HL Deb 22 March 1881 vol 259 cc1616-37

Order of the Day for the House to be put into Committee read.

THE LORD CHANCELLOR

said, he very much regretted that on the occasion of the second reading of this Bill he had not the opportunity of making a statement to their Lordships of the reasons for its introduction; and he also thought he ought to apologize to their Lordships for having put the second reading for as early a date as he did after the time that the Bill was introduced. He should certainly not have done so if he could at that time have anticipated the strong sentiment upon the subject which had manifested itself in Scotland. The Bill had been prepared by his learned Friend the Lord Advocate, after communicating with, and ascertaining the opinions of, those who, from their position, had the best right to be consulted: and, having himself had the advantage of personal communication with some of those learned persons, and of seeing the views expressed by others, he had regarded the Bill as one to which, though it might require discussion in Committee, no objection was likely to be offered in an earlier stage. Whatever might be thought of the proposals made by the Bill, it was a matter of gratification to find how popular the Court of Session was in that country, and how great was the satisfaction with the way in which justice was administered in that Court. But it was his duty to state to their Lordships the reasons which caused the Government to suppose that they would be doing a public service, and in no way interfering with the efficient administration of justice in Scotland, if they recommended to Parliament such a reduction of the judicial staff of the Court of Session as was proposed by this Bill, and as appeared to be so much objected to. Their Lordships, he was sure, would all be of opinion that it was not desirable in any Court or in any country to have a greater judicial staff than could be kept constantly and fully occupied with the business of the country; and, however well under the existing system the judicial business of Scotland might be performed, yet, if by a greater economy and better arrangements as to the distribution of the power of the Court, a smaller number of Judges would be sufficient, the Government would be doing no more than their duty in making such a proposal to the House. Their Lordships would, perhaps, permit him first to state what was the present judicial power of the Court of Session in Scotland, and how it was distributed, and to compare it with that in England; and inasmuch as he knew that in the minds of some this was a question which ought not to be considered apart from the question of the local Courts in Scotland, he would also state what was the judicial power of these local Courts at present, and how it stood comparatively with that of the corresponding tribunals in England. The Court of Session, with the full number of Judges—there was at present one vacancy—would consist of 13 Judges of the first order. It was divided into what were called the Outer and the Inner House. The Inner House, consisting of two divisions of four Judges each, took all the appeal business; while the Outer House, consisting of Judges called Lords Ordinary, who sat each separately, took the business of the Court which arose in the first instance and certain summary proceedings. The business of the Inner House was not exclusively appellate; it had at present eight Judges; and for the business of first instance, in what was called the Outer House, they had five Judges. If that were compared with England, they would find that in England there were in all six ordinary Judges in Appeal. They had occasionally assistance from three ex-officio Judges, the Lord Chancellor, the Lord Chief Justice, and the Master of the Rolls; making nine, therefore, if they included the extraordinary assistance, as compared with eight in Scotland. But the Inner House in Scotland did not, like the ordinary Judges of Appeal in England—except when on Circuit—do appeal business alone. In England the Judges of first instance, including the Chief Justice and the Master of the Rolls, who also sometimes sat in the Court of Appeal, were not less than 22 in number. With regard to the Inferior Courts in Scotland, there were 18 principal sheriffs, and about 50 sheriffs substitute. In England there were 57 County Court Judges. Their Lordships would see that upon that comparative statement two things were apparent—first, that upon the whole the numerical strength of the Scottish Bench, both in the Court of Session and in the country generally, was greater in proportion than the English with respect to the population and business; and, secondly, that if they regarded the Inner House in Scotland with respect to its main functions as an appellate tribunal, the disproportion was still greater. The subject of the strength and constitution of the Court of Session was considered by a Commission which reported in the year 1870, of which he himself and other Members of their Lordships' House not connected with Scotland were Members, and also the present Lord President of the Court of Session and Lord Justice Clerk of Scotland, and other learned persons then or now on the Scottish Bench. That Commission undoubtedly did express an opinion that the then number of 13 Judges in the Court of Session could not by any redistribution or in any re-arrangement be diminished without interfering with the efficiency of the Court, and without injuring the public. Speaking for himself, he would say that he was very much influenced as a Member of that Commission by the opinion of the Scotch Members of it, particularly of Lord Colonsay. He did not wish at all to detract from the authority of the Commission of 1870; but he must submit to their Lordships that that was not a conclusive view, and ought not to stand in the way of any arrangements which further consideration might suggest. Two years before that Commission reported, a very important Act had been passed for the simplification and improvement