House Of Commons
Wednesday, July 3, 1839.
MINUTES.] Bills. Read a first time:—Cathedral and Ec- clesiastical Preferment—Read a second time:—Soldiers, Pensions; Parochial Cure of Souls; Bills of Exchange. Petitions presented. By Lords C. Manners, J. Stuart, and Dalmeny, and Messrs. Parker, C. Buller, Hodges, and Sir De Lacy Evans, from a number of places, for a Uniform Penny Postage.—By Mr. C. Lushington, from Perth, against the Monopoly for Printing Bibles in Scotland.—By Mr. Beamish, from Cork, against the existing Excise Regulations.—By Lord Ashley, from Blackburn, and Manchester, against the Government plan for National Education.
moved the order of the day for the House to resolve itself into Committee to take into further consideration the report of this bill.
said, that the bill was so changed in its character since it was last before the House, that he felt bound to call the attention of hon. Members to what its provisions now really were. As regarded the general state of prisons in Scotland, and the improvement of them, he believed that no difference existed. The great question was, as to the manner in which those improvements were to be carried into effect. It had been proposed by her Majesty's Government that three general prisons should be established in Scotland. Now hon. Members on that side of the House thought that three general prisons in Scotland were unnecessary. Another objection was, that it proposed to make a general assessment throughout Scotland, without any reference to the expense which might be incurred by each county. In his opinion, in Scotland as well as in England, each county should bear the expense of its own prisoners. All the alterations, however had been resisted in the bill, which he and his Friends had proposed in Committee. Their opposition had been unsuccessful. Another day had been fixed, and they felt they were exposing themselves to the imputation of endeavouring to defeat a measure for the general improvement of Scotch prisons. Under these circumstances, in order to prevent misunderstanding, he had put on paper a plan by which they proposed to accomplish the same ends, and which would not be open to the objections of which he had complained. He had transmitted a copy of it to the Home Office, and the terms proposed had been agreed to. Such being the case nothing now remained but to put the measure into proper shape. The terms agreed to were, that one dépôt should be established, to the fitting up of which the 10,000l al- ready voted should be applied. An additional 20,000l. was to be assessed on all Scotland, in order to complete the fittings up; the expenses of the prisoners in the dépôt were to be defrayed by the towns by which they were to be sent. The expenses of the local prisons were to fall entirely on the counties. Under these circumstances, he did not wish to throw any obstructions in the way of the Bill.
said, this Bill proceeded on the same principle as other bills that had passed the House, and which had not met with any opposition.
The House went into Committee.
On clause 64, repealing the Acts previously passed relating to prisons being put,
complained that it did not specify the Acts which it proposed to repeal.
observed, that it distinctly went to repeal all Acts since 1598.
thought that that only made it the more objectionable. He should oppose it.
The Committee divided on the question that the clause stand part of the bill:—Ayes 44: noes 17:—Majority 27.
List of the AYES.
|Bannerman, A.||Macaulay, T. B.|
|Baring, F. T.||Macleod, R.|
|Barnard, E. G.||Marsland, H.|
|Barry, G. S.||Melgund, Lord Visct.|
|Bewes, T.||O'Connell, J.|
|Blake, M. J.||Parker, J.|
|Blake, W. J.||Parnell, rt. hon. Sir H.|
|Brotherton, J.||Pendarves, E. W. W.|
|Bruges, W. H. L.||Pigot, D. R.|
|Busfeild W.||Rundle, J.|
|Butler, hon. Col.||Sinclair, Sir G.|
|Cayley, E. S.||Stansfield, W. R.|
|Chalmers, P.||Steuart, R.|
|Craig, W. G.||Stewart, J.|
|Curry, Mr. Serg.||Talfourd, Mr. Serg.|
|Dalmeny Lord||Troubridge, Sir E. T.|
|Davies, Colonel||Vigors, N. A.|
|Donkin, Sir R. S.||Wilbrabam, G.|
|Hastie, A.||Williams, W. A.|
|Hobhouse, T. B.||Wood, C.|
|Hodges, T. L.|
|Howick, Lord Visct.|
|Kinnaird, hon. A. F.||Maule, F.|
|Lushington, rt. hon. S.||The Lord Advocate.|
List of the NOES.
|Arbuthnott, hon. H.||Hepburne, Sir T. B.|
|Blair, J.||Hope, hon. C.|
|Clerk, Sir G.||Hope, G. W.|
|Gordon, hon. Capt.||Lockhart, A. M.|
|Grunt, F. W.||Mackenzie, T.|
|Greene, T.||Pease, J.|
|Pringle, A.||Warburton, H.|
|Rae, rt. hon. Sir W.|
|Stormont, Lord Visc.||Hume, J.|
|Wallace, R.||Gillon, W. D.|
Other clauses agreed to.
The House resumed. The Report to be received.
