§ Lord Archibald Hamiltonrose, in pursuance of notice, to move for a. copy of the late appointment of a fourth Baron of the Exchequer in Scotland, in opposition to the recommendation of the commissioners, who recommended the abolition of the office. It was unnecessary for him, on the present occasion to make any preface on the importance of the motion with which he meant to conclude. The importance of the subject in the present condition of the country, and in the present state of public feeling, must be generally allowed. If it had been necessary to excite attention to the dis- 348 cussion, and to preface his motion with observations on its importance, it would have been very easy to find the matter of them, in the circumstances of distress under which all classes laboured, and in the suspicion attached to the House of not sympathizing with that distress, or attending to the dictates of economy. But however it might have been necessary to have bespoken attention at other times by preliminary remarks on the importance of the subject, he did not feel himself under the necessity of doing so. now. He could likewise assure the House, that if any subject: of economy was ever rendered of greater consequence by collateral and Connected consideration than it was by its own essential qualities or individual merits, it was the present. When he first mentioned the appointment, he was not aware: of the extent to which it would implicate the opinions of parties unconnected with the government. He did not know that the noble lord opposite, or the learned lord would have involved the judges of Scotland in their decision; but, on his giving notice of the present motion, the learned lord had moved for a paper which not only implicated himself, but high legal characters. Before he discussed the contents of this paper, he wished to make a few preliminary observations on the time and circumstances in which this question came before the House. It was now six years since his right hon. friend, the member for Waterford, commenced his exertions for an inquiry into the courts of justice, with a view to their improvement. His motion for the appointment of commissioners for that purpose was made and agreed to in 1814; Now it would scarcely be believed, that after the lapse of six years not one arrangement was made for carrying into effect the recommendation of the commissioners. The first report from the commissioners was madeinl815; The report giving an account of the court of exchequer in Scotland called the sixth report, was laid upon the table: last year, and two other reports had been since presented, but nothing had been done by government in conformity with the suggestions of any one of these documents. It would doubtless appear extraordinary and almost incredible, that the first occurrence consequent on the labours of the commissioners was a measure, not to carry into, effect; their recommendations, but contrary to their expressed opinion, and 349 opposed to the sense of the country. He had moved for, and obtained, a paper last year, which was of little consequence at the time, but which was now of great importance, as it would show the futility of the grounds on which the defence of the present measure rested, and the absolute nothingness of the excuse set up by the learned lord. It would be recollected that the duty imposed on the commissioners was, to inquire into defects or abuses, and to suggest improvements. It was no fault of theirs that nothing was done in consequence of their suggestions. He likewise disclaimed all personal allusion to the learned lord, while he pointed out the authors of the neglect. The learned lord had not been long in office, and he entirely acquitted him of all blame, while he could neither acquit the ministers nor the predecessor of the learned lord. He would now come to the recommendation in the report of last year which referred to the appointment that was the subject of his motion. The commissioners thus expressed themselves—We think it our duty here to express our opinion that the provisions made in respect to an English baron are no longer essential or requisite. With the exception of one of our number, we concur in thinking that five barons are one more than necessary, and that the business of the exchequer might be conducted with equal advantage by four, as in the court of exchequer in England, and without adding to the duties and labour of those judges." After showing the grounds of this opinion he would conclude with proposing a resolution that the House do agree with the commissioners. If, after this, the House not only sanctioned the appointment of a fourth baron, but approved of the "breathless haste" with which ministers, filled up the vacancy (that epithet might be applied to other parts of their conduct as well as to their military operations); the public ought to save the expense of the commissioners: the commissioners might save themselves the trouble of making reports, and parliament, instead of listening to motions or instituting inquiries, ought implicitly to rely on ministers for the result of their good intentions or wise deliberations. It appeared to him ludicrous to stand up in his place to argue against the necessity of having five barons of the exchequer for Scotland; and if it were not that, the House sometimes came to extraordinary decisions, he should not have 350 that he ought to expose himself to the ridicule of such a task. The proposition which he found it incumbent on him to combat could be compared in absurdity or ludicrous character to nothing but the celebrated finance resolutions of the right hon. the chancellor of the exchequer, declaring that a bank-note and a shilling were of equal value with a guinea, when a guinea could be sold for twenty-six shillings. Here he begged leave to remark, that when he spoke of a fourth baron he meant a fourth puisne baron, and did not mean to object to a fourth, including the chief baron. His objection lay to five barons, and not to four. It was the fifth appointment of which the commissioners recommended the abolition; and if the House did not concur in their recommendation, the eight reports which they had already presented would be useless paper, and parliament would neither do its duty by them nor by the country. He would now state the duty of the barons, and he begged it to be observed that the account was not that of an enemy, but was supplied by these judges themselves. They stated, as was to be found in the 10th page of the sixth report of the commissioners, that there were four terms; one beginning on the 24th of November, and terminating on the 20th of December: another beginning on the 15th of January, and ending on the 3rd of February; a third beginning on the 12th of May, and ending on the 2nd of June; and a fourth beginning on the 17th of June, and ending on the 5th of July; making on the whole 65 or 66 days in the year. But the court of course did not meet on Sunday, nor usually on Monday, except it was the first or the last day of term. Thus, then, the barons were not employed in their judicial duties more than two months in the year, and this, be it remembered, was their own account of their employment. The average number of causes set down for trial did not exceed a hundred. The barons certainly likewise acted as a board of treasury, and the average number of petitions, memorials, and other applications disposed of by them in that capacity amounted to 1,300. But in point of practice the disposal of this part of the business belonged to the remembrancer; it was their duty only to transmit these memorials to him—to order him to make out his report, of which they disapproved or approved. When, the remembrancer, or thought, rather the deputy remembrancer to whom 351 the memorials were eventually referred, had made his report, and the barons had given their approbation or disapprobation their labour was at an end. Now, he would beg leave to contrast the duties which the barons of the court of exchequer in Scotland thus performed with the duties performed by the barons of the court of exchequer in England. The barons of the exchequer court in England went the circuit: the barons of the exchequer court in Scotland performed no part of this duty. The court of exchequer in England performed the duties of a court of equity; in Scotland no such duty devolved upon the barons. In England, other suitors could apply to the court of exchequer besides the suitors of the Crown; in Scotland only the suitors of the Crown. The barons of England took their turn at the Old Bailey, and performed other parts in the administration of justice; in Scotland they had no similar labour. In England the barons had to decide on private bills referred to them from parliament; in Scotland they had to do nothing similar. There could, therefore be no comparison between the labour performed by the four barons of the court of exchequer in England and the five of Scotland. But if any thing was required to place this in a stronger light, it would be the fact, that they only were required to occupy sixty days in the year in the performance of their judicial duties. The treasury business they performed, as he had mentioned, by deputy; so then, five barons of the court of exchequer of Scotland were not required to execute one-half of the duties which were performed by four in England. He particularly wished to state, and he would pledge himself for the truth of the statement, because he had his information from the best authority, that the 1,300 cases referred to the barons as a board of treasury, were decided as to all the labour of decision by deputy. The deputy of the remembrancer was in this respect in fact the court of exchequer. He performed the whole business, and left only to the barons the approval or the disapproval of his report. Now he would beg to know, as connected with this subject, what was the opinion entertained of the appointment of the present chief baron of the exchequer (the late attorney-general of England, sir Samuel Shepherd.) Did he consider himself, or was he considered by his friends, as going to perform a laborious duty, or going to 352 fill an easy situation, if not a sinecure office? If any thing more was requisite to show the small task of the barons, he would appeal to the fact, that the late chief baron (the right hon. Robert Dun-das) held his office three years, while he never appeared in court; that he had been in Italy two of those years from bad health and that when he returned he was unable to attend to business. Nay, he could give another proof of the almost sinecure nature of the appointment. The present lord high commissioner of the jury court of Scotland, though almost unacquainted with the laws of Scotland, and going down to establish a new court, and to perform the laborious duties of a new appointment was yet able to execute the functions of a baron of the exchequer in addition to his other avocations. Was not this a plain evidence that he looked to the appointment of a baron of the exchequer as an addition to his emoluments, and not as a great addition to his labour? The labour was to be performed in his other appointment, and the 2,000l. of salary thrown in as baron of the exchequer was to repay that labour. He asked if this was not the impression of the House, and of the public, among whom the question was understood He might add another proof of the insignificant portion of judicial duties, that devolved upon the baron of the exchequer. When the business of the court of Session had so increased as to be in arrear, it was proposed to detach from it its jurisdiction as a court of tiends and to devolve it upon the exchequer. This proposition had frequently been made; and the reason why it was not carried into effect made as much for his; argument as the proposition itself That reason was, that the barons of the exchequer were not so well acquainted with the laws of tiends as to be able to execute the duties of that court. He would state another fact, which showed the general impression entertained of the small extent of labour imposed upon the barons of the exchequer. When it was proposed, in the last parliament, to grant retired pensions to the judges, it was contended by some hon. members, that such pensions ought not to be allowed to the barons of the exchequer, as they were already in a state of retirement. He would call the attention of hon. members to another fact, if any statement of fact could influence their votes, and with that fact he would allow the case to go to a jury, if he were ad- 353 dressing a jury upon the subject, that the ate lord chief baron Dundas had held his appointment when he travelled in Italy, and when he could no more perform its duties than the door-keeper of the House. If a chief baron could be spared three years from his duty, why might not the services of one of