of the judicial procedure in the Court of Session. In the year 1870, when that Report was made, full experience could not have been had of the working of that law. But it had since worked, he believed, most successfully, and had tended among other things to the expeditious discharge of business, and after that experience, there had been reason to believe, that, under proper arrangements, a smaller number of Judges might discharge the work of the Court of Session than the number of 13. It so happened that there had since been frequent vacancies upon the Bench, some of which had continued for a considerable time. There were two vacancies, he thought, at that very time— namely, 1869–70—and they continued for some months without, he believed, any serious inconvenience. He passed over one vacancy which continued for some time in 1873–4; but there was another which continued for, he believed, more than three years before the change of Government, which took place in April last. He understood that it was the declared view of the late Government that advantage ought to be taken of that vacancy to re-consider the whole subject; and he thought he did not misunderstand that view when he added, that it was intended by them that some reduction of the number of Judges should take place. Inasmuch, however, as no such legislation had taken place, they considered eventually that they had no option but to fill up that vacancy, which was done last year. Other vacancies had since occurred, and there was one now; and that, partly, was the reason why the Government had thought it right to bring the matter before Parliament at this particular time. As he had pointed out to their Lordships, the vacancy which was filled up in the spring of last year had existed for more than three years; and, according to the information he had received, the administration of justice in Scotland was perfectly satisfactory during the whole of that time. Furthermore, he could not but believe, from the information which he had received, that the present strength of the Outer House was greater than was necessary for the regular discharge of its ordinary work. It was admitted that blank days were of no uncommon occurrence. In 1868–9, and he believed since, each Lord Ordinary had one blank day every week; some of them were said sometimes to get through a whole week's work in two or three days; and others were, not unfrequently, obliged to rise after the discharge of the merely formal business. He was told that the work had been greater within the last year or two: and he did not doubt, that at times all the Lords Ordinary might be fully occupied; but that could not be considered as a general or universal rule. He had seen it stated, in some papers which had been circulated, that at the time the Courts rose for the Vacations there were arrears still to be disposed of; but he did not think these arrears could be very serious or important, for this reason. By a section of the Act of 1868 it was expressly stated that causes for trial before the Lords Ordinary at the end of the Winter and Summer Sessions should be taken in the Recess by the Lord Ordinary or some Judge acting for him. But he did not learn that that provision had been often, if at all, called into operation. If the judicial power were capable of being distributed according to the actual requirements of the ordinary business, he acknowledged that under extraordinary pressure four, or even five, Judges might sometimes be wanted in the Outer House; but the Bill before the House would enable a Judge to be spared from one of the Inner Divisions when wanted for work in the Outer House; and he could not think that any serious evil would arise from that. The Bill contained provisions, like those in the English Judicature Acts, for making the whole judicial strength of the Court available for all the business, of every kind, which might be transacted in it; and in this way such an economy of power would be secured as to render the full number of 13 Judges excessive. He knew that there was an opinion prevalent in Scotland that four was a good number for a Court of Appeal. Experience, however, in England and Ireland seemed to prove that three was also a good number. At present all the business of the Court of Appeal in England, which was divided into two branches, was done by three Judges. The House of Lords, except in cases of more than common importance, usually sat as a Court of three, and their Lordships had no reason to suppose that inconvenience or dissatisfaction was caused by that arrangement. In addition to these considerations, which related to the Inner House as a Court of Appeal, he had to state to their Lordships that half, or more than half, the business of that Court consisted, not of appeals from the Lords Ordinary, but of cases brought up from the Sheriff Courts, and of original business, chiefly in the form of special cases, of various kinds. He could not but think, therefore, that the arrangement the Bill proposed, which would make the number four in each Division, and which would enable each Division to spare a Judge when wanted for the Outer Court, would be found amply sufficient for the satisfactory administration of justice both in the appellate branch, and in the first instance. Any multiplication of Judges beyond the numbers which were really necessary for the discharge of business was in itself an evil. If the arrangements for the distribution of judicial power were not such as to provide work sufficient fully to occupy the time of the Judges, there was always a risk, however earnest and assiduous the Judges might be in the discharge of their duties, that the system would become more or less lax on account of the want of sufficient occupation. That was his apology for having thought it right to introduce this measure, the details of which he would leave to the future consideration of their Lordships, although he believed they would not provoke any great controversy, except on this one point of the proposed numerical reduction.

