[BILL 349.] COMMITTEE. (Hansard, 24 August 1887)

§ SIR GEORGE CAMPBELL (Kirkcaldy, &c.)
said, he had an Amendment on the Paper which practically meant the rejection of the Bill; but, under all the circumstances, he would not move it, and would content himself with one more protest, unless the Lord Advocate would consent to an adjournment of the Bill. It seemed to him that placing this Bill before the general Bill was a species of coercion, by which they were practically told that unless they passed the Bill they would not get any other. He entirely acquitted the Lord Advocate of any intention of knowingly infringing the Statute—he accepted what he said, that he was not aware at the time what the law was—but it appeared to him, upon general grounds, that the putting down of this personal Bill before the general Bill was a species of coercion and that they were practically told that they must swallow that Bill, or they should not get to their more important measures. It was not a right contention that a gross irregularity should be cured by a Bill of this kind. He could understand that the hon. Member for Caithnsss (Dr. Clark), who did not want the Secretary for Scotland Bill, was very pleased that this small Bill should be placed before it; but he (Sir George Campbell) personally very much wished to get to the Secretary for Scotland Bill. He therefore appealed to the Lord Advocate to allow the Bill to be postponed until the other Scotch Business had been disposed of. As to the merits of the Bill, he quite admitted that Mr. Berry was a very competent man, and since the last debate he had ascertained that he was a Fife man, and, he believed, a 1737 friend of his youth, and a very able man. Mr. Berry was a very clever boy, and no doubt had turned out a very clover man, and on personal grounds there was not the least objection to be made to him; but his appointment was a gross illegality, and a gross injustice to the Sheriffs-Substitute of Scotland. He was very glad to find that in answer to a Question the Lord Advocate utterly disclaimed the policy that had been imputed to him of putting a stop to the chronic promotion of Sheriffs-Substitute, because there could be no doubt that the Sheriffs-Substitute had a kind of claim which ought not to be overlooked. He thought the Lord Advocate was perfectly right in resisting the idea that these promotions must be purely local, and if there was a difficulty about appointing one of these local Sheriffs-Substitute, there were plenty of other competent Sheriffs-Substitute to be found in Scotland. He gathered that Mr. Berry's appointment was agreeable not only to the lawyers in Parliament House, but also to Glasgow. Now, Glasgow was a proud place, and looked upon the rest of Scotland as a sort of Nazareth, out of which no good could come. Therefore, it would have been very disagreeable to the Glasgow people if a Sheriff-Substitute had been brought from any other part of Scotland, and this, he believed, was the chief reason for the appointment of Mr. Berry. He did not, however, recognize that that was an argument which ought to prevail. He thought the Sheriffs-Substitute of Scotland, who constituted a most important and dignified body of public servants, ought to have a full share of promotion—a larger share than had yet been given to them; and if there was any objection to the promotion of a Glasgow Sheriff-Substitute, then the Lord Advocate had the whole of Scotland to choose from, but he appointed a gentleman who had not been a Sheriff-Substitute. However, the right hon. and learned Gentleman had admitted his mistake; and if he had been content to bring in the Bill after the other and more important Business had been disposed of, he (Sir George Campbell) would have been perfectly willing to listen to the right hon. and learned Gentleman's peccavi. Having now made his protest, as he wished to do, 1738 against that course, he would say nothing more on the subject.

§ MR. HUNTER (Aberdeen, N.)
