sitting 103 days only in the year, perform the whole judicial business of these Courts, to which five judges are appointed. It is thus plain that while twelve did the duties last year, eleven are performing them at present. The suitors are now allowed to choose the judges before whom their causes are to be heard. How long has that been the case? Why, Sir, only two years; it is a late practice. I see my learned Friend the Lord Advocate look with surprise, but I assure him and the House that my statement is true, and that the practice is but a late one. And what is the effect of it? Just this. There are two judges who have not a single cause upon their Debate Roll, and there are several professional gentlemen now present in this House who are conversant with the practice, and may corroborate or contradict my statement. I fully believe it myself, and that it will not be contradicted, Another effect has been, 605 that, by way of occupying the short time they sit, and as an excuse for keeping up the full court of thirteen judges, who are said to be so dreadfully hard-worked by sittings of two hours a day, they are occupied in disposing of mere motions of course, which is not, as I have stated many times before in this House, proper judicial business at all, being disrespectful to the judicial station, and ought never to come before them. One of the most accurate and intelligent of the witnesses who appeared before the committee said, upon this point, and respecting the one or two causes allowed to be tried daily, the judges were glad to spread the business they had to transact over as large a space of time as possible, so that they might have an excuse before vulgar and unprofessional eyes for keeping up their numbers. This evidently, and nothing else, was the meaning of the expressions which fell from Mr. Hunter. Then they have another way of passing their time. What do these hard-worked judges do? In place of the same set of men sitting in one court, and adjudicating upon all cases that are brought before them, they have four different courts to run about to; first, there is the Exchequer, then the First Division, then the Second Division of the Inner Court in another place, and the court of Justiciary somewhere else, but all under the same roof and adjoining each other, and all kept up for the mere sake of appearing to have something to do; they thus run about from court to court, shifting their gowns everlastingly, all to fill up time: first, they put on a black gown for one court, then a red one splashed with white, and anon, a white one spotted with something else—this is a positive fact, and is so well known that I did not think it worth while to bring it out in evidence before the committee, or that it is alleged, they are obliged to dress in those various costumes, in order that they themselves may know whether they are adjudicating in Equity or Law. In short, the whole system is a disgrace to Scotland. I may be laughed at because I, the unprofessional intermedler, as they call me, meddle with a professional subject, but I have not spent the last twenty years of my life with my eyes or ears closed. Those professional men who are present will understand when I tell the House, it was made quite plain to the committee, that in making up what is called the Record, there is 606 often a certain process gone through for the mere purpose of getting an excuse for forcing the judges to listen to the long speeches of Counsel, so much admired by the learned Lord Advocate. The regular decrease of business has been shown by innumerable returns. Some attempt was made in the committee to throw doubts upon the accuracy of these, but it was totally unsuccessful. Then with regard to vacations and the former hackneyed excuse that the judges had a great quantity of printed papers to read; there is now no such thing, and it is the earnest desire of all parties, both in and out of court, that they should not be. Now there can be no judicial pretence for such long idleness. The learned Lord Advocate led a vast deal of evidence, showing his anxious wish to make it appear that the judges should sit to hear counsel debate matters with which they were themselves sufficiently acquainted and prepared to decide on. Now this is only one other lame excuse for keeping up the irreversible number of thirteen judges to crawl on hearing one case, or, probably, one and a quarter, as is the practice of the two Courts of Review, in a day. Sir, since this matter was last before the House I deemed it my duty to go to Edinburgh and make personal inquiry into the subject, and found that the public were much dissatisfied with the whole working of the system. I would ask where is the necessity for judges sitting as a Court of Appeal, hearing at greater length than to satisfy their own minds the arguments of counsel against the deliberate decision of one of their own number? Considering the previous ample discussion which cases receive before the Lords Ordinary and the printed papers which the judges think necessary to order in a case before them, surely it must be wholly unnecessary, and a mere waste of time, to listen to the long speeches of counsel, which, as the learned Lord Advocate lately said, never exceed fourteen or sixteen hours. Now, Sir, there is one