§ (The Lord Advocate, Sir Henry Selwin-Ibbetson.)
§ [BILL 209.] COMMITTEE.
§ Bill considered in Committee.
§ (In the Committee.)
§ Clauses 1 and 2 agreed to.
§ Clause 3 (Appointment of salaried sheriffs substitute vested in Her Majesty.)
§ MR. LEITHsaid, there had been some reason to think that a foregone conclusion had been arrived at in regard to this Bill, and that due consideration would not be given to Amendments. But that impression had been removed, and he approached the subject in full confidence that the Amendments proposed would receive a fair attention. The clause had reference to the appointment of sheriffs substitute. The Crown would, under this Bill, have the power of appointing them instead of the sheriffs, a provision which all approved of. But the House would see that an invidious distinction would occur with respect to those sheriffs substitute who were now exercising their judicial functions, compared with those who would be subsequently appointed. It was supposed that questions might arise which would prejudicially affect the status of the existing sheriffs substitute. He had an Amendment to provide against such difficulties arising, and to place the present judicial officers in the same position, to give them the same status and relative precedence as those who might be appointed afterwards. He therefore moved in page 1, line 14, after "Secretary of State," to add—
Every person now holding the salaried office of sheriff substitute shall he deemed to have been appointed in like manner.There was a precedent for the course which he asked the House to adopt. In 34 & 35 Vict. c. 69, which took from Lord Lieutenants of counties certain appointments, and transferred them to the Crown, the same words occurred which he now asked should be added to the 347 clause. He trusted the Home Secretary would see that he was asking nothing but what was reasonable.
THE LORD ADVOCATEsaid, that if he thought the Amendment proposed was necessary to effect the purpose in view, he should not object to the addition of the words to the clause, but it appeared to him that they were unnecessary. He did not think the difference of status which the hon. Member apprehended was possible. The present sheriffs substitute, if the Bill passed into law, would occupy the same rank, be under the same rules, be subject to dismissal only in the same manner, and have the same precedence beyond their own Courts as any person who might be appointed after the passing of the Bill. He should be very sorry if it were otherwise. With regard to the precedent referred to, there were in that case some more or less substantial benefits which it was then necessary to secure; but in the present case there were no practical or other distinctions between the two classes of judges. He would ask his hon. Friend not to press the Amendment.
§ MR. LEITHsaid, that in consequence of the explanation given by the Lord Advocate, he did not see that he ought to persevere, as they had heard from the Lord Advocate what was tantamount to the introduction of the words which he had moved. He therefore begged leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ MR. J. W. BARCLAYcalled the attention of the Lord Advocate to what took place on a similar question in regard to the Education Act. The Lord Advocate of that day made an explanation which was assumed to be equal to a provision in a clause, just as the hon. Member for Aberdeen (Mr. Leith) had assumed the Lord Advocate's explanation to be equal to his Amendment; but when during this Session he (Mr. Barclay) asked the Lord Advocate a Question on the same point, the Lord Advocate declined to make any statement or explanation on what had been said by his predecessor in office. But he presumed this was not a question of particular consequence.
§ MR. MACDONALDasked if a sheriff substitute for the time being, acting in the absence of the sheriff substitute, was also to be appointed by the Crown?
THE LORD ADVOCATEsaid, it was proposed to leave the appointment of unsalaried sheriff substitutes on the same footing as at present, as there were many cases in which such an appointment was necessary, and in which it would be quite impracticable for the appointment to be made by the Crown.
§ MR. M'LARENmoved, in page 1, line 14, at end of clause, to add—
Provided, That it shall not be lawful to appoint any advocate or any member of any other branch of the legal profession who is of less than five years' standing in his profession.The present law fixed three years, but the officers now likely to be appointed were of more responsible rank, and he thought it would be wrong to appoint very young men.
THE LORD ADVOCATEsaid, he thoroughly concurred in the propriety of this Amendment; but in looking into the Statute Book he found it would be necessary to repeal a provision of an Act of Geo, IV. To give effect to what the hon. Member desired, he would bring up a Proviso at a later stage of the Bill.
§ MR. M'LARENsaid, he was satisfied with this undertaking, and would withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ GENERAL SIR GEORGE BALFOURsaid, he wished to make a few remarks on the powers now entrusted to Government of not only appointing members of the Legal Profession to fill offices in the Sheriff Courts, but also to pay those officers by salaries not voted by Parliament, but by salaries out of the Consolidated Fund which was not subject to the annual Vote. And as that power was given in a previous Session in another Act, in order to put himself right he would conclude with an Amendment if he thought it necessary. He reminded the Committee that Parliament would now have no power to raise any objection to these appointments, and consequently could not raise any objection even on the Vote for funds to pay the parties. He, therefore, submitted to the Home Secretary that it would be a wise and constitutional thing if he would advise the Lord Advocate to bring up a clause by which that constitutional objection would be obviated, so that Parliament could have 349 some control either over the number of these appointments or of their cost.
THE LORD ADVOCATEsaid, he might perhaps be permitted to call the attention of the hon. and gallant Member to this fact—that the Sheriffs Court Bill of 1870 was really designed and was only calculated to enable the Home Secretary to reduce the number of sheriff substitutes, except in the case of a very populous city like Glasgow, where they might be required. The Secretary of State had no power to increase the number of these officers; and practically, therefore, the power given to him to regulate the number was a power to decrease that number when a proper opportunity offered.
§ GENERAL SIR GEORGE BALFOURcontended that the clause in the Act of 1870 gave the Secretary of State full power to appoint any number of sheriff substitutes he pleased. It gave him, moreover, full power to appoint any number of Courts. The exercise of this power should, however, be subjected to a vote of Parliament.
§ On Question, "That the clause stand part of the Bill?"
§ GENERAL SIR GEORGE BALFOURsaid, he had abstained from putting any Amendment on the Paper because he did not desire to delay the progress of the Bill; but he hoped that on the Report the Lord Advocate would bring up a clause that would enable Parliament to control these appointments, as well as their cost. The Consolidated Fund was not subject to the vote of Parliament, and therefore all outlays chargeable to that Fund should be distinctly and specifically sanctioned by Parliament, and no additions or charges made without affording Parliament an opportunity of expressing their opinion thereon.
§ MR. RAMSAYthought that the question was one of great importance, and trusted that the Lord Advocate opposite would give it his best consideration. A vacancy had occurred in the course of last autumn in a district of the country where it did not appear to him that there was any great reason for a sheriff substitute being appointed. Within a radius of about 10 miles in the district to which he referred there were seven sheriff sub- 350 stitutes, whose joint salaries amounted to £4,074, and the total number of cases tried in their Courts was only 5,800. Now, seeing that in Glasgow anyone of the sheriff substitutes had about on an average upwards of 5,000 cases brought before him annually, there surely could not be within such a limited area as he had referred to any justification for perpetuating so many offices, and he was sorry to learn that the right hon. and learned Gentleman, after delaying some months to make the appointment, had at length consented to make it, without any endeavour being made to provide otherwise for the wants of the district. It was very costly for the country to have these gentlemen scattered throughout Scotland in such a manner. He would really appeal to the right hon. Gentleman the Home Secretary to exercise the power which was conferred upon him by the statute, and take care that unnecessary appointments should not be renewed. In the locality to which he referred, the number of these officers might be reduced without impairing the efficiency of the provision for the administration of justice.
