§ Order for Second Reading read.
§ MR. CRAUFURD, after presenting a petition from the Solicitors practising in the Sheriff Courts of Roxburgh in favour of the objects of his measure, rose to move that the Bill should be read a second time. He was anxious, he said, to take that opportunity of making a few observations, because he thought that a good deal of misapprehension of the views which he entertained upon the subject existed both in the House and in Scotland, and also because there was no small amount of misapprehension as to what were the objects of the Bill. The points at issue as between this Bill and that which was promoted by his right hon. Friend the Lord Advocate lay in a very small compass. These questions principally were the constitution of the Courts with regard to the conduct of causes, the subject of appeals, and the Judges to whom the conduct of causes should be entrusted. The House would be aware, from the several statements made and discussions taken, that in Scotland the Sheriff Courts were something akin to our County Courts in England, in so far as they were local courts; but it was necessary to add that in the Scotch courts there was no distinction admitted of law and equity, and that there was no limitation of amount in their civil jurisdiction, so that they could try causes of any amount. The Judge of the Court was in fact the Sheriff; he resided in Edinburgh, and was known by the title of Sheriff Depute. Originally it was he that did all the business of the office. And as he was the judge who tried the causes, he 150 was obliged to reside within his county four months of the year, that being the time which was sufficient for the then existing amount of business. Since that time, however, the business of the Sheriff had been so enormously increased that now he was overloaded. He was not merely the judge of the county court in civil matters, which involved both law and equity—he was also a criminal judge, a magistrate of the county, a committing magistrate, and his jurisdiction included also Testamentary and Admiralty cases. In fact, such was the amount of business, and such the nature of it, that he was obliged for the most part of the year to be on the spot. Persons had constant occasion of resorting to him. The person who performed all that business was the Sheriff Substitute. Originally he was nothing else than the locum tenens of the Sheriff Depute when he was otherwise occupied, and when he was at Edinburgh practising in the superior courts. Originally these Sheriff Substitutes were not lawyers, but colonels in the army and captains in the militia. Things changed, however, and that was a system which did not work well. As far back as 1838 a great improvement was introduced into these courts. A small-debt jurisdiction to the extent of 8l. 6s. 8d. was given; the judge in the cases heard without appeal, and no lawyers were allowed to appear before him except by special leave. These courts worked well and gave general satisfaction, and although it might be there was rough justice done, still upon the whole they gave great satisfaction. So great indeed was the satisfaction of the people, and their confidence in that as a system, that when they saw the extended jurisdiction of the new county courts of England, and heard of their success, and knew that the practice in them was similar to their own small-debt court, the desire was strong to apply to Scotland the English system as far as it was applicable to that country. He deprecated that any one should suppose he had any wish to identify England with Scotland in law. At the same time he and those who agreed with him were disposed in the spirit of English lawyers, respecting the Scotch system, to take from the English system of law whatever they could find that was good, and appropriate it to Scotland. And they were anxious to assimilate the two systems, not by making the Scotch law English, or the English law Scotch, but by an eclectic process of taking all that was to be found good in 151 both. The main evils upon which the two Bills, his own and that of his right hon. Friend, differed, were of a twofold nature. The Lord Advocate did not admit, to any degree, the existence of the two evils of which he complained, and did not, therefore, attempt even a modification of them. As the system stood at present the Sheriff Substitute was created in 1838 the local judge to all intents and purposes; he no longer occupied the position of a mere locum tenens, or played the part of an active agent of the judge himself, while the Sheriff Depute was at Edinburgh. The qualifications required of him were the same as those expected in the principal Sheriff; he was a lawyer. Although his appointment did in fact lie with the Sheriff Depute, his office did not drop with the death of his principal, so that in that view his appointment might virtually be said to be a Crown appointment. Appointed then by the Sheriff Principal he became the working judge in his county, and of necessity he was resident within his jurisdiction in consequence of the multifarious duties which he had to perform—duties in their number and their nature such as no one English judge was called on to discharge. Being to all intents the Sheriff of the county, and, indeed, the alter ego of his principal, he was yet practically under the control of the Sheriff Depute. None of the advantage that was gained from the sole attention of this gentleman to his duties would be lost under the provisions of this Bill if it passed into a law. On the other hand, the gentleman to whom lies the appeal from the local judge, was nothing more than a practising advocate in the Supreme Courts at Edinburgh, possessing all the dignity of the name and office of Sheriff, but being in fact nothing more than a practising advocate; in this respect something akin to what revising barristers were in England. But in Edinburgh he sits as a judge of appeal, and all appeals from his Sheriffdom must be to him. The right of appeal in Scotland lies, not merely on matters of law, as is the case in England, but also on matters of fact; and the consequence of these two circumstances taken together was, that the appeal lay to a judge who had no power to hear the evidence given, or see the witnesses, and yet had the power of revising the decision of him who had that opportunity. The whole of the proceedings, therefore, before the judge in the county, must be committed in full to writing—a process which resulted in 152 great complication of papers and proceedings; and these papers when completed were laid before the Sheriff Depute in Edinburgh. These papers were laid before him in the same way that a case in England would be laid before counsel for their opinion. The judge had it in his power to inflict further expense upon the parties by ordering further evidence; but there, again, as he knew nothing of the conduct or demeanour of the parties giving evidence, he was quite incompetent to act as a judge of appeal. Again, the parties when they had sent up their papers, had no security that they would be read. Stories had been told, the worth of which was of little consequence to him or his case, but stories were told in another place of tests which certain parties hit upon for trying the Sheriff Depute on this point. It was said that in one case of appeal the papers for the inspection of the Sheriff at Edinburgh were sent up interleaved with rose leaves; that the case was affirmed, and the papers sent down again, but the rose leaves had remained undisturbed. Another of a similar description was told of an appeal that was sent up to Edinburgh, and, as is usual, it was sent up in the avizandum box. The box came down again in due time to the country with the decision affirmed; but unfortunately for the Sheriff or the parties there never had been any papers in the box at all. But he objected to the system on principle. It was an unheard of thing, and he believed an impossibility, that any man who practises in the superior courts of law should be able to attend also to judicial business. Again, the appeal upon facts was from a judge who heard and saw the witnesses, to one who had no such opportunity; and yet the only mitigation of that circumstance lay in an accident—an accident that was much made of however—namely, that the Sheriff Depute did occasionally go into his own county, when, if he desired, he could hear the evidence. One of the strongest defences offered of the system was, that it was somehow connected with the stability of Government; but surely it was futile to say the stability of Government depended upon the Sheriff Depute, for that Government was weak indeed that depended upon such props. Well, then, so much for the appeal from the Sheriff Substitute. But if the Sheriff Depute went down himself into the county to try the cause, in that case, as he (Mr. Craufurd) contended should be the rule in all cases, there was 153 no appeal except into the Court of Session; and this, after all, was what became of the arguments used in favour of having an intermediate judge of appeal. He said, he was perfectly willing to agree to a modification of his Bill; he was quite ready to admit that the duties of the Sheriff were too multifarious to be performed by one man, so that, 1f they were disposed to continue a Sheriff Depute and a Sheriff Substitute, provided they made them co-ordinate, and not subordinate the one to the other, he saw no reason against returning the Sheriff Depute as the executive officer of the county, to act as a magistrate and preside at elections, for then the Sheriff Substitute, or whatever else they chose to call him, would be the sole judge within the jurisdiction. So far, therefore, as the existence of two Sheriffs was concerned, he had no particular objection. But what he wished to sec was, the abolition of the appeal upon facts, as being the grand evil of which he complained in the county court. Abolish that, and there was an end to the argument that the appeal to the Court of Session would occasion expense. It was from the appeal upon facts that the chief amount of the expense sprung. Everything in that case must be committed to writing, the pith and the particulars, every word of all that passed in the court or the country, must go down, and therewith grew the expense. The abolition of appeals of this hind was a principal feature of the Bill. Indeed, with a view partly to that, the first clause set out with abolishing both the present offices of Sheriff Depute and Substitute. But, as he said before, he was quite willing that one Sheriff should be returned to receive writs and preside at elections, and discharge such other ministerial duties as the public business might require. All that he said was, that they ought to make a division of labour between them—that one ought to be constituted the local judge, and that no appeal should lie from him except with the Court of Session. Clearly, if the double office of Sheriff were abolished, the only quarter of appeal must be the highest Courts in the kingdom. From one man to another he saw no advantage in appealing, the more especially if the person appealed to had his hands full of business; and if he were an able lawyer that was sure to be the case; for then he was likely to take the least troublesome course, and affirm the decision of the judge in the country, which he would 154 be the more likely to do if he had confidence in his Substitute. If, however, he did not affirm but reversed, then where was the satisfaction to be derived from two contrary decisions, one man saying "aye," and another man saying "no"? Yes, but it might be replied, the people were in fact satisfied with the system. Assuming it to be true, the answer cuts both ways. By the time the suitor reached the judgment of the Sheriff Depute, he was so much disgusted and exhausted with the expense and delay of the proceedings, that he was not much disposed to go further. The prospect before him at best was to the Lord Ordinary, and from the Lord Ordinary to the Inner House, and thence to the ultimate court of appeal, the House of Lords. What he wanted was, to cut down the number of appeals; and to that object two steps must be taken. There must be a local judge to hear the case with the witnesses before him, and to deliver his decision upon the facts. But inasmuch as that decision might miscarry, and a rehearing, such as was practised in England, might be desirable, he proposed something in the nature of the application to English judges for a new trial, which in the case of Scotland would be for a rehearing. That, he believed, would be quite a sufficient check upon the judge, in the first instance against error, for he himself knew instances where the Judge of the English County Courts, being mistaken in his first judgment, had granted a rehearing, and corrected his own error. He also proposed a jury clause, which was entirely optional. It was not that they thought the jury had been very successful in civil matters, but something was necessary by way of check, when you make the judgment of the Sheriff final upon the facts. He therefore proposed a jury of five, deciding according to a majority. It might deserve consideration, whether, although the majority were a good and convenient rule, it were not proper to say that where the jury were unanimous, no appeal should be allowed; and where the minority was large, there ought to be a rehearing before the Judge. His Bill confined appeals to matters of law simply; and in that case the appeal from the Sheriff Substitute would not be to the Sheriff Depute or to the Lord Ordinary, but to the Court of Session, much in the same way that appeals from the English County Courts lay to the fall court in England. What he was desirous of seeing was, that these local courts should be made 155 courts of the first instance, where suitors might come at a small expense and prove their facts, or get them admitted, and have a case stated, as admitted, which in England they called a special case, so as that the Court of appeal could, upon the case thus admitted on both hands, determine what the law was which was applicable to the facts. Such a system must be grossly mismanaged if it led to greater expense, and, if properly managed, it ought to be very much cheaper than that now in existence. That system, however, it was said, cost only 2s. 6d., and no more. That was a strange statement. Properly understood, however, the 2s. 6d, thus exacted was the last straw that broke the camel's back. Documents after documents were increasing, involving an immense quantity of writing, and the 2s. 6d. that was paid for putting these papers in, was nothing like the expense incurred in appealing; that payment presumed that the expense of the papers put in had been previously incurred. In fact, the more he considered the subject, and the more he heard of the opinions expressed from all parts of Scotland, he felt convinced that a great change was necessary, so as to place the system of local judicature in Scotland, without touching its main principle, on a reasonable footing. English Members were hardly aware of the feeling which prevailed in the north in this subject. Appeals from public bodies, and petitions from influential meetings, had been most numerously sent up, if not exactly in favour of his own Bill, it was because they favoured the consideration of both, with the view of making one good measure for Scotland. But, although the Lord Advocate had not exactly rejected his measure, his course had been very much in the spirit of sic volo sic jubeo fiat voluntas. It was natural that lawyers should be in favour of that system which contributed most to profit themselves; he could understand that, for he was a member of the profession. But the great mass of the people of Scotland, the merchants and traders, the public bodies in counties, and commissioners of supply for the counties, and town councils, had expressed themselves very strongly in favour of a change to a much greater extent than was contemplated in the Bill of his right hon. Friend.
