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Art. III.-THE SCOTCH BAR AND THE HOUSE OF
TTROM the following document our readers will learn that the T Scotch bar have taken up the constitution of the House of Peers, as a court of appeal from Scotland, in right earnest. And we understand that at the meeting of the next parliament great exertions are to be made with a view of having effect given, in some way, to the recommendations of the Report, which, we believe, proceeds from one of the ablest and most distinguished lawyers of whom the bar in Scotland can boast. The proposal made must be a delicate and difficult one for the legislature to entertain, just, fair and reasonable though it must on all hands be admitted to be. But we have the pleasure to state that nothing has transpired, in the communications with government, to whom the Report has been submitted, calculated to discourage our friends in Edinburgh. The anomalous character of the existing system has been admitted, and we may even go the length of saying that the argument, derived from its having hitherto “ worked well,” has been allowed to afford no sufficient justification of the essential error and radical injustice of its principle. The Scotch bar are therefore sanguine that the Lords will, ere long, present such supreme judicial qualities, as will attract their confidence and command their respect. In reading this Report the English lawyer should know, that the Scotch bar, when met together in their corporate capacity, are a Faculty--they are termed “the Faculty of Advocates," and their chairman is called “the Dean of Faculty." Engaged in court, in the exercise of their professional functions, “they,” in the words of Lord Brougham, “ form the bar of that ancient kingdom.” They are the bar, and thus they speak on the appellate jurisdiction. “ Extract from Minutes of Faculty of 10th July, 1851.
“ The Dean present. “The Dean stated that he had called the meeting for the purpose of directing the attention of the Faculty to the Bill, “ to improve the Administration of Justice in the Court of Chancery, and in the Judicial Committee of the Privy Council,” which had recently been introduced into the House of Commons.
“Mr. Inglis moved that a committee be appointed to consider the Bill, with instructions to report to another meeting of Faculty, to be held during the present session, which was seconded by the SolicitorGeneral, and unanimously agreed to.
“The following gentlemen were appointed members of committee, viz., the Dean of Faculty, the Solicitor-General, Messrs. Marshall,
Neaves, Inglis, T. Mackenzie, Penney, and Macfarlane. Mr. Inglis, Convener. “Report of the Committee of Faculty, appointed on the 10th July,
1851, to consider the Bill to improve the Administration of Justice in the Court of Chancery, and in the Judicial Committee of the Privy Council.'”
“ The committee have bestowed as much time and attention on this subject as was consistent with the expressed desire of the Faculty for an early report.
“It is gratifying to be able to state, that the views which are now to be submitted as the result of the committee's deliberation, were adopted unanimously, and without any hesitation.
“The committee think it unnecessary to say a word on the feeling now almost universally prevalent among the profession and the public, that the time has come when it is indispensable to the due administration of justice, that some provision of a permanent character shall be made for the future, to secure that the House of Lords, when sitting to hear Scotch appeals, shall receive adequate and sufficient information as to the law and practice of Scotland.
“The consideration of this subject has been forced upon the Faculty at the present time by a variety of circumstances-in particular, by the 15th section of the Court of Chancery and Judicial Committee Bill, now pending in parliament, and read a first time in the House of Lords, on Monday the 14th July, which provides for summoning the judges of the equity courts of England to assist the House of Lords, when sitting as a court of appeal in chancery cases.
“It is a novelty in practice to take the assistance of the equity judges on appeals, and it has been suggested, in a recent debate in the House of Lords, that a similar provision should be made for summoning the Scotch judges in Scotch appeals.
“Various other plans have recently been proposed for altering and amending either the constitution or the practice of the court of appellate jurisdiction, and there seems little reason to doubt that the whole subject will very speedily be discussed in one or both Houses of Parliament.
“It appears to the committee to be the duty of the Faculty, both to the profession and the public, to take a distinct position, and to suggest some means of obtaining what the committee have already stated to be, in their opinion, indispensable to the due administration of justice in the court of last resort.