THE LORD ADVOCATEsaid, that if the duties of the sheriffs substitute of Scotland were confined exclusively to the determination of civil causes he should agree with every word that had fallen from the hon. Gentleman opposite (Mr. Ramsay), but he must remind the Committee that in Scotland the unpaid magistrates were very few, and their jurisdiction was very limited in extent, and therefore all higher offences were taken cognizance of by the sheriff or the sheriff substitute. The latter were, in fact, not only judges in civil causes, but they were resident stipendiaries; and he ventured to say that the administration of criminal justice by these stipendiary magistrates in all cases had given great satisfaction. Wherever they had numerous centres of population, as in the district to which his hon. Friend had referred—namely, that region which was divided to the North and South by the Firth of Forth —when they found a numerous and thriving population, collected in a great number of separate towns and villages, some inland others seaport, it was impossible to estimate the requisite number of sheriffs substitute, simply by taking the sum total of the population, as if they all 351 lived in one city. He quite admitted that a much smaller staff would dispose of the whole civil business of that region; but there were many maritime places where it was essential to have a magistrate resident, if not on the spot, at least in the immediate vicinity. Although it was very easy to move a Civil Court from one place to another, it was a very different thing when they required on the spot a magistrate prepared at once to issue warrants upon proper cause shown, and to investigate crime. No doubt the salary assigned to these places was small, and for this reason—that the class of cases to be tried in the Civil Court were of a nature that did not require eminent legal attainments. But, on the other hand, the class of criminal business, and the amount of time required for the discharge of that business, were very considerable, and he thought it was fairly though not over-remunerated by the salary at present provided.
§ MR. M'LARENwished to make a suggestion to the Home Secretary. The only objection of any weight which he had ever heard made against giving to the Government the appointment of these Judges was that they might become political appointments. At present the sheriff substitutes were of all kinds of political opinion; but if the Government were to appoint these men for the future because of the political opinions which they entertained, and seeing that they were to be both criminal and civil Judges, he thought it would be a very great evil. If the Home Secretary would express his opinion that such should not be the rule of his Government, it was very likely that other Governments would follow the example. It should be the duty of the Government to select the best man, totally irrespective of his political opinions.
§ MR. RAMSAYobserved that the right hon. and learned Gentleman the Lord Advocate took exception to his statement of the facts on the ground that the sheriffs substitute were not only employed in civil causes, but had also the criminal jurisdiction. The right hon. and learned Gentleman either was not aware of the fact, or had ignored it, that the number of cases which he gave as coming before these seven sheriffs substitute was the total number of cases of all kinds, including the cri- 352 minal, and taking that into account, his remarks were fully justified. At-though the right hon. and learned Gentleman was better able to judge of the qualifications necessary for the office of sheriff, he (Mr. Ramsay) would suggest that the higher the judicial attainments of the gentlemen appointed to that office were, the better satisfied the people of Scotland would be. He thought that if economy could be secured, and at the same time men of higher attainments, it was desirable that they should endeavour to attain that end; and he hoped that the right hon. Gentleman the Home Secretary who had the power of reducing the number of these Judges would take an early opportunity of carrying out these views.
§ GENERAL SIR GEORGE BALFOURasked the Home Secretary if he had no avowal to make in regard to what had been said by the hon. Member for Edinburgh (Mr. M'Laren)?
MR. ASSHETON CROSSI hope, as regards the appointments I shall have to make under this or any other measure, that the best men will always be appointed.
§ Clause agreed to.
§ Clause 4 (Tenure of office of salaried sheriffs substitute).
§ SIR EDWARD COLEBROOKEmoved, in page 1, line 15, after "sheriff substitute" to insert "or procurator fiscal," the object of the Amendment being to provide that the procurator fiscal should only be removable from office by the Secretary of State. He wished this Amendment to be considered with the Amendment of which he had given Notice to omit Clause 5. He was quite willing to accept any assurance that the Secretary of State or the Lord Advocate might give as to his desire to make the best appointment in his power; but any such declaration would be binding only upon their own consciences, and not upon the consciences of their successors. He had no objection to leave the appointment of sheriffs substitute to the Government; but he held that the case of procurators fiscal was different from that of the sheriffs substitute. The Government could have no knowledge in regard to these local appointments in distant parts of the country, and they would be amenable to local influence. The learned 353 Lord Advocate had pointed to the anomalous position of the sheriff as chief executive officer of the county having the power to dismiss the procurator fiscal. He quite admitted that the point which the right hon. and learned Gentleman had raised was well worthy of consideration; but the difficulty which he had raised might be easily met by accepting the Amendment which he proposed, that the procurator fiscal should hold his appointment from the sheriff, and only be removable by the Secretary of State. He thought that there should be no alteration in the state of the law, by which the Sheriff's Court not only had great judicial duties, but high executive functions to perform. He thought that Scotland had derived the greatest advantage from the existence of these county functionaries. It very rarely happened that the sheriff directed a prosecution and sat as Judge in the case; and, if it were otherwise, he confessed that the evil would be so great as to justify a change in the mode of appointing the procurator fiscal. But the question might be considered quite independently of its connection with the judicial and executive functions of the sheriff, and he contended that the present system had worked well. The sheriffs had invariably made excellent appointments, and he saw no reason why there should be any change in this respect. There was considerable danger that these might become essentially political appointments, and when they were giving to the Government considerable patronage in the case of the sheriffs, he thought the Committee should hesitate before it made over to them these numerous appointments. This was no new question. Anybody who had attended to the subject knew that in England this had been one of the difficulties connected with a change of the law. The question of giving the Government such large patronage had rather startled people, and led to various devices and suggestions being introduced into the various Bills brought forward to meet the difficulty. A Committee which sat for the purpose of considering the mode of appointment and other matters with reference to a public prosecutor, came to the conclusion to confine the power of the Crown to some limited area connected with the neighbourhood of London, and that in regard to the rest of the country, the 354 occupants of these offices should be appointed by local functionaries.
§ MR. MONTGOMERIE, as one who had had some experience in conducting public prosecutions in Scotland, remarked that the present system had worked uncommonly well up to the present time, and he saw, therefore, no great reason for altering it. The sheriff had the best means of knowing the qualifications of the persons from whom the procurators fiscal were usually selected. He should be glad if the Government would give a favourable consideration to the Amendment of the hon. Baronet.
DR. CAMERONsaid, it was important that the appointment of public prosecutors should not become a political appointment, and that the persons who held them should not be too much under the hands of the Government. In Scotland there had of late years been no political excitement; but occasionally in the annals of Scotland political offences had been committed, and prosecutions had taken place, and in such cases as those it would be highly undesirable that the public prosecutors, who were entrusted with very large powers, should be entirely under the hands of the Government for the time being. He thought there was a great deal of force in what the hon. Baronet the Member for North Lanarkshire (Sir Edward Cole-brooke) had stated.
§ MR. MACDONALDthought the Amendment of the hon. Baronet was a fair one.