§ The LORD ADVOCATEOf course, abolish the appeal upon facts, and another system of procedure became necessary.
§ MR. CRAUFURDcontinued to read the names of the public bodies which had 156 petitioned in favour of his scheme, and of those that were not favourable. Glasgow, to a man, was in favour of a great reform in these courts; and a large public meeting was specially held to petition against the system of double Sheriffs. At the very least, therefore, he was entitled to say that the agitation of public feeling on the subject was very great in Scotland, and it did not exactly lie with the Lord Advocate to say that his view was the correct one. But the late Attorney General for Ireland (Mr. Napier) made an error when he assumed that the system now working in Scotland was the same as that existing in Ireland. For there the assistant barrister went round his district and decided upon hearing the witnesses, and if any case was appealed, the appeal lay to the Judges, who again went down into the district, and heard the evidence again before deciding upon the facts. That was a reasonable system. What he proposed was, that there should be a new trial, and that the judge who reheard should again take the evidence from the witnesses themselves. He had no enmity to the Sheriff Principal, or favour for the Sheriff Substitute; all he desired was a good and, as far as was consistent with goodness, a cheap system of local judicature for the country. He believed that the Lord Advocate had never himself had any experience in the office of Sheriff, and he should therefore like to hear the evidence of some of those Gentlemen who knew what it was, and who would very soon find out the points on which he was either right or wrong. It had been said of him, indeed, that he was a person inexperienced, and only an English lawyer; that he was dealing with subjects with which he was unacquainted, and had no business to meddle with. All he could say to that noble Lord (Lord Drumlanrig) was, that, Lord Lieutenant as he was, he might try his hand at drawing up a Bill for the reform of the Sheriff Courts, and thereby ascertain the better success which would attend his efforts. With these observations he submitted the Bill to the consideration of the House, and moved that it be read a second time.
§ Motion made, and Question proposed, "That the Bill be now read a Second Time."
§ MR. COWANsaid, he was anxious to make a few observations to the House on this important question, from the fact that when the controversy, which was exciting so much attention in Scotland, first began, 157 he was strongly in favour of the principle of abolishing the double sheriffships; but after having given much attention to the question, from an anxious desire to master it, and after consulting many eminent individuals who had been sheriffs, but who were now elevated to the higher position of the Bench, he had come to the clear and distinct conclusion in his own mind that it would be dangerous to abolish a system which, while it was certainly capable of reform, was yet eminently calculated to be beneficial to the people of Scotland. His hon. and learned Friend (Mr. Craufurd), while speaking in behalf of a single sheriff, had certainly adduced very cogent arguments in favour of the leading features of his Bill. He had told them of the carelessness of certain sheriffs, of the rose-leaves in the papers never disturbed, and of the box that was sent back containing grouse instead of law papers; but stories of this kind were not confined to sheriffs. Some hon. Members might have heard a similar story of a well-known Judge in the Court of Session, a very eminent lawyer in his day, but who was promoted to the Bench after be had survived his usefulness. On one occasion, when called upon to pronounce judgment, he saw a little old man in the court betraying the greatest anxiety in the cause, and the Judge asked, in his own peculiar way, "Who's that, who's that?" He was told that it was one of the parties in the case. "Oh," said the judge, "I'll decide against him, just to see how he looks." Stories of this kind might be told against all functionaries, and in fact proved nothing against the system. Humanum est errare. He was glad, however, that the authors of both Bills, No. 1 and 2, admitted that the present system, as carried out in the sheriff courts, was a perfect mockery of justice, characterised by expense, delay, and injustice. He was at a loss to understand how the Scotch had suffered under it so long, and supposed it was only to be accounted for by the fact that they were a patient and enduring people. He was unwilling to occupy the attention of the House, but he could not forbear giving one illustration of the working of the law. A gentleman, a well-known publisher in Edinburgh—he might mention his name, Mr. Black—was engaged in the publication of the Encyclopædia Britannica, the value of a single copy of which was 20l. The work was a great many years in the course of publication. He supplied an individual with a 158 copy of the publication, but long before it was finished the subscriber died, and the publisher being unaware of that fact, continued to supply the numbers as they were published; and, on being completed, he was naturally anxious to secure payment. For this purpose he was obliged to raise an action in the Sheriff Courts against the representative of the deceased subscriber, who had obtained possession of the work, but he was baffled at one stage of the proceedings—he was called to prove the original order; he was asked to prove that the copies had been regularly supplied, while appeals were taken at every stage on subjects that were quite foreign to the point at issue. Thus, after a year or two's litigation, Mr. Black found that he had incurred an additional expense of 38l.— nearly double the value of the work; and though he was pressed to continue the suit on the ground of public justice, he said, "No; I will rather make the Court a present of the work:" and in all cases since he had made it a rule rather to sacrifice his rights—and heavy sacrifices these have often been—than go into the Sheriff Courts. Thousands of such instances might be adduced, and he rejoiced that there was now a prospect of rescuing the people of Scotland from this state of things, which was not essential to the constitution of the Sheriff Courts, but which had from various circumstances engrafted themselves upon their working, and perverted what was originally intended as a boon into an organ of oppression. His hon. and learned Friend who had introduced this Bill, appeared to think that the single sheriff whom he was about to create was infallible. To this he demurred, for he confessed his desire was, that every judgment, of whatever nature, and however small the amount involved, should be open to an appeal. This might, to the whole extent, be impracticable; but he was for opening wide the portals of the temples of justice to the most humble of the community. He rejoiced to think that there was a prospect now of a wholesome measure of reform being obtained. This was a matter of national importance, and it behaved Parliament to see that substantial justice was brought home to the doors of every man in the kingdom. His hon. and learned Friend said there were more appeals from Scotland than from any other portion of the United Kingdom. He believed that was so; and the House would remember that Sir Walter Scott, in his works, had illustrated this feature in the 159 national character. The House would remember the words of Poor Peter Peebles; and that worthy might fairly be taken as the type of a class who were always restless and uneasy unless they had a good carrying plea in the Court of Session. Another amusing case was that of Dandie Dinmont, who sought the advice of Counsellor Pleydell in his plea against Jock o' Dawston Cleuch, though the whole value of the ground in dispute would not feed half a sheep. He believed that this state of things proceeded from the perversion of Courts of Justice from the purposes of their original constitution. He therefore rejoiced at the prospect of a wholesome and extensive reform being now obtained; and so strongly did he feel this, that if there were no alternative to the proposition of the hon. and learned Member for the Ayr Burghs (Mr. Craufurd), he would be prepared to give him his support. He did not wonder at the feeling of disappointment and vexation, and the demand for reform, that existed in Scotland. The people there had had a great deal to bear; they had been very patient under it. The matter was one of national concern and importance, and it behaved them to do everything in their power to remove whatever was injurious to the social character, or prevented harmony or good feeling in the community, and to replace that with something which was of substantial benefit. But he could not see that these objects were attained in the Bill of his hon. and learned Friend; and he would conclude by quoting to him a text, to which he hoped his hon. and learned Friend would give due weight. The text was this—He"that is first in his own cause seemeth just, but his neighbour cometh after and searcheth him." He would conclude by moving that the Bill be read a second time that day six months.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."
§ MR. EWARTsaid, he certainly did not rise to second the Amendment of his hon. Friend. He must apologise for venturing, as an Englishman, to give an opinion upon a question of Scoth law; but, having listened with great attention to the arguments on both sides, he had formed a clear opinion in favour of the Bill of the hon. and learned Member for Ayr. The hon. Member for Edinburgh (Mr. Cowan) said there were abuses in other Courts, and he seemed 160 to consider that those abuses justified the abuses that had been mentioned in the Sheriff Courts. [Mr. COWAN: No no!] He understood that his hon. Friend cited an instance of inattention in the Court of Session as an authority for inattention in the Sheriff Courts.
