§ SIR JAMES FERGUSSON
, in rising to move for— 1168A Select Committee to inquire how far the number of the Members of the Administration charged with the conduct of the affairs of Scotland, and having seats in Parliament, is commensurate with the requirements of that part of the United Kingdom,said, Sir, the question which I have to bring forward this evening is not new to the House of Commons. In former years there have been constant references made to the subject. Six years ago—in 1858—it was discussed on the Motion of the hon. Member for Montrose (Mr. Baxter), who in a temperate and comprehensive speech brought the question of the administration of Scotland—so far as Members of the Administration having seats in this House are concerned—under the notice of Parliament. On that occasion my hon. Friend proposed that a Member of the Government should be appointed specially charged with the Administration of Scotch affairs—and that, possessing a seat in this House, the management of Scotch business should be intrusted to him. At that time the subject did not appear to the House to be matured for legislation. The Motion of my hon. Friend met with considerable support from the Scotch Members; but it was opposed by the leaders on both sides of the House, and rejected. It did, however, receive such a measure of countenance and support as proved its popularity in Scotland. My hon. Friend went further than I intend to do this evening, for he placed before the House a definite Motion on the subject.
§ Notice taken that 40 Members were not present; House counted, and 40 Members being found present—
§ SIR JAMES FERGUSSON
proceeded. I am glad that this attempt to extinguish the debate has failed. I should have been extremely sorry if the few observations I intended to make had been suddenly curtailed without my having the opportunity of disclaiming, in the strongest manner possible, any desire on my part, in submitting this Motion, to make any imputation against the Administration of Scotch affairs by my right hon. Friend who at present holds the office of Lord Advocate. I shall be fully acquitted of any such desire by all, on both sides of the House, who have noticed the manner in which my right hon. and learned Friend has from time to time met the objections to the measures which he has introduced, and the favourable opportunities he has given for their discussion. The same compliment 1169 may be paid to his predecessors in office,; who have uniformly displayed the most conspicuous ability. In point of fact, if anything could have reconciled what I consider to be the incompatible nature of; the duties intrusted to the Lord Advocate of Scotland, it would be the efficient manner in which they have been performed by the right hon. and learned Gentlemen who of late years have held the office, What I contend is, that the duties which; come within the province of the Lord Advocate of Scotland are so diverse, incompatible, and comprehensive, that no parallel can be found either in the Administration of England or Ireland. It seems strange that the constitution of the three portions of the United Kingdom should be so different, that while in England there are various officers of State, of various professions, each exercising his individual duties, in Scotland alone they should all be concentrated in one individual, and that the Chief Law Officer of the Crown for Scotland. Now, it is with regard specially to the management of Scotch affairs, in this House, that I wish to address a few observations. It is well known to Scotch Members, and it is no imputation upon the Lord Advocate, that it is absolutely impossible that Scotch affairs, administered and represented by one Member alone, should be managed with that expedition and convenience which are necessary to ensure the proper consideration of measures which affect the welfare of the country. It must be obvious that a Member, however distinguished he may be, whose duties lie at one and the same moment at opposite ends of the United Kingdom, cannot take advantage of those opportunities which are afforded in this House of introducing his measures at a fitting time, pressing them forward when there is leisure to discuss them, and when it would save time to the country afterwards to consider them, if he has at the same moment to be discharging the duties of his profession in a distant part of the United Kingdom. I am sure the right hon. Gentleman himself is not prepared to deny that that is often the case. It must also be as well known to the right hon. Gentleman, as it is to many hon. Members of this House, that he has failed sometimes to pass measures which I, for one, have thought likely to be beneficial, because the time of the Session has passed by when due consideration could be given to them. Scotch business is generally postponed until morn- 1170 ing sittings become the Order of the Day, or it comes on at one or two o'clock in the morning when Members who have been waiting night after night for the discussion of particular questions have left the House. Under such circumstances measures pass sometimes without proper consideration, and to the astonishment of persons out of doors. That is the state of affairs which is made a matter of yearly and daily complaint, and it is no imputation upon the right hon. Gentleman to say that it is impossible for it to be otherwise. But I intend to base my Motion upon even wider grounds than that. If it were necessary I could cite particular instances in which inconvenience has occurred. I could quote Bill after Bill in bygone years, but I will confine myself to one or two cases that have happened in the course of the present Session. A Bill was introduced before Easter which affects Scotland to a very important extent. It must be looked upon as important because a measure of a similar character has already been introduced in England, has become law, and has been found oppressive and dig-agreeable. Then, again, there is the High Court of Justiciary Bill. That measure was brought in early in the Session. No explanation was offered with respect to its provisions because the Lord Advocate was absent. It was not until it had attained the stage of the Committee before we were informed why it was introduced, and what it was about. We attribute that to the necessary absence of the right hon. Gentleman. There is the Writs Registration Bill — which the right hon. Gentleman himself has described as of the first importance. That Bill was not brought in until the beginning of May — a period of the Session when measures introduced into this House can no longer be expected to be considered fairly by the counties of Scotland. There is one thing which can hardly be disputed. It is a matter perfectly notorious, and a subject of considerable complaint, that persons who come from Scotland, who are interested in the business before Parliament, are never certain whether or not they will find the one official of the Government who is responsible for the Scotch business in this House at his post. I cannot possibly say more than I have already stated to disclaim any intention to reproach the right hon. Gentleman with a neglect of his duty. I do not believe that there ever was a Lord Advocate who sacrificed so much of his time, and I 1171 dare say so much of his interests, to the discharge of his public duties; but what I say is that the evils of which I complain are part of and inseparable from the system. Let me ask the House to consider on wider grounds the footing on which the administration of Scotch affairs rests, and especially the representation of Scotch affairs by the Government in this House. The Lord Advocate of Scotland virtually combines in his own person all the leading offices of the State. I am quite aware that the administration of the internal affairs of the country rests nominally in the hands of the Secretary of State for the Home Department, and that the patronage of Church and State rests ostensibly in the Crown — I suppose either in the Lord Justice General of Scotland, or in the office of the Secretary of State for Home Affairs—and that the more important patronage of Scotland rests in the Treasury. But the general impression—and I should be glad to know that the fact is not so— prevailing is, that the patronage of all the Departments is virtually vested in the Lord Advocate of Scotland, for it is not to be supposed that any important appointment is ever made without his concurrence and advice. Then in matters of administration, it will not be denied that no action of the Home Office in any important matter ever takes place without his co-operation and concurrence—if, indeed, he be not the actual Executive officer by whose ipse dixit it is made. In point of fact, he discharges the duty of Secretary of State and of Privy Councillor. I take it that he is mainly responsible for the administration of the police, so far as the supervision of the Government goes; for I am glad to say that the local magistracy have still the direct control of the police body. But the Lord Advocate controls, and virtually presides over all those matters of general administration which in other parts of the kingdom are placed in the hands of the great Departments of the State. There are duties which peculiarly rest with the Lord Advocate of Scotland, and which are unknown to the rest of the United Kingdom. In England and Ireland, in cases of sudden death, there is an inquest held by the coroner. The proceedings are notorious and open, the evidence is known and published, and the decision is openly rendered. Then, again, in England and Ireland the examination of criminals in the first