§ The Lord Advocate moved, That the house should resolve itself into a committee on the Scotch Judges' Annuity Bill.
§ Mr. Bankesexpressed himself altogether averse to the principle of this bill, and was extremely surprized to perceive it was endeavoured to be hurried through the house, when it made so great a grant of public money, and was a subject on which so many various and discordant sentiments had been already delivered. It 799 was a measure instituted without any necessity; the crown had the power of granting pensions to superannuated Judges already; and, least of all, did there exist, in the present instance, any shadow of reason for the interference of parliament. The question had been for some time under the consideration of the Finance Committee, and the report had been delayed by some untoward circumstances, but would very shortly be before the house; this would enable them to decide upon the necessity of the measure. He should, therefore, move 'That the committal of the bill be deferred until this day se'nnight.'
The Lord Advocateof Scotland saw no reason for the delay proposed, and was surprised to find the hon. member had any serious objection to the bill, which was only intended to set the superannuated Judges of Scotland on the same liberal footing as those of England. It was an improper mode of providing for the superannuated Judges from the revenue of the king; first, because these pensions could be withdrawn at pleasure; and secondly, because they would expire with the life of the king. He considered the delay proposed as dangerous to the Bill, and, therefore, should oppose it.
Mr. Abercrombywished the bill should not be committed until the report of the Finance Committee should be before the house; the delay was inconsiderable, and might be attended with advantage to the country.—After a few words from Mr. Rose, the gallery was cleared for a division. On the division there appeared for going into the Committee, Ayes 63; Noes 32. Majority 31.
The house then went into a committee. On the Clause entitling any of the Judges of the Courts of Session or Justiciary, the Lord Chief Baron, or any of the Barons of Exchequer, to retire on 3-tths of their salary, sir John Newport proposed as an amendment, that the words "or Barons of Exchequer" should be omitted.
§ Mr. Hornersaid, it was altogether a mistake to compare the duties of the Barons of the Exchequer in Scotland, with those that were discharged by the court of the same name in Westminster Hall. The former were merely a Board of Revenue. It had been justly said, that on an average they had not twelve causes before them in twelve months. During the term before last, he was informed there were only three causes, and during the term just finished not a single one.
§ Mr. Fullerthought it would be better to permit the Scotch to have all possible means of remuneration for their labour in their own country. The present deficiency was, perhaps, the reason why so many young Scotchmen thronged the streets of London, hunting after promotion. If it would be the means of keeping these young adventurers at home, he should feel happy in giving the bill its greatest latitude, and should, therefore, support the original clause.
The Lord Advocatesaid, the whole of the revenue questions in Scotland came before the court of exchequer. If it were once to be laid down, that persons who from age or infirmity were incapable of instructing the jury aright, be allowed to continue judges, the complaint of there being little revenue business in Scotland would soon cease to operate. It was necessary to take care that the Judges in that court, as well as in every other, were efficient.
Sir S. Romillywas decidedly of this mind; but he presumed to think it would hardly be said, that the Barons of the Exchequer had hitherto been inefficient. Therefore, there could be the less necessity for the present bill so far as they were concerned. He was informed, that it was quite consistent with the duties of this office, that the person exercising it, should reside in a foreign country. He expected to have heard from his learned friend, some reasons for the present measure, but he was disappointed. The learned lord had said, that 22 causes had stood in the paper for trial during the last term; but every gentleman present knew, that there was nothing extraordinary in this, as not one of them might have been insisted in.
The Solicitor Generalfor Scotland thought it invidious to make any distinction between the Barons of Exchequer, who were Judges of one of the supreme courts, and the Judges of the other courts. The labour, unquestionably, could not be compared with that of the Judges of the court of Session; but still their duties were important. They had even to controul the grants of the minister himself.
Mr. Abercrombysaid it had been admitted that the Barons of Exchequer in Scotland came in place of the old Lords of the Treasury. The duties, of course, which devolved on them, were not, and could not be judicial. The house was now called on to give pensions to the name of Barons of Exchequer, for in no other way 801 did they resemble the persons in this country exercising judicial functions. There were many offices of a ministerial nature, the duties of which were important, but still the persons holding them were not allowed to retire on salaries.
§ Mr. Bankesdeclared, that all the explanations made by gentlemen acquainted with the duties of the Barons of Exchequer in Scotland, did not satisfy his mind that their offices were judicial. He could conceive it perfectly possible that they might go by the same name, and not have the same duties to perform with the Barons of Exchequer in Ireland. A person might once belong to a court of justice and yet his character not be judicial. As, for instance, his right hon. friend opposite was chancellor of the exchequer, and head of that court, and, on the principle now contended for, must be entitled to a salary on retiring from his office; but this, he presumed to think, would hardly be maintained.
The Chancellor of the Exchequersaid, that it was a matter of no minor consideration that, by the act, the judges held their situations 'quam diu bene se gesserint;' and that the case of the Sheriffs of Counties in Scotland, alluded to by an hon. gent, was not at all analogous, as such officers were not thereby removed from any profession in the duties of which they had been previously employed. He denied that these pensions were so much for the benefit of the individuals concerned as for the benefit of the public, by securing an adequate and uninterrupted administration of justice.
§ Mr. Windhamsaid, that the question ought to be argued upon the general principle of grants upon superannuation, and not upon the strained analogy of reducing the Scotch judges to the same standard as the judges of this country. Such an assimilation reminded him of the old fable, 'How we apples swim.' And as to the plurality of duties, the division of such labour was more like the division of business between Jack and Tom: 'What are you doing, Jack r'—' Nothing, sir.' What are you doing, Tom t'—'Helping Jack, sir.' Let gentlemen speak of it as they would, it was, after all, nothing more than spreading a small substance upon a great extent. It did appear to him to be a provision not at all called for.
§ Mr. R. Dundasthought it was a sufficient answer to the objections why the Welch judges were not pensioned as well as the 802 Scotch, to remind the house that the Welch judges had, with their appointment, the benefit of their practice, and of such importance was that privilege considered, that there were many English barristers who would not accept of the place of a Scotch judge, and who would yet be very glad to get that of a Welch judge. Gentlemen on the other side had had recourse at the same time to two arguments that destroyed each other. It was argued that the place was a sinecure, and should not therefore have a pension on retirement, and at the same time it was apprehended that the Scotch judges would be anxious to retire and enjoy the profit of a pension without the trouble of the office. This was saying, it was and was not a sinecure; either must be given up: it must be admitted, either that, if it is a sinecure there would not be such inducement to retire, or that it is not a sinecure, and therefore worthy of a future compensation, when the judge retires through old age or infirmity.—The committee then divided on the amendment, Ayes 41; Noes 84: Majority against the amendment 43.