HC Deb 23 June 1836 vol 34 cc840-5
The Lord Advocate

moved for leave to bring in a Bill for the better regulation of the office of auditor of accounts in the Court of Session, in Scotland, and for the appointment of two accountants-general in the said Court.

Sir William Rae

objected to the motion, as the Bill would create two new offices, without any necessity for it. This Bill, or at least one very like it, made its appearance last Session; and it was then proposed that one office should be created of one accountant-general for Scotland; but the feeling of the country against it was so strong, that the learned Lord felt himself quite unable to proceed with the measure, without the recommendation of a Committee. A Committee was accordingly obtained; and he could not deny that the Report of that Committee was, to a certain extent, favourable to the measure now proposed by the learned Lord. The evil which wanted a remedy consisted of this —the Court of Session had the power, when it was applied to on behalf of infants and insane persons, to appoint factors or curators to take care of their estates, and the practice was, to oblige them to find security for their good behaviour in the office to which they were appointed. That was all they were bound to do; but that duty had been neglected, and the estates had, in some instances, suffered a good deal. Now, to remedy this evil, the learned Lord proposed to create two new officers. But why should not the Clerks of Session in Scotland perform the duty, receiving, as they did, a salary of 1,000l. a year, as he might say, for doing nothing, because all their duty was to mark down the terms of the decisions of the Courts. There were four gentlemen who held these offices, and looking at this fact, he would say, that the House ought not to listen for a moment to the proposition of the learned Lord. It ought also to be remembered, that this was the 23d day of June, a period which he considered too late in the Session to bring forward a measure of this nature. On these grounds he should certainly take the sense of the House on the subject.

Mr. Hume

wished to ask the learned Lord to explain how it was that the reform which was recommended by the House two years ago, with regard to the Court of Exchequer in Scotland, had not been carried into effect. He had heard that it had not, and before new expenses were incurred, he wished to know why the charge of that department in Scotland had not been abolished.

The Lord Advocate

was quite willing that as rigid an examination as could be instituted, should be directed to every measure which he proposed, but then he did say, that if he showed that the measure was consistent with public economy, and necessary for the protection of the properly of orphans and others, it ought not to be delayed, except on grounds applicable to that measure alone. With reference to what had been stated by his right hon. Friend about the creation of new offices, in which he seemed to imply, that the creation of the office was for a particular individual, he denied it, and he challenged him to name any person who had had the smallest promise from him (the Lord Advocate) with respect to that office—nay, he doubted whether any individual he had in his contemplation would accept of that office. But there was a charge made by his right hon. Friend, with regard to the conduct of the Court of Session. He said, that they were deficient in their duty, and that this deficiency had been going on for a long period. Now this was a very serious charge, that they had deserted their duty in regard to giving protection to orphans, and indeed a more serious charge could hardly be brought against a court of justice. But, in his opinion, if one officer were appointed for that express purpose, and if the proposition of his right hon. Friend were carried into effect, the same defective system of which he complained would prevail, and that was the reason why he proposed to appoint two officers. His right hon. Friend said, that those duties might be discharged by the Clerks of the Court of Session, but he apprehended they could not, because it was their duty to be in Court at the very time when those inquiries were going on. His right hon. Friend seemed also to be of opinion, that there was an unnecessary number of Clerks of Session. If he could make out a case to prove that the number was too great, then he (the Lord Advocate) would not be against a proper reduction; but the remonstrances he had received from the Court of Session were to the effect, that he cut down too much, and he was therefore placed in a very peculiar situation. There was only another question upon which he had to touch, and that was the late period of the Session at which this Bill was sought to be introduced. In reply to that, he must observe, that after this period many Bills had been introduced, and this measure had not been brought forward earlier, because, in consequence of the great number of Bills relating to Scotland, which had been brought forward at a former period of the Session, he was afraid it would not meet with the attention of the House.

