HC Deb 07 October 1831 vol 8 cc365-76

Mr. Pringle rose to move the Order of the Day for resuming the debate on the second reading of the Bill to abolish the Court of Exchequer in Scotland. The question had not been done justice to, having been brought on at an advanced period of the session, when it could not be thoroughly inquired into. The Bill passed the Lords without discussion, and, therefore, now, in its latest stage, that circumstance increased the responsibility imposed upon this House. In Scotland there was great jealousy felt at the subversion of an ancient jurisdiction, which had always worked for the advantage of the country. It was suspected to be part of a series of changes by which the peculiar institutions of the nation were to be destroyed, and Scotland rendered a mere subordinate province of England. In discussing this Bill there were two subjects to be inquired into; first, whether a case could be made out to justify the suppression of the Court; and secondly, whether, in that event, the mode of providing for the despatch of its business was likely to answer. With regard to the first question, but little could be added to the powerful statement of his right hon. friend, the member for Portarlington. He regretted that the House was so thin when he made that speech, which was so well calculated to attract attention to the subject, and leave a strong impression of the impolicy of passing this Bill. They were called upon to legislate on very slight grounds and imperfect information. They had only the statements of the member for Ayr, without any reference to reports or returns in support of his facts. His Majesty's Ministers ought to have made much more inquiry into the subject before they began to legislate in so destructive a manner. Had they consulted the right hon. member for Portarlington they must have derived benefit from his advice, which he would have given frankly and unreservedly, and some of the statements which he made last night would surely have induced them to consider the subject more thoroughly than they appeared to have done. The only person whose opinion had been quoted by the other side, was the learned Judge who presided in that Court: but his experience had been very short. Last year, when he was consulted on the same subject by his (Mr. Pringle's) right hon. friend it appeared that he gave his sanction and concurrence to the arrangement then adopted, of which the continuation of this Court formed a part. But he had changed his opinion since, upon ten months additional experience. Whom else had the Ministers consulted? Any of the other Judges of that Court, all of whom had had much longer experience than the Lord Chief Baron? Or the lamented Judge whom the country lately lost there? Or Sir Patrick Murray, whose aquaintance with the business of that Court had been of such long standing, first when he filled the office of King's Remembrancer, and afterwards as one of the Judges? or did they consult Baron Hume, whose varied knowedge of our laws, intimate acquaintance with all our institutions, and acknowledged talent and wisdom, would give such peculiar weight to his opinion, that any measure which had his sanction would be likely, on that account alone, to be favourably received? It was to be remarked, that while they refused to take the mere statements of hon. Members opposite as a sufficient ground for legislation, so neither did his right hon. friend rely on his mere statement. He suggested an inquiry before a Select Committee of the House; surely, nothing could be more fair. Various questions would require to be investigated by that Committee, but especially the causes of the great decline of judicial business in that Court. The practice of compounding for the penalties was the main cause. This system had been defended by the learned Attorney General, and the hon. and learned member for Stafford. But the practice as they represented it in England was very different from the abuse of it lately introduced into Scotland. The question was not whether compounding for penalties should not occasionally, and under peculiar circumstances, be admitted, but whether it was expedient to allow it universally, as had of late been the system in Scotland. Not whether it should be conducted by the wisdom and discretion of the first law officer of the Crown—the Attorney General—but whether such a power should be vested in a mere subordinate officer, like the Solicitors of Excise and Customs. If it could be justified in one case, why might not the practice be extended to others? This would render nugatory Courts of any kind for the trial and punishment of offences. If the Court of Exchequer had not sufficient business, more might be added to it. This was in the contemplation of his right hon. friend, as he had himself stated, before he went out of office, and would have formed part of the great measure which he carried through the Legislature last year. There were many subjects which might be more fitly placed under the jurisdiction of the Court of Exchequer than any other Court. The duties of the Commission of Wines were generally considered as of this description, and there seemed to be an expectation in Scotland that these would sooner or later be transferred to the Exchequer Court. Another branch of business which they might fitly manage was, the department of bankruptcy concerns, and the trusts arising out of them. A third, the guardianship of the affairs of minors and lunatics, which