the junior barons be dispensed with? He did not say this for the purpose of bringing any discredit on the courts; this was not a time to bring the venerable institutions of the country into disrespect; and if any attempt should be made to bring this odium upon him, he would only bespeak the indulgence of the House, while be could not refrain from denouncing a scandalous appointment, alike injurious to the character of parliament and to the credit of the courts of justice. There never was a time when the tribunals of the country should more be held up to public respect and reverence than now; and he was happy to say that they had lately acquitted themselves so as to increase that respect and reverence, by their persevering patience of investigation and impartiality of decision. But he would again ask, if the head of a court could be absent for several years, why such "breathless haste" in filling up the appointment of one of the puisne barons, before the subject had been discussed in parliament, and the recommendation of the commissioners taken into consideration? In the report it was stated, that the commissioners had agreed, with only one dissentient voice, to recommend the abolition of the office of fourth baron. That dissentient voice was sir Hey Campbell, who was at the head of the commission. It would be remembered, that at the time of the appointment of the commission, an objection was made to appoint him, on the ground that every thing which had been done regarding appointments to the courts of justice of Scotland for the last half a century was done by his advice. It was thence argued, that, without any imputation on his personal character, he could not be relied upon in deciding on appointments which he had recommended. He (lord A. Hamilton) when he heard of a dissentient voice would rather have wished that it were sir Hey Campbell than any other person in Scotland, because from the peculiarity of his situation his vote would carry less weight than that of any other individual. To show the character of the late transaction, he would ask, without meaning any personal imputation, who 354 was the person that bad been appointed? Was sir P. Murray known as a lawyer? No. Had he been in practice as a lawyer for the last twenty years? No. He might have put on the gown, but he seldom or never appeared in court, and had never had any business. What one circumstance, therefore, but patronage, could have led to his appointment? Sir P. Murray had been remembrancer of the court to which he was now appointed one of the judges, but he had performed the whole duty by deputy; and if ever he went into the courts, as was fashionable sometimes in Scotland with those who had nothing else to do, his visits were not connected with the exercise of the legal profession. The only public character in which he was known in Scotland was that of having been a troublesome candidate for the county of Perth; there was no better way by which an individual could advance himself in that country. He (lord A. Hamilton) knew something of political contests in the counties of Scotland, and he knew there was no better way to command political advancement, than to get votes in a county, and to turn them in favour of the administration—No man knew that better than the lord register opposite, whose merriment this observation seemed to excite. He bad hoped that the question before the House would have been confined to one between the commissioners and the ministers. He had hoped that ministers would not have implicated in any opinion concerning it the lord advocate and the judges; but, as they had done so, he would state in opposition to them the character of the commissioners who recommended the abolition of the office. There were several among them whose names were so respectable, that he would defy not only the present ministry, but any other, to point out individuals whose opinions or recommendation ought to carry greater weight. The head of the commission was sir Hey Campbell, who by knowledge was perfectly qualified for the duty, but whom he did not conceive as a very proper person to occupy that situation; as, without meaning any disrespect to him, it was well known that he had protected all the abuses that had prevailed for the last fifty years, and might say of them, "quorum pars magni fui." The next name that he found subscribed to the report was that of sir James Montgomery, who had been for many years lord advocate of Scotland. His authority, he 355 did not hesitate to say, weighed as much with him as that of the learned lord, or of the lord register opposite. As giving additional weight to his authority on such a subject, it should be recollected that sir James Montgomery usually supported the present administration. The next commissioner was Mr. Robertson, a Scots advocate, retired from the bar. The next was Mr. Thripland; and the last, though not least, Mr. Glassford, who had written a book on the courts of law of Scotland, in which he had said that the appointments of the exchequer were sources of patronage rather than offices of business. The measure, however, of supplying the vacancy, in opposition to the opinion of the majority of the commissioners, was taken, not for the purpose of preserving an useful office, but of promoting an individual; and the question was not, whether the office of fourth baron ought to be abolished, or given to somebody, but whether it ought to be abolished, or given to sir P. Murray? He would ask that learned lord opposite, if at the time of the vacancy the general conversation in Edinburgh was not to the effect, that a promise had been given that sir P. Murray should be appointed to the office? The learned lord might cavil at the word "promise," but was not the fact so? He came now to the paper which had been produced by the learned lord, containing the alleged opinions of the head of the law courts in Scotland; and he must say that if he had required any justification of his present motion, he should have found it in that paper. He did not mean any disrespect when he said that the paper so produced by the learned lord in vindication of himself was no vindication at all. What was the sum and substance of it? Why, that if one baron was reduced, there would only remain four; and that, in case of being balanced against each other, the court could give no decision; and this was stated in a British House of Commons! In England four judges were found sufficient for the immense and laborious business of each of the courts, Here then the House had not only reason and policy, but long experience in this country, against the appointment of five barons in Scotland; but it might be urged, that when an equality occurred in the courts of this country, there was an ulterior tribunal to be appealed to. If this argument proved any thing, it proved that the number of barons ought to be reduced to three, and 356 not that the unnecessary and expensive establishment of five should exist for the mere purpose of inequality. There was another objection of a general nature, which he would now state, to the ground on which the appointment of a fifth baron had been renewed. It was not fit for the judges of Scotland to be dragged to that House for a political purpose. He could not consider the paper before the House (sir W. Rae's Report against the Discontinuance of one of the Barons of Exchequer, as recommended by the Commissioners on the Courts of Justice in Scotland)—he could not consider that paper as the opinion of the judges. The heads of the courts in Scotland were stated to have concurred in the opinion expressed in the paper. But it was necessary to recollect who the heads of the courts were, and in what situation they had been at the time the report was made. He had formerly moved for the reference to the judges in Scotland, of a report of the commissioners on courts of justice in that country. He should now state his reasons why he not only thought the opinion of the commissioners better than the opinion of the judges, but considered the situation of the judges such as to deprive their opinion of that authority which they individually deserved. He did not know that this paper was meant to be cited as their opinion. It was not signed by them. They had individually given their opinion to the learned lord who signed, but they and the learned lord were subject to a common bias with respect to the commissioners. The judges themselves, and the learned lord, then sheriff of Edinburgh, were reported on by the commissioners. They had not concurred with the commissioners, and the House might trace something of bias and something of hostility in the report which he held in his hand. At least there was one fact that would dispose of their authority as opposed to the recommendation of the commissioners. The report to which he alluded contained as extraordinary a statement as ever fell from the pen or lips of any individual. It had been referred to the judges whether a part of a report made by the commissioners should be acted upon. In the report there had been a recommendation that the duties of the two clerks of bills should be devolved on the principal clerks of Session. This recommendation was referred to the judges for their opinion. The judges said, "We 357 are decidedly of opinion, with the exception of one" (the House would remark that even one of the judges could not concur in this extraordinary opinion), "that the recommendation is highly inexpedient, if not impossible; for the present duty of a principal clerk of Session is sufficient to occupy the whole time and attention of any individual." After the House had heard it thus gravely stated that the situation of principal clerk of Session required the whole time and attention of any individual, would it be believed that Walter Scott was one of the principal clerks of Session? A writer who might well be supposed to have had nothing else to do but to write, was represented as so wholly occupied with the duties of a principal clerk of Session that he could do nothing else. On this ground the judges maintained that the office proposed to be discontinued must be continued. Such an opinion must be scouted from the Land's-end to John o'Groat's. If they could name any thing so ridiculous as the opinion, that he who wrote so much that it appeared incredible he could do any thing else, was so wholly occupied with the duties of principal clerk that it would be inexpedient if not impossible for him to do any thing more, the authority of the judges might be preferred to the recommendation of the commissioners. But if the steady and laborious duty of principal clerk was not so great, the conviction resulting from the fact he had now stated must be either, that ministers were deplorably determined not to get rid of any office, or that some other influence was exercised over them which retained offices of patronage, notwithstanding their pledge to abandon them. After he had thus brought under the consideration of the House the fact, that one of the principal clerks of Session was sir Walter Scott, who had written more than many other men could find time to read, was it possible that they could attend to those who stated that it was "highly inexpedient, if not impossible, for a principal clerk to perform any additional duty?" Either, then, the continuance of the office now in question resulted from the obstinate adherence of ministers to the patronage of office, or it resulted from a power which exerted an influence respecting Scotland unknown to ministers themselves till the public indignation called their attention to it, or till, as now, they found, to their regret, that 358 it had been excited, and they must give some account of their conduct. He did not believe they would have renewed this appointment if they had known the circumstances. He said so, because whatever he thought of ministers in other respects, he could not think them capable of such a felo de se as to sanction an appointment which was in direct contradiction to the report of a parliamentary commission, and in flagrant violation of the opinion of the great body of the Scottish people, for such he would maintain to be the case in the present instance. He was afraid that he wearied the House, but he had one remark still to urge upon the attention of the House. The report of the commissioners was not before the House; but he would read a part of it in reference to this question, lest it should be said that the barons were fully occupied with the business of their court. Mr. Gardener was there stated to have acted by deputy; all officers in that court acted by deputy—but the barons, who could not act by deputy. There was an under-treasurer, a remembrancer of the treasurer; and no control was exercised over those officers by the court. "It is obvious, therefore," said the report, "from this statement of the practice, that