Supreme Courts, (Scotland)
The order of the day for the third reading of the Supreme Courts Scotland Bill having been read; on the motion that the bill be read a third time,
rose to oppose the motion, for it was in reality a bill to give an increase of salary to judges whose income was sufficiently large already. The Scottish Judges to whom he alluded had received an increase of salary on three different occasions, and the last increase, namely, in 1810, was upon the ground that the increased price of the necessaries of life, it being then during the period of high prices occasioned by the war, had rendered such an increase necessary, but that cause for an increase could not be now alleged when prices had fallen fully one-third. The salaries which it was proposed had been raised from 1,000l. per annum to 1,280l. in 1799, and to 2,000l. in 1810; and he begged the House to remember that 2,000l. paid quarterly was an income equivalent to double that nominal amount arising from landed property. The salary of the Lord-' President, 4,300l., was, he hesitated not to say, fully equivalent to 9,000l. from landed income. There were not more than three members of the Scottish bar making above 3,000l. per annum at their profession, and there were certainly not more than four making 2,000l. per annum; and he was confident that any of those making 3,000l. a-year would gladly avail himself of the office of Puisne Judge at the present salary, combining as it did so much case with dignity. The right hon. Baronet, the Member for Tamworth, had stated that the object was to give such a salary as would insure the acceptance of the office by men of eminence at the Scottish bar, and that object was, in his (Mr. Gillon's) opinion, achieved by the amount of the present salaries. The proposed increase was not justified upon the ground of increased expenditure or increased duties; on the contrary, the duties had greatly decreased; for in the year ending in January last there had been no more than 1,486 cases brought before the Supreme Courts. The Scottish people—with that good sense for which they were remarkable—were every day becoming more averse to bringing causes before those Courts, in consequence of the delay and expense which accompanied them. Was the House justified in an extravagant and wasteful expenditure of the public resources by the state of the finances? He should be agreeably surprised if the right hon. Gentleman, the Chancellor of the Exchequer, should on Monday night lay before them any very flattering picture of the state of our finances. He should be agreeably surprised if the right hon. Gentleman should not tell them that it was his painful duty to resist the repeal of certain taxes which would be proposed; which repeal he would at the same time acknowledge to be not only just and proper in itself, but peculiarly called for by circumstances, formerly unforeseen, and which the lapse of time had brought into operation. Was this a time, then, to be thus profuse, when there were hundreds, nay thousands, of the most respectable individuals falling daily from affluence to poverty, from no fault of their own, but from the pressure of a grinding and most unjust and unequal scale of taxation?—when the poor handloom weaver, in his ill-furnished hovel, was maintaining himself, his wife, and his half-famished family on 4s. 6d. a-week, and followed from his cradle to his grave by a taxation pressing on the food he ate, the beverage he drank, and the raiment with which he was clothed?—When this man, pointing to his own emaciated countenance, and to the care-worn features of his wife and children, asked the House to remove a portion of that burthen which pressed to the earth his powers, both physical and mental, could it assure him that the Scotch Judges must be better paid. Did the House, by acts like these, expect to stifle the cry of the unrepresented millions, that their interests were neglected, that it dealt in class legislation, that it abridged the comforts of the many to shower golden favours upon the few? If they wished for the security of life and property—if they wished for the maintenance of our institutions—if they wished, above all, that the laws should be respected, let them deal equally with all men—let them not lead the people to believe that there were classes for whose be- nefit they were disposed exclusively to legislate—let them not, by the extravagant profusion of this House, render odious in the people's eyes those who sit in judgment over them. He moved that the bill be read a third time that day three months.
seconded the amendment. He considered this bill to be one of the grossest jobs that had for some time come under the consideration of the House. He had always objected to the appointment of thirteen judges, for a population little more than that of Yorkshire and Lancashire united. It appeared to him, considering the duties they had to do, that it was the very acme of extravagance. But it remained for a reforming economical Ministry, to bring forward such an act as this. It was a most unjustifiable measure, and preceding Governments had not dared to propose it. No one was in favour of the bill but the lawyers. There was not a sensible or honest man in Scotland, that did not cry out against it. [Hear], Not one. He spoke of his own correspondents. He admitted, that lawyers, and those who were likely to benefit by it, might be in favour of it. The establishments of the country were every year going on increasing instead of decreasing, and it was on this ground that he objected to the present bill, and should divide the House on the third reading. But there were other objections. He had offered, if the number of judges should be reduced to an adequate number, and employment similar to that of the English judges should be afforded to them, he would agree to their being paid in proportion. But while the English and Irish judges retired on two-thirds only of their salary, the Scotch judges were to retire on their full salary, and this too, on an increased salary. Unless there were some secrets which had not yet been divulged, he considered this bill contrary to the sound principles on which the House ought to act. If the bill should be read a third time, he hoped the clause which allowed the retiring salaries, would be expunged.
said, that during the two former discussions on this bill he had unavoidably omitted several statements, of which he was anxious to put the House in possession. He felt much gratified, as well as highly honoured, in standing forward to urge upon public attention the just and too long neglected claims of some of the most eminent and enlightened public functionaries in the empire. There were two preliminary matters on which he must say a very few words. It was admitted, and indeed was self-evident, that this was not a party question; he was sure, that a great majority of the Scotch Members, however much they might differ on other matters, were cordially united, not only as to the inadequacy of the present salaries of the judges, but as to the requisite amount of augmentation; and he was very glad that her Majesty's Ministers had at length resolved to give (so far at least as the puisne judges were concerned) effect to the general wish which, on public grounds, the representatives of Scotland had been so desirous to press upon their favourable notice. In the next place, he begged to slate, that neither in 1834, nor on the present occasion, had he ever been solicited by all or any one of the judges to bring this question forward. The notion had originated entirely with himself upon several grounds, which he had stated in evidence before the Committee in 1834. The delicacy and forbearance of their whole demeanour on this and on every occasion, had been almost as conspicuous as the harsh and offensive recklessness with which on many occasions their feelings had been wantonly outraged, their merits invidiously disparaged, their services unjustly depreciated, and their conduct malevolently arraigned. Their claims upon national munificence, or rather upon national gratitude, were founded both on the dignity of their station and the importance of their duties. But it might be asked, whether the judges of the Supreme Court in Scotland were so pre-eminent in talent, and so meritorious in regard to public service, as to stand upon a level with the other judges of the empire in their claims upon the favourable and respectful consideration of the House? He was well aware, that during a very long period that court seemed to have been looked upon as a sort of target, at which sometimes wit and talent, still oftener dullness and ignorance, occasionally party enmity or professional disappointment, had levelled the shafts of sarcasm and vituperation. But in opposition to these aspersions, he should content himself with citing the following passage from the evidence of the Earl of Eldon, as delivered before the Committee in 1834:—" I should not do justice either to the Scotch bar, or to the Scotch judges who have been during the time that I have been in the profession of the law, if I did not