"It is altogether impossible to deny, that there is a growing impression in this country that the arrangements under which Scotch appeals are heard and disposed of are unsatisfactory. The committee have reason to believe that in this view the Faculty generally concur. And they are bound to say, that they think the feeling would have been greater, but for the fortunate circumstance, that two very distingushed members of the House of Lords, who have for some years taken a part in the hearing of Scotch appeals, are well acquainted with the principles, and also, in so far as is possible in the case of English lawyers,
VOL. XV. NO, XXIX.
with the practice of the law of Scotland. But it would be obviously unsafe to rely on the continuance of such an accidental combination of legal acquirements in those who, for the time, may act as judges of appeal.
“For ensuring a due representation of the law of Scotland in the House of Lords, the committee find, on inquiry, that two proposals, and two only, have been at different times made.
“ The Faculty are aware, that in the 6 Geo. IV. c. 66, provision is made for summoning the Scotch judges in the trial of peers, for crimes or offences committed in Scotland, before the High Court of Parliament, or the Court of the Lord High Steward. In the year 1834, Lord Brougham (then Chancellor) introduced a bill into the House of Lords for regulating the exercise of the appellate jurisdiction, in which this provision, or one conceived in similar terms, was made applicable to Scotch appeals. In 1842, Lord Campbell introduced three bills, one of which contained a clause providing for the summoning of the English equity judges, and upon that occasion his lordship is reported to have said, 1 I have not ventured to include the Scotch judges, on account of the distance of their residence; but it may be matter for future consideration whether they ought not to be included.'
“On the other hand, a proposal is said to have been made in 1825 or 1826, in the time of Lord Liverpool's administration, to give to some Scotch lawyer of eminence a seat in the House of Lords, but whether as a member of the House, or in the capacity of an assessor, the committee do not know. They believe, however, that the design has been so far matured, that the Right Hon. Charles Hope, late Lord President, was selected as the person to fill the new office. This proposal was repeated about the year 1834, when it was understood that the late Lord Corehouse was intended to be selected. “ The committee are not aware,
any other project has ever been formed, or at least publicly proposed, for attaining the end now in view; and they do not feel themselves in a condition to make
any new suggestion. They will, therefore, confine themselves to a consideration of the two plans above mentioned.
*The committee are of opinion that the summoning of the Scotch judges to assist at the hearing of Scotch appeals is neither expedient nor practicable. In the present condition of the Scotch courts, when the judicial establishment has been reduced to the lowest point consistent with the business of the country being carried on with reasonable despatch, it would be quite impossible to provide for the temporary absence from Scotland of any one or more of the judges, without seriously disturbing the progress of business, and inflicting great injury and hardship on suitors. For this reason the committee think the plan impracticable. But farther, considering, that most of the important causes which are carried to appeal, are decided either by the whole court, or after a consultation of all the judges, it appears that the learned judges are, in some degree, disqualified for the performance of the duty for which they would be summoned, seeing that they have judged, or at least formed opinions, on the merits of the
"Hansard, vol. 60, p. 1247.
causes appealed, when they depended in the court below. There is the high authority of Lord Brougham for holding this to be a disqualification; for in introducing the bill of 1834, already mentioned, his lordship remarked, 1 · It was necessary that the judges of the court of appeal should not be those whose decision was appealed against.' And in a recent case 2 the same noble and learned lord took occasion to explain and enforce the objection at much greater length. . For the reason now stated the committee think this plan inexpedient.
“But the Committee have arrived at an opposite conclusion, as regards the proposal, that a Scotch lawyer of the highest standing and eminence should be appointed to assist the House of Lords in the
hearing of Scotch appeals. It is not for the Faculty to deal with the mode in which this proposal may be carried into execution, or to consider whether the holder of the new office should sit in the House of Lords as a member of that high tribunal, or in what other capacity. But, throwing out of view these matters of detail, the commitee are clearly and unanimously of opinion that such a judicial appointment is well calculated to attain the very important object in view.
