r LETTER TO IR EDWARD BURTENSHAW SUGDEN, SOLICITOR-GENERAL OF ENGLAND. EDINBURGH : PRINTED BY JAMES CLARKE & CO. LETTER SIR EDWARD BURTENSHAW SUGDEN, SOLICITOR-GENERAL OF ENGLAND, ON CAUSES OF APPEAL TO HOUSE OF LORDS, ACTS OF SEDERUNT, SYSTEM OF WRITTEN AND PRINTED PLEADINGS AND FEES IN COURT OF SESSION, AND RESTORING THE BENEFITS OF JURY TRIAL IV CIVIL CAUSES TO THE PROVINCIAL COURTS OF SCOTLAND. BY ROBERT WALLACE, ESQ. OF KELLY- EDINBURGH : THOMAS CLARK, LAW BOOKSELLER, 38, GEORGE STREET. MDCCCXXX. LETTER TO SIR EDWARD BURTENSHAW SUGDEN, SOLICITOR-GENERAL OF ENGLAND, Ac. &c. SIR, IN your place in Parliament, you are reported to have asked the Lord Advocate for Scotland, on the occasion of his introducing a Bill for the Improve- ment of the SCOTS LAW COURTS, What were the causes of the numerous APPEALS from Scotland to the House of Peers ? And it would appear, that the learned Lord, in reply, did more than insinuate, that the chance of success, arising out of the igno- rance of English Judges of Scots Law, was one main cause for these daily increasing Appeals. This has ever been the war-whoop of the Scots Bench and Bar ; but were the Scots nation to be consulted, you would be told a different tale. You would hear from all intelligent men, whether of high or low estate, that the undefined powers and duties of Scots Judges, and the unsettled state of our laws, 1127617 are the true causes of the Appeals ; they resort for justice to English Judges, from a conviction, that their causes will be decided in the House of Peers according to the law and established construc- tion thereof, by precedents, to which essential guar- dians of their rights and property they cannot trust, as the law is administered by their own Judges ; and, further, they would tell you, that the changes ef- fected on our ancient simple and efficacious system are attributable to Trial by Jury in civil causes, and viva voce procedure having been departed from;* and, in lieu of this our most ancient and venerated insti- tution, we have had forced on us the tedious, un- certain, and expensive system of loose and endless written and printed pleadings.f It may not be known to you, Sir, that each coun- ty of Scotland has stipendiary Judges, appointed by the Crown, and for life, to preside in the invaluable provincial Law Courts. These Courts are believed to have as extensive jurisdiction as the Courts of Law and Equity at Westminster, or the Court of Session in Scotland, except only as to titles of lands, maritime, consisto- rial causes, and a few others. Some isolated cases must still be tried by Juries in this Court ; but by far the greater proportion are, now-a-days^ unfortu- nately tried by means of long loose written plead- . * Vide Appendix, No. 11. and III. t Vide Extract from LAW CHRONICLE. Appendix, No. IV. 5 ings, and proofs on commission, on which the pro- vincial Judges are ordained and obliged to decide both the law and the fact, making up a written decision in private, and delivering it in Court, without the aid of a Jury. Provincial Judges are empowered, with the aid of a Jury, to try causes affecting the life and liberty of the subject ; but, monstrous as it must appear to you, they have become debarred from trying civil causes generally by Jury, that power having been withdrawn through the grasping influence of the Court of Session. The people of Scotland feel that the administra- tion of their laws has become grievously unsatisfac- tory ; and the judgments pronounced by the Court of Session so very vacillating, as to deprive them of that confidence which alone can prevent Appeals to Parliament. They are told, at all hands, that this state of things has been matured by slow degrees, and that it is mainly attributable to the Judges being permitted, or rather having assumed, the power to act in the double capacity of Legislators and of Judges, in both law and equity. The peo- ple of Scotland would tell you, that, until Trial by Jury in civil causes be restored to them, as it for- merly existed in their Provincial Courts, in its an- cient and respected viva voce form, under their Pro- vincial Judges, they can never rest assured of get- ting justice ; while, were this done, that a vast proportion of those causes, which now find their way to the House of Peers, would be finally settled in the Provincial Courts, to the entire satisfaction of the country at large. Let the Lord Advocate be asked, Why Jury Trial in civil causes is not now permitted in the Courts of the Stipendiary Resident Judges appointed by the Crown, while the criminal law, with the aid of a Jury, is still left to his administration. His Lordship may perhaps say, as his predeces- sors have done, that Scotsmen are not partial to Jury Trial. But the intelligent part of Scotland, including the Provincial Bar, will, to a man, say : Put us to the proof; restore to us the venerated behest of our free and brave ancestors ; let us have justice, as they had, in our provincial towns and courts ; and this under the Judges which our King yet appoints, and whom we cheerfully pay. If con- sulted, the people of Scotland will be found to say, that they cannot put faith in laws, or in the fluctu- ating decisions of numerous Judges,* which laws they daily see the Judges construing differently at * *"' At its institution, anno 1532, why was the Court so crowded as we see it ? Because France was the model for every thing ; and in France judicature was thus crowded. In France how came judicature to be thus crowded ? Because the sale of the seats rvas an object of Jinance. From this sinister in- terest came the custom ; from the custom the prejudice ; and that prejudice so strong, that it became a sort of axiom, that if, in any instance, the-ends of judicature failed of being fulfil- led, it was for want of a sufficiently great multitude of judges." Bentham, p. 37- As to the extraordinary number of Scots Judges and Courts, see an able statement of them by an in- telligent professional gentleman, APPENDIX, No. I. the same moment, and declaring, on the Bench, this to be law to-day, which, in the same Court, they may declare as not law to-morrow. Many very intelligent men in Scotland, who are constantly watching the proceedings in the Court of Session, may he found to declare, that the faith of the public in the soundness of the judgments pro- nounced in that Court is greatly lessened, from the fact of the Judges so very frequently pronouncing their individual opinions, on points of law, diame- trically opposed to, or widely different from, each other, or the majority who decide the case. This, of itself, will be found as an every-day ar- gument, with losing counsel, for litigants to appeal to the House of Peers. Let the Lord Advocate be asked, Why it is that the Scots Court of Session so fondly fosters and clings to the tedious, old-fashion- ed practice of voluminous written and printed spe- cial pleadings, although the abandonment of these has been so often, and so strongly, urged by differ- ent Parliamentary Commissioners, and by the na- tion, through the press ? He may say, they are not more bulky than is re- quired by the usage of Scots Courts. This wouW be but too true ; and his countrymen would ask of him, by whom, and by what means, were these forms engendered and fastened on them ; and reply for him, by saying, that they are told, and cannot doubt, that with the Court of Session these mon- strous evils have originated ; and that they fear they may never be abated, while its hermaphrodite functions to LEGISLATE AND TO JUDGE, both on law and equity, are permitted, or until these shall be declared at an end, as very many well informed men believe that they, in fact, were, and so should have been held, ever since the Union. Were the Judges of the Court of Session restrict- ed from law-making in future, and the laws already made by that Court, technically called " Acts '* of Sederunt," to be declared abrogated ; were Jury Trial in civil causes restored to Scotland under the Provincial Judges, and the proceed- ings in the Supreme and Inferior Courts to be con- ducted viva voce by the litigants personally present in Court, whenever it were possible, or with the assistance of any practitioner in the law they might choose, the House of Peers would soon be relieved of many Appeals, which otherwise will certainly continue to flow in from Scotland. These improve- ments on our present horrid system would not be innovations ; they form part and portion of the an- cient system of the jurisprudence of Scotland, of which we have been surreptitiously bereaved, while the present one is nothing better than a grievous unsatisfactory innovation on the ancient procedure, introduced by Judges ; and this, it is shrewdly al- leged, and vehemently asserted by the public, through the press, could have been for no other purpose than that of saving themselves trouble, without regard to the expense and delay, or whether the people were able to pay for the cumbrous and complicated pro- ceedings of such a system. According to the tenor of the Bill now before Parliament, it will be enacted, that no man, even in the most distant part of Scotland, can have a question, although it were only about some sorry pelf, tried by a Jury, unless he be, subjected to the enormous expense of being dragged to Edinburgh, or await the similar effects, besides the delay of a trial on Circuit ; and Scotsmen would wish to re- ceive one rational reason, how it happens that, in these enlightened days, their lives and liberties may be disposed of by the decision of a Jury, acting on parole evidence and viva voce pleadings, under the direction of their Stipendiary Provincial Judges, who may daily, with a Jury, try several kinds of difficult civil causes and yet that they are still to have withheld from them the same constitutional means of having a settlement of their comparatively less important pecuniary differences in the same Provincial Courts, and before the same Provincial Judges. Few persons will be found to look on Lords Ad- vocate, or the Scots Bench, as sources from which le- gal improvements may be ever expected ; because, while at the Bar and on the Bench, they become familiarized tuith the system of which the country so justly and so loudly complains, and, happily for them, they are placed out of the reach of feeling its 10 effects. It is of the system, and not of the men, of which our plaint is made. This system, engen- dered through the course of many years, has been sanctioned and extended by each succeeding gene- ration of Judges, who have filled every Scots Court with the vicious uncertainty which wastes our means, distracts our minds, and fastens on us the odious stigma of being a litigious people. This system it is which has multiplied the fees of Court and the forms of procedure, by the mere ar- bitrary will and favour of the Judge, without the authority of Parliament, to an extent so monstrous, as to deprive litigants of all hope of receiving re- dress, and legal practitioners of the just remunera- tion for their professional labours. In short, Sir, this system it is, which, working in an inverse ratio to every principle of justice and common sense, puts into the pockets of the servants of the Courts those sums which litigants should recover, and agents and counsel receive. To this may be chiefly attributed the daily bringing to bankruptcy so many of the litigants and professional men before the Supreme Court. These dire effects, the people are led to under- stand, arise chiefly, if not solely, from the undefined powers and functions of the Judges forming the Su- preme Scots Court ; and they never will be made to believe, that they have any good grounds to hope for their being abated through the advice of any set 11 of men, who are yet capable of opposing Trial by Jury in civil causes in the Provincial Courts, to which life and liberty are entrusted ; or who con- tinue, in any Court, the present system of special written and printed pleadings. It would seem that those who are the advisers of the proposed changes are yet but too deeply imbued with the same un- holy leaven, which worked so powerfully when Trial by Jury was about to be partially restored to Scot- land, by the niggard hand of jaundiced prejudice or green-eyed envy ; and this, too, in a manner pal- pable and prophetic, presumptuously so besmear- ing, with unhallowed hands and odious Scots law forms, the best bulwark of the liberty of England, as at once to convince all reflecting men, of Jury Trial, under such a system, being but a mockery of the promised boon, and tending to the advantage of none whatever, saving and excepting those com- posing THE SCOTTISH JURY COURT. You, Sir, have much in your power ; and the Inhabitants of Scotland would, doubtless, gratefully acknowledge the exercise of your great acquirements in your ele- vated station in behalf of a prudent and anxiously sought- for revisal of her Legal Institutions. For a comprehensive view of the sentiments I have thus made bold to express, and the outlines of ef- fectual remedies for the greater number of the evils of which we complain, allow me to refer you to a pamphlet written by a well informed professional 12 man,* in reply to a pamphlet by Mr. Bell, Professor of Scots Law in the University of Edinburgh, which last is also well deserving your attention. Both were written in 1825, on the occasion of the intro- duction of a