The order having been read for the attendance of the lord president and other judges of the court of session, five of the judges of that court, namely, the lord president, the lord justice clerk, lords Glenlee, Cullen, and Newton entered the house, and took their seats in chairs provided for them in a space inclosed without the bar.
§ Lord Erskinethen addressed their lordships on the important subject under consideration, the end and object of which was a considerable improvement in the administration of civil justice in Scotland. His lordship took a review of the proceedings which had taken place in the present and in the last session, in reference to the bill now pending before their lordships, and noticed the general admission that evils did exist in some parts of the administration of the Scots laws, which were even felt to affect that house in its appellant jurisdiction, and for all which a speedy and efficacious remedy was declared to be necessary. For these objects, he held the bill brought in by his 516 noble friend to be highly beneficial. He argued forcibly for the introduction of Trial by Jury as recognised by that bill; and which, with such an arrangement of the business as would separate the law from the facts, would in the Scots courts constitute a great part of that remedy. He likewise argued in support of various other parts of the bill, and the superior advantages of a division of the court of session into three chambers, instead of two, as proposed by the other bill of which the noble lord (Hawkesbury) had given notice. A division of the court into two would be a good thing, he said, as far as it went; but it would not operate as a remedy to the evils complained of; no more than if, should he have sent for a surgeon to perform an operation on him, that surgeon, instead of the faithful discharge of professional duty, should make him a present of a horse or a carriage, or set him down in his will: these would all be very good things, and argue a very friendly disposition in his surgeon, but would be no remedy whatever for his complaint. He also argued, that the court of review, as originally proposed, was not contrary to the spirit of the Scots union; and that some establishment of the kind was essentially necessary to diminish the number of appeals. In the course of his speech the noble lord adverted to eighteen or nineteen questions, which he read, and which he proposed should be put to the learned judges then before the bar, for their opinions upon the same. The first question, which was afterwards read from the Wool-sack and the question distinctly put upon it, was to the following effect: "Whether, in the action for the recovery of personal property, or for the vindication of private wrong, especially where parole proof was necessary, the expenses of the proceedings, according to the present mode and practice of the court of session, did not, in very many cases, greatly exceed the value of the thing at issue, independent of delay and other inconveniences?" The leading propositions in the subsequent questions were—[...], "To learn what degree of power the Scots courts now possessed within themselves, to reform the inconveniences and evils complained of. 2, Respecting the preferable division of the court of session into two or into three chambers, with a view to the more efficacious remedy of the evils complained of. 3, Respecting the effects of the introduction of Trial by Jury into civil causes; and of enabling the court to separate the consideration 517 of law from that of fact. 4, Respecting the diminution of the number of appeals to the house of lords, which may be naturally expected from the establishment of a court of review; and whether an establishment of the kind would not be necessary for that purpose. And lastly, whether the establishment of such a court, with judges, as proposed by the bill, he inconsistent with the 18th and 19th articles of the union with Scotland?"—The first question was put and agreed to. On the question for proposing the subsequent queries.
§ Lord Grenvillemade a few observations, importing, that the whole of these should be considered as referring to, and arising out of the measure he had the honour to propose. There was no other bill before the house, no other measure could therefore be regularly adverted to. He deprecated the idea of the least ground existing for an apprehension that any thing proposed would overturn the court of session, or clash with the articles of union.
The Duke of Atholfelt it incumbent on him to allude to the situation in which the law lords of Scotland were then placed in that house, and expressed his wish that the learned lord's proposed bill for placing the Scots and Irish judges on an equality in these respects, were brought in; and which he seemed to think might be passed before it would be necessary for them to deliver their answers.
The Lord Chancellordeprecated every idea that the situation in which those respected personages then stood, was in the smallest degree disgraceful, and adverted to the impracticability of getting such a bill through, as hinted by the noble lord.—The question was then put, and the remaining queries were ordered to be put to the Scots judges.
The Lord Chancellorthen inquired of these learned judges as to the time at which they could conveniently give their answers.
The Lord Presidentreplied, that for his own part, he had no objection to answer the queries forthwith, if such were the pleasure Of the house; but his learned brothers might think differently; perhaps tomorrow, or Monday might therefore be more convenient. He wished permission from the house to offer a few observations to their lordships. [A general cry of go on! go on!] The lord president was then entering upon some degree of detail; upon which, the lord chancellor informed him he must confine himself to the subject of the ques- 518 tion. The lord justice clerk observed, that much would depend on the consideration, whether the answers were to be delivered verbally or in writing. He also adverted to the inconvenience of detaining the Scots judges much longer in town; and hoped their lordships would not fix upon a longer interval than Monday for receiving the answers.
The Lord Chancellorstated, that the rule was, that the reasonings upon which the opinions were founded should be delivered viva voce; but that the results should be in writing—The questions, as proposed, were then ordered to be printed, and that the Scots judges then present do attend to deliver their answers on Monday next at three o'clock.