Lords Sitting of 16 March 1807

Scotch JUDICATURE BILL.
On the order of the day being read for going into a committee on'the Scotch judicature bill,
The Duke of Montroseexpressed himself decidedly hostile to the measure in its present shape. He conceived the proposed division of the court of session into three chambers, with a superior court of appeal, to be an infraction of the articles of union, inasmuch as the court of session Would thus no longer be the supreme court of Scotland, but would be rendered inferior to another court, namely, the court of appeal. The
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division into three chambers might also be productive of serious inconveniences; a case, for instance, decided by a majority of ten judges to four, might, by the operation of this bill, be again decided upon by four judges in one of these three chambers, and these four might happen to be the minority on the former decision. The chamber of review would, he thought, also defeat the object sought to be attained, namely, the more speedy administration of justice, by again narrowing the channel of that administration; and he had little doubt that this new court of appeal, if established, would soon be as much overloaded with appeals as that house was at present. He thought it would be much more advisable to divide the court of session into two chambers, consisting of eight judges, and seven, from each of which three judges might be detached into the outer house, to do the business there in a manner more complete than that now practised. The judges might take it in rotation every year to go into the outer house. If this mode was adopted, and the courts were empowered to give possession in consequence of judgment, and to order the payment of money, or to take good security in case of an appeal, and also, if in that house costs were given on appeals to the extent of the expence actually incurred, together with damages for any injury sustained, there would be no necessity for an intermediate court of appeal, and appeals to that house would become much less frequent. With respect to the introduction of trial by jury, he thought it an experiment replete with difficulty, and one that ought not to be tried without the most mature consideration, at least, the experiment ought to he confined, in the first instance, to the city of Edinburgh. In order, therefore, that there might be still further time given for the consideration of this very important part of the subject, he moved an instruction to the committee to divide the bill into two or more bills, in order to keep that part of the bill relating to the judicature, and that respecting trial by jury, perfectly distinct.—This motion was not put, the first question being on the committal of the bill.
Lord Redesdaleconsidered the present measure as a breach of the act of union, as, if it was carried into effect, the court of session would, in fact, no longer exist.
The Earl of Selkirkcontended that it was perfectly consistent with the act of union to make regulations for the better administration of justice in Scotland, and this measure

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did nothing more. He could not conceive that the establishment of an intermediate court of appeal would tend to increase appeals, as experience in this country, with respect to the court of exchequer chamber, proved directly the reverse.
Lord Eldonwas of opinion that the proposed division of the court of session into three chambers was not consistent with the spirit of the act of union; he thought that much might be done by the mode proposed by the noble duke, by establishing two chambers, whilst, at the same time, the act of union would not be infringed. His lordship examined different provisions of the bill, and contended that they were extremely defective with respect to the directions given for resorting to trials by jury, and appeared to have been framed without a due consideration of the nature of pleadings in the court of session, which were so different to those adopted in the courts of law in Westminster-hall. He had considerable doubts respecting that part of the bill which related to trial by jury, and thought it would be better to separate it from the other. It was a most important subject, and called for the earnest and serious attention of their lordships.
Lord Grenvillethought it unnecessary for the noble and learned lord to remind their lordships that this subject demanded their earnest and anxious attention, as those by whom the measure had been brought forward had not failed to impress upon the house the great importance of the measure, and had earnestly solicited for all the assistance which could be derived for its completion, both in and out of that house. The greater part of the noble and learned lord's objections referred to particular provisions of the bill, which would be better discussed in the committee, and where it would be found that most of them had already been anticipated. No sufficient reason had, in his mind, been urged for dividing this bill into two, particularly after the subject had so long been under consideration. As to the objection that this measure was an infringement of the act of union, it did not appear to him to be in the least well founded. It was clear that there existed an absolute necessity for remedying the evils Which resulted from the accumulation of business in the court of session more than that court could possibly get through, and the accumulation of appeals in that house. The necessity of some remedy was so evident, that those noble lords who objected to
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this measure proposed as a substitute the division into two chambers. If the division into three chambers was however an infringement of the act of union, it was perfectly clear, that the division into two chambers was also an infringement. He, however, could not conceive there was any doubt that parliament had the power of making enactments for the better regulation of the court of session. It was a power recognized by an act of the Scotch parliament, and reserved by the words inserted in the article of the act of union. It would be absurd to suppose that the court of session had the power which was acknowledged, of regulating their own proceedings, but that parliament had no paramount power over them. With respect to the trial by jury, the reasons which had been stated for not introducing it into Scotland appeared to him to be the best reasons for its introduction.
Lord Melvilledeclared himself friendly to the principle of diminishing the number of lords of session. He had formerly proposed a bill for diminishing their number to ten; but he confessed he thought the proposition of the noble lord for dividing them into three chambers, much more preferable. He doubted, however, the propriety of establishing a court of review, which he thought an infringement of the act of union, whilst, at the same time, it would not tend' to diminish the number of appeals to that house, as the litigants would still be anxious to appeal to the last resort. With respect to the trial by jury, he did not think it would be productive of those beneficial effects which were looked for by the proposers of the bill; it was ill suited to the habits of the people of Scotland, neither did they wish for its introduction.
The Earl of Lauderdalequoted the 18th and 19th articles of union, for the purpose of proving that the present measure was no infringement upon that act, there being an express reservation that regulations might be adopted for the administration of justice, consistently with public policy, and for the evident utility of the subject. The division of the court of session into three chambers, and the establishment of a court of review, were questions of public policy, respecting which parliament had undoubtedly the power of deciding. The court of session had formerly established regulations by acts of sederunt for the more speedy administration of justice, and it were absurd to suppose that parliament had not tie paramount power to enforce regulations for the better

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administration of justice. The introduction of the trial by jury formed part of the resolutions passed last session, and since that period no petition had been presented to the house from any part of Scotland against that part of the plan. He was therefore warranted in supposing that there was no objection to its introduction.
The Earl of Mansfieldafter modestly apologising for offering himself to the attention of the house upon such a subject, expressed himself of the same opinion with the noble lord (Melville), and cited an opinion delivered by that great lawyer, the earl of Mansfield, that the introduction of the trial by jury in Scotland, so far from being advisable, might be attended with much hazard in the experiment; so totally unsuited was it to the habits and prejudices of the people.—The house then went into a committee pro forma, in which lord Eldon gave notice that he should, when they came to the clause relative to the trial by jury, move that it be omitted, for the purpose of having another substituted, better suited to answer the desired purpose.—Progress was then reported, and the committee obtained leave to sit again on Wednesday.