Lords Sitting of 17 April 1807

SCOTCH JUDICATURE BILL.
Lord Kinnaird roseto acquaint their lordships, that it was his intention to move that the lord president and the two senior judges of the court of session be ordered to attend.Lord Kinnaird rose to acquaint their lordships, that it was his intention to move that the lord president and the two senior judges of the court of session be ordered to attend.
The Duke of Montrosemoved, as an amendment, that the following words be added, "and be admitted within the body of this house."
The Earl of Lauderdalewished the noble lords to recollect, that the order of the house which commanded the attendance of the lord president and the senior judges, also extended to such other judges as were able to attend. It so happened, that there were some other judges of that court in town, and therefore be thought it necessary that the present motion should embrace that part of the case.—The motion so amended was put and carried; and the chairman was ordered to report the proceedings to the house forthwith. The house having resumed, lord Walsingham reported the decision of the committee.
The Duke of Montroseargued in favour of the right of the Scotch judges to be admitted within the body of the house. At all times it was a great and wise measure of policy, to hold in reverence and estimation, those learned persons to whom was entrusted the dispensation of the laws. But the judges of Scotland had a claim from the usages and customs of the Scottish parliament; as, previous to the union, they, on all occasions, were entitled to take their seats in that assembly. Under such circumstances, he conceived that the judges of the court of session, independent of all personal feelings, were right in supporting what they supposed the privilege of their body; and, with that conviction, he was induced to submit the motion he made in the committee, "that they be admitted within the body of the house."
The Lord Chancellortrusted the house would believe, that there was not amongst their lordships an individual who entertained for the judicial character a higher reverence than he did; but, at the same time, he felt convinced, that no legal right existed by which the judges, either of Ireland or Scotland, were entitled to seats within the body of the house. At the period when a learned judge (Fox) from Ireland was placed below the bar of the house, he was seriously grieved; but he still must contend, that the deci-
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sion of the committee appointed to inquire into the precedents, was perfectly correct. At all events, he had thought it his duty, in order to support the characteristic dignity, and the necessary reverence of the judicial character, to consider of a legislative act on that subject; and he would now assure the house, with its indulgence, that he intended to ask for leave to bring in a bill accordingly.
Lord Aucklandwas of opinion, that as it was the general sense of the house, that the judges of Ireland and Scotland had no legal right to the privilege, he could not see the necessity of any legislative interference. He was inclined to consider such interference rather as an innovation of a most dangerous tendency.
Lord Hawkesburycontended, that the noble baron did not put the suggestion of his noble and learned friend, in a fair point of view. If the judges of Scotland had now no right, surely it was not an improper measure, which would impart to the judicial character, both in Ireland and Scotland, that privilege. There was one great difference, at least it had so struck him, in a comparison between the right of the Scotch and Irish judges. The Irish judges were called to parliament by the summons of the king; and, of course, when that summons ceased, their right to a seat within the body of the house was annulled. But the judges of Scotland sat in the Scottish parliament, by immemorial usage; and the motion of his noble friend went to allow them that which they had enjoyed in their national legislature. He only stated these facts for the consideration of the house, and not with any view of giving a decisive opinion.