Moved, "That the House do now resolve itself into Committee."—(The Lord Chancellor.)

EARL CAIRNS

regretted somewhat that, from circumstances to which his noble and learned Friend had referred, more attention was not drawn to the Bill on the second reading, and that more opportunity was not given to the House at that stage for discussing it. Looking at the Bill, the first thing which caused him some regret was its scope. He doubted very much whether in any country, and especially in Scotland, looking to the character of the Judicature, they could deal satisfactorily with the higher class of Judges without some reference to the subordinate or local Judges. His noble and learned Friend had himself referred to what might be called the local Judges. There were, he thought, in all 18 sheriff principals and 50 sheriff substitutes. Now, it occurred to him that if any proposal was made to alter the Judicature of Scotland with regard to the Court of Session, something ought also to be done with regard to the position of the Sheriff Courts of the country. There was an appeal inside the local Courts which had struck him as exceedingly inconvenient, an appeal from the sheriff substitute to the sheriff principal. He hoped that question would be re-considered some day, and the people of Scotland would come to be of opinion that they would be better not to have an appeal from the sheriff substitute to the sheriff principal. If that appeal were done away with, it would add to the work of the superior Courts, and might cause their Lordships to regret diminishing the number of the superior Judges. It would, he believed, be much more satisfactory to have only one litigation in the local Courts, and a direct appeal from the sheriff substitute to the Lord Ordinary in the Court of Session. He did not altogether disregard the money consideration; but if this mode of appeal was done away with, there would be good reason to make some modification in the two classes of sheriffs, and that would save quite as much as by doing away with two of the superior Judges. He regretted that that had not been considered; and he must say that, in his opinion, no re-construction of the judicatory in Scotland would be satisfactory unless they dealt with the whole question together. His noble and learned Friend the Lord Chancellor had spoken of the time of the Judges of the Superior Courts not being fully occupied. There were, in Scotland, in all 13 Judges, four in each of the two Divisions, and five Lords Ordinary. If the noble and learned Lord meant that the Scotch Judges were not so fully occupied as the English Judges, he entirely agreed with him. He knew no country where the Judges were so fully occupied as in England. He thought they had a great deal too much to do, and that with the enormous pressure on the Judges they would do more justice to themselves and to the public if they had not quite so much to do. The Scotch Judges had not so much to do; but here, again, they must look at the question of salaries. The English Judge received nearly double what the Scotch received. If they were to propose to the Scotch Judges that the work to be done by them was to be measured by that clone by their English brethren, they would naturally say, if they were to be worked at high pressure like the English Judges, they must be paid accordingly. He thought the Lord Chancellor had hardly done justice to the Judges of Scotland when he said that the Lords Ordinary had each a day in the week.

THE LORD CHANCELLOR

Down to 1868, he was not sure how it might have been.

EARL CAIRNS

But the Lord Ordinary in Scotland, in pronouncing his judgment, wrote with his own hand an elaborate interlocutor and note, describing the facts of the case, and entering fully into all the reasons for his judgment. He spoke from observation when he said these notes were of the greatest use when the cases came up before their Lordships' House. No Judge, he maintained, could possibly give these written judgments unless he had some spare time to prepare his notes. English Judges, no doubt, occasionally delivered written judgments, but more commonly they did not; and, therefore, they did not take the time which the Lords Ordinary in Scotland required. On the other hand, he thought it would be unfortunate to the public to have no margin whatever of judicial strength in their arrangements. Look at the consequences in the case of any of the Judges being ill. A whole Court was knocked out of work, because they had no margin on which to draw. Recently there had been examples of the speedy and economical transaction of business in Scotland, in connection with the City of Glasgow Bank cases. A great many questions arose from that failure, and it was of the greatest possible moment that they should be solved economically and expeditiously; and he must say they were disposed of with a rapidity, regularity, and precision, which he never saw equalled in England. Fourteen of these cases were appealed to the House of Lords; but in only one case was there a slight re-arrangement of the judgment in the Court of Session, and that was a high testimony to the manner in which the business of the Court of Session was transacted. He felt satisfied that the original hearings of the cases in Scotland were all taken within a few weeks. What this Bill proposed was to make a reduction of the Lords Ordinary to three. Now, the Lords Ordinary were the primary Judges of the country, and it struck him that was a very strong proposal to make to reduce them from five to three. It was a remarkable thing that the only Parliamentary evidence existing upon this subject was the Report of the Royal Commission which sat some years ago. His noble and learned Friend said he paid considerable deference to the opinion of the Scotch lawyers, and was very much influenced by their views; but here it was. This Royal Commision, consisting of 20 Members, and including a number of very eminent men—the Lord Justice General, Lord Young, Lord Moncreiff, the late Mr. Justice Willes, Sir Roundell Palmer, Lord Rutherfurd Clark, and Mr. Sclater-Booth—reported in these terms— As regards the total number of Judges, they are unanimously of opinion that the present number of thirteen cannot, by any re-distribution of the staff, or under any re-arrangement of business, be diminished without detriment to the efficiency of the judicial establishment, and consequent injury to the country. He did not think it possible that stronger words could be used; and he must say that in face of that Report, and with no further evidence, he could not, for his part, assent to the Bill.

