ALTERATION OF THE COURTS OF LAW IN SCOTLAND. It is extremely necessary that the community should seriously attend to the change now proposed to be inflicted on Scotland by the bill brought before Parliament relative to the Courts of Law. During the last twenty years one experiment after another has been made on the administration of justice here. Practitioners have no sooner learned the forms of court, than a new set of forms is introduced. Every alteration is styled, in its turn, a reform, and a high improvement; but still we are never made right, or see an established system. Alterations at the end of a century might be toleráble, but occurring as they now do every two or three years, a demonstration is afforded of ignorance of sound principles, and of folly or fidgety restlessness, on the part of go vernment. The principles of the new bill first reached us through the public press, in reports of the speeches of Mr Peel and the Lord Advocate, and the bill has at last reached us, after being withheld to the last moment. The object in view is said to be twofold, -to produce a saving to the national revenue, and to improve the administration of the law. For that purpose the offices of three judges of the Consistorial or Commissary Court, two Barons of Exchequer, two Lords of Session of the Outer House, and of the Judge Admiral, are to be abolished. Also clerks of court, to the effect of sweeping away eighteen public law offices. The Jury Court is also to be absorbed into the Court of Session, and the sittings of this last Court to be prolonged. So far as economy or saving of money is concerned, there can be none immediately, because the dismissed judges are entitled to their full salaries for life. They are not legally removable, and therefore cannot be deprived of their emoluments. The Clerks of Court have similar claims. Nay, a greater expense must immediately be incurred, because it is unreasonable to require thirteen Judges of the Court of Session to do the duty of fifteen; and also of the Consistorial, Admiralty, and Jury Courts, and to reside longer in Edinburgh than formerly, without granting to them an increase of salary. In regard to saving, the bill, therefore, is a gross, and even a very pitiful attempt at delusion, liable to instant and disgraceful exposure and confutation. But it is said, that when the present men die out, there will be a saving to the nation of L.23,600. In this estimate, however, no account is taken of the addition which the remaining Judges expect. Well, two courts of law are to be abolished, and we are to have eight fewer judges. This is avowedly done with a view to economy. It is said to be possible to dispense with their services, and therefore, to save expense, they ought to be dispensed with. Let it be supposed that this statement is correct, and consider its tendency and effect. It has hitherto been the practice of every liberal prince, and of every enlightened government, to give encouragement and rewards to learning and learned men. In a civilized country especially, it is of high importance that the laws by which industry is protected, and our lives and liberties rendered safe, shall be studied and understood by a numerous class of persons. Judicial offices, liberally rewarded, have an effect upon the community totally independent of the services which the holders of them perform in their official functions as judges. They are prizes, to be gained by men of learning who devote themselves to the study of the laws of their country. Every situation of judge produces a considerable number of students-competitors for the prize which only one, however, can obtain. The establishment of Sheriffs and their substitutes, taken from the body of practitioners of the law, has diffused great intelligence among the provincial towns of Scotland. The number of judges in the capital has in like manner produced the competition of a numerous and learned body of professional men. Diminish the prizes to be gained in this department, and you diminish the number of competitors, and involve the community in consequent ignorance and inactivity. In like manner, the Established Church of Scotland and the system of parish schoolmasters have effects totally different from the mere performance of divine service, or the instruction of children. Multitudes of parents of poor station, ambitious for their offspring, endeavour to procure for them the elements of literature, in the hope that they may attain to what they think eminence, or at least subsistence, by pressing forward to these offices, or to professorships in the universities. The greater number of young persons never follow out their original destination, or obtain the prizes, but the community is thereby rendered intelligent. These young men are enabled to struggle upward at home and abroad in the successful pursuit of fortune; and those who remain at home, display in the improvement of their native land, and in the conduct of its affairs, the effect of the encouragement given to every branch of literature. The knowledge of the law ought, at all times, to be kept up in a free country, and diffused over the community. A small body of engineers, and other military men, may suffice, in the event of war, to train land forces-and so the army may, to some extent, be let down with safety in time of peace. But in peace and in war