there is no control over the charges made by the treasurer's remembrancer in this branch of duty, which, in like manner, are wholly paid out of the public revenue. His accounts are never laid before the barons, nor revised by any officer of the court. He may charge, and has in fact charged, whatever he thought was a suitable remuneration for his trouble." Rep. p. 24. He was not now arguing whether those were or were not grounds of alteration. But if the barons could be said to be fully occupied in sweeping their court clean, it might be some pretence for continuing so many of them. That pretence it appeared could not be resorted to; there was no court in which there existed more systematic, consistent, and inveterate abuse. He did not find fault as to the individual appointed not being a lawyer, because it was not necessary that he should be a lawyer. He had indeed held an office in that court; but he too had acted by deputy. That office had not been reported on, but when reported on, it would be found as fit to be abolished as this of fifth baron. He would not continue to occupy the attention of the House, as there were many gentle- 359 men around him fitter for explaining and enforcing the arguments which the question suggested. But one thing he would again say, that it was not proper to have brought the judges of the land before that House in this case. Ministers had certainly a right to take their opinion, but they ought to have subjected them to the odium of acting upon it in that House—they ought not to have made the judges subject to the observations which he had felt it his duty to make, and which other members must make. As to their authority, he could put it to the House whether, after what he had mentioned with respect to sir Walter Scott, and their statement of the laborious duty of principal clerk of Session, any authority could be attached to their opinion on this subject. The paper containing a report of their opinion did not carry conviction to the people of Scotland; it did not carry conviction to all the judges; it did not, he was assured, carry conviction to the bar. As the paper could not carry conviction, so neither could the vote of that House, if a vote of confirmation, carry conviction to the country. To himself, personally, it was a matter of perfect indifference, but it was a matter of the greatest importance as affecting the character of the country; and the time might soon come, when he should be told of this appointment by persons in the disturbed district with which he was connected, whom he might be called upon to repress. With what consistency could he, as deputy lieutenant or justice of the peace, put down at the point of the sword those whom distress had goaded to madness, and who from time to time were outraged by acts of this kind, committed, be was afraid from their repetition, without compunction? He could do no such thing if the House now sanctioned this abuse by their vote. The learned lord had been lately in that part of the country, and knew the character of the people: many of them, he (lord A. Hamilton) admitted were a disgrace to their country, but numbers of reasoning and intelligent persons were disgusted by acts like these. Public meetings were prevented, but it was a pity that every individual in the land could not express his opinion on this question. If they could not express it in public, they would express their opinion in some other way. He begged pardon for the digression. He was not aware of any answer that could 360 be given on the other side of the House; and he was convinced that a vote confirming the appointment in question would be another item added to those which had already caused such an unfavourable impression respecting that House. He would conclude by moving the foling resolution: "That this House do agree with the commissioners appointed for inquiring into the duties, salaries, fees, and emoluments, of the several offices, clerks, and ministers of justice, of the courts in Scotland, in that part of their report relative to the court of Exchequer, in which their opinion is expressed in the following words:—That five barons are more than necessary, and that the business of the Exchequer might be conducted with equal advantage by four, as in the court of Exchequer in England, and without adding materially to the duties and labour of those judges.
The Lord Advocateexpressed a hope, that whatever might be thought of the merit of the opinion, which appeared from him, in the paper on the table, the House would do him the justice to believe that that opinion was his genuine and conscientious impression; and he trusted that the same credit would be given to those great authorities with whom he had the honour to concur, and who were best qualified to judge upon the subject. Whether the report on the table was true or not, he was certainly responsible for it. If he erred, he erred with those who were best qualified to give a judicial opinion in that country. The opinion in that report was founded on a due consideration of the national contract at the union of the two countries—an union which had proved satisfactory to the people, and promoted the interests of that part of the country, for more than a century. That contract was not to be wantonly broken in upon. This was the substance of the report. If any change should be made, it ought to be the result of deep deliberation, and till that deliberation could be bestowed on the subject, the numbers of the judges ought not to be reduced. The appointment now in question was known to have arisen from the circumstance that one of the barons had found his duties in the court of Exchequer incompatible with his duties as chief commissioner of the jury court. The jury court had been lately introduced into Scotland. No new judges had been appointed for this court, in order that, if the experiment should be found unsatis- 361 factory, the judges might remain as they had been before. The institution was experimental in its origin, and no causes could come under its view without the consent of the court of Session, who must have heard all causes in the first instance, and to whom the causes directed to be tried in the jury court, must return, after the verdict, for the execution of the law. The jury court had not been introduced at the request of the people, whose prejudices were all against it, and in favour of their own strange system, for strange it must have appeared in this country. The success of the institution was owing to the zeal, talent, good management, and judgment of the judge at the head of it (chief commissioner Adam). He had soon found that much alteration was necessary, and got several alterations effected by an act of parliament, which gave him no emolument, and occasioned much inconvenience to him, but which contributed to promote the objects of the institution. By this act many causes were brought, in the first instance, into that court; issues were drawn in that court, and other powers were conferred of a similar nature. The immensity of duty thus devolved on the head of the jury court required his undivided attention, and made it impossible for him to attend in any other court. The other judges were the most distinguished judges of Session, and performed more business in that court than any other judges, and they were besides judges of justiciary [Cheers from the Opposition]. He saw the object of those cheers, but it would be removed when he stated that it was impossible for those judges to devote their time to the jury court, and the whole business of that court consequently devolved upon the chief commissioner who consequently resigned his office in the court of exchequer in November last. Government were charged with breathless haste in filling up this office, yet it was manifest there had been no such haste. They had taken the opinion of those who were most unprejudiced on the subject, and able to give the best information and the best advice respecting it. The people of Scotland had certainly a right to consider the institutions of that part of the country their own, and to expect that they would not be altered without deep and correct consideration. The office was accordingly filled up in March last. Two meetings of that House had in the mean time taken 362 place without any mention of the subject, though some allusions had been made to it in June last. He would here make some remarks in reply to the allusion to the individual appointed, although he had not expected that allusion, and although it was foreign to the question. He had no particular connection with the appointment of the individual, but he would state reasons that fully justified the government in the selection they had made. An individual better fitted for the office they could not have found. He had held the office of principal remembrancer in the court of Exchequer from the year 1799 till last year, except one year that he held an office in London. He was by this means better fitted both for the ministerial and judicial functions of a baron than he could have been by the longest practice as an advocate in the courts of justice. As the English law was the law of the court of exchequer, a barrister had to learn all the forms and rules of the court when appointed to preside in it as one of the barons. The noble lord had said, that sir P. Murray had performed his office by deputy, but he (the lord advocate) knew that he had performed it personally, since 1799, till last year, except the year that he had an office in London. Nor was such an appointment of an inferior officer without precedent, for Mr. Baron Mon-crieff had been deputy king's remembrancer for 25 years before he was appointed one of the barons. In England, too, there had been a similar appointment, for Mr. Baron Perrott (if he was not mistaken in the name) had been an officer in the court of Exchequer before he had been appointed a baron. Another remark he begged leave to make here, respecting the selection of the individual. By his appointment a very considerable saving was occasioned, because the office of king's remembrancer ceased, on its becoming vacant, in consequence of the act introduced by an hon. member on the floor. The saving hence arising amounted to one half the salary of one of the barons of Exchequer. This had no connection with the present question, but it was not immaterial to mention it, in reference to the observations of the noble lord respecting the state of the country, and the necessity of economy. It had also been rumoured, although the noble lord had not stated it, that some pledge had been given not to renew the appointment of a fifth baron. No pledge of that kind had been 363 given, and no such reason could be urged for the suppression of this office. It had farther been talked of that this was an additional baron. There was equally little reason for this. The number was only continued the same as it had been before the union, and ever since to this day. From the time of Charles 2nd, to the union, the number of judges in the court of Exchequer had been five; and the statute, 6th Anne, enacted that the number should not be fewer than five. He begged pardon: the language of the act was, that the number should not exceed five. He was ready to maintain the correctness of the expression. If the act had said that I the number should be five, then, in case of the death or resignation of one, the others could not act till the vacancy should be filled up. If four had been the number the same form of expression would have been used "in order to provide for the contingency of the death or resignation of any one of the existing number. Five had been immediately filled up then, and that number continued ever since. Nor was the number without propriety and reason. He might have his prejudices on this subject, but they were honest prejudices, and the prejudices of his country. The Scotch had always been accustomed to 5; the English had always been accustomed to 4; the Scotch preferred 5 according to what they had been accustomed to; the English preferred 4, according to their custom. The court of exchequer in Scotland, had to pass gifts, tutories, and to grant charters of property belonging to the Crown. Various other duties too, were devolved on that court, which required a knowledge of the principles and practice of the English law, as well as of Scotch law. Accordingly, the act of Ann enacted, that two of the barons should be English lawyers. He should be extremely sorry to see the number of English lawyers reduced. The English practice was much better adapted for taking and recording evidence than the Scotch practice. This was a matter of the highest importance certainly, and in this respect he must say, against the bar and his own interests, that the English law was preferable. But the number of three was quite necessary of Scotch