THE EARL OF ROSEBERY

rose with very great reluctance to say a few words on this Bill. In the first place, he was haunted by the fear, common to the lay mind, of treading on that legal ground where wandering was apt to be treated by learned Lords with their very just contempt; and, in the second place, he was very sorry to be compelled to object, root and branch, to the proposal of the Government of which the noble and learned Lord on the Woolsack was the Representative on this occasion. And this led him to remark that the people who would be affected by this Bill had been very largely the back-bone and muscles of the present Parliamentary majority that kept that Government in power. As regarded that point he had only to say this—that from every communication he had received, and from every means of forming an opinion that could be given by the public Press, he believed his view to be entirely that of the great mass of the people of Scotland, and not the view of Her Majesty's Government. Why was that Bill introduced? Had there been any complaint is Scotland of the administration of justice? Had there been any great popular demand for this measure? The Scottish people, as was known, were not a Conservative race. Any proposal that came before them, having, for its object drastic change, was supposed to appeal with irresistible power to all the sympathies of the Scottish nation. But, as a matter of fact, this Bill had been received not with the applause with which such a measure should be received in Scotland, but had been received with an almost unanimous chorus of denunciation and dislike. He was not always a great believer in Parliamentary Petitions. There were means of securing a very great show of Petitions by judicious agitation; but on this occasion, as far as he knew, without any stirring of the waters of agitation, without a word spoken, Petitions had come in in the most remarkable manner from every important body almost in Scotland, and certainly from the two most considerable cities in Scotland, praying their Lordships not to pass this Bill into law. He had the honour this evening to present a Petition from the Lord Provost, Magistrates, and Town Council of the City of Edinburgh, praying their Lordships not to proceed with this Bill. That, of course, was an important Petition. There was a somewhat natural and generous rivalry between the City of Edinburgh and the City of Glasgow, which prevented them often concurring on measures of the same nature. But on this occasion the lion had lain down with the lamb, and the City of Glasgow went hand in hand with the City of Edinburgh, asking their Lordships not to pass this Bill. He would not go into details as to the various Chambers of Commerce that had petitioned against the Bill, but he wanted to take one peculiar body—the Trade Protection Society of Scotland. That was not a legal Society; it was a Society having representatives in every small town and district in Scotland. It numbered over 2,000 members. It might be taken as a fair commercial representation of the people of Scotland; and they, unsolicited, had petitioned most vigorously against the Bill. Now, under these circumstances, he must express some surprise to hear the noble and learned Lord on the Woolsack say that he had brought in this Bill after mature consideration with those who had the greatest interest in the administration of justice in Scotland. Who was it that had the greatest interest in the administration of justice in Scotland? Was it not the people of Scotland? Was it not the great cities of Scotland—the commercial bodies and corporations of Scotland? And those cities, bodies, and corporations of Scotland were one and all unanimous against the Bill. The question thus arose—what was the call which had led to this Bill being brought in? He meant to have touched on the very remarkable Report, which was the only evidence on which they had to proceed. That Report, as they had only recently heard, was signed by Sir Roundell Palmer, by the Lord Justice Clerk—whom he saw present—and by almost every great judicial authority in Scotland. What had occurred since then to change the views of those noble and learned Lords? They had no evidence upon that point. It was not necessary for him to go into the points raised by the noble and learned Earl who lately sat on the Woolsack. He thought that the people of Scotland had a right to ask why was that Report, signed by names that they respected so greatly as they did those, not acted upon? There was much that was interesting in that Report, and he heard with the greatest astonishment the noble and learned Lord argue against the very powerful Report that had been signed by Sir Roundell Palmer; but he devoted a large portion of his speech to arguing against a Division consisting of four Judges, and he naturally turned to the Report, which, as they had already said, was the foundation of all their Parliamentary evidence on the question, and what did it say? It said— We are of opinion that each Division should consist of four Judges, although, to meet the ordinary contingencies, a quorum should be three as at present. A Court of four sitting as a Court reviewing the judgments of Lords Ordinary, and giving a decision that is to be final, unless it be appealed to the House of Lords, is in every respect preferable to a Court of three. More minds are brought to bear upon the case, and if a majority differ from the Lord Ordinary, though one should concur with him, the judgment has the weight of a majority of the five Judges who have considered the case; whereas in a Court of three, if one Judge should concur with the Lord Ordinary while the other two differ from him, the judgment could not have the same weight. Now, in considering these very important paragraphs, it did appear material to consider what had occurred to change this weighty opinion. Had business diminished since then in the Courts of Scotland—since the time of the 13 Judges—that the number could now by an impossibility be reduced? Now, they could find that out very easily. The important cases were the cases initiated by summons in the Courts of Scotland. In 1869, when this Commission was sitting, these were the figures on which they formed their opinion. There were 1,026 of these cases. In 1879, two years