§ MR. EWARTsaid, all the inference he wished to draw from the stories that had been cited on both sides was, that because one man acted badly, that would not justify the bad acts of another. Be that as it might, he was not sure that what his hon. Friend had stated superseded their consideration of the question of a single Sheriff for Scotland. He could not conceive why one Sheriff, if he were properly appointed, should not do the business that was now performed by two. It was not the fact that the single Sheriff was proposed to have a final decision, because there was an appeal to the Court of Session; and, in fact, every appeal that existed against the decision of a County Court Judge in England was given there. He did not find that, by the ancient law of Scotland, double Sheriffs were necessary. On the abolition of hereditary jurisdictions, in 1747, only a single Sheriff was appointed; he therefore thought that there was no provision in the origin of the institution for a double sheriffship. But he altogether denied that they were bound by what already existed in Scotland. If a single Judge was found sufficient for the duties in England and Ireland, he did not see why two were required in Scotland. The hon. and learned Member for Ayr, indeed, had consented to waive the question of the single Sheriff; but his plan necessarily led to that conclusion, for if they agreed to abolish the appeal on the facts, there would be no necessity for a double Sheriff. Indeed the whole question came to this, whether there should be one or two Sheriffs? Considering the question as well as he could, he confessed he was not one of those who were generally in favour of resident Judges —first, because they might be in danger of being influenced by some prejudices; and, next, because it was almost certain that after a little time they would lose their knowledge of law. He had known resident Judges sitting as coroner, for in stance, who had not retained that knowledge of the law which they possessed when they practised before the Superior Courts of England. The best course ap- 161 peared to him to be to appoint a single Judge, who should frequent the courts of law, as was the case with the assistant barristers in Ireland. But if that could not be attained—if there must be a choice between a single resident Judge and a I double Sheriff—he would be in favour of the former. He admitted that the Bill which the right hon. and learned Lord Advocate had brought in, would confer inestimable advantages on Scotland in several respects; but, having to decide between it and a Bill which included the principles of a single Sheriff, and the abolition of appeals on questions of fact, he felt bound to prefer the latter, and therefore he should vote for the second reading of the Bill of the hon. and learned Member for Ayr. Before sitting down he would say one word as to the question of the Select Committee. His hon. and learned Friend had applied to him to be a Member of the Select Committee, which was to consider the Lord Advocate's Bill and the present, if the second reading should be carried; but he had declined, as he was unable, from other engagements, to attend it. But he must say, that he did not see the use of a Select Committee, unless the Members had power to take evidence. He hoped, therefore, that the Lord Advocate would agree to this proposition, which he believed would give satisfaction to the people of Scotland.
MR. GUMMING BRUCEsaid, that the reason which induced the hon. Gentleman who had last addressed them to support the Bill—that it would do away with the double Sheriffs, was the very reason which induced him to oppose it, because he thought if they got rid of the appeal Sheriffs, they had got rid of by far the most important legal judicature in Scotland. The hon. Member for Dumfries (Mr. Ewart) had suggested that both Bills should be referred to a Select Committee, and that evidence should be taken upon them. If that were done, he was satisfied the people of Scotland might bid good-bye to any Bill this year. What would be the consequence of such a step? The Committee would have a great deal of evidence brought before them from all parts of Scotland, and the witnesses would repeat over again all the articles that had appeared in the Scotch newspapers, and all the pamphlets that had already driven the Scotch Members nearly out of their wits; and, after all, he believed that they were just as competent to decide without witnesses 162 as with them. Therefore, seeing that the reading of the Bill of the hon. and learned Member a second time would involve great trouble and delay, and seeing that it injuriously dealt with some of the most valuable parts of their local jurisdiction, he could not support the Motion. The hon. and learned Gentleman must forgive him if he denied his statement, that the public opinion of Scotland generally was in favour of his proposition. He wished the House to understand that this was no new question; it had some years ago been inquired into by a Commission appointed for the purpose, which reported that the greatest advantage accrued from coexistence of the offices of Sheriff Principal and Sheriff Substitute. That learned body, the Faculty of Advocates in Scotland, had recently expressed the same opinion; and the members of the legal profession practising in the Sheriffs' Court of his own county, had declared their preference for the Bill of the right hon. and learned Lord Advocate, to that of the hon. and learned Member for Ayr. He was aware that the fashion of the present day was to imagine that an accurate knowledge of the principles and practice of law was not necessary to enable men to deal with a question like this; and it was considered that the best judges on such a subject were the town councils, commissioners of supply, and probably Sheriff Substitutes, who were not unwilling to step into the shoes of their principals. But he was one of those who were not disposed to exchange old lamps for new ones, or to take the opinions of town councils in preference to those of men of the highest eminence in the law with regard to the office of a single Judge. He hoped English Members would not be led away by the opinion that the office of Sheriff was at all analogous to that of the County Court Judge. He had not only to decide upon civil but upon criminal business—he was the first magistrate in the county—the first police officer—and he had many other important political functions which the Sheriff discharged, to the manifest advantage of the people of Scotland. The hon. and learned Member said that the public opinion of Scotland was in favour of the measure. Now, as far as he could judge, the Faculty of Advocates— comprising men who were connected with every class in society, men of the highest learning and ability — had come to the unanimous decision that the double Sheriffs should be retained. [Mr. CRAOFURD: Hear, 163 hear!] The hon. Member cheered that statement. He very likely thought the Advocates were looking after the patronage. But, well, what did he say to the opinion of a great class of men who were not eligible to office—the writers to the signet, and the solicitors, the attorneys of the highest class practising in the courts of law, and they also were unanimously in favour of the double jurisdiction. These were the opinions of gentlemen well qualified to give one, and undoubtedly they were well worthy the attention of that House. The hon. and learned Gentleman, in proposing his Bill, addressed his arguments not to the Bill of the right hon. and learned Lord Advocate, but to the system as it at present existed, and without taking notice of the amendments and improvements which the right hon. and learned Lord proposed to introduce. It was a curious instance of the Parliamentary times in which they now lived, and of the rapid changes of opinion, that only a few years ago the system of having a Judge that was non-resident, exempt from all local influences and unbiassed by party feelings, was thought a great advantage, and England was told to look at Scotland. But now that they had got local Judges in England, without waiting for the full development of their working, they were so proud of them that they called upon Scotland to take the same system, without considering the different circumstances of the two countries. But in Scotland, in the north at least, he knew that a strong feeling of clanship still remained, and he would be very unwilling to go into a court where there was but a single Judge, and where a case was to be tried between a Monro and a Mackenzie. He could recall to the House that, for the present system, they were indebted to the wisdom of Sir Robert Peel, and that the course pursued by that distinguished statesman had been attended with the most beneficial results. It was also alleged that incompetent persons were frequently appointed to fill the office of Principal Sheriff, for the purpose of rewarding political partisanship; but this allegation, he thought, was sufficiently answered by a reference to the list of eminent persons who had filled that office in the course of the last half century. [The hon. Member here read a long list of eminent men who had filled the office of Principal Sheriff in Scotland, including the late Lord President Hope, Lord Gillies, Lord Moncreiff, Lord 164 Mackenzie, Lord Cuninghame, the present Lord President of the Court of Session, Mr. M'Neill, the late Mr. Spiers, & c.] That list, he contended, was sufficient to refute any imputation of a general system of jobbing in those appointments. The very reverse, he believed, was the fact. He admitted that there might have been some questionable appointments made under the influence of party feeling; but he maintained that these had been the exceptions, and that, in general, all Governments had been actuated by a sincere and earnest desire to appoint men well qualified to discharge the duties of the office. As far as his own experience went, he had had experience of four Sheriffs appointed in his own county by Whig Governments, and they had all been eminent men. Among these were Lord Cuninghame, who was now about to retire from the Bench, respected by all; Mr. Graham Speirs, a lawyer of great eminence, and Mr. Cosmo Innes, also a person of distinguished abilities. And even in the case of men who were not so competent, though not less upright, they had the power, in delicate cases, of consulting their brother Sheriffs at Edinburgh, and other eminent lawyers, and giving an advice grounded on their decision. And so strongly did he feel that advantage, that even if 300l. or 600l. were given to an eminent lawyer as a retaining fee to advise with the Sheriff Substitute in delicate or difficult points of law, it would be well spent. The office of Sheriff Principal had been characterised as a sinecure; but, so far from that being the case, important and onerous duties attached to it, which would be further increased by the Bill of the Lord Advocate, who proposed to require the Sheriff Principal to visit the county more frequently, thereby getting rid of the objection to his hearing appeals in Edinburgh, in ignorance of the facts. On these grounds he felt himself compelled to resist the Motion of the hon. and learned Gentleman the Member for Ayr, He believed that, if the House read this Bill a second time, and referred it to a Select Committee, as proposed, they might say good-bye to all law reform for Scotland during the present year at all events. He believed also that, if they did away with the office of Principal Sheriff, and had only one resident Judge, they would do away with one of the main securities for the upright and impartial administration of justice in Scotland. Believing, then, that the office of Principal 165 Sheriff was one of the utmost importance, he should give his cordial assent to the Bill of the right hon. and learned Lord Advocate, with such amendments as the right hon. and learned Lord had shown every disposition to favour; and should give the strongest opposition to the Bill of the hon. and learned Member for Ayr, which, in his opinion, was fraught with the most mischievous effects, and would inflict the most serious injury on Scotland.
§ MR. ALEXANDER HASTIEsaid, no question had of late years excited more interest in Scotland than that which they now had under discussion. The city which he had the honour to represent was unanimous in favour of abolishing the double Sheriffships. Though the hon. Member who had just sat down had not spoken with any degree of respect as regarded town councils, he was proud to say that the town council of Glasgow, as well as the town council of Edinburgh, comprising men who were quite as eminent as the members of any other body, had pronounced in favour of his hon. and learned Friend's Bill.
§ MR. CUMMING BRUCEbegged to say, that he had said nothing disrespectful of town councils. What he said was, that the Report of the Law Commission was more entitled to weight than the opinions either of town councils or commissioners of supply.