say that I do not believe in any country of the world can be found higher testimonies of ability among the counsel or ability among the judges." Until 1808, this tribunal consisted of fifteen judges; a certain number of them sat in rotation in the Outer House as Lords Ordinary, from whose decisions an appeal lay to the "collective wisdom" of the Inner House. The Court had at all times been distinguished by the ability of its Lords President, and has also never ceased to be adorned in successive generations by other judges of great talent and integrity. It must, however, be admitted, that when judges sat in the one court, not a few were selected rather from the zeal of their political partisanship than from the pre-eminence of their legal reputation. But in 1808, the Court was divided into two, with commutative jurisdiction, an arrangement by which the despatch of business was greatly promoted, as the two tribunals were employed in hearing and deciding causes simultaneously, and less time was occupied in each by the delivery of the opinion of the judges. Since that period, the system of permanent ordinaries (five in number) had been established, and the aggregate of them amounted to thirteen judges, four of whom sat in each of the two courts, a number, which he trusted, would never be further diminished, as it tended to secure this great advantage, that in case of a difference in opinion, instead of a bare majority, there should be a preponderance of three to one, besides which it was necessary, when deciding on the proper number, to take into account the contingency of illness or unavoidable absence on the part of some of the members of the court. When the English judges obtained a further increase in 1809, those of Scotland were not included in that arrangement; their claim, however, was acceded to during the next Session, but the grant was made retrospective, so as to embrace the preceding year. In 1825, the salaries of the English judges were further increased; and it was the intention of the Duke of Wellington's Government to have extended the grant, as usual, to those of Scotland. The proposition was favourably received at the time, but it was thought expedient to postpone giving effect to the plan until the duties of the court had been inquired into, The subject of the judges' salaries lay dormant until 1834, when he ventured to bring it under the notice of Lord Spencer, at that time Chancellor of the Exchequer, who with his characteristic frankness, avowed that he was not satisfied as to the necessity of any increase, but he agreed on the part of the Government to the appointment of a committee, over whose deliberations he had the honour to preside. He considered this committee as a sort of jury or tribunal of reference. If they had determined that the existing salaries of the judges were excessive, or even adequate, his mouth would have been closed for ever on their behalf, and he would have been a very bold Minister indeed who should have proposed even a trifling augmentation in the teeth of any hostile decision. When this report was presented to the House, Lord Althorp declared that he could not at so late a period of the Session, introduce any bill upon the subject; and he (Sir G. Sinclair) deemed it most prudent and most constitutional to leave it in the hands of Government. But it seemed to be generally considered, that the judges had, by the award of the committee, obtained a kind of inchoate right to the increase. When that excellent judge, Lord Cringletie, resigned, it was expressly stipulated that he should stand in the same position in regard to any contemplated augmentations, as if he had still continued on the bench. Several of the judges had since died, and their families had lost the benefit which, if the bill had been passed in the proper season, would have accrued to them; and others, in the natural expectation that such a step would be taken without delay, had been striving to keep up, though still on a subordinate scale, those appearances which their station required, and which their present incomes could not defray. He should do himself the honour and give his cause the advantage of reading a letter from Earl Grey:—
"Howick, Jan 17, 1839.
He could not help again expressing his indignation that any Gentleman in that House should have been found capable, on a former occasion, of endeavouring to fasten upon Lord Jeffrey the imputation of having been biassed in giving his evidence by the prospect of his own immediate elevation to the bench. Did it not argue a marvellous obtuseness of moral perception to bring such a charge against Jeffrey, whose sensitive and honourable mind would instinctively recoil from any base or sordid motive—whom the latest generation of Scotsmen would be proud to number amongst the most distinguished of their countrymen? He should say nothing further as to the proceedings of the committee of 1834, but there were two or three statements which still remained to be noticed. We are told that men of great legal eminence will accept the judicial office at the existing amount of salary; and this was unquestionably true, as the present state of the bench demonstrated. But this was a fallacious and unfair criterion. We ought not scrupulously to consider what was the precise minimum of salary by which, in addition to the advantages of certainty of income, non-liability to ruin from providential casualties, and of less laborious duties, advocates in high practice might be reluctantly induced to take the judicial office—perhaps when business was fluctuating or health beginning to decline; but he might not again have the offer when he would be more desirous to accept it. Now, the great object for inquiry was, what amount was necessary for enabling a judge of the Supreme Court to maintain the dignity of his station to live as became a British judge, and to avoid what that great man, Lord Eldon, alluded to in his evidence before the committee—"the placing his children in a rank during his life, much above that which they must fill in case of his death." He believed, that at a less sum than the committee had suggested, these objects could not be obtained. There was, if he might be allowed 30 to express himself, a penurious and penny-wise triumvirate from the north of the Tweed, on whom all the evidence adduced before the committee, and all the facts and arguments urged in that House, never made the slightest impression. These gentlemen, in order to attain the object of keeping the judges with a narrowness of income equally painful to them and disgraceful to the nation, could blow hot or cold, as it suited their purpose. If they wished to prejudice English members against the judges, they described them as having nothing to do—as indolent and inefficient—as wasting the time which they ought to devote to the public service, and as being found in every capital or watering-place in Europe; because, forsooth, he believed that one, or at the most two, of the judges have passed a vacation or two abroad. But almost in the same breath, they could heartily concur in our just encomiums on the transcendent talents of the very same judges, in order to contend, that at the present salaries you could induce the most eminent advocates to accept office on the bench. The hon. Member for Kilkenny thought that a judge, like a journeyman carpenter, should be hired by the job, or by the day, or that you might treat him like a hackney coachman, and higgle with him beforehand as to the sum which you should pay for the discharge of a given duty. The hon. Member for Greenock was also one of the stop-watch philosophers. He seemed to regard judicial business as mere clockwork, and spoke of nothing but the number of days and hours during which the Court of Session is occupied in the course of the year. But any one at all capable of appreciating the nature and extent of the functions connected with the office of a judge would never dream of applying a test so futile and so fallacious. He should never forget the smile of good-humoured expression with which Lord Eldon replied to a question addressed to him in private on this subject. "Sir," replied his Lordship, "the time passed in the court is often not so long, nor, in some respects, so important, as that which a judge, who is anxious to discharge his duty, devotes at home to its performance." If time was to be considered as the most important element in estimating judicial efficiency, the dullest judge, according to this standard, might stand much higher in public repute than the best informed and the most profound, "I remember to have beard," said the hon. Baronet, "of a country gentleman calling, when he arrived in London, upon a particular friend of his, who had been grievously affected with the toothache. 'My good sir,' says he, 'I am quite concerned to hear that you have been a martyr to so painful a complaint.' 'Oh,' replied the other, 'I am much obliged to you for your sympathy, but I am happy to say you may convert it into congratulation. When I could bear the torture no longer, I made the best of my way to Mr. Cartwright's, who dislodged the enemy in a second or two, almost before I knew what I was about; so I paid my guinea, and came away.' 