HC Deb 02 March 1841 vol 56 cc1210-21
Mr. Wallace in

rising to bring before the House the motion of which he had given notice, said he would endeavour to be as brief as he could, and he trusted he should make out such a case as would entitle him to a "committee to inquire into the nature and extent of the duties still incumbent on the holders of the now nearly sinecure office of sheriff principal, or chief stipendiary judge for each county in Scotland; and, also, to inquire into the nature and effects of the degrading system under which the above class of stipendiary judges nominate and appoint stipendiary deputy judges, which judges are also paid out of the Exchequer; and, like all other deputies, are called upon to perform, and actually do perform, almost the whole of the highly essential and most laborious duties thus cast upon the useful class of judges, who preside so satisfactorily over the county courts of Scotland." He addressed himself more particularly to the Members of Scotland, and he would ask them whether or not, throughout that country, there was not an universal belief that the sheriffs' courts were capable of very considerable improvement. His object was, not to destroy but to improve; and he sought the appointment of a committee that the state of those courts might be looked into with a view to their improvement. In the first place, there were, in the narrow and poor country of Scotland, no fewer than eighty stipendiary judges to do the duty of the county courts, thirty of whom were sinecurists, whilst, by the bill which had been introduced by his hon. Friend the Under Secretary for the Home Department, and for which he (Mr. Wallace) gave him the utmost possible praise, and which he believed would confer an inestimable benefit upon England, it Was sought to appoint only twenty-five similar judges for this country. Thirty of the judges in Scotland were nothing better than sinecurists. By the Act of Jurisdiction, passed in the time of George 2nd, (and which was the original act appointing sheriffs in Scotland), it was provided and intended that those judges should hold itinerant courts during the year. The Crown could command the judges to do so, but such had been the influence of the legal profession in Edinburgh, that these judges were never permitted to perform that most constitutional duty. He should be surprised to hear how his hon. Friend (Mr. Fox Maule) could defend the system proposed to be adopted in England, and yet deny to Scotland the very same Machinery that it was believed would be so very beneficial to this country. In Scotland there were two sets of judges. One set (consisting of thirty) were merely sinecurists; the other set were the nominees, or deputy judges, (consisting of fifty), appointed by the thirty sinecure judges. Could anything be more mon- strous than a system which admitted of judges to be nominated by other sinecure judges, and yet to be paid by the public? There had been many bad appointments under this system, and it was, nevertheless the fact, that the nominee judges were far superior to those who appointed them. The reason was obvious: one set held their courts openly, and the public eye was continually upon them, while the others sat in holes and corners in Edinburgh, known to nobody. This was the distinction. Me expected to be told that the report of the law commission had sanctioned the late act of Parliament for the improvement of the sheriffs' courts; and that the commissioners had expressed a strong opinion, which ought to bear against the appointment of the committee he was anxious to obtain. But he was now about to bring a heavy charge against the members of that commission, inasmuch as they had not duly extracted from the Jurisdiction Act, but had raised their superstructure upon a false, and he would almost say, a scandalous foundation. He used those words advisedly, and he would endeavour to prove them. The Jurisdiction Act provided, That it should be lawful for the said sheriffs principal, or sheriffs substitute, not only to hold their own regular courts, but also to hold itinerant courts, at such times and places within their respective jurisdictions as they should judge to be expedient, or at such times and places as should be directed by his Majesty, his heirs, and successors, by warrant under his or their sign manual. Notice was also required to be given before such courts should be held. He considered that the understanding of the legislature was, that these judges were to make itinerant courts. The sheriff substitute did now hold itinerant courts, but the sheriffs principal were debarred through the power, influence, or direction of the court of session from doing so. He did not know how it was accomplished, but they had managed to prevent the principals from holding any such courts. Again, there was another charge he had to make against the commissioners respecting the residence of the sheriffs. By the Jurisdiction Act, it was required that every sheriff should reside personally within his county, shire, or stewartry, during the space of four months in each year. Now, what did the law commissioners say? In page 26 of their first report, they quoted the act thus:— It is further provided by the Act of George 2nd, cap. 23, sec. 39, that every sheriff depute, or his substitute, should reside in his county for four months in the course of the year. He would ask the learned Lord where any such words were to be found in the act? He accused the law commissioners (and the learned Lord Advocate was one of them), of having stated in the report, as an abstract, that which was not true; and that it had been done for the purpose of erecting a superstructure which, if a committee were granted, he had not the least doubt would be completely overthrown. He would now pass on to the next part of his subject, stating only his utter want of confidence in anything which that report contained. This report was under the first commission granted for inquiring into the Scotch courts. The second commission was granted, and they were enjoined to do this, among other things—namely, to inquire into the expediency of circuits being performed by a certain number of non-resident sheriffs. Here was an order given to the commissioners to make an inquiry which they had never dared to make. They had blinked their duty, and had