trusted the House would bear with him, as the task of explaining the provisions of this Bill had been confided to him, in consequence of the absence of the learned Lord Advocate for Scotland, while he made a few observations. The 152 Bill had been in the Order-book for a long time, without the possibility of having it discussed; and he regretted to observe on the other side of the House, something like a suspicion that it was the wish of the Government to pass the Bill without discussion. That was not the case; on the contrary, those who supported the Bill desired nothing so much as that its merits should be well understood. The Court to which this Bill referred—the Court of Exchequer in Scotland, had, for a long period, and up to a very short time since, been composed of five Barons—one Chief Baron, and four Puisne Barons. A Committee, which was appointed some time since, on the motion of his right hon. friend, the member for Waterford, recommended that the number should be reduced to four; a struggle to avoid this reduction took place, but in course of time the number of Judges was reduced to four, namely, one Chief and three Puisne Barons; and subsequently, at a much more recent period, in the year 1830, the total number of Judges was to be reduced to two, namely, one Chief and one Puisne Baron; that was to say, when vacancies occurred they were not to be filled up, and they would not make the Judges of the Court above that number. Such seemed to have been the progress of opinion as to the propriety of reducing the number of Barons composing this Court, and now another era in its history arose, when it was justly conceived, that the business brought before it was not of sufficient magnitude to justify its continuance even on these principles. He would state what was the object, and what were the leading provisions of this Bill; the Court at present consisted of a Chief Baron and two Puisne Barons, because, owing to the unfortunate decease of a member of that Court, a vacancy had taken place, which, by the Act of 1830, could not be filled up. When another vacancy occurred, the number of Judges in the Court would be reduced to the amount fixed by the Statute of 1830. The Bill now on the Table of the House proposed that it should be in the power of all or any of the members of the Court to discharge the duties now vested in the whole Court. But in the event of the death or retirement of the Chief Baron and remaining Puisne Baron, it was provided that the duties of the Court should, in all respects, be performed by a Judge of the Court of Session, who should be appointed 153 to discharge all the functions of the Court as it now existed. The effect, therefore, of this measure, would not be to produce a large saving to the public in the first instance, as well as in the result, which would be the abolition of the Court, and the consequent saving of the expenses of the Chief Baron and the one remaining Puisne Baron. He would now briefly state the duties of the Court, and the amount and nature of the business which had recently been performed. The duties of the Court of Exchequer might be divided into two parts, the first consisted of the official duties belonging to the Court, and which related to the revenue of the country. Most of these were questions more of form than of substance, being chiefly undefended causes. From Returns which he held in his hand, and which might be relied upon, he would state to the House the number of cases which were tried in the Court of Exchequer, during the years 1827, 1828, and 1829, those being the three last years of the time during which the late Chief Baron presided in that Court. There were three Terms in the Court—in Candlemas Term there were no defended causes, and five undefended; in the next Term none defended, and nine undefended, in the summer Term one defended and eight undefended. In the course of the next year there were one defended and eighteen undefended; and in 1829 there were two defended, and thirteen undefended; so that, in the course of these three years, there were four defended, and fifty-three undefended causes, making a total of fifty-seven causes. And during the period which had elapsed since the retirement of the late Lord Chief Baron, and during the time that his right hon. friend, Baron Abercromby, had presided in that Court, which, might be stated at eighteen months, there had been one defended cause. So much, therefore, as to the extent of judicial business; he did not mean to say, that these undefended causes did not come into Court—on the contrary, one or two witnesses were generally examined on the part of the Crown; but what he meant to say was, that no party came to resist the decision of the Court, which was founded on the evidence which it was absolutely necessary for it to take. There was another department of the business of the Court, which consisted in hearing the arguments of counsel on points of law, when they arose: within the last eighteen 154 months there had been one of these arguments, which occupied about an hour. This was all the judicial business of this Court—the remaining part of its duties consisted of Treasury business, connected with the taxes in various departments. These suits were, as in England, frequently settled out of Court; but there were some appeals brought before the Barons of the Exchequer, which were despatched by them with great facility, and therefore did not require any material consideration. An Act was passed at the instance of an hon. Gentleman on the opposite side of the House, in relation to the corporation rights, with a view to enable trustees to bring their cases before the Court of Exchequer, but which had not had the effect of preventing the existence of many abuses and great malversation. He did not mean to say, that the jurisdiction was not properly exercised; he merely stated the advantages which were taken of it. Indeed, it was not necessary that this expensive Court should be preserved on that ground. Another part of the business of the Court, related to deeds connected with charters, rights of property in Scotland, and superiorities, of which they had heard so much in that House: this jurisdiction must be exercised somewhere or other, undoubtedly. Now this department of the business had, for some time past, occupied the Court of Exchequer about six hours in each Term. Of course, every reform which had altered these privileges had greatly diminished the extent of this branch of the business; and there could be no difficulty, therefore, in this part of the duty being performed by Judges in whom it was proposed to vest the duties of the Court of Exchequer. The expenditure in Scotland by the Sheriffs, had been hitherto discharged from the revenue of Scotland, and supplied from the general revenue of the country. It was now settled that this sum—about 6,000l. a-year—should be voted by Parliament on the estimates, and it certainly would be a very unfit thing that individuals, sitting as Judges, should be called upon to determine matters connected with a sum of money which was afterwards to receive the consideration of this House; and, therefore, this expenditure would not again be brought under the consideration of the Court of Exchequer. The Treasury business was, in the first instance, substantially conducted by the King's Remembrancer. Under this es- 155 tablishment the amount of the expense that was incurred was known. The establishment was very efficient, but still there were irremediable evils arising from the present system, and the whole of