said, he had also to complain that that Bill was put down before the Secretary for Scotland Bill and the Technical Schools (Scotland) Bill, from which he inferred that, in the opinion of the Government, it was more important that the Lord Advocate should be whitewashed than important Scotch legislation should be proceeded with. He objected to the Bill on the ground that the Preamble was untrue and the clause inexpedient. What he submitted was this—that the Lord Advocate had very ingeniously raised a species of false issue of a personal character, affecting the merits and qualification of Mr. Berry. He disclaimed any attempt to enter into the personal question, in regard to which there was no evidence before the House; and even if there were evidence on which they could form a judgment, they were not the proper persons to form the judgment as to the appointment of an individual to the office of Sheriff. That was a responsibility belonging to the Officers of the Crown, and could not be assumed by the House, and to attempt to bring that before the House was only to obscure and evade the real issue. What did the Preamble of the Bill say? That "doubts had arisen" as to the appointment being in conformity with the Act 1 & 2 vict. What did the Act say? It said in the plainest manner, in terms which any man, though not a lawyer, could not possibly misunderstand, that a person appointed to the office of Sheriff should be an advocate of three years' standing in habitual attendance on the Court of Session, or acting as a Sheriff-Substitute. It was admitted that Sheriff Berry had not acted as a Sheriff-Substitute, and that he had not habitually attended the Court of Session; therefore his appointment was fully and absolutely illegal, and was an appointment in contravention of a distinct statutory qualification. When the question was first opened he (Mr. Hunter) asked the Lord Advocate what he proposed to do. Did he propose to repeal a statutory qualification and to make the Bill retrospective as regards the appointment of Mr. Berry? If the right hon. and learned Gentleman had proposed a Bill of that sort, and had satisfied the House 1739 that the statutory qualification was insignificant, illusory, and unimportant, and ought to be repealed, then he would not have resisted the making of the Bill retrospective with regard to Mr. Berry. But the course which the Lord Advocate took was entirely different. He proposed to leave the statutory qualification as it was, and, notwithstanding Mr. Berry's lack of qualification, he asked the House to appoint Mr. Berry in consideration of his strong personal merits. That seemed to him (Mr. Hunter) to be a wrong proceeding altogether. The Preamble said that doubt had arisen. The fact was that no doubt existed, and nobody alleged it. The Lord Advocate did not allege that there was any doubt —on the contrary, he admitted fully and frankly that it was an entire mistake; that he made this appointment in ignorance of the statutory provision, and that if his attention had been drawn to the Statute he would never have made the appointment. He (Mr. Hunter) did not impute to the Lord Advocate that he would have violated the Act intentionally and deliberately, and quite accepted the explanation that it was done in ignorance; but, under these circumstances, how could he be asked to state that doubts had arisen as to the legality of the appointment? It was asking Parliament to make a statement which, on the face of it, was untrue, in support of a proposition which, he ventured to say, was inexpedient. Coming now to the merits of the case, he would ask was it right that the House should be asked to appoint a man who had not a statutory qualification, because the Lord Advocate did not know? One of the first maxims enforced upon youthful students of the law was that "ignorance of the law was no excuse for any man." So far was that principle carried, that even a foreigner who came into the country ignorant of the law, and who did something which was not criminal in his own country, but which was criminal in this, was held to be not only criminal, but actually punishable. He had not heard it suggested that any person was above that principle of law, and this was the first time that the Legislature had been asked to say that ignorance of the law by a Lord Advocate was sufficient reason for passing a special Act for the benefit of a particular individual. He should like to know what were the overwhelm- 1740 ing reasons presented to justify extraordinary legislative proceedings of that kind? It was said that Mr. Berry was a very fit and proper man. Very probably so; and, as he had said, so far as he know anything about him, he should be unwilling to say a single word to throw the slightest doubt upon that gentleman's qualifications. Ono part of the Lord Advocate's case was that Sheriff Berry, while Professor of Law in Glasgow, had been allowed also a very considerable practice as an arbitrator in commercial cases. That practice would remain to him, and He could resume his profession in the Court of Session, and would be qualified for promotion in due course; but it seemed to him an extraordinary and unprecedented course for the Government to come and ask that the law of the land should be set aside simply because the Lord Advocate was ignorant of the Statute dealing with the subject. That was the more remarkable as the Statute was not an ancient one—one of James I. or James IV.—but was a Statute of Queen victoria; and not only so, but it was a Statute many of the provisions of which were still in daily use and force in the Sheriff Courts of Scotland; and it was to him incomprehensible that those who conducted the business of the Lord Advocate's Office should be in ignorance of that law. If ever ignorance was inexcusable it was in this case, and he failed to see how such a blunder in such circumstances was sufficient reason for a Bill of this exceptional and abnormal character. Consequently, he would move that the House resolve itself into Committee that day three months.

