Lord Grenville said, he had the honour to present to their lordships the bill of which he had some time since given notice, for the better Regulation of the Courts of Justice in Scotland. On entering into the discussion of this subject, he could not begin better than by obviating a misrepresentation which had been industriously circulated, and which had stated his object to be, to assimilate the law of Scotland to that of this country. He had no such view, nor could he conceive any theory more erroneous, any project more wild and pregnant with danger, than that of endeavouring to impose the laws of one country upon another, without considering the difference of habits and manners. It was no part of his intention, nor had he ever so stated it, to propose any alteration in the law of Scotland; his object was that that law should be better administered. That some measure of this nature was absolutely necessary must be obvious to their lordships. Their table was now loaded with Appeals, the greater part of which were from the Court of Session in Scotland, and which increased so much faster than it was possible for their lordships to decide upon them, appropriating for that purpose all the time which they could devote consistently with the other duties which they had to perform, that their lordships' house had nearly become bankrupt with respect to the administration of justice. He meant not to throw the slightest imputation upon the learned persons who composed the court of session: nor did he wish in this discussion to make the least reference to individuals. It was the constitution of the court of session itself which was faulty, and which rendered it impossible to do justice to the suitors in that court; above all, to do speedy justice, which was most essential to the due administration of law. The ac 789 cumulation of business in the court of session had arisen from causes which were highly satisfactory; from the great improvement which had rapidly taken place in Scotland since the American war, in commerce, in manufactures, and in agriculture. The extension of commerce and of manufactures necessarily gave rise to a great number of suits frequently involving questions highly complicated, and which at the same time were in a great degree new to the court of session. Thus it had happened that the business of that court had so greatly accumulated, that were no new suits to he instituted, it would require two years to get through the business already before the court. It was obvious, therefore, both with respect to appeals to that house from the court of session, and with respect to the business of that court itself, that an evil of great magnitude existed, to which it was necessary to apply a remedy. He had stated last session the existence of this evil, and had proposed Resolutions which were adopted by the house with the view of leaving the subject open for consideration. He now proposed to carry into effect the measure, the outline of which was the suggested, with such alterations and improvements as had been suggested by further consideration. The first leading point to which he wished to call their lordships' attention was the division of the court of session into three chambers; consisting of five judges each. He was decidedly of opinion that justice would be much better administered by three courts or chambers thus constituted, and having a co-ordinate jurisdiction, than by all the 15 judges sitting as at present in one court. With the smaller number of judges much less time was taken up in delivering opinions, and there was a less chance of difference of opinion arising. If these 15 judges were to deliver their opinions, and each of them, as in the court of session, had to examine voluminous written documents, it must unavoidably happen that differences of opinion would frequently arise, and that considerable delay would take place before a decision could be had upon any suit before them. It was, besides, of the greatest advantage that there should be two or three courts of justice of co-ordinate jurisdiction, the decisions in which openly made, and the opinions of the judges of which openly delivered, would be imme- 790 diately canvassed by an enlightened bar, and would be soon examined by public opinion. The suitor having his choice to commence his suit in either of these courts, public opinion would soon point out by the preference given, in which, if in any, there was the superiority of learning or the more enlightened decisions. The proposed measure of the three chambers would do no violence to the constitution of the court of session, which was originally analogous to the parliament of Paris, and which might be naturally divided in this way. It was thought by some that it would be better to divide the court into two chambers, which in that case must consist of eight and seven judges. He was decidedly, however, of opinion, for the reasons he had stated, that the three chambers would be much preferable. The next point to which he had to call their lordships' attention was, the proposed alteration of the trial by jury in Scotland to civil cases. Of the inestimable advantages of the Trial by Jury, every Englishman must be perfectly convinced, and it was surely not giving way too much to any prejudices, which he, as an Englishman, might have in favour of this admirable institution, for him to suppose that it might be extended to Scotland with infinite advantage in civil cases, as it had been in criminal cases, and in suits respecting the revenue. Nothing was more conducive to the due administration of justice than the clear distinction of law and of fact, that the facts of a case should, be brought to an issue of fact, upon which a jury might decide, and that the law, as applicable to those facts, should be clearly distinguished: thus, confusion would be avoided, and the law and the facts of each case being accurately pointed out, justice would be administered with clearness and precision. This would alone be effected by the trial by jury, and by the facts of a case being brought to that point of issue in which a jury could decide. In proposing, however, to extend this institution in civil cases to Scotland, it was proposed to confine it to suits respecting what he would denominate personal rights, and to extend it to suits respecting landed estates. The reason of this was, that from the nature of the law of Scotland, with respect to landed estates, the rights to these estates became wholly a question of law, and involved no question of fact upon which a jury could decide. The only remaining point which 791 he had to touch upon, was the institution of an intermediate court of appeal. The necessity of some such arrangement was obvious, in order still further to prevent too frequent appeals to that house. It was proposed that appeals to that house should only lie against final judgments and not against interlocutory decrees. With respect to the constitution of the intermediate court of appeal, some doubt had arisen as to how far it was competent for the legislature to institute a court paramount to the court of ssesion, it having been provided by the act of union, that that court should retain all the privileges which it then possessed. It was however, also