instance is in the hands of the local magistracy, and the 1172 proceedings are open to the public, and well known. Prisoners are committed for trial, and before they can be brought before the court of assize, a true bill must be found by the grand jury. In a word, it is impossible that any criminal procedure can take place without being open and known. In Scotland, the state of things is very different. The inquiries in cases of sudden death are made only by order of the Lord Advocate or his subordinates. In case the subordinate — the deputy of the Lord Advocate in that part of the country—considers an inquiry unnecessary, no further notice is taken. It is the same in a case of arrest. If the deputy of the Lord Advocate commence a prosecution, an arrest may be made, but a quarter of a year may elapse before the prisoner is tried; and in the meanwhile the public know nothing of the charge preferred against the prisoner, or, at all events, of the evidence on which it is based. But the evil may go much further. A man may be accused of murder —I take the highest charge known on the criminal law—he may be imprisoned for murder — such cases have occurred; he may then plead guilty to culpable homicide; his plea may be accepted by the Crown prosecutor; and he may be sentenced for such culpable homicide without the public knowing on what ground this has been done, except from common rumour. The Lord Advocate of Scotland and his subordinates possess a power which is unknown in any other part of the United Kingdom. They may arrest any individual upon a charge which may or may not be subsequently established, and the prisoner may be released from custody and re-arrested without any information being given to the public as to the charge against him, or the evidence by which it is supported. This is a terrible and enormous power to wield, and I think the office of the Lord Advocate is responsible enough without his being burdened with the sole conduct of the affairs of Scotland in the House of Commons. If the power I have described have been exercised without abuse, and with so little oppression that no great complaint has been made, that only shows how fortunate Scotland has been in the selection of the persons to whom the duty of administering the law has been intrusted. But that does not in any way prove that the law is not inconsistent with free institutions; nor does it prove 1173 that similar laws and procedure are known in any other part of the kingdom; or that a system by which some official has the sole conduct of Parliamentary business and is intrusted with the making of laws, with the rectifying of our course of procedure, and with the power of confirming or remitting sentences, is a system which ought or ought not to be maintained. I have already reminded the House that in 1858 this matter was discussed in this House, on the Motion of my hon. Friend the Member for Montrose (Mr. Baxter). That Motion was opposed by the Lord Advocate of that day; who urged as the advantage accruing from the office of Lord Advocate the very acts of which I complain. The Lord Advocate of that day (the present learned and respected Lord Justice Clerk) argued that the possession of such powers, coupled with such administrative duties in this House, was wholesome, because he was possessed of that machinery which enabled him to communicate at any moment most readily with any portion of the United Kingdom. I say it is precisely for that reason that these combined offices and powers should not be vested in the same person. The Lord Advocate further denied that there was any such complaint with regard to delay in the prosecution of Scotch business as was represented. I must appeal to the experience of other hon. Members to disprove that assertion, and also the statement which was made by the leaders on both sides of the House, that the Scotch business was so well conducted that it ought to serve as a model for the conduct of English business. Now, in my humble opinion, the present mode of conducting Scotch business is not favourable to its fair consideration. It is no doubt the practice for Scotch Members to meet and consider public questions without the House at large being put to the trouble of considering them; but I venture to think that that very practice operates to prevent other Members from taking that interest in Scotch affairs which they take in the affairs of other parts of the kingdom. When it is known that the affairs of Scotland are habitually discussed elsewhere, it can hardly be expected that they should excite in this House the same interest and attention which the affairs of Ireland excite in the House generally. We have one proof of that to-night. The empty benches which I see before me sufficiently establish that assertion. 1174 But this is the place in which our affairs ought to be considered and our grievances redressed, and it only shows the disadvantages of the system under which we labour. I do not ask the House to come to any decision upon the matter in a hurry, and I cannot anticipate that I shall be supported in the Motion I am about to make by those who now enjoy, or who have enjoyed, the distinguished position of Lord Advocate. No doubt they consider the system a most superior one, offering as it does to their profession a prize so high and a position so dignified. Nor do I expect that the House will come to an affirmative decision upon the question which I have placed before them; but what I am entitled to ask is a full and fair inquiry, the necessity for which has been conceded again and again, into the affairs of Scotland. I simply ask that a Select Committee should be appointed to receive evidence upon the subject and report to the House.
§ Notice taken that 40 Members were not present; House counted, and 40 Members being present,
§ SIR JAMES FERGUSSON
resumed. I have very few more words to say. I have shown that in my opinion the duties of the Lord Advocate are incompatible. He is charged with the formation of laws, with the appointment of Judges, or those who practically exercise the power, with the revision of their proceedings, with the consideration of the remission of the sentence of death imposed by these very Judges, and he ought not at the same time to be charged with the administration of Scotch business generally. All I ask the House to do is to sanction the appointment of a Committee, which shall have the power of taking evidence as to the manner in which the affairs of no unimportant part of the United Kingdom are conducted, and I trust that the inquiry which I propose will be assented to.
To leave out from the word "That" to the end of the Question, in order to add the words "a Select Committee be appointed to inquire how far the number of the Members of the Administration, charged with the conduct of the affairs of Scotland, and having Seats in Parliament, is commensurate with the requirements of that part of the United Kingdom,"—(Sir James Fergusson,)
§ Question proposed, "That the words proposed to be left out stand part of the Question."
I cordially agree with the proposition of my hon. and gallant Friend the Member for Ayrshire (Sir James Fergusson), and I cannot help observing with satisfaction that, for the first time during many years, Scotch business has been brought forward at a reasonable hour, and that, to use a sporting phrase, we have the opportunity of having "a good innings." It is not my intention to trouble the House for many minutes, and I hope that other Scotch Members will show their sense of the indulgence of the House by making short speeches. The question submitted to the House by my hon. and gallant Friend is one of the Scottish rights which excited so much attention north of the Tweed a few years since, which if heard of in England at all were chiefly known through the animadversions of The Times. This was a point much urged; but I did not at the time approve of it. I am glad to say that we succeeded in carrying the question relative to the repairs of national buildings in Scotland, and, having accomplished that object, many of us were satisfied. I can only say, with regard to having a Secretary of State for Scotland in this House, that I have very great doubts whether such an appointment would be advantageous or not. But I am certain that, if the Lord Advocate were to devote the whole of his time to Scotch business, he would be able to undertake it, and I wish on those occasions when he is unavoidably absent he had a secondary in the House. I look upon that as one of our principal grievances, because I find that, although in Scotland it is generally understood the Scotch Lord of the Treasury is a gentleman who is paid and kept for the purpose of attending to Scotch business, yet in the present case, being Secretary to the Duchy of Cornwall, it is said that he has nothing to do with questions affecting Scotland. I thoroughly believe what he says, and that we have not any Secretary for Scotland, who ought to have the management of the affairs of that country. It is a great pity that we have not an officer of that kind, and I fully approve of the proposition of my hon. and gallant Friend But if I were asked at this moment to vote whether I would have a Secretary of 1176 State for Scotland or not, I should be inclined to reflect on the old fable, and ask whether King Stork would be better than King Log. I certainly think I should not vote for such a measure; but I have no hesitation in giving my support to the present Motion for the appointment of a Committee to inquire into our alleged grievances, in order that, if they really exist, they may obtain that redress to which they are entitled.