lawyers for the very difficult and important duties they had to perform. Those duties were not so light as the noble lord had represented; they had increased greatly, and must continue to in- 364 crease with the increase arid complication of the revenue. He admitted, however, that the barons might do more duty than they had to do, but still their number could not be reduced. Besides the business connected with the revenue, they had other duties to perform, which could not be performed if one of the Scotch barons were discontinued: for if there should be a division of opinion respecting the granting of a charter to an individual, what could be done? It might be of importance to the individual at the moment when an election approached. The noble lord had himself alluded to elections. A judge could give up his opinion where a court of review decided against it: but why should a judge give up his opinion, if an honest and conscientious one, when there was no court of review? The consequence would therefore be, when there was an equal division, that no charter and no tutory would be issued. He could not see how such an evil could be remedied without an inequality of numbers. Other reasons were given in the report, and reasons that had been well weighed before they had been stated. He had understood at that time that the commissioners had wished an English baron to be left out, and the court to be made entirely a Scotch court, for the chief baron was then Scotch. He contended that the commissioners had exceeded their powers, and went entirely out of their way when they reported on the constitution of the court of exchequer. Their instructions were, as stated in their own report, to inquire into the fees, salaries, and emoluments of the several clerks, officers, and ministers of justice. Now, he should be glad to know under which of these heads the "judges" were meant to be included? Not surely under that of "ministers of justice." Had it been meant to include them in this general description, surely they would have been put first, and not named after the clerks: but he had been at some pains to look further into this matter, and begged to call the attention of the House to the words used by the right hon. baronet opposite, the member for Waterford, in his own motion upon the subject of appointing these commissioners: his motion was to the effect that these commissioners should be empowered to inquire into the several fees, emoluments and salaries of the different courts of justice, and "of the officers connected therewith;" in short, that they 365 should conduct inquiries and investigations similar to those which had been made in the years 1664, 1689, 1732, 1757, and 1788. Now the hon. baronet had alluded to every one of these measures as being similar to those which he required to be adopted; and yet he (the lord advocate), after having carefully searched the records of that House, and speaking from the very words of the Journals themselves, could say, without fear of contradiction, that in no one instance had any of those former proceedings gone to that extent which the noble lord now contended for. In 1664, it seemed that the report made contained not one word even upon the subject of the judges. The report of 1809 immediately preceded an act of the House to increase the salary of the judges, and was framed by a commission appointed to inquire into the fees, emoluments, and salaries of the several courts of justice in the united kingdom. And the wording of a former motion of the hon. baronet's embraced the investigation of the perquisites, fees, and emoluments, of the under officers of the courts of justice; but in no shape extended to the judges, or to the constitution of those courts. And who were the persons who were on that occasion considered as fit individuals to report upon these points, and not on the constitution of the courts? Lord Eldon, lord Redesdale, lord Erskine—persons not only deeply skilled and eminently learned in their profession, but in the daily habit of expounding the science they professed. But what was the duty imposed upon those commissioners? That they were to have nothing to do with the constitution of the court into whose fees they were to inquire. And here he could not help remarking, that some observations had fallen from the noble lord relative to a most respectable and amiable person, chief registrar of Scotland; he thought the high character and grey hairs of that venerable individual might have protected him from so unfounded and illiberal an attack, which might have well been spared: they were uncalled for, and he could not help saying they were illiberal.
§ The Speakerinterposed. He suggested to the learned lord that no observations which might have been made by any hon. member ought to be called "an unfounded and illiberal attack," and that therefore the learned lord was not in order when he used the term.
The Lord Advocateapologized for the expression, and assured the House, he had no intention of giving offence to any honourable member; he was only desirous, when he heard the name of an individual whom he so much respected called into question, that the evening of his life should close with the same consideration which his former conduct had always commanded. But he returned to the consideration of that commission to which he had principally called the attention of the House; and as to the commissioners, with all the respect and esteem which he entertained for them personally, he must say that with the exception of' the chief commissioner, he did consider them to be unqualified. One of them, after practising at the bar, went into the country and lived upon his estate, without returning to his practice; another went to India, and, after staying there for some time, returned, and lived almost entirely in the country; and a third, having also practised some time at the bar, retired to his estate, improved the country round it, but never returned to the profession. Such persons might be well qualified to report upon the fees and emoluments of the officers, but not upon the constitution of the court. But he did not rely only on the objection to the competency of these commissioners; he would appeal to the unanimous opinion of those who were most competent to decide; of the lord president, of the lord justice clerk, the lord commissioner of the jury court, above all, he relied on the authority of the lord chief baron, an individual who had gone so lately from this country, after acquiring a thorough and extensive knowledge of the whole body of the laws of these kingdoms, and whose special duty it was, if it were any one's, to say whether an appointment of this nature was or was not necessary. He did not know what authority the chief-baron's name might have there; but certain he was, that in his (the lord advocate's) part of the country, they felt grateful to his majesty's ministers for having sent among them a man whose talents as a judge were not more respected than his virtues as an individual were admired. After attaining to very high honours in his profession, he declined those highest ones to which he might reasonably and certainly have aspired, and, in the discharge of his duty, was willing, at his time of life, to undertake that duty, accompanied as it was 367 with the necessity of forming new connexions, and in a distant part of the kingdom; although the office was of a nature far below that which he might have been entitled to claim. He submitted, then, that unless they were willing to suppose that there was something infectious in the air of Scotland, which had the effect of instantly destroying that character of honour which an individual had sustained through life, it was utterly incredible and impossible that the learned judge in question, when called upon to decide on the constitution of the court over which he was to preside, should have concurred in the propriety of an appointment of which he did not see and feel the necessity: and he the rather alluded to this fact, because he hoped that the chief-baron's opinion would be treated by the noble lord and his friends with that great respect which it deserved; and he could not but trust, that the opinion of such a man, which was only opposed by one sentence in the report of the commission in question, would be final in persuading the House to approve of this measure, even if his majesty's ministers had not done what they had done. He should now call the attention of the House to the two concluding sentences of the report which he had had the honour of making upon this subject:—"Unless, therefore, the whole constitution of the court of exchequer were to be altered—unless that which was settled by mature deliberation at the union, and which has been acted upon ever since, as founded upon, and in pursuance of, national compact, were to undergo a thorough change, it does not appear that it would be expedient or wise to diminish this number of barons. If a thorough alteration in the constitution of the court were proposed, it would require the most mature consideration, and most serious and cautious deliberation; it must necessarily be a work of time; but, in the interim, it would be fit that the constitution of the court should remain on its present footing, and that the numbers for the performance of its functions should be kept up." According to the noble lord, there appeared to be a wish to avoid the discussion of all remedies proposed upon this subject. Though he would not answer for any proposition which had been made before he (the lord advocate) was appointed to his present office, yet he would say this—that he perfectly well remembered, that the first communications 368 he received From his majesty's ministers were, to prepare acts of parliament for regulating the courts of Session and the Admiralty in Scotland. It would be recollected, perhaps, that he had last session given a notice on this subject, and if any interval had since elapsed without bringing these matters again before their notice. It was not because of any intention to shy inquiry, but because of the delicacy attending the maturing of any measures on so important a subject as those of salaries and compensations. It was enacted by the bills to which he alluded, that certain offices were to be paid out of a particular fee-fund, which was to be formed; but if any deficiencies arose upon it, these were to be supplied by government. It was afterwards found necessary that all such clauses as these should pass through a committee of supply, and for that reason it was not thought proper at the time—the country labouring under very pressing emergencies—to proceed with the bills. Subsequently, it was pretty well known that he had been engaged in the performance of far more important duties than drawing up acts of parliament to regulate the fees, emoluments, and salaries of the officers of courts of justice. He had, however, submitted the bills in question to the gentlemen of the bar, to the best legal practitioners, and, in short, to all the law authorities, by whom they were greatly approved. He was happy to say he had brought them up with him; and he now gave notice that he should in a few days move for leave to bring them in.—And upon this matter he would observe, that when they should be so brought in, there would be an opportunity of fully and fairly discussing any thing which had been done, or was to be done, with regard to the matter at issue; and as to the constitution of the court; whether there should be four or three barons, or more or less. It would then be competent to the House to discuss the expediency, not only of diminishing the number of barons, but of separating their judicial from their ministerial functions, not from their political duties, as it was stated by the noble lord, for he was aware of no political duties which they were called upon to discharge. Whatever propositions might then be to be made, it would be necessary to submit to both Houses of Parliament; nay, Scotland too must be consulted upon 369 the subject, for it was necessary that she should be heard upon the matter. He really begged pardon for detaining the House so long; but there was one more point to be noticed, and he should then have done. It had been that a baron of the exchequer had been absent from the discharge of his duties for three years together. Now he (the lord advocate) would declare, that that baron was never in all his life absent from his duty for more than one year at any time. It had been also said, that he resided the greater part of every year at Bath. True—but he regularly came back to attend his duties as a baron of the exchequer for the term. He presumed that the noble lord had been misinformed upon the case; it was perfectly true that this individual was in a very ill state of health, but that did not prevent him from discharging his duty.