Sir George Clerk

contended, that the Courts of Session were sufficiently large to undertake the duty, without creating two new offices. He apprehended that the House would require more evidence than that which had been given by the Lord Advocate, before they would be persuaded to create two new offices, when it had been shown that there were ample means in the established courts of justice to effect the purposes which it was the professed object of the Bill to accomplish. With regard to the Clerks of Session, one of these four gentlemen was the professor of Scotch law in one of the universities, and was at the head of the commission appointed to inquire into the state of the law, and he had not yet heard that that gentleman did not amply perform all the duties required of him as a clerk of the Court of Session. There was another of those gentlemen who was placed at the head of another of those numerous commissions appointed by the present Government, and another who was deputy registrar, and had the charge of all the public records, and yet he never heard that the performance of this duty interfered with his duties as a Clerk of the Session. Now, it was quite clear from the easy nature of their duties, that the Clerks of the Session might very well undertake the auditing of the accounts of the factors, of minors and insane persons' estates, and they would have plenty of time; for, in addition to the time the Court was sitting, they would have the whole vacation, which was six months. The Lord Advocate had stated that the salaries of these new officers were to be raised out of fees paid by litigants; but why saddle them with this expense, when the Clerks of Session had a salary sufficiently large for the duties they would have to discharge? Under these circumstances he should give his most cordial support to his right hon. Friend in his opposition to this Bill.

Mr. Wallace

thought it was a pity that hon. Gentlemen opposite, who now appeared so anxious for reform, had not done something to prove their sincerity when they were in office. However, all was well that ended well, and he should therefore now address himself to the question. As to the Clerks of Session, they were not competent to do the duty, and no wonder, for the intention in appointing them was, to give to several men a sort of sinecure. He agreed with the right hon. Baronet in thinking the composition of the Court of Session and the way in which it discharged its duty unsatisfactory, and he would add the word "disgraceful." The Supreme Court of Session only sat two hours and two minutes for five days in the week for 104 days. But look to what the Judges of England did. Scotland did not enjoy the advantages which ought to have been extended to her when trial by jury was introduced, in consequence of the desire there was to accommodate it to the system of the Judges retiring for three parts of the year to their country houses. Indeed the Jury Court was compared to the garden of Eden, because it was made for Adam. That system had remained like a millstone about their necks, and there was no chance of having it removed. However, he was of opinion that the Bill of the learned Lord would be an immense improvement, and he should, therefore, give his hearty support to it.

Mr. Goulburn

did not think that be should have been induced to rise upon this subject, but after the statement made by the hon. Member who had just sat down, that his right hon. Friend near him had not, during his tenure of office, introduced any reforms in the Scottish courts, or made any reductions in those offices, which ought to have been abolished, he felt himself called on to rise. He believed that the hon. Gentleman was not in Parliament at the time he now referred to; but if he inquired of many hon. Gentlemen upon his side of the House, he would find that they all concurred in the expressions of approbation and praise which were profusely uttered when his right hon. Friend filled the office of Lord Advocate. His right hon. Friend had done more to reduce the judicial establishment of the Scotch Courts than any man who preceded him in that office had done, or any who followed him could hope to do; and at one blow he did away with judicial offices to the amount of 36.000l. per annum; and, above all, his merit was, that in making those reductions he was dealing with offices to which, in the natural course of judicial preferment, he had a right to look not only on account of the high legal station which he occupied, but of the great talents and integrity which adorned his character. He had merely repeated this for the information of those hon. Members who were not in Parliament at the time, and who might otherwise have been misled by the statement of the hon. Member for Greenock. With regard to the question before the House, relating to the appointment of accountants-general to take care of the estates of minors and insane persons it was admitted that the Court of Session was not overburdened with business, and that they ought to sit more hours in a day and dispatch more business. He said then that the plan of his right hon. Friend met the views of every one who had spoken on this question, and his plan was to impose on the court the duty of looking after the estates of minors and insane persons. It had been shown that the clerks of Session were amply adequate in number to discharge this duty, and they were certainly not overworked, since it appeared that two gentlemen out of the four had been selected by Government to fulfil other very important and onerous duties, which they could perform without detriment to the public service. He was glad to hear that the Bar was in so flourishing a state in Scotland, since no one would accept of an office of 7001. a-year, for the learned Lord said that he did not believe that any Member of the Bar could be found who would accept the office of Accountant General.

The Lord Advocate

was misrepresented by the right hon. Gentleman. He said no such thing, nor anything approaching to it. What he did say was, that his right hon. Friend opposite could not name any particular individual whom he had in contemplation who would accept of the office.

