HC Deb 25 February 1845 vol 77 cc1163-73
Mr. Wallace

rose, in pursuance of notice, to move for leave to bring in a Bill that would enable the Government for the time being to reduce the number of Judges composing the Court of Session from thirteen to any other number, and to extend the jurisdiction of the stipendiary County Judges, called Sheriffs, by giving them the power of awarding the punishment of transportation, in the event of the Judges in the Court of Session being so reduced. The time had arrived when this reduction ought to take place. There were two divisions of the Supreme Court of Review, or Court of Session, as it was termed. In one of those divisions very little business was transacted. It had been said that his interfering with this subject had been attended with evil effects upon the conduct of the Scotch Courts; but he had good proof that since he had made it his duty to watch these Courts there had been greater attention to the business of the Courts, and that his interference during the last five years had been beneficial. He had before him a comparative view of the business of the First and Second Divisions of the Court of Session since 1841. In the First Division the number of reclaiming notes against the judgments of the Lords Ordinary, was from the 1st of January 1842, to the 1st of January 1843, 204; from the 1st of January 1843, to the 1st of January 1844, 174; from the 1st of January 1844, to the 1st of January 1845, 207. In the Second Division the same description of business was, from the 1st of January 1842, to the 1st of January 1843, 216; from the 1st of January 1843, to the 1st of January 1844, 145; from the 1st of January 1844, to the 1st of January 1845, 82, This showed the opinion entertained, not only by the legal profession in Scotland, but also by the people of that country, of the conduct of the Judges in these two divisions of the Supreme Court. He might mention another description of business transacted in these Courts—namely, incidental applications not followed by litigation. In the First Division these applications were—1842 to 1843, 587; 1843 to 1844, 563; 1844 to 1845, 558; In the Second Division they were:—1842 to 1843, 312; 1843 to 1844, 369; 1844 to 1845, 330. This was an incontestable proof of the opinion of the inhabitants of Scotland as to the merits of these two divisions of the Court, and clearly demonstrated that the Second Division, over which the Lord Justice Clerk presided, had fallen into disrepute. The number of defended causes which had been brought from the Outer House, and which had been enrolled for review before the First and Second Divisions of the Court of Session since the 12th day of November, 1844, to the 20th of February, 1845, being rather more than three months out of the four which constituted the winter Session of the Court were: defended causes enrolled for review by the First Division, 298: defended causes enrolled for review by the Second Division, 46; showing a difference between the two Courts—which, let it be remembered, had co-ordinate jurisdiction, and had four Judges of the Supreme Court sitting in each—of 252, another incontestable demonstration of public opinion, of more than six to one, in favour of the Judges in the First Division over those in the Second. Formerly similar returns proved that not more than one-fifth of the defended causes enrolled as above found their way to the Inner Houses, or Courts of Review; thus showing that the proportion likely to go to the Second Division for more than three-fourths of the present winter session would be nine causes only. A pretty state of matters for a Court of four Judges of the higher grade and salary, and costing the country not less than 25,000l. a-year. The number of causes in a certain period before the First Division had been 323, and in the same period before the Second Division, the number of causes was only twenty. The hon. Member next adverted to a comparative view of the number of stipendiary Judges in England, Wales, Ireland, and Scotland, and read to the House the following document:— Abstract of the return of the stipendiary Judges in England, Ireland, and Scotland, respectively, being No. 314, Session 1844:—Calculations to show the proportional number of stipendiary Judges to the population of England and Wales, and of Ireland and Scotland, respectively. The population is taken in round numbers. The population of England being about 16,000,000, and the number of Judges 145; it follows that there is one Judge to every 110,000 souls in England and Wales. In Ireland, the population being about 8,000,000, and the number of Judges 124: it appears there is one Judge to every 64,000 of the Irish people. In Scotland the population is about 2,600,000, and 94 Judges; that is, one Judge to every 27,000 of the people; being one Judge in Scotland to every 27,000, whilst in England you have only one for every 110,000. There is another way of stating the case. In England there are 22 superior Judges, which gives one superior Judge to every 727,000 inhabitants. In Ireland there are 16 superior Judges, which gives one superior Judge to every 500,000; and in Scotland, 13 superior Judges, which is one for every 200,000 inhabitants. Of inferior Judges, England has 123, which is equal to one inferior Judge to every 130,000. Ireland has 108 inferior Judges, or one to every 74,000 inhabitants: whilst Scotland has 81 inferior Judges, or one inferior Judge to every 32,000 inhabitants. There is still another test of the wasteful expenditure in forcing upon Scotland a number of Judges far beyond the wants and wishes of the people, which is brought out as follows from the above return: The judicial establishment in England, costs 208,976l., showing that for every 1,000 inhabitants, 13l. 1s. 2½d. is expended. In Ireland, the establishment costs 116,087l., being for every 1,000 inhabitants 14l. 10s. 2½d, whilst Scotland's establishment costs 76,970l., being for every 1,000 inhabitants 29l. 12s.; being