the superintending duty, whether the Court were abolished or not, ought to be put under the direction of the Board of Treasury in London; there surely could be no necessity, when that Board existed, for sustaining the expense of this establishment. The judicial business of this Court had been managed according to the English law. Until lately, there had been four solicitors, or attornies practising in this Court, but in consequence of the death of one of these individuals, the number was reduced to three, and there was no individual rising to succeed these three gentlemen, who, in the ordinary course of nature, must soon cease to practise. Such was the state of this Court as it was left by the Act which was passed in the year 1830. Two courses were left open for the adoption of his Majesty's late Government with respect to this establishment; either to super add to it such functions as seemed to accord well with the character of the individuals placed in it for life, as no doubt they were, like any other Judges; or if it was thought unfit to do so, it was for Parliament to decide whether the Court ought not to be put an end to. He did not mean to disparage the individuals presiding in this Court, but if the Court of Session could discharge the whole of the duties of the Court of Exchequer, and if the Judges of that Court were to retire, there might be a saving of the whole expense of the Court. Various objections to this measure would be brought forward; it had been thought necessary to have an English Baron to interpret British Acts of Parliament, which Scotch lawyers were not supposed to understand; but by the sixth report of the Commissioners appointed to inquire into this subject, it was declared, that it was no longer necessary or requisite to keep up the office of the English Baron. Their report contained this recommendation:—'With the exception of one of 'our members we concur in thinking five 'Barons are entirely unnecessary, and 'that the business might be conducted by 'four, as it is in the Court of Exchequer in England, without adding to the labour of the Judges.' In the year 1820, my Lord Sid mouth had been desirous of ascertaining 156 whether it was possible to comply with this recommendation, and, accordingly an inquiry was directed to be made as to the propriety of carrying this recommendation into effect; arid in 1820 a report was made, stating that it was deemed by the heads of all the Courts in Scotland, quite impossible to conduct the business of the Court of Exchequer without five Barons: this was stated in the strongest and most decisive terms. No reduction in the number of the Judges, therefore, was made for some time afterwards, but in the year 1830—he would call the attention of the House to this circumstance, in reference to the charge which had been made against the present Government, of acting without inquiry—in the year 1830, up came the right hon. Baronet, and, contrary to this strong recommendation, proposed to the House a measure by which one half of the Court would be lopped off at once, and without inquiry. He did not mean to say that the matter was not maturely considered, but merely mentioned the fact, because it afforded a complete answer to any charge that might be made against his Majesty's Government, on the ground of proceeding without inquiry. He hoped hon. Members would not endeavour to excite any sympathy in the mind of the House in favour of this Court, on the ground of its being one of the ancient institutions of Scotland, because it was an English Court, for which the Scotch had never had any peculiar love; and its constitution was changed in the year 1830 without inquiry, which was a strong argument to shew that his Majesty's Government might have considered the effect of this measure before bringing it forward. When a member of this Court chose to resign, an individual would be selected from the jurisdiction to which he had adverted, who would be called upon, by a special commission, to discharge the duties of the office. This Bill originated in the other House of Parliament, in which bills for amending the judicial establishment were wont to originate: it had passed the House of Lords without objection, alteration, or comment, and it was now recommended to this House for its consideration.
§ Question put that the Bill be now read a second time.
§ Sir William Rae
was aware that another opportunity would be afforded for a more ample discussion of this measure; but he would take this opportunity 157 of saying, that he Lad no fault to find with the statement of the hon. and learned Gentleman opposite, as far as it went: because, as far as he had explained the objects of the Bill, he had done so fairly and satisfactorily; but there were some words in the preamble of the Bill which certainly had excited his attention, and which would not have been inserted there unless they referred to something not now in the Bill, or to something hereafter to take place. The words were, That it is expedient that provisions should be made for facilitating the retirement of the Barons. He did not exactly understand what was meant by these words; no doubt the noble Lord, the Chancellor of the Exchequer, would be able to give some explanation of this passage. Before they proceeded to discuss the principle of the Bill, it was important that the meaning of these words should be correctly understood.
§ Lord Althorp
said, the right hon. Gentleman having asked the meaning of these words, he would beg to give him the information which he desired —under; the existing law, any Baron of the Court of Exchequer, who had held his office for fifteen years, was entitled to a certain proportion of his emoluments, by way of retiring pension. The object of this Bill was, entirely to do away with this. The Judges who at present presided in that Court had their pensions taken away, and therefore, until they chose to retire, they would have a right to the whole of the salary attached to their office. With respect to the Senior Barons, who had for a very considerable time held these offices, it was proposed to give them the option of retiring on three-fourths of their salary. With regard to the Lord Chief Baron, however, who had been a much shorter time in office, it was proposed, by way of holding out an inducement to him to retire, that he should have the option of receiving one- half of his salary, as a retiring pension. Thus the saving to the country would be one-half of the Lord Chief Baron's income, and one-fourth of the salaries of each of the other Barons. It was true the present Lord Chief Baron had been in office but a very short time; but as the office was granted to him for life, he would of course retain it, if he should not consent to his arrangement. With respect to his appointment in the first instance, he should not do justice to 158 his own feelings, or to those of the Lord Chief Baron himself, if he did not say that the appointment of his right hon. friend to that office did great credit to his Majesty's Ministers, and that it had been fully justified by his conduct and talent. It was certainly very much owing to his representations, that the existing state of the Court of Exchequer had been taken into consideration; and, therefore, it would be quite contrary to all the principles on which the Government of this country proceeded, to deprive a Judge of his office, without giving him some compensation for the loss of it. This was the state of the case; and he trusted the House would think that the circumstances warranted this proceeding.