left it unperformed, because they knew that such a case would be made out as Would make it absolutely incumbent upon the House of Commons to inquire into the subject of the Scotch Courts. The learned Lord opposite well knew that in place of requiring the sheriffs to remain in their county, the act only required that they should hold eight sham courts throughout the year. He called them sham courts, because the public were not admitted to them, and, in fact, knew little or nothing about them. The act enjoined that the twenty-eight non-resident judges should be regular practising barristers in Edinburgh; it created in Edinburgh twenty-eight courts of appeal from the county courts of Scotland. Was it possible that any country could require twenty-eight courts of appeal from twenty-eight county judges? That was the state of the courts in Scotland—a state which caused universal confusion and disgust all over that country. Another reason for appointing the committee Which he asked for was, that the House of Commons had passed a bill which contained four clauses which regulated the duties of those courts; yet those duties were conducted in a most unsatisfactory manner, in consequence of the other House having thrown out those clauses. It was for the honour of the House that a committee should be appointed, in order to see whether degradation had not been inflicted upon that House by such conduct. The practice of the courts was most objectionable. It admitted of two records before them at the same time; and such was the system, that no witnesses were ever heard or interrogated in court; the judge never pronounced his sentense from the bench, but read it from a paper, so that the public received no benefit from them. In all the other courts of Scotland it was understood that they were open for the public good, but in the county courts it was all a dumb show; the judges—like the oracle of Delphos—were out of sight, and out of hearing; nobody knew anything of the matter, until they gave out their decision upon a scrap of paper, for which nobody entertained any respect. He had already endeavoured to describe the nature of the Scotch judges, of whom in all there were eighty. He might probably be told that those judges were men of high learning and acquirements—of great professional practice—men well qualified to act as judges. But he could tell the House, from accurate information which he had obtained on the subject, that out of the thirty sheriffs depute, who were old men, eight had retired from business altogether, eleven of them might fairly be called old women, nine were in pretty fair practice, and two of them presided most beneficially in their own courts. There was an anomaly in the Scotch courts which was not in those of any other portion of the United Kingdom—some of the judges were ordered to be in their courts continually, while others were not required to be so. He (Mr. Wallace) moved in committee last year to know how many leading advocates there were at the Scotch bar. The question was answered, and he had then asked what were their names, and could he have them. The answer was "No." However, he had learned their names from one of the witnesses, who gave evidence before the committee, and he found that not one of the sheriffs was a leading counsel. The bill before them for England, which gave twenty-five judges, was an excellent one, and the hon. Baronet was to move tonight for funds to pay those judges, and if there were not sufficient funds for that purpose, he (Mr. Wallace) would show him were there were plenty of spare judges and spare funds. However, he would not propose for England what he thought unfit for Scotland. He had learned from the hon. Member for Bandon, who was on the committee of last year, and who paid the closest attention to the subject, that there were thirty-four assistant barristers. Where, then, could be the necessity for eighty judges in Scotland? Nineteen of that number were totally incompetent to discharge their duties; nine or ten did their duties as barristers, but they did no duties as public judges. It was a mere farce—a disgraceful and positive system of patronage—and not a matter at all for which the public money ought to be expended. Let them look also at the expense. He found that the thirty-four judges in Ireland had but 500l. a-year each, making 17,000l.; the twenty-five judges proposed for England were to have 1,200l. a-year each, making 30,000l. a-year for England. But how did the matter stand in Scotland? Why, there were thirty sinecure judges, who had not less than 700l. a-year each, that made 21,000l.; and there were fifty deputies, or nominees, who had amongst them 20,150l. a-year: making 41,150l. for the county judges in poor Scotland; all of which was paid out of the pockets of the public. Besides, in Scotland they had to pay fees on each sentence of transportation, although the sentence had never been carried into effect. That he thought was a positive waste of public money. In short, the whole system required amendment; but he knew why the present Lord-advocate, like his predecessors, was opposed to all reform in the appointment of Scotch judges, and, indeed, he did not believe that any Lord-advocate would be returned to that House, if he stood out boldly for a thorough reformation of the Scotch courts. He had endeavoured to show the House that a committee ought to be appointed, and he should certainly divide the House upon it. He hoped that those Gentlemen who intended to vote against him would be able to tell their constituents why they would not have the Scotch courts improved; but he should be surprised if any man got up and said that those courts were not capable of improvement. He was not willing that Scotland should be degraded, and the people plundered, for the mere sake of patronage, 4 much higher value being set upon it than the thing was worth, even when a contested election came. The hon. Member concluded by stating that he was willing to alter the wording of the motion of which he had given notice, his sole object being inquiry; and therefore he would content himself with moving that a committee be appointed to inquire into the nature and extent of the duties of the sheriff principal or chief stipendiary judge for each county in Scotland, and into the system of nominating stipendiary deputy judges.