Bill, having for its object, like that of the Lord Advocate, the shortening of the forms, and lessening the expense, of litigation before the Court of Session ; but which, as was at the time anticipat- ed, has proved a very imperfect remedy of the evils and abuses in our Courts. I have had the honour, on three different occa- sions, of submitting to the County of Renfrew, in which I live, an address to the Throne, on the im- perfect state of our Law Courts, and practice of pleading in them. On the 23d ult. I also had the honour of submit- ting Resolutions to a public meeting of that county, which were adopted by a large majority of the free- holders and others present at the meeting ; and a copy of these Resolutions, and the proceedings of the meeting, I beg leave to subjoin.f It would ill become me to attempt a fitting apo- logy for the liberty I have ventured to take in ad- * Originally published in The Edinburgh Magazine, and after- wards as a separate pamphlet, anonymously, under the title of " Objections to the New Judicature Bill ;" and now republish- ed under the title of " Letter to the Right Honourable Robert Peel," with Objections to the System of administering Justice in Scotland. By PETER CAMPBELL, Esq. t Appendix, No. V. and VI. 3 13 dressing you ; for being excused, I must entirely trust to your believing, that only in your public capacity could I have ever presumed to do so ; and that I may be permitted to be, with every respect, Your most obedient servant, ROBERT WALLACE- KELLV, KKNFREWSHWK, May, 1830. APPENDIX. No. I. JUDICIARY ESTABLISHMENT OF SCOTLAND, (From the Scotsman oflllh April, ]827- Said to be written by WILLIAM RITCHIE, Esq. S. S. C.) ENGLAND has been said to be the patrimony of the Church. It may be much more truly said that Scotland is the patrimo- ny of the Law. We have more than once remarked, that, in Scotland, the characters, lives, and property of the lieges were in the hands of a great law corporation ; not meaning to assert that this was the case literally, directly, and absolutely, but substantially and in effect. Habit not only reconciles us to things as they are, but also blinds us so that we do not perceive the true features of almost any of those things by which we are surrounded. To excite a little reflection on the subject of our judiciary establishment, we have, for this day, thrown into a tabular shape, the names and numbers of our Courts and Judges. From this table it will be seen, that in the narrow province of Scotland, with a population hardly exceeding two millions, we have no less than three hundred and fifty-four courts; nine hundred and forty-four judges ; and, probably, not less than ten thousand seven hundred and forty persons liv- ing by and connected with ths lam. The expense of this judi- ciary establishment proper, is not less than ,1^,000 ; while the maintenance of the whole judiciary corps will cost the country probably about ,2,367,000. Taking as data the population and number of occupied houses rented at and above 5, within the bounds of the Edin- burgh Police, assuming that through Scotland generally the proportion of cottars and other householders under 5, will be greater in proportion than in Edinburgh, and hold that none who live in such houses are able to buy law or support law- yers ; the heads of families on whom this burden falls cannot be estimated at more than one twentieth of the population, or 100,000 ; so that we have at least one person connected with the law for every ten such heads of families. This is rather a startling view of the subject ; and it may assist others in con- ceiving what we have meant by frequently dwelling on the powers enjoyed or assumed by our courts of making Acts of Sederunt, or laws for the administration of justice, of pro- nouncing declaratory sentences, of bringing the whole range of the press within their grasp under doctrines respecting con- structive contempts of court, of conferring on certain classes or professions the sole power of attesting pleadings, and of the mischiefs and burdens arising to the country from keep- ing up instruments of sasine, signet letters, and other unneces- sary, cumbrous, and expensive forms. It is of great moment that character, life, property, should be secure ; and this secu- rity is to be obtained only by means of a judiciary establish- ment. It is of very great importance that every man should have justice at his door ; but law is not uniformly justice ; and even justice may be rendered too expensive. The desideratum is to have a maximum of security at a minimum of expense. In the natural progress of society, a division of labour takes place, which necessarily leads to the employment of counsel and agents as well as tailors and shoemakers ; but nothing should be done factitiously to increase their numbers. It is not pre- tended to be expedient that twice the number of tailors truly required, should be maintained at the cost of the public, for the purpose of being supplied with clothes. There is no great- er expediency in making regulations to educate and maintain a greater number of lawyers and attorneys than the wants of the country demand. The certain result of all such rules and forms for every useless form is of this description is deteri- oration of the law, and of those by whom it is administered ; since the object of the law the vindication of right is often lost sight of in attending to forms, and forms come to be strug- gled for, not from their public utility, but because a number of individuals have a pecuniary interest in maintaining them. It is good to have protection from law ; it is a great evil to be eaten up by it. In the state of New York, which is nearly as populous as Scotland, there are only a Chief-Justice and two district Judges ; salaries in all 7700 dollars, or 1694: sterling ; while our Courts of Session, Justiciary, Jury, and Exchequer Courts to all which the three State Judges for New York are equivalent have salaries amounting to about 53,700. These are topics on which we shall probably take an opportunity of dwelling at greater length ; and there are other and collateral topics which will also require attention ; such as the working of the judicative machinery in Scotland ; the degree in which it realizes the end in view the giving to every one the means of obtaining cheap and ready justice the time employed by the different functionaries the amount of business done, &c. ; but, for the present, we shall merely add our table of Courts and Judges. No. of COURTS AND JUDGES. No. of Courts. ' . Judges. 1 Court of Session, a great Civil Court, uniting the ju- risdictions of law and equity original and appellate exercising powers, it is believed, beyond those of any other Court in Christendom 15 4 There are truly five courts under this name, viz. the Bill Chamber, two Outer, and two Inner House Courts. 1 Court of Teinds or Tithes. Judges the same as in Court of Session. 1 Court of Justiciary a great Criminal Court, with un- Over - 15 AT - If Courts. \ . O f Judges. 7 Brought over - 15 limited powers, both as to original jurisdiction and reviewing the proceedings of all the inferior Criminal Courts, while no appeal lies against its own judg- ments Judges, nominally 7 actually 6 but they are also Judges in the Court of Session. 1 Court of Exchequer - 4 1 Jury Court (civil causes of certain descriptions) Judges 5 but 4 of them are also Judges in the Court of Session 5 1 High Court of Admiralty. Jurisdiction exclusive, in the first instance, as to maritime causes cumulative with Court of Session and Sheriff Courts, as to mer- cantile causes, amounting in value to 25 1 1 Consistorial, or Principal Commissary Court. Juris- diction exclusive in the first instance as to consisto- rial cases .... - 4 33 Inferior Consistorial Courts one in each county but Judges the same as in the Sheriff Courts. 33 Courts of Sheriffs one for each county the Judges having very extensive jurisdiction, both civil and cri- minal. These, indeed, are the ordinary law-courts of the country, the sheriff-depute being called in law language the judge-ordinary. There is a sheriff-de- pute an advocate of some standing for each county. There is also for each a substitute, who has been bred to the law. In some counties there are two or more substitutes. In all, sheriff-deputes - 33 Substitutes 45 66 Bailie Courts. Of these there is one in each of our sixty-six Royal Burghs. The Bailies (who are Ma- gistrates) are the Judges. Of these Magistrates, in- dependently of Provosts, there are - - 185 The Bailie Courts have jurisdiction, both civil and cri- minal, each within its own burgh. The larger burghs have advocate-assessors, some of them with consider- 143 Over - 292 Vo. 000 Those of Jury Court, (it is supposed) - - 6,400 Those of Exchequer - - 10,000 Those of Consistorial Court, (suppose) - - 3,200 Judge- Admiral, (suppose) - 800 Sheriffs Depute and Substitute, (suppose about) - 25,300 Principal, Depute, and Assistant Clerks of Session, Judges' Clerks, Jury Court, Bill-Chamber, in all about 82 functionaries, (suppose 400 each) - 32,800 Exchequer Clerks, and about 48 functionaries, (suppose) 13,400 Clerks in Admiralty, Sheriffs, Commissary, Burgh, and other courts, about 130 functionaries, (suppose) 39,000 170,200 Then estimate the income of the 10,740 Advocates, Writers, Notaries, &c. at 250 each, or - 2,190,000 2,367,200 No. II. JUDICIAL REFORMS. ExTRACTS/rom Letter, Mr. WALLACE of Kelly. To the Editor of the Scots Times. SIR, In your Paper of the 17th current, you have for the second time done me the favour to offer me your advice, and I thank you for it, as by such means the object 1 have in view will be greatly promoted ; for it will be found, that the more the abuses of our Law Courts are canvassed by the intelligent portion of the periodical press, the more certainly will every re- flecting person arrive at the conclusion of the necessity of some strong general representation being made to Parliament on the subject. The fault you find to my proceeding is, that it is too general the field too wide with a view to lay before Parliament the existing condition of our Law Courts. The object you point at is one and the same as mine, the only distinction being a dif- ferent mode of attaining it. Let us look into the probable effect of your proposal. Suppose that a petition were laid before Parliament, which should, in language the most cautious and respectful, complain of and expose the most unjustifiable and oppressive parts of our Law, what would be the consequence ? Why, the Lord Advocate, representing Scotland, as unfortu- nately for her his office is held to do in all such matters, would very likely, with great composure and gravity, declare that there were no good grounds for any alteration, and perhaps allege, that as the remonstrance came from those whom he, in the plenitude of his undefined power, might, with safety, stig- matise as being discontented, or, perhaps, disaffected ought not to be entertained by the advisers of the Crown. Will any man doubt, that the certain consequence would be, the uncere- monious dismissal of the petition ? Let such petitions be pre- sented, and, judging from the past, let us see who will be found to deny that the result here pointed out is not such as may be expected ; or at the very utmost, that the Lord Advocate should be instructed to bring in a Bill to remedy the evils complained of, taking due care, however, first to obtain the sanction of the Court of Session, after which we might, peradventure, obtain some such experimental panacea as the present Jury Court. This, or something like this, is all we could hope for, unless we had reason to know that Man had changed his nature, and would passively resign power, and stand uninfluenced by the prejudices consequent on habits contracted during a lifetime. You have pointed out certain Courts as being most deserving of the indignation of the people, and the immediate interference of Parliament. Others who have also honoured me with their assistance and advice, have suggested to me the propriety of commencing with the exposure of Legal abuses, which to them seem to be no less disastrous to the public than the Excise Law does to you. It appears to me, that every one sees that Court to be the most grievous with which he has had most to do, or to the proceedings of which he has given most attention, thereby greatly confirming me in the belief of all being nearly alike, as also in the conviction of its never being wise to look for the root among the branches. I While the Lord Advocate and the Judges of the Court of Session are allowed to exercise their unlimited, undefined powers, this state of things most assuredly will continue. Let it be asked, what benefit results to the country from their pos- session of these powers, and what injury the country could suffer, if those powers were curtailed, and Statute Law sub- stituted for the uncertainty and vexation which mainly flows from such sources. Let it become a point of debate, in~how far the adopting of Parole proceedings, in all our Courts, would be beneficial or the reverse ; and no doubt need be entertained of the result disprov- ing the bug-bear position ever resorted to, of endeavouring to have it believed, that the trouble and expense that would be incurred by jurymen could not be submitted to. Let us suppose that Sheriffs were to be enjoined to try civil causes with the aid of a Jury, and