§ MR. WALLACE (Edinburgh, E.)
, in seconding the Amendment, said, that his reason for opposing the Bill was entirely of a public character. He thought that a certain strictness should be observed in a matter of this kind. He was not aware that there was any precedent for the Bill, and, at all events, none had been adduced by those who upheld it. He thought they would be establishing a very bad precedent if they passed over in a light manner an appointment of this description. A lesson would be drawn that would encourage carelessness in making such appointments if it became known that where an appointment had been made, legally or illegally, all that 1741 had to be done was to legalize it afterwards. He did not see much would, after all, be lost by refusing the Bill. It was said to be very hard on Sheriff Berry; but was it really so hard on him as was represented? Either he knew, or did not know, the law on this matter. If he did, and accepted the office with that risk, he (Mr. Wallace) did not think it lay with Sheriff Berry, or with his friends, to say that it had turned out differently from what he anticipated. On the other hand, if he was not acquainted with the law governing the very nature of his office, he (Mr. Wallace) must say that, not himself knowing anything about him, he viewed with more suspicion the high testimonials of competency and fitness which had been brought forward in his behalf by his friends. If it had been a recondite matter there might have been some reason for looking leniently upon it. The office to which he was appointed was not the office of Judge in the Supreme Court; it was only a subordinate Judgeship, and therefore they might consider it excusable and reasonable that he was not acquainted with high matters of the law; but this was one of the most familiar points, judging from the easy accessibility of information on the matter. They had only to open so common a book as Bell's Dictionary, and they would find the whole conditions as to a Sheriffship staring them in the face. It was said on the occasion of the previous debate that it was an old law. It was not so very old at the beginning, and those who said so seemed to have forgotten that it was revived so late as 1870; because in an Act of Parliament then passed in connection, in some respects, with the conditions of the appointments of Sheriffs, it was also laid down expressly that Sheriffs when appointed need not attend the Court of Session, thus abolishing the necessity existing up to that time of Sheriffs on their appointment attending the Court of Session. But it went on to state that "nothing herein contained shall affect the qualification for appointment to the office of Sheriff, as prescribed by the said Act," that being the Act which enacted the requirements which had been quoted by his hon. Friend. The fact that Sheriff Berry was not himself acquainted with those conditions, then, was a consideration that rather took away from the 1742 strong expressions used with respect to the hardship that would be entailed upon him if the Bill was not passed. If the Lord Advocate had proposed by the Bill to abolish the qualification altogether, and had given the House to understand that he regarded it as unnecessary, or as a bad qualification, then he (Mr. Wallace) might have been inclined to vary his action; but the right hon. and learned Gentleman had done nothing of the sort, and he understood, from the silence of the Bill, that the Lord Advocate acknowledged the importance and value of the qualification, which he was now going to set them an example of dispensing with, or of treating with lightness. Under those circumstances he thought that, on the whole, while unwilling to appear to be doing anything of an ungracious nature, either to the Lord Advocate or to the friends whom he described as "deserving and well learned in the law," he was bound by considerations of public policy to refuse to give his consent to the passing of the measure, in the hope that in the end no personal hardship would eventuate. The Government would find ways of recompensing anyone whom they led into a position of danger to himself; and in the trust that that might be so, but feeling that the House must be extremely careful in setting no precedent in the way of legislation that might tend subsequently to encourage laxity and carelessness on the part of those chosen to exercise important judicial law or patronage, he thought it would be well for the House to refrain from passing the Bill.
Amendment proposed, to leave out from the word "That" to the end of the Question, in order to add the words "this House will, upon this day three months, resolve itself into the said Committee," — (Mr. Hunter,) —instead thereof.