§ MR. E. P. BOUVERIE
The Motion submitted to the House by the hon. and gallant Member for Ayrshire, implies either that there is some particular defect in the present administration of Scotch affairs, or that those affairs are generally maladministered. I listened very attentively to his speech, expecting to hear some proof that such is the case, because in bringing forward a Motion, which implies dissatisfaction with the administration of Scotch affairs, he was bound to adduce some facts to justify his proposition. I do not know whether other hon. Gentlemen who have listened to his remarks entertain the same opinion, but I must say that to my mind he did not adduce facts sufficient to justify the inquiry for which he asks. I imagine it to be a totally new thing, on a question relating to the administration of the affairs of a great section of the United Kingdom, to move for the appointment of a fishing Committee to find out something to substantiate the general statement that he and some of his friends are dissatisfied with the present administration of Scotch affairs. I am certainly not aware that any such dissatisfaction as that which is alleged exists in Scotland, or in this House. The hon. and gallant Gentleman expatiated at considerable length on the duties of the office of Lord Advocate, and said that it was quite impossible, in the nature of things that any Lord Advocate could discharge in a satisfactory manner the numerous and responsible duties which are cast upon him. The hon. and gallant Gentleman did justice to my right hon. and learned Friend when he spoke so highly of the manner in which his duties are performed; but he justified his Motion on this ground, that such is the constitution of the office of Lord Advocate that Scotch affairs must necessarily be indifferently administered. The answer to that is experience. For many years Scotch affairs have been most ably administered by successive Lord Advocates, 1177 men of first-class reputation and ability, and I believe they hare been administered well, and to the satisfaction of the country. But not only was the hon. and gallant Gentleman bound to show the House some ground whereon to rest his Motion, but, as it seems to me, he ought to have suggested some remedy for the grievance of which he complains; but I did not hear him suggest a remedy of any kind. If the House should think proper to grant a Committee, I think it is entitled to know what remedy the hon. and gallant Gentleman proposes. The Lord Advocate has two important functions to discharge— legal functions and administrative functions. I will first take his legal functions. He is the public prosecutor for Scotland, Under his superintendence his subordinate officers have to direct and conduct criminal prosecutions on the part of the Crown throughout Scotland. He has also functions to discharge very much like those which are discharged in this country by the Magistracy and the Coroner, the inquiry into supposed crimes that have been committed. The performance of such duties must necessarily devolve upon a high legal functionary—a man of high character and position — possessing such legal standing as to give importance and weight to the decisions at which he may arrive. The Lord Advocate, then, must be a lawyer. With regard to his administrative functions, they divide themselves into two different branches. He has to advise the Home Secretary with regard to the distribution of a large portion of the patronage of Scotland, the principal portion of that patronage being legal patronage, such as Sheriffships and Clerkships, filled by legal gentlemen. The person having to deal with these matters ought to have a general knowledge of the characters and professional qualifications of the persons to be appointed to these offices, In the discharge of this portion of the administrative duties, therefore, the services of a lawyer are indispensable, and no one is so capable of discharging them, from his practical experience, as the Lord Advocate. The other branch of a Lord Advocate's duty—the legislative branch—can only be properly discharged by a distinguished Scotch lawyer. The hon. Member for Dumbartonshire (Mr. Smollett) the other night made some vigorous remarks about the jargon of the Scotch law, and the complication, defective character, and incomprehensibility of that law. Now, how is 1178 it possible for any but a Scotch lawyer to deal satisfactorily with legislation for Scotland, to propose measures calculated to amend the laws of that country, to improve the administration of those laws, to effect all such reforms as are required by the country. If these be the functions and duties of the administration of Scotch affairs in ordinary times, the conclusion is that the proper person to discharge these functions and duties is the Lord Advocate, and it is the Lord Advocate who has discharged them for so many years to the general satisfaction of the country. The hon. and gallant Gentleman forgets that the Lord Advocate is not solely responsible for the conduct of Scotch business. The Home Secretary is as much Secretary of State for Scotland as he is Secretary of State for England. But the question which appears to possess the mind of the hon. Member for Linlithgowshire (Major Hamilton) is that there ought to be some officer in this House specially connected with Scotland, who shall always be fishing about trying to discover something by way of improvement—a sort of dilettante legal reformer, whose sole employment shall be fishing for changes in the Scotch law. Now, I think that would be anything but an improvement on the present system. One of the advantages of the present system is that Scotland is not plagued with those constant meddlings and interferences and changes which are constantly going on in England. And I should greatly deprecate any recommendation for the appointment of an officer of State, who would have nothing to do but interfere in Scotch affairs, and endeavour to make himself a name by keeping Scotch affairs and Scotch Members in continual hot water. In this matter I am content to declare myself a Conservative. I think that at present we have a good and satisfactory arrangement. When any necessity arises for legislation, I do not find that there is any difficulty in dealing with it. It has been my pride and glory to have identified myself with Scotchmen, and to continue to act in entire harmony and good feeling with those I represent in that country; and the result of my experience is, that wherever there has been a real want in Scotland, the public voice of the people of that country has made itself heard, and has had little difficulty making the change that was considered necessary. With regard to the mode in which we conduct our Scotch legislative business, the Scotch Mem- 1179 bers are, I have often heard by Members from the sister countries, held up as perfect models. Instead of squabbling over their; legislative matters in the face of the House, and having what the hon. Member; for Linlithgowshire has called a "good innings," we meet and have a friendly and confidential conversation; we find out our points of difference, and more or less compromise those points; and then, when a measure comes before the House, it proceeds and is passed without much difficulty. Without entering into any details of the system of administration in Scotland, I wish to express my satisfaction generally at the mode in which the business is carried on—not merely as to the manner in which it is conducted by the Lord Advocate, but with regard to the general system; and therefore I must vote against the proposition of the hon. and gallant Member for Ayrshire.