The Lord Advocate

said, that he had listened with all due attention to what had fallen from the hon. Gentleman, in order to discover the grounds on which he demanded this inquiry; an inquiry into a system which, without referring to any evidence whatever, the hon. Gentleman had chosen to assume to be utterly unnecessary, namely, the system by which a most important class of public officers, the deputy sheriffs of Scotland, were appointed. The hon. Gentleman had himself bestowed on those officers great praise, but not more than was due to them; but he had, at the same time, declared that the system by which they were nominated and appointed was a degrading system. It was at least satisfactory to him, and he knew it would be so to the people of Scotland, as well as to that House, to know that in whatever manner that hon. Gentleman might choose to characterise the system of their appointment, he was obliged to confess that the sheriffs depute were a most useful class of officers, and that they discharged most onerous duties with honour and credit to themselves, and satisfaction to all. He confessed that, on looking at the terms of the motion, with the experience he had had of the manner in which the hon. Gentleman conducted his motions, he was not at all surprised at the tone and temper with which he had entered into the discussion of this subject; but he did not think it worth while to take any further notice of that time and temper. The hon. Member had used very strong language with reference to the sheriffs themselves, which he (the Lord Advocate) knew would be rebutted in Scotland. The hon. Member had said that his noble Friend had stated that he was willing to grant the committee of inquiry if the House should think it right; that might be so, but he thought the statements of the hon. Member himself afforded sufficient grounds for the House to withhold its assent to the proposed inquiry. The very statement of the hon. Member for Greenock, that no Gentleman could hope to be returned from large towns in Scotland who endeavoured to overthrow the present system connected with local courts, showed how popular that system was. The hon. Member hardly appeared to understand the subject in many of its bearings, but he had admitted that the existing arrangements gave great satisfaction in Scotland. He did not seem to be aware that a commission appointed by the Crown had reported strongly in favour of the continuance of that to which the hon. Member so strongly objected, and when he accused the commissioners of having misrepresented the statute law of the land, and particularly the 20 George 2nd, c. 43, he could not have adverted to the fact that the very terms of that act were employed in the report. He was confident that every Scotchman who heard him would bear witness to the excellent working of the present system. It was true that the sheriffs depute were obliged to be residents principally in Edinburgh, the sheriffs substitute presided as local magistrates in the various counties, and administered justice to the satisfaction of all parties. The sheriffs depute were responsible for the conduct of the sheriffs substitute, and the state of the appeals showed how little any such a change as was proposed was necessary. Were not the sheriffs depute resident in the seat of law and learning, and the sheriffs substitute responsible to them, both offices would degenerate, and the administration of the law would cease to deserve the respect and confidence of the people. He (the Lord Advocate) therefore met the motion not with any statement of details, but with a general assertion, in which he was sure the House would coincide, that the hon. Member for Greenock had failed in making out any case for inquiry. It was surely a fair answer to such a proposition, that the people of Scotland saw no necessity for it; on the contrary, they would be deeply aggrieved if any alteration were made, since they were convinced that the gentlemen now acting as sheriffs principal, sheriffs depute, and sheriffs substitute, discharged their duties with honour to themslves, and with advantage to all parties concerned.

Mr. Hume

observed, that it was no recommendation in his eyes that the system was one hundred years old; on the con trary, in that period abuses had crept into it, which required removal; and of what advantage was it that every generation grew wiser, if that wisdom were not to be applied to the improvement of antiquated institutions? The complaint was not that justice was badly administered by the local judges, but that sheriffs substitute were not remunerated according to their merits and duties, while a number of overpaid sinecures existed which ought to be abolished. It was an objection also to the present system that the appointments were made, not by the Secretary of State, but by individuals, and for political purposes. The Lord Adcate had shirked the strongest part of the case of the hon. Member for Greenock, because, in fact, he could make no answer to it. Thirty nearly sinecure judgeships existed for the benefit of individuals and for the expenditure of public money. When all the duties they had to discharge might be performed by one or two competent persons. Some of the judges in the Court of Session had not so much to do that they could not undertake to decide the few appeals which came from the decisions of the Sheriffs substitute. In Ireland there were thirty-four similar judges, the expense of whose salaries was only 34,000l. a year; while for the thirty counties of Scotland there were no fewer than eighty judges. thirty of whom received 700l. a year for doing nothing, while the sheriffs substitute, who did the work were very inadequately paid. It seemed to him most extraordinary that after Parliament had declared so strongly against sinecures of all kinds, they were to be kept up in Scotland. He considered the country under great obligation to his hon. Friend (Mr. Wallace) for the manner in which he had persevered in bringing this important subject before the House.

