§ Order for Committee read.
§ House in Committee.
§ Clause 28 (and with respect to small debts cases, not exceeding twelve pounds).
§ MR. CRAUFURD
said, he wished to move an Amendment extending the jurisdiction of the Court from 12l. to 25l.; and as he had understood the chief objection against the extension to be, that it was considered hard to compel a man to go into Court to dispute so large a sum without allowing him any legal advice, he would also, if his Amendment was agreed to, move to add, at the end of the clause the words—Provided always that the parties, or any of them, shall be entitled to appear and plead by a procurator of court; but no such procurator shall 914 be entitled to have or recover any sum of money for so appearing and pleading for any party unless the debt or damage claimed shall be more than 8l. 6s. 8d.
§ Amendment proposed, to leave out the word "twelve," in order to insert the words "twenty-five."
§ The LORD ADVOCATE
said, he considered that the principles of this Bill had already been sufficiently discussed, and he must take the liberty of saying that this was the first time within the memory of the present Parliament that a Bill relating to Scotland, after having passed through the ordeal of a Select Committee, in which the clauses were gone over and agreed to without division, had again to be discussed clause by clause in a Committee of the whole House. The House would be aware that a Select Committee, having the advantage of the best assistance which could be procured, would be more competent to consider the clauses of this Bill, than a Committee of the whole House. The hon. and learned Gentleman seemed to think that the Committee were not in a position to judge of this matter—[Mr. CRAUFURD: Hear, hear!]—but, he would say it with great respect, he thought that was because he had himself not served on it. The hon. and learned Gentleman seemed to think that everything belonging to the County Court system was good. Now, he must say that he considered the system as yet to be in a very crude state; but the present measure was not a measure for extending the County Court system to Scotland; it was a measure for the improvement of the Sheriff Courts. The hon. and learned Gentleman said that the Judge must decide the case upon the spot, whether he had materials for his decision or not; while his (the Lord Advocate's) Bill declared, that if the Judge wanted further materials to enable him to come to a decision, he was to have the opportunity of procuring them. He considered this one of the most essential parts of the Bill. If the Motion of the hon. and learned Gentleman were carried, it would be useless for him (the Lord Advocate) to attempt any longer to reform the Sheriff Courts in Scotland, and it would be almost unnecessary for him to proceed further with the Bill, which he believed, as it stood, would be a great boon to the people of Scotland.
§ MR. CHARTERIS
said, that in accordance with the profession he had made upon the hustings, he was an earnest advocate of law reform, and it was as an earnest advocate of law reform that he supported 915 the Bill of his right hon. and learned Friend (the Lord Advocate). He believed the reform proposed by the hon. and learned Gentleman (Mr. Craufurd) to be inexpedient and unsafe, and he should therefore give his support to the clause as it stood in the Bill.
said, it was unfortunate for the people of Scotland to have a Lord Advocate whose views on law reform seemed to be so limited as those of the right hon. and learned Gentleman. On the Committee there were eleven hon. Members against four—eleven pledged to refuse discussion on the point upon which the people of Scotland looked with more interest than upon any other—and that was, whether the sinecure sheriffs should continue or not. Some of his hon. Friends had declined to serve in consequence of the constitution of the Committee; but he had attended it with the view of effecting what improvements he could. He had moved in the Committee the following Resolution:—That, inasmuch as no reform of the Sheriff Courts can be satisfactory to the people of Scotland which does not abolish the office of Sheriff Depute, and so do away with the system of double sheriff, it is the opinion of this Committee that application should be made to the House for leave to take evidence, and to send for persons, papers, and records with reference to that question.The division upon this was three to five—two voting with him in favour of the Resolution, and five against it. There were four other divisions in the Committee on different points, all showing the animus of the Committee, which was, therefore, far from having been unanimous. Parliament had abolished sinecures of all kinds, except the office of sheriff-depute in Scotland, and that ought in its turn, assuredly ought, to be abolished. He was certain that a measure might be introduced on this subject much better than that of the right hon. and learned Lord Advocate. He would not attempt to deny that, to a certain extent, it did effect an improvement, but not the improvement they ought to have had; and persons who were capable of giving information on this subject rather wished to take evidence, and not to begin to legislate this year. This Bill did not, he thought, do the Lord Advocate any credit as a law reformer, and he regretted the right hon. and learned Gentleman should have proposed a measure which the mass of the people in Scotland disapproved of.