§ MR. J. W. BARCLAYcould not see any difference between the position of sheriff substitutes and procurators fiscal which would justify the appointment of the one being vested in a Minister of the Crown directly responsible to Parliament, while the other was left in the hands of the sheriff, who might be too apt to regard it as private patronage. No doubt the sheriffs had hitherto done reasonably well, or quite as well as could be expected, but cases had been brought to his knowledge in which relationship had been the guiding motive in making the appointments. A great safeguard in respect to these appointments was that the Minister of the Crown should be responsible for them. The Minister was responsible to Parliament, whereas the sheriffs were responsible to no one. Political considerations might, in the case of the Minister of the Crown, 355 influence the appointments; but the sheriffs themselves were not free from those influences. He therefore thought that the appointment should he made, as the Bill proposed, by the Minister of the Crown, and hoped the Lord Advocate would stand by that proposal.
§ GENERAL SIR GEORGE BALFOURsaid, the appointment should be as free as possible from political bias. He thought the sheriff substitute as well as the procurator fiscal should be irremovable except by the act of a Minister of State; but he thought they should retain the provision of the Act 1 & 2 Vict. c. 119, s. 187, by which the sheriff substitute could not be removed from his office without the consent of the Lord President and Lord Justice Clerk. By the drafting of the present Bill that safeguard against unfair or prejudiced and insufficient inquiry was changed, however, and the present Bill only required a Report from these two officers of State without any expression of assent to enable the Secretary of State to remove a sheriff substitute. He thought the change was unnecessary and open to grave objection.
THE CHAIRMANcalled the hon. and gallant General's attention to the fact that the Committee was not considering the question to which he referred.
§ MR. LEITHthought it would be an improvement to the clause if the words "procurator fiscal" were included, so that he should be removed in the same manner as the sheriff substitute.
§ Amendment agreed to.
§ GENERAL SIR GEORGE BALFOURsaid, he desired to state—
§ GENERAL SIR GEORGE BALFOURrepeated his objection to the clause, which was drafted in a very different spirit from the clause of the 1 & 2 Vict. c. 119, and moved that the Report of the Lord President of the Court of Session and the Lord Justice of Scotland as to their assent being given for the removal of a sheriff substitute should be expressed in writing, and given to the Secretary of State before the removal took place. This was a just and proper protection to public servants against the exercise of arbitrary or hasty decisions on the part of a Secretary of State.
THE LORD ADVOCATEsaid, he could not assent to the Amendment, for though it might be very proper to require the consent of the Lord President and the Lord Justice Clerk to the action of the sheriff, who was an immeasurably inferior officer of the law, yet he thought that in the case of the Home Secretary, who was directly responsible to the House, it would be hardly fair to fetter his action by giving them the power of veto. It was quite right that the Home Secretary should have a Report from those two chief Judges as to what influenced them in their action.
§ GENERAL SIR GEORGE BALFOURsaid, that as the Government were opposed to his Amendment, he would not press it.
§ Amendment, by leave, withdrawn.
§ MR. LEITH, in moving in page 1, line 21, after " the time being," to add "that in their opinion such persons ought to be removed for inability or misbehaviour," said, the clause was for the purpose of directing in what manner the sheriff substitute should be removed, and he thought the mode proposed was unexceptionable. It proposed that it should be by the Lord President of the Court of Session, and the Lord Justice Clerk for the time being. But there was something omitted—an essential part of the clause. The words which he proposed to add were the same as those which appeared in 9 & 10 Vict. c. 5, s. 18, which gave power to the Lord Chancellor to remove County Court Judges for "inability or misbehaviour." He might mention that it would be really giving greater latitude with regard to the removal of the sheriff substitute than that required in the case of a sheriff clerk, who held his tenure of office aut vitam ad culpam.
THE LORD ADVOCATEsaid, he should not object to the Amendment in a somewhat different form. He could not accept anything to make the action of the Secretary of State depend upon the opinion of the Lord President and the Lord Justice Clerk; that would leave with them the determination of the question, leaving the Home Secretary to act not upon the facts stated in the Report, but the opinion it expressed. If the hon. Member would, in line 28, after the words, " one of Her Majesty's principal Secretaries of State," add " for inability or misbe- 357 haviour upon report," he would not object to it.
§ Amendment, as amended, agreed to.
§ Clause, as amended, agreed to.
§ Clause 5 (Appointment of salaried procurators fiscal vested in Secretary of State).
THE LORD ADVOCATEsaid, he proposed to accept the Amendment of the hon. Member for North Lanarkshire (Sir Edward Colebrooke) for the omission of the clause. He thought Clause 4, as amended, would be sufficient to meet the object they had in view.
§ MR. J. W. BARCLAYexpressed disappointment at the Lord Advocate having given way on the clause. It had been stated that the sheriff principal and the procurator fiscal should work in harmony together; but, if the proposed transfer were made, the sheriff would be frequently acting with the procurator fiscal whom he had himself appointed. He did not wish to divide the Committee upon the question; but he must enter his protest against any difference being made between the two appointments. The great safeguard against appointments being made improperly was that the officer of the Crown with whom the appointment rested should be responsible to that House. It was important that the clause should be allowed to remain, or the appointments would be as much guided by political influence and private considerations as ever, because the sheriffs would consider that this was a piece of patronage left to them, for the exercise of which they were not to be responsible to anyone. They would think that the matter was left absolutely to their discretion; and therefore there would be greater risk of abuse than there would be if the appointment rested with the Secretary of State.
§ MR. LEITHagreed with the hon. Member for Forfarshire that the striking out of the clause would be a retrograde step, and a violation of the well-known principle, admitted by the Home Secretary, that Judges, magistrates, and Ministerial officers, who were paid by the Crown, should be appointed by the Crown. It seemed to be an anomaly which they were getting rid of, that the 358 sheriffs substitute should be appointed by the Judge; and now they were going to continue the anomaly with regard to another officer, who, it was equally important, should be independent of the Judge. He therefore objected to the clause being withdrawn.
MR. ASSHETON CROSSsaid, this matter was considerably discussed in respect to the appointment of a public prosecutor for England, which was very much of the same character. In England the question had not yet been settled whether a public prosecutor should be appointed by the Crown; and he therefore proposed to strike out the clause, and in that way postpone the matter until he had considered the larger question with regard to England. He thought it most likely that the appointment would rest with the Crown.
§ MR. RAMSAYcould not agree with the hon. Member for North Lanarkshire (Sir Edward Colebrooke) that the clause should be struck out. They were all of one mind as to the expediency of the sheriffs substitute being appointed by the Crown, and yet they were going in the same Act to continue to the sheriff the appointment of the procurator fiscal. It seemed to him that the appointment of procurator fiscal was nearly as important as that of the Judge himself. It was of great importance that Parliament should do away with the office of sheriff depute altogether.
§ MR. ERNEST NOELthought that if the clause was struck out they might reasonably expect that the question would be postponed for a long time. He thought it would be a pity that the matter should remain so long unsettled.
MR. ASSHETON CROSSsaid, a Bill for the appointment of a public prosecutor for England was actually prepared, and but for pressure of Business would have been introduced this year. He trusted he was not too sanguine in hoping that it might be carried next year.
§ GENERAL SIR GEORGE BALFOURadvocated the retention of the clause.
§ COLONEL MUREthought that, on the whole, these persons should be appointed by the Home Secretary. He hoped the Lord Advocate would re-consider his decision, as this was one of the most important clauses of the Bill. The appointment proposed by the clause would 359 have been a good precedent for England when the question of an English public prosecutor came before them, and it was a bad argument to apply a bad principle to Scotland on the ground that the matter was being considered in regard to England. If inquiries were instituted in Scotland, it would be found to he the general feeling that the arrangement proposed in the clause was a good one— namely, that these officers should be appointed by the independent authority of the Home Secretary. He earnestly hoped the Committee would divide on the Amendment.
