§ The Lord Advocate moved that the House resolve itself into Committee on this Bill.
§ Sir William Rae
had, on former occasions, opposed this Bill, and meant then to assign the reasons which would induce him to move, "that, no sufficient investigation having been made by the Select Committee into the regarding the Court of Exchequer proposed by this Bill, or any inquiries entered into respecting the matters contained in the special instructions given by the House on the 1st February, 1832, this Bill be again referred to a Select Committee." The House would perceive that by this Motion he meant to imply that the late Committee did not do its duty. The House was now called upon to make provision for the performance of the business done in the Court of Exchequer, Scotland. It was proposed that the duties performed by the Lord Chief Baron and Puisne Judge of the present Court, should, for the future, be executed by one of the Judges of the Court of Session, who should receive an addition of 600l. a-year to his present salary, while the Lord Chief Baron was to obtain a retiring allowance of 2,000l. This course was subject to the most serious objections. The Bill embraced two propositions, which required separate considerations; one to dispense with the services of the learned Judges in the present Court of Exchequer; the other to impose the duties of this Court on one of the Judges of the Court of Session. The latter consideration was of much more importance than the former, and the House ought not to consent to this change until after the most careful investigation. In the establishment of this Court, at the period of the Union, it was made a special provision that the Judge who presided in it should be an English barrister: and, since that time, an English lawyer had always been a member of that Court. Formerly, not only the Chief Baron, but all the Puisne Barons, were English lawyers. Two years ago be had the honour of submitting to the House a large measure of Reform in the Scotch judicial establish- 211 ments, by which fifteen judicial offices were abolished, besides a multitude of clerks and inferior officers. These included the Jury Court, the Admiralty Court, the Consistorial Court, two Judges of the Court of Session, and two Barons of Exchequer. By this means a saving was made to the amount of between 20,000l. and 30,000l. yearly. At that time there were a Chief Baron, and three Puisne Barons in the Court of Exchequer; but, from the nature of the business transacted in this Court, it was thought that the Chief Baron, being an English lawyer, and one Puisne, being a Scotch lawyer, would be sufficient. It had appeared to him that considerable advantage would be derived from this change, and that it would be much better than getting rid of the Court altogether, and transferring the business to other Courts. He had considered that this was a Court regulated exclusively by English law; that the cases were always between the King and the subject; that, on the part of the prosecution, the proceedings were carried on at the public expense, aided by the talents of a Crown counsel, and supported by the testimony of persons generally interested in the result; while, on the part of the defendant, there was seldom anything but poverty, accompanied by the knowledge that, with the best defence, no expenses could be awarded. For such causes, a Judge of high station and character was indispensably required, and one fully versed in the English law; and in order to make provision for the occasional absence of such Judge and for the performance of the duties where a knowledge of Scotch law was necessary, one Puisne Baron, selected from the Scotch Bar, was also retained. In so far as regarded the administration of justice, this arrangement was admitted to have been perfect; it was fully discussed in that House, and met with the express approval of the present Lord Chancellor. The clauses respecting the Exchequer were submitted to Chief Baron Abercromby, and changes suggested by him were introduced; but no idea was ever expressed at that time of abolishing the Court. The Bill only received the royal assent in July, 1830; and in August, 1831, the present Bill made its appearance in the House of Lords. The preamble did not pretend that it was intended to improve the administration of justice, but only to save expense. It was a mere money bill; and its appearance excited the astonishment of every person connected with the 212 law in Scotland. When he came down to the House, he had the utmost difficulty in finding out who had the charge of it. On the second reading of the Bill, his right hon. friend opposite, and the noble Chancellor of the Exchequer, both denied all knowledge of it; and, at length, he found that the management of the Bill was placed in the hands of the Attorney General for England. He proposed that the Bill should be referred to a Select Committee, and a discussion of two nights took place upon this question. The inquiry was resisted by all the hon. Gentlemen opposite, and, on a division, he was defeated, and the Bill was read a