Mr. Gillon

said, that before such a tribunal his hon. Friend could hardly hope for success in his motion. When anything like the abolition of sinecures, patronage, and offices came before the House, the unanimity of both the great parties against anything like inquiry was truly wonderful. He was not surprised at the cheers with which what was said by the Lord Advocate had been received by the other side of the House; no doubt hon. Gentlemen opposite thought the tenure of office by the Lord Advocate might be short, and they were in hopes if they succeeded to that and and other situations they should in their turn receive the assistance and support of the Lord Advocate. If, however, there were anything which ought to make the Lord Advocate doubtful of the goodness of his case, it was that it was so welcomed by his political adversaries, It was a matter of deep regret that the Lord Advocate of a liberal Government should thus be encouraged in the defence of a system of abuse and needless expenditure of the public money.

Sir G. Clerk

remarked that the difficulty the Lord Advocate had had to contend with was, that the hon. Member for Greenock had made out no case requiring an answer. The present system gave universal satisfaction, as he could bear witness, from his own experience as a country Gentleman in Scotland. He complained of the terms in which the motion was couched, because they were calculated to produce an unfounded prejudice through, out Scotland against the administration of justice.

Mr. R. Steuart

, though he should vote with the hon. Member for Greenock, could not concur in the sweeping censure he had pronounced on the judges constituting the courts of appeal in Scotland. He found fault with the system, not with the individuals. If the thirty judges were reduced to six or seven, supposing the system itself to be good, it would be sufficient. By a return last year laid upon, the Table of the House, it appeared that in five of the southern counties, where each sheriff received 700l. a year, there were only 127 cases of appeal within the year; and in the six northern counties, with equal salaries to the sheriffs, there were only 128 appeals; whilst they had additional salaries and expenses when they attended the registration courts. If he were to advise upon the terms of the motion, he would be inclined to leave out all the words after the word "Scotland"; but upon the merits, and disavowing the personal attack upon the sheriffs, he must support the motion of the hon. Member for Greenock.

Sir Robert Peel

said, that, so far as he had been enabled to form an opinion, he had thought that the system of local administration of justice in Scotland was generally acceptable to the people, and that, upon the whole, it was as free from error as any system was likely to be. He did not mean to say, that there might not be improvements, but the executive Government was perfectly competent to make those improvements, and it was not necessary to appoint a committee to consider the whole case. If a strong case were made out, he was not one to object to a committee; but if there were no general dissatisfaction, there was an evil in undermining the authority of judicial tribunals by general inquiries into their working. He agreed with the learned Lord (the Lord Advocate) in the reasons he had given for resisting the present motion, and the learned Lord had taken the right grounds for his opposition, and he (Sir R. Peel) would certainly divide against the hon. Member for Greenock.

Mr. Fox Maule

said that if he had no other reasons for resisting this motion, he should have found sufficient in the wording because he could not adopt the motion itself, and repudiate the terms. That motion had gone forth to the country, and if he assented to the appointment of the committee, he would be agreeing to the objectionable words. As to the small number of cases before the sheriffs, hon. Members did not know the labour which the sheriffs principal had in reviewing the decision of their deputes, and their exertions could not be rightly measured by the number of cases. To appoint a committee would be to sanction the opinion that there was something wrong to be enquired into. If there were a glaring wrong it must have come before the public, and needed no committee to find it out: and, if the wrong did exist, his hon. Friend should at once introduce a bill showing what that wrong was, and how he would remedy it: the House would then be able to form an opinion upon the matter, but the process now proposed would rather do injury than good.

