The British Press; or, Morning Literary Advertiser.
London, England, 1807-02-17 00:00:00

LAWS OF SCOTLAND.

Lord GRENVILLE rose, pursuant to the fleece
he had previously given, of submitting to the deli-
oerate Attention and serious e:ecision of their Lord-
ships, a Bill for the bettcr itegination of the Ad.
ministration of Justice in Scotland. It was his
duty. in the first instance. to clear up, or rather to.
tally to contradiCt, an improper opinion, which,
though nnt tot-ha:nen by their Lordships, had, by
same unaccountahl.- mea.is, found its way too ge-
nerally throughout the couatry. It had Metm said,
arid almost universally coculAted, that the i,hj .6t of
the present Bill was ioodanientally to alte, the laws
and usages in the Scottish system of jurispru.lence.
to this unjustified impression might be attributed.
in a great degree, any opposition and hostility which
it was likely to meet, either in this country. or in the
pert of the kingdom more immediately interested in
the issue Wantonly to inlet' tere with those laws
and institutes, whtch, for a series of ages, supported
the security and credit of a great country, he
trusted the House would conceive, that in this ex-
tensive empire, he would be the last man. The
opinions he entertained, the conclusi sts be had de-
duced horn a long and prailical attention to hu-
man Conclude the reflections he was induced to
make on the respeßive and various situations of
different countries, folly and decisively convinced
him, that in legislatieu there was nothing so false, as
to apply the usages and institutes of one country.
however beneficial. and highly valued, to another,
where a system of jurisprudence, varying in its
moues and forms, had been for a succession of ages
established. The endeavours to mould the habits
and duties of a people. so long subjeit to such a
system, would he the means of perhaps introduc-
eutilig greater and more • fatal evils, • than
those which were hoped to be remedied.—
But there was a great and leading difference be-
tween an innovation on the system of j•irisp.u.
dente, the mischievous effects of which, no fanciful
or pleasing theory could compensate; and that
deliberate and well regulated alteration in the mode
and forms of administering justhte,which a couviition
of the existing evils. in the manner of that admi-
thermion, must appear to demand. The point re-
solved itself into this simple question—Were there
evils in the adminirration of justice in Scotland.
and a ere they of a nature, as loudly to call for a
remedy? From the numerous inquiries he had made,
from the great and valuable inforrnatirue he hail
thought it his duty to seek, and which, from men
eminent in talents, and versed in the principles of
the Scottish Law, he had the honour 41 obtaining,
it was universally admitted, that such evils did
exist ; and that it was a great and necessary duty
of legislative wisdom. to take such deeds into
speedy consideration, for the purpose of providing
a suitable and appropriate remedy. But he wished
not to be understood as meaning any thing invidi-
ously, or that in the evils to which he alluded, there
was tile slightest intention of casting an unjust and
unmerited aspersion on those respelled characters
who filled the judicial seat in Scotland. The evils
which he proposed to correlt, arose from the Con-
stitution, or rather from the mode in which they
were forced by the law, as it then stood, to admi.
sister justice to the various suitors in the dif-
ferent Courts. The fist objecetion which he
felt strongly to operate on his mind, was the
number ut Judges which comprized the Ccuit
of Session in Scotland. To this number, amount.
ing to fineen, all causes were referred; and. in the
decision of the causes, each individual Judge was
Obligt:d to give his opinion, seriatim. A circum-
stance. which was iso inconsiderable source of delay
and protraaiou. In this country, where the :Arcing
and salutary principle of responsibility operates on
every perms istrustrJ with that serious and dib-mi.

fled office, where, in the exercise of his judicial du-
ties, he must, on every occasion, prepare for the
observation of a strict, vigilant, and learned bar,
and through that bar, for tae discusiien of an
enlightened and jealous public, the henefits of
such a feeling of responsibility are every day
found in the propriety of the decisions, and in
the integrity and justice with which the judi-
cial charatter is supported. Thi. principle of re-
sponsiOility, In important in its effects, and salutary
' in its consequences, derives its greatest impulse from
the divisions of our Courts of Justice. Each Judge
is interested in the result of every case ; he weighs
the nature of his duties, and though he be sur-
rounded by his fellow Judges, he feels on the occa-
sion, as if his own charader WAS solely involved.