second time. The present Bill was subsequently introduced into Parliament. When his right hon. friend moved for leave to bring in this Bill, he (Sir W. Rae) asked whether an inquiry was to be allowed? The noble Lord, knowing what had passed before, said that he would not oppose an inquiry; nay, he went further, and said, that he himself would move for a Committee. This proceeding could not be objected to, although it was not consonant with the usual practice of the I louse; and it placed the appointment of the Committee, not in his (Sir W. Rae's) hands, who bad been anxious for inquiry, but in the hands of those who disliked inquiry, and had done everything in their power to prevent it. The noble Lord proposed the names of twenty-four persons to constitute a Committee, of whom eighteen were the direct adherents of the Government. The member for the county of Edinburgh subsequently proposed that four additional Members should be placed upon the Committee. The Government would only consent to the admission of two of that number, while they afterwards, without any intimation, caused another friend of their own—namely, the Member for the northern boroughs, to be added to the number. Seeing the manner in which the Committee was constituted, he thought it right not to trust the inquiry to their own discretion; and, therefore, he moved an instruction to the Committee to this effect:—That they do "inquire into the powers and duties of the Court of Exchequer, or how far there are other duties which might, with public advantage, be devolved upon that Court." The motion was agreed to, and the instruction was sent to the Committee. The Chairman proceeded to call the witnesses whom he thought necessary; and the first witness was the present Chief Baron of Scotland. 213 It was, most likely, intended that the examination of witnesses should terminate with the evidence of the Chief Baron; but it was suggested that Sir Samuel Shepherd, who had been for ten years Chief Baron of Scotland, should be also examined, and he, accordingly, was sent for, and his evidence receive, as was also that of Sir Henry ardine. He had proposed that the head of the bar of Scotland, the Dean of the Faculty of Advocates, should be examined; but that proposal, as well as every other of a similar nature, was negatived; and there was not a tittle of evidence on the subject to which the attention of the Committee ought to have been directed. He must protest against this course of proceeding. The House was called upon to form a judgment upon the merits of this Bill, without having any information to guide it. The excuse for the conduct pursued by the Committee was, that the Bill was the chief matter referred to them, and being satisfied that it should pass, they were not called on to attend to the instruction. But of what use would it be for that House, in any case, to vote an instruction to a Committee, if such resolutions could be so contemned? The Committee, no doubt, had evidence respecting the abilities of the present Court, but with respect to the substitute for the performance of its duties, not one witness had been examined who could afford any information on the subject. But the House was not only called on to judge, without materials, on most essential points, but on very discordant testimony, in so far as there was any evidence. Any person who read the evidence of Sir Samuel Shepherd must see that he was strongly opposed to the appointment of a single Judge of the Court of Session to discharge the ditties of the Court of Exchequer. Without meaning any disrespect to the present Chief Baron, he could not for a moment put his opinion in competition with that of so eminent a lawyer as Sir Samuel Shepherd, who held the offices of Solicitor and Attorney General in this country, and would have been Chief Justice of England but for an unfortunate deafness, which disabled him from filling that station. His opinion was also entitled to more weight than that of the present Chief Baron, on account of his greater experience in the Court. Mr. Abercromby had held the office for hardly two years; whereas Sir Samuel Shepherd filled it for nearly ten years, and was intimately acquainted with the constitution and duties of the Court. If, again, the 214 House was to look to which of these witnesses was the most disinterested, how could they be put in comparison? The present Chief' Baron was the person for whose accommodation this Bill was obviously intended. It had been prepared under his eye and direction, and he supported it by his testimony. Sir Samuel Shepherd had retired from public life, and could have no conceivable temptation but to give the most honest and true account of all he knew on the subject. If his evidence was to be relied on there was an end of the question, in so far, at least, as the proposed substitute was concerned. The business of the Court of Exchequer in Scotland was divided into two parts—the one, judicial, and the other Ministerial; and the Report Of the Committee suggested that the latter should be entirely removed to the department of the Treasury. Sir