§ Lord A. Hamilton,in explanation, said, that the learned lord seemed to have understood him as using the fact of the absence of the baron of the exchequer, as an "argumentum ad hominem:" but it was with quite a contrary intention. All that he meant to say was, that, judging from the absence of this gentleman for two or three years (a term which the learned lord had corrected, by substituting one year in its place), it appeared that four barons were sufficient for the business of the court.
The Lord Advocateremarked, that individuals were always liable to indisposition. He had felt it necessary to make the observations which he had made in justice to the character of a distinguished individual now no more.
§ Sir John Newportcontended House were justified in distrust of his majesty's ministers this subject. Three cabinet ministers had voted in the first instance against the institution of a commission; but such a distrust, was further reasonable, because his majesty's ministers had done every thing in their power, first to delay, and afterwards to frustrate the objects of that commission. After the address which was voted had been carried to the foot of the throne, seven months elapsed before any thing was done in the business. At last the commission was appointed; but the learned lord had said that commission had traveled out of its jurisdiction in meddling at all with the constitution of the court, as regarded the judges. Now 370 it so happened that all the commissioners concurred in the opinion of the propriety of such a proceeding, and he believed the learned lord himself was the only person who thought differently. In Ireland similar commissioners had called the judges before them, and even examined them upon oath as to their fees. But there was nothing extraordinary in the circumstance of this commission's having conducted itself in a manner and with views just the reverse of those recommended and entertained by the learned lord himself. Upon the learned lord's statement, those who composed it must have been more than incompetent, for they must have misconceived and misunderstood the first sentence of their instructions. But, was this a position to be argued at this time of day? Many hon. members who sat in the former parliament might remember the opinion on the subject of the abuses existing in the court of Chancery entertained by that great man whose name could never be mentioned without a feeling of respect, and who could never be recollected but with emotions of sorrow for his premature death;—he meant sir Samuel Romilly. A question was put to him by an hon. and learned gentleman, then a master in chancery, who was arguing against the commission proposed by sir S. Romilly to inquire into those abuses but who said, that if only a shadow of abuse existed, he would vote for that commission. Sir Samuel Romilly, in reply, said that great abuses did exist; and upon that statement the hon. and learned gentleman, acting with that candour which he (sir J. Newport) expected from him, did vote for the commission. And what was the conduct of the first law-officer—the first minister of the Crown—in consequence? Why, the House would hardly believe it. The question of inquiry having been carried;—of inquiry into the abuses existing in the chancery court too, two masters in chancery were appointed out of a body of five commissioners. The House had this fact before it; that those commissioners drew up a report upon the chancery courts of England, and in no one instance did they enter into an examination of the subject of fees. As to that great abuse, the expedition-fees in the court of chancery, it was declared that though it might be an abuse, yet that the commission saw no means of remedying it. So again, among the receipts of the secretary to the lord chancellor, there were two 371 sums of 63l. and 21l., which were described not as fees, but as gratuities; absolutely as gratuities. Why, then, he repeated that the House was bound to exercise a great degree of suspicion in regard to any proceedings upon the part of his majesty's ministers in reference to such commissions; for as in the first instance, they had been hostile to its appointment, so, in the second they had permitted and repeated the abuses complained of. The learned lord had stated a case in opposition to the opinion which had been expressed by the commission, and had said that the commission had given that opinion without assigning any reason for it. Now it seemed to him that, in the page immediately preceding the declaration of that opinion, they had in fact given a most satisfactory reason for it. They first stated what were the duties of the court; and then went on to observe, that the business of the court was so small as fully to justify the diminution of the number of barons by one. They showed the number of causes, also, in different years. The terms altogether occupied only 85 days of the year: and of those 85 days he was just given to understand by his noble friend Mondays were always days of rest; so that having determined to keep holiday for all the rest of the year, they took out the Mondays also from these 85 days, and kept them as holidays too. Notwithstanding the willingness which in many instances Scotland had manifested to adopt British customs and regulations, she could not yet get rid of this inveterate prejudice for her five barons of the exchequer court. Much had been said as to the ministerial duties of the barons relative to their signatures; but, if during one entire year these signatures could be left unattended to without any serious injury or any great complaint, then surely it was not too much to say that the continuation of such a place was a matter of no necessity. As to a difference of opinion existing between the judges on this subject, that made nothing for or against it. In what court was not such difference occasionally to be found? it pervaded every court. Indeed the learned lord seemed all along to think, because the act of union with Scotland said there should be no more than five barons of the exchequer that they were always bound to have five. But if a justice of peace had a power to fine a man 100l. would it be contended that in every instance he 372 should enforce the fine to such an amount? He thought it would have been only decent in ministers to have taken the sense of the House upon the subject, even if it were only in consequence of the difference of opinion that prevailed amongst the judges. It was said the recent appointment received the sanction of the heads of different courts, but why were not the commissioners asked what they had to say? It was clear if they had reported in coincidence with the views of ministers they would have been asked; if they were not asked, their appointment was a mere nullity. If the report before them were set aside, it would be the means of discouraging all future commissioners, deprived as they were of the bare respect, of a mere hearing. In short, unless the House supported the commissioners, their future labours would be of very little service. The learned lord had expressed his wonder that no proposition on the subject had originated with his (the Opposition) side of the House; but when he, three years ago, moved that all the reports should be referred to a committee, he was met by the noble lord, who stated, that it would be improper to accede to the motion while a special committee were engaged upon the subject, and before it was proved that the commissioners so appointed had failed in the discharge of their duty. The report was now before the House, and yet it was said it ought not to be received. The learned lord complained of the appointment of the commissioners, but who was to blame for that? The ministers—they appointed them. Nor would their appointment have been censured as it was, if their report had not been adverse to the existing abuses. The authority of sir I. Campbell was also much relied on; but while he was in part an authority for the learned lord, he was on the general question against him. And for the authority of the present chief baron, it should be recollected, that when he gave his opinion he had been only one term at the head of the court, and therefore whatever he might have said, he could not have brought much of experience to the subject. On the whole, if no corresponding benefit resulted from the commission, it was better it should be dissolved, and thereby that go much should be saved to the public. In place of business being on the increase in the court of exchequer in Scotland for a period of 10 years, it would be found to 373 have diminished; from 1815 to 1817 it regularly diminished from 116 causes to 73; although the number of those tried at bar had somewhat increased. But on an average, if the general list of causes was not stationary, it had certainly not increased. With respect to Ireland, it did not seem to be made any question of now that great abuses existed there; and if the House looked at the last report relative to abuses connected with certain offices under the judges in that country, they would find abuses detailed of a monstrous nature. At a future day he should move the consideration of that report; for where so much criminality was proved, it was not sufficient to provide only for the future, but he should suggest that they should look at the past. He should certainly support the resolution proposed by his noble friend.