THE LORD ADVOCATE
Sir, I was anxious before I addressed the House to have heard a little more said in support of the Motion. My hon. and gallant Friend (Sir James Fergusson) will not imagine that I undervalue his statement when I say that it did not contain any very strong or intelligent grounds for the Motion with which he has concluded. The hon. and gallant Gentleman has stated truly that this subject was brought under the notice of the House in 1858, and was then fully considered. The leaders on both sides then expressed their opinions in the clearest and strongest manner. My noble Friend at the head of the Government and the right hon. Gentleman the Member for Buckinghamshire both expressed their conviction that there was no ground whatever for altering the existing mode of conducting Scotch business in this House. Therefore, unless the hon. and gallant Gentleman had some stronger grounds for his proposal than those which he has laid before the House, it was unnecessary, I think, again to disturb a question so decidedly set at rest within so recent a period. As to the mode in which the subject has been brought forward, as far as I personally am concerned, I have nothing to complain of. In regard to the matter itself, which is of great public importance to Scotland, I shall take the liberty, as shortly and succinctly as I can, of stating the reasons why this Motion ought not to be agreed to. I am, I own, at a loss to understand what is the precise grievance which my hon. and gallant Friend would redress. I lis- 1180 tened for it while he was speaking, but could not quite appreciate or understand it. I shall first of all try to methodize, as far as I can, the elements of the objection taken by the hon. and gallant Gentleman or by others to the existing state of things. First, it is said that the Lord Advocate is a practising lawyer, and cannot therefore be in the House of Commons when he has his practice to attend to in Edinburgh. The second assertion is that the Lord Advocate, having other avocations, has not the time for introducing measures of that magnitude and importance which he ought to attempt. Thirdly, we are told that the manner in which Bills are prepared, proposed, and considered in the House, is not satisfactory. And the fourth and last allegation is that, at all events, the political functions of the Lord Advocate are such as ought not to be exercised by a practising lawyer. Here then are the objections gathered partly from the speech of my hon. and gallant Friend, and partly from the midnight suggestions of the hon. Member for Dumbartonshire. I suppose the hon. Member for Dumbartonshire is now satisfied that the notion that the Lord Advocate is never in this House till after Easter, except when the Government require his vote in a great party division—is the mere offspring of a heated imagination. There is not and has not been any foundation for the idea, and I presume the hon. Gentleman must on calm reflection be convinced that such is the case. It is very true that the Lord Advocate is a practising lawyer; but it is also certain that during the Session of Parliament he has substantially to throw his professional business to the winds. If he is not in his place here, then he ought to be, if there is any Government business to come on; and I may say for myself that, with very few and rare exceptions, I have systematically acted on that principle. My usual course has been this. I have come up to London in the second or third week in February, and remained until the 20th March. Sometimes I may have borrowed a day or two after that date when the Court of Session rises for the jury trials, which then immediately commence; but never, so far as I am aware, to the detriment of public business or the inconvenience of this House. I have always been in my place after Easter, and have remained till at least the 20th July; and then, when the Scotch Members are generally more intent on preparations for the 12th of August than 1181 on legislative action, I have sometimes gone down to Scotland immediately after that date. It is my duty to be here, and I have always endeavoured to adhere to it. When this question was before Parliament in 1858 the supporters of the proposition now adopted by the hon. and gallant Member, could recollect only one instance in which the Lord Advocate had not been in his place in Parliament when public business required it. What was that? It did happen in 1857 that—not in order to cultivate private practice, but in the discharge of my duty as public prosecutor—I went down to Scotland to conduct a very celebrated trial for murder, which was then exciting, I believe, more interest both in and out of Parliament than any Parliamentary business that was going on. Something similar happened this very year. My hon. and gallant Friend has referred to the occasion when I was not present to give an explanation in regard to the Court of Justiciary Bill. At that time I had gone to Scotland to attend the trial of the Pampero — the Confederate vessel built in the Clyde—which was then going on in the Court of Session. I thought it desirable that I should be there, for the case was of a very important and anxious character, and I am glad I was present, for I think the result of the matter was to benefit the country, and to vindicate the law. These are the only two occasions when Scotch business has come on here when I have been absent during the eleven years I have had a seat in this; House. I ask, are these matters on which you can found such a Motion as this? Of course, if the Lord Advocate is incompetent to discharge his duties, that is one consideration; but if the Motion is brought under the idea that the Lord Advocate attends to his private practice in Edinburgh, to the injury and detriment of the public business in Parliament, then I repudiate it altogether. Such has never been my custom. I am not subject to any such imputation, and neither have my predecessors in office been subject to it. [Sir JAMES FERGUSSON: I never made that charge.] Then let us discard this part of the question. Well, the second head of the indictment is that the Lord Advocate, from his position and functions, cannot introduce and carry important measures in this House. I agree with my right hon. Friend the Member for Kilmarnock, that there may sometimes be something even better than legislation—there may be let- 1182 ting it alone. Over-legislation is not desirable, and I am not sure that occasionally we have not been in danger of running into that evil. It is not two years since the Scotch Members were, I believe, very much inclined to beg of me to legislate no more, for they thought I was rather too prolific of measures than the reverse. If an official were appointed for the express purpose of carrying on legislation, there might be some risk of his overdoing it. Suppose there was an ardent law reformer—such as the hon. Member for Dumbartonshire seemed to have in his mind's eye who was honestly, but rather incoherently, possessed by the idea that the world of Scotland was out of joint, and that he was specially born to set it right, that the unfortunate land was devoured by sinecurists like a flight of locusts, that the law was barbarous, that the lawyers were incompetent or worse, and who was ready to run into a crusade to remedy all sorts of fancied abuses; why, then, I say that anything more undesirable for Scotch legislation I am unable to conceive. But is it true that this state of things exists? Is there the slightest warrant for the suggestion that most important measures have not been carried for Scotland? I will just take the liberty of sketching briefly and rapidly the legislation that has taken place during the last ten years. In 1853, the hon. Member for Dumbartonshire will be pleased to know, we undertook a reform of the Sheriff Courts. The hon. Member for Ayrshire must at least admit that there was no complaint that year of the absence of the Lord Advocate. We had daily, or rather nightly, discussions upon the Bill; it was referred to a Select Committee, where it was carefully considered; it was finally passed, and has proved in all respects successful. In the same year, we accomplished a more important work. We put an end to a long-pending controversy by abolishing the tests imposed on Professors in the lay chairs of the Universities of Scotland. That Bill was not long, but it was most important, for it laid the foundation upon which my right hon. Friend the Lord Justice Clerk was afterwards able to build the great measure of University reform which was passed in 1858. In 1854 we passed two Acts of great consequence. One was the Act for the Registration of Births, Deaths, and Marriages, which had been attempted before, but without success. It was in that year, under the charge of my noble Friend the Member for East Lothian 1183 (Lord Elcho), carried through, the House after ample discussion, and is now in full and useful operation. The other was the Valuation Act, which is one of some moment, for reforms of much importance have already been engrafted on it, and it may still lead to more. In 1855 no measures of any great consequence were passed. It has been said that measures have failed in consequence of the absence of the Lord Advocate, and of their having been