by parole proceeding why, Sir, no man, who does not intend to mislead the public mind, would therefore attempt to have it concluded that every petty case should pass through the hands of a Juryimportant cases only, and of particular descriptions, would require to do so, or perhaps such as were appealed from the Sheriff's decision. Suppose that now, as of old, this form of practice was resum- ed, and figure to yourself parties going before the Sheriff of a morning, having their case stated by their agents, in their pre- sence, and in a tongue which they could comprehend, their evi- dences forthwith examined, and the cause decided before they quitted the Court, (as now is done in the Small Debt Courts,) reserving an appeal to a Jury should either side be dissatisfied figure, I say, the astonishment and the happiness which such parties would enjoy, especially if they had ever had a cause con- ducted under the present operose system, on finding that in one day they were in and out of Court ; to which happiness there is no bar, be it remembered, either in the laws or the early practice of the Sheriff Courts of Scotland ; on the contrary, it could be made so to work all over Scotland, if the Court of Session should be pleased to remove the obstacles which at pre- sent prevent this most desirable return to the ancient admini- 10 stration of justice. It is not likely that this will be the case, and, therefore, the country can only obtain this blessing by re- spectfully and firmly demanding it at the hands of the Legis- lature. Every man knows how easy it is, and how very common a practice it is, to cast imputations on the motives of those who seek to make a change on any long standing establishment, and to cry down the good effects to be hoped for from the proposals ; and it is very plain to me, that this mode of attack will be more than ordinarily effective in the case in hand, as, no doubt, among other ways of withdrawing public support from this all import- ant question, my political creed will as usual be dragged forth by the ignorant and self-interested, for the purpose of blinding the public ; but let the end, and not the means, be steadfastly kept in view, and let all those who, dissenting from my way of thinking on other matters, and who are nevertheless desirous of serving the best interests of their country in this, one and all, come boldly forward and openly avow, and publicly advocate those opinions which are so universally professed in private by the whole community. Let all such men engage heart and hand in this great national work, and by so doing, remove from me the performance of those duties in which I may be deemed in- competent even to take a part. Let this be done, and it will be seen whether I shall not be found ready to defer to the honest endeavours of those who shall be willing to devote their time and talents to this undertaking, let the parties be whom they may. I am, Sir, your most obedient servant, ROBERT WALLACE. Kelly, October 20, 1829. P.S. Should any of the Sticklers for a continuance of things as they are, allege that the Lord Advocate's office and the power of the Court of Session are specially reserved by the Articles of Union, let them not be allowed to forget, that this reservation has with it coupled a notable salvo, which declares that these shall only exist, if the British Parliament shall not see cause to make any alterations on them. 11 No. III. ABUSES IN THE COURTS OF SCOTLAND. EXTRACTS from the Scots Times, October 31, 1829. (Supposed to be by JOHN KEK, Esq. Writer, Glasgow.) OUR readers will find, in another part of this paper, a Let- ter addressed to us by Mr. Wallace of Kelly, on the important question of the abuses connected with the law. Mr. Wallace's chief object in this communication appears to be, to vindicate the course of proceedings which he means to adopt for the re- moval of these abuses, although he admits, with a degree of candour and good feeling, highly honourable to him, and which, we think, might go far to disarm even his most prejudiced an- tagonists of all their bitterness, that he is open to conviction, and will yet profit by the information of the more enlightened portion of the public Press. His zeal and anxiety on the sub- ject are perhaps carried a little too far, because, with the ex- ception of Mr. Aiton of Hamilton, who wrote in the Herald of Friday week, we believe no opponent has appeared of the least consideration ; and Mr. Aiton's remarks on this subject are only deserving of attention because he is accustomed to ex- press himself in a clear, pithy, and Cobbet-like style, which sometimes creates erroneous impressions, even although the arguments enforced may be wholly unfounded. We have sel- dom, however, seen Mr. Aiton write so feebly as he has done on this last occasion ; and he is, doubtless, the very last per- son who ought to have attempted a justification of the abomin- able system which it is Mr. Wallace's design to correct. The truth is, he displays the cloven foot at the very outset, and by a sweeping censure of every great measure of reform, adopted by his Majesty's Government within the last ten years, shows that he is utterly incapable of deciding impartially upon any one of Mr. Wallace's suggestions. He proceeds to defend the labours of the Law Commissioners, and says, he is confident that every person who is qualified to judge impartially of the matter will admit, " that the regulations they have introduced 12 tend to shorten and arrange, belter than formerly, the pleadings before all the Courts in Scotland, and to divest them of ver- bosity." Now, the grand object of Mr. Wallace's address is, to carry these very laudable regulations a little farther, and just to complete the good work which the Commissioners may be said to have left unfinished. If the expensive and useless prac- tice of debating every trumpery law case in a series of petty pamphlets or pleadings, can be obviated, that same verbosity which Mr. Aiton refers to may be banished altogether from the Courts ; and nothing certainly will ever contribute so much to bring about this desirable order of things as trial by Jury be- fore the Sheriffs. If the sums for which these Judges have now a right to give decree upon a viva voce debate were in- creased to 15 or 20, nine-tenths of all the cases then in the Inferior Courts would be of importance enough to warrant the interference of a Jury.* Much has been said of the expense of such an institution, and the great inconveniences which would arise to that portion of the public from which Jurors are usually selected, but we hear nothing of all this in England ; and Mr. Wallace, we suspect, is quite in the right when he ascribes the failure of the Jury experiment in Scotland to its connection with that fountain and nurse of all our law abuses, the Court of Session. It is almost unnecessary to add any thing to what has been so well said by Mr. Wallace upon the folly of paying large sums to non-resident Sheriffs, who either do nothing at all, or merely confirm the errors of their Substi- tutes errors which are afterwards submitted, at any rate, to the correction of the Supreme Court. There are Sheriffs in Scotland who do not judge in twenty cases annually ; and their trouble otherwise would be regarded, in England, as little better than a mockery of the " judicial functions." * Note by Mr. Wallace, May, 1830 I would wish to see Jury Trial introduced into the Sheriff Courts generally, without limitation as to amount, and if an experiment on a limited scale should be first tried, the sums should be as high as 8. 6s. 8d. and not less than ,40. This would, perhaps, in a very short time, shew the country and the Legislature, whe- ther it would not be more expedient to extend Jury Trial in the Sheriff Courts without any limitation, R. W. '2 13 No. IV. DEFECTS IN THE JUDICATURE ACT,6 TH GEO. IV. c. 120, entituled, " AN ACT FOR THE BETTER REGULATING THE FORMS OP PROCESS IN THE COURTS OF LAW IN SCOT- LAND." 5/A July, 1825. From the Scots Law Chronicle, No. XL for March, 1830. (Supposed to be by the Editor.) WE do not class ourselves amongst those who are hostile to this act, merely because the original draught of it was pre- pared by the learned Professor of Scots Law. In occasionally noticing it, we have been disposed to admit its excellencies, rather than dwell on its defects. Having a vivid recollection of the loose practice of pleading under the old system, we sel- dom recur to the Judicature Act without being grateful for the great improvements which it has effected. In now directing the attention of our readers to the defects of the act, we wish it to be understood, that we do not undervalue those improve- ments, and are merely desirous to carry them into practice still farther. Nor do we approach the consideration of this matter without some experience. The profession have now had the benefit of nearly five years of experiment under the act, and during that time much light has likewise dawned on our Judges and Jurists. The act, indeed, we presume, was passed chiefly as an ex- periment in legislation. Looking dispassionately on the refor- mation it has begun, and in a great measure accomplished, we believe there are few if any now in the profession who would be inclined to cast a glance back on the old system, and sigh for its restoration. We are, therefore, spared from wishing the punishment that fell on Lot's wife on any portion of the pro- fession, who might be desirous of retrograding. We have passed the Rubicon, and it only remains to press forward in the march of improvement. 14 I. JURY COURT. The first and greatest defect in the act, was the continuation of the JURY COURT as a separate tribu- nal ; but as it is now determined to abolish it, and transfer its jurisdiction to the ancient tribunal of the kingdom, and at the same time to improve the rules of Jury Trial, we shall in due time resume in detail the consideration of that important mea- sure, which will, perhaps, be deemed sufficient for one statute. We shall, therefore, proceed to the other defects. II. ORDINARY ACTIONS. It is in the early stages of pro- cedure, which do not come immediately under the notice of Judges or Counsel, that the greatest abuses and evils in liti- gation take place. Summonses are rashly raised, and parties are wantonly, improperly, and ignorantly dragged into Court. Much concussion, vexation, and expense to the unfortunate defender are thus occasioned, and rather than contend with a pennyless pursuer, it is often wise to submit to a certain mea- sure of injustice, as the least of two evils. The expense at- tending the two first steps, the summons and defences, are from 15 to 20 on each side. But the evil does not stop here. For it is in the power of either party, by the Judicature Act, to go farther, and have revised condescendences, and re- vised answers, and notes of pleas, all before any judgment on the merits can be pronounced by the Judge. The additional expense of these pleadings is about 55 on each side. Now, it is very obvious, that where the demand is about 40 or 50, if made by an insolvent pursuer, it is better to submit to pay it at once, how unjust soever, than be compelled to pay a law agent 75 under the forms prescribed by the Judicature Act, for defending against it.* This every honest and candid prac- " There are one or two modes of putting the matter to any plain and clear-minded individual, which, if he should happen to be a legislator, must make him blush for his own share in the guilt of having permitted, and, therefore, as an accessory perpetrated, the infliction upon the upright por- tion of his countrymen of that immeasurable evil, an English bill of costs. Do Ministers and Members of Parliament consider what cause it is, and whose cause it is, that they protect, by tolerating the fearful expenses of a 15 titioner must admit, and fairly tell his client. This reproach to the practice in the two first stages of procedure, it appears to us, with great deference, might be in a great measure re- moved, by a short bill repealing the 2d, 3d, 4th, 5th, 6th, and 7th sections of the statute, and substituting in their place a few simple rules of procedure, which, we are confident, could be well framed by the Legislator to whom Scotland is indebt- ed for the Sheriff Court Small Debt Act. In ihejlrst place, we have been long convinced that both the summons and defences should be altogether discontinued, and a SHORT WRIT substituted. This would at once remove a heavy portion of unnecessary delay, trouble, and expense. At pre- sent, the summons contains a condescendence or declaration " in the belly of it," as Bentham says, and a full copy is serv- ed on the defender. If in Scotland, the defender is allowed 27 days, if furth of Scotland, 60 days, to appear in Court, and 13 days farther to prepare defences. Now, if a short writ were substituted, we submit, the inductee might be restricted in the ordinary case to eight days. On making appearance, it modern law-suit ? It is the cause of every rogue in the land, against every honest man in it. The authority which pronounces that a British subject, who has been defrauded or injured to the amount of 20, shall not have a chance of recovering it in one of the King's Courts, but by the certain sacrifice of 50, is an authority which ought surely to be adored by knaves, and held by all men of worth and property in abhorrence