the constitution needs vigilant defenders, and the progress of a people in learning and intelligence ought never to be relaxed. It is greatly to be feared that we have fallen into evil days. Like greedy and wretched usurers, we value every object by the pence that it costs. With boundless presumption and self-conceit we boast of our wisdom-the march of mind-the progress of intellect, and much other vain-glorious phraseology, expressive only of immeasurable vanity. When a man acts with blindness to his best interests, or self-conceit and rashness, the common people of Scotland say, "he is left to himself,"-meaning thereby, that Divine Providence, to chastise his presumption, has withdrawn from him its protecting care. In the present times it may justly be said of Britain, that a judicial blindness seems to have descended upon the land—the Divine wisdom has left us to become our own scourge. We VOL. XXVII. NO. CLXVI. . have forgotten what renders a nation truly great and powerful, and that man exists on this earth not to save money, but to attain to superiority, intellectual and moral. Every prize, that is, every judicial appointment, withdrawn from the law and learning of the kingdom, is, in so far, a discouragement to the liberal ambition of its youth, and a step towards the diffusion of darkness over the kingdom. Government are said to act liberally in renouncing the patronage of judicial offices. The true description of the conduct of government is, that it lays hold of an excuse for withdrawing its patronage from learning and learned men. We have got a most illiberal government: if not illiberal, it is a most grossly ignorant government. Tell it not in Paris, in Berlin, or even at St Petersburg! What would Frenchmen, Prussians, nay, Muscovites or Turks, say of such policy? Why, that our prime minister Wellington may be a hero, fit to encounter hard blows, but must be utterly incompetent to rule a civilized community-that the subordinate manager of our civil affairs, Mr Peel, may have ordinary knowledge, but is surely destitute of wisdom as a statesman; and that our whole Cabinet must be an ignoramus a disgrace to the great nation, which they are adopting means to degrade into barbarism. In such terms as these will the present project infallibly be described by enlightened strangers, and by the future historian. When Scotland was a poor country, it could afford to support its present judicial establishment, because that establishment tended to promote the intelligence of the people, and thereby ultimately the prosperity and glory of the kingdom. Now that we are united to rich England, we are industriously hastening backward into the days of darkness and ignorance. A miserable sum, forming a drop or a grain of sand in the vast mass of revenue derived from Scotland, is made a pretext for letting down our national institutions, originally created, and successfully created, for the encouragement and patronage of learning. We may next expect to find government pulling down the Church, 3 c and appropriating its revenues, on pretence of a saving of some pounds sterling. The principle of this new bill, then, is in the highest degree worthless and contemptible, and founded on the most illiberal ignorance and narrow views. Nothing so utterly barbarous and unstatesmanlike has been proposed in Europe during the last two centuries. Scotland deserved better things of the British empire-but if such principles are to rule over Britain, it will speedily be no vain prediction or declaration, that the sun of its glory has set for ever. The sum to be ultimately saved, after eighteen healthy men have died, is said to be L.23,600; but has not the British Government, since the Union with Ireland, paid the police establishment of Dublin? The sum voted by Parliament for that purpose in 1828, was L.24,300. The miscellaneous estimates, as they are called, for Ireland, for charities, schools, &c., were for that year, L.238,546. For the internal improvement of Ireland, the sum was L.173,866. These were ordinary allowances; and here Edinburgh supports its own police, and there is to be squeezed and pared off from its judicial establishment, or its prizes for literary and scientific eminence, a sum less than is paid for the police of Dublin. In the name of wonder, what good is to result to Scotland from a diminution of the number of its judges and courts of justice? By what political or rational principle is such a measure sanctioned? The suggestions said to have been made in Parliament will presently be attended to. In the meanwhile, let the details of the measure be considered. The Consistorial or Commissary Court performs two offices; the one ministerial, in granting confirmation (administration) of the effects of deceased persons: the other judicial, in trying consistorial causes. For the first of these duties, one of the four Commissaries is to be retained. Why this should be done, no mortal can tell. In all the counties in Scotland, except the Lothians, the duty in question has been devolved on the Sheriffs; and why the Sheriff should not perform the duty in Edinburgh, it is impossible to discover. So if the other three Commissaries are to be dismissed, the retention of the fourth Commissary is an absurdity, so far as this matter is concerned. What other function he is to fulfil, is not very clear, for the