said, the principle on which they were proceeding was the most extraordinary he had ever heard of in his life. His hon. and learned friend had given quite sufficient reason to justify the abolition of this Court three years ago; he had stated, that during the three last years there were only four causes, and yet when he (Mr. Hume) strongly urged that on the House two years ago, he was met by assertions that the Court could not be done away with. What did they do only one year ago? They increased this Court, by placing in it a very fit and competent man, no doubt, but so far from his Majesty's Government receiving any credit for that appointment, which the noble Lord appeared to think they deserved, he (Mr. Hume) condemned it at once, and called it a job, a rank job, for some purpose or other, and if it were done for the purpose of obtaining the support of any nobleman for the Ministry, it was an abominable proceeding, it had been held that, a Judge who was appointed for life should not be removed so long; as he conducted himself properly, and while no complaint was made of him; but were the people of England to be told, that, a Judge who had been one year and a-half in office was to receive, a pension of 2,000l. a-year? This gentleman had not been in office more than a year and a-half, and yet he was to be put down in the Pension list for 2,000l. a-year, at a time, too, when they ought to economise. This was a most objectionable proceeding; this Bill came down from the House of Lords without explanation, and they were to be told now at the last moment—at the eleventh hour—what it proposed to do. Why was not this Court abolished at 159 once? Why were they to have any of these half-and-half measures? Why go beating about the bush in this way? There were now two legal Bills in progress; one had for its object the abolition of a Court, the other the establishment of one: why should not the Lord Chief Baron of the Court of Exchequer preside at the head of the new Bankruptcy Court? Surely, it would be no degradation to him? He would take the office after the Lord Chancellor: and, upon principle, this would be the most likely way of doing justice to all parties. What was there in the Bankruptcy Court for four Judges to do? Why could not three be dispensed with, and the Lord Chief Baron of Scotland preside in the Court? He could not be incompetent to fill the office; for he was for many years a Commissioner of Bankrupts, and was well acquainted with English law. Why, the office was just fitted for him. It would be much better to bring in a Bill to abolish the Court of Exchequer at once. With regard to the other Judges, if they could not be made useful, let them have the retired allowance in consequence of their long-services; but the idea that the Chief Baron, who had been only fifteen months in office, should receive a pension of 2,000l. a-year, was monstrous, and he hoped the proposition was one which the House of Commons would never consent to. Some alteration, therefore, should be made in this Bill in Committee, and the services of the Judges should be made available elsewhere, instead of placing them on the Pension-list. If the Chief Baron were made the Judge in bankruptcy, the country would save 1,000l. a-year, or, if desirable, give him 4,000l. a-year; but really, to talk of four Judges in bankruptcy appeared to him to be quite absurd.
§ Mr. Robert Ferguson
expected nothing but opposition from the hon. member for Middlesex in questions of this nature; yet he was surprised at the observations he had made. How could he call the saving of 2,000l. a-year in one instance a job? If there was a man in England who would scorn the insinuation of jobbing, it was the present Lord Chief Baron of Scotland. During the last Administration, his right hon. friend, the member for Bute, obtained the appointment of a Committee to inquire into this subject, but it was ultimately agreed that the Court of Exchequer should remain as it was. In progress of time, however, it had been reduced to a Chief 160 Baron, and one Puisne Baron, His hon. and learned friend, in agreeing to this arrangement, acted with the greatest honour and propriety, because he cut down that which his long services and high station so justly entitled him to. During the former Administration there occurred a vacancy, and he had always viewed with the greatest satisfaction the course adopted by the noble Duke at the head of his Majesty's Government at that time. He well knew the merits of the right hon. Gentleman in question—he recollected the political events which had thrown him out of public life—he remembered well his merits, and he sent to him and offered him the appointment. This was a most honourable trait in the character of his Grace the Duke of Wellington. The present Lord Chief Baron accepted the office, and he went down to Scotland, considering it as a permanent situation, with 4,000l. a-year; of course he had ascertained that, before he consented to fill the office. Upon that conviction he expended a considerable sum in purchasing a house, and furnishing it from top to bottom. He soon discovered that the Court afforded him hardly anything to do, and then, instead of contentedly receiving this large salary, and doing nothing for it, he was the first to give an opinion in favour of merging that Court in the Court of Session. He knew that it was sacrificing 4,000l. a-year, but his virtuous mind could not brook the idea of its being kept up as a separate Court, merely on account of his personal interest, and, therefore, he gave the advice he did with respect to it. There was no man to whose acts the term jobbing was less applicable. He was almost inclined to beg the Government not to propose giving him a farthing, but to appeal to a vote of the House on his conduct.
§ Sir George Warrender
had not made up his mind as to whether the Court was not useful, or might not be made so, by having additional business thrown into it. He had suggested, on a former occasion, that the duties of the Admiralty Court, and of the Commissary Court, should be transferred to the Court now proposed to be abolished, which would have been much better than transferring them to the Court of Session. These suggestions arose out of a correspondence he had, not only with lawyers in Scotland, well acquainted with the practice of the different Courts, but with high authorities there, and, had those 161 suggestions been adopted, there would have been an ample share of duty allotted to that Court. Undoubtedly, at present, its duties were chiefly executed by the King's Remembrancer, a most active and intelligent Officer, who, he expected, would be continued in the exercise of his functions. They ought not, however, at once to abolish this Court without inquiry into the possibility of making it efficient, and thus save the public the payment of a pension of this magnitude. He fully concurred in what was said by the hon. and learned member for Kirkcudbright, with regard to the right hon. Baronet below him.
