Lords Sitting of 9 August 1836

MINUTES.
Bills. Read a third time:—Turnpike Roads Acts continuance.—Read a second time:—Assessed Taxes; Spirits Excise; Court of Exchequer, (Scotland); Foreign Lotteries; Gold and Silver Plate (Scotland); Ecclesiastical Appointments Suspension; Western Australia.
Petitions presented. By Lord LYNDHURST, from Penryn and Falmouth, against Stannaries Bill.

COMMON FIELDS ENCLOSURE.
Lord Ellenborough Lord Ellenborough moved, that the House resolve itself into a Committee on the Bill for enclosing common arable and meadow fields. If the objections which had been made to the Bill were not obviated by the amendments which he meant to propose, he should be ready to agree to any suggestions which noble Lords might think proper to introduce for that purpose. The Bill, he ought to observe, was not intended for the enclosure of waste lands, but of lands that were already cultivated. He should, on this occasion, state his amendments, which might be taken into further consideration on Thursday next, if convenient. The noble Lord then briefly explained the nature of his amendments. One of them rendered it necessary that before lands of the description contemplated by the Bill were enclosed, the consent of two-thirds of the proprietors, as well in number as in value, should be procured. Others provided for the election of an umpire in case of dispute, and for the course of proceeding which, under particular circumstances, was to be adopted by the Commissioners.
Lord Hollandexpressed a hope that some waste space near large towns would be preserved, for the comfort and benefit of the inhabitants.
Lord Ellenboroughsaid, that with the amendments which he proposed to introduce, wastes could not be enclosed under the Bill.
Lord Lyndhurstobserved, that common fields under cultivation could not be enclosed within a circle of ten miles round the metropolis, and he thought that it would be proper to adopt the principle with respect to large towns, providing that no enclosure of that nature should be allowed within a circle of five miles.
Lord Ellenboroughwas of opinion, that

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if such a proposition were agreed to, it would be better for their Lordships not to pass the Bill.
The Duke of Richmondwas of opinion, that when these amendments were printed, the best course to be pursued was, to refer the Bill to a Select Committee.
Lord Ellenboroughsaid, it was certainly to be regretted, that the Bill had come up to their Lordships' House at so late a period of the Session. The noble Duke would recollect, that when he (Lord Ellenborough) introduced two Bills, having the same object, he had willingly agreed that they should be referred to a Select Committee. But his apprehension was, that if the present Bill were referred to a Select Committee, at this very late period of the Session, they would not be able to report in time, so as to carry the Bill before the Prorogation.
The Bill went through the Committee, and was reported with amendments.