'Paid your guinea?' exclaimed the other, with an indignant stare of surprise; 'your guinea for the labour of a couple of seconds? Why, sir, you never were so taken in in the whole course of your life. I myself had a violent fit of the toothache last week, and sent for my neighbour, the blacksmith, who not only drew a sound grinder by mistake, but broke the decayed tooth in the middle, wrenched it out at last, after six most tremendous tugs, (leaving, by the bye, a stump which I still have in my jaw), was employed at least twenty minutes in the operation, and at last only charged me half-a-crown.' The questions of salary and duty might be considered as disconnected and distinct, and he maintained also, that the judges now discharged, and discharged most efficiently, the whole functions incumbent upon the Supreme Court. His hon. Friend was not aware that the length of the vacations had been regulated from time to time since the establishment of this court by Act of Parliament, and that rather for the sake of the suitors, than for the benefit of the judges. Had he never heard that the Court of Session did not sit on Monday, because the onerous business of the Court of Justice required to be transacted on that day? But he contended that, even if the vacations were to be prolonged instead of being abridged, the argument would still remain unaffected, that every judge of a supreme court should enjoy such an income as would enable him to live in a manner commensurate with his station. He should be the last man in that House to admit, and still more to contend, that too large a salary was attached to the high office so worthily filled by the Speaker; but if we were, most unjustly and most unwisely, to discard from view the consideration of its dignity, and to dwell solely on its duties, an attempt might be made to establish a case of excess, and that some economical Aristarchus might exclaim, "Well, I do think the Speaker is overpaid—only think of a vacation from August till February, Saturday a dies non, and holidays at Easter and on sundry anniversaries, besides the many evenings during which the House was in Committee, and the Speaker absent; how often, too, it adjourns at an early hour; how often it is counted out; or how often, at four o'clock, there are not enough Members to make a House." In short, Sir, continued the hon. Baronet, you must not be surprised, though you need not feel at all alarmed, if one of your Whig friends should ere long propose to consolidate the office of Chairman of the Ways and Means with that of Speaker, and call upon you, without any increase of salary, to discharge the functions of both. The hon. Baronet concluded by maintaining, that abler and more upright functionaries could not be found than the present judges, and that, although they might labour with more cheerfulness when justice had been done to them, they could not act with greater integrity, or with more unwearied industry, than they already displayed."Sir,—I have this morning had the honour of receiving your letter of the 1st, I well remember a representation having been made to me, when in office, of the inadequacy of the salaries of the Scotch judges. The details of the subject are not so perfectly in my recollection, but I can have no hesitation in saying, that I felt satisfied at the time that an alteration was necessary and that the recommendation of the committee did not go at all beyond what the exigency of the case required. I must therefore, wish you success in an object in which the public interest, no less than the independence of the judges, is intimately concerned; and if this expression of my feeling with regard to it can be of any advantage, you are at liberty to make such use of it as you may think proper. I am, Sir, your faithful and obedient servant, "GREY."
would not detain the House by many observations after the remarks of the hon. Baronet, to whose services on this subject he could bear the most ample testimony; and he would not have troubled the House at all, but for the manner in which he had been alluded to by the Mover and Seconder of the amendment, who had expressed great anxiety that he should state some new ground in support of the alteration proposed. He should have met that challenge without hesitation, if he had heard any new grounds of objection stated; but it seemed to him somewhat extraordinary that when the bill came to a third reading, objections should be urged which had been answered over and over again, and that he should be asked to state some new answer to those objections. It was said, that the Judges only sat for half a year, and only attended about two hours a day. All the Judges were equally censured, without any distinction in respect to individuals however distinguished. They were all characterised as idle. But it should be recollected, that the greater part of the official duties of the Scotch Judges were not discharged in public. It might or might not be an objection to the forms of judicial proceeding in Scotland that they were mostly in writing—it might or might not be unfortunate that oral pleading was not more general—but he had to speak of the forms as they existed; and this he could declare, that the Judges of Scotland, especially those of the Inner Court, had the greater part of their duties to perform out of Court. He need not, he trusted, remind the House that the judicial office was of all others entitled to respect, and that the holders of that high office should never be lightly charged. In the course of the present Session two cases had occurred, in which, according to ordinary custom, the arguments of counsel on both sides were reduced to writing, and with the documents, &c, necessary to introduce, occupied in the one case 600 printed pages quarto, and in the other 1000. The arguments of the parties were so well stated in these written papers, that the learned counsel at the bar said, they would not waste the time of the court by saying anything. To all appearance, therefore, the case would have seemed to go off with a few words: whereas the judges had, in reality, all this enormous mass of argument to read through at home, and he was quite sure, that read through it was, with attention and care, such as the importance of the case, and the responsibility of their office demanded. And he knew that the duties of the learned judges were often so onerous as to compel them to trespass considerably upon their vacations. A return, he was aware, had been ordered by that House of the number of days during which the Courts of Scotland had sat. That return would, he was persuaded, present a very false picture; but if, in addition to that, a return were ordered of the number and length of the documents read through by the judges in the course of the year, the result would be far different. It had been said, that there were some secret, unavowed reasons for pressing this bill. He knew of none, except such as existed in the jealousies of some hon. Members. Of this he was quite sure, that the promoters of the bill would at any time be perfectly ready to defend it. With reference to the attack which had been made upon Lord Jeffrey, he knew that when his noble and learned Friend left his profession, he was at the head of it—that his labours in that House had greatly impaired his health; that he was himself unwilling to go to the Bench, though, anxious that the country should not lose his services, he reluctantly yielded to the solicitations that pressed him to accept the judicial office, of which he was now so great an ornament. It could not be questioned, that the emoluments of the judicial office in Scotland were not such as to tempt those practitioners at the bar who were at the head of their profession. And if ever there was an office on which a fair and just liberality might legitimately be exercised, it most assuredly was the judicial. Much had been said as to the alleged extravagance of the retiring allowances fixed by this bill. It had been objected, that judges were allowed to retire upon full salary. And this had been stated as if a judge might be appointed to-morrow to the bench, occupy the station for a few weeks, and then retire on full salary. Now the provision was, that a judge, seventy years of age, after fifteen years' service, might retire on full salary. Was it not important to the public interests, that a judge arrived at such an age, and after such a service, should be relieved from the painful necessity of balancing in his own mind the propriety of remaining in an office, the duties of which he could no longer efficiently discharge—or, by retiring, relinquish the possibility of earning a few more hundreds a-year for his family? Surely there was in such a provision no great danger of extravagance in the distribution of public funds?—nor in the provision that a judge afflicted with some permanent disabling disease might also retire on full allowance? Under all these circumstances, he trusted the majority of the House would sanction the bill.