§ Sir William Rae
was a little surprised when he heard of the bringing in of this Bill, and recollected that it was not more than a year since the appointment now proposed to be done away with was made; and still more was he surprised when he found that this was a Bill relating merely to one Court; and that its preamble did not even profess to improve the Administration of Justice, but merely to save expense. He should have expected, too, that a Bill of this kind would have been brought forward by the Lord Advocate. His absence was to be regretted as they should have heard from him the nature of the inquiries he made previous to deciding upon the abolition of this Court. He (Sir William Rae) had made inquiries before him, when the question was simply as to a reduction in the number of the Judges. Now this was a much more important question, for it related to the entire abolition of the whole Court, He doubted the Lord Advocate's having made inquiries similar to his; but, at any rate, they ought to have had some information upon which to go, so that they might have been satisfied, first, that the Court ought to be abolished; and secondly, that its duties would be advantageously discharged by their being allotted in the manner proposed by the Bill. His hon. friend opposite represented the Court of Exchequer as one of very recent origin; but the fact was, that the report of the Commissioners who investigated the Courts of Justice in Scotland, stated that it was not known at what period it was established. It was obvious, that some Court of the kind must have existed from the beginning of the Monarchy, and there were documents extant in the Court of Exchequer, bearing date 1300. From that period, up to the time of the Union, the Court of Exchequer 162 continued to be a useful Court; and to shew the regard our ancestors had for it, the nineteenth article of the Union provided that it should have the same powers as the Court of Exchequer in England. From the time of the Union to the present day, no one had ever dreamt of its abolition. With respect to its Juries, they were set forth at great length in the report to which he alluded, but they were briefly these. The Court tried at the bar all cases of offences against the revenue by a Jury; it decided all questions of law arising out of a special verdict, besides which, all questions in which the revenue was concerned were liable to come from the other Courts; and all cases of dispute with regard to the assessed taxes, the appeal went to the Barons of the Exchequer; they examined Sheriffs' accounts, and performed a variety of other duties of that description. The number of cases on the paper of the Court of Exchequer in 1815 was 103; in 1816, ninety-seven; and in 1817, 100. The number of cases tried at bar in 1816, were forty-three; in 1817, sixty-six; and so they went on increasing for several years, till they reached an average of ninety-eight. He should like to have had returns of the other duties performed by the Court of Exchequer, for it appeared extraordinary that this Court, which, at the Union, was declared to be necessary when the whole receipt of Customs did not exceed 35,000l., should now be declared unnecessary, when the revenue of Scotland was above 5,000,000l. The hon. member for Middlesex thought it his duty, several years ago, to call for various returns connected with the Court of Exchequer. His motion created alarm in the Commissioners of the Revenue, and the result was, a complete change in their arrangements; and, among other things, it put an end to the system of compounding for offences, which had led to great abuses. Having no interest in this question, he hoped the noble Lord would not put him in the situation of a party opposed to the Lord Chancellor; he opposed this Bill purely because he did not think that an ancient Court should be so unceremoniously abolished without inquiry, and because he was confident that, were proper means taken, an abundant share of business might be found for it. There was one practice of this Court which would meet with the approbation of the House. Where men were too poor to employ counsel, the Judge, with the greatest 163 anxiety, acted the part of counsel for them, watched every part of the proceedings, and if the evidence was not complete against the defendants, directed the Jury to find for them. But if a Chief Baron of the Exchequer was not wanted in Scotland, why was one wanted in England? Why was not the Chief Baron set aside here? Because every one felt that the Court of Exchequer ought to be confided to the ablest and most dignified hands. Whatever might be said to the contrary, he was quite satisfied that the people of Scotland were attached to the ancient Exchequer Court of that country; and would regard its demolition in any other than a favourable light. It was necessary for the Government to institute further inquiries before they proceeded to take a step which would be unpopular in Scotland. A bill for making some alterations in the practice of the Scotch Court of Exchequer, was introduced into this House in June, 1830. He regretted that the hon. member for Middlesex did not make it his duty to attend at that time, and state his objections to the Court. The constitution of the Court was then brought fully under the consideration of Parliament; and the opportunity would have been a proper and a convenient one for the hon. Member to have raised his objections, but he was silent. The present Lord Chancellor, however, at that time a Member of this House, went through all the clauses of the Bill then proposed, and discussed every part of it. Having done so, he (Sir W. Rae) appealed to the House to say whether he did not pronounce the measure then under the consideration of Parliament perfectly satisfactory. It would be remembered, that the Bill was passed in July, 1830; in the November following he left office; but he had previously been at the pains to communicate with the present Lord Chief Baron of Scotland, upon the subject of the Exchequer Court; and, in reply, he received a letter from him, in which he did not throw out one single suggestion as to the propriety of abolishing that Court. The present Chief Baron of England, too, at that time Lord Chancellor, approved of the Bill introduced in 1830, and lent his aid to carry it through Parliament as a proper measure. All these persons, as well as the majority of the Members of this House who were present during the discussion of the measure of 1830, concurred in the 164 statements