Lord Hollandexpressed his willingness to support the bill to which the noble lord alluded, and which went to grant to the judges of Scotland and Ireland, the right of sitting within the body of the house. At the same time, he must insist, that the precedent in the case of Judge Fox was conclusive against the present claim of the judges of the court of session in Scotland. He felt the force of the objection, even to the intended bill, inasmuch as it went to make an appearance at the bar of the house, a matter of degradation, and a subject of reproach. It was to be recollected, that some of the most respected characters in the history of the country, were often examined at that bar; and, therefore, he could not see that the cause of jealousy, in the Scotch judges, was at all warranted. That learned body stated a va-

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riety of reasons, which they conceived supported the pretensions they had made. But with all respect for that learned and respectable body, he could not give them much credit for the cogency of their arguments, the strength of their precedents, or the ingenuity of their inferences. Their reasonings convinced him of the liability of learned men to assume a right, which might probably have existed in distant periods of history, but which was solemnly abrogated in modern times. Thus, it was not long since a learned person from Scotland (the lord advocate Hope), was heard defending himself from a charge in the house of commons, by contending, that the whole power of the privy council of Scotland was vested in his official character; although one of the acts which followed closest on the heels of the union, was to deprive that office of such extraordinary and unlimited powers. The arguments of the court of session, on this point, shewed such an ignorance of the occurrences of modern periods, as applying to their case, that it was fair to assume, a fortiori, that the facts of more remote times were not either well understood, or correctly stated. With respect to the opinion, that the attendance of the judges of the court of session, on appeals in the house, was a desirable circumstance, it was not his wish to throw any censure on the learned persons entrusted with the jurisprudence of Scotland; but he could not help remarking, that he had heard within the walls of the house sufficient to induce him to deprecate such an inclination. Indeed, he thought the Opinion of Mr. Boswell quite convincing; who, when told on an appeal cause, in which he was engaged, that the court of session was unanimous in passing the decree, pointedly replied, "that when that court were divided in opinion, they deliberated but little; but when it happened that they were unanimous, they deliberated not at all." With respect to the ingenious remark, that the precedents which denied the Scotch judges the right, referred only to the lords justiciary, and not to the court of session, he should only answer, that as the lord chief justice clerk was also a member of the court of session, he could not admit the position, that if he was in either character entitled to the right, he ought to be denied, because he might be summoned to attend with respect to the duties of another office. The noble lord concluded with expressing his determination to oppose the motion.
Lord Melvilledeprecated the elaborate at-
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tack made by the noble lord on the respectable, learned, and loyal body, which composed the court of session. He considered it a churlish principle, in any great kingdom, to deal illiberally with those of other countries, which, in their union, had given up much of national pride and independent magnificence. The services of the learned persons who were in attendance on the service of the house, he had occasion to know, when he held the important office of secretary for the home department, at a period when that part of the country was endangered by revolutionary cabals, and treasonable conspiracies. He wished the judges of every part of the kingdom to be treated with every reverence and respect, because it tended to promote that love of justice, which was the strongest fortress of the subordination of society.—The motion for admitting the Scotch judges within the body of the house was then put and negatived.—The house having resolved itself into a committee,
Lord Hawkesburythought it would be the most convenient mode for him to communicate to the committee his ideas upon the subject, previous to moving any particular amendment, the different parts of the bill being intimately connected, and the amendments which he should move being those which arose out of his general view of the measure He admitted that a great evil existed in the number of appeals to that house from Scotland, and that a remedy ought to be applied, but he disliked going further than the remedying that evil required. He approved of the division of the court of session, but thought that instead of three chambers it would be much preferable to have only two chambers, consisting of eight judges and seven; the lord president being in one chamber, and the lord justice clerk in the other. There was another principle also highly important, with a view to diminish the number of appeals to that house, and which had not been touched upon in this bill, namely, to give power to the chambers to award possession to the party in whose favour the decision had turned. This, he was convinced, would prevent a great number of appeals to that house, many of which, it was well known, were only made up for the purpose of delay. With respect to the proposed court of review, it was the opinion of many persons well informed on the subject, that it would only be an additional stage in the progress of litigation, and would not prevent any appeals to that house. To the court of review, as pro-

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posed in the bill, he Was decidedly hostile, and he could conceive no other object in View in its establishment than the creation of a new and important office in the person of the president of that court He could not, however, consent to the establishment of, a court in Scotland superior to the court of session, such being, in his opinion, a violation of the act of union; if such a court should be deemed advisable, he thought it ought to be formed out of the court of session itself. With respect to the proposed introduction of trial by jury in civil cases in Scotland, he was friendly to the experiment, but it was a measure which he thought ought to be proceeded in with great caution and deliberation. He disliked in theory the Compelling juries to be unanimous, although long experience in this country had sanctioned the principle, but he thought it somewhat extraordinary, that whilst juries in criminal cases in Scotland decided by a majority, that it should be proposed to compel them to an unanimous decision in civil cases. His lordship concluded, by moving an amendment in the first clause of the bill, to the effect of dividing the court of session into two chambers instead of three.