§ MR. ANDERSONsaid, the hon. and gallant Member for Renfrewshire had stated that if this clause were struck out it would be introducing a new precedent in Scotland. [Colonel MURE: I said nothing of the kind.] The hon. Member's remarks appeared to bear that construction, but it was immaterial. He (Mr. Anderson) was rather in favour of giving the appointment of procurator fiscal to the Crown; but he did not think it a very important matter whether at present it was left in the hands either of sheriffs or the Crown. The strongest reason he saw for transferring was that they hoped some day to get rid of the double sheriffship.
§ MR. J. W. BARCLAYasked whether it was competent to move an Amendment to the clause?
THE CHAIRMANsaid, that it was not, inasmuch as the Question before the Committee was that the clause stand part of the Bill.
§ MR. J. W. BARCLAYwished to call the attention of the Committee to the fact that the office of procurator fiscal was much more important than that of sheriff substitute. The former official acted in secret, and made his examination in regard to offences privately, and a great deal of responsibility therefore rested upon him. The sheriff substitute sat in public, and his acts and doings could be challenged and commented upon by the public. He trusted the Home Secretary would retain the clause, and not submit to its being struck out to the detriment of the Bill.
THE LORD ADVOCATEsaid, he proposed to bring up on the Report a clause making some provision for the appointment of deputies, assuming the patronage of the office of fiscal to be left with the sheriff.
§ Question put, "That the Clause stand part of the Bill."
§ The Committee divided:—Ayes 30; Noes 67: Majority 37.—(Div. List, No. 291.)
§ Clause struck out.
§ Clause 6 (Procurator fiscal may appoint depute with consent of Lord Advocate).
THE LORD ADVOCATEPerhaps I ought to explain to the House that the result of carrying the clause now after the disposal of Clause 5 will be this—that neither the Home Secretary, nor the sheriff, nor anybody will be entitled to appoint the procurator fiscal.
§ MR. J. W. BARCLAYI think the position of the Government is not very intelligible. I think the Government ought to make up their minds, and in order that they may do so I beg to move that Progress be reported.
§ GENERAL SIR GEORGE BALFOURhoped the hon. Gentleman would do nothing of the kind. They all wanted to get business done. He might point out that there was a considerable staff of clerks employed in the office of the procurator fiscal, and he hoped the Secretary of State would take care that these men were not only properly remunerated but properly selected, after full inquiries as to their characters and fitness. The only way to ensure efficiency amongst a large class employed in the duties of the Scotch Law Courts was to constitute them public servants of the Civil Establishment, with all the liablities common to this class of public servants.
§ MR. RAMSAYtrusted the Motion to report Progress would be withdrawn.
§ MR. M'LARENalso joined in the appeal. There was another Bill yet to come on, and it was necessary that they should all condense their observations.
§ MR. M'LAGANtrusted that Scotch Members would not become obstructives.
§ MR. J. W. BARCLAYthought the Government ought to make up their minds, and should not have changed front at the last moment. At the same time he did not wish to go against the feeling of the Committee, and would beg leave to withdraw his Motion.
§ Motion, by leave, withdrawn,
§ Clause struck out.
361§ Clause 7 (Sheriffs jurisdiction extended to certain questions of heritable right or title, &c.)
DR. CAMERONmoved, in page 2, line 18, to leave out from "including," to the end of the sub-section, and insert "relating to a question of heritable right or title." The Amendment, he said, was one of the most important on the Paper. Certainly the most important question in connection with this Bill was the question of restriction of the jurisdiction of the sheriffs in respect of heritable property. The Royal Commission, as had been stated more than once, reported that if the jurisdiction were abolished for property, it should be so without respect to value. The opinion of the Legal Profession on that point was, he believed, unanimous. He held in his hand a Report made last year by the Faculty of Procurators in Glasgow. The Sheriff Courts in Glasgow were by far the most important in Scotland, and a large proportion of the work done in those Courts in Scotland was done in Glasgow. The Faculty of Procurators desired that the Courts in which they practise should be as effective as possible. The limit proposed in the Bill last year was considerably higher than that in the Bill this year. It was last year £2,000, as against £500 this year. This, so far as Lanarkshire and Glasgow were concerned, would render the Court practically useless. The Faculty of Procurators in Dundee held that the jurisdiction proposed was illusory and quite insufficient. As the Sheriff Courts possessed unlimited jurisdiction on personal rights, it was anomalous that they should be restricted in relation to heritable rights and title. The Amendment he had placed on the Paper would carry out what was proposed by the Faculty of Procurators in Glasgow, in a Petition which he presented the other day to the House. The matter was fully discussed on going into Committee, and he should not waste time further upon it.
§ Amendment proposed, in page 2, line 18, to leave out from the word " actions," to the word "year," in line 23, inclusive.—(Dr. Cameron.)
§ MR. J. W. BARCLAYsupported the Amendment, and trusted the Lord Advo- 362 cate would accept it. If a pursuer came to the Sheriff Court he did it of his own free will, and if the defender was not satisfied with the Sheriff Court he could remove the case to another. It was clear, therefore, that it was not in the interests of the public that this limitation was proposed. He hoped the Home Secretary would relieve the Lord Advocate of a difficulty and grant this Amendment. The step would be highly acceptable throughout Scotland, and would open the way to further law reform.
§ MR. MONTGOMERIEsaid, the hon. Member for Forfarshire (Mr. J. W. Barclay) overlooked the fact that the sheriffs in Glasgow had several thousand cases before them, and that by this Amendment an amount of work might be thrown upon them from all parts of the country which they would be absolutely unable to undertake. He ventured to say that all the practitioners in the Supreme Court were opposed to this Amendment. He knew he should be met with the answer that it was in their own interest. It was too much the practice to say that, whenever a lawyer got up on law reform, he was entirely actuated by his own interest. One witness whom he could cite, however, was not actuated by interested motives, and that was the Lord Justice General of Scotland, a man of large experience, and one whose opinion would have weight in that House. The Lord Justice General took occasion last year to protest against this alteration, and on that opinion he relied.
§ MR. RAMSAYsaid, he hoped the Home Secretary would agree to the Amendment, which the Lord Advocate might be unable to do, owing to professional reasons. The highest legal authorities were in its favour, including Lord Colonsay, than whom no man lived whose opinion on all legal questions was more highly esteemed by the people of Scotland. If the Amendment was adopted he was sure that they would take a great step in the direction of law reform in Scotland.
§ MR. LEITHsupported the Amendment. Reason and principle were in its favour, and it would save delay and expense to the suitor. He knew that Petitions had been received objecting in the strongest terms to the proposed Amendment; but in that respect Edin- 363 burgh was peculiar compared to every other town in Scotland. The Law Societies had petitioned in favour of the Bill; but it was well known that none of the conveyancing was sent to Edinburgh. It was admitted that the Judges were sufficient for the purpose of entertaining such questions. They had a Bar which was sufficiently qualified to fulfil all the duties thrown upon them. The Bill proposed a limit in regard to land which did not exist in regard to personal matters. Although the same Judges and the same Bar were at liberty to deal with sums of hundreds of thousands of pounds of personal property, yet with respect to land they were only to have jurisdiction to the extent of the paltry sum of £25.