in England belonged to the Court of Chancery, but in Scotland was vested in the Court of Session. This could never be properly discharged by a Court absorbed in judicial duties, but belonged more properly to the analogous administrative duties of the Court of Exchequer. The want of a system of regular and constant superintendence in these cases had long been considered a defect in Scotland; and a much better system than the present could easily be devised. If such duties as these were devolved upon the Court of Exchequer, in addition to its other administrative duties, it would then have quite enough of business to transact. The question then was, whether this Bill ought to be proceeded in without much more ample inquiry. The measure contemplated had never received the approbation of any one of the many Commissioners who had investigated and reported on the judicial establishments of Scotland. And it would, therefore, not be doing justice to so important a measure, to deny a thorough investigation before taking so important and irrevocable a step as this. With regard to the means provided by the Bill for discharging the duties of this Court, the information was very imperfect. The hon. and learned member for Stafford found all the information he wanted in the Bill itself—reasons for the abolition of the Court, and a satisfactory provision for the discharge of its functions. He had contrived to discover more than he (Mr. Pringle) or any Gentleman who was conversant with the subject, could. All that they were told was, that the whole of the present duties were to be transferred to a single Judge of the Court of Session. But as to the manner in which such Judge was expected to discharge these duties they were kept quite in the dark. They were left in doubt, too, if all the various duties of the Barons of the Exchequer were really meant to be transferred to this Judge of the Court of Session. If this was to be the case, it was certainly very inexpedient; for there were many of these duties very foreign to the pursuits of a Judge constantly engrossed with his judicial functions. But from some explanations of the hon. member for Ayr, they might infer that the Treasury duties were to be an exception. But by whom were these duties to be discharged? By some inferior officers in Scotland? or had Government any lurking design of transferring all the Treasury business at once to London? If so, the sooner they spoke out the better. He could tell them, that in Scotland such an attempt would not be very patiently submitted to. It was a point which was struggled with very hard during the Union discussion, and the retention of the Treasury functions in Scotland was very anxiously stipulated for. He could not, therefore, conceive a more violent infraction of that treaty than such an attempt. But to come back to the arrangement for transferring the business to a Judge of the Court of Session. He need not go over the very strong objections pointed out by the right hon. Baronet, to investing any single Judge, not bred to English law, with the duty of trying causes by that law. It might be doubtful whether, even in the whole Court, this might be safely vested, but confiding it to a single Scotch Judge would be infinitely more objectionable. But before proceeding further with this Bill, it was of essential importance to inquire whether this duty could be transferred to the Court of Session at all, without materially impeding its other business. The Court of Session was already overburthened with business, and ought rather to be relieved of a part than have an additional load of duty imposed upon it. Last year two Judges were cut off from that Court. But the bill of 1830 was still an experiment. It had not been a twelvemonth in operation; and so long as its success was doubtful, it would, surely, be extremely unwise to meddle with it, especially by transferring to it new duties. But in Scotland there was nothing so much dreaded as fresh changes and innovations. For more than twenty years they had been vexed and harassed with constant changes in the judicial establishments. On the whole, great improvements had been made; but the perpetual change had itself been a serious evil, and most harassing to all practitioners. After the bill of last year, an end of these alterations was expected; but now they had a new Ministry, and were, therefore, destined to undergo a new series of innovations. But if the Ministry would not allow time to make all those inquiries, it was impossible to do justice to such a question. What harm could result from allowing the Bill to lie over till next Session of Parliament, when they might have more time to do it justice? The only reason he had heard for such haste was one which the hon. and learned Attorney General rather hinted than spoke out upon. He seemed to connect this Bill in some way with the Bankruptcy Bill, which was running a similar course. For some reason unexplained, it would be convenient for Government to carry these two Bills through the Legislature pari passu. But he deprecated this indecent haste. If the measure were really expedient in itself, let them take time to convince the people of Scotland that it was so. If not expedient, they would feel not only that a serious injury had been inflicted on them, but that it had been done with a marked indifference to their interests and feelings. As a Scotch Member, he was compelled by duty to oppose this Bill, and should do so in all its stages.