Erery pound of needless addition to the cost of recovering a right with, held, is to the same extent a denial of justice, because it is an obstacle in the way of it. All impediments to justice are bounties on fraud, and di- rect encouragements to extortion and oppression. The poor man who hap- pens to be an unprincipled desperado, may wreak a double malice on his enemy. He may wrong him first, and ruin him afterwards, by the sort of reparation which he tenders to him. " Go to law with me, if you like." A poor man, who has justice on his side, will find her an exacting and unprofitable ally, whose friendship he must retain by subsidies far greater than his finances can afford, and more than equivalent to all the services which she renders him." Times, 14th Jan REVIEW or MR. DANCE'S PAMPHLET ON THE EXPENSES or THE LAW. 16 would be time enough to commence the procedure of pleading, because, until such appearance, any kind of pleading viva voce or written seems unnecessary, and the mere service of a short writ would always allow a defender to settle before com- ing into Court, on paying the trifling expense of such a writ- If, however, appearance should be made, then let strict proce- dure commence. It is at this stage of the cause that the great problem, which is the best course of procedure? is to be solved. Hitherto Legislators, Judges, and Practitioners, have allowed the greatest looseness and want of system to prevail. The pursuer is, first of all, allowed to lodge a long pleading in the loose form of a Summons. Next, the defender lodges his De- fence. Neither of these pleadings are of any use ; for either party is entitled to prepare a Condescendence, containing a re- petition of the very same allegations. This is followed by An- swers Revisals of these and Notes of Pleas. All this takes place without the Judge being permitted to stop either party, or to see or ask a single question at either of the parties or their counsel. Thus great expense and great looseness of pleading are allowed by the act, before the evil consequences are dis- covered. It is to this point, then, that Bentham has chiefly directed his attention ; and, until the rules of procedure sug- gested by that great jurisconsult are made imperative by the Legislature, we do not anticipate any very material improve- ment on the present practice. He suggests, that, before any written pleading whatever is lodged, the parties in the cause should be fully examined, face to face, in presence of the Judge. This he calls the NATURAL, in opposition to the TECHNICAL system of procedure.* Now, with all the practical experience * " System of procedure which has for its object the ends of justice, and for it model the course naturally pursued for the discovery of truth, and administration of justice, as towards children, servants, or other depend- ants in the bosom of a family ; the Domestic or Natural course of proce- dure, requiring nothing but appropriate powers for the extension of it, with its benefits, orer the whole field of political judicature, to which be- 17 we have had, for these twenty years past, in the mysteries and devices of the technical mode of procedure, we cannot discover any good grounds for treating the natural mode as so very ab- surd and chimerical as learned and technical ridicule would wish us to believe. Take, for illustration of the natural mode of procedure, the case that an action for recovery of 100, for goods sold and delivered, is brought before the Court of Ses- sion. The pursuer and defender both appear, and are ex- amined on oath in presence of the Judge. Each party is at- tended by agent and counsel, who, it may be supposed, as the result of previous inquiry, consultation, and consideration, are perfectly masters of the facts and pleas in law on each side. The defender is first called on to swear whether he got the goods. He admits or denies this. In the first case, he may admit the goods, but dispute the price, or allege payment. Should he in turn wish it, he may put the pursuer on oath, or may crave a proof by witnesses as to the amount of the price or payment. Minutes of these examinations being taken by the Judge and Clerk of Court, the counsel on each side may long, in some, but not in all instances, the modes of procedure, whkh at present, in contradistinction to regular, are designated by the name of summary ; Courts in which this system is pursued Courts of Natural Pro- cedure. " System of Technical procedure, the work of Judges, executed by them in the form partly of statutory law, (as in the case of English Rules and Orders, Scots Ads of Sede runt, &c.) partly of jurisprudentwt law wither without occasional patches in the form of statutory law, stuck on by the hand of the legislator, but mostly under the guidance of the members oi' the law partnership, official and professional, co-operating in concert ; con- sequently, under the influence of the sinister interest, opposite to the in- terests of the community and the ends of justice. " System of Natural procedure, the work of the legislator, the legitimate and acknowledged legislator, acting in pursuit of the interests of the com- munity and the ends of justice." SCOTS RKFOIIM, (of the Administra- tion of Justice,) by BENTHAM. 1807. After twenty-three years of pre- judice and blundering, it appears MOW to be high time to listen to this ce- lebrated Jurist 18 put questions, and valuable admissions be obtained, which may greatly limit the future proof, or perhaps render any proof un- necessary, and enable the Judge to decide the cause. The counsel may then be heard on each side, and the Judge deliver his judgment, either decerning in terms of the pursuer's writ, or non-suiting him, or finding the admissions or pleas not suf- ficient, and farther procedure necessary. In seven cases out of twenty, the defender, to prevent being put through such an ordeal, would not appear, but allow judgment to go by default. In other seven at least, the parties would acquiesce in this judgment. In six of the cases or so, perhaps, the parties would be dissatisfied with the judgment. If so, it would then be time enough to proceed to make up a record, in terms of the present act, preparatory to a trial by jury of the facts, or judgment by the Judges on the law. On farther practice, the record could perhaps be dispensed with, even in this advanced stage, but not at first. This course of procedure humbly ap- pears to us highly preferable to the present practice. At pre- sent, an Outer- House Judge gets through, on an average, about three debates each, day during two or three days of the week, after the action has been in Court about twelve months, and about 75 of expense on each side incurred. In the course suggested, the same Judge might, perhaps, dispose of seven contested cases each day. In the latter case, the ex- pense of the examination of the parties, and hearing of counsel, would not exceed 5 or 10 on each side. Moreover, the cause would be decided, one way or another, in about one month or less after being brought into Court. If law could be got in the Supreme Court at this cheap rate, we believe both agents and counsel would reap a richer and more honourable harvest, and we should hear of no arbitrations, and no sacrifices or submissions to unjust demands, rather than come into Court. If the system were extended to the Sheriff Courts, how admirably are they constituted for it, and how incalculable would the benefit be to the community ! With regard to the course of procedure we are recommend. 19 ing, the following schedule of the procedure and reasons are given by Bentham :* 1. "At the outset of the cause, and afterwards where necessary, the parties, willing or unwilling, heard in the character of witnesses as well as parties, face to face ; except in so far as, by reason of distance or other- wise, such confrontation and mutual explanation is physically or pruden. tially impracticable ; prudentially, i. e. without preponderant mischief iu the shape of delay, vexation, and expense ; preponderant, viz. over the mischief in the shape of increased danger of misdecision, for want of the security against deception afforded by such personal appearance, and con- sequent explanations and examinations ; such conjunct appearance pre- ceded or not by ex parle appearance of the plaintiff, according to the nature of the case." 2. " By or in the name of a party, no writing, except in the character of evidence, nor in that character, except in the shape of minutes taken of the viva voce testimony delivered by the parties respectively, on such their personal appearance as above, where either party thinks fit provisionally to take on himself the necessary expense ; or where testimony in the rea- dy, written form becomes necessary, either in the character of a supplement or that of a succedaneum viva voce testimony." 3. " Testimony received in none but the best shape ; viz. viv* voce certi- fication, subject to counter-interrogation, ex adverso and perjudicem ; except in so far as the necessity of the time for recollection, arrangement, inves- tigation, perusal of written documents, &c. requires a supplement in the form of ready-written testimony ; or the impracticability (physical or pru- dential) of personal appearance produces a demand for testimony in that written form, in the character of a succedaneum, subject always to coun- ter-interrogation, in the written form and mode (the epistolary mode) in the first instance, and eventually in the viva voce form besides." 4. " After the first meeting, if the suit be not then terminated as, un- der the natural procedure, it actually is in the majority of individual in- stances time or times for subsequent appearances and operations settled pro re nata, regard being had to the disposable time of the Court, and the convenience of all parties." 5. " The cause heard from beginning to end by the same Judge ; he by * Scot* Reform The same system ii repeated in Bentham's recent Works, and in his Petitions for Justice which have been noticed in the Westminster Review. We also observed, since this essay was written, an able abridgment of those petitions in the Scotsman ; but we prefer follow- ing Bentham's original plan, in his pamphlet on Scots Reform. 20 whom the evidence has been collected deciding upon it the instant the col. lection is completed." 6. " No decision but on the merits." 1. " Not a syllable ever received from any person, witness or party, viva voce or in writing, without a security for veracity, equivalent to that which has been attached to the ceremony of an oath, or to whatever is provided to the case of an extraneous witness." 8. " The parties once met in presence of the Judge, a plan of intercourse settled between them, to continue so long as a suit continues ; the inter- course to be carried on in the promptest, least expensive, and most certain mode that the state of society at the time affords ; the arrangements of the letter-post, accordingly, adapted to judicial, as already they are so con- veniently adapted to commercial purposes." 9. " Truth unremittingly and exclusively sought for truth, the whole truth, and nothing but the truth. Falsehood from no person on no occa- sion wilfully endured, much less uttered by the Judge." 10. " To give reception to the plan, the interest of suitors should be preferred to the amour propre of so many Judges ; the whole interest of the 1,500,000 unlearned, to that delicate and tender part of the interest ol fifteen pre-eminently learned persons, the ends of judicature ; and in Scot- land in particular." The supposed objection to this plan is thus stated by Beiitham : " The misfortune is it is impossible to disguise it that not only on the existing plan, but on my plan, jurisdiction, in the first instance, is Sheriff-depute' s work ; and while any one of their Lordships (Supreme Judges) had appel- late jurisdiction work to do, and that alone, to expect that any one of their equally learned Lordships should set his hand to Sheriff-depute's work, would be an expectation as extravagant as that the housekeeper of any of their Lordships should set her hand to kitchen-maid's work, and undertake to wash the dishes." " I feel the force of the difficulty, but nothing but absolute necessity shall make me regard it as insuperable. Various expedients present them- selves. There are schools in which grown gentlemen may learn to dance. There are schools in which grown Judges may learn to do justice." This, which seems the only objection worth noticing, appears to us drawn in colours greatly and offensively overcharged. For, if the Legislature were to prescribe the course of procedure we are recommending, we feel confident the present Judges would be sufficiently disposed to carry it zealously into effect ; and it is superfluous gravely to say, what every body knows, that our 21 Supreme Judges are eminently qualified for conducting the simple and natural mode of procedure. Besides, if this mode, and Jury Trial, were extended also to the Sheriff Courts, al- most every cause would be commenced in these Courts in the first instance, and the Court of Session would be chiefly em- ployed in appellate jurisdiction work, and in great and import- ant causes. Twenty causes would be sooner settled, and with less trouble to the Judges, under the natural mode, than two or three now are according to the present _clumsy, lengthy, and expensive system. We