ago—and that was the last Return he had, and it was that on which the noble and learned Lord came down and said that it was necessary for the Judges to be reduced—the number of cases was 1,352. This was the more remarkable when he mentioned that the last few years had been years of remarkable depression and stagnation of trade, without which they might fairly suppose the cases would have been very considerably more numerous. Had the population increased? The population in 1870 was 3,222,000; in 1879 it was estimated at 3,627,000. They had thus an estimated increase of population in Scotland of nearly 500,000. There was a certain increase under unfavourable circumstances of 300 cases, and yet they said they were to disregard their former opinion and abolish those Judges. The question then arose—Was business likely to dimish? Now, there was a Bill which had recently been introduced into "another place" by the recognized law authority of the Crown, dealing with the subject of teinds—for the purposes of interpretation, he would venture to explain that was the subject of tithes in Scotland. Well, under that Bill, one Judge was to be detached to do the work of that Bill. That was another reduction. It was quite possible that Her Majesty's Government might not see much prospect of passing that Bill; but surely it was not, at the moment of introducing a Bill which was to detach a Judge for two or three years from their Courts, wise and expedient to introduce a Bill to reduce them. There was another thing he wanted to draw attention to. The City of Glasgow had petitioned, as he said before, with regard to this measure, and one of the things that they said was somewhat remarkable. It was that— The amount of civil business in Glasgow and other large centres of population will, in the case of your petitioners, necessitate arrangements being speedily made under which the Judges of the Supreme Court shall hold frequent Circuits for the discharge of business as occasion shall arise. In view of the possibility of such an arrangement, which seems to be favourably regarded by the Lord Advocate, a diminution of the existing number of the Judges of the Court of Session will be highly inexpedient, and if effected would seriously interfere with the carrying out of such Circuit arrangements. That, even under existing arrangements for the transaction of criminal business, it is a subject of great complaint that these Judges are unable to make more frequent visits to Glasgow and other towns, and much unnecessary hardship and expense are occasioned by the long interval between Circuits at present. If one or more of the Judges of Justiciary should be detailed from the Civil Courts to try criminals in the several districts as often as occasion arises, a great im- provement would be effected in the administration of justice. To this your petitioners attach much importance. They feel that it would be desirable to have the number of Justiciary Judges increased, a step which a reduction of the number of judges of the Court of Session would render practically impossible. But he went further. It was well known that the Home Secretary visited Scotland last year. It was also perfectly well known that the Home Secretary was appalled at the length of time that prisoners were kept in detention without being brought to trial. He asked the first prisoner he met in one of the great gaols of Edinburgh or Glasgow—he forgot which—how long he had been in prison? The prisoner said he had been three months in prison without trial. Yet that was the moment when the noble and learned Lord proposed to reduce the member of Judges in Scotland. There was another point, and that was the question of sheriffships. Was it supposed that no legislation was contemplated with regard to sheriffships? It was well known that a very large section of the legal and judicial bodies of Scotland were in favour of some considerable reform as regards sheriffships. Surely, if sheriffships were to be done away with, or if they were to abolish one class of sheriffs, or reduce the number, and to do away with the intermediate appeal to which the noble and learned Lord alluded, that would be throwing more business on the Court of Session. He did not know what the contemplated measures might be; he was not quite sure that such measures might soon be called for; but he was quite certain of this—that if such measures were really brought forward, anything more rash, anything more untimely, than the reduction of the Judges could hardly be conceived. There was a question—a very burning question—which had only been touched upon very slightly by the noble and learned Earl who lately sat on the Woolsack. It was a question of salaries. There was no doubt that the Judges in Scotland were very much underpaid. There was a hope that this measure would contain some consolatory clauses by which they would apply the plunder from the Judgeships to be abolished to increase the salaries of their more fortunate surviving brethren. He hoped that even though the clause could not be brought to this House the noble and learned Lord in his statement would have given them some hope on that score; but he did not catch any words to hold out any such hope. But he thought the question of salary, though an important one, was not the main question before them, and that if they wished to legislate with regard to the salaries of the Court of Session, it ought to be so irrespective of the Judgeships which it was wished to suppress. He would not detain their Lordships any longer. He had only touched on those parts of the question which it seemed to him it was competent for a lay Member of their Lordships' House, and one deeply interested in the administration of justice in his native country, to touch upon without offence. It seemed to him that if they legislated on questions of this kind, they ought to legislate either in deference to some great popular demand, or else to remove some scandal to which the mass of the community was corruptly attached. There was on this occasion no necessity, no scandal, no demand. The demand was all the other way. They were proceeding to cut down the judicial staff of a country increasing daily and largely in population and in wealth, and he could not believe that such a reduction was justified.