which were made, and were of opinion that the Courts of Scotland would, by that measure, be placed upon their proper footing. He felt bound to make these observations, to explain the course which he took while he was in office. The Government of that day chose to place confidence in him as their officer. No bills upon the subject of the Scotch law or the Scotch Courts of Justice were brought into this or the other House of Parliament without his knowledge. Whatever he proposed as an amendment of that law, or as a judicious reform of those Courts, was accepted by the Government, and measures were introduced accordingly. Thus he abolished the Jury Court, the Court of Admiralty, and the Consistorial Court, imposed heavier duties on the Court of Session, yet deprived it, as well as the Court of Exchequer, of two Judges each, effecting by all these measures a saving to the public of 23,000l, a-year. Such a course of proceeding on his part, during the short time that he was in office, might satisfy the House, that if he thought the abolition of the Court of Exchequer would have done good, he should not have hesitated to have come down to Parliament with a Bill to abolish it. The day for patronage was gone by, and the late Government had certainly no greater regard for it than the present. If they abolished the Court of Exchequer, in what way were its various and important duties to be performed? It was proposed to vest them all in one Puisne Judge of the Court of Session. That was a most objectionable proposition. At this moment there was not in the Court of Session a single Judge who ever was present at a trial in the Court of Exchequer, or ever saw any part of the proceedings there. It was vain to suppose, then, that a Judge from the Court of Session could properly be appointed to perform the duties of the Court of Exchequer. Would he be able to direct a Jury? Where Juries were impanelled, it was necessary that they should be properly charged. A Judge from the Court of Session would be utterly incapable of performing that important duty. There was not at this moment in that Court a single Judge who would undertake to do it. It was true, that where money was in the case, men would undertake to do anything; but certainly no man of character and reputation in the Court of Session would undertake the perform- 165 ance of this duty. But, putting this out of the question, how would the Court of Session be able to spare one of its Judges to attend to the business of the Court of Exchequer? By the measures which he introduced and carried through Parliament, the whole of the business of the Admiralty and Consistorial Courts had been thrown upon the Court of Session, the number of whose Judges had, at the same time, been reduced. The result of all this was, that, that Court had now so much business pressing upon it, as to render it perfectly incapable of performing more. Were they then to take away one of its Judges, and to impose upon him the performance of duties of which he knew nothing? As far as he was at present informed, therefore, and as far as his own experience of the practice of the Courts of Law in Scotland enabled him to form an opinion, he was decidedly opposed to the provisions of this Bill. If it could be shewn that expense would be saved, and the administration of justice equally well administered, by the abolition of the Court of Exchequer, he should be perfectly ready to acquiesce in it, but further inquiry was necessary to bring anything like conviction to his mind upon that point. At present the Court of Exchequer was highly useful. It had existed in Scotland from the earliest ages, and had always performed its duties in a satisfactory manner. Was this Court then to be abolished? He felt the more anxious upon this point, because he expected if this measure were carried, that other changes in the judicial establishment would be proposed. He had heard that certain changes were in contemplation with respect to the Court of Session, and the Sheriff's Court, which every Scotchman would admit were most valuable. When these things were attempted, it was necessary that the friends of existing institutions, which, after long experience, had been found to work well, should make a stand and demand of the right hon. Gentlemen opposite that they should not abolish these old institutions until they had first ascertained that their duties could be more satisfactorily performed in a different manner. In all other instances in which changes had been proposed in the judicature of Scotland, commissions had been appointed to ascertain how far they could be made with propriety. In 1808, 1826, and 1827, Commissions composed of the most emi- 166 nent lawyers of the day, were sent clown to institute inquiries before changes were made. In short the practice had been universal. Why, then, should it be departed from in this instance? If the noble Lord pressed this measure, without inquiry, he would be acting most disrespectully towards Scotland, and at the same time holding the former practice of this House in utter derision.
§ Mr. John Campbell
heartily approved of this measure in all its parts. He was totally unconnected with the Government, and acted in the exercise of his independent judgment. His vote upon this occasion would certainly be disinterested, because the office of Chief Baron of the Court of Exchequer in Scotland was one which he was by law competent to hold, and the duties of which, perhaps, without overweening confidence, he might consider himself not unqualified to discharge; and it would undoubtedly be very agreeable if, in his old age, he should be appointed to an office which, with a salary of 4,000l. a-year, would impose upon him no further trouble than to dispose of five cases in four years. That would indeed be otium cum dignitate. The Bill had been opposed by the hon. Gentlemen on the other side of the House upon very inconsistent grounds. The hon. member for Middlesex said, that the Court of Exchequer of Scotland ought to be abolished, not by gradual measures, but immediately and at once; and he maintained, that the allowing it to remain by the bill of 1830 was a gross job. With that point, however, the House had now nothing to do. They must consider, not what ought to have been done in 1830, but what they were bound to do in 1831. In reference, however, to what the hon. member for Middlesex had said, against the impolicy of a gradual abolition of this Court, when it was possible to get rid of it at once, he would merely