cause of confusion and expence in these courts which is quite unknown in any other court in any country, and that is the way in which counsel are continually taken away from the bar. After a case having been proceeded with, in due form, the counsel is not allowed to go on and finish his arguments, but some one comes from some other court, and taps him on the shoulder, in the manner 607 of a tipstaff—and away he must fly to another court, probably to plead a cause which upon some former occasion had been broken off in the same manner. The Scotch judges are exceedingly anxious to hold out the similarity of their duties to those of the Court of Chancery in this country, and are desirous of throwing dust in people's eyes, by comparing the nature of their duties to that of the Court of Chancery. Well, a comparison they shall have. Now, if hon. Members will take the trouble to listen to the Returns I am about to read as to the duties of the judges in Chancery, they will see one of the most extraordinary contrasts that could possibly arise in the advocacy of any question, and I trust this exposé will have the desired effect on the Ministers of the Crown, and on the judges of the Court of Session. By the Return of the Court of Session it appears the Inner houses sit five days in the week, and two hours daily for 113 days in the year. That the Lords Ordinary sit four days in the week, and four hours daily for 103 days in the year. By a Return to this House, dated 30th March, 1840, No. 178, showing the time the Masters in Chancery attend their office, independently of their duties by rotation during the sitting of the House of Lords, it appears that the days of attendance in the year vary from 165 to 221, and their hours from three and three quarters to six hours daily, averaging 188 days, and nearly five hours a day. And it appears, from other sources of information, that the Vice Chancellor and Master of the Rolls;, each sit thirty hours weekly, and the Lord Chancellor twenty-five hours. The case will therefore stand thus:—Scotch Courts—Inner Houses, 113 days; two hours daily being 226 hours in the year, or a little more than forty-five days of five hours each.Lords Ordinary—103 days; four hours daily, or 412 hours in the year, or eighty-two days of five hours each.Court of Chancery—Lord Chancellor, in his judicial capacity as such in the Court of Chancery or in the House of Lords, 200 days of four hours daily, or 825 hours in the year, being 165 days of five hours each.Master of the Rolls and Vice-Chancellor, about 200 days each, five hours daily; 1,000 hours in the year, or 200 days of five hours each.Masters in Chancery, each, on an average, sit, besides their attendance on the House of Lords during the sitting of Parliament, 188 608 days, nearly five hours daily, being 940 hours in the year, or 188 days of very nearly five hours each.The House will see from this that, bad as the Court of Chancery is, it is only but half as bad as the Court of Session. The Masters in Chancery get 2,500l., while the Scotch Judges get from 5,000l. to 3,000l. with a vacation of seven months in the year, and the Masters in Chancery get scarcely any vacation at all. Sir, I have already said that three Lords Ordinary do the whole of the duty, and I have said it might have been proved before the Committee that the Court has been managed with twelve Judges only, and virtually now has but eleven. It is then, Sir, very plain that fewer than thirteen Judges have carried on the business of the Scotch Courts. Again, in what way do the Judges fulfil the duty thrown on them in making laws for the guidance of persons practising under them. What have they done towards making a simple, cheap, and easily understood system of pleading in their Court? They have been permitted to make laws under the name of Acts of Sederunt, and it is a fact that those Acts have not been revised for upwards of 100 years. It is in evidence before the Committee, that no professional man, any more than the judges themselves, can tell what part of them had fallen into disuse, or what might now be cited, what was Applicable, and what inapplicable; and, in short, the judges have allowed their court to get into such a state of confusion, as to have caused the very great dissatisfaction admitted by this report to exist throughout the whole country. I now wish to call the attention of the House to the fact, that upon next Saturday, the 18th inst,, the thirteen judges may disperse themselves all over Europe, if they should think fit, and will not be seen in the Court-halls for the ensuing four months, at any rate. I know what my hon. and learned Friend will say on this point. He is going to tell us of a judge sitting weekly upon the bill chamber business; but I will ask him if ever the court-house doors are unlocked during the long vacation? Does not this said judge merely sit in chambers? That's my question. I say the courts are all completely shut. Now, there is another fact which I wish to mention, and I have it from very high authority. It has been often stated, and I believe with perfect justice, that the Scotch bar cannot main- 609 tain the present number of Judges. You will find it stated so far back as 1785, by Sir Islay Campbell, and corroborated in the Edinburgh Review, before