§ MR. ALEXANDER HASTIEThe hon. Gentleman had stated that the lawyers of Edinburgh, and other parts of the country, were more able to decide on this question than town councils; but he (Mr. Hastie) would undertake to say that, whether they were able to decide on the question or not, the town councils were better acquainted with the feelings of the public, than any lawyers could pretend to be. The hon. Gentleman seemed to attach great importance to the fact that the Faculty of Advocates in Edinburgh were in favour of the Bill of the right hon. and learned Lord Advocate. Why, it would have been astonishing if it had been otherwise, because the members of that body all expected to be made Sheriffs of counties. But what was the case with respect to the lawyers who had no such expectations? The Procurators of Glasgow had unanimously pronounced in favour of a single Sheriff; the Society of Writers in Dundee, and the Society of Writers in Paisley had done the same. Now Glasgow, Dundee, and Paisley were the great 166 commercial towns of Scotland, and he thought that they were quite as able to judge of their own wants and the wants of the people in general as even the Faculty of Advocates and the Writers to the Signet in Edinburgh. It was a mistake to say that his hon. and learned Friend the Member for Ayr (Mr. Craufurd) wished to do away with the office of Principal Sheriff. He wanted to make them all Principal Sheriffs. What was the position in which the Sheriff Substitutes were now placed? They had final jurisdiction in the Small Debts Court, and that jurisdiction the Bill of the Lord Advocate proposed to extend. They had also final jurisdiction in the Bankruptcy Court, and in the Criminal Court, both summary and before a jury. And yet these men, holding these extensive powers, were appointed by men who were perhaps of less, certainly not of superior standing to themselves. He had known many eminent men who had held the office of Sheriff Depute; but, without meaning any disrespect, he would venture to say, that of the gentlemen holding that office at present there were not more than three who had any practice in the Courts. It was of great importance that the status of the Sheriff Substitute should be raised; and it was, he thought, a great defect in the Bill of the right hon. and learned Lord Advocate, that it did not provide that Sheriffs Substitute should be appointed by the Crown. There was another point worthy of remark. A Sheriff Substitute could hold no other office; and what was his remuneration? He found that the fifty-two Sheriffs Substitute of Scotland had among them only 21,000l.—some of the salaries being as low as 284l. The whole system was exceedingly wrong. They had thirty Sheriffs Depute, and fifty-two Sheriffs Substitute—consequently there were eighty-two gentlemen discharging these functions, while he believed the half of that number would be amply sufficient, if the duties were properly subdivided. He would reiterate what he had before said, that the west of Scotland, almost to a man—certainly the county of Lanark, as well as the city of Glasgow—was in favour of the single Sheriffship. It was said that there was no use in sending for evidence with respect to the Bill of his right hon. and learned Friend the Lord Advocate, because there would be as much evidence on the one side as the other. Now, that might be true; but surely it would be well that not only the House but the country should be in pos- 167 session of that fact before they decided on the Bill. There were many excellent things in the Bill of the right hon. and learned Gentleman—much that he would like to see speedily adopted—but, at the same time, his feeling was so strongly in favour of a single Sheriff, that he would rather wait for another year, in order to take the evidence, and deprive the country for that time of the benefit of this Bill. In the meantime, he would support the Motion of the hon. and learned Member for Ayr.
§ COLONEL HUNTER BLAIRsaid, he believed that public feeling in Scotland was not decidedly pronounced in favour of either of these Bills; and he did not see how they could get at the preponderance of the feeling without taking evidence before a Select Committee. With regard to the county which he had the honour to represent, he had to state that at the meeting of commissioners of supply the opinion was against the Bill of the right hon. and learned Lord; and hon. Gentlemen should recollect that these meetings in Scotland did not consist of commissioners of supply only, but that they were attended by all the gentlemen in the county, from the Lord Lieutenant down to the justice of the peace. For his part, he thought the question they ought now to discuss was, not that of a single or double Sheriff, but whether evidence should be taken before the Select Committee. A great deal had been said about the evidence that was taken before the Royal Commissioners in 1834; and he allowed that some persons of great eminence were examined before that Commission; but that was twenty years ago, and great changes had taken place in public opinion since that time. Then, again, others said that public opinion was so strong that there was no occasion for taking evidence now. But, as he said at first, he was ready to admit that great diversity of opinion existed; and the only way to get at the real state of the case was to take evidence before a Select Committee on the Bill of the right hon. and learned Lord. If the right hon. and learned Lord would now say that he would admit evidence to be taken before his Committee, he would vote against the present Bill, as he was not particularly in its favour; but if he would not, then he (Col. Blair) would vote for the second reading of the Bill of the hon. and learned Member for Ayr, though he would not pledge himself to support a single Sheriff. He had heard it said that if evidence were 168 taken, there would be no hope of the Bill passing this Session. That might be true; but, on the other hand, he differed from the right hon. and learned Lord if he supposed that the people of Scotland would rest satisfied with his Bill in its present shape. He would rather have the question permanently settled, even though it should be by a few years' delay, than that it should be coming before the House of Commons year after year.
MR. E. ELLICEsaid, he could not agree with either of his hon. Friends who had spoken last, for he believed that in Scotland the universal opinion was, that lengthened delay would be deprecated on all sides. The main point in dispute was, not the details of the Bill, which, he was happy to hear, might be satisfactorily adjusted; but the point was, the appointment of the Sheriffs; and on that he believed that, after a mass of evidence was taken on one side and the other, the result arrived at by the Committee would be the same as that arrived at by the Royal Commission—recommending the House to proceed with the double Sheriffship. At all events, he had no doubt that, rather than sacrifice legislation during the present Session, the people of Scotland would be willing to abandon any opinions they might have formed on the subject. ["No, no!"] Assuming that the appointment of the Sheriffs was the great point, he would ask hon. Gentlemen what would be the effect of the change? The Crown had now, he believed, the appointment of some thirty-one or thirty-two Sheriffs Depute in Scotland, and behind these officers were fifty-two Sheriffs Substitute. He thought, however, that, although by abolishing the office of Sheriff Depute they might reduce the total number of Sheriffs to a certain extent, it would yet he necessary to maintain a larger number of these officers than the present number of Sheriffs Substitute, and therefore the Crown would have the direct appointment in Scotland of sixty-four or sixty-five Sheriffs. The patronage of the Crown would thus, of course, be materially increased. In the appointment of Sheriffs Depute at present, although political connexions had some influence in the choice, regard was generally had to the ability of the gentlemen selected; but he did not think it would be contended that politics had anything whatever to do with the appointment of Sheriffs Substitute. The Sheriffs Depute, being responsible for the manner in which the Sheriffs Substitute 169 discharged their duty, appointed them solely with reference to their qualifications for conducting the business of the office; and he certainty thought it was very desirable that, in the appointment of resident Judges scattered over the country, political considerations should, as much as possible, be set aside. He considered that the groundwork of the present system was well suited to the circumstances of Scotland; and if the appointment of single Sheriffs, who were to be wholly resident within the limits of their shrievalty, should be determined upon, it was most improbable that men of any eminence in the legal profession would abandon their chances of success in Edinburgh, and of promotion to the Bench, for the appointment of a local judgeship in a remote district. With regard to the Highlands of Scotland, he conceived that the proposed measure would be entirely impracticable, because it was well known to Scotch Members that very few advocates could be found in Edinburgh who were conversant with the language used in that part of the country; and it would be quite useless to appoint Judges who did not possess such a qualification. But then there was another consideration. Many of the most efficient Sheriff Substitutes were not advocates at all—they were procurators and writers, brought up to deal with the lower class of the population, and well acquainted with their habits and feelings; but if there was any idea of sending down advocates from Edinburgh, into a sort of honourable banishment, to these remote country parts, with a salary of 1,000l. a year, his impression was, that the business would be as unfit for the man, as the man was unfit for his business. He had no doubt whatever as to the vote he should give on this subject. After all the investigation he had been able to give to the subject, he was satisfied that, considering all the circumstances of the case, the groundwork of the present system of double Sheriffs was the best that could be adopted; and he could not, therefore, hesitate in voting against the Bill of the hon. and learned Member for Ayr. He was confirmed in his opinion by resolutions which had been unanimously adopted by members of the legal profession in Fife-shire in favour of the continuance of the present system; and the same view had been taken by the Convention of Royal Burghs in Edinburgh, from whom he had I that day presented a petition. Now, much had been said about the opinions of the 170 town councils of Edinburgh and Glasgow; but this Convention represented the opinions of all the town councils of Scotland. ["No, no!"] He could state, without fear of contradiction, that the Convention was composed of delegates from all the town councils of Scotland, and it met in Edinburgh, with the Lord Provost of Edinburgh at their head. He had, therefore, no hesitation in voting for the Bill of the right hon. and learned Lord Advocate, in opposition to the one now before the House; and he would entreat the right hon. and learned Lord to proceed steadily with his Bill, and to bring it before a Committee fairly selected, but not to waste time by hearing evidence.
§ MR. FORBESsaid, he did not think that the House of Commons, which was chiefly composed of English Members, was competent to deal with this question, and he should, therefore, give his vote on the principle of having it finally and satisfactorily settled. He took it for granted that the House of Commons did not wish to have this question discussed year by year —and yet, sure he was, that unless evidence was taken before the right hon. and learned Lord's Committee, and the matter fully and fairly discussed in all its details, they would have to continue the struggle month by month, and year by year. On that ground he would press the right hon. and learned Lord, and he hoped he would consent, to allow evidence to be taken before the Select Committee, otherwise he (Mr. Forbes) would be compelled, however reluctantly, to vote for the second reading of the Bill of the hon. and learned Member for Ayr (Mr. Craufurd). If the right hon. and learned Lord consented to this, then he would beg the hon. and learned Gentleman (Mr. Craufurd) to withdraw his Bill, and he thought he would do so; but if not, then he would be justified in voting against him. He had only to say farther, that he had the utmost respect for the present Sheriffs Depute; a more learned, useful, and honourable body of men was nowhere to be found, and he had the honour of numbering many among them as his personal friends.