Mr. Wallace replied

; He said he had worded his motion in its present terms, because every word was true. He had not inquired into the expediency of affirming what was true; if the House would grant him a committee, he would prove, not only the things he had stated in his motion, but a great deal more. He would not beat about the bush to conceal facts. The returns showed that in the counties of Peebles and Bute, the sheriffs had only two and a half appeals between them in a year, and ought this to continue? As for the system being satisfactory, any one wishing to recommend himself to the con stituencies in Scotland, not to the county constituencies, that were under the landlords, and were driven up to the poll like flocks of sheep, but to the independent constituencies would call for this law reform. If the committee were appointed, he would prove his case, and show that if there were proper reform in the tribunals, his countrymen would not be accounted a litigious people, but would readily meet their opponents face to face in open court, as they ought to do in a free country. He expected nothing but opposition from the lawyers in the House, for neither the Member for Midlothian nor for Leith could get their seats without the assistance of the black-coated gentlemen, who would not vote for them if they supported law reform. His learned Friend near him (Sir John Campbell) said that he had been a great law reformer in his time: that was true, but his reform had never reached Scotland, To meet, however, any objection, he would withdraw his original motion, and put it in an amended shape leaving out the words that had been objected to, and the latter part of the motion.

The original motion having been, by leave, withdrawn,

Mr. Wallace

moved, that a select committee be appointed to inquire into the nature and extent of the duties still incumbent on the holders of the office of sheriff principal, or chief stipendiary judge for each county in Scotland, and also to inquire into the nature and effects of the system under which the above class of stipendiary judges nominate and appoint stipendiary deputy judges.

The House divided—Ayes 37; Noes 86—Majority 49.

List of the AYES.
Aglionby, H. A. Hector, C. J.
Archbold, R. Humphery, J.
Barron, H. W. Johnson, General
Bellew, R. M. Lister, E. C.
Blake, M. J. McTaggart, J.
Bridgeman, H. Morris, D.
Brocklehurst, J. Muntz, G. F.
Brotherton, J. Murray, A.
Dennistoun, J. O'Brien, W. S.
Dundas, C. W. D. O'Connell, D.
Elliot, hon. J. E. O'Connell, J.
Ellice, E. O'Connell, M. J.
Evans, W. Smith, B.
Ferguson, Colonel Somerville, Sir W. M.
Gillon, W. D. Steuart, R.
Gisborne, T. Stuart, W. V.
Hastie, A. Turner, E.
Turner, W. TELLERS.
Warburton, H. Wallace, R.
Wood, B. Hume, J.
List of the NOES.
Abercromby, hn. G.R. Houstoun, G.
Adare, Viscount Howard, hn. C.W.G.
Ainsworth, P. Hurt, F.
Antrobus, E. Inglis, Sir R. H.
Arbuthnott, hon. H. Jackson, Mr. Serjeant
Baring, rt. hon. F. T. Jermyn, Earl
Barnard, E. G. Johnstone, H.
Bernal, R. Jones, J.
Blair, J. Kemble, H.
Bodkin, J. J. Lockhart, A. M.
Broadley, H. Lowther, J. H.
Broadwood, H. Mackenzie, T.
Bruce, C. L. C. Mackenzie, W. F.
Bruen, Colonel Morpeth, Viscount
Bruges, W. H. L. Neeld, J.
Busfeild, W. Parker, J.
Campbell, Sir H. Parker, R. T.
Campbell, Sir J. Peel, rt. hon. Sir R.
Chute, W. L. W. Pendarves, E. W. W.
Clerk, Sir G. Perceval, Colonel
Colquhoun, J. C. Pigot, rt. hon. D.
Conolly, Col. E. Plumptre, J. P.
Corry, hon. H. Pringle, A.
Craig, W. G. Rae, rt. hon. Sir W.
Cresswell, C. Richards, R.
Douglas, Sir C. E. Round, C. G.
Drummond, H. H. Rushbrooke, Colonel
Dunbar, G. Rutherfurd, rt. hn. A.
Egerton, Lord F. Sheil, rt. hon. R. L.
Feilden, W. Smyth, Sir G. H.
Ferguson, Sir R. A. Smythe, hon. G.
Freshfield, J. W. Stewart, J.
Gladstone, W. E. Teignmouth, Lord
Gordon, R. Thompson, Alderman
Goulburn, rt. hn. H. Trotter, J.
Graham, rt. hn. Sir J. Verney, Sir H.
Halford, H. Vivian, J. E.
Hamilton, Lord C. Wilbraham, G.
Harcourt, G. G. Wodehouse, E.
Hepburn, Sir T. B. Yates, J. A.
Herries, rt. hn. J. C. Young, J.
Hodgson, R.
Hope, hon. C. TELLERS.
Hope, G. W. Stanley, hon. E. J.
Horsman, E. Fox Maule, hon. F.
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