But in Scotland the case is widoly different. Their
the number precludes any individual Reding of re-
spocobtlity ; the force of the check, which, in this
country exists, i, dine entirely weakened; where fif-
teen are called to decide, a diversity of opinion must
be naturally expected, and in that difference of opi-
nion, it is impossible to ascertain what is, or what is
not, the law ut the case. The principle of sequin-
ohility has a more extensive operotion ; it actuates
all who are in:laced to introduce the merits of those
whom they wish to see promoted to *the Judicial
Bench. In England, the value of the recommetcdo
ation is quickly :appreciated ; scarcely a week
elapses, from the time of his appointment, whet, the
Judge is called upon to fulfil the duties of his new
acquired station, and to give to the public the
opportunity of deciding, whether the selection
hes been properly made ; arid it not, it provides
them with the means of analysing the motives
which led to such a recommendation. But un-
der the system in Scotland, it is no: capable of
forming a corret estimate of the merits and de-
merits of each individual promoted to thai elevated
office. nor therefore can those beneficial conse-
quences be expelled, which, in all situations of life,
follow from a full convidion, that the public and
the country are vigilantly employed in examining
into the result of public exertions. and the springs of
(Armin! pursuits. To such disadvantages, the pre-
sent system in Scotland is not limited, isor are these
the only evils incidental to so large a number sitting
as Judges. It was a remark of a Learned Judge
(Lord Swinton) that though in the other trans-
actions of life, the greater the number employed for
the performance of any specific purpose, the more
the labour would be sub-divided, and consequently
foe task on each individual would be lighter ; tins
conclusion, so coned in every other resped,
is diredly contrary to that which the ossaniza-
rion of the judicial seat in Scotland attordso-
From its constitution, the more tie number
of Judges is increased, the greater will be the
labour of each ; and for this obvious reason, that
the decisions of the Court are not rounded on the
dired matter of fact, or a Vita sere evidence, but on
general pleadings and testimony taken by Com-
mission, and on which every Judge must separately
give his opinion. To remedy this inconvenience, and
to provide against its recurrence, two methods press
themselves on the consideration of the House ; either
that the number of the Judges in the Court of
Session should be diminished. or that the Court be
divided into dioind Chambers. similar to the Courts
of King's Bench and Common Pleas in this
part of the &alpine. About twenty years ago, a
Motion was submitted to the Legislature, for
the purpose of diminishing the number of the
Scotch Judges, on the very grounds of the
• inconvenience alluded to. It was iejeded, from be-
ing universally unacceptable throughout Scotland ;
and with every principle of josrice, because the
number of the Judges was a constitutional right,
guaraoteed by the union between the two coon-
tries. 'the other method of amendment. was
the division of the Court of Session into Cham-
bers of concurrent and co-ordinate jurisdidion.—
, What hes been proved from sucu f divistoo
in this country, might certainly. without any
reference to technical farms, be fairly concluded
to produce equal advantage,' it Applied, under
proper circumstances. to Scotland. It is a painful
assertion, but not more painful than true, that there
is in that part cf the country, an utter want of con-
fidence in the anions of the Court of Session.—
Such a feeling might probably arise from their
being oonfiritti to one Court. and not having the
betwixt of choice, in the same manner as the suitors
in the Coons of England. Whatever may be the
opinion on the CAuse, the effects were fully and un-
answerably exhibited by the number of Scotch
Appeals on the table of the House. A number,
which it was 'dually impossible for this House to
get through, consist. et with its various. other neces-
sary duries. Indeed. when the exertions, which had
already been made, were considered, and the great
arrear which remained. notwithstanding such veer-
thins, the House may be fairly said to be banklupt
with reaped to such causes, it having got *dually
to the end of its means. With rived to the divi-
sion of the Court of Session into Chambers. it
was to be recollected, that it was not altogether a
new or extraordinary measure, as the Court of
Session was grafted on the Parliament of Paris.
A difference of opinion has existed relative to
the propriety of dividing it into two or three
Chambers. In the former division. the two Cham-
bers would consist, one of eight, and the other of
seven Judges. This would certainly diminish th
evil arising from the great slumber, but not in the
degree that the Legislature should approve. when
providing an appropriate remedy! The divisii n
into three Chambers, in which five Judges should
sit, would be most calculated to answer every end
of legislative inquiry, and to coned the vicious
effeds of the present organization. The emulation
of these respective Chambers, the choice which the
Suitors would be enabled to indulge, the celerity of
deci,ion, so necessary a part of the administration of
justice, would all tend to produce the most desirable
reform, and to prevent that pressure of Appeal
causes, which, under the present system, have, and

must be .till AXpealld to accumulate. The net
head to which the present 111 l rererred, wee
iatrodtgiton of the trial by jary, in certain ck•fitsed
met expmseel caws. It was net from the partiality
of an Ingli hmen, in estimating the great and pis..
limited blessings of teat invaleable privilege, 'thee
he was induced to make that measure e pert et his
plea of regulation. He recommended it on the •
nroable principles of jueice, on the loinvieer.. f
fair mei loeical reasoning ; and he recommended 't
to a country which was acquainted with its merit.,
in criminal cases, as well as those of r. venue. it
was not rte • intention tit the present hill to need to
the rights of landed propeity. h. Scntland. they
were mostly questions of law, aid could be 'lest 4.
tided upon by the Judges. Its objeft would all -17
embrace personal rights and mer transattioes.
Ina Court su eitnviune f as of Session.
o as oupossible that tehere.easch a nurnher of Jo 'gese
or the majority of them, were called on to decides
the law and the left, the suitors wield rest sa-
tisfied with a decision procured under such do.
couraging circumstances, and, therefore, en video.
