HC Deb 27 February 1844 vol 73 cc330-5
Mr. Wallace

rose to move for the Returns respecting the cost to the Nation of the Judicial Establishment in Scotland. He observed that the vacations in these Courts exceeded the Sessions, and unless some amendment took place, instead of Courts of Session, it would be his duty hereafter to designate them as Courts of Vacation. He should first read the actual facts as to the period of the Session and the Vacation, and the time daily during which the Judges sat. The vacation in what was called the Inner House extended to 211 days in the year, or nearly seven months; while the Session lasted only for five months, or 113 days. The vacation in the Outer House lasted for more than six calendar months, but the Session only 103 days, or about three months and a half. The Judges in the one set of Courts sat five days and a half in the week, and in the other Courts four days. He held in his hand a table showing the amount of business done from 1781 to the present time, the result of which showed that from that period (1781) there had been, with two exceptions, a continual decrease in the number of causes brought before those Courts; so that now the business little exceeded one-half the amount at the former period. Another paper showed that at the end of each Session there was an arrear of causes left untried, sometimes amounting to as many as 477. In taking evidence before the Committees which had sat upon this subject great stress had been laid upon the additional duties said to be thrown upon these Courts by merging other courts into them. He begged the attention of the House, and particularly of the right hon. Gentleman, the First Lord of the Treasury, to what he was about to read. He was about to read the number of causes that had been tried in Scotland in the year 1842, with and without Jury, including the cases tried the Courts of Session and the cases in the County Courts. This would show the estimation in which Jury trial in civil cases was held in Scotland. The number of these cases tried in the Court of Session, without Jury, in 1842, was 945, and those in the County Courts 19,611, making together 20,556; while the causes tried with Jury all over Scotland during the same period was thirty-six, being exactly one cause tried by Jury in civil suits to 571 without Jury. Nor was this to be wondered at, when it was known that every such case, previously to its sent before a Jury, took from two years to two and a half years in preparation, and that after the expiration of that period it might or might not be decided; but if decided, it would not be without an expense of from 500l. to 1,000l. on each side, or sometimes a larger amount. The average time that the whole of the Courts, speaking of the two divisions—the Courts of Session and the Courts of the Lord Ordinary—sat, was not more than about three hours a day. Another abuse, to which it was necessary to call attention, was the length of time occupied by the Jury Clerks in forming an issue before they went into Court. There was no Court so much detested by one class of the community, and dreaded by another, as the Court of Session, with the exception of the Court of Chancery, and that feeling did not now apply to the Chancery so much as formerly. The expenses of the Courts were very great they cost on the average, including the Judges' and Secretary's salaries, 127l. a day. In 1839, the number of causes decided was 197, and the judicial charges, not including what was paid to counsel, was 91l. 11s. 2d. a cause. In another division there were 164 causes, at an expense of 87l. 13s. 7d. a cause; and these vast sums came out of the pockets of the English and Irish people much more than those of the people of Scotland. The cost of the Judges, with their private secretaries, was 42,700; the clerks of the Court 17,000l. The other charges of the Court he had not been able to distinguish. The total amount of cash, independent of the pensions to retired Judges, was 79,253l. 11s. 2d. annually. The Lord Advocate's office cost 17,300l.; the County Courts, wherein thirty Sheriffs presided, was 16,500l. being at the rate of 551l. Then there were fifty deputy Judges, named by the Judges-in-Chief, who cost 20,000l., and the whole amount of the Judicial Establishment in Scotland was not less than 150,000l. He believed that if they travelled from one end of Scotland to the other, and asked the opinion of any one but a professional person, it would be found that there was not a person but was dissatisfied and disgusted with the whole conduct of these Courts. In Scotland the Judges could not get it out of their heads that they were not superior to everybody else, and also, that they were seated in the Parliament, at the Parliament house at Edinburgh (which he said God forbid they should ever see again!), and that they, too, had the power of making laws. The Lord Chancellor of England was the real Judge of Scotland; for whilst the number of appeals to the Lords this year from England was twenty seven, from Ireland the unusual number of twenty, those from Scotland were forty-five. He observed that the present Government had had the patronage of three Judges. They had appointed Mr. Hope, Mr. Robertson, and Mr. Wood. The first was confessed a most injurious appointment, for Mr. Hope had been put over the heads of his superiors, and made Lord Justice Clerk, when some of his seniors were particularly entitled to the office. As to Mr. Robertson's appointment, it was a judicious one, and Mr. Wood's was a first-rate appointment. There were only four leading counsel now at the Scotch bar, and as these learned gentlemen were frequently engaged elsewhere, the result was the continued stoppage of the business of the Courts. There was another department of the Administration of Justice which was intimately connected with this subject, viz., the County Courts. It was the duty of the Judges to frame rules for the improvement of these Courts, and it was also the duty of the Sheriffs to report from time to time to Parliament such improvements and alterations as might be made in the rules for regulating the business in those Courts. He believed, however, that those duties for several years had been neglected. It was true, however, that Scotland was not alone in respect to the abuses of the County Courts. By a paper he held in his hand, it appeared that in the County Courts of England even greater abuses existed than those of which he complained in regard to the Scotch Courts. He was sorry to say that he had little hope, notwithstanding all he had said in the House year after year, that any improvement would take place. With regard to the notice he had placed on the Paper, he had been informed by the right hon. the Speaker that the first part of it was irregular. He was not aware of the fact when he gave the notice, and he hoped the House would accept his apology for the irregularity, and allow bins to submit the second part of the Motion, viz.— That an humble Address be presented to Her Majesty, praying Her Majesty will be graciously pleased to exercise the powers which are reserved to Her Majesty, in the Act 2 and 3 Victoria, c. 36, as to extending the sittings of the Court of Session, 'if there shall be arrears of business in the said Court,' 'or, the state of the business otherwise may require it;" and in virtue of the said power so reserved to the Crown, that her Majesty will graciously see proper to command that the sittings of the said Court of Session shall he extended by two months in each year, or by such other period as to Her Majesty shall seem more proper.