introduced too late to receive proper consideration. Does my hon. and gallant Friend remember the Education Bill of 1855? I am indebted to my hon. Friend for a most fair and liberal consideration of that proposal; but was it lost because the Lord Advocate did not introduce it in time? It was introduced on the 23rd of March, and was read a third time on the 12th of July, after many discussions, various Amendments, and keen opposition. That Bill was passed in this House, not in the indolent and slovenly manner in which some hon. Members choose to represent that Scotch business was conducted, but after long, severe, and searching criticism; and all I can say is, that if the same liberal spirit had prevailed in another place that was displayed here, the measure might have been passed that Session, and we should have been relieved at this day of a great many of the difficulties which now impede the course of Education in Scotland. In 1856, the first Bill we passed is one to which I am entitled to refer with gratification—the Bill for the reform of the Bankruptcy Law of Scotland. For the first time in the legislation of the country, a Bankruptcy Act was obtained, which gave substantially general, I may say universal, satisfaction. Another of the measures of 1856 had for its object the reform of the Court of Exchequer in Scotland. That was a very technical matter; but those who recollect what the old Court of Exchequer was must admit that the reform was very necessary and useful. The Session of 1857 was marked by the passing of the Bills for establishment of County Police and for regulating Lunacy. I remember the hon. Member for Montrose (Mr. Baxter), remarking of these two Bills that they were specimens of hasty legislation. I can only say that the County Police Act has been very successful in its operation, and has led to the establishment of a very efficient force. In regard to the Lunacy Act, I own it was passed with rapidity, and required to undergo amendment afterwards; 1184 but it has proved a measure of great social benefit. In 1858, when the right hon. Gentlemen opposite were in office, my right hon. Friend the Lord Justice Clerk in that year carried that great measure of University reform after considerable discussion, but substantially with the support of all sides of the House. The country is greatly indebted to my right hon. Friend for that measure, and not less for his able and laborious discharge of the less prominent but almost more important functions of Chairman of the Commission. I really do not think it is necessary to weary the patience of the House by going further into our legislative performances. I have said enough to show that we have not shirked or slurred over our work. I have produced a catalogue of measures passed between 1853 and 1858, which will contrast favourably with those passed for England or Ireland during the same period. I may remind the House that in 1861 there was a measure of considerable importance, for we again put an end to a long and weary controversy, and succeeded at last, after many, many years of discussion, in abolishing the tests taken by parochial schoolmasters. In that measure we laid a foundation on which a great work may yet be raised. I believe that as surely as the abolition of the tests in the Universities paved the way for the reform of those institutions, so the Bill passed in 1861 for the abolition of the tests to parochial schoolmasters is destined to become the basis and ground work of a large and comprehensive national system of education. There was one Session in the ten years of which I have been speaking when we did not do much. We spent the Session of 1861, with the exception I have mentioned, substantially in doing nothing. We commenced this arduous task on the 15th March, and ended it on the 19th July. The two questions on which our energies were expended were a Salmon and a Road Bill. None who took part in the discussions of that year will be likely to forget them. The Salmon Bill was brought in on the 15th March, and the Road Bill on the 28th, and we had a Select Committee on each, which sat for many days. We took a great deal of pains and trouble with both Bills; but I am sorry to say that the result was that the Road Bill was withdrawn on the 15th July, and that we were "counted out" on the Salmon Bill by my hon. Friend the Member for Berwickshire (Mr. Robertson) on the 1185 19th of the stone month. The failure of the Salmon Bill was certainly not owing to the absence of the Lord Advocate, or to any want of energy on the part of its supporters. It was one of those accidents inherent to the nature of legislation in this House. There were interests which required to be conciliated, and it was found impossible at that time to come to a settlement with them. Next year, however, a Salmon Bill was carried, which, I believe, has been productive of advantage. In regard to the Road Bill, although lost in 1861, we have since seen county after county come to Parliament for private Bills at their own private expense, to do the very things we proposed to do in that Bill. That, then, is my reply to the charge that we do not introduce important measures, and that sufficient time and attention is not given to the consideration of Scotch business. During the ten years which I have been reviewing, over a hundred Bills have been passed into law, so that it is perfectly plain that the allegation that Scotch business is neglected, and that Scotch legislation is not carried to a successful issue, is contradicted by the facts. Then it is said that the Bills are imperfect, and that they are passed in a state which amazed the people of Scotland. Are those measures which I have been enumerating, the Valuation, the Bankruptcy, the Registration of Births, Deaths, and Marriages, the Sheriff Courts, and other Acts, open to that criticism? I say No. The true test was what amount of litigation had arisen on them. Comparing them with other measures of the same magnitude passed for other divisions of the empire, a very small proportion indeed of questions have arisen for the adjudication of the courts of law in connection with these Scotch Acts. There were some persons who delighted to detect errors in an Act of Parliament, and to trumpet forth the discovery by way of showing how critical they were and how faulty was the legislation. The proper way, however, of judging laws was to look to their effect. Do they benefit the class on whose behalf they have been passed? Do they remedy the evils at which they have been aimed? On the whole, I contend that the measures we have carried will stand that test. No doubt the Bankruptcy Act was not the most careful or perfect specimen of legislation; but it was quickly amended, and its operation has been completely successful. If Bills are 1186 sometimes passed which are not exactly models of composition, you must remember what sort of a manufactory of statutes this House is. One cannot sit down and write off an Act like an essay. It is subject to all sorts of alterations during its passage through the House; and it is impossible in every case to prevent errors and perhaps some slight inconsistencies from creeping in. If the machinery furnished by the House of Commons for framing laws is not scientifically precise in its working, that is the price we have to pay for Constitutional Government, and we must just make the best of it. To illustrate the system, let me just take the Education Bill to which I have already adverted. I introduced it about the middle of March, but I was asked to defer the second reading for a considerable period in order that the country might have an opportunity of expressing an opinion with regard to its provisions. I was, of course, obliged to comply with that request. The second reading having been fixed for the 15th April, a further postponement was desired, because the Commissioners of Supply were shortly to meet, and it would be well to hear what they had to say. Again I was obliged to yield, because I knew the force of opposition, and the Bill was put off till the 18th May. When that day arrived, another hon. Member got up and said, You will not surely think of going on with this Bill until you learn the opinion of the General Assembly of the Church of Scotland, which has charge of the schools, and which is just about to meet; so the measure has again to be postponed, but at length comes on for a second reading in the second week in June. We go into Committee, and the paper is crowded with Amendments. I know that a Standing Order has been passed in another place not to take the second reading of any Bill after the 30th June. Consequently I am pushed for time. I am obliged to accept Amendments, for the sake of progress, without having a fair opportunity of considering them. Well, we get through Committee, and then more Amendments are brought up on the Report. I have no alternative except to agree to them or lose the Bill. It is wonderful then, if, under such circumstances, a Bill sometimes gets passed which is not a model of grammatical accuracy? When errors thus creep into Acts, all we can do is to introduce an amending Bill in the succeeding year; and I cannot admit that necessity for such rectification involves any 1187 slur on the proceedings of the previous Session.