Lord Castlereaghwished shortly to state the reasons which induced him to vote against the noble lord's motion. A report having been made by the commissioners appointed by parliament, that report was referred to the consideration of the chief judges of Scotland, who gave it as their decided opinion, for which opinion the grounds were distinctly stated, that the establishment of the court of exchequer ought to be kept in its full state; and now the noble lord called upon the House without previous inquiry, without any evidence, and without suggesting any facts on his own authority, to come to the conclusion that the constitution of the court of exchequer in Scotland ought to be changed—that that constitution for ages had been faulty—and that the decision of certain commissioners ought to be preferred to the deliberate judgment of the learned heads of all the different courts. Before he stated the reasons why he could not join in opinion with the noble lord, he must be allowed to say a few words (and few they should be, as he was not desirous of diverting the attention of members to any by-battle) on the conduct and motives of government. He did not complain of the hon. baronet for watching over the report, and protecting it with a sort of paternal solicitude; nor should he object to the introduction by him of any direct motion of censure upon ministers if he thought they had deserved it; but he begged the hon. baronet to observe, that if he supposed that, in times like the present, ministers had any other object in view than to redress and reform actual abuses, 374 either in this or in any other court, he imputed to them motives from which they were repelled, not only by every sense of public duty, but by every consideration of private interest. He had charged government with looking only to patronage, with a desire to keep up all the influence of the Crown, as if virtue and purity were only to be found on his side of the House. The noble lord also (who had so often made the mode of voting in Lanarkshire a test of political morality, not only in Scotland but in England) had that night argued as if the only object which his majesty's ministers had in view was the patronage of office. Surely these sweeping assertions tended rather to weaken than to support a good case, for scarcely the most bigotted antagonist of government could be brought to believe that, in this as in other instances they had sacrificed the public interest to some paltry views of power and patronage. However, this sort of reasoning was not at all new to the side of the House on which the noble lord was in the habit of sitting. Above all, it was most useful in anew parliament, when an endeavour was to be made in the outset to persuade the inexperienced that public virtue and public principle were monopolized by the antagonists rather than by the friends of ministers. He did not mean to follow the example thus set—the chair would interpose if he attempted to impute improper motives to the gentlemen who opposed the proposition now under consideration; but it was undoubtedly true that such assertions were calculated to produce a vulgar impression: though, if young members would refer to history they would find that improper motives quite as often influenced those who attacked the government as those who supported it. Repelling, therefore, such imputations with becoming indignation, he would proceed to the point at issue. Although he was not one of those who voted for the appointment of the commissioners in question, he agreed with the hon. baronet, that after they had been appointed, it was fit if necessary to afford them protection in the discharge of their important duties. True it was that certain abuses had been detected by them; but abuses which the hon. baronet, when he moved for their appointment, had not referred to. He did not blame them for travelling, as they had done to various matters; if they thought that the business of the court of exchequer could be con- 375 ducted by four as well as by five judges, they might very properly call the attention of parliament to it; but if it had been the purpose of the House to authorise them to examine into the constitution of the courts of Scotland, as well as into the mere details of fees, he could not help thinking that individuals of a different class would have been more properly nominated to such high, important, and extensive functions. He believed that the present was the first occasion on which the House had been required to affirm, not the report of a deputation of its own body, but the mere dictum of four out of five gentlemen in no way connected with parliament. The weight of opinion was unquestionably in favour of five instead of four judges of the exchequer; but if the noble lord were prepared with the evidence of facts to maintain his proposition—if he were able to prove that four were better than five, he (lord Castlereagh) could only say that he would afford every facility for prosecuting the inquiry. He could not agree to the present motion; on the contrary, he should move the previous question upon it; but if the noble lord thought that he could, by satisfactory evidence, prove the proposition propounded by the commission in its report, he would afford the noble lord every facility for that purpose, and would consent on a future evening to the appointment of a committee of that House to inquire into the subject. And with regard to the members of it, he would only require that fair degree of communication which had taken place regarding the royal burghs of Scotland. With the lights he at present enjoyed, the weight of testimony was in favour of what had been done; and with regard to the report of the commissioners, the House would not forget that those commissioners gave their opinion with very considerable doubt—they did not state it as a peremptory proposition, but as a cautious suggestion. The noble lord, in allusion to this part of the subject, had endeavoured to set at nought the authority of the only commissioner whose judicial experience would be to enable him to arrive at a safe conclusion. He had not the pleasure of knowing sir Hey Campbell; but he understood that he was eminently qualified, and competent to decide upon this point, independent of the matters of fees to which the attention of the commissioners was especially directed. He must protest 376 against the mode in which the question had been argued; the noble lord seemed to think that he had made out a good case in favour of four barons, if he could show that even once the business of the court had been transacted without the presence of the fifth; and because he found that one ministerial officer was a poet, he jumped at the conclusion that all the offices could be discharged as well by poets as by lawyers. In this manner it was impossible to say what office might not be abolished. It was in every one's recollection that that most distinguished luminary of the law, in modern times, lord Mansfield, had, inconsequence of severe indisposition, been absent from his high official duties for a considerable time; would it therefore have been fair to argue that the business could as well be effected by the three puisne judges, and that the office of chief justice of the court of King's Bench might be dispensed with altogether? This would be retrenchment and economy with a vengeance. When the commissioners entertained an opinion that four barons only were required, they ought surely to have gone a step further—they owed it to themselves, at least, to have examined the heads of the different courts, before they put forth their dictum which could only have the effect of embarrassing and fettering the government. As to the quantum of business, he admitted that it might be greater in England than in Scotland, but this did not show that the constitution of the two courts ought to be the same, for the cases were not analogous. The court here was subject to writs of error, and its jurisdiction was amenable to other tribunals, but in Scotland its duties were not only triple, but superior and beyond the power of appeal and revision. And here his lordship begged to be allowed to say, that of all economies abhorrent to common sense, that was the most absurd which regarded the bench—to secure the pure administration of justice, was always the best economy. The question now was, whether the country should save 2,000l. or whether it should have a court adequately constituted for the protection of the rights and property of the subject? It was really ludicrous to argue, that because only four judges were found necessary in England, that Scotland ought therefore to have no more. Still he was prepared to meet the noble lord more than halfway, by consenting to the appointment at a 377 future day of a committee of the House of Commons to investigate the subject; and if, after due inquiry, it should appear that the commissioners were right, he should be ready to follow their recommendation—he did not mean in this particular case, nor with reference to this particular appointment. Upon that he was not prepared with an opinion. He had anticipated the cheers with which this observation was received by the other side of the House. They were never so happy as when they had got some paltry thousand pounds to peck at; as soon as they had hold of a particular sum, how they rejoiced in their supposed advantage until the necessity of its payment was shown, and then they endeavoured to overcome argument by clamour! No one regretted more sincerely than he did the present distressed condition of our manufacturers, but the constituents of the noble lord were a little too enlightened to be persuaded even by him, that a poor thousand pounds would make a serious difference in their condition. It was unfair to assert, because the fifth baron might be in connexion with some individual in power, that the appointment was made from motives of favouritism; the present venerated chief baron would never have prostituted his great name and reputation to sanction such an appointment, if he had not thought the individual meritorious, and the office indispensable. The person so appointed, sir P. Murray, had, with the exception of a single twelvemonth, been for 19 or 20 years in the active discharge of the duties of the office of king's remembrancer, and was known to be eminently qualified for his new situation. As to the assertion of the noble lord that the business of the court of Exchequer, as a board of treasury was done by a deputy, the same observation might be made with reference to several other very important boards of control. He confessed his surprise at the way in which the noble lord had spoken with reference to the subject of distresses and discontent in Scotland. The noble lord had said that, if this appointment were persevered in, the consequences might be most hazardous, if not fatal; but did the noble lord seriously mean to be understood that the sum of 1,000l. would make all the difference between practical allegiance and open rebellion in Scotland? If so, then indeed this amount was of the utmost consequence. He (lord Castlereagh) had 378 every respect for commissioners and their reports; but he could not help remarking that if their suggestions were held conclusive and mandatory—if they were to be erected into judges in supreme without appeal—it would throw the whole organization and administration of the country into irremediable confusion. In the time of lord Hardwicke, it was well known that a commission had been issued to inquire into the Court of Chancery; but it was well known that the decisions of the commissioners were not final, and that the chancellor himself had drawn the voluminous decree by which the report was carried into effect. In this instance, lord Sidmouth had adopted the only course he could with propriety follow; of personal motives he could not be suspected; he had referred to the highest law authorities, and they were unanimous in favour of maintaining the ancient constitution of the court. Under such circumstances, what would have been said if he had not acted as he had done—if he had not obeyed the decision of the most competent persons, but, setting the venerable constitution of the court of Exchequer at defiance, had hung up the four remaining judges in a new and fantastical condition. By the step that had been thus taken the question was by no means placed beyond the reach of parliament; and, as he had before observed, he was prepared to meet the noble lord more than half way. In the abstract, it might be better to pay four than five barons; but without evidence the House would not decide the subject on a bare assertion in a succinct, short, and dogmatic report. Under all these circumstances, he could not consent to meet the proposition in any other way than by moving the previous question.