alluded to—you will find it acquiesced in by Lord Jeffrey in that periodical, and by one whose acquaintance with jurisprudence was far greater than that of any of these; I allude to Sir Samuel Romilly, in whose memoirs it is recorded that unless political partizans were appointed, the bar of Scotland could not supply men of sufficient talent to keep up the present number of Judges. Those are authorities which I conceive to be of no small weight, and, therefore, I do say, it is for the consideration of the leader of this House, who is the adviser of the Crown, whether he cannot recommend the very small improvement, which is all 1 ask at present, of directing that the sittings of the Judges should be extended so far as provided for by law if the Crown shall so command. I expect I shall be told it is better to leave matters alone, and allow the Judges to make the necessary improvements. But I would ask, when have they made any improvements? That's my question. You have let them alone since 1825, when you passed the Judicature Act, and I wish to state distinctly before this House my belief that some of these learned men have often stated in private that they would not interfere by Acts of Sederunt, nor would they apply to the Legislature to explain and amend the said Judicature Act, but let the people suffer and take the consequences of Parliament interfering with their privilege of law-making, which Parliament had done in passing the Judicature Act. I do state most solemnly, that I believe they have never applied to any Lord Advocate, or stated to the Ministers of the Crown, that this Act was too stringent and unmanageable, and that they could not work under it beneficially to the public; and also that they have made no complaint, either directly or indirectly, to this House or the other House of Parliament, or the Queen's Government. No, they have sat, as I said before, in a sullen, sulky mood, and seen thousands of my unfortunate countrymen ruined entirely in trying questions of mere form. Will the learned Lord Advocate deny that? He may deny the allegation I have made, as to why they have done so; but he cannot deny the fact that thousands and thousands have been ruined by trying mere questions of 610 form. These, Sir, are what I conceive to be the neglect, not faults of the Judges, and the reasons why I think they ought no longer to be continued in their high prerogative, but to be subjected to Parliamentary interference. If they were confined to one Court, in place of running about from Court to Court, as at present, the business of the country would be done a great deal better, if the Courts of Exchequer, the Teind Court, and Justiciary were merged into that of the Court of Session, and the duties of those several Courts done in rotation as business occurs, there would be no excuse for two co-ordinate Courts of Review—there would be no longer an excuse for thirteen Judges, and there would bean immense improvement in the administration of justice, and great saving of expense and delay to suitors and the country. I say, Sir, Parliamentis bound to interfere. That such interference is necessary has been amply shown by the evidence taken before the committee, but which is not to be found noticed specifically in the Report by the Chairman, although glanced at in the last page, as much as to say, these are things which have been spoken to by the witnesses, but they were of such minor importance to the main object of counsel being allowed to speak, or rather to palaver for hours upon hours if they thought fit, whether the Judges sufficiently understood the case or not, as not worthy of grave consideration. There is another circumstance I wish to mention. I have been asked by an influential Member close by me, what I had to say to the allegation respecting the reading of long law papers? I say there should now be no long law papers. If there are still long law papers, they ought to be prohibited by the Court and not read by the Judges. Such papers are not only complained of by the suitors but by the profession, they are actually prohibited by the Act of 1825, and are repudiated strongly and most properly in this very Report by the learned Lord Advocate. There may be an excuse for the Judges retiring into the country whenever they can. No man can blame them for so doing, however much the system is blame-worthy. We all know that it is a much more pleasant thing to go into the country and amuse ourselves than to stay here and work hard, and I suppose they think the same. But when you allow men to retire for a considerable period to their country residences, they do not feel any 611 desire to return to their studies, and I believe at the end of the Session all of us dislike these blue books (alluding to the Report which he held in his hand), a great deal less than we do at the commencement of the following-one. No man desires more than 1 do that our Judges should be in comfortable and respectable situations—all I desire is, that they should give us more of their time in Court, whether that time should be occupied in listening to the arguments of counsel, or in giving reasons for their decisions, which latter I conceive to be far the most important. The whole drift of the learned Lord's Report is, that counsel may be allowed to talk as much as they please. The Court have long had the power to extend the Session—they have had it for many years. There are enormous arrears, and a general dissatisfaction has been expressed throughout Scotland as to the state of the business; but have the Judges listened to these by diminishing their own comforts and extending the Session? No; and the learned Lord says Government is not prepared to advise the extension of the Sessions.