SCOTCH JUDICATURE BILL. (Hansard, 10 March 1807)

§ Lord Grenville rose
to move for certain accounts, previous to the introduction of the subject, for the consideration of which their lordships were then particularly summoned. He had, on a former occasion, when he proposed to the house his intention of bringing in a bill for the regulation of the Courts of Justice in Scotland, adverted to the great inconvenience which the house had already suffered, and which it was likely yet to suffer, in consequence of the great number of appeal causes submitted to its judicial consideration. He should therefore at present trouble their lordships with two motions; first, that an account be presented to the house of the number of Scotch Appeals, from the year 1794 to 1801; and next; an Account of the number of Scotch and Irish Appeals, from 1801 to the present year 1807.—Ordered accordingly.

The Lord Chancellor
having quitted the woolsack, observed, that he was induced to call the attention of their lordships to a communication made to him from the president and senators of the College of Justice in Scotland, for the purpose of being guided by the wisdom and decision of the house, on a subject in which he was unwilling to trust to his own private judgment and opinion. He had received from that body a memorial, adverting to the bill at present before the house, for the better regulation of the Courts of Justice in Scotland; but, as it contained no distinct prayer, nor complained of any specific grievance, he did not feel himself justified by any precedent in the Parliamentary History of the country, to present it to their lordships. He found, from a reference to a marginal note in the 67 memorial, that the Court of Session grounded the present communication on two precedents; the first, when, in the year 1659, the Court of Session made an application in a similar manner to the parliament of Scotland.; and the other, that, in the year 1717, by the Act of Sederunt, the Court of Session did apply to certain lords, part of their own body, but who were also lords of parliament, communicating to them their opinion on certain legislative measures then in the consideration of the house. It was for the house to determine whether such precedent had any reference to the present case. Anxious as he was to obtain the instructions and opinion of so learned and venerable a body as the Court of Session, and naturally alive to the feelings and wishes of his native country, he still could not forget that he had to preserve the rights and privileges, the dignity and character, of the house. With such an impression, and in so delicate and important a matter, he felt it the most advisable method to govern himself by the wisdom and judgment of their lordships.

§ Lord Grenville
declared himself particularly satisfied with the motives and reasons which had induced his noble and learned friend to apply to their lordships for advice and instruction in the present case. But, though willing to give every credit for the caution which was observe, he still must assert, that the usages and forms of parliament, the practice and precedents of the house, were conclusive against the receiving of this memorial from the Court of Session. Parliament had uniformly, for the best and most salutary reasons, denied to any person or body, the right or opportunity of giving advice upon subjects submitted to its legislative consideration. This was of itself mandatory on their lordships, not to receive the communication alluded to by his noble and learned friend. But there was a further objection, arising from the uniform custom of the house, not to allow even petitions to be laid upon its table, coming from any alleged body, unless that body were legally and justifiably entitled to approach the legislature in a corporate capacity. He was convinced his noble and learned friend felt upon this subject, as he did; although he was conscious of the strong and powerful inducements which urged him to apply to their lordships. There was considerable attention to be paid to the venerable and learned body from whom this communication was received. This his noble and learned friend 68 felt, together with an unwillingness to decide a question of such weighty importance on his own private opinion and conviction. With respect to the precedents referred to in the memorial, they would be found, on examination, by no means to apply to the present case. Whatever might be the nature of the connexion of the Court of Session, with the parliament of Scotland, one fact was clear, that no inference could be drawn from that circumstance, in any manner affecting the practice or decision of the house. It was unnecessary to enter into the minute differences: he should satisfy himself by saying, that the parliament of this country was so essentially different in its construction from the parliament of Scotland, that no act of the latter could be supposed as a justified precedent, by which the house should regulate itself. But the reference to the act of Sederunt, in the year 1717, when an application was made by the Court of Session, to lords of parliament, was, in his opinion, equally inapplicable to the present case; because it appeared, from an examination of that precedent, that the lords of the Court of Session applied only in the manner of remonstrance, to some lords who constituted a part of their court, and also fulfilled the duties of lords of parliament. He felt it impossible for the house to receive the memorial; at the same time that he was free to admit, that the house might receive much desirable information from having the opinion of that learned body laid before it. It was in their power to avail themselves of the right of petitioning according to the sanctioned and acknowledged principles of parliament. For his own part, he was extremely anxious to have the house put in possession of the opinion of that venerable court. From some of the suggestions of the memorial (for he had also been honoured with a copy of it from the lord president) he had received important information; on other points, he was still obliged to dissent. As far, therefore, as he was personally concerned, he wished their lordships to be enabled, from learning the objections of the Court of Session, to appreciate the value of those arguments, which he should think it his duty to state, in answer to such objections. He recommended his noble and learned friend to state, in his wonted respectful manner, to the learned person from whom he received the memorial, the insuperable objections which prevented him from presenting it to the house.

§ Lord Eldon
was of opinion, that although 69 the house could not receive a communication from the Court of Session, in the manner in which the present memorial was made, yet it was of the highest importance, that the opinion and advice of so learned and venerable a body, on a subject which so peculiarly involved their interests and duties, should be fully in possession of their lordships, before they were called upon to decide on perhaps one of the greatest changes which ever took place in the administration of justice in any country. There were other modes, whereby that instruction and information could be obtained. For instance, it was in the power of the house to resolve, that the measure should be submitted to the opinion of the Court of Session, for the purpose of enabling it to gain beneficial information from the report which should be made. There were precedents for such a line of procedure, and it was for their lordships to adopt that which tended to promote the means of acquiring the most correct knowledge of the merits of the measure.

The Earl of Lauderdale
expressed himself as anxious as any other noble lord, to have the opinion of the Court of Session laid before the house: but, at the same time, he wished to be fully understood, that in order to prevent any Farther delay in receiving such opinion, the lords of the Court of Session should petition the house in their individual capacity, for only in that capacity could their petition be received, With respect to one of the precedents referred to, it would be found by the preamble of the Bill on the Forfeited Estates, that the lords of the Court of Session were only heard as petitioners, or, as the bill more appropriately recited, as supplicants. He deprecated the proposal of consulting the lords of Session on the enactment of a legislative measure; such conduct would be inconsistent with the character and forms of parliament; it was a principle which the house never did nor could recognise. By the 10th of George I. parliament deprived the Court of Session of the right of interfering in the appointment of the judges, yet the house did not conceive it necessary to apply for information to the lords of the Court of Session, Indeed, in all cases where the history of parliament afforded an opportunity of inquiry, whether applicable to England or Scotland, he contended, that, however parliament might have deemed it necessary to apply to the judges for their opinions on points of law, it never did commit to their investigation a legislative mea- 70 sure, in the agitation of which it then happened to be engaged.—After some further observations,