The last objection which is made is that the Lord Advocate, being a practising lawyer, has too many functions to perform. It is quite true that his office does embrace a variety of functions which in England are divided; but Scotland is not such a very large country, and, after some considerable experience of the office, I can say that the duties are not so numerous, responsible, or important as to be beyond the power of one man, with reasonable attention and diligence, to discharge. If the assistance tendered to me were given, I should really not know what use to make of it. A large portion of the duties of the Lord Advocate, including all relating to the Home Office and legal questions, could not be transfered to an assistant. The necessity of having a separate official for Scotland is due to the existence of a different legal system in that country. That distinction goes to the root of the whole civil and religious system of Scotland. There is hardly a part of that system which you can touch without an acquaintance with the law of Scotland. The hon. Member for Dumbartonshire (Mr. Smollett) seems to think that the reform of the Marriage Law should be intrusted to Borne one who is not a lawyer. But that is just an instance of the danger of proceeding in that way. It may be true that the Marriage Law of Scotland requires reform; but the people of Scotland have not yet demanded any change, and a few sensation cases or sensation articles happening not so much in as out of the country, do not afford sufficient ground for new legislation on so important a subject. Moreover, my right hon. Friend the Lord Justice Clerk on a former occasion showed very clearly that it is not only not undesirable that the Lord Advocate should be intrusted substantially with the charge of Scotch business in the House, but that he has peculiar facilities for it which no other person possesses, and which arise from his position as public prosecutor. My hon. Friend, who appears to be but imperfectly informed upon the subject of the criminal law of Scotland, has declared that it is defective, and that the powers of the public prosecutor are contrary to the principles of the constitution. I entirely demur to that. I am satisfied that under the criminal system of Scotland the liberty of the subject is perfectly secure, and that it works admirably both for the discovery of crime and—what is certainly not less import- 1188 ant— the protection of innocence. My hon. Friend has referred to coroners' inquests and grand juries; but I have heard the utility of both these tribunals gravely questioned in England. A system under which inquiry is made into criminal charges without unnecessary publicity tends, I am convinced, very much to the detection of the guilty, and to preventing charges reaching the public ear against persons who turn out in the end to be completely innocent. But the question is as to the position of the Lord Advocate. He is an officer of State in Scotland; and has under his command the staff, not only of advocate deputies, but of procurator-fiscals throughout the country, by means of whom he can, on the shortest notice, collect information on all subjects. If there were a Secretary of State for Scotland in London, he would have to apply to the Lord Advocate for information at every turn, and do at second-hand what the Lord Advocate now does at first-hand. He would have to seek facts as well as law from the Lord Advocate, and the consequence would be that the latter would continue to exercise the same power as now, only with diminished responsibility. My hon. and gallant Friend says that this office is the great prize to which the Bar of Scotland look forward. In one sense it can scarcely be so described, for unquestionably, in point of emolument or prospects, it does not hold out any very golden or glittering temptation. A counsel in large practice is not a gainer by accepting the position I have now the honour to hold; and there is no prospect opening beyond it. There is no promotion, no peerage to look forward to. There are none of those prizes which are within the reach of the Law Officers of England and Ireland. Yet the office has one recommendation, and it is a great one to a generous mind. It has the recommendation that it affords the means of doing much good to the country. It holds out that most honourable object of ambition—the opportunity of using power for its only true and legitimate end, the advantage of the nation. It offers the highest and purest reward of patriotism— the consciousness that one is placed in a position where, by diligence and assiduity, one may be of use in one's day and generation.
§ MR. SMOLLETT
Sir, I did not intend to address the House, but I have been so much referred to by the right hon. and learned Lord, I hope the House will allow 1189 me to make a few remarks. A few nights ago, when, for the first time this Session, a Motion was brought forward connected with Scotch business, I ventured to say, that the business of Scotland was conducted in a very unsatisfactory manner. That observation seems to have excited the anger of the right hon. and learned Gentleman, and he seems to think that I have personally attacked him. He has charged me with libelling all the great institutions of Scotland. Now, my observations were meant to refer to the system which prevails in Scotland of placing the legislative authority in the hands of a practising barrister. That, I think, is a very erroneous system. I did not mean to make a personal attack upon the learned Lord, whose abilities and kindness are recognized by both sides of the House. What I did say was, that the present system was defective, and that there was no part of the kingdom where larger legal reforms were required than in Scotland; and that we could not get them. On the occasion to which I have referred, I observed that the Court of Session in Scotland were so strangely constituted as to be obstructions to justice — that they could hardly be called courts of justice—and I now repeat that observation. Last Session the right hon. and learned Gentleman brought in a Bill to amend the procedure of the Courts of Session — the Court of Session Procedure Bill. Well, after it was introduced, it was not pressed with any great alacrity, and it was eventually withdrawn. That Bill, I understand, has since been referred to the Faculty of Advocates, to the Writers to the Signet, and to the Solicitors of the Supreme Courts, and it has been torn to tatters by these learned bodies. I am not aware that it has been introduced again this Session, nor do I know that it will be introduced. In the course of the last autumn, a practising barrister in Edinburgh—a friend of the Lord Advocate—aent me a pamphlet in favour of the Court of Session Procedure Bill. The writer states that the population of Scotland has greatly increased within the last forty or fifty years, if it has not actually doubled, and that its; wealth is five or six times as great as it was at the commencement of that period; but that, notwithstanding this, the business of the Court of Session has absolutely decreased—that it is gradually becoming less and less, and that some reform must take place before litigants will be induced 1190 to come to it. The writer goes on to say that the English Courts have been reformed; that the Court of Chancery in England is very different from what it was in the glorious days of Lord Eldon; that the procedure in the Court of Queen's Bench, the Court of Common Pleas, and other law courts has been amended, both with regard to the litigants and the legal gentlemen practising in these Courts. These changes, he says, have been attended with great success; whilst the practice in the Scotch Courts is departing from them on account of their forms being so abominable and detestable, and their expense so enormous. Now, I think we ought to have a thorough reform in these Courts. I believe the Bill of last year was a tolerably good one. My only objection to it is, that it does not go far enough—that it does not put an end to that abominable jargon with which the proceedings of the Courts are disguised, such as the word "multiplepoinding" and many others even worse, which even the practising barristers themselves do not understand. The Bill does not abolish what is called the Outer House. Perhaps some English and Irish Members may not know anything about the meaning of that term. If so, I will inform them that it consists of five Scotch Judges, who sit outside obstructing the portals of the Court of Session. They sit separately, and every person who wishes to obtain justice must undergo the ordeal of having his case sifted by one of these Judges. The case is heard, discussed, answered, and a variety of other processes are gone through, and then it is permitted to enter the Inner House. In fact, the case has to be tried two or three times over at a most intolerable expense. No reform of these courts of justice will be worth a straw unless the Outer House be abolished. But you will have to wait a hundred years, and more than that, before you will find any Lord Advocate trying to abolish these Judges. Reference has been made to the Sheriff's Court Act of 1853–4. Now, I think the Sheriffs' Courts require a great deal of reform. The Bill which the hon. and learned Gentleman congratulates himself on having passed doubled and trebled the pay of the sheriffs. These courts do not work badly, but they are most anomalous courts. A sheriff is appointed a County Court Judge. He is appointed by the Crown, but he is not allowed to reside within his sheriffship. The law provides that he shall be a practising barrister, and 1191 he must live in Edinburgh. He must walk the courts there whether he has any practice or not. A person may very naturally ask—How then is justice administered in these courts? It is done in this sort of way. The sheriff, who is called a sheriff-depute, appoints a substitute. If he paid that substitute it would be all very well. But he is paid by the country. He sits de diem in diem to transact the business of the Court in the county town, whilst the sheriff, who lives in Edinburgh, comes out in the vacation, hears appeals, obstructs the business, and by the delay incurred he makes the law more expensive than it would otherwise be. The substitute is paid £700 or £800 a year. He is not supposed to be a servant of the Crown; the Lord Advocate holds him responsible to the sheriff who appointed him. Such a system ought to be abolished at once. But, I ask, will any Lord Advocate bring in a Bill to abolish the office of sheriff's substitute? No such thing; for a change of that kind would interfere too much with the patronage of the Crown. The Court of Session is so bereft of business that the Bar would not get sufficient practice to keep themselves were it not for some twenty-five or thirty offices which, when they get hold of them, they can hold with great advantages to themselves. With the exception, perhaps, of Glasgow