conceived, that he was one of the "triumvirate" of opponents to this bill who had been alluded to. Certainly he had always been opposed to granting the public money when he was quite convinced it was not required. He agreed in characterising the bill as about the most nefarious job ever seen in that House. He begged leave to correet the Lord Advocate as to the judge's retiring allowances, with regard to which the learned Lord was quite mistaken, as he would see if he did but read the 13th clause, which "enacted that a Judge of the Court of Session, who shall have attained the age of seventy, and shall have acted as such for a period of fifteen years, or if any Judge of the said court shall be afflicted with any permanent infirmity incapacitating him from the discharge of his duty, such Judge, in the event of his resignation, shall receive the full retiring allowance." There had not been in all that had been said by the Learned Lord Advocate, or by the half-learned Member for Caithness any thing new, except indeed those facetious outbreaks in which the hon. Baronet had indulged, and which he did not think it necessary to notice. The salaries of the Judges were about to be raised by this bill. What for? How was their time occupied? He was not to be deterred by any pleasantries from pursuing this inquiry as to lime, which, after all, he considered a main point to be kept in view. And it should be borne in mind that these judges did not sit more than five months in the year, or more than two hours in the day. And those voluminous pleadings—those lengthy documents—which had been alluded to as in justification, were in fact what was complained of. No personal imputations were cast upon the judges—though it was always the trick of the Lord Advocate of the day to speak as if it were a question of the judges' personal character. With all respect for the judges, he attacked the system—and he destested and despised the system of the Court of Session—the people of his country agreed with him, in respecting their judges—but abhorring the system—for which they had good reason, seeing the expense and delay attending upon the proceedings in this Court. The judges had two long vacations in the year—one of four months, the other of two; and on the 12th July they would disperse through the country, and none of them be in Edinburgh before the 12th November. Why if the judge only devoted half his time to the duties of his office, it might justly be said that his salary was at a double rate of that which he received; a judge who, sat only five months in the year, and received 2,000l. a year, did virtually receive at the rate of 4,000l. a year. In England and Ireland the judges sat ten months in the year. That was his argument for reducing the number of the judges—that their time might be as fully occupied as that of the others. Those innumerable piles of printed documents which had been spoken of were caused by the rules that these judges themselves framed. It was not the statute law, but judge-made law; and he believed sincerely that they kept up the system, because they saw it was impossible otherwise to retain their situations. He had often before declared this, and he now repeated it before a new Lord Advocate.—It was said that some new duties were thrown upon the judges, but this would not impose upon them the necessity of sitting any longer than they did at present. Then it should be remembered that the number of causes was yearly decreasing, had been so for the last ten years, and would doubtless continue to decrease. He had moved for an inquiry into the subject; he was not at all surprised that Dr. Lushington, and other judges, should have declared their opinions that judges could not be too highly paid—it was all in their own way; every other body would have done the same; members of the same profession would always "hark together," as sportsmen would say—" on the same scent,"—when that "scent" might put anything into their pockets. Another reason why the present system was agreeable to lawyers was, that on the 12th of March the Scotch lawyers came to the House of Lords upon appeals, and it was notorious that there were twice the number of appeals from Scotland to the House of Lords that there were from all other parts of the United Kingdom. He conceived the title of the bill ought to be as follows:—"A bill to regulate the duties to be performed by the judges of the Supreme Court of Scotland so as to increase their present state of case and comfort, by adding largely to their salaries without adding at all to their judicial duties, or diminishing the delays, expenses, and endless vexations, created by the breaking up of the courts during long vacations." He would, after the close of the Session, appeal to the people of Edinburgh and the Chartists, whether this was not the true character of the bill. He was sure he would have a show of hands in his favour. For these reasons he should support the amendment of his hon. Friend.
would delay the House for a very few minutes. Nothing new could be urged on this subject, because all the old objections were answered by all the old arguments in favour of it, and which had always proved satisfactory and successful. The hon. Member for Greenock had said he venerated and respected the Judges, and yet he stated they upheld the present system, for the purpose of their own private and pecuniary benefit. He believed, that if the hon. Member put forth such sentiments even to the Chartists, that the Chartists would hiss and hoot him, and hold his sentiments up to execration. It was not right that such language should be made use of in the House of Commons. Personally he had no interest in this question—he could not aspire to a seat on the Scotch bench, but as a Scotch representative he would pronounce his clear and decided opinion to be, that the bill was a fair, just, expedient, and politic measure. It had been said the measure was unpopular. He had received no such representations from Scotland as had been referred to, and he was not afraid to meet the hon. Member before his constituents respecting the merits of this bill, but if it were ever so unpopular he should feel it to be his duty to uphold it. Neither of the triumvirate have said that 3,000l. a-year were excessive. [Mr. Hume—We have all said so.] He had not so understood. He denied the number of the Judges was excessive. They had greatly reduced their number already. The population and wealth of the country were increasing, and the judicial business was increasing in the same ratio. There was no ground for saying their number should be reduced, or that they were not sufficiently occupied. A contrast had been drawn between the Scotch and the English Judges. Why, the English Judges were worked too hard. And it would be indispensably necessary to increase the judicial strength in England. That was the opinion he entertained, and he would have no difficulty in expressing it in that House, or elsewhere; because by the present system, they were delaying justice, and violating Magna Charta by the economy, as it was called, of withholding reasonable compensation for such additional judicial strength as was wanted. In England there were now only the same number of Judges as existed in the reign of Edward 3rd. This bill had his full consent and approbation, and he believed it would give satisfaction to the people of Scotland.