§ MR. WALPOLE
said, he could not think that the hon. Gentleman (Mr. Hume) 916 had really addressed himself to the only point now under discussion, which was whether the words "twelve pounds" should be struck out of the Bill, and the words "twenty-five pounds" inserted. That involved the question of the extension of the summary jurisdiction in Scotland. Now, having attended the meetings of the Committee, and having taken some interest in this subject, he thought that, upon the whole, this Bill was really a great improvement in the law of Scotland, and he was quite prepared to support the measure as it stood. Though there were a variety of Amendments, of which notice had been given in the Votes of the day, not one referred to the points upon which the Committee decided in the four or five divisions which took place; and he thought he might assume from this that there was a general acquiescence in the opinions of the Committee on the points which had been mooted during their meetings. The Committee went through clause after clause, entertaining the objections made by the hon. and learned Gentleman (Mr. Craufurd), and they had taken great pains to make the Bill a good one. Hon. Members would bear in mind that the jurisdiction exercised under this Bill divided itself into three heads—cases in which the amount in dispute was above 251.; cases in which it was between 251. and 121.; and cases in which it was between 1L. and 121. The principle of the Bill with reference to this was, that where the sum exceeded 251., there might be an appeal to the Court of Session; where it was between 121. and 251., it was to be argued by advocates before the Sheriff Substitute, and might be taken by petition to the Sheriff Principal; where it was under 121. there were to be no procurators, as they were called in Scotland, to appear before the Sheriff Substitute. In a system characterised by the most perfect administration of justice, there ought, as a general principle, to be always an appeal from the Judge in the first instance. The limit to the adoption of that principle in the Bill was this—that where the amount involved was so small as not to suffice to pay the costs attending the first hearing and the appeal, there you must dispense with that appeal. This sum was fixed in the Bill at 121.; and he believed that this was, upon the whole, as good a limit as could be fixed upon. As a matter of experience, it was generally conceded that this principle had worked well in Scotland, and, as in cases where the amount was under 81. 6s. 8d., the principle had been 917 successfully tried, he thought it might with safety and prudence he extended to cases involving 121.; hut it ought not to be extended beyond that sum. The effect of the hon. and learned Gentleman's (Mr. Craufurd's) Amendment was, that the Sheriff Substitute was to exercise jurisdiction in a summary manner in cases up to 251., and to exclude advocates, except in special cases, from arguing the question before him. The want of appeal was one great fault in the County Court system in this country, and he should be sorry to see the power of appeal restricted in Scotland. Seeing that the Small Debt Court jurisdiction had worked well there—seeing that this Bill extended the principle of summary jurisdiction to a point to which they could prudently and safely carry it, he hoped the people of Scotland would feel that they had got in this measure a cheap and speedy jurisdiction, which would not be much more expensive than in the County Courts in England. He considered that the way in which the Lord Advocate had settled the Bill was one calculated to administer justice as cheaply and expeditiously as it could be administered consistently with the maintenance of a uniform system of laws throughout the country, which, to his mind, was even of more value than a cheap and speedy administration of justice.
§ MR. STUART WORTLEY
said, he was one of those who had voted for the hearing of further evidence before the Committee, and he regretted that that course had not been taken, believing that it would have been more satisfactory to the people of Scotland. As, however, the Committee had reported, he considered himself bound by the labours of that Committee, and he felt great difficulty in making any attempt to disturb the arrangement to which they had come. The effect of the Amendment moved by the hon. and learned Gentleman (Mr. Craufurd) was, that in place of extending the summary jurisdiction to 121., he would extend it to 251. He confessed that he should hesitate to adopt this plan, because he had heard from those well acquainted with the proceedings of this Court, that, in its present condition, the summary jurisdiction of the Court was anything but satisfactory. He quite agreed in what had fallen from the right hon. Gentleman opposite (Mr. Walpole) as to the want of appeal in the County Courts in this country: and, as the effect of this Amendment would be to ex- 918 tend the system of summary jurisdiction without appeal, he felt that he could not consistently support the proposition of his hon. and learned Friend.