Lord Grenvillecontended, that it was incumbent upon the noble lord to give some reason for his proposed division of the court of session into two instead of three chambers; at present he had given none, except that it was his opinion. Experience in this country was in favour of three courts, with a few judges in each, and all theory on the subject pointed out the expediency of having the smaller in preference to the greater number of judges. He had, when he first proposed this measure, not thought it advise-able that the number of the judges of the Court of session should be reduced, but if the proposition for two chambers was persisted in, he should then contend that the number of judges ought to be reduced, inasmuch as five judges would be amply sufficient for each chamber. The noble lord had somewhat unfairly charged the late ministers with having only in view the creation of a new office in the establishment of the court of review; but if the division into two chambers was to be persisted in, and the number of judges not reduced, the truth would be, that noble lords on the other side were continuing five useless and unnecessary offices. With respect to the proposed court of review, when that subject came fairly under discussion, he would undertake to prove to their lordships, that it
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was not a violation of the act of union, and that without such a court, very little would be done towards effecting the great object in view, that of diminishing the great number of appeals to that house. As to what had been said by the noble lord respecting the chambers giving possession to the parties in whose favour they had decided, it was noticed in the resolutions of last session, but he had seen no proposition upon that subject which was not liable to many objections. He objected strongly to giving an arbitrary discretion to courts upon this point. He had heard the noble lord with great surprise upon the subject of juries, and he was utterly astonished that an Englishman should, in an English house of parliament, declaim against trial by jury.
Lord Hawkesburyin explanation, said that he had not argued against the establishment of juries, but as to the principle of unanimity.
Lord Grenvilleresumed, and again expressed his astonishment that the noble lord should object to that which the experience of ages had sanctioned in this country, and proved to be highly beneficial. He was not surprised, however, that to the minds to whose consideration this measure now devolved, and with the advice now likely to be taken upon the subject, that the difficulties in the way of the establishment of trial by jury, in civil cases in Scotland, should appear so insuperable. He thought a most extraordinary principle had been advanced by the noble lord, as the foundation of his opinions upon this subject; for it amounted to this, that in remedying a great evil we should not look to any enlarged theory, but should do as little as possible. He contended that it still remained for the noble lord to state his reasons for the alteration he proposed.
The Lord Chancellorcoincided in opinion with his noble friend, as to the division of the court of session into two chambers, because he did conceive it would fully answer the object required. With respect to the number of Scotch appeals presented to that house, he conceived the best remedy to consist in affixing large costs to those which were presented on improper and untenable grounds. The house was aware that until such a remedy was adopted, it would be impossible to check an evil which was supported by the parties who, brought forward those appeals, as well by the profit arising from the interest of money, as the benefit of possession. He fully coincided in the opinion with the late lord Mansfield, that it

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was impossible to introduce the trial by jury into Scotland, generally.
Lord Grenvillereplied, that he saw nothing in the noble and learned lord's observations, but an opinion without any solid argument.Lord Grenville replied, that he saw nothing in the noble and learned lord's observations, but an opinion without any solid argument.