have no idea, therefore, that the na- tural mode would materially increase the labour of the Supreme Judges, or Sheriffs-depute or substitute. On the contrary, we anticipate their labours would be greatly diminished. But, al- though it were otherwise, we must, with all deference, make bold to say, the Judges> Supreme and Inferior, who are paid by the public, are bound to undertake, under the proposed sys- tem, if sanctioned by the Legislature, the same laborious du- ties in Scotland, as they are known to perform in England. At the same time, we have no apprehensions whatever that any obstacles would be started by our Judges on account of the increased performance of laborious duties, if necessary. III. SUSPENSIONS. In the procedure in advocations from final judgments, it is admitted, on all hands, that the act has effected a great improvement, and no farther improvement as to them seems necessary. But as to SUSPENSIONS, we have heard one Judge at least in the Outer-House of the First Di- vision remark, with apparent delight, that he had detected one blunder in the act, namely, that it had not regulated suspen- sions at all. We certainly admit this blunder ; but the remedy is easy, that is, to adopt the same rules as to them, in all cases of suspensions of decrees of Inferior Courts, as already apply to advocations. At present, merely because a decree is extract- ed, a suspension becomes necessary ; if it be not extracted, an advocation is sufficient, but by extracting, the suspender is al- lowed to frame a new statement of facts altogether, which is never seen by the Inferior Judge ; and although a record may D have been completed in the Inferior Court, another record is necessary in the Supreme Court. This, certainly, is a great evil. Where a suspension and interdict is the first step, a state- ment of facts seems necessary, but it is submitted, that it should be in the form of a condescendence and note of pleas on its first appearance in Court, and not in the present loose and lengthened manner; and the respondent should meet it in a similar manner. IV. CASES. Where a point of law is doubtful, the Lord Or- dinary or the Court orders Cases to be prepared and printed for the consideration of the Inner- House. Case is merely an English name substituted for the old pleading called " Infor- mation," which is a favourite mode of pleading by the lovers and defenders of the old system. In Lord Medwyn's report on the Judicature Bill,* he eloquently pleads in favour of the old system, that an " argument is never so thoroughly and surely sifted as in writing ; and that such argument, addressed to the Court, when written with the care and attention luhich the doubts or difficulties entertained on the Bench excite, and in furtherance and illustration of the view of the law there thrown out, besides affording the utmost certainty to the parties that their cause has been well and anxiously pleaded, is often most valuable in maturing the doctrines of the law, or in bringing it back to its true principles ; and thus many most valuable legal arguments have been bequeathed to us by some of the greatest ornaments of the Scottish Bar, affording us the benefit of see- ing, in a durable record, the grounds and arguments on which causes have been decided. It may be feared, too, that a viva vocc pleading mill occupy more time than the Court can bestow, and will impede the progress of the other business before them. Lord Medwyn, no doubt, is a high authority in matters of form, and he truly describes the predilection of the Bench and Bar for the favourite mode of written pleadings ; accordingly, when any point of law is now, agitated, Cases are ordered. We are * Report by Committee of Faculty, 17th August, 1824. 2.3 not fond, at any time, of attributing bad motives, but we daily observe, that habit and feelings of convenience sway the most upright men. The Bench thus readily obtain, without labour, a printed huge memorial of the reported cases from the year 1532 to the present time ; and the Bar is afforded an opportu- nity of displaying talent and legal learning. Neither, how- ever, feel the ruinous expense which is thus occasioned. The expenses of " Revised Cases," including fees of Counsel, Fees' Fund, and Lords' Clerks, and Clerks of Court, and printing, are from 30 to 100, according to the length, on each side. A viva voce pleading, with two counsel on each side, would cost from f. 7s- to 12. 12s. on each side for doing the same business. Printed Cases are unknown in England, (except in the House of Peers, and then chief- ly in appeals from Scotland.) The English Judges seem better acquainted with the law than the Judges in Scotland, and are content with viva voce pleadings ; and those, we think, will best satisfy the parties that they have been fully heard, at least the blame would then be attributed to the Coun- sel, and not the Bench. Nor would the viva voce pleadings of the greatest ornaments of the Bar be lost, as our Reporters have now given a new feature to reporting, and would readily pre- serve such pleadings in their monthly record, without charging the litigants one farthing. With deference, we consider the frequency .now of ordering Cases to be prepared and printed a great abuse, and it should be altogether prevented by the Le- gislature. Such cases imply a standing reproach to the state of the law, and a practical proof of its uncertainty. In every case where printed Cases are ordered, it should be imperative on the Judges to report copies of them to the Government and the Legislature, in order that the law may be declared, and such expense in every case in future prevented. As regards the Bench and Bar, the partiality which exists for ordering Cases, and the expense to litigants thus occasioned, seem to warrant the denunciation of THE GREATEST of all JUDGES : " Then answered one of the lawyers, and said unto him, Mas- 24 ter, thus saying, thou reproachest us also. And He said, Woe unto you, ye lawyers ! for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burden with one of your fingers."* We wish our Judges, supreme and inferior, would always remember these words before ordering any un- necessary step or pleading, which may occasion expense. V. SIGNATURE OP COUNSEL. In various clauses of the act, the Signature of Counsel is required to the pleadings. This was passed without any observation at the time. But the evils of it have just burst on the profession like a thunderbolt, by the proposed new Table of Fees, and relative Act of Sederunt. Hitherto, parties have been chiefly recognised in our Courts, and their causes only were to be decided. It was in a great measure optional to employ counsel or not in the preparation of pleadings.f For cheapness, an able agent frequently drew the pleadings himself, and gave a fee to counsel to revise. Now, however, the object is to prevent this, and to oblige agents to employ counsel in drawing every paper. Thus, the expense of process is materially increased, and rendered oppressive. Nay, by the draught Act of Sederunt alluded to, it seems to be the intention of the Court to render the monopoly of coun- sel complete, and thus to shut up, in a great measure, the Su- preme Court against the great body of the people. To coun- teract this attempt on the part of the Judges, who, it is too well known, have long entertained an aversion to the doors of the Court being thrown open to the public, as is sufficiently shewn by the Acts of Sederunt quoted in our First Article, it seems necessary for the Legislature to come promptly forward, and hold out a protecting hand to the people by repealing all the clauses which were inconsiderately inserted in the Judica- ture Act, requiring the signature of counsel. Let parties liti- gants in the Supreme Court have the same privilege which * St. Luke xi. 45, 46. j- By 54th Geo. 111. c. 137, the debtor may appear in Court, and plead " either in perton, or by his counsel or agent." In England, a party always appears by his attorney. 25 they have in the Inferior Courts, viz. to prepare and sign their own pleadings, without the intervention of a procurator or coun- sel, unless they think fit to employ them. This will tend to keep down the expenses of process ; it will restore the people to their inherent right of pleading their own causes ; and it will also tend to raise the Bar in public estimation. At present, to defeat and mar the monopoly in favour of counsel, attempt- ed to be made perpetual by the proposed new Act of Sederunt, becomes the public duty of every writer to the signet, solicitor and agent, who have the means to do so in their own hands. In a subsequent Number we shall notice some minor defects in the Judicature Bill. We trust some of our influential members of Parliament, who now keep a watchful eye over the proceedings in our Courts, may not deem our remarks on this subject unworthy of consi- deration ; and we should be glad to see a Bill brought into Parliament to amend the Judicature Act to the extent suggest- ed, by which an incalculable benefit would be conferred on Scotland by a very simple and practicable form of process, The delay and expense would be diminished to a very great extent, without injury to any one. We cannot imagine the trouble to the Judges, under it, would be so great as may at first be imagined ; and, at all events, if the trouble to the Judges, on trial, should be found too great, the wisdom of the Legislature would always be competent to provide a remedy. At the present moment, when the tide of distress flows with such a torrent orer the whole kingdom, the Government and the Legislature are loudly called on to make justice cheap and speedy to the great body of the people, even although it should very materially increase the labours of our Judges. 26 No. V. MEETING OF THE COUNTY OF RENFREW. From the Glasgow Chronicle, (26th April, 1830.) SATURDAY, at 12 o'clock, a meeting of the Noblemen, Free- holders, Commissioners of Supply, Justices of the Peace, Ma- gistrates of Towns, Landholders in general, Bankers, Mer- chants, Manufacturers, Ship-Owners, Colonial Proprietors, and Legal Practitioners of the County of Renfrew, was held in the Court Hall, Paisley, for the purpose of taking into considera- tion the Bill recently brought into Parliament by the Lord Ad- vocate, for extending the benefit of Jury Trial. Mr. SPEIRS said, All were aware of the objects of the meet- ing, the consideration of the Lord Advocate's Bill, of immense importance to the country. He would propose that their old and tried friend, Sir John Maxwell, should be called to the Chair, which was done with acclamation. Sir JOHN then took the Chair, and thanked the meeting for the honour done him. Mr. WALLACE of Kelly said, He had, at three different times, appeared before them to bring under the observation of that populous and wealthy county, a document on the state of the Law Courts of Scotland ; and he again appeared with the same document for the last time, and would resign it to be recorded in the Books of the County as he had pledged himself to do. The address embraced a large and extensive field. It includ- ed all the Courts except the Admiralty, which was now to be abolished by the Lord Advocate's Bill. It, however, included the whole legal profession, as well Judges as others. He would speak of offices and of systems, not of men ; the gentlemen of the legal profession in the metropolis, being a highly respect- able and useful class, and against whom no gentleman of edu- cation or liberality would speak disrespectfully; he would, however, speak very unceremoniously of the Court of Session. 