provided in that act, that it should be competent to the legislature to make such regulations as it should deem advisable for the better administration of justice in Scotland. Their lordships would likewise be aware that at the time of the act of union the court of session consisted of 14 lords, and of 4 extraordinary lords. It was however deemed advisable in the reign of George I. to add one to the 14 lords, and to take away the 4 extraordinary lords. The court of session, therefore, as at present constituted, was not the court of session as existing at the time of the act of union, but as constituted by the act of George I. and the competency of the legislature to make such alterations in the constitution of that court as it should deem necessary for the better administration of justice in Scotland was completely recognized. The mode in which this intermediate court of appeal or court of revision was proposed to be constituted was, by empowering his majesty to appoint a president of that court, and also to appoint the lord chief baron of the exchequer in Scotland a lord of session and a member of this court, and the three presidents of the three chambers into which the court of session was proposed to be divided to be also members of this court. Thus constituting a court of 5 judges, one of whom would necessarily be the president of the chamber, where the suit respecting which an appeal was brought, had been in the first instance decided upon, and at whose option it would be to attend the court of revision upon the hearing of the appeal respecting such suit, but whose presence the other judges might on many occasions deem advisable in order to give them information respecting the suit over the decision of which in the inferior court 792 he had presided. Having thus detailed to their lordships the outline of the proposed plan, he submitted it to them, trusting that it would be maturely and deliberately considered, assured that they would not impute to him the vanity, and in his situation the criminality, of being so attached to his own plan, as to reject any alteration, hoping that their lordships, in their deliberative wisdom, would on the contrary suggest such alterations as they might deem advisable, with the view of rendering this measure more perfect, more adequate to the object which was proposed to be effected, and which he was convinced their lordships would deem not only expedient and advisable, but absolutely necessary for the due administration of justice to his majesty's liege subjects in Scotland. To carry into effect an object of this magnitude and importance, required all their lordships' deliberative wisdom, but he was convinced that with the amendments and alterations which might be suggested, after the subject had undergone still further consideration, the proposed plan might be rendered productive of the greatest utility and advantage to Scotland. He submitted the plan to the exercise of their lordships' judgment and deliberation. He proposed, in order to give time for the due consideration of the subject, that the second reading of the bill should not take place until that day three weeks. His lordship concluded by presenting a bill for the better regulation of courts of justice in Scotland.
The Duke of Montrose expressed some doubts with respect to the efficacy of the proposed plan, and particularly with respect to the extension to Scotland of the trial by jury in civil cases. This part of the plan would he thought create considerable alarm in Scotland, if proposed to be extended to the whole of that country, as it would alter the value of securities at present perfectly legal.
Lord Eldon expressed his entire approbation of the general principle of the bill, and declared his wish to give every assistance in promoting the great object which was proposed to be attained, which he considered of the most essential importance, and with respect to which it had been his intention to propose some measure with the view of remedying the evil which undoubtedly existed. He acceded to the proposed measures of having three chambers or courts and a court of revision, con- 793 vinced that the most essential advantages resulted from the three courts of law in Westminster Hall, which were in fact courts of revision with respect to each other, the decisions made in each becoming subjects of discussion in the others, and the opinions of the judges upon important points of law being perfectly well known. He had no doubt that although for some time probably, if this measure was carried into effect, the court of revision would have a great influx of business, yet that from the advantages resulting from three courts of co-ordinate jurisdiction, that court of revision would, in the course of a few years, be as seldom called upon as the court of error or exchequer chamber in this country. He wished to impress their lordships with respect to the trial by jury, that the court of session was a court of equity as well as a court of law, and therefore that it would require considerable care in framing provisions for the purpose of forming issues of fact to be tried by a jury. He thought it would be more advisable to fix the second reading for that day month, instead of three weeks.
Lord Hawkesbury concurred in opinion with respect to the principle of the measure, except as to the extension of the trial by jury, as proposed in the bill, respecting which he had considerable doubts. He thought it would be better to detach this from the bill, and make it the subject of a separate bill.
Lord Ellenborough was decidedly of opinion that the extension of the trial by jury was essential to the proposed measure, inasmuch as they must look to that for the purpose of lessening the quantity of appealable matter to that House. He was so thoroughly convinced of the essential advantages to be derived from this part of the pan, and that it was so great a boon to Sotland, that nothing but petitions from the whole population of Scotland against the measure could convince him that it was unwise or inexpedient.
Lord Grenville expressed great satisfaction at the liberal manner in which this measure had been received by the house. With respect to the second reading of the bill, it was his wish that if the measure passed that house it should be sent down to the other house of parliament in a reasonable period of the session, and with that view he wished the bill to be committed previous to the Easter recess. He thought, therefore, that 794 if it was understood that the second reading should take place on that day three weeks, and the commitment on that day four weeks, it would meet the wishes of the noble and learned lord.
The Earl of Suffolk approved of this arrangement, but thought the salaries of the judges in Scotland not adequate to their situations.
The Lord Chancellor highly approved of the proposed plan. With respect to the trial by jury, he considered it totally unnecessary to say a word in its praise; its benefits were too obvious to need his commendation; to this measure it was of essential use, in order that questions of fact might be decided upon, and that appeals might be confined to their proper province, questions of law.—The bill was then read a first time and ordered to be printed.