§ COLONEL MUREthought it right to point out to the Home Secretary that the arguments in favour of the clause as it stood were very feeble, and had been stated over and over again. Every large town in Scotland was in favour of the Amendment to the clause with the exception of Edinburgh, which was against it. As had already been stated, the clause would be advantageous by giving the pursuer the right of moving that his case be tried where he pleased; but what he wanted to be put before the Committee was the case of a pursuer who was a poor man, who could not afford to enter into litigation. Did it not seem an extraordinarily anomalous state of things that they should be debarred from bringing their cases before their excellent magistrates, sitting in a neighbouring town, who in other cases might decide cases to the amount of millions?
§ MR. HERMONhoped the Government would be able to see their way to accept this Amendment. As had been pointed out by the hon. Member for Forfar (Mr. J. W. Barclay), if a person wished to take his case before the sheriff substitute, he could do so, and if he did not desire, he could then take it to one of the Superior Courts. He thought the effect of the Amendment would be to effect the saving of considerable expense, and therefore hoped the Government would consent to adopt it.
§ MR. M'LARENthought the hon. Member who had last spoken would do well to look at home first. If it was so good a thing for the Scotch people that questions of real property should be referred to County Court Judges, why 364 should it not be good for England? In England the barrister prepared the title-deeds and all other important deeds; but in Scotland they did nothing of the kind, all those deeds being prepared by the solicitors. English barristers who were County Court Judges must therefore be well versed in the law of real property, and also be men of considerable standing and position for they received salaries of £1,500 a-year; whilst most of the Scotch County Court Judges only received £600 to £800 a-year. The hon. Member (Mr. Hermon) seemed to think it would be a good thing in Scotland to give questions of real estates to barristers, who had very little knowledge of feudal law, and who had had no conveyancing practice, but that in England barristers of greater knowledge and experience, and of higher position, should not be trusted. He thought he had never heard a more illogical argument. It was quite true that the legal men of Edinburgh, from the Chief Judge downward, had petitioned against any such Amendment in the Bill, and it was quite true that they had some interest in the business being carried on in the Court of Session; but was it not equally true that the solicitors in Aberdeen and Glasgow and all the towns in Scotland had an interest in keeping the business in their several towns? It was those gentlemen who were agitating, and not the landed proprietors of Aberdeen-shire or Lanarkshire or any other shire. It was not they who were asking the change, but the local lawyers. It seemed to him that the proposal did not hold water in any way whatever; and he thought that if Government were to give way to this Amendment, they would inflict a very great evil on Scotland. He had no doubt that many of those sheriffs substitute were young men who had never in their lives prepared a single conveyance of real property, or even advised on one.
§ MR. GOLDNEYwas glad to hear from the hon. Member for Edinburgh (Mr. M'Laren) what he had never heard admitted before—that there were men in England who were wiser than Scotchmen. He thought if the Amendment were adopted it would jeopardize very much the rights of Scottish property, and would be a very dangerous precedent.
§ MR. ANDERSONhoped the hon. Member for Preston (Mr. Hermon) 365 would not consider that Scotch Members were jealous of English Members taking part in their debates. On the contrary, they were very glad to hear them express their views on Scotch questions. It was impossible to discuss the 7th clause of this Bill without keeping the 8th clause in view. By that clause any suitor could at once take away an action to one of the Superior Courts. Why should it matter any more about land than personal property? Nobody proposed to give a final jurisdiction to the sheriff. Even without the 8th clause there would be the fullest power of appeal, as at present, in all personal matters of property; but with the 8th clause there could be really no ground for objecting to the Amendment which had been proposed. This was the most important clause in the Bill. The Scotch Members felt so strongly upon it, that if the Bill had been left in the position in which it was drawn it would have been obstructed. They would not have allowed the Bill to go on at all; and it was only on the statement of the right hon. Gentleman the Home Secretary, that he would be willing to extend the jurisdiction, that they were willing to allow the Bill to go on at all. But, although they agreed to an extension of the limit, they did not renounce their opinion that no limit at all would be infinitely better. He thought if the right hon. Gentleman intended to retain Clause 8, he would do well to extend the limit beyond what was proposed in Clause 7. If, on the other hand, he intended to abide by his Bill, and what was in Clause 7, he might abandon Clause 8 altogether. He hoped the Government would see the necessity of extending the limit which was proposed in the Bill; but he thought it would be much better if there was no limit at all.
THE LORD ADVOCATEthought the Committee might fairly consider the question before it without imputing motives of gain, or personal motives of any description, to members of an honourable profession, who, he firmly believed, were exceedingly desirous of promoting reforms in the law. He could not accept the principle which this Amendment laid down, that no limit should be fixed to the jurisdiction of the Sheriffs Court in cases affecting heritable property. Of course, he could not hope to convince the hon. Member for 366 Aberdeen (Mr. Leith) and other hon. Members, whose views were very strong upon the subject; but he thought in the course of the argument the distinction between judgments upon questions of heritable right and judgments upon movable property had been plainly ignored. Nothing could show more clearly that the difference was ignored than the references which were made to arbitration. In many cases the decision of the Law Court and the decision of an arbitrator were upon a par, and where the judgment of the one was equivalent to the judgment of the other then the jurisdiction should be the same. But that principle could not be carried further, because there were cases where the judgment of a Court had a different effect altogether from the award of an arbitrator, where the judgment of the Court had a perpetual effect, and changed and moulded the system of landed rights. Therefore, in questions of land rights the Court and the arbitrator were not upon a par. He quite conceded that they might refer to arbitration questions of heritable right and title; but if a person did so, and if he then came to sell his property, the judgment of the arbitrator would not be worth the paper on which it was written as determining the character of the title to the estate. It was easy to keep in view that distinction; it had been pointed out again and again, and he hoped it would be borne in mind and attended to in the discussion, because the difference was a very essential one. Questions of title to land must be thoroughly sifted and judicially settled, and speed was not so necessary as soundness. Questions of that kind determined the fortunes of families, while, on the other hand, questions of money might be settled at once. There were Sheriff Courts which were competent to deal with cases of real property; but he rather doubted the competency of all of them. It was said that Clause 8 stultified the measure, but he did not assent to that assertion. The argument upon that point was very much founded upon the idea that going to a Sheriff Court was very much like going to an arbitration. He said, if they wanted to go to the Sheriff Court, in many cases they would get something quite as valuable affecting the title of land as if they had gone to arbitration.
§ MR. YEAMANpointed out that a great many Petitions had been received 367 from Scotland in favour of the Amendment, many being from owners of heritages who were interested in the matter. He was not surprised that the hon. Member for Edinburgh (Mr. M'Laren) opposed it, as he might not be returned again for Edinburgh if he did not do so.
§ MR. M'LARENI beg to say that I never was indebted to the lawyers of Edinburgh for anything; they always opposed me. [Laughter.]