—Now, Sir, to show in what a state our Courts are, I have a return of the appeals to the House of Lords, from the Courts of the three kingdoms from 1823 to 1836. It is a return made by the House of Lords to the committee whose Report I am now commenting upon, and it begins in March, 1823, and ends in June, 1836. The whole number of appeals during that period from the Courts of the three kingdoms was 813. What will the House suppose was Scotland's share? Why, Sir, out of the 813, there were 598 appeals, or very nearly three-fourths of the whole from poor Scotland! Would any man credit, that our Judges are in such a state of disrepute with my countrymen, that they invariably appeal? If they can find money enough, every man of them goes to the House of Lords. There are thousands who openly declare, we do not care whether you decide against us or not, we have money in our pockets, and we will go and obtain justice from the Lord Chancellor of England. But what becomes of the poor? Our judges care nothing for them. I know of no case of any importance that has not been brought to the House of Lords. 598 appeals from Scotland out of 813 is ample proof of what sort of justice is administered, and what sort of conduct the judges show to- 612 wards the people of Scotland. Now, Sir, the motion upon the paper is of a double nature. It relates not only to the duties of the Judges of the court of session, but, as I have said before, it also relates to the office of my right hon. and learned Friend the Lord Advocate. This is an office entirely unprecedented in the known world, either for its extent, its unconstitutional character, or the danger that might be anticipated if it were placed in hands that chose to wield its powers arbitrarily and tyrannically. Its powers have been wielded, so far as my recollection serves me, and I mean to confine myself to the passing of the Reform Bill, with moderation and mildness. The Lord Advocate is a public prosecutor, and a great political officer of State, possessing powers of unknown extent and magnitude. Sir, I hold it impossible for any individual to be a public prosecutor, an office which is extremely useful, and which I believe to be a great want in the jurisprudence of England, I believe it to be impossible for a public prosecutor to be connected with political affairs, as the Lord Advocate is, and at the same time to do justice to his high office. It is all very well in times of tranquillity, where no danger is to be apprehended; but there are plenty of instances in which gross tyranny and dereliction of duty has occurred, as can be testified by many hon. Members of this House. The patronage of the Lord Advocate is said to be little or nothing—perhaps it is not very visible, but it is enormous for all this—and it is well known to the people of Scotland that no man can succeed to any important situation unless by under-hand or over-hand means he is enabled to obtain the good opinion and patronage of the Lord Advocate. To show the nature and extent of his powers, I may mention that he has under him the Solicitor-general, the Crown Agent, Depute-advocates, Sheriffs, Procurators Fiscal, Justice of the Peace Clerks, Borough Court Clerks—in fact, there is no office which ever did exist in Scotland that he does not represent. And if I should call him by chance in this debate the Lord Chancellor, Privy Council, Grand Jury, Coroner, Lord Lieutenant, or Commander of the Forces by sea and land, I should make no mistake, I should be quite right. If I should go further, and add to these that he now appears to be the keeper of the conscience of the General Assembly, Monitor of the Judges 613 of the Supreme Court, and Parliamentary Representative General for all Scotland, the House will see how far his influence and power extends. In fact, no Scotch representative can carry on successfully any public measure affecting Scotland without his nod and concurrence. In addition to these it may be said truly that he is commander-in-chief of all our Parliamentary business. No independent Member can move a peg, or get a Bill forward a single stage, without his approval, although I do not mean to say that he has been so very successful in getting his own business forward. If the Lord Advocate was an independent official personage, then he would act as the Secretary of State for Ireland does, and insist upon turn and turn about with the Scotch business in this House, He would not submit to be put aside or passed over by any man; but he is unable to do so, being so mixed up with political matters. I speak of the system, not of the man, and I must say, that I have never seen any Lord Advocate one bit better with regard to Parliamentary independence than another. My hon. and learned Friend who at present holds the office, is about as efficient as any of them; but he has much more to do than