Mr. Macleod

spoke to the following effect:—Mr. Speaker; As the question before the House concerns the interests of the people of Scotland, and representing, as I do, a county in that part of the United Kingdom, I beg to make a few observations on it. In the first place, I must apply myself to an observation, with which the right hon. and learned Baronet (Sir William Rae) concluded his speech last night. He said "it would neither be consistent, nor respectful to the people of Scotland, to pass this Bill without a parliamentary inquiry." In what, however, the disrespect to the people of Scotland can consist, if we pass this Bill without further inquiry, I own I am at a loss to conceive. To what degree the people of Scotland are interested in maintaining a superfluous court of justice, it is not in my power to discover. Nothing can be more preposterous than to imagine, that the people of that country feel the least anxiety to preserve this useless jurisdiction. Almost all the Gentlemen on the opposite side used the phrase "ancient jurisdiction," at the end of most of their periods, as if they thought that phrase an admirable termination. But what does the antiquity of the jurisdiction signify, if it be confessedly useless? and what grounds for a parliamentary investigation has the hon. and learned Baronet laid, which would not have existed previous to the passing of the Act 1st Will. 4th, cap. 69? In that Act we have his authority for making pretty free with our ancient jurisdictions. By it, the number of the Judges of the Court of Session, a number which it used to be reckoned almost sacrilege to interfere with, was reduced from fifteen to thirteen—a pretty large innovation—and which, had it come from Gentlemen on this side of the House, would have been visited with no small wrath. By this Act the High Court of Admiralty was abolished—a jurisdiction, even in its late form, confessedly more ancient than the Court of Exchequer (for it had existed in its latest form considerably previous to the Union) was abolished by the right hon. and learned Baronet; yet there was no previous parliamentary inquiry. The Commissary Court also was abolished—a jurisdiction nearly as ancient as the Court of Session itself—no parliamentary inquiry preceding its abolition. And all this was done by the right hon. and learned Baronet and his friends, who now have so many scruples in abolishing the ancient jurisdiction of the Court of Exchequer. Why, Sir, this very Court of Exchequer, this peculiar favourite of the right hon. Gentleman, was, at the same time, reduced from four Barons to two; though, in 1820, five Barons, including a Chief Baron, were maintained by the right hon. and learned Baronet, and decided by this House, though by a small majority, to be the number which were necessary to discharge the high, laborious, and responsible duties of this Court. With these facts before us, and with the confessed truth, that in the last year only two defended causes were brought into Court; when it is notorious that the Court has little or nothing to do, can the House hesitate to read this Bill a second time?—a Bill which adequately and cheaply provides for the discharge of the scanty duties which remain to be performed. "But," says the hon. member for Selkirk (Mr. Pringle), "although the Court of Exchequer have but little to do at present, cannot an arrangement be made, by which it can have some tolerable share of duty? cannot the Tiend causes be transferred from the Court of Session?" If, Sir, there were no other objections, into which I shall not detain the House by entering, this proposal would be manifestly inadequate to give employment to the Court. The time occupied in deciding all the Tiend cases which arise, would be about three hours once a fortnight. As to the project of taking a way the jurisdiction vested in the Court of Session, with respect to minors—something similar to that invested in the Keeper of the Great Seal—that would, I believe, be objectionable in many respects. I never, I confess, heard any complaint made of the manner in which that high and delicate jurisdiction is exercised by the Court of Session; and some much better reason must be given to justify its transfer, than merely to give some shadow of pretence for maintaining the Court of Exchequer. But, says the hon. and learned Baronet, the cause of the apparently little business in the Court of Exchequer is the system of compounding offences—and of course, were this evil corrected, a considerable accession of business would be the result. As to the reasons, the solid reasons which exist for resorting to those compositions, they have been so ably and convincingly stated by the hon. and learned Attorney General, that it is needless for me to repeat them. I was much astonished, however, that the hon. and learned Baronet did not state one cause, and the chief one, for the diminution of business in the Exchequer, namely, the great decrease of smuggling—a cause, for contributing to which I thought he would have taken credit to himself, and have demanded some praise for preceding Governments, in which I should have readily and cordially concurred. As to investigation, my principal objection to it is, that it is quite useless; it would stay the progress of a beneficial measure, and could lead to no result to justify the delay, or which would prove the case of the hon. Gentlemen opposite. Is it not notorious that the Court, as a court of justice, is a nest of sinecurists? Can any Gentleman deny, that in Scotland, when a political partisan, of a certain standing and good interest, was to be provided for, but whose attainments rendered it impossible that he should be placed on the bench of the Court of Session, he was made a Baron of Exchequer, as soon as a vacancy occurred? Whatever may be thought in this House, I make this assertion without any fear of its meeting with contradiction. One reason for inquiring by a Committee, which was stated by the hon. Member (Mr. Pringle) appears to me rather remarkable, viz. that the Bill passed the House of Peers nearly sub silentio—that is, because the case is so clear, the Court is so indefensible, that none of those noble Lords—and many they are—who combine knowledge of Scotch legal proceeding, with sufficient veneration for antiquity, to say the least, attempted to arrest its progress—we, of the House of Commons, ought to make the certainty of the evils felt by the other House, the ground of our doubt. Such an argument is not a little whimsical. That the measure has been introduced by the great man at the head of the law, and who, it is well known, is intimately acquainted with Scotch legal questions, is, to my mind, no small recommendation. That it has received the sanction of my right hon. and learned friend, the Lord Advocate, is an additional recommendation to those who look for authority to support their decision of this question. Indeed, no man, from the splendor of his talents, from the length of his experience, and from the extent of his legal practice, can know more intimately the wants and wishes of the people of Scotland, than the right hon. and learned Lord; and, however respectable may be the character of the right hon. and learned Baronet, I must be excused from considering him so good an authority, or so safe a guide, on a question of this kind, as my right hon. and learned friend (the Lord Advocate). I feel, indeed, the great disadvantage under which we discuss this question in his absence. But, notwithstanding this, I am clearly of opinion, that the Bill should be read a second time.