and Lanark, there ought to be one sheriff in each county capable of performing the duty without having another sheriff to look after him. I intimated the other night that other reforms are required, and said that we need a reform of the law of marriage, a reform of the law of succession, and a reform of the law of domicile. And what sort of reply did I receive? Why, "You are an independent Member, and had better bring in such Bills yourself." I will tell the hon. and learned Gentleman my opinion on these subjects. It is this. The Scotch people want to have the law changed on these points — they want to have it assimilated to the law of England. ["No!"] Now, I think this should be done. If the Motion of my hon. and gallant Friend should be carried, and Her Majesty should be pleased to appoint a Secretary of State for Scotland, that Secretary of State might introduce the measures required of him, and, with the assistance of the Lord Advocate, carry them through Parliament. Instead of bringing in good social measures, what kind of Bills have been recently intro- 1192 duced? We had a Salmon Fisheries Bill, which was counted out by the hon. Member for Berwickshire. Then we had a Herring Fishery Bill. We have had a Bill to put down trawling. This year we have had a Rivers Pollution Bill, which I believe has come to a sudden death. Fish are certainly well taken care of in Scotland, but Scotchmen are not so well attended to. I believe that so long as we have the Parliamentary duties of Scotland intrusted to a Lord Advocate, a practising barrister—so long as he has a host of retainers to serve about the Parliament House, we shall not obtain those legal reforms which the country requires. Every Scotch Bill is canvassed in Edinburgh, and the first consideration is, how will it affect the interests of the Parliament House—how will it affect the interests of gentlemen connected with the Scottish Bar? Scotland is loaded with legal sinecures, and so long as the present system continues, we shall never get rid of them. Whether the Lord Advocate is a Conservative, or whether he sits amongst those who call themselves Liberals, the evils which are complained of will never be removed until a change is made in the system. If my hon. and gallant Friend takes the sense of the House on his Motion, I shall certainly give him my support.
§ MR. CARNEGIE
I trust the hon. and gallant Gentleman will not press his Motion to a division, but will be satisfied with the expression of opinion which has taken place. It would be very inconvenient for many hon. Members to have the matter pressed upon them, and I think it would also be undesirable to have a division on a Scotch question unless it should be supported by a very large number of Members. If Scotland is not nearly agreed that a change ought to take place, it would be a great pity to unsettle the present state of affairs by referring the matter now under consideration to a Select Committee. I think the Lord Advocate has made out an excellent case as to the general practical efficiency of the existing system; at the same time, I think that, theoretically, it seems to be a very extraordinary one. I quite agree in the opinion which has been expressed by the hon. Member for Dumbartonshire, that so far as regards Scotch legislation, too much deference is paid to the interests of the Parliament House and a particular clique in Edinburgh. This grievance was hardly 1193 touched on by the hon. and gallant Member for Ayrshire; but I wish to draw the attention of the present Lord Advocate, and all future Lord Advocates, to the fact, in the hope that they will look a little more to the general interests of Scotland, and a little less to the peculiar interests of Edinburgh. If the plan continues of deferring everything to the desires of Edinburgh, and nothing to the desires of the country, I confidently predict that the people of Scotland will eventually require some change of the system.
It was not my intention to take part in the present debate, nor should I have done so if it had not been for the personal matters which have been introduced into the debate by my right hon. and learned Friend the Lord Advocate. My right hon. and learned Friend says, that it was I who counted him out on the Salmon Fisheries Bill. That is altogether incorrect, although I certainly hold many of the views which were expressed on that occasion by the hon. Member for Edinburgh. I must say that I entertain very strong objections to the Bill, and the reason that the House was counted out was that the time at which the measure came on for discussion was half past two or a quarter to three in the morning, and it was considered that that was not a proper hour to go into discussion on so important a question. Perhaps, I may be allowed to make one remark in regard to what has fallen from the hon. Member for Dumbartonshire (Mr. Smollett). The hon. Member remarked that during the absence of the Lord Advocate from this House, Scotch business was in danger of coming to a stand-still. That is hardly the case, because we have in the House an hon. Member who is commonly called the Scotch Lord of the Treasury, and I believe that my hon. Friend (Sir William Dunbar) is always ready to give his advice and the best assistance he can render to all who have occasion to go to him.
§ MR. MURE
I rise simply for the purpose of joining in the recommendation which has been made to the hon. Baronet the Member for Ayr, not to press his Motion to a division. I recollect perfectly well what took place when a Motion on his subject was submitted which involved the direct appointment of a Secretary of State for Scotland. How was that Motion received by both sides of the House? It was the distinct opi- 1194 nion of the House that there were no such relations between the people of Scotland and the business of the House which required such an appointment. I was extremely anxious to hear what my hon. Friend the Member for Ayr could say in addition to what was said upon that occasion, and after having attentively listened to his speech, I must gay I have been unable to discover any ground for his Motion, or that a better case has been made out why a different course should be pursued now from that which was taken in 1858. As that time, as now, the noble Viscount (Viscount Palmerston) was at the head of Her Majesty's Government. He had had experience in the Home Office as well as in other departments of the State, and he made a most minute and full reply to the Motion of the hon. Member for Montroso (Mr. Baxter). The explanations which were then given carried, in my opinion, conviction to the minds of every one who heard them, and would carry a similar conviction now. The noble Lord then told the House that, if a Secretary of State were appointed, there would really be no duty of any importance for him to discharge. That being the case, what is it that my hon. and gallant Friend the Member for Ayr seeks to attain by the appointment of a Select Committee? If a Committee were appointed they would, I presume, call before them those who have had experience in the office of Lord Advocate. They would also have from the noble Viscount the Prime Minister the explanation which he made in 1858, and which then satisfied Parliament that there was no foundation and no ground whatever for the Motion. They would probably also examine the right hon. Member for Bucks (Mr. Disraeli), who likewise spoke on that occasion, and explained the reasons why he thought there was no necessity for an alteration of the present system. They would probably also examine the right hon. Baronet the Secretary of State for the Home Department, who has, perhaps, had as extended and as wide an experience of the duties of that Department as any one, and who is perfectly cognizant of the duties required of the Home Secretary and of the Lord Advocate, and who would no doubt state to the Committee that there is no necessity whatever for the establishment of such an office as the Motion now before the House contemplates. The appointment of a Select Committee would there- 1195 fore do nothing more than bring out a repetition of the statements which have already been made to Parliament by the noble Lord at the head of the Government and others, and which satisfied Parliament that there was no necessity for a change. I think, therefore, that this Motion would be productive of no good, and I concur with the hon. Member for Forfarshire (Mr. Carnegie) in suggesting that the Motion should not be pressed to a division. I do not wish to detain the House by attempting to answer the speech of my hon. Friend the Member for Dumbarton; but my hon. Friend stated as one of the reasons why the Motion should be agreed to that certain measures of law reform are necessary. Now, I do not know how a Secretary of State, who is not a lawyer, could conduct those legal reforms which my hon. Friend suggests; and how any one, if not a lawyer of the same capacity as my right hon. Friend the Lord Advocate, would have the confidence of the people of Scotland in undertaking the responsibility, I am at a loss to imagine. I certainly heard with surprise some of the remarks of my hon. Friend in reference to the law of domicile. For some years back the Scotch Judges have been endeavouring to assimilate the law in that respect as near as possible to that of England, and it is now very nearly assimilated. That being the case, I should certainly like to know what Bill my hon. Friend wishes to introduce to reform the law of domicile. Some of the remarks which fell from my hon. Friend I heard with great regret; and I am sorry that he did not follow the example of the hon. and gallant Member for Ayr in avoiding all personalities. My hon. Friend insinuated that the desire of the Lord Advocate to reclaim the patronage of what he was pleased to call sinecure offices, prevented him from going on with legal reforms last Session, and from introducing any measure with that object in the present Session. I believe that such observations as those which have fallen from my hon. Friend will be read with very great regret in Scotland. No man who ever held the office of Lord Advocate is less open to such imputations than my right hon. Friend the present holder of that office. The remarks of my hon. Friend with regard to the emoluments of the legal profession, show how ignorant he must be with regard to the profession to which I have the honour to belong, and of the mode by which it best flourishes. Nothing could be better for 1196 the Lord Advocate, or for the legal profession generally, than incessant changes in the law, and the institution of new forms of procedure by which the law is administered. They are certain to introduce an immense mass of litigation, and the passing of such measures invariably affords employment to the profession to which I have the honour to belong. Under all the circumstances, I sincerely trust that my hon. and gallant Friend will not press his Motion to a division.