judicial duty, we are told, is to pass to the Court of Session. If he is to act merely in taking proofs, which seems to be intended, nothing more absurd can be devised. A judge may with some success take proofs to be written down, but any other officer not paid by the litigants, would be a saucy, unmanageable, and intolerable nuisance. But I decidedly object to the plan of transferring to the ordinary civil court, the duties of the Consistorial Court, more especially if the number of the judges is to be diminished. Consistorial causes (i. e. relative to marriage, legitimacy, and divorce) require more delicacy and deliberation in the preparation of them, than any others. The honour of individuals and of families is often involved in the discussion; and the succession to great estates frequently depends on the procedure. They are utterly unfit for the publicity and hurry of a jury trial. They are still more unfit in regard to public decency. In that respect, they are even unfit to enter the routine of the great civil court. They are governed by principles totally different from what occur in other judicial proceedings. We (in Scotland) hold that the absence of a defendant is in them of no importance. The party insisting in the action, must prove his case to the satisfaction of the court; and even the Bill admits this. The proof is at present conducted before one of the judges of the Consistorial Court, who, in cases of difficulty, may call in his brethren, and does frequently consult them. The peculiar nature of the law of Scotland, which allows the absolute dissolution of marriage for certain reasons, renders it necessary that such an establishment shall exist, separate from others, that nothing hasty, ill-concocted, or rash, may be done. The Court of Session, performing all the duties of the English courts of Chancery and Common Law, and much of what is done by the legislature, cannot safely be intrusted with the preparation of such cases. The plan now proposed is therefore a bad one, though it were not barbarous and impolitic in other respects. But the Court of Admiralty is also to be abolished. It has been already deprived of much of its utility. It was formerly most valuable as a mercantile court. An English merchant, or a Scotch manufacturer, sending goods in small parcels to different parts of Scotland, employed only one agent, viz. at Edinburgh, who raised actions, when necessary, for payment, before the Judge Admiral; but his jurisdiction was lately abolished by our wise rulers, except in causes above L.25; the effect of which is, that a merchant, furnishing small parcels of goods to different parts of the country, must employ as many agents as there are counties in Scotland. In all maritime and commercial states, courts of admiralty are kept distinct from the courts of common law, as in America, England, France, &c. This occurs with a view to the law of evidence, and the very peculiar situation of parties coming before such courts. I venture to predict, that for some years the Court of Session will have more disputation before it, about the mode of conducting consistorial and maritime questions, than about the merits of half the other cases in dependence before the court. As to the Court of Exchequer, I shall only say, that even although the patronage of it has been much abused, yet it has afforded the means of doing honour to the law of Scotland, by the preferment of David Hume. Next, as to the diminution of the number of Judges in the Outer House of the Court of Session, the plan is most absurd. It is by the Judges in the Outer House that the business of the Court is, and ought to be, done. The Inner House, by the constitution of the court, is a court of review. The Inner House ought to be occupied merely in giving an opinion whether a cause has been rightly prepared for judgment, and rightly decided. It is evident, therefore, that if the business of the country is to be performed with care and dispatch, there ought to be a full body of Judges in the Outer House. Instead of the number being diminished, it ought rather to be increased. At the same time, it is unsafe to diminish the number of Judges in the divisions of the Inner House. Scotland is a narrow country. The Court of Session has great powers in political and other matters, reserved to Parliament in England. The country being narrow, family or other influences are highly dangerous. It is therefore absolutely necessary, either that the Bench in Scotland shall be numerous, or that the House of Lords shall be considered as an ordinary Scottish court, to be generally resorted to. Next, however, Trial by Jury is to be transferred to the Court of Session. It ought never to have existed elsewhere. But, as if to defeat the effect of the only right part of the bill, care is taken to attempt to fasten down on the Court of Session all the absurd and antiquated English forms and principles by which trial by jury is encumbered, and has been rendered disgusting in Scotland. The same judges who have been trained in these forms, are to be compelled to attend at all trials, and compulsory trial by jury is to be continued in those cases in which, in favour of the Jury Court, it has been established. If the men who concocted the bill in question, gave the slightest attention to the subject, or made enquiry concerning it, they must have