LORD MONCREIFF

said, he had no hesitation in avowing the fact that his noble and learned Friend on the Woolsack did him the honour to communicate with him before the Bill was introduced, and that he approved of it and advised its introduction. He should state to their Lordships very shortly the reasons that induced him to come to this conclusion. This matter of a reduction of the number of Judges was by no means a new question, or was one which came up only in the present day. His noble Friend (the Earl of Rosebery)—to whose speech he had listened with the greatest pleasure, because nothing could be more conducive, he thought, to the right discussion of questions of this kind than to have statements of opinion from men who were not connected with the administration of the law—had asked why it was that this Bill was introduced? Well, he might say it was 30 years ago since he recollected a proposition being made to reduce the staff of the Court of Session. The question was then abandoned for a time; but since then it had cropped up over and over again. It was raised, for example, in 1870, and, as his noble and learned Friend on the Woolsack had stated, again in 1873 and 1874. The principal grounds upon which the proposal was made had never been plainly or specifically asserted. He could quite understand that, comparing the number of Judges in Scotland with the number of Judges in England, the number in England might appear excessively large; but this comparison was not altogether a correct basis on which to form an opinion, because the staff in a small country might be, and indeed must be, larger in proportion than a similar staff for the same purposes in a larger country. In Scotland, when the population was probably not one-half what it was now, there were, for example, 15 Judges. He did not think this was the aspect in which the question should be looked at; but no doubt this had been one of the reasons that weighed with the Governments which from time to time raised the question whether the staff of Judges in Scotland was or was not excessive. The question, however, came ultimately, in 1876, to an issue to which he traced very much the introduction of the Bill that was now before the House. His noble Friend (the Earl of Rosebery) asked why it was that this Bill had been introduced? It was said that nobody asked for it, or thought there was any necessity for it being introduced. Well, he could to a certain extent satisfy, he did not say the curiosity of his noble Friend as to the motives that had led to the introduction of the Bill, and he could give him a very good reason why it should be introduced, whatever might be said as to the provisions which it contained. In 1876 the Division of the Court over which he had the honour to preside had the misfortune to lose one of the most useful and brilliant of its members in the death of Lord Neaves, a very great loss to the Court, which at that time consisted of four, and from the end of 1876 down to the beginning of 1880 no appointment was made; the vacancy was not filled up; and notwithstanding that the statute which prescribed the number of Judges to sit in each Division prescribed four as the number that should have been on the Bench, they had been working without the statutory number. He did not wish in the least to impute any blame whatever to those who were then responsible for the business of the country and of the Courts. He knew very well the difficulties that surrounded this question, and he was also quite aware that in the years following 1876 the attention of Parliament was fixed on exciting topics, and that its time was so completely filled up that there might not be time or opportunity to introduce a measure dealing with this subject. But still the fact remained that, notwithstanding the enactment of the statute, the vacancy was not filled. The question ultimately came to a crisis that made it absolutely essential that it should be looked at, because in the end of last year the Court of the Second Division was reduced to two, and it appeared to him that the time had certainly come, so far as his own opinion went—and he believed he did not stand alone by any means in that opinion—when, whatever the number of Judges ought to be, whatever the quorum of each Court ought to be, it ought to be fixed by statute, and the statute should be followed. With reference to the statement of his noble Friend that the public during this time were not dissatisfied with the proceedings of the Court while it was thus shorn of its full numbers, he could only say that the public did not mix in the matter. There was no such expostulation as they now heard, even though the reduction had been made without statutory authority. The Faculty of Advocates, he believed, did make a remonstrance during this period; but they did not take any really active step, or awaken any public support, and for this reason he came to the conclusion that this was the time to settle a long pending source of irritation and annoyance, and that it was not only desirable, but absolutely necessary in one way or other to legislate upon it. Then, when he had come to this conclusion that it was not only desirable that there should be legislation, but that if legislation did not take place there was a great risk of more danger to the institution than would be caused even by the fact of one of the vacancies not being filled up, he certainly was of opinion, looking to the nature of the spontaneous detrition that was going on, that it would be desirable to settle at once the whole question, so that the number of Judges might be beyond all further dispute. Whether he was right or wrong in that he did not say. He only knew that he agreed with some who had good means of judging. He thought, besides, that the proposal that was made in the Bill was one that could be conveniently carried out. His reasons for that were two in number. The noble Earl (the Earl of Rosebery) very naturally and very reasonably referred to the opinions entertained in regard to the state of the Court in 1869 and 1870; but since that time the operation of the Act of 1868 had facilitated, expedited, simplified the whole procedure in the College of Justice. The technicalities that used to cause delay and expense were to a large extent discarded, and the whole machine worked much more easily and much more rapidly than it did. Then, in addition to this, the Act in question transferred from the Outer House two very considerable classes of cases which now came straight into the Court of Appeal. One of these classes was the cases from the Sheriff Courts, which formerly went through the Outer House, but now come straight on appeal to the Divisions; and he might say that the business of the Divisions appeared to be very considerably increased in consequence, because upon inquiry he found that the number of final judgments pronounced within the last three years was double what it was in a similar period preceding the Act. There were, too, special cases which now came before the Divisions—that was to say, when parties agreed upon facts they stated a question of law for decision, and in that way a considerable expenditure both of time and money was avoided, and questions were determined that might have run the gauntlet for years in the Inner and the Outer Houses. In consequence of these changes, it would, he thought, be possible to make arrangements even without the two Judges, and yet to overtake the work with perfect convenience to the public. He did not say he was right in that opinion, because he found the opinion challenged by those who had the best opportunities of knowledge. He must own that he had not been prepared for the outburst of feeling that seemed to have taken place. Looking to the public quiescence during the time of which he had spoken, he did not suspect that there would have been this rebellion against the proposals that had been made, and it was certainly gratify- ing to those who had a humble share in the administration of the law that their mode of administering it had not been without the confidence of the public; and he was rejoiced, for one, that the opinions that had been expressed had put an end to a good many of the fears that had been floating about the Court of Session, and that, at all events, it would not be supposed that the Judges in the Court were men drawing a maximum of salary and doing a minimum of work. In these circumstances, he was prepared to say that he had been shaken by the opinions that had been expressed, not only by the professional bodies, but also by the municipal corporations. These opinions were, he thought, entitled to great consideration. Some points had been touched upon which he would not enter into at that time, because, though exceedingly important, they were not necessarily cognate to this matter, and required much elucidation than it was possible to give them. The question about the Sheriff Courts was a very large question—a question that had certainly more aspects than one, and would require full consideration. In regard to the question as to the number of Judges who should compose the Inner House, he might state that he was for seven years President of one of the Divisions of the Inner House, with four Judges on the Bench, and for five years President of the same Division with only three Judges; and unquestionably, while it was not a matter to be dogmatic upon, or to be reduced to equation in any sense or way whatever, he thought that three was the best number for expedition, and four was the safest and the surest, though, no doubt, each number had its own advantages. With these observations, and fully recognizing the great difficulties surrounding the question, he moved the adjournment of the debate.