Lord Erskinesupported, the principle of the bill in all its branches, and thought it exceedingly strange, that the introduction of trial by jury, generally, into Scotland, should be matter of such extreme apprehension and caution, particularly as it was already partially known and valued in that country, as the source of all the blessings of liberty enjoyed in this. He observed an illustrious personage, on the other side of the house (the duke of Cumberland) smile, and he must be bold to tell him such a smile was inconsistent with the decorum with which that house was in the habit of hearing every noble lord express his sentiments; but it was particularly indecorous and indecent in that illustrious personage to smile at a panegyric upon the trial by jury. Trial by Jury was the means of placing the present family upon the throne of England, and trial by jury had preserved our most gracious sovereign, that illustrious person's father, throughout his long and glorious reign. Trial by jury was the best security for the freedom of that house; and he should never cease to feel and know, that Trial by Jury enabled him to address their lordships upon equal terms with the highest man among them.
Lord Redesdalecoincided in opinion with his noble and learned friend (lord Eldon) that the bill in its present state would be a violation of the act of union, and totally unnecessary; but if such a measure should be found necessary, he thought it first ought to undergo the investigation of a commission of inquiry.
Lord Hollandexpressed a hope that the noble and learned lord who spoke last, and who had acknowledged that he had been often induced to change his opinion, upon various subjects, had now from conviction, changed that prejudice and opinion, he had some time since entertained, with respect to one-fourth of his majesty's subjects, he meant the Roman catholics. An opinion and prejudice most disgraceful to this country, in the eyes of every enlightened nation on the globe.
Lord Melvilleentered at large into the nature and object of the proposed change. He did-not see the benefits which the noble baron was so sanguine as to expect from the measure. It was, in his mind, an innova-
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tion on that system of jurisprudence, which the Scotch nation, at the period of the revolution, were so anxious to preserve and perpetuate. But he acquiesced in the proposition of the noble baron (lord Hawkesbury) with respect to making it a measure of temporary experiment, until a commission was appointed for the purpose of fully ascertaining the general grounds of the measure, and the general feeling of the nation to whom it peculiarly related,
Lord Kinnairdcould not contemplate, without surprise, the conduct of noble lords relative to this measure. They had taken advantage of the late ministerial. changes, totally to new-model the object and detail of the system so ably proposed by his noble friend, and so long desired by Scotland. Such conduct went to mock the expectations of the people of Scotland, and to cheat them of their hopes.
The Earl of Lauderdale roseto oppose the intention of the noble lords, in trying to take an advantage of the house, and in proposing to a committee, in the form of an amendment, a measure altogether new in its principles. Such conduct was a violation of the privileges, and a complete disregard of the opinion of the people; that opinion which his noble friend, who first introduced the measure, had used every means fully to acquire and understand. The noble viscount (Melville) had talked of innovations Every remedy for an existing evil, was throughout the whole period of his administration for that country, considered by him as an innovation. But was it a measure to promote a system of jobbing and of favouritism, it would have fully accorded with his views. He thought the noble lords ought to be ashamed of attempting to pass such a juggle on the house.
Lord Aucklandstated, that notwithstanding the very extensive information that he had heard communicated upon this subject from both sides of the house, be confessed that his mind was not sufficiently informed as to how far this measure might be considered to affect the administration of justice in that part of the island to which it was directed. He had listened attentively with the hope that some noble lord might so far enlighten his mind, and set his doubts upon this point at rest. However, as he was disappointed in this respect, he must beg leave to solicit the assistance of some noble lord, as to how he should now proceed in order to obtain the opinion of the judges on this subject.
Lord Hawkesburyexpressed his regret that the noble lord had not thought of suggesting his desire to obtain further information at an earlier hour.
Lord Aucklandrepeated, that he had hoped to have heard the legality of the question placed beyond all doubt by one of the learned lords on the other side of the house. The judges, however, were at hand, and might easily be called in, if it was their lordships' pleasure. [A call of move! move! from the treasury bench.] His lordship accordingly moved, that the judges be now called in.—Upon which lord Hawkesbury and the lord chancellor suggesting the great inconvenience that would result from commencing such an inquiry at that late hour, it was agreed, at half after two o'clock in the morning, that the subject should be resumed on Monday next.