Samuel Shepherd, however, said, 'I think great delay would be created, that it would be absolutely necessary for the Treasury to have somebody in Scotland to inquire into particular and specific facts there. They could only have a re presentation on paper, the truth of which they have no means of inquiring into here.' And also, 'I thought it was a great advantage to Scotland—if I may use the phrase, at least to the poor people in Scotland—that they knew they had a tribunal to which they could offer their complaints, such as they were.' In these sentiments he (Sir W. Rae) fully concurred. If such a change should take place, it was evident that hereafter all would depend on the fiat of an inferior officer in Scotland, subject to all the influence that might be there brought to bear upon him. Even his answer could not be obtained without great trouble and expense. The poor people of Scotland, instead of at once going to the Court of Exchequer, and being there heard and dismissed, satisfied that they had obtained justice from a high and independent tribunal, must hereafter employ persons in London to ask redress at the Treasury; must wait, no one knew how long, for a deliverance proceeding from persons who could know nothing of the matter, and must be guided by the views of inferior Scotch officers. Again, what was to happen in regard to applications for money grants to Scotland? On these the Barons had hitherto been called to report. But where was the Government hereafter to find so able, so disinterested, so high-minded a quarter to which to apply for advice? The only alleged recommendation to all these changes was, a saving of expense. 215 But was this saving quite certain? Sir Henry Jardine said, that as everything must hereafter be done by correspondence, more duty would have to be performed in his office, and more persons must be paid to perform it. Besides, the duty discharged in London would require additional officers. The Chief Baron even pointed at the necessity of a Scotch Lord of the Treasury. When these were added to the salary of the Judge who was to do the duty, he was convinced that the saving would be nominal, and not for a moment to be put in competition with the satisfactory administration of justice. After all, the Bill did not provide for the separation thus recommended, but left the whole duty, ministerial as well as judicial, to be performed by the Court of Session Judge. Why was this? Solely because the inquiries of the Committee were not such as to enable them to legislate on the subject, and because the real object in view was, to abolish the Court of Exchequer, as a matter of accommodation to the Chief Baron, without regard to what was afterwards to become of the business of the Court. In regard to the judicial duties, they were various, numerous, and important; but it was said, that the quantity of business before the Court had fallen off lately, and particularly within the last three years, and, in proof of this, reference was made to certain Returns produced before the Committee. Now, in the first place, these Returns were incomplete; they were confined altogether to the judicial duties, and did not include the ministerial, which were of considerable importance. The Returns formerly made to the Parliamentary Commissions, showed that, on an average of three years, these were numerous. But these Returns were inaccurate, and not to be relied on; they were not made from any record, but from statements furnished by attornies, and were totally at variance with other returns, which showed, that during the last three years there had been an increase instead of a diminution of the suits instituted in the Exchequer. One object of his Motion was, to investigate this important part of the case, and, if inquiry was granted, the alleged reduction would prove altogether fallacious. Doubtless the number of trials had recently been few, but that was owing to the practice of compounding every case of penalty, which was assuredly reprehensible. The whole statements as to the reduction of business, if inquired into, would be shown to be greatly exaggerated. It was obviously im- 216 possible, with a revenue of 5,113,000l., but there must be many actions, and they must all be tried according to the forms of English law; there appeared a strong reason for keeping up this Court. Further he proposed to examine evidence to prove that many important duties might be transferred to the Court. In the Minutes of the Committee now before the House it would be seen, that four classes of duties were proposed as meriting inquiry; and the Scotch Reform Bill had suggested a fifth, as the appeals from the sentences of Sheriffs regarding the qualification of voters, would be better referred to the Exchequer than to the Court of Session. These matters merited inquiry. If, however, for the sake of argument, it was to be admitted that the Court of Exchequer might be abolished, his right hon. friend was bound to make out this proposition, that one Judge of the Court of Session was the fittest person to discharge the duties which this Bill