Mr. George Dawson

disclaimed all knowledge of the nature of the function of the Scotch Exchequer Court; he thought the proposition of the right hon. member for Portarlington, for an inquiry into this subject, so reasonable, that he should vote against that course which the House was called upon so precipitately to adopt. On that part of the subject which he did understand, and which related to granting the retiring pensions, he considered that it would be a gross and flagrant job to saddle the country with a retiring allowance of 2,000l. a year to Mr. Abercromby, the Chief Baron, who had been but eighteen months in office, and was in the prime of life. He considered this proceeding totally inconsistent with the economical professions of the Ministry. The Government which could thus sacrifice the public money, was unworthy of the confidence of the country. It was astonishing that the first Lord of the Admiralty, after making a speech upon economy and retrenchment, should sanction this pension to the Lord Chief Baron of Scotland. If the Government had been sincere in their desire not to create new offices, they, instead of fixing upon the country 2,000l. a-year, would have called upon Mr. Abercromby to execute the office of Judge in Bankruptcy. If the Government thought proper to persevere in giving Mr. Abercromby 2,000l. a-year, he should move an Address to the Crown, requesting, if the Bankruptcy Bill should pass, that Mr. Abercromby might fill the office of Chief Commissioner in the Bankruptcy Court. If the noble Lord said the intention was to appoint Mr. Abercromby he should be satisfied.

Lord Althorp

said, their want of economy was, that they converted a place for life of 4,000l. a year to a pension of 2,000l. Then it was said, why was not Mr. Abercromby appointed to the vacant office of Commissioner of Bankruptcy? The fact was, it was desirable to place a proper person in that Court. If Mr. Abercromby was a fit person he might be appointed, but he did not think the practice of Mr. Abercromby had made him fit for a Jury Court. It would have been unjust to deprive Mr. Abercromby of his office without some compensation.