§ MR. CHARTERISsaid, he differed from the hon. Gentleman who had just sat down, and who appeared to think that the question under discussion was not whether there should be an amendment in the forms of procedure in the Sheriff Courts, and whether there should be one or two Sheriffs, but whether evidence should be taken be- 171 fore the Select Committee or not. That was not the question. For his part, if the question had turned on any point where a knowledge of technical details or of legal information was required, he would not have ventured to address the House. But the question turned upon the broad and intelligible principle whether they were to maintain or to do away with the double Sheriffship, and upon that question he was anxious to say a few words to the House. He believed if the hon. and learned Member for Ayr had been as conversant with the working of the Sheriff Courts as he was with the English County Courts—the theory and working of which he so ably illustrated in the Legal Examiner, of which he was the editor, and in those Courts where he was a distinguished practitioner—he questioned whether he would ever have introduced the present Bill—a Bill that would sweep away the whole constitution of the Sheriff Courts, which he (Mr. Charteris) believed to be sound in theory, and which certainly had forked well in practice. That theory was, to have a person as Sheriff Substitute residing as Judge in a district, so that justice might be brought to every man's door, while a cheap and ready appeal lay to the Sheriff Depute, a practising barrister before the Courts in Edinburgh, and consequently conversant with all that was going on in the Supreme Courts which he attended. The advantages of such a system were manifest. The knowledge of the Sheriff Substitute that an appeal lay from his judgment to the Sheriff Depute, made him more cautious in coming to a decision. The expense of an appeal cost only a few shillings, while an appeal to the Court of Session would not cost less than from 20l. to 50l. It had been said that in many cases the present Scotch Sheriffs were incompetent; but, although he would admit that there might be exceptions, he believed that, taken as a whole, the Sheriffs of Scotland were as efficient, able, and learned a body of men as could be found in the whole kingdom to sustain similar offices. He had reason to believe that returns which had been moved for, and which would speedily be presented to the House, would bear out his views in favour of maintaining, the system of double Sheriffs. He was informed that, out of 14,000 cases decided by the Sheriffs of Scotland, only 110 appeals had been made to the Supreme Court. He would readily admit that there was at the present time an agitation in Scotland 172 upon this subject, but it was no new agitation. Some years ago a similar agitation was got up, which failed in its object, as he was confident the present agitation would fail; and the hon. and learned Member for Ayr (Mr. Craufurd) was merely treading in the steps of Mr. Wallace, the late Member for Greenock. In 1834 the question was fully investigated by the Law Commissioners, men of the highest character and standing at the Scotch Bar, who reported their unanimous opinion that the proposed change—the abolition of double Sheriffs — would be highly prejudicial to the administration of the law in the local courts. That Report was founded upon the evidence of practical men, among whom were procurators, persons employed before the local courts, Sheriffs Depute, and Sheriffs Substitute. Among these would be found the evidence of Mr. Barclay, the Sheriff Substitute for Perth, who, he believed, had since changed his opinion —but there were other persons of equal eminence, and who held the same opinions still. He believed his hon. and learned Friend (Mr. Craufurd) attached no weight to the opinions of lawyers; and, for his part, he rather considered them as the natural enemies of the rest of the world— but still, when his hon. and learned Friend said that lawyers only looked after their own interests, he must remind him that, among the ranks of legal reformers, he would find the names of Romilly, Brougham, St. Leonards, Lyndhurst, and others —and he was persuaded that his learned and right hon Friend the Lord Advocate would prove himself no laggard in following their footsteps; and if he did not go the full length of the hon. and learned Member for Ayr, it was because he felt that it was not consistent with his duty as Lord Advocate to introduce a Bill which he believed to be prejudicial to the administration of justice in Scotland. For his part, he believed that legal reforms in the hands of laymen would be exceedingly dangerous unless they were assisted by lawyers. If his right hon. and learned Friend were, indeed, actuated by improper motives—if his only object were to maintain a double Sheriffship for the advantage of that profession of which he was so distinguished an ornament—then he could understand the object of the hon. and learned Gentleman the Member for Ayr. But what would be the effect of the present Bill? At present the salaries of the Sheriffs Substitute and Depute 173 (as we understood) varied from 250l. to 500l. a year. If they were assimilated to the position of County Court Judges in England, the number might be diminished, but the prizes would be greater, so that, in point of fact, the interests of the profession would still be consulted. As regarded the hon. and learned Gentleman himself, he thought no one would deny that, in his character of legal reformer, he was actuated by a sincere desire to promote the improvement of the law. There was no subject which a Member of this House could take up that would ensure him more favour in this House or among his constituents; but, however that hon. and learned Gentleman might gain the approbation of the House by the present Bill, he (Mr. Charteris) feared he could not congratulate him upon having won the approbation of his constituents. Some time ago he (Mr. Charteris) observed in the Campbeltown Journal —a statement disapproving the course pursued by the hon. and learned Member for Ayr, in introducing a Bill of his own on this subject, while the measure prepared by the right hon. and learned Lord Advocate had not been even read a second time, and had not received any consideration from the House. The Bill of the Lord Advocate was proposed to be sent to a Committee upstairs. That was the course that was pursued by the Scotch Members, when Lord Rutherfurd held the office which his right hon. and learned Friend now filled. It was the course pursued with regard to the Entail Bill, which altered the whole tenure of land in Scotland. No evidence was taken on that occasion—the Bill was discussed clause by clause; and when it was afterwards brought before the House there was only one division, on a trifling point. The same course was pursued with regard to the Scotch Police Bill, containing 400 clauses. That Bill was also discussed upstairs without evidence being taken, and the whole 400 clauses afterwards passed through the House in less than two hours, and without a single division. Although there was a considerable difference of opinion in Scotland on this question, he (Mr. Charteris) was satisfied that the feeling of the country was, upon the whole, favourable to the Bill of the right hon. and learned Lord Advocate. [Mr. HUME: No, no!] Was the hon. Member for Montrose aware that the merits of these Bills had been discussed at the meetings of the commissioners of supply, and that the proportions in favour of the measure of the Lord 174 Advocate were eleven to five? He (Mr. Charteris) was satisfied that no advantage could be gained by taking evidence before a Committee, and, after the full discussion of the question which had taken place in Scotland, and the amount of information which had been printed and circulated, such a course was wholly unnecessary. If evidence were taken before the Committee, to the full extent that any hon. Gentleman wished, he was sure they would be no wiser than they were at present; for, whatever this measure might have been to others, it had been a perfect godsend to the printers—not a day passed without the Scotch Members receiving a mass of papers, all of them filled with the oft-told tale of the Sheriff Courts. He therefore thought that if they took evidence they would only get viva voce what they got now from these papers. He was anxious to see the undoubted evils of the Sheriff Courts as at present constituted done away with, and the forms of procedure facilitated; but he must protest against the delay which if evidence were taken, would necessarily be entailed. He hoped the House would reject the Bill of the hon. and learned Gentleman (Mr. Craufurd); and he, for one, must protest against what he believed to be an attempt to cut and pare down those time-honoured Courts to the model of the English County Courts, the jurisdiction of which was comparatively limited, and which would be found, he believed, after further experience, to be faulty, in not possessing, as the Scotch Courts now possessed, an easy, cheap, and expeditious mode of appeal.
§ MR. MACKIEsaid, he agreed with the hon. and gallant Member for Ayrshire (Colonel Blair), and the hon. Member for Stirlingshire (Mr. Forbes), and if the right hon. and learned Lord Advocate would agree, as he understood he did at a private meeting, that his Bill should be submitted to a Select Committee, where evidence would be taken, he would at once vote against the Bill of the hon. and learned Member for Ayr. But if the right hon. and learned Lord opposed that, he must vote for the present Bill. There was no person for whom he had a higher respect than for the right hon. and learned Lord, not only as an eminent lawyer, but as a distinguished politician; but he felt constrained and obliged to say that he had framed this measure rather with a view to consult the wishes and feelings of gentlemen at the bar, than the wants and desires 175 of the people of Scotland. The House would be astonished to hear, that, notwithstanding the importance of the duties of the Sheriffs Substitute, as they had already been stated, still it was the Sheriffs Depute who appointed the resident Sheriff's. Such an arrangement was not consistent with common sense. He must also say a word as to the miserable and beggarly salaries that were paid to those men. They were required to reside a great part if not the whole of their time in the country; and he could state, from his own knowledge, that if these gentlemen had not private means of their own, they would not be able to maintain their position among the county gentlemen. When the salaries of the Judges of the Court of Session were increased from 2,000l. to 3,000l. a year, the salaries of these highly-educated men ought to have been increased in the same proportion. He also objected to the power being lodged in the hands of the Sheriff of not only appointing, but even dismissing, the Procurator Fiscal—an important officer in the Sheriff Criminal Courts—but who was liable to be dismissed without any reason being assigned, that the Sheriff might, perhaps, appoint some favourite of his own.
§ MR. COLLIERsaid, he thought the Bill ought to be read a second time, because it was preferable to that of the right hon. and learned Lord Advocate. He did not doubt that the latter Bill would make some improvement in the law, but it was chargeable with very grave omissions, while it also retained the anomalous system of giving an appeal from a Judge who had heard the evidence to one who had not. That was opposed to all the true principles of law reform, which recognised the importance of viva voce evidence. Written evidence was very delusive, and infinitely more calculated to lead to error than vied voce evidence. The form of procedure proposed by the Bill of the hon. and learned Member for Ayr was in unison with that pursued in England, where an appeal was not allowed on the facts, but only on points of law. If that were adopted in Scotland, it would be an important step towards the assimilation of the laws of the two countries. Another objection which he had to the Bill of the right hon. and learned Lord Advocate was, that it retained in some cases the power of appeal before the case was terminated. It was very generally acknowledged that interlocutory appeals impeded the course of justice, and they certainly ought to be abo- 176 lished. It had been urged against this Bill that the administration of justice would be less impartial if the Sheriff resided within the sphere of his jurisdiction. He could not believe such would be the case. The assertion was an insult to the Scottish character. The present was a question which could not be summarily disposed of. It ought to be further considered, and he should, therefore, vote for the second reading of the Bill.
