Lords Sitting of 18 June 1806

ADMINISTRATION OF JUSTICE IN SCOTLAND.
Lord Grenvillemoved, that the house should resolve itself into a committee to consider of the Administration of civil Justice in Scotland.—The house having accordingly resolved itself into a committee, the noble lord said, that no man could more deeply feel the importance and difficulty of any subject than he did that upon which he now rose to address their lordships. Feeling, however, as he did, all the difficulty of the subject, he felt it at the same time to be his duty, after fully and maturely considering it, to submit certain propositions to their lordships, the objects of which were to remove evils and inconveniences which had arisen to a great height and which loudly demanded a remedy. His attention had been called to the number of appeals in that house, particularly from Scotland, which had increased to such an extent, that their accumulation, and the consequent great delay in their decision, became a most serious evil to suitors in that high court, and was disreputable to its jurisdiction. In considering this subject, his attention was naturally turned to the court of session in Scotland, from whence so many of these appeals came, and there he found also that the business had accumulated to an extent which produced the most material evils to the suitors, from the unavoidable delay which occurred in deciding causes. It would be a superfluous waste of their lordships' time to enter into a history of the court of session; it would be sufficient to observe, that, by the act of union, it was declared to be the court for deciding causes in Scotland, and from which an appeal only lay to the house of lords. It was evident, therefore, that

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no other court could be established for this purpose, without a breach of the act of union. There were, however, means of altering the frame and constitution of this court, by which, as he conceived, civil justice might be better and more speedily administered. The court at present consisted of 15 judges. He did not mean, and he trusted he should not be understood to mean, to throw the slightest reflection upon any of the learned judges of that court; but it was his opinion, and it was the opinion of many persons of great experience and knowledge of the laws, that speaking generally justice was better administered in a court where the judges were only 3 or 4 in number, than where they consisted of a greater number. There were many reasons, which would naturally occur to their lordships, why this must necessarily be the decrease of business in the other; thus case. It was also of the highest importance that the conduct of judges in their respective courts should, as in this part of the united kingdom, be open to the world; that they should deliver their opinions in the face of an enlightened bar, from whence they would soon become subjects of public discussion; and then the slightest error (for judges were fallible as well as other men) would very soon be corrected. A great advantage likewise arose from all the judges of a court hearing the arguments of counsel in the cause on which they were to decide, and their being enabled to form their opinion with as little delay as possible. In the court of session all the legal arguments, as well as the proceedings, were delivered in writing, a course of practice which necessarily consumed much time in the deliberations of the judges; and after each had examined the written documents, unless they were unanimous, a circumstance, which, perhaps, where there were so many judges, could not be expected often to happen, another delay arose from their delivering their opinions seriatim. With this view of the subject a plan had been framed for the purpose of obviating some of the inconveniences resulting from the constitution of the court of session, and the forms of its proceeding. It was proposed to divide the court into chambers, the number to be hereafter fixed; his opinion inclined to three chambers, as more likely to answer the purpose of speedily administering justice than two; whilst in the latter case the objection to a great number of judges in one court would still operate considerably, though not with such great
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force. These chambers, he proposed, should decide respectively upon the same description of causes, without allotting any exclusive jurisdiction to either. The courts here, which had originally each a separate jurisdiction over a distinct class of causes, had become by long usage equal in jurisdiction with respect to all causes, with some exceptions; and this practice, which had grown up contrary to the original intention of these courts, was found to be infinitely more convenient than the original principle of separate jurisdiction. Individuals, being thus enabled to carry causes into either of the courts, at their option, public opinion in the increase of business, and one court over another, would soon indicate the motives of the preference, and point out whatever slight cause there might be for the decrease of business in the other; thus leading to an uniformity of decision upon legal points, which could not be the case if each court had a separate jurisdiction over a certain description of causes. it was proposed, therefore, that parties should have an option of bringing their suits before either of those chambers, and that where there was a previous hearing before the lord ordinary, that the cause should belong to the chamber of which the lord ordinary was a member. It was also proposed that the lord president of the court of session should preside over one of the chambers, and that his majesty should be empowered to appoint judges of the court to preside over the chambers, such presidents holding their offices, like the other judges, during good behaviour. The next great object which he had in view was the introduction of trial by jury in civil causes into Scotland. For him speaking with the experience of an Englishman, and in a British legislature, to attempt to advocate the trial by jury, the benefits resulting from which were sol well known and so justly appreciated, would appear a very superfluous waste of time. This mode of trial had not, however, for a long time been used in Scotland in civil cases, although it had formerly been practised in that country, and the greatest advantages would result from its re-introduction. At present, from the mode of proceeding it was frequently impossible to give a correct decision upon a fact. He proposed, therefore, that the proceedings should be put into that form in which as in England an issue might be joined, that the pursuer should state distinctly the facts which he alledged, that the defender should