The Attorney-General had stated this measure would not be unpopular in Scotland. He believed, that any increase in the salaries of the Judges at the present moment would be unpopular with nine-tenths of the people of Scotland. Why the Supreme Court of Scotland was a court which nobody went to that could possibly help it, it was not for him to explain. There was a great want of confidence in that court, why he could not tell; but it never would have the confidence of the people unless some alteration took place, of which he did not pretend to be a judge. He did not believe, that dislike attached to the personal character of the Judges, but there was something about the court, or in the opinion of the public with regard to it, that he would venture to say there was not another court in the country that had so little confidence placed in it. Therefore, the learned Attorney-general was in error, when he believed the measure would be a popular one in Scotland.
The House divided on the original question:—Aves 51; Noes 21:—Majority 30.
List of the AYES.
|Baring, F. T.||Macleod, R.|
|Barnard, E. G.||Nicholl, J.|
|Barry, G. S.||Packe, C. W.|
|Blake, W. J.||Parnell, rt. hn. Sir H.|
|Broadley, H.||Pendarves, E. W. W.|
|Busfeild, W.||Pigot, D. R.|
|Campbell, Sir J.||Pringle, A.|
|Clerk, Sir G.||Rae, rt hon. Sir W.|
|Craig, W. G.||Rutherfurd, rt. hn. A.|
|Curry, Mr. Sergeant||Sinclair, Sir G.|
|Dalmeny, Lord||Slaney, R. A.|
|Darby, G.||Steuart, R.|
|Donkin, Sir R. S.||Stuart, W. V.|
|Douglas, Sir C. E.||Stormont, Lord Visct.|
|Grant, F. W.||Talfourd, Mr. Sergt.|
|Greene, T.||Tancred, H. W.|
|Hepburne, Sir T. B.||Thomas, Colonel H.|
|Hope, hon. C.||Thomson, rt. hn. C. P.|
|Hope, G. W.||Troubridge, Sir E. T.|
|Howick, Lord Visct.||Vere, Sir C. B.|
|Jackson, Mr. Sergeant||White, A.|
|Law, hon. C. E.||Wilkins, W.|
|Lemon, Sir C.||Williams, W. A.|
|Lockhart, A. M.||Wood, C.|
|Lushington, rt. hn. S.|
|Macaulay, T. B.||Maule, F.|
|Mackenzie, T.||Parker, J.|
List of the NOES.
|Bewes, T.||Morris, D.|
|Brotherton, J.||O'Connell, J.|
|Bruges, W. H. L.||Oswald, J.|
|Davies, Colonel||Pease, J.|
|Evans, W.||Rundle, J.|
|Finch, Francis||Turner, W.|
|Hector, C. J.||Vigors, N.|
|Hodges, T. L.||Wakley, T.|
|Marsland, H.||Wall, C. B.|
|Warburton, Henry||Hume, J.|
|Williams, W.||Gillon, H.|
Bill read a third time.
moved the following clause to be inserted after clause 12:—"And be it enacted, that a return shall be made within fourteen days from the commencement of every future Session, and be presented to both Houses of Parliament, setting forth, in columns, the number of days each division of the Inner House has sat during the Session immediately preceding and also the number of hours each of the said divisions usually sits daily; and that the said returns shall be signed by the senior Judge of each Court respectively." This was one of the most important questions relating to Scotland that could come before the House. He had received a letter from a Mr. Campbell, which he would read to the House. The letter was addressed to the Attorney-General, from a correspondent of his in Glasgow, and clearly pointed out the unjustifiable interference of the Court of Session with a humane Act of Parliament—namely, the Cessio Bonorum Act. The hon. Member then read the letter, which strongly deprecated the course pursued by the Court of Session with respect to Acts of Sederunt. Now if that letter was founded on fact, it was an undoubted proof of what he had alleged. If the allegations contained in it were untrue, then the Attorney-general had his correspondent to deal with, and so had he. For his own part, he would take care that the letter should be made public through the medium of the press, the Chartist part of it as well as any other. The hon. Member concluded by proposing the first clause of which he had given notice.
Clause read a first time. On the question, that it be read a second time.
opposed the clause. The Act of Sederunt, of which so much had been said by the hon. Member for Greenock, was nothing more than a rule or regulation of the Court with respect to its own proceedings. As to the clause that had been proposed, he could see no necessity for it, inasmuch as the object it had in view was already fixed by statute. As to the latter part of the clause, he considered it would be derogatory to the Judges themselves, and would give a false picture of what took place in the Court of Session, He should therefore give the cause his strenuous opposition.
could not see how it could be considered derogatory to the Judges to make a return of the number of hours they sat. Who, he would ask, were the men that refused to give the information but those who were ashamed that their habits should be known. If a Judge did his duty he thought he could have no objection to its being known how long he sat. He had been asked upon what ground it was, that he considered the Judges of Scotland amply paid at 2,000l. a-year? In answer to that question he would say because he could get the first men in the profession to take the office for that sum. His only object in opposing the present bill was to reform the wretched system that existed in the Courts of Scotland, and to enable the people of that country to obtain justice, and in his determination to persevere in his opposition to the bill, he had been greatly strengthened by what had fallen from the hon. Member for Glasgow. The hon. and learned Gentleman talked of miserable economy. They forgot that there was always two parties to such bargains—those who paid and those who received. Then he complained of the opposition being given at so late a stage of the bill. When he had been a little longer in the House he would find, that it was necessary to give opposition to some bills on every stage. His predecessor could have told him, that the bill had before received much opposition, and that he had found much trouble in carrying it through its former stages. When he had longer experience he would find, that the opposition was given to bills in every stage, and that the present bill had not received half the opposition which many other bills had received. The opposition to the returns asked for, was only a proof to him, that they could not be made in such a manner as was likely to be acceptable to the public. In his opinion it was necessary to get rid of the printed forms of pleading before they gave any augmentation to the salaries of the Judges.
had not heard one word applicable to the clause before the House, however, he could not support any clause which should fix the salary of the Judges of Scotland at 2,000l., for he thought that too low a salary to command the services of men fit for the situation. He would suggest, however, that the returns should be got by periodical motions, and that it was not necessary to include the regulation in an Act of Parliament.
said, hon. Gentlemen forgot that the House had been lately engaged in a discussion with respect to their privileges. Suppose they were to order these returns and they were refused—how were they to enforce their privileges unless they were made part of an Act of Parliament? They could not then be refused, but after what had passed, how were they sure they could enforce their orders?
hoped they would not then bring under discussion any question of privilege—they were not then either doubted or disputed. But if they were to embody such a clause in an Act of Parliament, would it not be suggesting to those who might wish to dispute their privileges the propriety of doing so?
in reply, hoped to gain the vote of the hon. Member for Cocker-mouth. He might make periodical motions for these returns, but he might be resisted by the Lord Advocate, or some Lord Advocate, and what chance had he of getting them. He would press his amendment to a division.