§ SIR WILLIAM DUNBAR
It may appear superfluous and even presumptuous in me to attempt to add a single word to the lucid and exhaustive statement which has just been addressed to the House by my learned Friend the Lord Advocate; but I hope, nevertheless, that I may be permitted to offer one or two brief observations upon the subject-matter of the Motion now under consideration. When the same Motion, or one with a similar object, was brought forward by my hon. Friend the Member for Montrose (Mr. Baxter) in 1858, I abstained from voting on that occasion, because my mind was not definitely made up upon the subject. But whatever may have been my doubts then, further reflection, combined with the five years' experience I have gained in the office I have now the honour to hold, has satisfied me that no substantial advantage would be derived from any change — or, at all events, any material change — in the administration of Scotch affairs in this House. The hon. and gallant Member for Ayrshire, who introduced the Motion, has disclaimed any intention of finding fault with the present management of Scotch business; but if his Motion has any meaning at all, it must mean that he considers it unsatisfactory. That, no doubt, is his honest opinion, and it has the sanction of some other Scotch Members; but I make bold to say that that opinion is not shared by the House generally. If there is one thing more than another connected with the transactions and proceedings of this House which I have heard remarked upon with commendation by hon. Members on both sides of the House with whom I am in constant intercourse, it is the mode in which Scotch measures are brought forward and carried through. I, for my part, do not believe that business is less efficiently performed because it is quietly and unostentatiously conducted; nor do I consider that it detracts from the importance or the efficacy and usefulness of pub- 1197 lic measures that they do not provoke strong differences of opinion or any discussions in this House. Until a very recent occasion, such discussions have always been avoided, and I attribute the happy circumstance to the easy intercourse and mutual confidence which have subsisted between the Lord Advocate and the representatives for Scotland, and their antecedent agreement upon all material points involved in the legislation which has been introduced by him. But while I say this, I am not here to deny that there are some slight practical inconveniences connected with the present system. But I would ask whether it would be possible to set up any machinery which would not occasionally fail to perform its functions with the exactitude and regularity that might be expected from it, or which might be desirable? Occasional failure is the utmost that in my judgment can be alleged to the prejudice of the present system; but after the fullest consideration that I have been able to give to the subject I certainly know of nothing which you could substitute in its stead that would work more smoothly, or produce more solid or satisfactory results as I think my right hon. and learned Friend has convincingly shown. If there is anything which we have to complain of, it is not the dearth but the superabundance of legislation—not the too little, but the too great interference in matters of that kind. But, be that as it may, my belief is that the remedy for the defect which is stated to exist is not to be found, as the hon. and gallant Baronet's Motion implies, in the appointment of one or more additional paid functionaries to represent and watch over Scottish interests in this House. However plausible in theory, the proposition is one which I am sure would be found extremely inconvenient in practice. If the hon. Baronet should succeed in persuading the House to adopt his Motion; and if, under the influence of his preconceptions, the Committee which might be appointed should accede to his proposal—then I will venture to say his real difficulties will begin. If he should be called upon to give practical effect to his views, lie would find it no easy task to do so. He would find it no easy task to define the duties of the new functionary, or to assign him his true position. If he is to be responsible, I should like to know how the hon. Baronet proposes to reconcile responsibility with subordination? And if he 1198 is to be independent—and unless he can think and act for himself in all matters pertaining to his Department he would be powerless for good matters—I should like to know how the hon. Baronet would propose to reconcile that independence with the legitimate authority of the Home Secretary in matters not legal on the one hand, or with that of the Lord Advocate in matters strictly legal on the other? But difficult as he would find it to bring conflicting authorities into harmony, his new functionary would be still more puzzled to know how to employ his time. He would have little or nothing to do; and like most persons who have nothing to do, he would endeavour to carve out work for himself — to use a homely phrase, he would fall into mischief—and the result would be that he would become a source of greater embarrassment and danger to the Government with which he might be connected than useful to the country whose interests he is supposed to represent. For these and other reasons which I need not enter into, I intend to record my vote against the Motion. I cannot sit down without adverting to certain expressions which fell from the hon. Member for Linlithgowshire (Major Hamilton). I must say that the mode in which he has alluded to alleged private conversations in this House is one which I, for one, cannot approve of. Such a course must necessarily occasion great inconvenience—
I rise to Order, Sir. I beg to say that I made no reference to any private conversation. If the hon. Baronet will be good enough to inform me what it was, I will at once refute it.
§ SIR WILLIAM DUNBAR
I speak, Sir, under correction. I certainly understood the hon. Member to say that I had stated either to him or to somebody else that, as I am connected with the Duchy of Cornwall, I did not feel myself occupying the position of a representative of Scotch interests.
I admit that the hon. Baronet did use words to that effect in public, but, as far as I know, not privately.
I must again repeat that the observations of the hon. Baronet were made in public, not in private.
§ SIR WILLIAM DUNBAR
Then I beg to give the statement of the hon. 1199 Gentleman the most emphatic denial. I never stated that my connection with the Duchy of Cornwall prevented me from considering myself as the representative of Scotch interests. What I may have said is this—That I did not hold myself responsible for the legal business in reference to Scotland, which is introduced entirely upon the responsibility of my right hon. Friend the Lord Advocate.
§ Amendment, by leave, withdrawn.