§ MR. YEAMANsaid, there was a strong feeling in Edinburgh on the subject. The hon. Member for Edinburgh had stated that the sheriff substitutes received £600 or £800 a-year; but he knew that many sheriff substitutes in Scotland received £1,500 or £2,000 a-year. He thought it was only justice to Scotland that the power of the sheriff in inquiring into questions of heritage should be largely extended beyond what was proposed in this Bill. The people —heritors, not lawyers—were anxious that this extended power should be conferred. He should support the Amendment, and he trusted the Lord Advocate and the Home Secretary would make a much larger extension than the Bill proposed.
§ MR. TREVELYANobserved, with reference to the attendance, that this was one of those cases in which it was to be regretted that a good many Members would take part in the division who had not heard the debate. They came to the House to be convinced; and he ventured to say that no Gentleman who kept his mind open to argument and had heard the speeches on the question could doubt what part he ought to take on the subject. He had listened with much interest to the speech of the hon. Member for Preston (Mr. Hermon), and also to that of the hon. Member for Edinburgh (Mr. M'Laren), who advised him to set his own house in order before he interfered to set the Scotch house to rights. But it might be answered that Englishmen went to Scotland not only to set the Scotch house to rights, but to take example from Scotland; and he hoped that as England must borrow from Scotland the institution of compulsory education, and as he hoped that some day it would borrow the institution of a public prosecutor, so he hoped the day would come when England would borrow from Scotland the im- 368 portant reform of enabling County Court Judges to deal with questions of heritable property. He had also heard with interest the speech of his hon. and learned Friend the Member for Chippenham (Mr. Goldney), whose arguments had been spoken to with much gravity by the Lord Advocate, and if seriousness of tone and authority of gesture could have overcome his reason, it would have been overcome. But he should venture to analyze one or two of the Lord Advocate's arguments. They were told that the precedents of a judgment relating to matters of personal property were not so important as those of one relating to heritable property. He ventured to say that transactions on the Stock Exchange and on the coal and iron markets of our great capitals were quite as important, and were every year becoming more important than transactions on landed property. There was one single city in Scotland in which the personal property was, he ventured to say, worth the fee-simple of the land in any three Scotch counties. They lived in a country in which commerce increased by leaps and bounds, while the landed interests were not increasing at that rate, if at all. The right hon. and learned Gentleman talked about the fortunes of a family being at stake on a judgment relating to heritable property. Did he seriously believe that if a man knew that the prosperity of his family and the fortunes of his children were dependent on a judgment as to personal property, he would not take an appeal to a higher Court; and would it not be the same with regard to heritable property in a Sheriff Court? He had listened carefully to the authorities adduced on either side, to the extremely important recommendation of the Report of a Royal Commission. What was the authority on the other side? That of the practitioners before the Supreme Court of Appeal. He would just as soon accept the public opinion of all the turnpike keepers of the country in regard to the Roads and Bridges Bill. What they had not heard, except from the mouths of non-legal Members, was the opinion of the people of Scotland. It might be said that the common people had not much to do with questions of real property; but that was not at all the case. The common people, he was glad to say, were now rising out of the position they 369 had been, in so long. The most hopeful of the many signs among them was that they were laying up their money by means of building societies, and gaining feelings of ownership and responsibility and independence by becoming owners of small portions of land. It might be said as to building societies that such a portion of land was generally confined to a single house; but the operations of the building societies sometimes extended to large transactions; and it was a shame that when a case arose of sufficient magnitude a society composed of men who earned their money by work, and saved it with pains, should be sent to Edinburgh instead of to a Sheriff Court. He had now, he thought, answered every reason which had been brought against the proposal; and he could only say that having regard to the authority urged against it, that if they did not pass the Amendment, against which not one valid reason had been stated, they would be paying court to what he was ashamed, in the presence of the hon. Member for Stafford (Mr. Macdonald), to call one of the very worst forms of trade unionism.
MR. ASSHETON CROSSsaid, this was not a poor man's question at all; the poor man was provided for. The Bill gave sheriffs jurisdiction up to £1,000, and when a man was worth more than £1,000 he could hardly be called a poor man. [Mr. TREVELYAN: I referred to building societies.] Building societies might have property exceeding £1,000, but they did not go to law about the whole of their property at once. Nor was he aware that building societies had made representations in the direction of the proposed Amendment. The only question was, how far should they go? The Bill, as originally framed, went to the extent of £500, and he said that while he was not willing to admit an unlimited amount, he was willing to double the amount in the Bill, which he thought was a fair offer to make to secure the rights of the poor. With regard to country practitioners, he thought that in the long run they would not lose but gain.
§ MR. MACDONALDsaid, the limitation in the Bill was nothing else but carrying out in that House a distinct form of legal trades-unionism, reserving certain rights to the advocates and the Courts of the city of Edinburgh that 370 were not extended to the entire country. The Home Secretary had not answered the contention of the hon. Member for Glasgow (Dr. Cameron), who, he trusted, would go to a division.
§ MR. RAMSAYregretted the time occupied in the discussion. He thought the Lord Advocate had trailed a red herring to divert them. But no reason had been shown why the suitors should not have the right on appeal to choose the Court in which they had the greatest confidence. He did not see how any complication of the law could arise. The system of conveyance in Scotland was so simple that any honest man who could read could tell whether his title was clear. He had himself the original charter granted by the Crown for his lands some 250 years before, when they were taken by force of arms from the then owner, and a ship had been sent from England to destroy the old castle, the ruins of which were there to that day. That charter had ceased to be of any use; 40 years possession validated their titles. Anything more simple could not be attained to. He hoped that hon. Gentlemen would agree to the extension of jurisdiction which they asked for the Sheriff Court.
§ MR. MORGAN LLOYDsaid, that the Sheriff Courts already possessed an extensive jurisdiction, which would be considerably extended by the Bill, but their constitution would, by the proposed Amendment, be entirely changed. There was a distinction between the jurisdiction as regarded real and as regarded personal property. The decisions of the sheriff on questions of title to land would never be acquiesced in, and would be appealed against, as of course, since an appeal would be necessary to make the title marketable. The change now proposed would not, therefore, benefit the suitor, but would simply cause delay and lead to additional expense. He should support the Government, because he thought that in principle they were right.
§ MR. ERNEST NOELappealed to the Government to give something that the Scotch people really wanted, and not merely to attend to the views and wishes of those who were interested in the chief city of the country.
§
Question put,
That the words' (including actions of declarator, but excluding actions of adjudication,
371
save in so far as now competent, and excluding actions of reduction,) relating to a question of heritable right or title,' stand part of the Clause.
§ The Committee divided:—Ayes 79; Noes 39: Majority 40.—(Div. List, No. 292.)
§ MR. ANDERSONmoved to substitute £40 for £20, the object of the Amendment being to provide that the jurisdiction of the sheriff should extend to questions of heritable right or title where the value of the subject in dispute did not exceed £40 per annum.
§ Amendment proposed, in page 2, line 22, to leave out the word "twenty," in order to insert the word "forty."— (Mr. Anderson.)
§ MR. ERNEST NOELmoved to amend the proposed Amendment by the substitution of £100 for £40. This matter could not be argued as one of principle, as the Government had admitted that there were cases of heritable right which might be taken into the Sheriff Court. If they took £40, why not £100? In Scotland the opinion was that what the Government were now conceding would be a very small boon. There was a strong feeling among Scotch Members in favour of the extension of the jurisdiction which he proposed.
§ Question, "That the word 'twenty' stand part of the Clause," put, and negatived.
§ Question proposed, "That the word 'forty' be there inserted."