would impose upon him. But his right hon. friend could not propose that any of the six senior Judges of that Court should fill this office, being necessarily men above seventy years of age, and very ill fitted to commence the study of English Law. The appointment must, therefore, be limited to the five junior Judges, who, it was known, were so overloaded with business, that either an increase of their number, or an extension of the sittings of the Court was expected. But supposing the Judge to have time, was he otherwise qualified? How could he become possessed of the knowledge of English law which he was to administer? How could he direct a Jury in regard to a law of which he knew nothing—who was an entire stranger to the rules of evidence, and to the forms requiring to be observed; and where every term made use of must to him be altogether unintelligible? If his attention was to be exclusively directed to such proceedings no doubt in time he might become familiar with them; but, instead of this, his whole time was to be occupied in Court of Session duties, which were entirely foreign to those of Exchequer. But what was to be done if any of his near relations should be presented as debtors to the Crown, and he in consequence disqualified from judging? Again, how were his judgments to be reviewed, as in the event of a new trial being moved for? Surely these points ought to be looked to; and it ought to be considered whether Scotch forms might not be substituted for English; whether the whole Court of Session 217 would not form a better tribunal than a single Judge; whether, at all events, two Judges of the Court, instead of one, would not constitute an important improvement on the proposed plan? On all these points he wanted a full inquiry, which was due to the importance of the question; due to the House, whose instructions had been contemned; and due to the country, in order that no suspicions might exist as to this being a measure for the accommodation of an individual rather than the good of the public. He might appeal to the course of his public conduct in proof that he was none of those who wished to retain any unnecessary judicial situations; and if the alteration proposed by the Bill should be proved expedient, he should be the first to vote for it; but, without full inquiry, he could not consent to the dismemberment of the most ancient supreme judicature of Scotland. He would move to leave out from the word "that" to the end of the question, in order to add the words—"no sufficient investigation having been made by the Select Committee into the changes regarding the Court of Exchequer proposed by this Bill, or any inquiry entered into respecting the matters contained in the special instructions given by this House on the 1st of February, 1832, this Bill be again referred to a Select Committee," instead thereof.
The Lord Advocate
said, it must be apparent to the House that the scope of his right hon. and learned friend's motion was, to impeach the propriety of proceeding with this Bill upon the authority of the Committee which had considered the subject to which it related. His right hon. friend rested his case upon two grounds; first that the Committee adjudicated without doe inquiry; and, secondly, that this precipitation was aggravated by a contumacious neglect of the instruction of the House. He trusted he should be able to show that his right hon. and learned friend's objections were unfounded. The substance of this Bill was, prospectively to abolish the Scotch Court of Exchequer, now consisting of a Chief Baron and two Puisne Barons, drawing salaries amounting altogether to 6,000l. a-year, and to transfer the small portion of business it had, to a single judicial person of very high rank and station; namely, a Judge of the Court of Session. It was matter of notoriety that there was not business performed by the Scotch Court of Exchequer sufficient to justify the maintenance of so expensive a tribunal. It 218 must also be borne in mind, that his right hon. and learned friend, in 1830, led the way in that work, in reforming the Scotch judicature, in which he (the Lord Advocate, was a humble and very inefficient follower. It must be recollected how he abolished some Courts and curtailed others. The Consistorial Court he entirely did away with; the Admiralty Court (the only one in Scotland) he completely abolished; and the Jury Court, then consisting of four or five Judges, he annihilated, and transferred its duties to the Court of Session, from which he, at the same time, struck off two Judges. Nay, more: his unhallowed hand was stretched forth even against the Court of Exchequer—to reduce the number of its Judges from four to three; although the House was now told it must be field quite sacred. This extirpator—this slaughterer of ancient Judges—"bore no brother rival near his throne," and was offended when he (the Lord Advocate) humbly following in his track, attempted to gather gleanings in a field from which he had reaped so ample a harvest; and called out that it was an insult to Scotland for the House to sanction