The Lord Chancellormoved the third reading of the bill to afford further time, for the commissioners to report upon the Judicature of Scotland.
§ Earl Stanhopespoke at length upon the 890 subject, and entered into the principles and details of the proposed measure. He complimented his noble and learned relative (lord Grenville,)—learned, he called him, because, he had studied the laws of the country, and because he was once in the learned profession—for his manly and just attempts to give the Scotch the benefit of Trial by Jury. He thought it was very difficult to shew that the Scotch people should not have that benefit; they were, in fact, better educated than the people of this country, with the exception of certain districts, and more likely to be fit, good, and true jurymen. If it was argued, that they were not so fit to receive that blessing as the people of England, that would not do, for the argument must be pushed farther, and it must be maintained that they were more unfit than the people of England were hundreds of years ago: and what was the state of the people of England 300years ago? Why, their lordships might forget that about that time, in the reign of our Edwards, there was a particular application of an old privilege of ours, he meant the benefit of clergy, rather of a curious sort. The benefit of clergy was at first, intended only for those who could read: afterwards, it was farther extended to other persons of rank and situation; and it was then enacted, that it should extend to all their lordships, to all peers of parliament, temporal and spiritual too; that is to say, to my lords the bishops, as well as to lay lords. Now, it was enacted by that statute, (of which he read a quotation) that any temporal lord, or any bishop, guilty of highway robbery, or housebreaking, or horse-stealing, might plead the benefit of clergy. (A laugh.) Such was the state of our forefathers. And yet, at that time of ignorance, it was not thought improper to entrust common people with the rights, duties, and privileges of jurymen. And if we, in the dark days of ignorance, were fit to be so entrusted, could it be argued that the shrewd and knowing people of Scotland were unfit to be entrusted, in this enlightend century, with a similar right? It was impossible to maintain that argument.—His lordship then entered into a variety of modes by which, the desired object might be gradually accomplished, and pointed out the means afforded by the difference of special and general verdicts, and by the facilities that might be given to the court in the first instance of making the verdict special 891 or general. He likewise dwelt for some time, with much ingenuity, on the alteration in the forms upon which issues depended in cases of trial. He also made many observations as to the mode of deciding by precedents. If for instance there were 21 precedents; a judge must decide by considering the first, second, and third precedent, and so on to the end of the chapter, and then find out which were the best precedents, or the most numerous ones, in order to make up his principle of decision. In some cases, as in the law about "powers," he had counted about 1600 precedents. Well; if a judge had to decide in such a case, what could he do? Why, perhaps he might be some great legal chymist who could speedily decompound and analyze all these different precedents, and ascertain all their various qualities, and extract all their particular juices, and out of them all compound a fine pulp, of which he would make a most excellent principle to guide him in his decision. But this was not sure work. He declared himself friendly to the introduction of trial by Jury in Scotland; but unless his noble relation had any thing to move immediately on this subject, he should be obliged to give the commissioners a little more time, though he thought there was no reason for unnecessary delay.
§ Lord Grenvillereviewed the great delays that had occurred in this business, which had been originally proposed by him in June, 1806, and which had been put aside on the change of administration, when parliament was dissolved without being suffered to do any more than to undo what was proposed on behalf of the people of Scotland. That system of procrastination was sedulously pursued, till at last a commission was appointed, nominated by the crown, near the close of last session, and now, instead of their labours, we had one report, and a motion to give them another twelvemonth to consider what they would do. A bill was brought in, without notice, (and he did not know of it till within 24 hours of one of its most important stages,) to extend their time. This he had and would reprobate. A noble and learned lord (Erskine), knew nothing of it, though one of the commission, till he, meeting him, told him of the circumstance. He dwelt upon the propriety of parliament acting for itself, and not acting on the opinion of the Scotch judges, who could not be supposed to be favourable to the 892 introduction of a jury, which was a species of popular controul on their authority. Still he did not mean to speak with disrespect of those judges; but he had found that no man would deny that the alterations wished for were most desirable. The application of the principle, he had never denied, involved many difficulties; but the question of form must be sacrificed to the essential merits of the measure. He then, while he admitted every thing in favour of the commissioners, individually, condemned them for their conduct in some particulars. There was one circumstance most important, to which he begged their lordships attention. The report itself admitted the evil; but by an assumption of the strangest kind, assumed a power which the act of parliament never gave them. The warrant in the sign manual he had never seen, but must suppose it was voted according to the act. He must remark that though the act passed on the 2d of July, yet the sign manual only bore the date of the 2d of November, and the instrument was not received in Scotland till the 20th of November;, that made him incline now to afford the commissioners farther time. But he must ask the noble and learned lord, whose official situation made him particularly looked at in this matter, why that delay occurred? The report noticed that gross and scandalous anomaly in judicial proceedings by which persons who had obtained the sentence of the court of session were yet, before they could obtain the consequent advantages, compelled to get a copy of the sentence, or, as it was in Scotland legally expressed, "an extract of the decreet." He had much information on that point. In one case, that copy cost an individual 1,200l. and in another case, where the whole property in question was from 500l. to 600l. the charge for such copy was above 300l. Was it fit that such monstrous abuses of courts of justice should exist a moment longer? Was it not a standing disgrace to the country, if we permitted their existence a moment longer, after the developement of the facts by a report of the commissioners? And yet these commissioners elected themselves into a committee of supply, and did that than which nothing could be more unconstitutional and dangerous. They said, that while they stated the evil, they waited till a compensation was arranged for the clerks, and other persons who received fees out of these monstrous and horrible charges. Would any noble lord say, that the com- 893 missioners had any thing to do with this part of the subject? Were they appointed to enter into the consideration, far less to settle the arrangements of the burthens that were to be borne by the public? No! it was that house, and the other house of parliament especially, that were to consider of the demand of compensation by money to any person who might be injured by any regulation beneficial to the community. He was sure that no one would propose or support any thing that could go to destroy the means of individual subsistence, and to take from him that to which he had been legally accustomed to look for his support or his comforts; but surely their lordships could not refuse to pass, even at this late period of the sessions, a bill to remove this flagrant and crying evil. He had drawn up a bill on the subject, which he meant to offer to their lordships. Suppose any person placed in a situation similar to those he had described, between the present time and that to which the existence of the commissioners was to be protracted, would he not have reason to condemn their lordships for the hardship and injustice he suffered, through their lordships supineness, after the acknowledgement contained in the report they had received? His lordship concluded, after many observations on the administration of justice, and the abuses that had, by length of time, crept into it, by pressing the importance of the present subject.