“An objection has been suggested to the arrangement now proposed, on the ground that the hearing, or assisting in hearing Scotch appeals in the House of Lords would not afford sufficient occupation for the learned person appointed to this duty. The committee think the objection admits of a very easy and satisfactory answer. They are far from wishing that the judge who is to assist the House of Lords in hearing Scotch appeals should discharge any judicial functions in Scotland. On the contrary, they believe that the judgments on appeal, in which he might take part, would command higher respect and confidence, if he were altogether removed by residence from the possibility of local influence. But although the sphere of this judge's duty might be thus confined to London, the committee do not think it by any means follows, that his attention must necessarily be confined to Scotch appeals. They have been very much misinformed, if a Scotch lawyer of such eminence and ability as could alone be appointed to the office would not be welcomed as a most valuable coadjutor to the House of Lords in all their judicial business, and still more as a member of the Judicial Committee of the Privy Council, in the trial of many cases which come before that tribunal involving the consideration of foreign, international, colonial, and consistorial law, for which it is not presumptuous to say, that the education of a thoroughly accomplished Scotch lawyer peculiarly fits him. Nor is it to be forgotten, in dealing with this objection, that a person so qualified, and occupying such a station, might with great propriety and benefit take a part in what may be called
the legislative business of Scotland. “Upon the whole, therefore, the committee, while they would maintain unimpaired thé Appellate Jurisdiction of the House of Lords, consider some change in the mode of dealing with Scotch appeals to be imperatively called for, and recommend to the Faculty the proposal which they have endeavoured to explain as the best remedy for the existing evil which has hitherto been suggested, and of which the nature of the subject admits.
2 Hansard, vol. 25, p. 1258. 3 Norris v. Cottle, 6 Railway Cases, p. 327.
"It will be for the Faculty to consider, in the event of their approving of this Report, what course of action they ought to adopt, whether by addressing themselves to her Majesty's Government, or to both or either of the Houses of Parliament. “Signed, in name and by appointment of the Committee,
“JOHN INGLIS, Convener."
“July 16,1851. “An adjourned meeting for resuming consideration of the foregoing Report having taken place,
" It was moved by Mr. H.J. Robertson, seconded by Mr. Craufurd -That the Report of the committee be approved of, and that the Dean of Faculty and the Convener of the Committee be requested to proceed to London, in order to take such steps in reference to the Bill now pending in the House of Lords, as may seem to them best calculated to follow out the recommendations of the Report; and that the committee be re-appointed, with powers to take such other steps as they may think necessary for promoting the objects in view.”
This document has been extensively circulated in Scotland, and we have been informed that the strongest feeling prevails there on the subject, not only among the members of the legal profession but also among the public generally. Educated men of all parties are agreed that the time has come when here, as in other of our imperial arrangements, there must be " law reform.' It cannot be disputed that the Report comes before us with the highest professional authority and under the most important legal sanctions. The significant fact that the bar, as the Report tells us, are here unanimous, joined to the truth and righteousness of the cause, and the undoubted feeling of the people, invest the movement with
authoritative and influential circumstance, entitling its numerous and unanimous supporters to willing, patient, and respectful attention.
The origin of the right of appeal from the Court of Session in Scotland to the British House of Lords is hidden in the most perplexing obscurity. Mr. Macqueen in his book tells us nothing that is clear or satisfactory on the subject. But the jurisdiction must now be treated as an incontrovertible fact not open to inquiry, and which it is not less the duty of Parliament than the interest of the Scotch people to maintain unimpaired. The Scotch bar are anxious that it should be so maintained; and if they at the same time desire that it should be made as efficient as possible for its high purpose, they must have the assent and sympathy of every candid, well-informed, and reasonable man, whether learned or lay, in England.