considerably more than double the cost in England, or even in Ireland, and consequently considerably more than for both of these countries put together. The above is the result, of No. 314 of last Session; but from tables which he had constructed, printed, and circulated from equally authenticated documents, he could prove that the cost to the nation of the judicial establishment of Scotland, in place of being 76,970l., was 170,148l., which would show that for every thousand souls in Scotland, the judicial establishment there, in place of costing 29l. 12s., actually amounts to 65l. 4s. 2d. At present the Scotch bar was very much diminished, both in the general number of counsel and in the leaders; some years since he had stated the number of leaders at seven, then it was reduced to five, next to three, and at this moment, independently of the Lord Advocate and the Solicitor General, it had only one, viz., the late Lord Advocate. He objected also to the length of the recesses, and insisted that the Court of Session might be much more fitly denominated the Court of Vacation. With reference to the Jury Courts of Scotland, he must remark that for 20,546 causes decided without the intervention of juries, there were only thirty causes tried by juries. He admitted that the reason why he again brought the subject before the House was, that he had hitherto failed in persuading any Government to afford to Scotland an improved system of criminal jurisprudence. In his opinion much of the present state of crime in Scotland, especially among juvenile offenders, was owing to the fact that they were generally taken before police courts, and inadequately punished with brief periods of imprison- ment not exceeding sixty days. This was why Scotland was at this moment overrun by "habit and repute thieves," who were not severely punished until they had committed a certain number of smaller delinquencies, when their offences were accumulated and they were visited for many under one sentence. In England and Ireland the better system enabled criminals to be brought to justice in a short period; whereas in Scotland there was a long delay; and at last the prisoner was only sent to such penitentiaries as that at Perth, which however well conducted, had failed in the effects it was hoped it would produce. Besides, this system did not get rid of those who were in the habit of bringing up and educating young thieves. The speedy punishment of delinquents was extremely advantageous also, inasmuch as it had a powerful effect in deterring others from the commission of crime. In Scotland six or seven months sometimes elapsed between the perpetration of the offence and the conviction of the party. In the city of Edinburgh, it was true, by an old law, they could and did try and convict within a week; and he saw no reason why this rule, with certain modifications, should not be applied to Scotland generally. Another evil was, that parties and witnesses were frequently brought from great distances for the purpose of prosecuting offenders. He would state to the House the number of prisoners tried between the years 1834 and 1840, at the assizes in Glasgow, with the number of witnesses, and the average number of those congregated in Glasgow for eight or ten days at a time, to try criminal cases only, from the three counties of Lanark, Dumbarton, and Renfrew. It was—Prisoners, 1,454; average yearly number, about 242. Witnesses, 14,667; annual average, 2,444. That statement showed the enormous absurdity of collecting all the offenders within three populous counties into one town, and forcing jurymen to leave their homes and their business, over the whole surface of three counties of not less than seventy miles in length; and adding thereto the drudgery, the inconvenience, and the great loss of valuable time, besides the cost incurred by the reckless mode in which the Law Officers of the Crown drag witnesses from every corner of Scotland, to prove the usually enormous proportion of trumpery cases which are chiefly the work, now-a-days, of circuit courts, which, as to witnesses, is demonstrated in the above statement as respects assizes held at Glasgow; and all, be it remembered, on criminal cases of an average of 2,444 annually; while, in one of these years, the enormous number of 3,836 witnesses were dragged from their homes, distance some thirty or forty miles, as the case might be, to be called into Court or not, as often happened to many of the witnesses whom the underlings of the Lord Advocate compelled to leave their homes and their families. That something must be done, he was perfectly satisfied. The present system must be altered; and at county meetings it had been frequently declared that the Perth Penitentiary had failed in its design, and that some other course must be adopted to check the increase of crime. He imputed the fault to the system, and not to any want of humane endeavours by the hon. Member for Perth and others to remedy the growing evil. There was at present a great want of confidence throughout Scotland in the Second Division of the Court of Session, which was only looked upon as a stepping-stone for appeals to the House of Lords, which must be remedied. He must urge, too, the expediency of giving Sheriffs of counties in Scotland the power of transportation for offences which would meet with that punishment if the criminals were detained and tried by the Judges of Assize. He believed that such a change would much improve the whole system of criminal jurisprudence. The hon. Member concluded by submitting the following Motion:— That Leave be given to bring in a Bill to repeal so much of the Act 1 Will. 4, c. 69, as provides that there shall be thirteen Judges in the Court of Session in Scotland; and to extend the Jurisdiction of the Stipendiary County Judges, called Sheriffs, by giving them the power of awarding the punishment of transportation, in the event of the Judges in the Court of Session being reduced below the number of Thirteen.