his Parliamentary duties, and if I were to move for a return of the time he has spent in the House of Commons, and the time he spends in the House of Lords, I am quite sure the return would show that he has spent thrice as much time in the latter as in the former. If I was to move for a return of the business which my right hon. Friend has conducted in the House of Lords, as the Court of Appeal from Scotland, and given his mind thereto, as compared will the time he has devoted to the business of the House of Commons, you would find, that it was ten to one—or, indeed, I dont know what the odds would be—it would be, to use a common phrase, "All England to a Magpie." The House is probably not aware, that, in his capacity of Lord Advocate, he may bring the most serious charges against the character of any man, in every station, and never bring the matter to public trial, and that without assigning any reason whatever. We have, in Scotland, a most useful officer, called a Procurator Fiscal, whose business it is to examine into crime, and prepare cases for the Crown Counsel, the Depute Advocates, and the Lord Advocate. Now, 614 Sir, no man can demand any information as to the cases investigated by the above officer. The Lord Advocate may act in such cases, or not act at all, just as he pleases; he may try or dismiss a party, and is not subject to any action for damages for his conduct. The abuses of such a system may be carried to an enormous extent. For example: In the time when Lord Jeffrey was Lord Advocate I had occasion to apply for the particulars of a precognition taken with regard to the alleged murder of two seamen belonging to the port which I have the honour to represent. Sir, I never could get a sight of this precognition, nor was the party ever brought to trial, although the widows of the two men insisted for a public trial; the reply given me was, no, it is contrary to the ordinary course; and they would not and did not produce it. I applied again to Lord Murray, and after various tedious and protracted applications I was refused, and according to the system, properly refused; but this will be sufficient to show the House the enormous, irresponsible, and dangerous power, of the Lord Advocate of Scotland. Now, Sir, a great deal has been said with regard to the criminal duty of the Scotch Judges. The fact of the matter is, that it is now-a-days comparatively a mere farce, being almost entirely prepared or provided for by Sheriffs and their Procurators Fiscal; and if any one doubts this, let him go into the High Court of Criminal Justice in Edinburgh, or any where else in Scotland, which has been so much lauded; and he will find there silting three judges, a Lord Advocate, a Solicitor-general, and one of his Deputes, perhaps, trying two or three little children, from eight to twelve years old. There they would be found in their Ermine, with their Lord Advocate, or those under him, with all the paraphernalia of a great court of justice, trying such insignificant cases, just as if they had committed the most heinous crime of high treason. The same farce pervades the circuits of the few towns the Criminal Judges visit, for there, as in Edinburgh, they find the cases so thoroughly sifted and prepared by the excellent and efficient local authorities, and under the odious but easy system of applying the former sentences of inferior courts, to eke out the crime which poor ignorant creatures stand accused of, which system is in Scotland called "habit and repute," that the judges 615 now have rarely cases to try of any great difficulty. In fact, the parade of judges entering circuit towns in gown and wig, and preceded by trumpeters, &c, is now mocked at by the sensible portion of the people. And yet this part of the duty of our judges and the Lord Advocate's department has been lauded to the skies. If the system of our criminal jurisprudence as at present administered, be calmly looked at by unprejudiced parties, it will be manifest that with stipendiary judges in each county, authorised to try, and daily trying criminals with the aid of a jury, the congregating offenders for months together in our gaols until the six-monthly circuits shall arrive, is no less unjust than impolitic. Few cases occur of capital punishments. Transportation is on the wane, Chairmen of Quarter Sessions in England may award that horrid punishment; stipendiary county judges in Scotland are far higher legal authorities than chairmen of quarter sessions, and well deserve to be intrusted with at least their powers—I repeat, Sir, Scotch Circuits are, now-a-days, more injurious than useful; for another monstrous thing of which I have to complain, is, that civil cases are not allowed to be tried with the aid of a jury on circuit. This would be too great a boon; it would save expense; it would not occupy sufficient time to keep up the delusion of the hard labour imposed on our judges, therefore one set follows another, and so keeps up appearances. I have a return ready to move for, which, when made, will show that the same judges are sent to try civil cases with the aid of a jury, in the very towns the circuits had immediately previously been held in. We are not accused, as a nation, of being ignorant or unjust, and yet we are prevented from trying civil