§ MR. JOHN MACGREGORsaid, he regretted exceedingly that he should have the misfortune to differ from his right hon. and learned Friend the Lord Advocate. He regretted also that the Scotch Members had not been able to agree, as they usually did, among themselves whether they would take the one Bill or the other. He had no hesitation in saying that the great majority of the people of Scotland —the industrial and mercantile classes— were decidedly opposed to the continuance of the double Sheriffs. The hon. Gentleman who had last spoken had made some injudicious observations as to local influence over the decisions of a local judge. No one suspected the Chairman of the Quarter Sessions in England of being influenced by the local influences that surrounded him; and why should they suppose that that would happen to the resident Sheriff in Scotland? He wanted to do away with the absurdity of double Sheriffs. There was no country in Europe that maintained such an absurd jurisdiction. Why should they not allow an appeal from the local Judge to the Court at Edinburgh, and thus place the Sheriff Courts on the same footing as the County Courts, which had given so much satisfaction in England? He must say, though the Bill of his right hon. and learned Friend the Lord Advocate had found a majority in its favour in the Committee and in the House, yet the question of the Sheriffs Courts would not he in the slightest degree advanced towards a settlement. The people of Scotland had taken up this question with the determination that they would have their local Courts put upon a satisfactory footing, and, though small constituencies and counties might be in favour of the double system, the great majority of the people were decidedly opposed to it. He wished his right hon. and learned Friend had brought in a Bill which would have long borne the impress of his name, and gone down to posterity as a monument of his legislative fame. But he would say with 177 confidence that this Bill would not be of that character, and that it would still leave unceasing cause for discontent. He maintained, also, that these Judges, if they were made resident, with a direct appeal from them to the Court of Session, ought to have a higher salary, and be elevated to a higher status than they now enjoyed. He did not believe that there would be any difficulty in obtaining resident Sheriffs of great legal ability, except with regard to the question of salaries. The present miserable salaries were disgraceful to the maintenance of judicial legislation in Scotland, especially when it was considered what a large proportion of Scottish revenue was paid into the British treasury. Even with regard to the right hon. and learned Lord Advocate himself, it would be impossible to find any great lawyer to accept the office if he were prohibited from practising in the courts of law. Now, he would wish to see the office put upon a higher ground—he should like to sec him placed in a position analogous to that of Secretary of State for Ireland. There was a Secretary of State for Scotland, and an Under-Secretary too, till the middle of the reign of George II.; and he thought that the Lord Advocate ought to occupy the position of the first, both in rank, dignity, and salary. No one could more worthily discharge the duties, or more efficiently, than his hon. and learned Friend. In conclusion, he trusted that' his right hon. and learned Friend would not persist in pressing the second reading of this Bill, and that he would allow evidence to be taken before a Select Committee.
§ The LORD ADVOCATEsaid, after the long discussion that had taken place on the principles of the Bill, he hoped the House would indulge him for a very short time in stating the course which he meant to pursue, and in laying down the reasons which induced him to pursue it. Any other proceedings on his part at that moment would scarcely be respectful to the opinions expressed out of doors. His hon. and learned Friend said that he had complained of him as being only an English lawyer, and as trespassing on the manor of Scotch law, dealing strictly with a question which he did not understand—
§ MR. CRAUFURDI beg my right hon. Friend's pardon. I referred to the remarks of a noble Lord, and not to anything that fell from him.
§ The LORD ADVOCATEsaid, that he had never thrown out anything of the kind; on the contrary, the hon. Gentleman de- 178 served all praise for doing his duty, in which Scotch Members would do well to imitate him. He would allow him (the Lord Advocate) to say that the speech in which he had introduced the discussion was distinguished for moderation of tone and ability of argument. But he (the Lord Advocate) found that his argument, so to speak, had been considerably modified since the first time that he introduced the subject to the notice of the House, and as regarded the main principle of the Bill, the elevating of the Sheriffs Substitute in the county, there had been a graceful but unquestionable renouncement of his scheme. The chief points of the Bill, as it was now before them, were the power of nominating the Sheriffs Substitute, the necessity for residence in the county, the extension of the amount to 50l., and the appeal on matters of law only. He should proceed now to explain what he thought of the Bill; but he hoped first to be allowed to state, what he expected to be able to support hereafter, what the practical results of the Bill would be if carried into effect. It would tend to make litigation more expensive— much more so; without being more expeditious, it would increase the expense tenfold. It would make business for the Court of Session, and places for the Bar of Scotland. He knew of no other result which it would produce. But before he went further, he wished to say a word with regard to the public opinion. He heard, with pleasure, the hon. and learned Gentleman say that there was a great difference of opinion upon the subject, because, if hon. Gentlemen would only recollect what had been stated on a previous occasion—if they would recollect all the documents and papers which had been poured in upon them, they would remember it was said that this was Edinburgh against Scotland—that it was the cry of Scotland resisted only by himself and the Edinburgh lawyers. He did not question the agitation which existed out of doors upon the subject. A similar exaggeration of public opinion existed in 1818, and was put down by an inquiry instituted the same year. Again, the same thing happened in 1835, and again it was put down by the Commission that sat that year, and took evidence, and made their Report, upon which an Act of Parliament was framed effecting the most beneficial improvements in the administration of justice, whereby access to justice was facilitated. The present agitation was not without a cause. The establishment of the County Courts in 179 England, and the success attending them, had given a great impulse to those who desired to reform the law; and the society of which he had the honour to be a member, the Law Amendment Society, not very conversant with Scotch law, had too rapidly generalised upon their five years' experience of these County Courts, which had been received as a boon, and which they wished to see established in Scotland. And the persons, very able he was quite ready to say, who held at present the office of Sheriffs Substitute, looked very reasonably, he did not say with envy, at the high emoluments of the English County Courts Judges, and the high position occupied by them, and these contributed in a consider-able degree to swell the public voice. But as the agitation of 1818, and again of 1835, was put down, the present anxiety would in turn also be allayed. He wished for his own vindication, and for the sake of those who did not happen to know it, to direct attention to this expression of public opinion, which might be viewed in three parts; the opinion of the profession, of the counties, and of the burghs. He wished to see whether the lawyers and practitioners of Scotland, the counties, or burghs, were calling aloud for this measure of reform. He would ask hon. Members just to cross the Tweed with him. Across that boundary they came upon Berwickshire. Take the profession; the procurators and practitioners of Berwickshire, at a meeting of the body, declared the Bill of the hon. and learned Gentleman to be very objectionable, and especially the main principle of it, the abolition of the double Sheriffs. Well, they came next to Haddington, and there his hon. Friend the Member for East Lothian (Mr. Charteris) knew well enough that the procurators met and adopted a similar resolution. That brought him to Mid Lothian. He was not to speak of the Faculty of Advocates to the House, who would give them unanimously all the respect which that body so well deserved. But it was argued that they were not to be listened to because they were seeking their own gain; they were not to be listened to on this subject; and he confessed when he was accused of letting the advantage of the lawyers sway him more than that of the public, that, if he did err with the ablest lawyers of Scotland, such observations as these would not weigh with his judgment. The Writers to the Signet, it was argued, were not in favour of this Bill for a similar reason, because the existing system worked more 180 for their advantage. The hon. Member who said that, did not know that they were not now eligible to the office of Sheriff, but that it was proposed in this Bill to make them eligible. He had referred to the Writers to the Signet, but he must add that they did not practise in the Courts— their chief business was not in practising in the Courts at all, but in the management of estates and as conveyancers. But being interested for the sake of their clients in the due administration of justice in the Courts, no body in the kingdom ought to receive more attention for their opinion than they. [The right hon. and learned Gentleman then read a very long extract from the unanimous Report adopted by that body unfavourable to the Bill.] So much for the Faculty and the Writers to the Signet. The practitioners before the Sheriff Courts in Edinburgh were unanimously of the same opinion. And now, as they were about to leave Edinburgh, he would ask again of the House to consider whether it was Edinburgh against the country. As for Glasgow, the House would find no quarter in which the Sheriff was resident in which the general wish was not that the Sheriffs should be independent. Wherever the Sheriff resided in the county,' there for certain they were in favour of the change proposed by the Bill. Yet even in Glasgow, which he admitted was the headquarters of the agitation, not only now, but, from one cause or other, it had been so for many years past—even in Glasgow the meeting of procurators divided twenty-six to sixteen against his (the Lord Advocate's) Bill, while they were unanimously against one principle of his hon. and learned Friend's Bill—that of extending the powers of the Small Debt Court. In Stirling the practitioners were of the same opinion; so were they in Fife, as the hon. and learned Member knew; the same was the case also in Perth. In Dundee, no doubt, the Society of Writers were very strong upon this matter, and proceeded by resolution to disapprove of the existing system; and what their opinion as to the Bill was, might best be explained by their hon. representative. In Aberdeen the Writers were unanimously, or almost so, of the same opinion with those who opposed this Bill. The same was the case in Morayshire; but he could not proceed into greater details. Renfrew and Ayr were one way, Dumfries another, and Roxburgh was against him, but there the Sheriff was resident. What ha begged the House to observe was this, that it was not a question of Edinburgh 181 against the country. Now, then, as to the counties. Fifteen, he thought, sought no change, and therefore might be taken as supporting things as they were, five were for change, and eleven had decidedly expressed their opinion in favour of retaining the present system. He asked whether the outcry on this subject was such that it ought to lend him to distrust his own judgment and yield to the clamour that was loudest, had there even been a fair expression of popular opinion upon the question? Although, while he admitted popular opinion might point out where the evil exists, he did not think popular opinion the best guide towards devising a remedy in such institutions as Courts of Justice. But he was pressed to go into evidence at the period of the Session they were now come to. Every Member of the Faculty of Advocates, all the Writers to the Signet, had judged the present principle to be excellent. There was not a man who, if he had doubts upon the question, but must come to the Committee upstairs, were they to go to that. He was certain, though he gave the hon. and learned Gentleman the benefit of Dumfries, Ayr, and Inverness in his favour, yet if the Committee were to sit till August they would not be advanced one step further than they are now. He wished now to see what was proposed by the Bill. He said he should show the House that it would make business for the Court of Session, and places for barristers. The question affecting the places for barristers stood in this way. The hon. and learned Member (Mr. Craufurd) proposed to