COURT OF SESSION (SCOTLAND).
The Lord Chancellor, in moving the second reading of the Court of Session Scotland Bill, stated, that its object was, to carry into effect the recommendations contained in two reports of the Law Commissioners for Scotland. The Bill was one almost entirely of details, and would be better considered in Committee than on the second reading. It could not be said, that the Bill was not a sufficient length of time before Parliament, to enable those who were most interested in its provisions, to judge of their propriety and necessity. Ample time had been afforded to those parties to form a just opinion of its merits. The Bill was brought into the House of Commons on the 30th of March, and having slowly gone through all the intermediate stages, it was read a third time and passed on the 29th of July. It was worthy of remark, that although it had been so long in the House of Commons, the measure had not undergone any material alteration. The Bill had, therefore, been before the judges and the practitioners of Scotland ever since April last. The great object of the measure was, to save the expense to which suitors in the Court of Session were now subjected to in the shape of fees; and the saving which it was confidently believed the Bill would effect would amount to from 15,000 l. to 19,000 l. a-year, being one-fourth part of the whole of the fees exacted in the Court
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of Session. He trusted, as such was the object of the Bill, that their Lordships would proceed with it, unless some very cogent reasons were advanced in opposition to it. The effect of the Bill would be, to put an end to unnecessary offices, to put an end to unnecessary patronage, and to render more economical the proceedings in the Court of Session. As the arrangement now stood, a most important branch of business (where the validity of legal instruments was disputed) was confided to the decision of the junior judge. Why such an arrangement had been made, or how matters of such moment came to be confided to the junior judge, it was not his intention to inquire. But it was deemed necessary to alter the system; and the Bill provided, that the junior judge should no longer be intrusted with that exclusive jurisdiction, but should take his turn with the other judges. Another point aimed at by the Bill was, to equalize the pressure of business; for, under the existing arrangement, some of the judges were overloaded with business, while others had comparatively little to do. It was found also that the officers attached to the Court were more numerous than was required. Therefore it was proposed, that the six assistant clerks should be reduced to four, who, instead of being paid by fees, should receive a fixed salary of 300 l. per annum each. These provisions were distinctly recommended by the reports to which he had referred. It was further provided, that the six depute clerks of Session in the outer House, and their six assistants, should be reduced to five depute, and five assistant clerks. There were other matters of minor detail, with which he did not think it was necessary to trouble their Lordships, and which would, perhaps, be better considered in Committee. But he might be permitted to state, that a great reduction would be effected by the Bill in the extractors' department, that department through which extracts from the proceedings of the Court were procured. There were, at present, four extractors and eight clerks; but it was considered proper, and so the Commissioners had reported, that there should be only one principal extractor, with an assistant, and that they should employ such and so many persons in the labour of writing, as circumstances might, from time to lime, require. Having stated the principal objects of the Bill, he would move, That it be read a second time.
The Earl of Rosslynopposed the motion. The provisions of the Bill involved almost a fundamental alteration in the constitution of the Court of Session. It was a question of the highest importance, connected not merely with the interests of individuals, but with the feelings and habits of the people of Scotland. The Bill might have been much considered in the other House of Parliament, but he contended, that their Lordships ought to have an opportunity of amply considering it in their House. Under all the circumstances, he would ask, was it fair to that House—was it fair to the Court of Session—was it fair to the people of Scotland, that a measure of this nature should be submitted to their Lordships at so very late a period of the Session? After several observations on the provisions of the Bill, the noble Earl expressed a hope that the measure would be allowed to stand over to the next Session, when it, or a Bill of a similar nature, might, at a very early period, be introduced, so as to enable their Lordships to consider it attentively. The noble Earl concluded by moving, as an amendment, "That this Bill be read a second time this day six weeks."
The Lord Chancellorsaid, the Bill, as he had already stated, was strictly confined to one point—the carrying into effect the recommendations of the Commissioners. Their Lordships would, of course, exercise their discretion in forwarding or rejecting this Bill. It had been before Parliament since the month of April last, and ample opportunity was given to all those whom it immediately concerned to investigate and consider it in all its provisions. He thought, that it was rather unreasonable, when the people of Scotland and the Judges of the Court of Session had so much time given them to consider the Bill, for the noble Earl to come forward now and require its postponement. The Judges must have made up their minds on the subject long before this. If this were an entirely new measure, and not recommended by the Commissioners, then noble Lords might say, "It is necessary to have inquiry; let us ascertain the facts." But in this case, the subject had been inquired into, the facts had been ascertained, and unless the statements of the Commissioners were falsified, they ought, he conceived, to proceed with the Bill. He called on their Lordships, at all events, not to prevent its
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being read a second time, since by opposing it they would array themselves against the principle of the measure, which had hitherto never been impugned.
Lord Wynforddid not mean to go into the merits of the Bill. But, whether it was a good measure or a bad one, sufficient time should be given to their Lordships to consider it in all its bearings; and as that could not be done at the present period of the Session, he should vote for the amendment.
The House divided on the original motion:—Contents 27; Not-Contents 37: Majority 10.

List of the CONTENTS.

Lord Chancellor

Thanet

DUKES.

Charlemont

Argyll

VISCOUNTS.

Leinster

Melbourne

Richmond

Duncannon

MARQUESSES.

Falkland

Headfort

BARONS.

Lansdowne

Plunkett

Queensberry

Strafford

Westminster

Dinorben

EARLS.

Gardner

Albemarle

Langdale

Sefton

Hatherton

Leitrim

Mostyn

Ilchester

Saye and Sele

Scarborough

Bishop of Bristol

Second reading put off for six weeks.