The Motion was not seconded, but

Sir J. Graham

rose to say a word on the point of order. As the hon. Member had admitted his error, and apologised for it, he referred to the circumstance merely to express that which he was sure was the general wish of the House, that the right hon. Gentleman in the Chair would watch their proceedings, and not allow to be placed on the Notice Paper any reference to any speech or statement made by any Member of that House with a view to found a Motion upon it. Such a practice, were it to prevail, would be most inconvenient and intolerable. With regard to the subject-matter of the hon. Member's Motion, as there was, in point of fact, no Motion before the House, he could not, by the rule of the House, offer any observations in reply to the statements which had been made. He thought it right, however, to allude to one point, and although in doing so, he was not strictly regular, he hoped the House would, under the circumstances—the character of a learned Judge being attacked—bear with him for a few moments. The hon. Gentleman had commented with great severity on the conduct of the Lord Justice Clerk of Scotland. Now, that right hon. and learned Judge had received the highest possible proof of the estimation in which he was held by the Scottish Bar, in being unanimously elected Dean of the Faculty, notwithstanding the strong party feeling which at that time prevailed. He felt bound also to bear that testimony in favour of that right hon. and learned Judge which was the result of his (Sir J. Graham's) own experience. In the administration of criminal justice in Scotland, it was his duty to hold frequent official intercourse with the Lord Justice Clerk. It was his duty to refer to that right hon. and learned Lord all criminal cases submitted to Her Majesty for the exercise of the prerogative of mercy, for him to report upon them. In England, as the House would be aware, it was the duty of the House Secretary to hold similar communications with the Judges, and he must say, though it might appear in some degree invidious to others, that he received no such carefully prepared and complete reports from any other Judge as those which were transmitted to him by the Lord Justice Clerk, and it was impossible for him to speak in terms too high of the manner in which that Judge performed his important functions. He really believed that the opinion entertained by the hon. Gentleman (Mr. Wallace), as to the merits of the learned judicial Officer, if the opinions of the whole of Scotland could be collected, would be found almost as singular, as his opinion must appear to be in regard to the Motion he had placed on the Paper.