abolish Sheriffs Depute and Sheriffs Substitute, and to create, instead, resident Sheriffs in each county, who should be paid a salary of not more than 1,500l., nor less than 1,000l. His hon. and learned Friend would find it impossible to conduct the business of the country with a less number than fifty-two resident Sheriffs. Now, assuming the salary to be 1,000l., his hon. and learned Friend at once started with an expense of 52,000l. But that was a mere trifle to what the whole expense would be. The present Sheriffs Substitute would not be men fit for the office to be created by the Bill; they, therefore, would be entitled to a retiring allowance, which would not amount to less than 20,000l. So that, in fact, 70,000l. must be provided at starting for the support of an institution which now cost only 30,000l. How now stood the case with the litigant? The hon. and learned Gentleman said that his Bill was to make litigation cheaper. In order 182 to that end the Bill must work in a way that it never could possibly work. Take for instance, Perthshire, and suppose the Bill were adopted; then would it impose a boon upon Perthshire? The commissioners of supply had repudiated this, so had the town council and the practitioners. The present Sheriff of Perthshire—one of the ablest of the body—decided upon the merits of 118 appeals in the course of the year, at an average cost of 10s., and, in point of time, of three weeks' delay in each case. Now, what was intended to be done by this Bill? It was proposed that in all causes under 10l. the decision should not be appealed against at all; and in respect to causes above 20l. the appeal should go to the Court of Session. Now, how many out of the 118 causes went from the Sheriff Principal to the Court of Session? Ten only. Deducting one-fourth of those 118 cases as being under 20l., that would leave eighty appeals to go to the Court of Session, which would cost 4,200l. a year to the litigants. Could anything, then, be more rash than to destroy an institution which he had thus shown had worked so well? Taking the whole of Scotland, there were 2,033 appeals in the year to the Sheriffs Depute; of these 120 only went to the Court of Session, and only fifty of those 120 cases were reversed. He thought he had established his proposition that it would increase and not diminish the expense of litigation; and how would it stand as to delay? Why, they proposed to turn over some 1,000 cases yearly into the Court of Session in addition to their present amount of business, and they expected that Court would go through all that business in the same time as it did now. He was quite certain it never could do so. And if something like 4,000l. a year were drained from Perthshire, or about 60,000l. or 80,000l. a year from the country into the pockets of the profession, be believed it was the best thing that had been heard of for the lawyers for many a day. Therefore, he contended, that he had proved his point when he said the Bill would make business for the Court of Session, and places for the Bar. One topic much adverted to was, that the appeal lay from a Judge who heard the witnesses to one who did not. That was a very fair question for consideration, and he did not mean to say he was quite clear upon it in his own mind. The question whether they ought to take evidence in writing or not, was not so simple as some represented, and cases were constantly occurring where 183 the evidence was referred to on the Judges' notes. Where the witnesses died, their depositions were read; when a new trial was moved for, the Judges' notes were referred to. In Chancery and the Consistorial Courts the evidence was taken in writing. However, it was a question which he would not then enter upon. His hon. and learned Friend then proposed an appeal on facts—
§ MR. CRAUFURDNo, only on questions of law, as may be seen in Clause 31.
§ The LORD ADVOCATEWell, those questions would come before the House again when the Bill was in Committee. He would now conclude by appealing to the House not to shake a venerable and most useful institution, which every man of experience in Scotland was of opinion ought not to be touched by the rude hand of modern legislation. They deprecated this movement, believing that nothing but injury would result from it. On the other hand, it was not only his belief, but of all those whom he had consulted, that the Bill which he had the honour of introducing, would not only confer a benefit on the country, but that the changes it would make would be both salutary and safe.
MR. HUMEsaid, he must complain that the returns relating to this question, which he had moved for five months ago, were not yet on the table of the House, so that although his right hon. and learned Friend had used them, no other Member could do so. He believed there was a general demand for amelioration in the administration of justice in Scotland. He admitted that before the establishment of County Courts in England, the Courts in Scotland were superior, but now that the County Courts had been established—and it had been proposed by the late Solicitor General for Ireland (Mr. Whiteside) to extend law reform to Ireland far surpassing the law reform effected in England—he did say the people of Scotland ought not to be left with their present inadequate system of administering justice. If the Returns which had been ordered were upon the table of the House, it would be seen there were many instances of the officers having little or nothing to do. With regard to many eminent men who had risen from these offices to become Judges, it was not their holding sinecures which made them Judges. Such an argument was in direct opposition to common sense and common experience. It was their individual talent, practice, and knowledge of law which elevated them to the 184 Bench; and the fact of their having been Sheriffs Depute was, he considered, of no weight. Then, as regarded expense, he had always asserted in that House that no office ought to be inadequately paid. If they were efficient, let those who did the duty be paid for doing it. The people of Scotland were anxious that the Judges should be resident; that the Judges should be better paid; that those who did the duty should receive the emoluments; and that the number of officers doing comparatively nothing, yet receiving pay, should be lessened. The hon. and learned Gentleman had admitted that where the Judges were resident, it was wished that they should continue to be resident; and he believed the great mass of the community wished to have the system made general. Therefore, he asked, on behalf of the people of Scotland, that they might have the same reform and the same facility of obtaining speedy and economical justice as the County Courts afforded to the people of England. He did not begrudge the salary of 1,200l. a year to the County Court Judges; that was the last consideration with him. He only considered whether the plan proposed by his hon. and learned Friend's Bill would give a more efficient and better system for the more speedy settlement of disputes. The mass of his constituents were of that opinion. He thought the right hon. and learned Lord Advocate was forgetting the wishes of the people of Scotland, and was forgetting the duties which appertained to the office he held, when he saw what a race there was to carry out law reforms. Reference had been made to the opinions which were held fifteen years ago; but if the opinions of the time of Lord Eldon had been taken as a guide for the conduct of Parliament, not one of the many beneficial changes which had taken place would have been effected. He did not think the people of Scotland were fairly treated, when eleven Members of the Committee were in favour of the right hon. and learned Lord's Bill, and only four were for the people. He held that the abolition of sinecures should be the first and principal object of any measure on this subject, and, next to that, the establishment of resident Judges, so as to place the people of Scotland on an equal footing with the people of England. If it cost 70,000l., it would be well laid out; but in his opinion it would not cost that sum. It was found that cheap justice was administered in the English County Courts, without any public expense at all. He had 185 moved for returns a few days ago, which he believed would show that in the last year more business was done in the County Courts than in many years before, and the expense to the public purse was nothing. He had not the least doubt the same would be the case in Scotland, if the fees were properly apportioned, and facilities given for the decision of causes. But, be that as it may, if the cost amounted to 70,000l., the people of Scotland were entitled to be placed in the same position as the people of England. He thought this Bill ought to be read a second time. He thought both Bills ought to go upstairs to a Select Committee, there to be discussed. Although it was not determined positively, at the meeting of Scotch Members, that evidence should be taken, a majority expressed their opinion that it ought to be taken. Nothing else would satisfy the people of Scotland. For his own part, he would rather obtain full information of what the people wanted, and postpone legislation for another year, than accept this abortion of reform, which did not deserve the name of reform; and he was really sorry the right hon. and learned Lord Advocate had not more respect for his own character, if he had none for the interests of Scotland, than to attempt to pass such a paltry Bill as the one he had introduced. He (Mr. Hume) advised the House to let this Bill be read a second time. If the right hon. and learned Lord Advocate's Bill were so much superior, that superiority would be fully developed in the Select Committee; but that was no good reason why they should shut out from consideration his {Mr. Hume's) hon. and learned Friend's Bill. When the County Courts were first discussed, there were confident prognostications that they would not succeed, and loud outcries against disturbing venerable institutions. That cry was now re-echoed by the right hon. and learned Lord Advocate; but he knew no venerable institutions which had not been disturbed by each succeeding improvement. He had no wish to pull down anything; but they were bound to look how it worked—what was its operation—and whether it was efficient for the duties and objects for which it was intended. If it were not, then he should by all means change it. The older it was the more likely it was to require alteration. That was his opinion, and whenever he heard venerable institutions appealed to, he thought it must be high time to do something on the subject. As 186 he had already said, he should vote for the second reading of his hon. and learned Friend's Bill; and he did not consider the refusal to take evidence either a wise or a prudent course.
§ MR. ELLIOTsaid, as the hon. Member for Montrose (Mr. Hume) had thought proper to tax the right hon. and learned Lord Advocate with an intention to pack the Committee appointed for the purpose of considering his Bill, he wished to repeat the explanation which was given on a former occasion, that the Lord Advocate had endeavoured to obtain the consent of other Members opposed to his opinion to sit on that Committee, and they had all refused. The hon. Member for Dundee (Mr. Duncan), and the hon. Member for Dumfries (Mr. Ewart), and other hon. Members, had been applied to, and had declined; and it was only then that the Committee had been filled up with the names which now stood upon it. He thought, therefore, no hon. Member had a right to attack the Lord Advocate for packing this Committee. Now, whilst he was on his legs, he desired to say a word about the double Sheriffs. He had a strong opinion on that point. He believed it a most difficult, if not an impossible thing, that the Sheriff should be resident in a county without being infused to an injurious degree with local feelings and prejudices belonging to the county. At any rate he was sure of this, whether that consequence followed or not, undoubtedly the Sheriff, under such circumstances, was open to imputations of a most disagreeable description, arising from a belief that such was the case. He happened to live in a county where there was a resident Sheriff; and he must say that a very large portion of the inhabitants of that county would be very glad if the system were no longer pursued in that county. He did not wish to tax the Sheriff of the county with anything improper, but he said it so happened the Sheriff was a person entertaining strong political opinions. He was a person who had resided many years in the county, who had been mixed up with local affairs in the county, and unfortunately—he did not say deservedly, but unfortunately—the opinion in the county was, that his position was injurious to the proper administration of justice in the county. He knew him to be a most amiable and excellent man, against whom he would not wish to make any imputation; but he merely stated that was the feeling of the county; and he was 187 quite sure every resident Sheriff would be liable to imputations highly injurious to the administration of justice. He could not agree, therefore, in supporting the Bill of his hon. and learned Friend (Mr. Craufurd), which was chiefly distinguished by that principle.