recollected or learned that the Jury Court has introduced into Scotland one, among many, grievous and most oppressive evils, that of multiplying actions of damages for trifling alleged injuries. Such actions are a mere indulgence of personal hostility. In former days, they occasioned only an eloquent debate in the Outer House of the Court of Session. A condescendence (special statement) was then ordered, and there the matter ended-parties got time to cool, because it was known that small damages were to be obtained, (except in rare and atrocious cases,) and that the court discouraged all frivolous litigations frivolous litigations of that sort. Now all such cases must be prepared for a jury. Heavy expenses are incurred in consequence of the indulgence given to personal hostility-trifles light as air are magnified, and individuals are tempted to endeavour to ruin themselves and each other by such litigations. The Court of Ses] sion is now to be compelled to indulge this spirit. In other cases, trial by jury is to be fastened on the court and litigants in many cases, though both should see the propriety of avoiding that mode of trial. But let us come to the material question, What could tempt Government to bring forward a legislative measure of this description? The saving of money is so paltry, that it must after all be regarded as a mere pretext. Then is it true that the present Military Cabinet are enemies to law and literature-that they wish to extinguish them from the land, and deliberately to bring us back to barbarism? Little as we think of the Cabinet, we cannot go this length. Then why, in the name of common sense, is such a bill introduced into Parliament? An answer generally made is this: When the English judges obtained an augmentation of their salaries in 1825, it appeared reasonable that the Scottish judges should share in the same liberality. But the Members for Scotland either had not the spirit to stand forward and demand for their country this act of justice, or they were men of so little credit and respectability in the House of Commons that they could not obtain a hearing on the subject. Thus the favourable opportunity was lost. Times changed, and when, in 1829, the minister (Mr Peel) himself made the proposal, he found the House so unfavourable that it was necessarily withdrawn. Now, to accomplish the object, the present bill has been got up as a stratagem devised by a weak government, to do that justice indirectly, which it is unable openly to perform. Other courts are to be destroyed, and the judges of the Court of Session are to be diminished in number, and their duties increased, to afford a pretext for claiming on their behalf an augmentation of pay. For this object, the ancient institutions of the country, the patronage of the law and the prizes of literature for Scotland, are to be extinguished. Truly, the devisers of this project are committing a great crime. They are the enemies of Scotland, and of its law and literature. But let us consider what is reported to have been said in Parliament to justify the measure. The Lord Advocate is accused of having said that the Bar of Scotland cannot supply an adequate number of men of learning to fill so many judicial situations. Did his Lordship never hear of the doctrine of demand and supply, and that the one is productive of the other? Scotland always produced more able lawyers than obtained preferment. Did not Erskine, Wight, and many others, eminent counsel in their day, go down to the grave unpromoted? The present Lord Advocate cannot well have a very intimate knowledge of the Bar of Scotland. He was long so much occupied with his duties as Sheriff of Edinburgh, and afterwards with the Crown's business in his present station, that he has had little leisure to act for private parties, as a practitioner in the civil court. It is to these circumstances that the statement in question must be ascribed. In truth, the practice of the law of Scotland was formerly of a description which tended to rear up a very large number of men of learning. In all actions, parties were entitled to state their cases in written arguments; and, to entitle them to appeal from one judge to the whole bench, they were compelled to do so. The younger counsel were much employed in preparing these pleadings, and in that way they acquired both law and literature. Instead of diminishing the number of these arguments from three in each case to two, or even one, recourse was had to the plan now in force of allowing no written argument whatever, without the permission of the Court. The tendency of this state of things, added to the proposed bill, no doubt is to diminish the number of qualified servants of the public, whether judges or counsel. How this is to serve the public it is not easy to discover. We are descending fast, with the help of his Lordship and his patrons, into Gothic and barbarous arrangements. To be sure, it is said that the course of preferment is now to be more pure than formerly. This prediction is explained in favour of Scotland, by the recent measure of conferring the best judicial situation in it upon an English barrister, upborne by English influence. Farther, the Lord Advocate is said to have suggested, that collusive actions of divorce might be prevented by transferring the jurisdiction to the Court of Session; that is to say, à |