§ Amendment proposed, to leave out the word "forty," in order to insert the words "one hundred."—(Mr. Ernest Noel.)
MR. ASSHETON CROSSsaid, that although the question was not one of principle, it was a matter of considerable detail. In the original Bill the figure was £20; but in order to meet the views of those Scotch Members who sat on the other side, he agreed to double that amount. Having done that, he must take a stand somewhere, and he thought he was bound to take it at this point.
§ MR. RAMSAYobserved, that the right hon. Gentleman had forgotten what he had led hon. Members from Scotland to expect. Last Session there 372 was a distinct understanding arrived at that the jurisdiction was to be extended during the present Session. The proposal contained in the Bill of last year was that it should be extended to cases where the value did not exceed £2,000—and could they have expected that the right hon. Gentleman, would this Session have restricted the jurisdiction below the point which he had fixed in the Bill which he had himself introduced?
MR. ASSHETON CROSSsaid, it was not usual to refer to conversations that took place outside the House; but as they had been referred to, he must say that he told everyone to whom he had spoken on the subject that he could not consent to the figure which was in the former Bill.
§ GENERAL SIR GEORGE BALFOURsaid, that he readily bore testimony to the good faith which had always been, manifested by the Home Secretary. At the same time he must avow that he fully understood and expected a much larger extension of jurisdiction in cases of heritable rights than the amount now proposed by the hon. Member for Dumfries (Mr. Noel). He urged the Government for their own sake to yield to the wishes of the Scotch Members on this point. Indeed, it was difficult to understand why any restriction need exist as to the powers of the Sheriff Courts, so long as the greatest facilities were given of appeals to higher Courts by either of the parties.
DR. CAMERONtrusted that his hon. Friend the Member for Dumfries would go to a division on his Amendment.
§ MR. KNATCHBULL-HUGESSENthought the Scotch Members were almost unanimous on the question, and that, therefore, their wish might be conceded.
§ MR. GOLDNEYremarked that the proposal of the Home Secretary was identical with that which was adopted in the English County Courts. If there were properties of a very large description to be dealt with by these Courts, their decisions would be constantly appealed against, and the Court would thus be brought into disrespect.
§ SIR EDWARD COLEBROOKEsaid, he disliked restriction, and also disliked to see Parliament laying down a rule as to the amount which should be involved at trials in certain Courts, as if it had 373 an idea of the importance of the question to be decided. The question of an unlimited amount had been decided, and he deprecated voting upon different amounts, and thought the Government should consent to fix the amount at £50.
§ MR. MARK STEWARTsaid, that as the proposal before the Committee had the support of all the Scotch Members, he thought it should be agreed to, or, at any rate, that the Government should propose a compromise.
MR. KNATCHBTTLL - HUGESSENsaid, unless the Lord Advocate could show some cause why he should not make a concession, he (Mr. Knatchbull-Hugessen) should certainly vote for the Amendment.
§ MR. HERMONsaid, the Committee was in this difficulty—that they did not know what the Scotch Members really wanted, as they had mentioned various sums.
§ MR. ANDERSONdeclared that the £40 had been put down, not because he approved of it, but because it was a compromise assented to by the Home Secretary.
SIR WILLIAM STIRLING MAXWELLsaid, the proposal of the hon. Member for Glasgow, which was assented to by the Government, was a considerable change in the law and practice of Scotland. He was perfectly aware that in many of the large towns of Scotland £40 was perhaps rather too low a sum to fix, because there was a large amount of property in the hands of individuals to whom an appeal to the Court of Session would no doubt be expensive, and which might be brought into litigation. He admitted that in the large towns the sheriffs might be perfectly able to deal with cases involving large amounts; but they had the interests of the country parts to consider as well as those of the great towns. Hon. Members were aware that there was no class of gentlemen connected with Scotland who differed more widely in their capacities than local Judges. Many of them were men of the highest attainments, who were able to grapple with the difficulties and niceties of legal questions; but, on the other hand, there were some of those gentlemen who had not had so much experience, and many people would hesitate before they went before them on matters of this kind. The Government, he thought, had acted wisely in 374 accepting an Amendment which was proposed, as they were given to understand, as a compromise, and he hoped the Committee would rest there.
§ MR. LEITHpointed out the fallacy upon which the whole of the arguments of the hon. Member were based. It was said that there were persons in Scotland to whom jurisdiction and power would be given who were not competent to deal with heritable right. This was the whole question. If such were the case no such jurisdiction should be given. He had yet to learn the distinction there was in the hon. Gentleman's mind between questions of heritable right, which would arise with regard to the smallest as well as the largest properties.
MR. ASSHETON CROSSremarked that the Bill had now been on the Table for a long time, and that it was on the 28th July that the hon. Member for Glasgow suggested his Amendment. There had been a previous suggestion to the effect that the sum should be £50, and it was not the result of compromise. A conversation took place subsequently between the Scotch Members and the Government, and it was then that the £50 was altered to £40. He thought he was right.
§ MR. ANDERSONPartly right and partly wrong. When he put down £50 it was in consequence of what the Home Secretary pledged himself to do at the end of last Session. In the case of the conversation which occurred the other day, the right hon. Gentleman had agreed to a compromise.
MR. ASSHETON CROSSwished to point out that all the Scotch Members knew that the sum had been put down at £50, and yet no one suggested anything else. He did not care whether it was £40 or £50, but it should not be more, as that would represent £1,000.
§ MR. J. W. BARCLAYcontended that the same principle should be applied in reference to the small property of the poor man as the large property of the rich. There should be some explanation why the present Lord Advocate should accept a limit of £1,000 when the last Lord Advocate insisted on a limit of £2,000. He protested against the assumption that the sheriffs in their Courts in Scotland were unfit to perform their duties.
§ MR. GREGORYcontended that the present proposal would confer a bene- 375 fit upon the poor man, as it would save him from the expense of going to the Courts to which the rich man would appeal. He thought the Government would do well to adhere to the limitation of £40.
§ MR. ERNEST NOELwished to make one more appeal to the Home Secretary. He asked the right hon. Gentleman to remember that in his own Bill last year the limitation was £2,000, and that was what they asked for now.
§ MR. M'LARENhad understood on Saturday that the hon. Member for Glasgow had agreed to proposals which would materially facilitate the progress of the Bill.
§ Question put, "That the word 'forty' be there inserted."
§ The Committee divided:—Ayes 104; Noes 62: Majority 42.—(Div. List, No. 293.)
§ Amendment (Mr. Anderson) agreed to.
§ MR. RAMSAYmoved, in page 2, after line 23, to insert—
(2.) All actions and proceedings requisite for determining and disposing of applications for the appointment of a factor, loco-tutoris, or curator-bonis, or judicial factor, for a person, the annual value of whose estate does not exceed fifty pounds.He hoped the Government would see fit to adopt this Amendment. It was intended to meet the case of persons with small means, who, being minors or insane, might require to have some one appointed to take charge of their estate. There were cases of great hardship occurring in consequence of the necessity of going to the Supreme Court. He could not conceive any reason why the Amendment should not be adopted.
§ MR. YEAMANsupported the Amendment.
THE LORD ADVOCATEasked the hon. Member not to press it. This was a matter which had recently come very specially under his notice. A great deal of re-construction would be required with a view to making the proposed clause effective or even workable.