Mr. Goulburn

having been joined in the inquiry into the Courts of Scotland in 1830, and having then found that there was no reason for the abolition of the Court of Exchequer in Scotland, he should say there was no ground for reversing that decision. He thought further inquiry was at least necessary before they legislated. The bill for regulating the Court passed in July, 1830, and he really thought the right hon. Gentleman should not effect a change without inquiry, and thereby convincing the country that Parliament acted, not upon the principle of jobbing, but the public interest.

The Solicitor General

said, it was a mistake to say this measure would reflect any disgrace upon Scotland. Not one of the Gentlemen who opposed the Bill had said there was any business in the Court. Before 1794, the Court consisted of five Judges, which by an Act, the 1st of the King, they cut down to two Judges. It was clear upon the facts, that the Act to which he alluded passed without inquiry, and, if so, on what ground were hon. Gentlemen on his side of the House to be charged with smuggling a bill through the House without inquiry? Consistently with their own conduct, the Gentlemen who opposed the Government on such grounds could not be sincere.

Sir Charles Wetherell

concurred in what had fallen from the noble Lord, who said when an office was to be abolished the officer was entitled to compensation; but still he could not admire this Bill. It had been said this Scotch Exchequer Bill and the Bankruptcy Courts Bill were to run in couples. It did not appear at first sight how those Bills could run together, one being a measure of destruction, and the other of construction, but, taken jointly, both produced a job. In the abolition of former Courts, and the construction of new Courts, they had always proceeded on parliamentary inquiry. It was not enough for any Member to say there was ground for the abolition of a Court. No papers had been laid on the Table. There had been no parliamentary inquiry. Upon the mere dictum of a noble and learned Lord this Court was to be abolished. According to the Solicitor General's argument, the reduction of the Judges of the Court of Exchequer was the extinction of that Court. To whom was the business of the Court to be transferred? It was said the Court of Session could do it; but he might ask, whether it would not have been advisable to do with the Exchequer in Scotland as they did with the Exchequer in England, namely, to give the Judges more to do? The Bill was false in its title. It was in fact a Bill to give the right hon. James Abercromby 2,000l. a-year. The preamble of the Bill was to provide for the despatch of business, and it would appear from these words that the business was oppressive; yet they were told the Court was to be abolished in consequence of the want of something to do. The Court of Exchequer in Scotland was to be demolished because it pleased the Government to put Mr. Abercromby in the office of a Commissioner to execute the purposes of the Parliamentary Reform Bill, which he believed would never pass into a law. It was at that moment in extremis in another place. The two Bills were co-equal and similar; they were co-companions; and his hope was, that both might meet the same fate. He should join in supporting the motion, he understood his hon. friend intended to move, that the further proceedings on this Bill should be adjourned to this day six months.

Mr. Serjeant Wilde

said, the Bill did not propose to do away with the Court of Exchequer, but to transfer its functions to the Judges of another Court, who would perform its duties without expense. It had been established at the Union only, and could, therefore, lay no claim to remote antiquity. If it was intended to establish a new Court there might be some ground for inquiry before the House, but certainly that necessity did not exist when an old and useless one was to be dispensed with. The Bill, however, did not abolish the Court, it merely provided that the vacancies of the Judges as they occurred should not be filled up, and the business should be transferred to the Court of Session. The Judges of the Exchequer Court could not be forced to retire, but they might be induced to do so by a pension which was less than their salaries, and all the difference between the two would be a real saving to the public.

Sir William Rae

opposed the Bill, and gave notice, if it should be read a second time, it was his intention to move it be referred to a Select Committee. The hon. and learned Gentleman moved the Debate be adjourned to Monday.

On the question being put,

Sir George Warrender

said, that the Court of Exchequer of Scotland was one in which the rights of property were involved, and the abolition would be a violence to the feelings of many persons in Scotland.

Sir Charles Forbes

thought this Bill might give them a tolerable idea of the nature of the Scotch Reform Bill; it would go to destroy all the ancient institutions of the country "at one fell swoop." He was afraid the end of all these alterations would be, that the name of Scotland itself would be abolished, and it would ultimately come to be a department of the United Kingdom.

Sir William Rae

withdrew his Amendment, and the House divided on the motion that the Bill be now read a second time.

Ayes 95; Noes 31;—Majority 64.

Bill read a second time.