27 It had been in existence for three hundred years, during which time it had accumulated evils of great magnitude, while it had been the means of doing very little good in return. The Bill professed to have for its object the amelioration generally of the Courts in Scotland, and was prepared by the Lord Advo- cate, of whom he had nothing to express. It had emanated from that metropolitan manufactory, which assumed the right to decide, not only on the merits of their own, but on the merits of all the Courts in Scotland. He deprecated the graspingness manifested by the Court of Session, which had proved highly injurious to the country at large. He was prepared to restrict his resolutions merely to the re-establishment of the Sheriff Courts, as they were wisely and happily established by our brave ancestors. He would first look generally at the bill ; it did away with many offices, and transferred the duties of them to the Court of Session. It was extraordinary that it should take away from sea-ports actions adapted for the Sheriff Courts, and carry them to one centre such as actions for sums above twenty-five pounds especially in an island like this, where on till sides we were so near to the sea, and could easily find jurors fitted to try such cases. Mr. Peel, in the speech which he had delivered in Parliament on the state of the law, a speech cha- racterised by liberality and good feeling, held out an invita- tion to Scotland to meet and express its opinions on the sub- ject ; and the county of Renfrew, with its usual spirit, had been the first to meet, to point out such improvements as might be be- neficial to the country at large. He had also drawn up a series of resolutions for the purpose of directing attention to the state of the law generally. In the first place, they were intended to point out and explain the causes of the Sheriff Courts being in their present state, and point out a remedy ; and then they proposed petitions to Parliament to reinstate the stipendiary Judges on the same footing as they were, before the Court of Session deprived them of their power to try causes by a Jury. Many Commissions had been sent out to remedy the matter ; yet the Judicature of Scotland, he maintained, was worse than 28 it was seventy years ago. By this bill, the Judges in the Court of Session were to be reduced to thirteen. This would no doubt be grievously complained of by the fifteen ; and they perhaps would not take it well, his stating the way in which the present number originated. We took the pattern of our Institutions chiefly from our neighbours the French. In that country the Judges were numerous, because the sale of their office was made a matter of finance, and each minister increas- ed their number, to increase his revenue. We believed that the greater the number of Judges, the greater the justice to be re- ceived, and we had fled to this system, till Scotland was up in arms to obtain relief from its evils. These arose in a great measure from the Judges of the Court of Session possessing the power which had been assumed in the olden time, when the Judges of the Court of Session were Senators and Clergy- men, as well as Judges. This power of legislating they had continued to retain and exercise. From the predilection which was entertained for fifteen Judges, there originated the predi- lection for fifteen Jurymen. He was a Scotsman, and he re- vered the Institutions of his country ; but he could not believe that Judges of four, six, or eight, might not, in proportion to the magnitude of the cause, be as efficient as Juries of fifteen. The assumed power which the Court of Session possessed and acted upon, was that of making what they called Acts of Sede- runt laws for the regulation of the Scottish Courts. The warn- ing he had received when he last addressed the county on this subject, had caused him to make inquiry whether the state- ments he had then made on this point, were deserving of the character which had been given them by those opposed to him ;' and he found they did not in any way deserve it. He had sub- mitted his observations on that point to an eminent statesman, as well as to a periodical commentator on Scots Law,* whom he believed to be as clever as any man in Scotland, and he had them returned with notes in their own hand-writing, giving his resolutions their complete approbation. He also held a letter The Editor of the Scots Law Chronicle. from that able commentator, asking the favour of a copy of them, to refer to in his writings. Such were his (Mr. W.'s) opinions of that practice of making Acts of Sederunt, that he had arrived at the conviction that they were illegal ; and were he as rich as he was not, he would go to the Court of Session, aad contravene these acts, to let the Legislature decide whe- ther the Court of Session had the power of making laws, with- out the authority of Parliament. He regretted very much that the learned Sheriff of the county was not present at the meet- ing, but he would speak as if he were. Had he been present, he would have cross-questioned him sharply as to the contents of the document, which he now and formerly produced, and of which the Sheriff had said three-fourths were erroneous and objectionable, and the other fourth required to be well consi- dered. He would have taken up a book in which he had mark- ed a great number of passages, an examination by Professor Bell of the Objections to the Bill. This gentleman had been appointed by the Crown to draw it up, and he was a lawyer of the greatest learning and intelligence. He would have read extracts from this book to confute the Sheriff, or any other gen- tleman of the law, who disputed his positions. In it there was a strong impression conveyed, that both the Bench and the Bar were opposed to any improvement of the Scottish Courts. The extracts, however, were long, and he would therefore reserve them for his reply, should any gentleman be inclined to go into the discussion. The book itself, he believed, was out of print ; he had got it in a present, and it was at the service of any one who wished to look at it. fortunately for him he had a good cause, and he trusted more upon its strength than upon his own support of it. He had another pamphlet, by, he had rea- son to believe, the able Editor of the Law Chronicle, a book which being also out of print, he thought, should be republish- ed, and he had requested the author to do so. This pamphlet says the same as the other of the hostility of the Bench and the Bar to the introduction of improvements from England, or any where else. Scotland would be glad to take what was good 30 from the English law, and could give something good in re- turn. What a blessing, for instance, would a public prosecu- tor be to England, if he were deprived of that baneful politi- cal power with which he was here invested. England would also derive much good from a pure system of our Sheriff Courts. Scotland, on the other hand, would be proud to receive from England whatever would improve the system of our Courts. Was not such an interchange of beneficial improvements highly expedient? Would any one say that it was not an improve- ment to equalise over the whole country the weights and mea- sures ? What was held good with respect to these was equal- ly applicable to the law. Had the Sheriff been present, he would have asked him why the Sheriffs should represent Jus- tice lopsided and unstable, trying causes without a Jury, when it could at once be remedied ? The Court of Session, as at present constituted, tried causes of fact, of law and of equity ; and he was astonished any man would, in such circumstances, undertake to do his duty satisfactorily. A Judge in the Court of Session was in fact supposed to be a monster, a perfect lusus naturae. He had three heads one nodding law another nodding equity and one assenting, or nodding dissent, from the fact. This was the true cause whence the great number of appeals from the Court of Session arose, and until they were separated as judges in law, and judges in equity, appeals will increase, but, thank God, they would soon now get at the facts by the aid of a jury. He feared that the adding of a jury to the Court of Session, as at present constituted, would make matters worse than they were ; for while the judges allowed equity to inter- fere, juries would be perfectly useless to a proper administra- tion of justice. There seemed just one way of getting the matter remedied that was, to tell the Government that, the judges being compelled to judge both in law and in equity, a separation ought to be made. That one portion should be judges in equity, and the other judges in law, with the aid of a jury for the expiscation of the facts. He believed there was no other way of remedying the evil. Another evil arose from the im- 31 mense accumulation of written and printed pleadings which such a system generated. If it were confined to law, or to equity, an uniform plan could be adopted to get rid of the evil ; but while the mixed court existed, it must lead to a mixed na- ture of things in all its proceedings. The accumulation of this mass of papers led to the creation of a mass of servants to the judges, not paid out of their pockets or the coffers of the State, but from the purses of the unfortunate litigants. He could prove by letters from several highly respectable writers to the signet, subjoined to their report, that these servants, and others who were paid out of what was called the Fee-fund, ran away with 75 per cent, of the charges of the legal men in Edinburgh ; and these gentlemen were yet constantly abused for the mag- nitude of their charges. When the matter was thus expiscated, it appeared that a mass of useless servants ran away with a very large sum which ought to remain in the pockets of the litigants ; and the fees to the Lords' clerks were levied by order of these Lords of Session without legislative authority. On some few occasions, indeed, the acts of sederunt of the Court of Session have been confirmed by the Legislature ; but this was beginning at the wrong end. These excessive charges had the effect of heaping obloquy on the counsel and other legal gen- tlemen who conduct cases in Edinburgh, who are unsparingly blamed for the great expense which is thus created. He would be sorry that it should go abroad that he had not a respect for the talent and respectability of those servants who were paid out of the fees taken in the courts. He had a fellow-feeling for the gentlemen in all grades of the profession. He men- tioned this, because he had heard a report of different senti- ments being imputed to him. A western poet having paid a visit to Sir Walter Scott, was asked, in the course of conversa- tion, from what district he came. He answered that he came from such a place, and his (Mr. W.'s) name was then intro- duced ; on which Sir Walter, in his usual homely style, said, " Wallace of Kelly ! that is the chiel that's for makin' a hole in a' our coats. 1 ' To this his friend jocularly answered, " Na, 32 na ! he's for stooing* the tails aff them a' thegither. 1 ' (A laugh. ) We, continued Mr. Wallace, should all wear tails to our coats, he did not wish to interfere with them ; but if he played at the game at all, it would be with the heads and tails of the judges, (laughter.) He would be for adding equity tails to the heads of one portion, and law tails to the heads of the other. (Continued laughter.) If the Sheriffs were allowed to try causes by juries, as they were in use to do, there would be fewer appeals from their decisions. If juries tried causes, they would be decided intelligibly, which they scarcely were at present, and there would be little ground for appeals. It was an old saying, that example was better than precept ; and he would now show them the Sheriff without a jury, and the Sheriff with a jury. Mr. Wallace then referred to the case of a stone-mason in Paisley, who had petitioned Parliament relative to the Sheriff Court there. The cause was for a trifling sum, only 12 odds; there had been 88 pages of papers produced in the case, the expenses already amounted to JB11 odds, and the case had been a whole year in the court. This was the Sheriff without a jury ; he would now show them the Sheriff with a jury. He (Mr. W.) had been cited to attend on Tuesday as a juryman, to try two men for some misdemeanour. He was never called on to do justice to his countrymen as a juryman, except in some horrid affair ; the privilege of being an arbiter in a civil question is denied him ; and though he was considered perfectly capable of hanging a man, he wa* not considered competent to do justice to such men as poor Robert Kintrea. (Applause.) He would attend the jury on Tuesday, perfectly satisfied that the two men would get justice. The Sheriff would explain to the jury the law so as to enable them to give a just verdict on the fact ; and if, after that case, the Sheriff should ask them to wait and de- cide Kintrea's case, he should not require a second summons, (applause,) and he believed all of the jury would be alike ready to do an act of justice to that individual. The Sheriff has the Awfbdi, cropping or cutting. S3 power of deciding any case by a jury, and he did not see why he should not exercise it. If he were a Sheriff, he would be proud instantly to do that act of justice to his countrymen. (Applause.) It was a common practice to endeavour to terrify people from seeking jury trial, by talking about the expense which would be incurred, and the difficulty of getting juries to attend. For his own part, he had been often summoned to juries, and would, with pleasure, attend once a week to do jus- tice to his countrymen. (Cheers.) In the case of civil juries, if we gave our time one day to decide a cause of a fellow-citi- zen, he might soon have occasion to do the same for us, and we would, at the same time, have justice brought to our very doors. The British Government had, much to the credit of Lord Aberdeen, a Scotsman, and Foreign Secretary, with whom he supposed the matter had originated, lately established a Jury Court at Malta j and it had been shown that one number of jurymen was considered as good as another, for by six jury- men only, all causes were to be there tried. In fact, it was established, to the satisfaction of every one who considered the subject dispassionately, by the remarks of Professor Bell, that, till a great change took place in the constitution of the Court of Session, they could not have a better state of things than the present. Mr. Wallace then read the following extracts : " To that course of procedure, however, the Committee of Advocates have made objection. And, as if alarmed lest the Bar should lose any opportunity of displaying its oratorical powers, they seem to object to every thing like the close sift- ing of a cause, which it is the object of the bill to establish." " It may be marked as a distinguishing feature of the policy recommended throughout by the committees, that the parties shall not be too soon committed on any step they may take. They seem perpetually in alarm, lest parties should be com- pelled to meet each other early on peremptory grounds. Now, this is the very spirit of the present practice of the court, which has done infinite mischief, and which it has been the object of all the late inquiries to break." 