The House divided—Ayes 93; Noes 69; Majority 24.

Leave given.

List of the AYES.
Aglionby, H. A. Bodkin, John James
Ainsworth, P. Brabazon, Sir W.
Attwood, T. Brodie, W. B.
Baines, E. Brotherton, J.
Baldwin, Dr. Browne, R. D.
Bannerman, A. Byng, rt. hon. G. S.
Baring, F. T. Callaghan, D.
Barron, H. W. Cave, R. O.
Bewes, T. Cayley, E. S.
Bish, T. Chalmers, P.
Blake, M. J. Codrington, Admiral
Colborne, N. W. R. O'Connell, M. J.
Collier, John O'Connell, M.
Conyngham, Lord A. O'Conor, Don
Cowper, hon. W. F. O'Loghlin, Michael
Denison, W. J. Paget, F.
Dillwyn, L. W. Palmerston, Lord Vist.
Elphinstone, H. Pease, Joseph
Evans, G. Pechell, Captain
Ewart, W. Phillips, C. M.
Fitzgibbon, hon. Col. Pinney, W.
Finn, W. F. Potter, R.
Fitzsimon, N. Pryme, G.
Gillon, W. D. Rice, rt. hon. T. S.
Gordon, R. Rundle, J.
Grattan, H. Russell. Lord J.
Grey, Sir G. Russell, Lord
Gully, John Sanford, E. A.
Harland, W. C. Seale, Colonel
Hawkins, J. H. Sharpe, General
Hay, Sir A. L. Sheil, R. L.
Hector, C. J. Stanley, E. J.
Hindley, C. Talbot, C. R. M.
Hume, Joseph Thomson rt. hon. C. P.
Hurst, R. H. Thompson, P. B.
Johnston, A. Thompson, Col.
Lee, J. L. Thornely, T.
Lemon, Sir C. Tooke, W.
Lennox, Lord George Townley, R. G.
Lennox. Lord Arthur Trelawny, Sir W.
Lushington, C. Tulk, C. A.
Marjoribanks, S. Wakley, T.
Martin, T. Warburton, H.
Maule, hon. F. Wilbraham, G.
Mostyn, hon. E. Wyse, T.
Murray, rt. hon. J. A. TELLERS.
O'Brien, C. Mr. U. Steuart.
O'Connell, J. Mr. Wallace.
List of the NOES.
Alsager, Captain Gordon, hon. W.
Arbuthnott, hon. H. Goulburn, rt. hon. H.
Bailey, J. Goulburn, Mr. Serg.
Baring, W. B. Graham, rt. hon. Sir J.
Bateson, Sir R. Hamilton, G. A.
Bentinck, Lord G. Hamilton, Lord C.
Blackburne, J. Hardy, J.
Brownrigg, S. Harvey, D. W.
Buller, Sir J. Y. Hawkes, T.
Burrell, Sir C. Hay, Sir J.
Calcraft, J.H. Henniker, Lord
Campbell, Sir H. Herries, rt. hon. J. C.
Coles, Lord Viscount Hotham, Lord
Conolly, E. M. Jackson, Mr. Serg.
Cooper, E. J. Inglis, Sir R. H.
Dick, Q. Irton, S.
Duffield, T. Lees, J. F.
Dunbar, G. Lefroy, rt. hon. T.
Egerton, Sir P. Longfield, R.
Egerton, Lord F. Lushington, rt. hn. S. R.
Elley, Sir J. Meynell, Captain
Elwes, J. P. Norreys, Lord
Estcourt, T. North, F.
Forbes, W. Palmer, Robert
Forster, C. S. Palmer, G.
Fremantle, Sir T. Patten, J. W.
Freshfield, J. W. Penruddocke, J. H.
Gladstone, T. Perceval, Col.
Plumptre, J. P. Vere, Sir C. B.
Praed, J. B. Vesey, hon. T.
Rae, rt. hon. Sir W. West, J. B.
Ross, C. Wigney, J. N.
Rushbrooke, Col. Williams, T. P.
Scourfield, W. H. TELLERS.
Shaw, rt. hon. F. Clerk, Sir G.
Sheppard, T. Pringle, Alex.