The House divided on the question, that the clause be read a second time—Ayes 14, Noes 59; Majority 45.
List of the AYES.
|Bridgeman, H.||Vigors, N. A.|
|Gillon, W. D.||Wakley, T.|
|Hector, C. J.||Warburton, H.|
|Morris, D.||White, A.|
|O'Connell, J.||Williams, W.|
|Redington, T. N.|
|Somerville, Sir W. M.||Wallace, Mr.|
|Turner, W.||Hume, J.|
List of the NOES.
|Aglionby, H. A.||Donkin, Sir R. S.|
|Bairing, F. T.||Douglas, Sir C. E.|
|Barnard, E. G.||Elliot, hon. J. E.|
|Bernal, R.||Ferguson, R.|
|Broadley, H.||Gordon, R.|
|Brotherton, J.||Grant, F. W.|
|Bruges, W. H. L.||Greene, T.|
|Busfeild, W.||Hepburn, Sir T. B.|
|Campbell, Sir J.||Hobhouse, T. B.|
|Cayley, E. S.||Hope, hon. C.|
|Clerk, Sir G.||Hope, G. W.|
|Craig, W. G.||Hope, G. W.|
|Curry, Mr. Serjeant||Howick, Viscount|
|Dalmeny, Lord||Hughes, W. B.|
|Darby, G.||Jackson, Mr. Serg.|
|Lambton, H.||Rutherfurd, rt. hn. A.|
|Lemon, Sir C.||Seymour, Lord|
|Lockhart, A. M.||Sinclair, Sir G.|
|Lushington, R. H. S.||Steuart, R.|
|Macaulay, T. B.||Stewart, J.|
|Mackenzie, T.||Stuart, W. V.|
|Macleod, R.||Stock, Dr.|
|M'Taggart, J.||Stormont, Lord Visc.|
|Nicholl, J.||Talfourd, Mr. Serg.|
|Norreys, Sir D. J.||Tancred, H. W.|
|Parnell, rt. hon. Sir H.||Troubridge, Sir C. B.|
|Pendarves, E. W. W.||Wilkins, W.|
|Pigot, D. R.||Williams, W. A.|
|Rae, rt. hon. Sir W.||Maule, F.|
|Round, C. G.||Parker, J.|
then moved several successive clauses all of which were negatived without a division.
moved an amendment to clause 12, to the effect that the number of judges be reduced, though he would not name any particular number, as upon that point there were different opinions; and that they should sit ten months in the year, the same as the judges did in England and Ireland.
The House divided on the amendment—Ayes 22; Noes 46: Majority 24.
List of the AYES.
|Aglionby, H. A.||Pease, J.|
|Bannerman, A.||Redington, T. N.|
|Bridgeman, H.||Somerville, Sir W. M.|
|Brotherton, J.||Turner, W.|
|Bruges, W. H. L.||Vigors, N. A.|
|Chalmers, P.||Wallace, R.|
|Finch, F.||Warburton, H.|
|Hastie, A.||White, A.|
|Hector, C. J.||Williams, W.|
|Melgund, Lord Visc.|
|Morris, D.||Hume, J.|
|O'Connell, J.||Gillon, H.|
List of the NOES.
|Baring, F. T.||Hope, G. W.|
|Bernal, R.||Hughes, W.|
|Blake, W. J.||Jackson, Mr. Serg.|
|Broadley, H.||Lambton, H.|
|Campbell, Sir J.||Lushington, rt. hn. S.|
|Clerk, Sir G.||Mackenzie, T.|
|Craig, W. G.||Macleod, R.|
|Curry, Mr. Sergeant||Nicholl, J.|
|Dalmeny, Lord||Noel, hon. W. M.|
|Eliot, Lord||Norreys, Sir D. J.|
|Elliot, hon. J. E.||Parker, J.|
|Gordon, R.||Parnell, rt. hn. Sir H.|
|Grant, F. W.||Pendarves, E. W. W.|
|Greene, T.||Pigot, D. R.|
|Grimsditch, T.||Pringle, A.|
|Hawkins, J. H.||Rae, rt. hon. Sir W.|
|Hepburn, Sir T. B.||Rolfe, Sir R. M.|
|Hobhouse, T. B.||Sinclair, Sir G.|
|Hope, hon. C.||Steuart, R.|
|Stewart, J.||Verney, Sir H.|
|Stuart, W. V.||Wilkins, W.|
|Stock, Dr.||Williams, W. A.|
|Stormont, Lord V.|
|Talfourd, Mr. Serg.||Maule, F.|
|Vere, Sir C. B.||Lord Advocate|
objected to the clause fixing the retired allowances of the judges at the same amount as their increased salaries. When the salaries of the English judges were increased in the years 1824 and 1825, a proportionate increase was resisted when claimed by him on behalf of the Scotch judges, until certain reforms in the system of legal procedure should be adopted in the courts in Scotland. That argument was used by Mr. Home Drummond, and agreed to by all the Members present at that discussion. In a subsequent Session of Parliament, he introduced a bill which, in accordance with those suggestions, not only abolished the Jury Court and Commissary Court of Scotland, but also did away with two judges, which had not been recommended; and when all those things had been done, he certainly was surprised that so long a period had been allowed to pass without giving the remaining judges the promised increase of their salary. By the present law the judges, on retiring, are allowed three-fourths of the salaries which they receive at the time of their resignations, and he certainly thought that was a sufficient allowance. Therefore, while he approved of the increase to the salaries of the judges, he must say, he could not agree to the proposal of continuing them in the receipt of their full salaries when they may have retired from their official duties. On what account did the House agree to give large salaries, but as a remuneration for the duties which those judges had to perform? It was given to them as a recompense for those duties and for the status they had to fulfil; and there was no principle in which it could with justice be maintained, that they should continue to draw the same allowances when they no longer had those duties to perform or that status to fill. He was confident the hon. and learned Gentleman the Attorney-general could adduce no precedent for such a course. It was entirely unexampled in the judicial annals of the country, and it was idle to think that men of high character and integrity would be bribed by the increase of a few hundred pounds to retire from their situations. Therefore, viewing the clause as highly unjust in a public point of view, and in every sense inexpedient, he felt he should be neglecting his public duty if he did not express his decided opposition to the clause. The hon. Baronet concluded by moving an amendment to keep the retired allowances on their present footing.