The Lord Advocate

submitted to the House that the hon. Member for Greenock had not made out any case for altering the constitution of the Court of Session. The hon. Member had said that the Court was not satisfactory to Scotland, and being of that opinion, he had with a laudable perseverance from time to time endeavoured to effect an alteration. He, however, would venture to say, that the hon. Member was altogether mistaken, and that the constitution of the Court of Session was not un- satisfactory. With respect to the Sheriff Courts, the hon. Member had spoken in terms of praise to which he most readily responded. They had performed their duties, both as regarded their civil and criminal jurisdiction, most satisfactorily; nor were the Supreme Courts less satisfactory. In 1840 a Motion similar to the present was urged by the hon. Member, and a Select Committee was appointed to inquire whether any alteration should be made in the constitution of the Supreme Court. A very elaborate investigation took place. The right hon. Gentleman opposite (Mr. F. Maule) was the Chairman of that Committee, and some hon. Gentlemen whom he saw opposite were Members of that Committee. Many witnesses were examined, and the Report made by that Committee unanimously, with the exception of the hon. Gentleman himself was, that it was not expedient to reduce the number of Judges, though it was expedient to make certain suggested alterations in the form of proceeding. These alterations had since been adopted with advantage. One effect of them was to render necessary a fuller oral discussion in the Inner Chamber of the Court, the consequence of which was that each cause that came before those Judges occupied more time in Court. The hon. Gentleman had said that one branch of the business of the Inner Chambers of the Court was to review the judgments given by the single Judges, and that there was a great deal less business in one of the Chambers or Divsions of the Court than in the other. Now, the amount of business in the Courts of the country necessarily fluctuated from accident, the state of the country, and various other circumstances, exclusive of the merits of the Courts. Thus in 1839 and 1840 the number of causes before the Inner Chambers of the Court remaining undecided at the end of the summer Session was smaller than in 1841 and 1842; and if in 1840 the number of Judges had been reduced because the number of causes was smaller than in some previous years, the result would have been that the Courts would have been unable to get through the business. A similar fluctuation might be observed in comparing the business of one Court with that of another. It often happened that one Judge or one Court would get more cases than another, from the fact that there were feelings and impressions among suitors as to the preference to be given to one over another; and practitioners might be of opinion in reference to certain classes of cases that they should go before particular Judges. At the same time, such preference should in no way disparage any of the other learned Judges. There happened to be at the present time in one of the Chambers of the Court a more fortunate combination of various orders of talent and character than he had witnessed since he had been a practitioner. But that was no disparagement to the eminent Judges who sat in the other Chamber. In 1836, and for five or six years before, the number of cases in the First Division of the Court was, as now, greater than the number in the Second Division. In 1837, and for five or six years thereafter, the reverse was the case—the greatest number was in the Second Division. But the mere circumstance that there was more business in one Court than in another was no evidence against the efficiency of the Court having the least business. It sometimes happened, indeed, that cases were taken into the Court which had fewest cases, because they were deemed deserving of extended inquiry, or were of more than ordinary importance, and that just because that Court had more time to devote to the investigation of them. It so happened that, of cases published in the Reports as of importance to the profession during the years ending in November 1843 and 1844, the larger number were decided by the Second Division. In 1843 there were 108 cases, and in 1844 eighty-eight cases reported in the First Division of the Court; while in the Second Division there were 128 cases in 1843, and 111 in 1844. That was the natural course of events; for if one Division was overpowered with business, cases requiring much time or despatch would flow into the other. He contended, therefore, that no case had been made out by the hon. Member for the reduction of the Second Division of the Court, or of the number of Judges. The hon. Gentleman had complained that the Judges did not devote much time to their duties. Perhaps the House was not aware that from the Report to which he had alluded, it fully appeared that the learned Judges underwent a great deal of labour at their Chambers, and that the number of hours they sat in Court daily was no criterion of the time they devoted to their duties. The Judges began their sittings for the winter on the 1st of November. In the three weeks of the Christmas recess few of them had a single day of rest, with the exception of Christmas Day and the first day of the year, having civil and criminal cases to dispose of. The spring vacation did not commence till after the middle of March, and then there were the circuits. The Court reassembled in May, and the Session, which should end in July, was generally prolonged for another fortnight, to the 12th of August. Then they went the circuits again, and met on the 1st of November, so that there was scarcely any cessation of business. Having thus dealt with the observations