Mr. Tierneysaid, that he never had entertained a doubt that this was one of the motions which ministers would meet by the previous question. What course had the noble lord pursued? He had endeavoured to make people believe that ministers were a set of very ill-used gentlemen, and giving the real point in dispute the go-by, he had maintained, that his noble friend had introduced a new fangled, or to use his lordship's own most happily applied epithet, a fantastical proposition. His lordship had warned the new members to be on their guard, for if they voted with opposition they might get into great difficulties. If they supported the noble lord, they had 379 seen enough of him to-night to know that they would be in most immediate peril, for nothing could be more unsatisfactory and slighting to the whole country, to the whole distressed population, than the mode in which the noble lord had dealt with this important question. Opposition had often been accused of being incredulous, of being unwilling to put faith in the professions of economy by ministers: so help him God, he, for one, did not believe them: without imputing any improper motives, he did not believe that real practical economy was to be hoped for from them. If a proposition were brought forward for some general financial reform, then the cry on the other side was, that the whole fabric of the state was about to be overset; and if a particular practical retrenchment were suggested, the cry was, "What a fuss you are making about nothing—what a noise about one or two thousand pounds!" In fact, if ministers were credited, they were the only proper judges of what public money should be spent, and who ought to spend it. It was impossible for them to be economical—they were obliged to call in the aid of patronage and influence for their support—they existed upon it—it was the foundation of all their hopes, and they could not lose even the third part of a fifth baron of the exchequer, without some risk to their stability. They had no other chance of maintaining themselves in their places but by bolstering themselves up with all kinds of pensions, salaries, and emoluments, for which the people paid a great deal, and received nothing. Not very long since the abolition of the offices of two junior lords of the admiralty was moved—"No—it is a pitiful concern, a few paltry thousands a-year, and, above all, it breaks in upon the establishment." Thus the establishment was the strong hold, behind which ministers entrenched themselves. If any body spoke of removing the third secretary of state, or of abolishing the secretary at war, the cry was the same—"it breaks in upon the establishment:" it was very easy to call the establishment the constitution, and then woe to the man who lifted his unhallowed hand against it! The noble lord had certainly made a very subtle speech—it possessed all his wonted circuitous ingenuity, and the result must have satisfied the House, that if the noble lord's health had recently suffered, his parliamentary dexterity was as great as 380 ever. The question lay in a very narrow compass; he would just retrace the steps by which it had now arrived in the House. Six years ago, his hon. friend, the member for Waterford, moved for the appointment of commissioners "to inquire into the duties, salaries, fees, and emoluments of the several officers, clerks, and ministers of justice of the courts in Scotland." He entreated the House to remark the introduction of the word "duties," for that of itself replied to a great part of the speech of the noble lord. Every resistance was made to the proposition; but it was carried by the vote of a late master in Chancery, who conscientiously, though unexpectedly, supported the inquiry. Seven months then elapsed before the commissioners were appointed; and then it seemed to be determined that they should be of no service. The noble lord had cautioned young members not to be taken unawares; but one young member on the treasury bench (young as a member, but old in experience), the lord advocate, must have been taken by surprise when the noble lord asserted that he wanted farther information. The lord advocate had come down to the House like a true Scotchman, that was, like an honest man, and had maintained that nothing could induce him to think the appointment of a fifth baron wrong—five was the true, orthodox, infallible number in Scotland: and that no change was wanted, and no inquiry to produce one. But the noble lord wanted a committee; and why did he not propose it a few months ago? Then it might have been of some utility; then all men were perhaps not decided upon the question; but what was the conduct of the noble lord? First, he makes the appointment—then fie justifies it—and, thirdly, he requires a committee to ascertain whether it was right or wrong. It was very well for the noble lord to warn all simple country gentlemen against placing implicit confidence in the antagonists of ministers; but he (Mr. Tierney) would ask them, and others of more experience, if they ever saw in town or country, a juggler of more art and dexterity? Still, though the noble lord wanted a committee, he thought no further inquiry was necessary, and he (Mr. Tierney) thought so too, but for a different reason: he was satisfied with the report of the commissioners. The noble lord in one part of his speech had 381 termed the report "dogmatical;" and in another, with his accustomed acuteness, he had found out that it was uncertain and dubious in his phraseology. In what respect were these words dubious or uncertain—"With the exception of one of our number, we concur in thinking that live barons are more than necessary, land that the business of the exchequer might be conducted with equal advantage by four." Where was the ambiguity, or was any country gentleman quite so raw as to think that in those terms there was any thing doubtful? Next, who were the commissioners? Some of the new members, who did not know the noble lord, would really have supposed that they had been selected by the opposition side of the House; but, in truth, though abused and maligned, they had been named by the noble lord himself. Unquestionably they were men entitled to every respect, from their knowledge and integrity; and much as the noble lord had said about the Scotch Exchequer being a triple court, without appeal, and with superior jurisdiction, the real and only question was, whether there was more business than four barons could execute? That point the commissioners fully investigated, and with the single exception of Sir Hey Campbell, they were of opinion that four were enough. "But," cried the noble lord, "look at the report of the judges, the heads of the courts, to the contrary—they are the only persons competent to decide." If it had been an abstruse question of Scotch law, he (Mr. Tierney) admitted that the judges ought to be heard in preference to ordinary practitioners; but what the commissioners had decided required no deep reading—no nicety or subtilty of reasoning—it was merely whether the technical proceedings of the court could or could not be conducted by a larger or smaller number of barons. Recollecting how favourite a number five appeared to be in Scotland, and what infinite mischiefs might result from reducing it to four, it was somewhat odd that the lord-advocate should have consulted the opinions of only four heads of courts. With still greater singularity he had actually appealed from the magic and mysterious five to dangerous and neglected four, and now set up the opinion of four judges against the decision of five commissioners! If it were a fit question for the judges, why was it not put into their hands in the first instance? The lord-advocate said, that the act of Ann 382 recognized five barons; but was there no difference in the circumstances of the times? At the period of the Union, recollecting how it had in some degree been forced upon Scotland, it might not have been prudent to abridge what might, perhaps, have been considered by the natives an advantage or privilege, but which they now well knew how to look upon in its true light. Besides, was this the hour when the act of Union was to be pleaded in bar of retrenchment and political economy? The noble lord had said, let the question be tried; but the question had been tried; commissioners had already given an opinion upon it; but it was not intended by the present motion to rest here, for it was further to inquire into the grounds of the appointment. It was too much to have it said, that when the whole country were looking out for the economy and retrenchment which had been so loudly proclaimed—it was too bad, after the minister's own officers had declared this office unnecessary, to bring it forward as one which ought to be continued. But, if the office was actually as necessary as it had been alleged to be, why had it not been continued to Mr. Baron Adam?—or why was not sir P. Murray appointed at first to it? If there was any doubt on the subject, why not wait until the House had decided? Sir P. Murray had in the first instance been passed by, and another appointed to that necessary situation. Why, if the office was so necessary, had he not been permanently appointed, in the first instance? But, from the whole of the circumstances, he would ask if it was not evident that this was a plain, downright, unequivocal job? If the noble lord had for a moment attended to his former professions of economy, he himself would have thought so. The number of five seemed to have greatly pleased the high authorities in Scotland; but it was found that in all our courts here the even number of four was sufficient. And could it be said that such nice questions were argued in the exchequer court of Scotland, that a right decision could not be come to with four judges? Yet, if that were necessary, what could be more easy than to have come to the House, and brought in a bill for the appointment of a fifth judge? That, however, was not the question with the noble lord. The battle was not, that this appointment of 2,000l. a year should be spared; but the real battle was, that no retrenchment or eco- 383 nomy should at all be practised. The noble lord said, that a committee might inquire into it. But could any man conceive that, after witnesses were sent for to Scotland and examined, any thing could be done on this subject in the present session? or would any man of common sense believe that the whole proposition of the noble lord was not made for the purpose of giving the question the go-by? But the commissioners, it would seem, had made a report embarrassing to government, and their suggestion was to be set aside. The fact was, ministers dared not refuse the appointment of sir P. Murray: he did not intend by any means to disparage the qualifications of that gentleman, but ministers were afraid to refuse his appointment. They well knew, that if they had done so they would have lost some votes in that House. He had heard of a member in the Irish House of Parliament who backed an application to the treasury by saying "there are seven of us." He did not know how many there were "of us" in Scotland; but he believed it would be found that the concurrence of the noble lord had been obtained upon some such principle. He imputed no blame to the noble lord individually; it was part of the system. It might have been said, "What right have you to interfere with what we do in Scotland? This is my department; I do not interfere with the Admiralty, or the Treasury, in their appointments, and you should not interfere with mine." This, he supposed, was the language held out; and he was satisfied, if the noble lord had been left to himself, he would not have supported such an appointment as the present. But after what had passed before them—after what they had heard from the commissioners—would the House consent to such a measure? They were told to wait for inquiry. What was the use of inquiry now? They, had got all the opinions upon the subject that might be expected. They had the opinions of the chief justice—they had those of the commissioners, and, if those commissioners were properly appointed at first, what farther inquiry was necessary? Let the House, however, look at the opinions of some of those who concurred in this appointment. Let them consider their experience and knowledge of the subject. There was one, the present chief baron of Scotland, who had lately been an ornament to that House. From 384 that distinguished individual he had frequently had the misfortune to differ, though without any diminution of respect. But if ever there was an occasion in which he should with less regret be inclined to differ from him, it certainly would be on a subject upon which his mind had not been conversant. Such then was the case with sir Samuel Shepherd, as the House knew he had not held his present situation for any considerable portion of time, and it was rather too much when his authority was wanted thus to convert the scholar into the master. Sir Samuel Shepherd was one of the best natured men living. He might have been told that it was the opinion of the lord advocate that they ought to have five judges, "and you, sir Samuel, what say you? "From mere good nature, he naturally would say, "Come, by all means let us have five." The Scotch gentlemen were of a similar opinion, and little was it to be wondered at, that sir Samuel joined in the shout of "Five for ever! Five for ever!" On the one side, was an opinion without inquiry; on the other, the opinion had been given as the result of inquiry, and was, that the appointment should not be made. The noble lord had admitted the facts stated in the present motion—he could not deny them—but he had denied their inference; and what was that inference? He (Mr. Tierney) would say, that an opinion having been given on both sides, the inference ought to be in favour of the country. The country had a right to expect that the opinion of commissioners, whom they had paid for the purpose of inquiry, should at least have some weight when they recommended retrenchment. But this was not the case. It was not merely the question, that the thousand or two thousand a year should be given up, but whether any thing in the shape of economy should be allowed. The chiefs of the several courts, it was said, had given their opinion in favour of the additional baron. But they were not the best judges; and, until he saw some grounds for the assertion, that the recommendation of the commissioners ought not to be carried into effect, he could not, by his vote, support any appointment contrary to that recommendation. The noble lord, however, had got another argument in its favour, and had asked, what would become of sir Patrick Murray? Was he to lose the situation which he had been appointed to for life? He 385 (lord Castlereagh) would have them wait till the next time of appointment for this saving; and he had added that the office of chief remembrancer—one of 1,000l. a year, which sir Patrick Murray held—would fall in. But the House had a right to expect the reduction of both. The office of chief remembrancer would have been discontinued at sir Patrick Murray's death; and, instead of gaining a thousand pounds by this appointment, as the noble lord would infer, the House had a right to expect the saving of 3,000l. In conclusion, he contended that the appointment than as a job. The House might, if they pleased, approve of the plan of the noble lord; but he asked, could any man in his senses deny that the object of his proposition was, to put off the question for the present? Some members might be entrapped by that proposition; but, if they were, and voted against the present motion, there was no farther use of inquiry—there was an end of all hope of economy and retrenchment.
