COURT OF EXCHEQUER (SCOTLAND). (Hansard, 15 June 1832)

The Duke of Buccleugh
rose to remind their Lordships, that he had on a former occasion urged several objections to this measure, which he would not then repeat. He must, however, further object to the Bill, that there was no right of appeal given by the Bill from the decisions of the new Judge, which might be attended with a great deal of inconvenience. He could not help also adverting to the hurry with which the Bill was urged forward; as to which there were rumours out of doors which he would not mention. The evidence taken before the House of Commons did not at all bear out the arguments in favour of the Bill. He required, therefore, further evidence before he could give it his support. He was of opinion that the evidence already taken did not support the allegations in its preamble. He should, therefore, move as an amendment, that this Bill, instead of being committed, should be referred to a Select Committee, to inquire into the duties of the Court of Exchequer, to consider how far its duties could be performed by the Judges of the other Courts, and to report their opinions thereupon to the House.

The Earl of Camperdown
thought, that the thanks of the country were due to his noble and learned friend on the Woolsack for bringing in this Bill, The Bill was not founded on economy merely, although that was not without importance, but was founded mainly on principle. It was of the last importance to preserve the respectability of our Courts of Justice, and nothing could be more incompatible with that object than the having sinecure Courts of Justice. This measure had not been adopted without adequate inquiry, for it had undergone considerable investigation and discussion both in this and the other House of Parliament, and the principle on which it 734 proceeded had been fully acted on during the Administration of the noble Duke (the Duke of Wellington), when the Court of Admiralty and Commissary Court had been abolished as separate tribunals, and when two Judges had been taken from the Court of Session, and two Barons from this very Court, without any previous investigation; but still he thought that measure a very proper one. There was no precipitation in carrying forward this Bill, and the evidence taken before the Committee of the House of Commons, of which the Report was before their Lordships, was amply sufficient to justify it. A Judge of the Court of Session, from his legal habits, must be fully competent to do the duties of this Court; and he would have ample time, for the Judges of that Court had seven months' vacation. He might refer to the noble Duke (the Duke of Buccleugh), and the noble Earl (the Earl of Haddington) opposite, whether it was not a matter of notoriety in Scotland, that the business of this Court was merely nominal.

The Earl of Haddington
had often heard it said in Scotland, that the business of the Court was merely nominal, and he had heard this as often denied. His own opinion was, that there was but little business; but that what business there was, required considerable legal knowledge and attention to do it well. This Bill had, indeed, passed this House last year without inquiry, but that was no reason why it should now pass without inquiry. No practical lawyer of the Scotch Court of Exchequer, nor any Judge of the Court of Session, had been examined, and the opinion of Sir Samuel Shepherd, the late Chief Baron, was adverse to the supposition that a Judge of the Court of Session was competent to do the business of the Court of Exchequer, and he had an experience of eleven years as Chief Baron, while the present Chief Baron had only had an experience of two years. Then, it was one of the Articles of Union that Scotland should have a Court of Exchequer, and, therefore, this Bill was an infringement of these Articles, which the measure of the noble Duke (the Duke of Wellington) was not, for it only regulated the Court, which was consistent with those Articles. The meaning was, that the Scotch should have the jurisdiction in their own country.

The Earl of Roseberry
reminded noble Lords that this was not merely a measure 735 of economy, but a measure of principle. As to the infringement of the Articles of Union, the measure of the noble Duke (the Duke of Wellington) had infringed them, by abolishing the Admiralty Court as a separate tribunal. It could not be supposed that a Judge of the Court of Session was not perfectly competent to do the duties of this Court, considering the legal habits which he must have acquired; and, in point of fact, these revenue cases were often perfectly well managed by the Justices, Commissioners of Supply, and the Excise Courts. It was too late in the Session now to refer the Bill to a Committee up-stairs, and it was totally unnecessary.

§ The Duke of Wellington
admitted, that the inquiry, so far as it had gone, was in favour of the abolition of the Court; but it certainly was not to be forgotten that the late Chief Baron (Sir Samuel Shepherd) had maintained that the Court ought to be preserved. He was aware that the present Chief Baron held a contrary opinion; but then he presumed that the House would bear in mind, that the latter had had only two years experience, while the former enjoyed the advantage of eleven; he, therefore, considered the opinion of Sir Samuel Shepherd to be the more valuable of the two. Both, he was sure, were given with perfect sincerity, neither party having an interest one way or the other. He denied that there was any principle in the Bill, and his opinion decidedly was, that the Crown should not be deprived of the right of having its trials, whenever necessary, before its Court of Exchequer in Scotland because the Lord Chief Baron wished to retire on a pension. But whatever individual opinions noble Lords might entertain upon the subject, one thing at least was certain, that there ought to be a full, fair, and minute inquiry before the Court was abolished.

The Lord Chancellor
would offer one or two remarks as to what had fallen from the noble Duke who had just sat down. He begged to state, that there was nothing peculiar in the Bill, as regarded the discretion of the members of the Court. I was only following up the principle of the noble Duke's own measure—that by which he had reduced the Barons of the Exchequer to two, which was salutary as far as it went. The principle of the Bill was, that the Court should be abolished, because it was wholly unnecessary for the 736 discharge of the functions hitherto intrusted to it. The question then was, how this Court was to be put an end to, not only on the ground of its being expensive, but because also, that nothing could be more indecorous than having a Court of Judicature with sinecure Judges, having large salaries, without even the semblance of business. In order to effect the object in view, this Bill enacted that the Judges of the Exchequer Court, as they died off or resigned, should not be replaced by others; and it further made provision for a Court competent to do any business which might hereafter arise. It was, he conceived, far better to settle the matter by legislation, than leave it to the chance of a time arising when there should be none of that importunity, on the score of faithful services, to which every Government was subjected by its adherents. It had been observed that this Bill must await the pleasure of the Lord Chief Baron, for that it could not come into operation until he chose to retire. Now, if the Chief Baron should think proper to resign, upon the passing of this Bill, he (Lord Brougham) would look upon it as a strong proof of the irksomeness of the situation in which he found himself placed; for few things could be more irksome than receiving a large sum as a Judge, having no judicial business to transact. It certainly was not an enviable situation to be placed in—at least, speaking for himself, he should not think it so. With respect to the opinion of Sir Samuel Shepherd, he was not inclined to attach a great deal of weight to it, for he remembered that he had formerly given a strong opinion against reducing the number of the Barons of the Exchequer at all; and this at a time when the number of cases in the Exchequer was so small, that they amounted in one year only to seven, and in the following year to three, making an average of five cases in the year. Now, there were five Barons of the Exchequer, with an average of five undefended cases a-year, or one to each, and yet Sir Samuel Shepherd thought it impossible that the number could be reduced. It was then in contemplation to reduce the number by one only; but even that one he could not spare. Now, when it was proposed to abolish the Court, on the ground of its having no business to transact, only two cases having come before it in the last year, the learned Judge thinks that there should still be retained two Judges, thus 737 keeping up his former average of a Judge to each cause. As to the allegation that the Bill was hurried through Parliament, he had only to observe, that nearly a year had elapsed since it was first introduced, when it was discussed in that House, and afterwards more fully discussed in the House of Commons. Not being then passed into a law, a Committee had been appointed to inquire into the subject, and before that Committee it had been proved, that the little business formerly before the Court had been of late gradually becoming less. He was satisfied that the measure was most expedient.