observe, that on financial grounds, its gradual would be better than its immediate abolition—for if they abolished it at once, they must be at the expense of retiring salaries to the Judges, in addition to the salary of the new Judge whom they would appoint. The right hon. Baronet who had addressed the House in opposition to this measure, had mistaken several material points. Undoubtedly, he had strong Scottish prejudices—they had been particularly manifested by the manner in which he had alluded to the Attorney 167 General, whom he suspected of having swollen the number of informations, for the purpose of increasing his own fees. Had the right hon. Gentleman been more aware of the practice in England, such an idea would never have entered into his honourable mind. The right hon. Gentleman had said much about an insult to Scotland, and a violation of the Articles of the Act of Union, by the abolition of the Court of Exchequer. If there was any truth in that argument, the right hon. Gentleman had himself been guilty of both the crimes which he now seemed to view with so patriotic a horror. By the 19th Article of the Act of Union it was expressly enacted, that the Court of Admiralty should remain, yet the right hon. Gentleman himself brought in a bill to abolish that ancient Court. That he was guilty of a violation of the Act of Union, therefore, could not be doubted; and, according to his own argument, he at the same time grossly insulted his native country. He (Mr. John Campbell), however, was grateful to him for the beneficial measures which he proposed and carried in the year 1830; and he only regretted that among them was not included the abolition of the Court of Exchequer. But the right hon. Gentleman said that the people of Scotland were attached to that Court. They were strongly attached to its offices and salaries, but to nothing more; and when the right hon. Gentleman was introducing so many sweeping measures with respect to other branches of the Scotch judicature, he might very reasonably have found courage to lop off this its most useless limb. My Lord Tenterden, in half an hour at Guildhall, disposed of more business than the five Barons of the Scotch Court of Exchequer did in four years. It was an insult to the country to continue such a Court. Its offices were mere sinecures. It was not very probable that the business of the Court would increase, and there was not sufficient now to give moderate occupation to one of the Judges of the Court; therefore, it ought to be entirely abolished. The right hon. Baronet (Sir William Rae) said, that this Court had existed from time immemorial, and therefore ought to continue to exist. The Court was established to meet certain exigencies, but if these no longer existed, and it could, without detriment to the public service, be taken away, he saw no possible reason why it should be kept up. The right hon. 168 Baronet said, that the Court of Exchequer in England did very little business, and ought, on the same ground, to have been abolished. But the cases were essentially different. The House was aware, that formerly most actions were tried in the Courts of King's Bench and Common Pleas, and but comparatively few in the Court of Exchequer: since, however, Lord Lyndhurst had become the Lord Chief Baron of that Court, and the right to practise in it had been thrown open to all attornies, instead of being confined to six, it had become one of the most efficient Courts in Westminster Hall. But in the Court of Exchequer in Scotland, the business never could be increased, for private actions could not be tried in it. Nor was there any occasion to transfer to it a share of the business of any other Court. There were no arrears in the Court of Session, which, with its two Chambers, was amply sufficient to transact all the civil business of Scotland. The right hon. Baronet alluded to the Court of Exchequer in Ireland, but that was not merely a Court of Revenue, but it was the greatest Common-law Court in that country, for more actions were tried there than in the King's Bench and Common Pleas together; there was also nearly as much Equity business as there was before the Lord Chancellor. This Scotch Court of Exchequer reminded him of Mr. Burke's description of the Board of Trade—a place in which uninterrupted tranquillity prevailed. The hon. member for Middlesex thought that it was most unreasonable that Mr. Abercromby should have a retiring salary. Now, surely nobody would deny that that gentleman had a freehold in his office, and no one could blame him for receiving his salary, for the office was now his as long as he chose to continue to discharge the duties of it. If the hon. Gentleman thought it necessary to censure, he ought to blame the late Government, who bestowed the office on Mr. Abercromby, when perhaps they ought to have abolished it. It must be recollected that Mr. Abercromby gave up all his practice at the English Bar when he accepted this office, and to which there was a salary annexed of 4,000l. a-year, and it was absurd to suppose that they could, without doing an act of injustice, abolish his office without giving him compensation. If this Bill were thrown out, they would do the public no good, but they had 169 an opportunity of making a considerable saving by passing it. In this instance it was proposed to give the Chief Baron one-half, and the Puisne Baron two-thirds of their salaries; but when the Welsh Judgeships were abolished, the whole of their salaries were allowed to them for life, and no opposition was made to that arrangement. Two of these gentlemen did not receive compensation, in consequence of having entered into an understanding when they accepted office, that compensation should not be given them. This case was, however, essentially different; and as it was obvious that Mr. Abercromby never could return to the Bar, he was entitled to an ample retiring salary. He could not be blamed for renouncing a sinecure with 4,000l. a year for a sinecure with 2,000l. But what weighed most with the hon. Member was, that by this Bill Scotland would be freed from the mockery and the scandal of Judges, in their flowing robes and great wigs, taking their seats daily on the bench of justice, and immediately rising because they had nothing to do. An avowed sinecure might be endured; but the holder of an office with ostensible and no actual duties, obtained money on false pretences, and was in danger of incurring odium himself, and of bringing into discredit the institutions of the country.