cases on circuit, and are forced to try them in Edinburgh, so as to give the judges the least possible trouble, and the profession there the greatest gain. Then, again, the paraphernalia and consequent expense of isolated jury trial is such as to deter the people of Scotland from entering the courts of session, and the machinery of that court is such an internal contrivance that no man in his senses will attempt to go there. I repeat, Sir, the machinery of that court may fairly be called an infernal machine. In the first place, such are its forms and proceedings, that it very frequently takes two years to get a case the length of a jury. 616 But then it has been alleged that we are a capricious people, and that many will not go into courts out of mere caprice. Now I have been curious enough to make some inquiries on that subject, and in every instance, in answer to those inquiries, I was told that caprice had nothing to do in preventing a party from seeking his rights in the courts, but that it was so difficult and tedious to obtain justice in them that parties were afraid of attempting to do so. It is the expense, delay, and vexation which the people have suffered which has created the dissatisfaction so often repeated in the report now in my hand, which, if not the production of the Lord Advocate, has had his unqualified approbation, as it has had of the whole of the Members of the Committee, one only excepted. The people are ignorant in general of the complaint of the judges' impatience in hearing cases. This is a professional allegation, and never was heard of by me amongst the innumerable complaints against the courts which have rung in my ears from every quarter. The hearing of counsel at length, no doubt is highly proper, but doing so will neither augment the sessions nor diminish the vacations, nor remove the general dissatisfaction which at last is universally admitted to exist. Sir, I have endeavoured, considering the importance of this subject, to bring it as shortly as possible before the House, having, in the course of yesterday, received a salutary hint from the Lord Advocate of its being dangerous to interfere with the learned judges in Scotland—and not having been much encouraged by the noble Lord, the leader of this House, to expect that he would advise the Crown to command these judges, in virtue of the Act of Parliament, to extend their Sessions two months longer in the year. Perhaps this may be according to the general course adopted by Ministers, of intending to do what is required, even when they do not hold out any hopes at the time, to adopt it at a future day; and presuming that perhaps that may be the case, and being perfectly certain with the Government against me I cannot succeed, I will not take upon myself the responsibility of an adverse decision at this period of the Session, by calling upon the House to express its opinion, but will leave to the noble Lord the Secretary of State, and those whom he consults, the whole responsibility of this important question, 617 and let them take the consequences, Therefore, I beg to withdraw the notice I have given, that is, not to make the motion of which I had given notice.
The Lord Advocate
said, that as the hon. Member intended not to mike the motion of which he had given notice, he would not detain the House with many observations, and he was the more induced to take that course, because it would require considerable time to enter into the details, so as to make hon. Members understand the question sufficiently well to form an opinion on it. He confessed, too, that he thought it would be very difficult for the House to have all the requisite information before them, when he found such gross misapprehension and misrepresentation of this subject as the hon. Member, no doubt inadvertently, had indulged in. That hon. Member had attended to the subject for many years, and had attended the committee from beginning to end, and yet, almost without an exception, had he come to an erroneous conclusion on every question before them. He must observe, that with regard to the number of Scotch judges, the committee had determined, after a lengthened inquiry, that the number of them could not be reduced without prejudice to the administration of justice in Scotland. He believed, however, that the suggestions of that committee were to be carried into effect, and that in a short time a great change in the mode of administering justice in Scotland would be made. He thought the hon. Member had made out no case for the interference of the House, and that the hon. Member had taken the best course in not pressing his motion. With respect to the extraordinary powers which, according to the statement of the hon. Member, were attached to the office which he had the honour to fill, he must say he did not know where those powers were, and he was sure, that if they ever did belong to his office, they were now completely in abeyance.
§ Mr. Goulburn
thought it incumbent upon him not to let this occasion pass without protesting against the irregularity of making statements and entering into details, and not concluding with any motion. Such a course would lead to the greatest inconvenience, and was a direct and positive violation of the orders of the House.
§ Subject at an end.