§ Amendment, by leave, withdrawn.
§ MR. J. W. BARCLAYmoved, in page 2, line 28, sub-section 3, to leave out "division of commontry and."
§ Amendment, by leave, withdrawn.
376§ MR. ANDERSONmoved, in page 2, line 30, to leave out "twenty," and insert "forty." Line 31, after "year," insert "or one thousand pounds value."
§ Amendments agreed to.
THE LORD ADVOCATEexplained that the omission would result in very great inconvenience to foreigners.
§ Amendment, by leave, withdrawn.
§ Clause, as amended, agreed to.
§ Clause 8 (Provisions as to actions, &c. made by this Act competent in the sheriff court.)
§ MR. LEITHmoved, in page 3, line 15, after "Sheriff Court," leave out to end of sub-section (2), and insert—
It shall be competent to appeal to the Court of Session against any interlocutor disposing of any preliminary defence allowing a proof, or disposing in whole or in part of the merits of the action; and such appeal shall be taken in the same manner as appeals are taken in ordinary actions.
THE LORD ADVOCATEsaid, that the Amendment suggested really differed much less from the terms of the clause than the hon. Member imagined.
§ Amendment, by leave, withdrawn.
§ MR. LEITHmoved, in page 3, line 21, after "similar terms," to insert—
And shall give security, to be approved of by the sheriff clerk, to the amount of the value of the subject in dispute in such action, and for the cost of trial in the Court of Session.
§ MR. ANDERSONthought that there ought to be some check of that sort. It must be remembered that the clause gave complete power to take an action away from the Sheriff Court to the Court of Session without any trial at all.
THE LORD ADVOCATEsaid, that he could not accept the Amendment. It would give a great advantage to a rich man over a poor man.
§ MR. MACDONALDalso opposed the Amendment.
§ Amendment, by leave, withdrawn.
THE LORD ADVOCATEmoved, in page 3, line 42, at end of clause, to insert, as a separate sub-section— 377
(3.) The provisions of any Act of Parliament excluding appeal to the Court of Session in. respect of the value of a cause depending in the Sheriff Court shall not apply to actions brought therein under the preceding section.
§ Amendment agreed, to.
§ Clause agreed, to.
§ Clause 9 agreed to.
§ Clause 10 (Deed may be set aside by exception).
§ MR. LEITHmoved, in page 4, line 23, after "reduction thereof," to insert—
Provided always, That if any objection to a signed document of debt, now maintainable only by way of reduction, shall be maintained by way of exception, the objector shall find such caution, or make such consignation, as the sheriff or sheriff substitute may direct.
§ Amendment agreed to.
§ Clause, as amended, agreed to.
§ (Abolition of fees to sheriffs and sheriffs substitute.)
§
From and after the passing of this Act the sixth section of ' The Bankruptcy (Scotland) Amendment Act, 1860,' and so much of the fifty-first section of ' The Lands Clauses Consolidation (Scotland) Act, 1845,' as provides for the payment of remuneration to sheriffs and sheriffs substitute shall be repealed, and all payments to sheriffs and sheriffs substitute in respect of the discharge of their official duties, other than the salaries provided to them out of public moneys, and the expenses mentioned in the last-recited section, shall cease and determine: Provided always, That it shall be lawful to the Commissioners of Her Majesty's Treasury to grant, out of moneys to be provided by Parliament, such compensation as they shall think fit to any sheriff or sheriff substitute in respect of the operation of this section, regard being had to the terms of the commission under which such sheriff or sheriff substitute holds office; and to the conditions, if any, which may have been attached to any salary, or increase of salary, granted to such sheriff or sheriff substitute.
§ GENERAL SIR GEORGE BALFOURwould not oppose the clause, but he should like to see it so widened as to provide in the fullest manner for all fees being abolished in all branches of the Sheriff Courts. He trusted the remuneration in the place of fees would not be put on the Consolidated Fund, but that it would be retained in the Votes annually submitted to Parliament.
§ MR. ANDERSON, whilst approving the clause, drew the attention of the Lord Advocate to certain cases of hardship which it had been stated to him would arise under it as it stood.
THE LORD ADVOCATEsaid, in the Scotch Courts there were fees of a very objectionable character. Some years ago, in settling the salaries of the Sheriffs, it was thought desirable to make a change, and the Treasury, conditionally, made an arrangement by which the Judges in these Courts should receive salaries in lieu of all fees. It was not intended to give any compensation to Judges whose salaries had been fixed upon that principle. On the other hand, if the sheriffs were entitled to their fees it would be utterly unfair to take away those fees without making compensation to them.
§ Clause agreed to, and ordered to stand part of the Bill.
§ MR. MACDONALDmoved, in page 2, after Clause 6, to insert the following clause:—
§ (As to sheriff clerks and procurators fiscal to be appointed after the passing of this Act.)
§
Any person appointed to the office of sheriff clerk or procurator fiscal after the date of the passing of this Act shall hold no other office, and shall not, directly or indirectly, by himself or any partner or depute, be engaged in practice before the Supreme or any inferior Court, and he shall not, directly or indirectly, by himself or any partner or depute, transact any business for profit other than business devolving on him as such sheriff clerk or procurator fiscal.
§ Things were altered now from what they were formerly. They had now mines, factories, and other great industries, and other sources of wealth more than formerly, and it was a scandal that those officers, who might one day be called upon to become public prosecutors, should on another be called upon to become the agents of the men they prosecuted. He felt it his duty to say, if the clause were not agreed to, that he should divide the Committee upon it. He was sure there was no Scotchman who would not say that this was a scandal and a standing grievance; and he submitted that in no case should procurators fiscal be at liberty to engage in private practice.
§ New Clause — (Mr. Macdonald,)— brought up, and read the first time.
379§ Motion made, and Question proposed, "That the Clause be read a second time."
DR. CAMERONsupported the clause, as to the necessity for which all the legal bodies of Scotland were, he said, pretty-unanimous. He was not aware that even the legal bodies of Edinburgh had anything to say against it. The reasons given by the hon. Member for Stafford (Mr. Macdonald) were forcible and obvious.
§ MR. J. W. BARCLAYsupported the clause. They would get in Scotland plenty of persons to undertake the situation of procurator fiscal, but who did not want to apply to deputies.
THE LORD ADVOCATEsaid, that, as a rule, the remuneration hitherto allowed to these officials was not sufficient to secure the whole time and services of persons competent; and so long as that state of things continued it was right and necessary that procurators fiscal should be allowed to practice. When it could be done, a sufficient salary would be paid in future, which would enable them to give up their private practice. The principle had already been adopted in Glasgow, and whenever it could be applied it would be carried out. He deprecated the passing of an Amendment at the present which would have the effect of doubling the cost of these judicial establishments.
§ MR. MACDONALDsaid, that there was at present a want of confidence in the mode in which procurators fiscal discharged their duty, and in the manufacturing districts of the country particularly it was desirable that private practice on the part of those gentlemen should be prohibited, and that they should live by that office alone.
§ MR. ANDERSONwas glad to find the Lord Advocate was alive to the evil, but would have liked to have had some further assurance from him on the subject.
§ Question put.
§ The Committee divided:—Ayes 62; Noes 109: Majority 47.—(Div. List, No. 294.)
§ Bill reported; as amended, to be considered upon Saturday,