the course he (the Lord Advocate) had pursued. What were the facts? It was stated at the time, from certain documents before the House, that there was no business at all before the Court of Exchequer. His learned friend, the Judge-killer, who knocked the Admiralty, Commissary, and Jury Courts on the head—who dismembered the Court of Exchequer and Court of Session of a part of their Judges—did he think it necessary to have an investigation before a Committee ere committing all these slaughters? No such thing; but upon certain returns, he did lightly what he (the Lord Advocate) proposed to do solemnly. It was notorious that there was no business in the Court of Exchequer; and that statement was corroborated by the returns. It appeared by them, that for the last twenty years, there had not been above five or six defended cases in each year; that was, not quite one and a-half in each year; and in the latter part of that period, there had not been above four or five in each year, or one case in each Term. The number of undefended eases it, which, as was well known, a few witnesses were examined, ex parte, whose examination occupied no more time than was sufficient to convince the Judge, either that the defendant was innocent or had no case, was only seventeen in the 219 course of the year. This, then, was the whole amount of the judicial business of the Court of Exchequer. His learned friend truly stated, that the Judges of the Court had some employment, also, as Lords of the Treasury; that was to say, as the Deputies of the Treasury in London, from which they received orders, and to which they made reports, and transmitted all they received. Now the Acts under which they transacted this business, provided that they should transact such business in the Treasury as they might be directed to transact by the Minutes of the Lords of the Treasury in London. Of course, then, as soon as these Minutes transferred their duties to others, their business in the Treasury ceased, and, in point of fact, he was informed that a considerable part of the Treasury business which they used to transact had been taken from them, and by Treasury Minutes transferred to other; and no difficulty would be experienced, in the whole of the Treasury business they had performed being transferred to others; for it could scarcely be made to occupy four days in the year. With respect to their judicial business, the Judge of the Court of Session, who would be appointed to it, would be able to dispose of it in four short sederunts. The returns showed that up to the present time, the judicial days of the Court of Exchequer had been eight or ten in the course of the year; and those only of three or four hours each. The Judges of the Court of Session never sat on a Monday; so that if the Mondays were taken, the whole of the Treasury business of the Court of Exchequer of Scotland might be done by the Judge of the Court of Session, to whom its judicial business might be confided, and all without trenching upon his other duties. But then his learned friend said, that the Court of Exchequer could have had other business added to that which it had at present to discharge. Now, every one of the witnesses was asked, whether the different additions to the duties of the Court which were suggested could be advantageously made, and they all answered in the negative. Certainly, the Committee was averse to seeking for pretences to keep this Court up, or it would not have been difficult to have got speculative individuals, who might by taking business from hence and business from thence, have made up a sufficient quantity of patch-work duty for the Court to discharge. He said, of 220 patch-work duty; for it was remarkable, that neither as regarded the bankruptcy business, the adjustment of tithes, the duties performed by the Justices of the Peace, nor any other, was a suggestion made to transfer a whole branch of proceeding into the Court of Exchequer; the suggestions being for it to settle the accounts of one, or overlook a particular detail of part of the business of another Court, which did not want any such relief'. Having taken evidence which convinced the Committee that there was no pretence for keeping up the Court of Exchequer as a revenue Court, for it never had any general business (like the Court of Exchequer in England), the Committee came to the conclusion, also, that there was no foundation upon which to increase its jurisdiction—indeed, that it had no jurisdiction which could be extended—and that, if any were given to it, it would have to be created for the purpose. They under stood the instruction of the House to mean such an enlargement of its jurisdiction as would bring into the Court the same kind of business it already possessed. There were only two suggestions founded upon this principle. The first went upon the possibility of diminishing the number of compounded cases, and, by going through the Court with them, so to increase its business; the second was, to make the Judges go circuits. Upon the first subject, Sir Samuel Shepherd stated, that composition was