XVII

Yesterday a cause was brought into this house by a protestation for remeid of law: upon which a debate arose, whether a lord of session, who is also a member of this house for some shire or burgh, could sit again as a judge of the same cause. I was then of opinion he might; because the house had declared they would not confine themselves to decide this matter by what had been already alleged and proved before the lords of session; but would receive new proof and matter, if any had been discovered since the passing of the decreet. And indeed in that case I was of opinion those lords of session might and ought to judge again, because new proof and new matter might induce them to alter their former judgment. But since no new matter or proof appears, and that the vote is stated, ‘Adhere to the decreet of the lords of session, or sustain the protestation’; which is only and simply to determine the cause by what was alleged and proved before that bench; I cannot consent that any of those lords, though members of this house, should again be judges of the same cause. Nor indeed, till the house had overruled my opinion, could I think that we ought to decide any cause brought before us by protestation for remeid of law, otherwise than by the proofs and matters alleged and proved before the lords of session. Certainly it was never designed, by allowing these protestations, to bring all civil causes before our parliaments. For if we should judge of matters originally in this house, or go about to redress and relieve men against their adversaries upon new proof after the decreet of the ordinary judges, all the civil causes of the nation might under one pretext or another be brought before us. In these cases we are only to relieve the people by reversing the unjust sentences of the lords of session. And the privilege of the people to protest for remeid of law was principally designed to be a check upon the ordinary judges, and oblige them to do justice: which if they should not do, and were convicted of bribery or other gross injustice, the parliament might remove them from their offices, or otherwise punish them in life or estate. So that these lords of session, who have formerly determined this cause, cannot, I think, reasonably pretend to judge the same again, though they are members of the house; because no man can be judge of anything by which he may receive damage or profit. If the decreet now under consideration shall be found grossly unjust, I hope no man will say the judges may not be punished. And the judgment to be given by the parliament is to be confined to this; whether the lords of session have pronounced a just or unjust sentence. In the giving of which judgment, no lord of session can be present as judge; unless we will say that an unjust judge may be absolved by his own vote. But to all this a very easy remedy is to be found; I mean, that no lord of session should be a member of parliament, which would be highly advantageous to the nation on many accounts, and principally that our parliaments might no longer interrupt or disturb the common course of justice.

These speeches are published to prevent mistakes in the affairs to which they relate.