Moved, "That the Debate be now adjourned."—(The Lord Moncreiff.)

LORD WATSON

, after stating that he did not entertain such strong objections as his noble and learned Friend who had just sat down (Lord Moncreiff) to the reduction of the number of Appeal Judges below four, pointed out that the principle of the Bill before the House was, first, that the number of Judges should be reduced; and, in the second place, that the Judges in the Inner House should, in future, assist in Outer House work. He was not at all surprised that a Bill of this character had been introduced into the House by his noble and learned Friend, because, notwithstanding the recommendations that were made by the Commissioners in 1870, that the Court should be maintained in its full strength, there had repeatedly been a demand on the part of the Press for a reduction in the number of Judges. In the years before 1876 there was a very sensible and, as time went on, a very large diminution in the work of the Outer House. No doubt, that was facilitated to some extent by the active habits of some of the Judges; and one Lord Ordinary might dispose, and had, in fact, disposed, of cases in 10 or 20 minutes, which would have occupied the Judges of the noble Lords who sat in that House for a day or two, or even three days. But this was an exceptional case; though they all hoped and desired that the Lords Ordinary would show all expedition in disposing of cases. It was quite true that the late Government had, at one time, in contemplation a measure of this kind; but when that had been mentioned, he thought reference might also have been made to the circumstance that it was their intention that the two questions of the principal sheriffships and the reduction in the Court of Session should be dealt with together. There was, undoubtedly, a strong feeling in Scotland against the double sheriffship; but then there was this feeling—hitherto unknown, he must say, to himself—in favour of retaining the Court of Session in its present position; and what he said was that if this measure were allowed to pass without the other question being taken up, they might have some difficulty in afterwards obtaining the desired reforms. At one time he was perfectly satisfied that three Judges, in ordinary circumstances, would be quite competent to overtake the whole work of the Outer House; but the figures laid before their Lordships on this occasion had satisfied him that that was not the case at the present time. The country was fast recovering from the state of utter collapse which resulted from the failure of the City of Glasgow Bank, and he believed they might not have Judges sufficient to dispose of the cases with that rapidity which mercantile men desired. He did not at all wonder at the degree of interest taken in this matter in Scotland. The people wore always pressing for despatch in the disposal of cases brought before the Court, and he thought they were rightly jealous of any attempt to deal with the question in a way which might subsequently turn out to be prejudicial. Two or three years ago he could have seen his way to give his cordial assent to this measure; but he did not think, at the present time, it was right or expedient in this matter that the Court of Session should alone be dealt with without taking into consideration the whole judicial establishments of Scotland, and settling the administration of the law upon a firm and lasting basis.