had not quite so long experience in the profession as the hon. Baronet, neither did he wish to say anything disrespectful to the bench; but at the same time he certainly could suppose a case, where great public benefit might be gained by bribing judges with handsome allowances to retire from the bench. He could imagine cases in which judges of honorable mind and disinterested feelings would have a disinclination to retire, where they might entertain reluctance to adopt that step, from the fear of diminishing their income, and interfering with the comforts of their families. Should such a case occur, he thought that the delay in the administration of justice, and the monstrous mischief which might be so produced would be cheaply avoided by paying an additional amount of salary, if, by so doing, that object could be accomplished. But, nevertheless, while he stated this much upon the general question, he must admit that he had been much impressed with the observations of the hon. Baronet. And while he stated the opinion which he had now given, it certainly was on the assumption that it should be one of general application; that it should be enforced throughout the country as a rule; and he was satisfied it ought not to be begun in Scotland, and so brought into partial operation. So much, indeed, was he of that opinion, that he thought the clause ought at once to be withdrawn.
had thought all parties had agreed, that it was desirable, that the judges in Scotland should not have inducements held out to them to continue on the bench when their faculties were in any way decayed, and it was with this view, that the clause had been framed. The hon. and learned, the Attorney-general, admitted the principle of the clause to be good, but he objected to it because it did not extend to this country and Ireland. If it was a good clause, why not continue it in the bill, and also take steps to extend it to this country? He should oppose the withdrawal of the clause.
had objected to the bill in its previous stages, on the ground, that they ought not to legislate on this subject until inquiry had been made into the whole system of the administration of justice in Scotland. He was still opposed to the bill on the same ground. This clause was one of the best in the bill, and he should also object to its withdrawal.
Clause struck out.
proposed the insertion of words to the effect "that within fourteen days after passing acts of sederunt by the Court of Session, copies of such acts should be laid on the Table of that House, if Parliament was sitting, and if it was not sitting, within fourteen days after the commencement of the ensuing Session, and that such acts of sederunt should not be binding until they had received the sanction of Parliament."
stated, that the adoption of such a clause would render the making all such acts of sederunt nugatory, for as often as acts of sederunt were made, so often must they have Acts of Parliament to confirm them. It might be useful to make provision that so often as these acts of sederunt were passed, they should be laid before Parliament, but it would be impossible to agree to this proposition.
The House divided:—Ayes 17; Noes53: Majority 36.
List of the AYES.
|Aglionby, H. A.||Somerville, W. M.|
|Bridgman, H.||Stansfield, W. R.|
|Chalmers, P.||Turner, W.|
|Brotherton, J.||Vigors, N. A.|
|Ellice, E.||Warburton, H.|
|Hector, C.||White, A.|
|Hume, J.||Williams, W.|
|Melgund, Lord Visc.|
|Morris, D.||Wallace, R.|
|Redington, T. N.||Gillon, H.|
List of the NOES.
|Baring, F. T.||Evans, W.|
|Bernal, R.||Freshfield, J. W.|
|Blake, W. J.||Gordon, R.|
|Broadley, H.||Grant, F. N.|
|Bruges, W. H. L.||Greene, T.|
|Busfeild, W.||Hastie, A.|
|Campbell, Sir J.||Hawkins, J. H.|
|Cayley, E. S.||Hobhouse, T. B.|
|Clerk, Sir G.||Hope, hon. C.|
|Craig, W. G.||Hope, G. W.|
|Curry, Mr. Sergeant||Howick, Ld. Visct.|
|Dalmeny, Lord||Hughes, W. B.|
|Eliot, Lord||Lambton, H.|
|Elliot, hn. J. E.||Lemon, Sir C.|
|Lushington, rt. hn. S.||Rumbold, C. E.|
|Macaulay, T. B.||Sanford, E. A.|
|Mackenzie, T.||Sinclair, Sir G.|
|Nicholl, J.||Stanley, hn. E. J.|
|O'Ferrall, R. M.||Steuart, R.|
|Packe, C. W.||Stewart, J.|
|Parker, J.||Stuart, Lord J.|
|Parnell, rt. hn. Sir H.||Stock, Dr.|
|Pendarves, E. W. W.||Stormont, Lord Visc.|
|Pigot, D. R.||Talfourd, Mr. Serg.|
|Pringle, A.||Williams, W. A.|
|Rae, rt. hn. Sir W.|
|Rice, rt. hn. T. S.||Maule, F.|
|Rolfe, Sir R. M.||Lord Advocate|
On the question as to the title of the bill,
proposed, that the title of the bill should be amended as follows:—"A bill to regulate the duties to be performed by the judges of the supreme Court of Session in Scotland, so as to increase their means of comfort and enjoyment by adding largely to their salaries without increasing their judicial duties, without diminishing the delays and consequent expense to the suitors by reason of their present long vacations."
said, that it might be very well to excite a smile by proposing such an amendment, but he could not help saying, that doing so tended to bring the proceedings of that House into contempt; he, therefore, protested against it.
stated, that the bill had his unqualified opposition; and instead of tending to lessen the expense of these courts, it would ensure a most lavish expenditure. He protested once more against it, and thought that it was properly described in the title proposed by his hon. Friend.
observed, that his reason for seconding the amendment of his hon. Friend was, that this bill would ensure an additional expenditure of 15,000l. a-year, without producing the slightest advantage to the public.
Amendment negatived. Bill passed.
Copyholds Enfranchisement Bill
moved the third reading of this bill.
objected to their proceeding with this bill in the absence of the right hon. and learned Member for Ripon, who had objected to it in its former stages.
trusted, that his hon. and learned Friend would persist in his motion, as ample notice had been given of his intention to propose it that night; and it was an important and beneficial measure, which, when carried into effect, would be productive of much good.
Bill read a third time, and passed.