§ Mr. W. Dundasopposed the motion, and defended the conduct of government in the appointment. The commissioners, he observed, had, in four short lines, without any reason assigned, decided against the appointment; but the judges, who had more experience of the business of the court, and who were men of unimpeachable integrity, had approved of it, and given their reasons for that approval.
§ Lord A. Hamiltonobserved, in reference to what a noble lord had said, that he did not intend to confine his motion to the one at present before the House.
The previous question being put, "That the question be now put," the House divided: Ayes, 177; Noes, 189: Majority against lord Archibald Hamilton's motion, 12.—Whilst the division was going on, lord Castlereagh addressed the ministerial members in the lobby. He begged them to recollect that another question remained to be considered and disposed of, and a division might be expected to take place upon it. The intended proposition on the other side meant to impute blame to ministers for filling up the vacancy without having previously taken the sense of parliament upon it; that imputation appeared to him most unjust; for in his opinion it was the duty of government to fill up the office, and afterwards to submit the matter 386 to parliament, and abide their decision whether of approbation or of blame.—Lord A. Hamilton next moved, "That the vacancy occasioned in the Scotch court of exchequer by Mr. Baron Adam's resignation ought not to have been filled up until the^ report of the commissioners on Scotch courts had been considered by this House." Upon which the previous question was moved.—Mr. W, Douglas strongly supported the resolution, declaring the reluctance he felt at opposing the government with which he generally voted, and always desired to vote,—but, he added, that he had been in Scotland latety, and could bear witness to the universal feelings of surprise and reprehension excited all over the country, by the extraordinary haste shown in filling up the vacancy.—Mr. Brougham stated that the concurrence of the four chiefs in recommending five barons to be continued, merited very little attention, because of these four, three were placed in peculiar circumstances, the chief baron having only just been appointed, and the lord president being sir P. Murray's brother-in-law. He added, that in England it was a known fact, that the equity side of the court of Exchequer had never been equally divided since sir Robert Walpole's time. He asked, whether, in the event of any future vacancy of this kind occurring, it was the intention of ministers to fill it up? Lord Castlereagh said, that in such ail event his majesty's ministers could not leave the public service unprovided for. Mr. Brougham upon this, gave notice that he should, on Friday the 26th inst. submit to the House a motion on the filling up of vacancies in the Scotch jury courts.—Mr. Canning protested that the resignation of Mr. Adam, and subsequent appointment of sir P. Murray, were events wholly unexpected, and not in contemplation of the government when the bill respecting Mr. A.'s salary was spoken of last summer.—Lord A. Hamilton reminded the House that he had himself brought these matters before them last summer, in connexion with the report of the commissioners, then on the table, though not printed. To this no answer was made.—The previous question, "That the question be now put," was accordingly put, and negatived.
| List of the Minority. | |
| Acland, sir T. | Allen, John H. |
| Astley, J. D. | Althorp, viscount |
| Anson, hon. G. | Harbord, hon. Ed. |
| Anson, sir G. | Hervey, D. W. |
| Aubrey, sir John | Heathcote, G. |
| Boughey, sir J. F. | Heron, sir R. |
| Bagwell, rt. hon. W. | Hill, lord A. |
| Benett, John | Hobhouse, J. C. |
| Belgrave, viscount | Honywood, W. P. |
| Butterworth, Jos. | Hornby, E. |
| Burrell, sir C. | Hughes, W. L. |
| Bankes, Henry | Hughes, col. |
| Barham, J. F, | Jervoise, G. P. |
| Barnard, viscount | Keck, G. A. L. |
| Barrett, S. M. | Kennedy, T. F. |
| Beaumont, T. W. | King, sir John D. |
| Bennet, hon. H. G. | Legh, Thos. |
| Benyon, Benj. | Eawson, mar. |
| Bernal, Ralph | Lamb, hon. W. |
| Birch, Joseph | Lambton, J. G. |
| Brougham, H. | Lemon, sir W. |
| Burdett, sir F. | Lloyd, sir Ed. |
| Bury, viscount | Lloyd, J. M. |
| Byng, George | Lushington, Steph. |
| Bright, Henry | Maberly, John |
| Chetwynd, G. | Maberly, W. L. |
| Calvert, Nic. | Marryat, Jos. |
| Cherry, G. H. | Macdonald, J. |
| Calthorpe, hon. F. G. | Mackintosh, sir J. |
| Calcraft, John | Martin, John |
| Calcraft, J. jun. | Milbank, Mark |
| Calvert, C. | Milton, viscount |
| Campbell, hon. J. | Monck, J. B. |
| Crewe, R. S. | Moore, Peter |
| Carter, John | Moore, Abraham |
| Cavendish, Henry | Mostyn, sir T. |
| Caulfield, hon. H. | Neville, hon. R. |
| Clifton, viscount | Newport, rt. hon sir J. |
| Coke, T. W. | Newman, R. W. |
| Colburne, N. R. | Nugent, lord |
| De Crespigny, sir W. | Onslow, Arthur |
| Davenport, Davies | O'Grady, S. |
| Dawson, H. M. | Ord, Wm. |
| Davies, T. H. | Osborne, lord F. |
| Denison, Wm. | Ossulston, lord |
| Denman, Thos. | Plummer, John |
| Dundas, hon. L. | Pollen, sir John |
| Duncannon, visc. | Peel, Wm. Y. |
| Dundas, Thos. | Phillimore, Jos. |
| Evans, Wm. | Portman, E. B. |
| Ellice, Ed. | Palmer, col. |
| Fane, John | Palmer, C. F. |
| Ferrand, Robert | Pares, Thos. |
| Fellowes, W. H. | Parnell, Wm. |
| Fergusson, sir R. C. | Peirse, Henry |
| Fitzgerald, lord W. | Pelham, hon. C. |
| Fitzroy, lord C. | Philips, George |
| Fitzroy, lord J. | Philips, Geo. jun. |
| Folkestone, visc. | Ponsonby, hon, F. C. |
| Frankland, R. | Power, Rich. |
| Gaskell, B. | Powlett, hon. W. |
| Grosvenor, Thos. | Price, Rt. |
| Gordon, Robt. | Pym, Francis |
| Graham, J. R. G. | Rickford, Wm. |
| Graham, Sandford | Eamsbottom, John |
| Grenfell, Pascoe | Ramsden, J. C. |
| Guise, sir W. | Ricardo, David |
| Gurney, R. H. | Ridley, sir M. W. |
| Haldimand, W. | Robarts, A. |
| Robarts, G. | Tremayne, J. H. |
| Robinson, sir G. | Tulk, C. A. |
| Rowley, sir W. | Townshend, lord C. |
| Rumbold, C. | Tavistock, marq. |
| Russell, lord J. | Taylor, C. |
| Russell, lord G. W. | Tierney, right hon. G. |
| Sebright, sir J. | Wynn, sir W. |
| Spooner, R. | Wynn, C. W. |
| Staunton, sir G. | Wodehouse, E. |
| Scott, J. | Whitmore, W. |
| Smith, Abel | Williams, sir R. |
| Smith, Robert | Webbe, Ed. |
| Smith, John | Whitbread, W. H. |
| Smith, hon. Robt. | Whitbread, S. C. |
| Smith, Saml. | Wilkins, Walter |
| Smith, Wm. | Williams, W. |
| Scarlett, James | Wilson, sir Robt. |
| Sefton, earl | Winnington, sir T. |
| Stanley, lord | Wood, alderman |
| Stewart, Wm. | Wyvill, M. |
| Stuart, lord J. | TELLERS. |
| Sykes, Dan. | Hamilton, lord A. |
| Spurrier, C. | Abercromby, hon. J. |