THE LORD CHANCELLOR

said, he had no reason to complain of the manner in which the debate had been conducted. It had been enlivened by the good humour and eloquence of the noble Earl (the Earl of Rosebery), to whom had been intrusted on this occasion the duty of representing the sentiments so largely expressed by very important bodies in Scotland. He had no reason at all to complain of the observations made by his noble Friend; and with regard to the views expressed by the Lord Justice Clerk (Lord Moncreiff), and the noble and learned Lord who spoke last, he could not but acknowledge the candour of the observations of both these noble and learned Lords, who, he thought, had done justice to the motives and the reasons which had weighed with the Government in introducing this measure. He would refer particularly to his noble and learned Friend who had just spoken (Lord Watson), who said that when he was himself in Office he entertained views which led him to contemplate the introduction of a measure not dissimilar to this, though it might have had, in some respects, a larger scope. In point of fact, when there remained between three and four years a Judgeship vacant in Scotland, and that in a manner not the most convenient possible for the administration of justice, it seemed at once to show the possibility of discharging the business with a less number of Judges. He wished to say a few words on two points raised—one by his noble and learned Friend the late Lord Chancellor (Earl Cairns), and the other by the noble Earl below the Gangway (the Earl of Rosebery). The noble and learned Earl (Earl Cairns) suggested, that, instead of reducing the number of Lords Ordinary, if there was any reduction it ought to be rather of the Judges of the Inner House. He could assure the noble and learned Earl that, after a good deal of consideration, it had been the opinion of the highest authorities whom the Government could consult in Scotland upon this subject, that it would be better to preserve a fixed and normal number in the two Divisions of the Inner House, making any of the Judges of those Divisions available, as occasion might require, for the work of the Outer House. The reason for this was, partly, that more than half the business of the Inner House was either original, or by way of appeal, not from the Lords Ordinary, but from inferior Courts. As to the other point, he would frankly tell his noble Friend, that when he said the motive of the introduction of this Bill and of the reduction which it proposed to make in the number of Judges was the saving of a small sum of money in order to increase the salaries of the remaining Judges, he was incorrect. He (the Lord Chancellor) disclaimed any such motive; he said distinctly that if no better reason than that could be given for proposing the reduction of the number of Judges the proposal would be unjustifiable. If he might be allowed to express his individual opinion, it seemed to him that there were considerable reasons in favour of some increase in the salaries of the Judges in Scotland; and it was proper and natural, when such a measure as this was brought forward, that the attention of the Government should be directed to that point. But it was a point on which the Government had not, at present, arrived at any conclusion: and he declined to mix up that question, which could only be considered in the House of Commons, with that which was raised by the present Bill. The administration of justice in Scotland was the thing they ought to regard in this matter, and whether it could not be better provided for by a less number of Judges. Whether the salaries of the Judges remained as at present, or whether they were increased—the question of reducing the number of Judges ought to be regarded independently of that question. With regard to the proposal of his noble and learned Friend (Lord Moncreiff) to adjourn this debate, he had no hesitation in saying that the course which the discussion had taken, and the opinions expressed on the subject in Scotland, made him (the Lord Chancellor) think that their Lordships might consent to that proposal, particularly having regard to what the noble and learned Lord (Lord Watson), and the noble and learned Earl (Earl Cairns), had said as to the importance of dealing with the judicial powers of the Court of Session, together with the subject of the Sheriff Courts. He had heard that opinion expressed in a good many quarters entitled to great consideration. If that view, upon further consideration, should commend itself to Her Majesty's Government, and if it should be thought that much time would be required for the purpose of maturing any measure which might be necessary, he might possibly not be in a situation to ask their Lordships to proceed further with this Bill. But that point must, for the present, be reserved; and their Lordspips would, of course, have full Notice, when it was decided either to resume, or not to resume, the discussion which would now stand adjourned.

Motion agreed to.

Further debate on the said motion adjourned sine die.