§ MR. JOHN MACGREGOR
trusted that the hon. and learned Gentleman (Mr. Craufurd) would not divide upon the Amendment he had submitted to the Committee. He agreed with the right hon. Gentleman (Mr. Walpole), and the right hon. and learned Gentleman who had last spoken, with respect to the want of appeals as affecting the County Courts, which was a defect in the present system. Taking the Bill as it stood, and believing it to be an immense improvement upon the present state of the law, he trusted the Committee would pass the clause without going to a division. He must protest, however, against the limitation in the amount of salaries paid to the Sheriffs, which he considered was not worthy of this country, or of the duties required of men who must have received the best legal education in order to make them capable of filling the situations to which they were appointed.
§ MR. COWAN
said, it was his intention to vote against the Amendment of the hon. and learned Gentleman; and he thought the hon. Gentleman the Member for Montrose (Mr. Hume) had made an unmerited attack upon his right hon. and learned Friend the Lord Advocate, whom he believed to be most sincere in his wish to introduce a measure of ample reform.
§ MR. ALEXANDER HASTIE
begged to express the great obligations under which the Scotch Members lay to the right hon. Member (Mr. Walpole) for his attendance upon the Committee, and the attention he had given to this subject. It would, however, be an injustice to the Lord Advocate not to state that, although the Bill contained many features to which he felt a strong objection, yet that he viewed the Bill as a great improvement upon the present law.
§ COLONEL BLAIR
said, he could not feel justified in departing from the decision of the Select Committee.
§ MR. CUMMING BRUCE
said, he placed too high an estimate upon the right of appeal to accept the Amendment, and thereby limit its application as regarded Scotland. He thought the people of Scotland were under very great obligations to the right hon. and learned Gentlemen opposite, the Lord Advocate, and he hoped the Committee would receive the Bill in its entirety.
§ MR. DUNLOP
said, he must confess, notwithstanding what had fallen from his hon. Friend the Member for Montrose, that the Bill had come out of the Select Committee greatly improved, and that it effected a considerable improvement in the present state of the law.
§ The LORD ADVOCATE
said, he was bound to give the flattest contradiction to the statement that this Bill had been referred to a packed Committee. The Committee considered that the question of the double sheriffs had already been decided by that House, and that it was unnecessary to take evidence upon that point. They then determined to go through the Bill clause by clause, and to take evidence upon any clause upon which further information seemed desirable. After having made considerable progress with the Bill, it seemed unnecessary to take any evidence, and the hon. Member for Montrose (Mr. Hume) himself acquiesced in that opinion. The hon. Member for Montrose had stated that he (the Lord Advocate) would not earn the character of a legal reformer by this Bill. He intended to do his duty to the best of his ability, and that was all that any one need be very anxious about. That duty he should continue to perform by refusing to yield to what he knew to be an ignorant, although it might be a popular, clamour.
§ Question put, "That the word 'twelve' stand part of the clause."
§ The Committee divided:—Ayes 82; Noes 14: Majority 68.
§ Clause agreed to; as were also Clauses 20 to 40 inclusive.
§ Clause 41 (Provision for Retiring Allowance to Sheriffs and Sheriff Substitutes disabled after long service).
said, it was his intention to move an Amendment to the effect that no such retiring allowance should be granted to the sheriff depute, inasmuch as he was in many cases a practising barrister.
§ Amendment proposed, in p. 16, 1. 38, to leave out from the word "counties" to the word "Provided," in p. 17, 1. 2.
§ MR. DUNLOP
said, he thought it was eminently for the advantage of the country that gentlemen holding the office in question, many of whom had attained an advanced period of life, should have a fair retiring allowance after a full period of service, more especially as on being appointed to the office, they generally ceased from practising as advocates. He would therefore cordially support the clause as it stood.
§ MR. DUNCAN
said, he was of opinion that the clause in effect gave a man 500l a year only because he was a bad barrister.
§ MR. WALPOLE
said, he thought it would be the most impolitic thing in the world to exclude a sheriff-depute from a retiring allowance.
§ Question put, "That the words proposed to be left out stand part of the Clause."
§ The Committee divided:—Ayes 65; Noes16: Majority 49.
§ Clause agreed to; as were the remaining clauses.
§ House resumed; Bill reported as amended.