§ Sir George Clerk
must protest against this measure for abolishing one of the most ancient Courts of Judicature in Scotland. He was quite at a loss to understand how the hon. and learned Member who had just sat down could have fallen into such incomprehensible mistakes on the question before the House. His surprise was the greater when he recollected the deservedly high character the hon. and learned Gentleman bore for his great legal attainments and extensive knowledge. Considering these circumstances, he ought to have made himself better acquainted with the duties performed by the Judges of these Courts. He was ready to admit that the Court of Exchequer in Scotland was confined to the adjudication of revenue cases, and not, as the same Courts in England and Ireland, open to the trial of all other cases. He did not know what authority the hon. member for Ayr had for making the assertions he had that night made, relative to the administration of justice in this Court, and in support of this measure, which was to make most important alterations in the constitution of 170 one of the most ancient Courts of Justice in Scotland. He protested against being called upon to assent, to any measure of such importance, without ample time being given for its consideration, both by the public and Parliament. The hon. and learned Member said, that he spoke from authority, in declaring that not more than a very few unimportant trials took place in this Court in the course of the year. This was not the case, but the question was whether the Court was advantageous for the administration of justice? This Bill was brought forward by the Lord Chancellor in another place, and it was supported by the Government, but not a single member of the Administration, except that noble and learned Lord, seemed to know anything about the matter. The hon. and learned Gentleman who spoke last seemed to be in the same predicament, and to know just as little of this Bill. His right hon. friend, with his usual ability, had made apparent the very great difficulties that might arise from adopting the course now pointed out. It was clear, too, that, the account given by his right hon. friend of the business of the Court was so very different from that made by the hon. Member, that they must have been obtained from different sources; this, at least, was a proof of the necessity of further information before they proceeded to legislate upon a subject of such importance. Hon. Gentlemen might attach little consequence to revenue cases, but did they remember what a vast variety of suits they comprised, and what important results depended upon them? The hon. Member said, "that the Court, was not mentioned in the Act of Union with Scotland;" and that, therefore, there could be no objection on this ground to make any alterations in its constitution, and that this was not the case with the Court of Admiralty, which was abolished on the recommendation of his right hon. friend now near him. But the hon. and learned Gentleman forgot that all the duties performed by the Admiralty Court were transferred to the Sheriffs' Court, where the questions could be decided with equal satisfaction to the parties, and at less cost. The noble Lord said that evening, that this measure was of a pressing nature, and therefore must come on before the West-India Question. He was at a loss to understand what there could, by any possibility, be of a pressing nature in this 171 Bill; he recollected that the Lord Chief Baron was to be one of the departmental Gentlemen for the Reform Bill. It was, therefore desirable to relieve that learned and able Judge from his other duties, and also to settle a comfortable salary upon him, before they sent him on his riding commission over the country. Considerable discretionary power was allowed to this Court in the administration of the revenue laws, and it was obviously a power upon which it was necessary to exercise great judgment; before, therefore, they abolished the Court, they ought to take effectual steps to prevent the administration of the law being affected by it. The noble Lord must recollect the celebrated motion of the present Lord Chancellor, then Mr. Brougham, with reference to the administration of the revenue laws which would go a considerable way in opposition to the present measure. He perfectly agreed that one of the Judges might be taken from the Court of Session to try these cases, but he denied the expediency of doing so. His decided opinion was, that the present measure was nothing but a job, and he would point out some few particulars to the House, which would induce them to agree with him. The case of the Welsh Judges had been referred to, but it must be remembered that that was a decided improvement in the administration of the law, which the country absolutely called for; and those Judges recently appointed were not pensioned off. In this case, however, without any apparent reason, a reduction was to be made nominally, but the public were to be charged with three-fourths of the retiring salaries of the Judges. The Chief Baron was to have half his salary, although he had been scarcely eighteen months in office. Thus with a salary of 2,000l. a-year, the learned Judge would be enabled to travel about as a Parliamentary Commissioner. He did not know whether provision was to be made in the Scotch Reform Bill for the two Puisne Barons of the Scotch Exchequer. If they were not to be inserted in the Scotch Reform Bill, doubtless there was some other snug job in petto for them. The retiring salary, however, of 2,000l. a-year, with nothing to do, would satisfy them doubtless, and especially when accompanied with a hope that they would be partakers in some of the good things bestowed so liberally by the present Government. All that had been said 172 on the other side of the House had had reference to the salaries—the suitors had not been consulted as to the abolition of this Court—and not a word had been said as to the questions of importance decided in this Court. These, however, were considerations of at least equal importance, when they were discussing a measure as to the constitution of a Court of Justice. The noble Lord proposed to throw all the additional duties on the Judges of the Court of Session in Scotland; but it was not more than an act of justice to them if they gave to them additional duties to perform, to give them increased salaries; and he would here take the opportunity of referring to a subject not immediately before the House. In 1825 an increase was made to the salaries of the Judges in England, but nothing was done for the Scotch Judges. In 1827, on the motion of Lord Goderich, who was then Chancellor of the Exchequer, relative to the abolition of the Scotch Jury Court, some allusion was made to this subject, but the matter was not persisted in. The question was deferred in consequence of some slight difficulties, and was not afterwards taken up. He trusted, however, that the noble Lord would take the subject into consideration, and would, on an early day, bring forward a motion for the purpose of increasing the salaries of the Scotch Judges. The hon. and learned Gentleman said, that the House could not refuse to give Mr. Abercromby a retiring salary of 2,000l. a-year for abandoning his professional business, for he could not as a Privy Councillor, return to the Bar. He was not aware that Mr. Abercromby had an extensive business at the bar, and did not object to his having a retiring salary; but he protested against the mode in which this measure had been brought forward and was persisted in. He well recollected the outcry hon. Gentlemen opposite made to the pensions allowed to Mr. Dundas and Mr. Bathurst, when they retired from the Victualling and Navy Board, for the purpose of an important reduction being made in their departments, although there was a positive understanding that they should be called upon to supply the first vacancies that occurred in these Boards. And yet hon. Gentlemen, who cried out so loudly against this clause, voted half his salary to the Lord Chief Baron of Scotland, although he had not been eighteen months 173 in office, With what pretence could the noble Lord censure former Administrations with having been guilty of jobs, and making changes purely for the purpose of giving places? He was quite at a loss to see how this conduct could be justified; and nothing had been said on this subject in the least degree approaching to a justification. Whatever was to be done, he hoped that the House would not dwell on a mere statement of the number of causes tried in so many years, and proceed to abolish this Court, without taking into consideration the important duties which it had to perform, more especially when a large majority of the Gentlemen present had not even read the Bill, and very few had stopped to inquire what was the nature of that Court. It had been said, that, the situation was irksome to the Lord Chief Baron, on account of the trifling duties he had to perform; but the question was, whether it was better to have 4,000l. a-year for doing something, or to have 2,000l. a-year for doing nothing at all. He trusted that the House would have some inquiry instituted before it proceeded to abolish an ancient Court, and that it would not rest, on the statement which had been made at that hour of the night; and at the very conclusion of the Session pass a measure of such very great importance.