of the hon. Member on the Supreme Civil Court, he would now proceed to notice what had been said in regard to the Criminal Courts. He understood the object of the hon. Member to be to do away with the circuits of the Supreme Judges; and to give the Sheriffs the power of pronouncing sentence of transportation. He agreed with the hon. Member on the importance of discouraging crime; but he differed from him as to the mode of accomplishing that object. But what he had now to deal with more particularly, was the proposition of the hon. Member to give the Sheriffs the power of transportation. He thought the proposal quite unnecessary. At present transportable offences were sent to be tried before the High Court at Edinburgh, and the Circuit Courts; and those not deserving such severe punishment were tried in the inferior Courts, and it rarely happened that the Sheriff exhausted the power of the milder punishment, so that it was not necessary to make the alteration. Did the hon. Member mean to say that the Courts having power to transport could not overtake all the cases to which that punishment was appropriated? The fact was, that they not only overtook all such cases, but many others which they did not consider deserving of so severe a punishment. If they should at any time be found unequal to the task, by the 9th of George IV. the Crown, by an Order in Council, could constitute as many additional circuits as might be necessary. It was not only unnecessary, but it would be injurious to give this new power to the Sheriffs, for thereby thirty odd new Judges would be created, who were separately to exercise their discretion as to this punishment of transportation. By that means the foundation would be laid for a great want of uniformity in the punishment attached to particular offences; and if the hon. Gentleman would give the power to the substitutes as well as to the Sheriffs, it would double the chance of that want of uniformity. The effect of the hon. Gentleman's proposition would be, to give the power of adjudicating upon high and grave offences punishable by transportation, to persons not educated as Barristers, though very excellently qualified persons for their present duties. The effect of it would also be to deprive prisoners of the aid of Counsel to conduct their defence. At present, no man in Scotland could be tried, subject to the risk of transportation, without being defended by counsel. In the High Court of Justiciary, in Edinburgh, every man could be defended by any counsel he chose to ask for; and, however serious or odious the charge against the delinquent, no counsel at the Bar would refuse. He recollected a case which attracted a good deal of attention in the country, and to which a good deal of odium was attached, in which the junior counsel claimed the assistance of some of their senior brethren, and at once received that assistance from Lord Moncrief, Lord Jeffrey, Lord Cockburn, Lord Robertson, and others. Another ground of objection to the proposition of the hon. Member was the increased expense it would occasion in conducting prosecutions. Unless a case of very great necessity were made out, the proposition could not be justifiably entertained; and he (the Lord Advocate) thought he had shown that there was no necessity for it, and that great evil, instead of any good, would result from its adoption. He therefore hoped that the House would not agree to the Motion.

Mr. Fox Maule

admitted that the hon. Member for Greenock had always brought the subject forward in a manner that could not give any personal offence. He did not, however, agree with the hon. Member in any of his propositions; and he had combated them so often that it was needless to go over the ground again. As to one part of the hon. Gentleman's Motion, he concurred with the learned Lord Advocate, that if it were granted it would lead to great inconvenience, not to say to much mal-administration of justice in Scotland—he referred to the proposition to give inferior Courts the power of inflicting the punishment of transportation. Those Courts were of the greatest benefit to Scotland, and the gentlemen who presided over them discharged their duties admirably, for which the public were greatly indebted to them; but if they were to be put in the position proposed by the hon. Member for Greenock, duties would be imposed upon them which they could not perform with satisfaction to the pub- lic. Another point which had been alluded to, he would make an observation upon, namely, the business in the Court of Session. A statement had been made of the disproportion of the cases in the two divisions of the Court of Session. He did not agree in the opinion that such disproportion was altogether a matter of precedent, for he believed it was to be attributed to the fact of the profession having more confidence in the manner in which a certain class of cases would be dealt with in one Court than in the other. He thought that matters should be permitted at present to remain as they were; and if the disproportion of cases continued, it might be a subject for the serious consideration of Government, whether they would not devise some means whereby the First Division of the Court, combining as it did the greater amount of talent, might not be overburdened with business. Whether this might be effected by taking away from parties the power of choosing their own Court, or by a division of the Lords Ordinary, he would not say; but it would be for the Government to consider whether they could not lessen the labour of the First Division in some way, if the discrepancy continued for another Session or two. This was the only observation he wished to make; and for reasons which he had previously and repeatedly stated, he should oppose the Motion of his hon. Friend.

Motion withdrawn.