2 34 " In the Report of the Advocates' Committee there are many observations introduced, not so much against the bill, as against the necessity for any reformation of the judicial forms of the Court of Session, by reason of the extraordinary number of Scotish appeals, and the peculiar nature of the cases sent up to appeal." " It is universally known to the practitioners in the Court of Session, and it is established by the evidence in the Appen- dix to the Report to his Majesty, that two of the great causes of delay in conducting proceedings in the Outer-House at pre- sent are, 1st, The necessity of repeatedly renewing the orders of the Judges upon the parties to lodge the written pleadings : And, 2d, The frequent absence of counsel when causes appear for debate, whereby they are delayed for an indefinite period. The time lost in this manner consists not merely of the num- ber of days allowed to the party by the renewed orders ; but by the cause being thereby occasionally delayed during the autumn vacation of four months, and the spring vacation of two months, and the Christmas recess of three weeks. An order not complied with, or a debate delayed, for example, in the beginning of July, prevents farther proceedings till the session meets again in November ; and an order not complied with in the beginning of March prevents further proceedings till May. It is also known, that in conducting proceedings in the Inner- House, considerable delay is caused by the occasional arrear of undecided cases." " There was an agent in the Court of Session, called " find- less Willie,'' whose occupation would not have flourished un- der this system. He was a man of great ingenuity, and is said never to have paid much attention to his causes till they came to the last reclaiming petition in the Inner-House. He then began seriously to exert himself, and was always able to devise some new plea or statement, which the court was compelled to remit to the Lord Ordinary ; and so the litigation set off on a new career. If he were alive now, he would be loud in com- mendation of these two Reports.'' 35 And to show what opinion a late Lord Chancellor had of the same court, he read the following extract from the Law Chro- nicle : " Value of the Opinion of the Fifteen. We shall get the House in the same difficulty as James Boswell got us. I had the honour of arguing a case before the bar of the House of Lords with him, and being senior in the profession, I stated, with all humility, the extreme pressure under which I labour- ed, for I was to argue against the unanimous opinion of fifteen Judges. He came to the bar, with what degree of modesty is not for me to determine ; but he blamed me for prejudicing the cause of my client, stating, that when the Judges differ- ed, they had thought very little about the matter, and when they all agreed, they had thought nothing at all about it." Per Lord Eldon, in Stewart v. Fullerton, 15th Feb. In the resolutions, he had referred to the time when the Sheriff acted as Coroner, as the Sheriff at last Renfrew meet- ing said he still did. When Sheriffs did act as Coroners, they should take Juries with them. This power of the Sheriffs has been servilely laid down by themselves, not taken from them, because the Court of Session could not take that power from them. You might as well look for the roots of a tree among its branches, as for such a power in the Court of Ses- sion. The Sheriff may take with him, in such cases, a jury of fifteen, or any other number he pleases ; and when he has the power to do so, he should certainly do it. He (Mr. W.) was still of opinion that the Court of Exchequer was a most use- less and expensive Court ; and had the bill not been concoct- ed in Edinburgh, the Exchequer Court would not have been allowed to exist. The Jury Court is now to be united with the Court of Session. It was originally separated from it under the vile pretence of pleasing Scotsmen ; and they had a person sent down to conduct it, to teach Scotsmen, forsooth, that com- mon sense which in England was exhibited daily. He cared not though he was told that it was established by Whigs. Whether it had been established by Whig or Tory was of no m importance ; but Le would say it was a black, barefaced Whig job as had ever been concocted by either Whig or Tory. So despicable a job was it, that it had given rise to a riddle which was in every one's mouth " Why is the Scotish Jury Court like the Garden of Eden ?" " Because it was made for Adam." (Cheers.) And, from the blackfaced nature of the job, that riddle was still hung to the tail of it. But that was not all. Would the county believe, that last year Baron Adam was sent down to Scotland in the capacity of a Parliamentary Com- missioner, and reported with the others, that he (Baron Adam) was required to teach the Scotish Judges to judge although there were other five as good judges as ever Baron Adam was ? He begged to be understood as speaking of the job, not of Ba- ron Adam ; and he would have spoken as he did though Baron Adam and all the Judges had been present. (Cheers.) He had already spoken of the fee-fund of the Court of Session ; but he had not spoken of the fees of Court at home ; and, as ocular demonstration went a great way, he would show them something of the causes of the inquiry that had been made in- to the fees in the Sheriff Courts. The meeting might remem- ber, that when the discussion of this topic was introduced at the meeting in Renfrew, the respectable Sheriff-clerk denied the right of the meeting to take up the question without hav- ing given previous notice, stating, at the same time, that the Sheriff's office and the fees required no revision, both being very complete. He would now give them ocular demonstration to the contrary. Here was a paper which was called an ex- tract of decreet, and cost 4. 14s. (Mr. Wallace here held up to the meeting a large quantity of paper, which, he said, would form a pretty portly sort of volume.*) The whole ne- cessary writing consisted of a single sheet ; but as the whole was charged for the small paper, which could be charged for the large one, the clerk who had the charge of the case was determined to have full value for his money. If the Sheriff- clerk would give him an opportunity, he would undertake to * 118 folio pa^es. 37 load the best waggon in Paisley with such documents. In a case of a person ill treated at a toll, the Fiscal asked for a fine to himself in addition to the fine for the offence, and this being refused, it was declared to be restricted to the statutory penal- ty in Court before trial. The toll-man was convicted in a pe- nalty of 2. 2s. but carried it to the Court of Session, where, on a point of form, the case was dismissed, after having spunged the person out of 80. He had formerly referred to the Banks of the Clyde case, which arose out of the si-mple circumstance of some men taking a walk on Saturday afternoons. That case had occupied in the Court of Session, Jury Court, and House of Lords, 1842 days, or 5 years 117 days, and was, after all, sent to a surveyor in Glasgow, a" very respectable man, Mr. Kyle, who set all to rights, and decided the case. When he mentioned this case before, he was told that he could be fur- nished with a better one. It was one regarding the right of putting up a gate on a Statute Labour Road at Carlton Place. This case occupied 3714 days, or 10 years and 64 days ; and, after all, the Court of Session sent out Baron Adam and a host of people, and tried, within a few yards of the spot, Avhat the Sheriff and a Jury could have decided just ten years and sixty- three days before ; for no power on earth could cause it to oc- cupy more than one day. The Duchal case had been fifteen years in the Court of Session and House of Lords, and was again sent .to the former. He believed there existed, on the part of Mr. Peel, every disposition to do every thing for Scot- land, if he knew what they required. Having stated, in the outset, that he would restrict himself to the state of the Sheriff Courts, if the other matters he had introduced, as necessary to show the best manner of accomplishing the object in view, were objected to by the meeting, he would withdraw them, but he could only know this by a vote. The resolutions sub- joined were then read. The petition, Mr. Wallace said, was verbatim of the resolutions, and the address to the King had been read twice before. Mr. Wallace then sat down amidst great applause. Mr. SPEIRS had great pleasure in seconding the motion He had lived in the county for above half a century, and at all times, in the county and out x)f the county, in Parliament and out of Parliament, he had supported the liberal cause. Now, at his time of life, it was not likely he would change his opi- nions. Seven years ago, he had spoken to the Sheriff- depute of the dissatisfaction his courts had produced. He told him that what the country wanted, was cheap law. The case of Kintrea was a very grievous case. He had told the Sheriff, ten days ago, that he meant to remonstrate against the system of the courts.. He could show cases more hard and objection- able than any which had been produced r-cases in which, what a Jury would hare decided in half an hour, was kept in court for twenty years. He had known a case where one of the par- ties declared, before-hand, that he was in the wrong, yet, by the ingenuity of interlocutors not at all applicable to the point, a case which should have been decided in a few hours, was kept for twenty years, when a proof was offered and refused by the person presiding. This could not happen with a Jury. He considered the Judge bound to receive evidence whenever offered, and to read it. But he would ask if it is law to say, tf Take away the case, I won't hear it." He was certain all would rather be judged by a Jury than by any one single man in a hole or corner. Of the Lord Advocate's Bill he would say, that when he was about to build, he should begin by lav- ing a foundation at the Sheriff Court ; but he had begun at the Court of Session, and it would not be worth a ha}fpenny to the great majority of the people, unless it added juries to the Sheriff Court. In London, cases were decided by Juries in as many minutes as the Sheriff would take years, and by three, five, or seven Jurymen. They should have the Sheriff resident in Paisley, and he could then decide cases by three or four of a Jury in ten minutes, which otherwise it might take years to decide. Sheriff Dunlop had asked if the gentlemen of the county would consent to be troubled with a Jury Court. He answered, that, instead of fifteen, he could take three, and he thought no respectable man would refuse to submit his case to such a jury, or be a juryman himself; Sheriff Dunlop re- plied, that such might be his (Mr. S.'s) opinion, but it was not such as he entertained. Even the Sheriff-substitute did not give the county much of his time. He generally spends half his time in the country. Sheriff Dunlop says, Mr. Campbell only goes to the country on Saturday, but he had reason to know otherwise. The Sheriff Court should have juries, and the people would then have cheap and expeditious justice. It was a shame to have an expense of 11 on a case of 12, as in Kintrea's case. He cordially seconded the motion, and if any of them wished to see a masterly exposition of the ques- tion, he had a copy or two of Mr. Douglas's pamphlet, which were at the service of any one who wished to see it. A gentleman said, Mr. Douglas's pamphlet was already in the hands of all the procurators of Paisley. On the question being put, Mr. GARDNER rose, and, in a long speech, objected to Jury Trial, and eulogised long written pleadings. He concluded by moving as an amendment, 1. That it would be inexpedient to introduce trial by Jury in civil causes into the Sheriff Courts of Scotland, in respect of the great additional expense and delay that would be at- tendant on such a measure ; and its impracticability consistent with the interest of the public and of litigants. 2. That many defects exist in the administration of Justice in Scotland. 