§ MR. STUART WORTLEYsaid, he hoped he was even then not too late in appealing to the right hon. and learned Lord Advocate to ask him to consider the course he was about to take. Nothing could have demonstrated more clearly than the speeches they had heard that day that there was a strong feeling on this subject in Scotland, although he admitted there was a considerable difference of opinion. He would ask the right hon. and learned Lord in what instance of proposed reform of the most important institutions of the nation, and where great difference of opinion existed, had that reform been attempted without some preliminary or contemporaneous inquiry? Really, there was no occasion when that course had not been adopted. He believed if his hon. and learned Friend (Mr. Craufurd) had not persisted in bringing in his own particular measure, the right hon. and learned Lord Advocate would have consented to that inquiry; but were the national interests to be sacrificed to a mere matter of private feeling? It was said they might risk losing this measure for a year; but was it not better to do that, if by doing it they could meet the strong feeling which existed in Scotland in favour of an inquiry which would perhaps settle the question. It was said that the inquiry in 1835 settled the question. He admitted that it did put down the question at that time; but he himself at one time thought it would be injurious if in any instance a Judge was resident in the district where he administered justice. With regard to England, he had seen reason to change that opinion. The County Courts system had been successful, and circumstances had greatly altered. He would not attempt to go into details, but it was argued in favour of the double Judges that there were no less than 120 appeals from Perthshire. There were not 120 appeals from the County Court Judges of Yorkshire; and he saw no reason why the number of appeals from Perthshire should not be reduced by a change of system. Still he was divided in opinion upon that change. If it were a question simply between one or two Judges, he should be strongly of 188 opinion that one was enough. But there were anomalous duties attached to the office of Sheriff in Scotland, such as preserving the peace, which, if not political, verged on a political character, and that consideration might affect his opinion with regard to a single resident Judge. He therefore trusted there would be an inquiry upstairs, to put the House in possession of the fullest information, before they came to a decision on these Bills; and he once more appealed to the right hon. and learned Lord to allow both Bills to go to a Committee, No wonder there was a difficulty in forming a Committee, because Members naturally said—"What is the use of having a Committee if no discussion is to be allowed?" Whatever might be the decision of that House, they might depend upon it the people of Scotland would not be satisfied with the measure of the right hon. and learned Lord Advocate, if it were not founded on full inquiry.
§ MR. DUNCANsaid, he hoped he should be excused, as the representative of a large constituency, for occupying the attention of the House for a few moments. The Bill of the right hon. and learned Lord Advocate was somewhat mixed up with the Bill immdiately before the House, and unless those measures were laid before a Select Committee, with power to take evidence, he thought the people of Scotland would not be satisfied. As to the measure No. 2, he could not go the length it proposed, but on one point it was so accordant with the feelings of Scotland generally, as between one and two Sheriffs, that he had no hesitation in voting for the Bill in its present shape, for the purpose of going into Committee upon it. As to the feelings of the town council of Dundee, they were unanimous—and he believed, taking the whole county of For far, the people were quite unanimous— for a single Sheriff. He would tell the right hon. and learned Lord Advocate, that whatever might be the result of his measure, and whatever the finding of the Committee, if he refused to consider this Bill, he would raise a giant of petitions not so easily to be knocked down again next year as he might imagine; and he would further tell the House, if they passed the Bill of the right hon. and learned Lord, it would require to be amended in less than six months.
§ The LORD ADVOCATEsaid, he rose in consequence of the appeal just made to 189 him by the right hon. and learned Recorder of London (Mr. S. Wortley) to say one word in explanation. At the commencement of the Session, though he knew what would have been the result of the inquiry, he did not object to take evidence, provided the Bill of his hon. and learned Friend was not proceeded with. He expressed himself ready to take the whole question into consideration if the Bill were not introduced; but it was quite understood, if it were introduced, he would not go into Committee with both Bills, believing, as he did, that such a course was very undesirable. Instead of introducing the Bill, his hon. and learned Friend gave notice that he should move a Resolution, by which he proposed to decide the question without taking evidence. Afterwards his hon. and learned Friend had fallen back upon his original intention, and introduced his Bill. Four months of the Session were now gone, and he was appealed to from all quarters not to take evidence, or to delay having a measure this Session. If, after the Resolution had been passed, the House had thought further evidence should be taken on the details, that would have been a different matter, and he should not have objected to it.
§ MR. DUNLOPwho rose amid cries of "Divide, Divide!" said, he would not detain the House more than two minutes. In his opinion the Bill of the right hon. and learned Lord would do by degrees that which the Bill of his hon. and learned Friend (Mr. Craufurd) would do at once. The whole body of Sheriffs, and a large proportion of the Bar of Scotland, were of opinion that, if the Bill of the Lord Advocate passed, the Sheriff Principal would be reduced to such comparative insignificance, that it could not last more than five or ten years at the utmost. The Lord Advocate had not adopted the recommendations of the Law Courts; he had given no indication of doing that which was essential to retain the Sheriff Principal, and to make it more efficient by reducing the number of actual. or semi-sinecurists. Under these circumstances, he did not think the question of the Sheriff Principal was properly raised by these two Bills. If they thought the Sheriffs ought to be done away with, he would do away with them at once, and not by degrees; but he was for maintaining them. The ground upon which he should support the second reading of the Bill of his hon. and learned Friend was this, that, however divided the state of 190 opinion between the two Bills in that House might be, they had received an immense body of petitions in favour of this Bill, and only five or six petitions in favour of the Bill of the right hon. and learned Lord Advocate. The great mass of the people of Scotland appeared to wish that both Bills should be submitted to a Select Committee, to make a good measure out of the two. He concurred in that view, and should therefore vote for the second reading.
§ MR. CRAUFURD, in reply, said, he hoped the House would not throw out the Bill to stifle inquiry, because it did not suit the views of the right hon. and learned Lord Advocate. He did not ask them, by voting for the second reading, to approve of the principle of the Bill, but to send it upstairs, where it could be fairly and freely discussed. He had not entered into the details of the Lord Advocate's Bill, because that could be better done in the Select Committee. He disapproved of it, and he could show the House that, as had been stated by the hon. and learned Member for Greenock (Mr. Dunlop), the Bill of the Lord Advocate did, by a lingering death, extinguish the system which he proposed to cut down root and branch at once. The provisions of the amended Bill went still further that way, and the amendments introduced tacitly acknowledged the soundness of the principle of this Bill, because the Lord Advocate had adopted some of its provisions in form, if not in detail. If the hon. Member for the county of Haddington (Mr. Charteris) had known the circumstances connected with the Campbeltown Journal, he would not have been so ready to quote it in that House. The printer and editor of that paper was his most bitter opponent. After having promised to vote for him, he voted against him, and then sent up a printer's bill, which, as he knew nothing of it, he sent back again. The House should be aware that the Campbeltown Journal was scarcely known in Scotland; but both journals in Ayrshire—the Ayr Advertiser and the Ayr Observer— unanimously supported the views which he was there to represent. All that he asked the House was, to pass the Bill now, that it might upstairs undergo a full and thorough inquiry, and not to give the people of Scotland the impression that it was wished to "burke" it. On these grounds, he asked the House to assent, not to the principle, for that could be modified or determined as might after- 191 wards seem best, but to a fair and full discussion of the merits of the two measures.
§ MR. BOUVERIEsaid, he wanted to direct the attention of the House to the strange inconsistency of which they would be guilty if they affirmed the second reading of this Bill. There were two Bills before the House, one introduced by the right hon. and learned Lord Advocate, and the other by his hon. and learned Friend (Mr. Craufurd). The Bill of the Lord Advocate had passed the second reading, and was referred to a Select Committee. They were asked now to assent to the second reading of the Bill of his hon. and learned Friend. Those Bills differed either in principle, or only in detail. If the difference were in principle, the House had already affirmed the principle of the Bill of the right hon. and learned Lord; and they were now called upon, in contradiction to that affirmation, to affirm the principle of the Bill of his hon. and learned Friend. It was upon the second reading, and not before a Select Committee, that principles were discussed; and until this Parliament, he never knew an instance in which Bills of different principles, and the same subject, were referred to a Select Committee. If, on the other hand, it was a mere difference of clauses, there was no occasion for this Bill whatsoever. The details which his hon. and learned Friend wished to have considered in a Bill, as distinct from the Bill of the right hon. and learned Lord, could be considered without having a Bill for the purpose; and after the Bill of the right hon. and learned Lord came from the Select Committee, it would be quite competent for his hon. and learned Friend in Committee on that Bill, to bring those details under the consideration of the House. Supposing the Bills to be of opposite principles, he protested against their being referred to a Select Committee, because it was a most inconvenient course, and was throwing upon a Select Committee the proper function of that House, namely, upon a second reading deciding the principle of a measure. With regard to the question of double Sheriffs, like the right hon. and learned Recorder of London, he was undecided. A great deal might be said both ways. The County Court Judges were not the same as the Sheriffs in Scotland. The latter possessed unlimited jurisdiction, and were high administrative officers of the law, and he was inclined to think all those functions and duties should be cast upon a 192 local resident officer. But he was not propounding that question. All he said was, that the whole object of his hon. and learned Friend might be obtained without giving a second reading to this Bill.
§ Question put, "That the word 'now' stand part of the Question."
§ The House divided: —Ayes 58; Noes 184: Majority 126.
§ Words added.
§ Main Question, as amended, put, and agreed to.
§ Bill put of for six months.