Oon to the ultimate jurisdietion of the House was
alfnost usually fixed on. The evidence, by cione
mission, was also a eastern, which, in his opinion,
amt by the operation of his Bill, should give
way to. viva wove testimony. The manner in
setech the. pleadings were, at present, prepared,
and t' e mode in which the testimony was received,
were, in their operation, produOtive of confusien.
—The Judges, employed in the perusel ot a via-
rely of similar decline. nts, were often obliged to
come to a decisto with the impression of what
they had previously read. consideiasly weakened,
by treeing their attention direeted to some volumi-
nous pleadings, more tecently su,orsiesed to their con.
sideration. Tie r h;rd altt-ration,whieh he had to pee-
ress-, was the necessity of some inter mediate Coo t
of Appeal ' • and previously to the consideration cf
that propreial, he wished to ienproe on their Lord-
ships, the propriety of patting an end to appeuto
upon int. rlecutory judgment and hinitieg
them totally to final. flow the Court of leterme-
diate Appeal sheuid be cor,titttted, was a matter of
cnn.iderahle imp ounce and circamspeftion. Some
very ehle and lemma, cherafters have been of opini-
on, that the formation of any new chamber, to
which the Court of Session may be supposed
to be subordinate, agouti be a violation' of the Act
of omen. To thin con:lesion. there are strong
objeltions ; the aft of union, and the various provi-
sions with remeet to the adveininerion of justice,
were left open to future regulation ; where that re-
gulation was absolutely wanting, and where the
exercise of the riget c revision was !Lilly and cow. '
pletely tj_ustafamt.' Unaware& neessewmaa 5r.... hoe
redital e jurisdtfLons were abelisited ; and in the
reign of George I. the Court of Session was altered
by the vote of Parliament having plat an end to thl
office of the Lords Extraordinary. Thus, alshoujh
the power of regulating with a view to the bete r
administration of justice has been esialsfished as
the right of Parliament; yet, in constituting the
intermediate Court of Appeal, it had been his
wish to .adhere strialy to the letter and spirit of
the Articles of Union. A Judge from each cfA,
the other three Chambers, with the Lead Chief
Earon of the Exchequer, whiten it is proeceed to-
make a Lased of Session, and to tepee! the Aft of
George the lot for the abolishing of the Lords 14-
u4w-din:ay. so
,far as the permission to His Ma-
jesty to create one, would constitute a Fourth
Chamber, c.ectilAted to take a full revision of the
proceedings of the other Courts ; and to answer all
the necessary and beneficial purposes of an int-r.
.4
mediate Court of Appeal. No prohibition was
intended by the Bill, against the right of the.
Judge, against whose decision the appeal mar
made, to sit in Cut Chamber. In some cases
it might be sinviceable, but it was deemed
more advi.able to leave it, on all occasions, to his
feelings. The Noble Lord concluded his able and
perspicuous statement, by calling on ;be Hcus: net
to consider the present measure as that of any in-
dividual or individuals in t:te House; but trusted#
that both in the general outline, and the more nee
cessary detail, it would receive all the as.istAnc
strength, and matured wiaerns, which the sue-
gestions of their Lordships iedividuelly, and the le-
gislative wisdom of the House, were so powerthlly
enabled to communicate. The time for its leveed'
reading he proposed tut that day three weels; an
interval in which the measure amid• obtain the
great public giscussion which would materially assist
its progress through Parliament, and its amputate
througeout that pan of the cow try for which it wait
intended. lie then moved, " at the Bill, ere
titled An Aft for the better regulating the Admire
teatime°, Justice in Scotland. be reed a first wee."
The Duke of MONTROSE ti.ouget the Coen
of Review, proposed by the Noiale Baron, would t e
ioeffeetue I to the end proposed ; nor dd ± e seanceiee
that there would be sufficient huslecss for tlYe three
Chambets, independent of the Court of Exc.'.
quer. He professed himself friendly to the g net AP
principle of the measure ; hut there were some
strong objeflions to some of the proposal,. in the
peel...et Bill. He felt leaned to prefer a ':vans
of the Court of Session into two e.tarnbero ths
Inner and ()intr. ahowing the Leres OrJi.cary
greater length of time to transeit the boilers. of tie
Outer Couto With respeek to the trial by pejo
educated as he was in Kurland, he must be at-
tache d to that valuahle privilege ; bur, see settles'.
he had his doubts as to the propriety of ;eine:Wee
ing it suddenly into that part of tee emeire..4
Thi4 was tat ho solitary opinion, hut that et many
learned and intelligent charafhers moll the lan test
and commercial classes. Upon the in aim et the
Noble Baron, that noth;og unnecessary should be in•
unduced, or that expei ienceought tee to be secrificed
to beautiful theory, he trusted, that the rucettos
would not be decided on hugely, but in the met
emulous, guarded, and temperate manner. Greet
alarm, he knew, had been excited on this point; ..4
therefore be apprehended, that the coluttaiiml/2 ate
-Airipaware.