3. That a petition to his Majesty's Ministers be presented, praying them to inquire into these defects, and have them re- medied. Mr. SPEIRS said, Mr. Wallace did not defend the Jury Court, of which Mr. Gardner had said so much. He consider- ed the present Jury Court the greatest curse ever given to Scotland as a boon. Mr. BARK said, he wished to give a glorious proof of the de- fects in the Sheriff Courts. He had been 19 years in prac- tice, and he never before had an opportunity of bringing the 40 public mind to bear upon any cause. Mr. Gardner had con- troverted the facts of Kintrea's case, and he would bring him to the test. He would offer to assert that that case was for 12 odds, and for nothing else ; and therefore neither could be taken to the Small Debt Court, nor required the voluminous papers which had been written, nor the delay which had taken place. As to the number of pages, Mr. G. said, he examined them this morning ; he asked him to say where he had seen the process that morning ? The fact was, that he (Mr. B.) was the agent for Kintrea, and Mr. Gardner was his opponent. And to show an instance of what the Sheriff Courts were, the last notice he had of the case was, that it was sent to avizan- dum ; and Mr. Gardner must therefore have had access to the bureau of the Sheriff, before he could have learned what he states, without notice to the opposite party, (loud cheers.) As to the question of Jury Trial, he lamented that they had not tlie Sheriff-substitute present, in a case of such great import- ance to the country. His absence justified one of the resolu- tions, that Sheriff-substitutes should be appointed and paid by the Crown. The Sheriff-substitute was at the nod of the Lord Advocate ; and that this was his Bill they were met to discuss, was a reason why he was not present at the meeting, where his knowledge would have enlightened all upon the question. This was one reason why he should be dependent only on the Crown, as Mr. Wallace wished him to be. In the course of a practice of 19 years, he has been engaged in a cause for 170, and he could scarcely carry it in his arms. Before he got it, it was in the 13th year of its age. He did manage, by spe- cial pleadings, to keep it going for two or three years longer. (Cheers.) It was afterwards compromised for 100, thus losing 70. In a Jury Court, in any form, there would be more dis- patch than in the Sheriff Court; and in the former a final judgment, the greatest blessing a litigant can have, is given on the day fixed. In the Sheriff Court, instead of the parties be- ing brought face to face, there are defences, replies, duplies, and he did not know how many plies. (A laugh.) Then the order to the parties is to condescend a new starting point. 41 After that comes revised condescendences, &c. which could all be got rid of by a Jury Court. He then read the opinion of Professor Bell on this subject, which, he said, he would risk against Mr. Gardner, or any other Provincial Lawyer in Scot- land. At the commencement of his speech, Mr. Gardner spoke like a reformer ; he did not think it a sufficient reason to per- severe in a system because it was old, and yet he agreed that the present system of the Sheriff Courts should be continued. He (Mr. B.) maintained that the ancient institutions of the country were at first administered in a better manner than the present, both in Scotland and in England. In Edward's time there were coroners in both, and it was only of late that the country was deprived of the advantages of a pure administra- tion of justice in our Sheriff Courts. There was another an- cient custom of their Sheriff Court which had now been de- parted from. Mr. B. then read extracts of an old case copied from the Sheriff's Books of 1689, of an action raised against an individual, for defamation of another, by saying that the devil was his father, in which, utter alia, it appeared that the Sheriff Court in those days met at the early hour of eight o'clock in the morning. Mr. GARDNER called to order. Mr. Barr was reading a criminal case. It was misleading the house to say it was a civil case. Mr. BARR said it was a civil case; ami it was misleading the meeting to say it was a criminal case, He meant to show from this case that it was the practice in those days for the Sheriff Court of Renfrewshire to meet at eight o'clock in the morning. At present it did not meet till 12, and often half-past 12 o'clock, while the Court of Session met at 10, and often at eight o'clock in the morning. This was a great grievance, and very much against the dispatch of business. Mr. Gardner called the Sheriff Court a blessing, but the only blessing con- nected with it, which he could see, was the Small Debt Court ; the Sheriff Court itself was one of the greatest curses. In re- ference to the delay of Kintrea's case, Mr. Gardner said it was 42 only a year in Court. Was it a blessing to be kept dancing, even for only a year, after a case of 12, when causes of im- mense interest are decided in Parliament in a day ? A small sum is of as much importance to the poor as a large sum is to the rich. He should like to see the Small Debt Court extend- ed to sums of 60, leaving all beyond that to be decided by Jury Trial. The Jury have the plain question of fact before them the Judge the question of law. The resolutions had his hearty concurrence. For his own part, if Jury Trial was not established soon, he cared not how soon Sheriff Courts were abolished. Mr. GARDNER explained. If he said he got access to Kin- trea's process that morning, he was not aware he had done so. He did not need to go to the Sheriff; though, had he done so, it could not have implied that the Sheriff was thereby to be corrupted, and he thought no procurator in that Court would have insinuated such a thing. In his petition, Kintrea said there was five pages in the summons, yet in the copy there was only two pages. There certainly was a short copy, called a will, attached ; but he doubted if ever Kintrea saw the peti- tion. (Hear.) He might have found many other ways to de- cide the case without going to Parliament, when he did not go there with one he could scarce carry in his arms. He (Mr. G.) was satisfied the case was sent there, for an indirect attack on the Judge not for the purpose of getting rid of a grievance. Mr. BARR called to order. Sir JOHN MAXWELL requested Mr. Gardner to confine him- self to the point. Whether the pages were 50 or 80, every body would be satisfied they were far too many. Mr. GARDNER continued, and repeated part of his former arguments against Jury Trial. Mr. CUNNINGHAM said, Mr. Wallace had omitted to notice the doing away with monopolies in every department of the law. Mr. CRAWFORD said, he was a practitioner in the Sheriff Court, and he felt great difficulty in enabling the principles of 43 law to have effect, in consequence of the absurd, tedious, and expensive forms in which it was administered. He was for the extension of Jury Trial. The Sheriff Courts would never be properly useful till it was extended to them. The present mode of procedure by written pleadings, was so drowsy a sys- tem, that no man of active mind could properly engage in it. Where a practitioner has a process which lies long in the court, he becomes indifferent when he takes it up, he finds his mind averse to it, and from that arises much -of the evil and delay complained of. From what Mr. Peel said, the public expected that the Lord Advocate would have made matters much better than the present bill holds out. His only objection to Mr. Wallace's resolutions was, that they were not sufficiently ex- tensive. They should include power to the Sheriff to enforce his own decrees by imprisonment the abolition of sasines and of the fee-fund, and request power to the Sheriff to grant ces.sios and sequestrations in small estates. Mr. SIMPSON thought two sets of resolutions should have been prepared. One part of those proposed involved general points, which all might not be prepared to accede to, although they agreed to all relative to the Jury Court. Mr. HAMILTON would not have spoken, if either party had stated the case as it now stood. At present a case may be de- cided in three weeks. The summons was issued on an inducice of six days. Another six days were allowed for defences, and a third six days for replies, at which time, if all has been done agreeably to the Act of Sederunt, the decision will be given but the agents are in the habit of indulging each other in time to give in papers, which creates the delay, and those persons who speak so much against delay, were those in the state he described. The agents, in fact, were to blame for the whole delay. If the facts are not at first clearly stated, the Sheriff can order condescendences, and if these are still not complete, revised condescendences ; but if the cause be fairly stated at first, the case may be decided de piano. Mr. Douglas says, a case, if properly conducted, will be decided in from three to six 44 v months. He did not see why, when the system works so well (hear, laughter and disapprobation) when the regulations of Court were adhered to, he saw no necessity for any new mode of legal redress. He seconded Mr. Gardner's amendment. Mr. WALLACE replied. He had not the advantage of learn- ing and practice in debate, as legal gentlemen had, but he still trusted in the goodness of his cause. It had been said, that if Sheriff Courts were properly conducted, there would be no need for juries ; but it was just because they were liable to be misconducted, and in fact were misconducted, that it became necessary to bring forward such resolutions as he had done. If a jury was established, the court must be properly conducted ; there would be no choice, and neither judge nor agents would have it in their power to delay a cause. The gentlemen who had spoken against the motion did so with great moderation ; but they had pled his cause most effectually. They all speak against Jury Trial ; but they admit that, in consequence of masses of printed and written papers which the Sheriff must receive and read, and by agreements of the agents, a cause may be delayed, and is every day delayed, by such means, and the Sheriff prevented from doing his duty. But introduce Jury Trial, and when the day of hearing is fixed, both parties must come forward, or have a decision in absence. There will be no choice with the judge but to decide the cause. It has been said that the system would work well if the Act of Sederunt were complied with ; but the Act of Sederunt was not law, and, therefore, was but little attended to, and, consequently, the Sheriff Courts were in a state which could be said to work well for certain parties only. He would ask any one present, who had ever come through the ordeal of the Sheriff Court, if he liked that ordeal. (Cheers.) Sheriff-substitutes were not in the situation they should be, or which he wished them to be ; they were men of learning, principle, and honour. He had, when lately in Edinburgh, been told a secret, but he told them he would have no secret he did not keep se- crets. He was like the character Burns spoke of when he 45 said, " and feth he'll print it." (Cheers.) Well, he heard a secret, which he said he would tell, and the secret was this, that, on the demise of the present respectable Sheriff-Clerk, Mr. Sheriff Campbell was to be degraded from his Judgeship, and converted into the Clerk. (Hear.) If he (Mr. W.) had the power, he would, in such a case, take the salary which the pre- sent incumbent had, and give one-third of it to Mr.Sheriff Camp- bell, and one-third to Mr. Sheriff Marshall, and let them do their duty every day in the week. He would let Mr. Dunlop, while he lived, enjoy his sinecure. There was still one-third of the salary left undisposed of ; this he would attach to the office of Sheriff-Clerk, which office he should like to see filled by Mr. Motherwell, the Clerk-Depute, having heard he did the duty well. He thought, however, that, for mere want of proper and adequate remuneration, Mr. Peel would never allow a gentleman of the talent of Mr. Campbell to take a less respect- able situation. On the subject of written pleadings, in use in every Scots Court, which Sir James Scarlett truly described as popular pamphlets, he would read an extract from Profes- sor Bell. (Here Mr. Wallace read the extract.) On the subject of despatch, he would read an extract from No. IX. of the Law Chronicle : " Despatch in Jury Trial Causes in England. On 22d January, 1829, the whole of the Middlesex causes on the Lord Chief Justice's paper, as well special as common Juries, were entirely disposed of, and the paper completely cleared." Carrington and Payne's Nisi Prius Reports. As a proof of his opinion of the present Jury Court, Mr. Wallace then read a section from his Address to the King, in which it was stated, that the Jury Court was so tackled with the cumbersome forms of other Courts, that it was the greatest curse Scotland ever had. Mr. Wallace then referred to the Report of the Law Commission, to shaw, that if the Sheriffs- Depute would do their duty, it would prevent many law-suits, by the influence of their greater authority and respect. One gentleman had proposed to divide the resolutions into separate 46 parts; and another had suggested several additional objects which might be included. As to the latter, as the Lord Ad- vocate, he had heard, was about to bring in other bills, he thought they would be more properly introduced there, as they might, perhaps, by descending too minutely, hurt the effect of the present resolutions. His sole object in bringing them forward was to call the attention of the men in power to the subject ; and he wished to say to that county, and to the country, that he had proposed to two gentlemen of great ability, to do in their place in Parliament what he was now en- deavouring, in a more remote sphere, to do, but they declined point blank. He could not, therefore, withdraw or separate his resolutions without a vote, as he had no other means of ascer- taining the sentiments of the county. The prayer of the peti- tion was then read, and received with loud cheers. The CHAIRMAN having put the question on the amendment, about six hands were held up. The original 'question was then put, and carried, amidst great applause. Mr. WALLACE then moved the thanks of the county to Mr. Peel, Sir E. Sugden, Mr. Brougham, Mr. H. H. Drummond, Mr. John Maxwell, and Sir Michael Shaw Stewart, for the in- terest they had taken in the question of Law Reform. This was carried by acclamation. A 000004408 1