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either distinctly admit or deny those alleged facts in whole or in part, and that thus issue being joined on the record, it should be in the power of the chamber in possession of the cause, at the request of either party, to direct a trial by jury on this of fact; that the chamber might also, without being applied to by either party, direct such trial by jury, and might also remit the cause to the circuit, to be there tried by a jury. There were inferior courts, such as those of the sheriffs and bailies, where the expence of a trial by jury might be much greater than the value of the object in dispute; he thought that it would be advisable, therefore, only to allow of a trial by jury, in those cases where it was directed by one of the chambers, on application of either of the parties. It would also be necessary to give a power of appealing to the decision of the chamber directing the trial by jury, in cases of mis-direction of the judge to the jury, or where the verdict was given in contradiction to evidence. In this way he conceived that the introduction of the trial by jury into civil cases in Scotland, would be productive of the most important advantages. The third head of the plan related to appeals, with respect to which it was proposed, that there should be an immediate court or review between the chambers and the House of Lords; still, however, not in any degree violating the act of union, by trenching upon the jurisdiction of the court of session. It was proposed that an appeal should lie from each of the chambers to the court of review, which should consist of all the lords of the court of session, except those of the chamber in which the decision appealed against should be made; that an appeal should lie to the court of session, without the necessity of going through the intermediate forms now used, of bills of advocation and suspension. That the court of review should proceed with printed cases, and hear counsel, in the same manner as in appeals in the House of Lords; that an appeal should ultimately lie from this court of review to the House of Lords, but from no other court; and that such appeals should be only against final judgment, and not against interlocutory judgment. It was also proposed, that, in order to prevent frivolous and vexatious appeals, that the house should have the power of awarding cost to a much greater extent than at present. It was, too, notorious, that many appeals were brought to that house with-
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out any hope of ultimate sucess, but merely with a view of gaining a certain advantage from suspending for a time the execution of the judgment given in the court below. This advantage might, in some cases, over balance any consideration of costs which could possibly be awarded against an appellant; he had, therefore, framed a resolution, but he had at present so much doubt about it, that he would not propose it among the other resolutions; the object of which, however, was, that in cases where, notwithstanding execution being issued on the judgment in the court below, the appellant might, nevertheless, in the event of a reversal of the judgment, be placed in the same situation as if such execution had never issued; that then the court below should certify to that house; and that, in such case, the house should be empowered to order execution to issue on the judgment of such court pending the appeal. This, however, was entirely a new measure, and not standing on the same solid grounds of English experience with the other parts of the plan did, and therefore he would take further time to consider of it. One point of detail he would first mention—it was proposed to abolish, or at least to limit, as much as possible, extraction of records, documents, &c. in causes, in Scotland, which had grown into a great abuse, volumes being thus frequently made up in one cause, the expence of extracting which alone amounted to more than the value of the object in dispute. It was proposed, therefore, to confine this system of extracting to a mere exemplification of the record, the pleadings, and the interlocutors. He was aware, that, in carrying into execution a detailed system, like the present, there were many persons whose interest might be injured, and not merely interests, but whose just rights or just expectations founded upon previous study and application, with a view to particular departments, might be injured. If the proposed plan should be carried into execution, and any such instances of loss or injury should arise, he had no doubt that the justice of parliament would award a proper compensation; with one other point also, be would trouble their lordships: it was necessary that there should be some means of preventing an aged and infirm judge from being reduced to the painful necessity of retiring with old age into poverty; or of continuing to exercise those duties for which corporeal and perhaps mental infirmity had rendered him in a great mea-

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sure incapabe; a provision of this kind existed in England, and he thought ought to be extended to Scotland. He had now gone through the whole of the proposed plan, which, if it did not go so far as some might wish, rested, so far as it went, upon solid grounds of experience in this part of the united kingdom. He thought it would be highly advantageous if the practice of hearing counsel intended to be introduced into the court of review was introduced into all the Scottish courts. He would not go, however, thus far at present, and would rather prefer that the present plan should be first tried. He wished that the whole plan should undergo the most deliberate investigation, and that it should be thoroughly and maturely considered by those who were best enabled to form a judgment as to its merits, or give information upon the subject. He wished also that their lordships should have full time to consider the subject maturely, and with all the new light that could possibly be thrown upon it With that view, it was his intention to propose a number of resolutions, which, after they had passed through the committee, it was his intention should be printed; he would then move that the consideration of the subject should be postponed till a day when it was likely parliament would not sit, in order that the final discussion upon them might be postponed till next session. His lordship concluded by moving a number of resolutions in conformity with the objects proposed in his speech.
Lord Hawkesburystated, that this subject had been under the consideration of the late ministry, who had taken steps for the purpose of obtaining every possible information respecting it, with the view of afterwards bringing it, with the view of afterwards bringing it before parliament. Upon his present view of the subject, he concurred with the noble lord in most of his propositions; he thought the division of the court of session into three courts would be much preferable to two, but doubted the propriety of excluding from the court of review the judges of the chamber, whose decision was appealed against.
The Duke of Montrosehighly approved in general of the plan brought forward by the noble lord, but doubted whether there might not sometimes be local obstacles to trial by jury in civil cases in Scotland.
The Lord Chancelloralso warmly expressed his approbation of the proposed plan, the carrying which into effect would,
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he thought, be productive of the greatest advantages to Scotland.—The resolutions were then agreed to.