The Attorney General
thought, that it was a very singular charge to make against his Majesty's Government, that this Bill had been hurried. It had been in the hands of hon. Members ever since the 15th of August, and the learned Lord Advocate of Scotland had always been able and willing to give every information which might be required of him. Hon. Gentlemen talked of inquiry: this subject had been inquired into, and had been put off for the very purpose of inquiry. Nobody had ventured to deny the facts which they had asserted; it certainly would be most extraordinary, if they had mis-stated the quantity of business in this Court, that some Gentlemen did not produce returns to shew their mistake. If the right hon. Baronet had stated to the House, last year, the facts which were now brought forward, it would have been quite impossible to have preserved this Court. Talk of the abolition of this Court being a job; really he never heard such abusive language. A job!—why, if the Lord Chief Baron of Scotland wanted a job, could he have better one than 174 4,000l. a-year for doing nothing? Imputations were cast forth in general terms, and they would always catch a ready cheer from some parts of the House; but when hon. Gentlemen talked of a job, he would beg them to recollect, that if the Lord Chief Baron had chosen, he might have gone on pocketing 4,000l. a-year for his life, The Reform Bill had been brought into this discussion; really, there was no subject that could be introduced to the Mouse with which the Reform Bill was not, mixed up, and on which the Representatives of schedule A were not ready to set up a hearty cheer against some one connected with the Reform Bill. So it was on this occasion—because the Chief Baron of Scotland was one of the Commissioners named in the Reform Bill, hon. Gentlemen believed that this Bill was brought, in for the purpose of enabling him, the Lord Chief Baron, to travel about the country to execute the duties imposed upon him by that Bill. Could any one seriously pretend to say that this Bill was necessary, even if such a purpose was in contemplation, which it was almost unnecessary to deny? The Lord Chief Baron might, if he had chosen, have transacted the whole of his duties under the Reform Bill, and still have kept his office, and pocketed the whole of his salary. His late right hon. friend, Sir Samuel Shepherd, a most excellent and much-esteemed man, was not prevented, by his duties as Lord Chief Baron, from attending here; bur, on the contrary they had the pleasure of seeing him here in London ten months out of the year? The Lord Chief Baron Abercromby might have pursued just the same course with regard to his duties as a Commissioner under the Reform Bill. His right hon. friend was looking at a document he held in his hand; he might refer to that Report, but he would recollect that that Report stated that all the five Judges were necessary, of the correctness of which, by-the-bye, they had now some means of judging. A subsequent Commission of Inquiry thought that four would do, and, particularly, that English Barons were not necessary. That was the Report of the Committee appointed to inquire into jobs; but, instead of the "job" being put down, it was said, even at that time of day, "Why, really it is quite impossible to do with less than five; we must have five: to abolish them would lead the lieges of Scotland to think 175 that their interests were to be neglected, and that their institutions were to be cut down." The hon. member for Middlesex said that one Court was to be established, and one was to be abolished; "Well, then," said he, "let the Judge who presided in the Court which is to be abolished, preside in the new one which is to be established. The Judge who is appointed certainly must have no other duties to attend to, because the proposed Bankruptcy Court will be always sitting, and always employed." This might be a very good suggestion. It might be remembered that when he (the Attorney General) stated that a learned Judge in Westminster-hall, of great experience and ability, might be prevailed upon to preside in the new Court, he did not say that the fact was certain; he merely held out a hope that he might be induced to do so. He might be disappointed, and, in that case, he quite agreed with his hon. friend, that no better individual could be appointed as the head of that Court than the Lord Chief Baron, and he should be most happy to effect a saving of 2,000l. a-year. With regard to what was stated as to compounding penalties, it was quite certain that the people of England could not endure it if these penalties were to be enforced to anything like the extent of the power which was placed in the hands of the Crown. He trusted that they should see the revenue cases in England very much reduced in number. The right hon. Baronet condemned the Board being allowed a fixed salary instead of their being paid in proportion to the duties they discharged. In answer to that observation he would beg to say, that the Solicitor to the Customs was paid by a fixed salary. The Solicitor to the Excise was, until within a year or two, paid in that way, but it had latterly been found that the business of the Court of Exchequer had diminished to a very considerable extent. Indeed, they had heard a great deal of the judicial duties of the Court of Exchequer, but they were nowhere to be found. With regard to the antiquity of the Court, that certainly could be no argument in its favour, because they could not refer much further back than the Union. He was quite ready to admit that Judges in Scotland had aright to be placed on the same footing as English Judges, but let not a Court be continued for no purpose, when it was evident that, in the ordinary course, it could not 176 exist for any length of time. The arguments which had been used on the other side went absolutely in favour of proceeding with this Bill.
§ Mr. Pringle moved that the Debate be adjourned. There were many Scotch Members anxious to express their opinions upon this subject, and the discussion could not be conducted in a satisfactory manner at that hour of the night.
§ Debate adjourned.