The Lord Chancellordenied that he had any intention of taking the house by surprize in his bill to extend the duration of the commissioners, and appealed to a noble and learned lord (lord Erskine) who had just come in, for his opinion on that subject with respect to his motives. He felt that there were many difficulties in the present question. As to delay, there was some time required in Scotland to arrange the courts in consequence of the last bill, enacting a new division of them; besides, there was a circuit in Scotland as well as here. He had selected the commissioners from the judges both here and there, from advocates, special pleaders, writers of the signet, and others, the best qualified to give advice and information. He maintained there was no particular delay, and asserted his original opinion that the first bill (lord Grenville's) was not founded or recommended upon sufficient information respecting the laws and practice of the courts of Scotland.
§ Lord Erskinespoke in defence of the 894 original bill of lord Grenville. He admitted that he had not attended the commission, and he said that he did not see what great good he could do in that commission. He considered the forms of trial in Scotland as not easily to be adapted to jury trial, and he thought that in such a case, we should sacrifice these forms, notwithstanding their antiquity, to the great advantages to be derived from trial by jury, which he thought to be the only way in which his native country could experience the best blessings of justice. He adverted to the numerous appeals from Scotland, on which it was almost impossible to do justice in that house. Indeed, it was almost a standing disgrace to the laws and to the house. He cast no personal reflections. The marvel was, how the business was got through. When he had the honour for a short time to preside in the court of chancery, and in that house, he had stated that to be his opinion. But he did not think the opinion of the Scots judges, on whom he passed a high eulogium and tribute of praise, to be the best ground-work on which their lordships could form their judgments. The jury were a popular controul on the judge; and the introduction of it might not be palatable. If a man went into the new forest, and called the animals there together, and asked them how they liked saddles and bridles, it was pretty likely that, if they had the power of speech, they would give their opinion against any such innovation.
§ Lord Redesdaleobjected to the extent of the proposed introduction of jury trial into Scotland. In some respects he thought jury trial objectionable, as in the case of an action in a bond, in which and in other cases, he thought the law of Scotland wiser than our own. His lordship defended the conduct of the commissioners, and stated his opinion, that the original bill was introduced without sufficient knowledge or information respecting the Scots laws.
§ The bill was then read a third time.
§ Lord Mulgraverose, and intimated his wish to make a particular communication, when strangers were ordered to withdraw. Upon our return to the bar,
§ Lord Grenvillewas addressing the house on the importance and necessity of the bill which he was about to propose, for the relief of suitors in the Court of Session in Scotland. He should conduct his perseverance in the measure, agreeably to the sense of the house, manifested on the present occasion. He concluded by moving, that the bill be read a first time.
The Lord Chancellordeclared his consent to the first reading of the bill. Alluding to an observation of the noble baron, he never could admit that lawyers should have, in judicial affairs, a greater share in legislation than other peers. But he could not help observing, there never was a lawyer who did not fancy himself a statesman, and there never was a statesman who did not fancy himself a lawyer. He held an opinion that the introduction of trial by jury, in civil cases, would not answer the expectations of those who most contended for the measure. It reminded him of a discourse on the subject, by two very learned persons in the North. The one entertained an opinion hostile to the measure, and asked, with what machinery he would introduce it? "Why," answered his friend, "there is nothing more easy; make an act of parliament for its introduction." The first replied in his Northern dialect: "My friend, if an act of parliament were passed to make us speak English, I believe we should speak Scotch notwithstanding."
§ Lord Redesdalehad no objection to the first reading of the bill, but urged the difficulty of framing a measure to give effectual remedy.
§ The bill was then read the first time.