not only an allowed practice in both parts of the island, but was necessary for the proper execution of the laws. The Committee, therefore, had no evidence before them to warrant a recommendation o a change in the present practice. With respect to a transfer of a part of the business done by the Justices of the Peace, the best law authorities in Scotland, including the Chief Baron, concurred in stating, that there was not the least reason to expect that the business would be better done in the Court of Exchequer, and that no dissatisfaction was felt at the manner in which that business was at present transacted. The whole evidence, therefore, with respect to the transfer to the Court of Exchequer of the only business bearing any analogy to that at present transacted in it, instead of being with, was against, his right hon. and learned friend. He would not enter further into details, but simply say, looking to the facts, that this was an unnecessary Court, and that to maintain it was a waste of the public money. 221 His right hon. and learned friend seemed to think 6,000l. per annum a very trifling sum; but, independently of the waste of this sum, they had the evil—if they kept up that Court—of maintaining several pieces of undue patronage, and of gilding sinecures with the name of judicial offices. His right hon. and learned friend said, that it was a great thing to have the benefit of the decision of a Judge of high character and rank—by which he meant with a high-sounding title—to adjudicate between the King and his subjects. He (the Lord Advocate) proposed to substitute for the Court of Exchequer, a Judge of the highest rank—a Judge of the Court of Session—the supreme civil tribunal of Scotland—a Judge as much entitled to, and as much possessing, respectful attention as any other Judge, whatever his denomination might be. It must be recollected, that this Judge would be a member of an efficient and important Court—that his judicial habits would be kept in perpetual exercise, his faculties sharpened by constant practice, which certainly could not be alleged to be the case with the Judges of the Court of Exchequer, who tried, perhaps, only one cause in the course of every half year, and whose faculties must become, to a certain extent, rusty. The business of the Judges was not of such a nature as to render it inexpedient to make this addition to their labours. The ordinary business of the Judges was for fifty-six days, and they commenced their sittings at eleven, and closed them at two or three. Any Judge might get through the quantity of business now transacted in the Court of Exchequer in the course of six days. He did not think, as was stated by his learned friend, that the necessary condition of pass-sing this Bill should be, that the Treasury business should be transacted in another way. He could not help feeling that the segregation of the business of the Court was most improper. He looked forward with some anxiety to the separation of the business, and if the plan now suggested was acted upon, all the other causes and suits which it would be necessary to determine in this Court would he not the work of twenty five or fifty days, but of only eight or ten days. At present, a great number of the cases connected with the revenue were heard and determined by the Justices of the Peace, to the satisfaction of the public. Forty-nine out of every fifty cases of this sort were finally and satisfactorily set- 222 tled by the Justices of the Peace, although an appeal might be made from the decision of these justices to the Court of Session. But the truth was, that, for the most part, the interpretation of the statutes was so clear, that there could be little or no difficulty in applying them. It was on this account that the Justices were able in nine-tenths, or rather ninety-nine hundredths of the cases for determination, to give as satisfactory if decision as the superior Court. He must admit, that there was one part of the business of the Court which made it necessary that the Judge should he a Scotch lawyer. He meant that part relating to the preparation of the charters. There was, however, a provision in this Bill which would prevent any inconvenience on this account arising to the public from the abolition of this Court. As for the cases at Nisi Prius, it appeared that they might be got through in two days in the year, and surely, on this account, it was not worth while to keep up a Court with two Judges at enormous salaries. The House was, therefore, acting properly in getting rid of that which appeared to be a shameful, unnecessary, and extravagant expenditure of the public money. The right hon. and learned Lord, undoubtedly, did much in his bill for remodeling the Court, but he did not go far enough, and had left that behind him to do, which he (the Lord Advocate), on behalf of the Government, now had the honour of submitting to the House. The plan which he had to propose would be beneficial to the public; and to the administration of justice. Igor the reasons he had already stated, it was unnecessary again to send the matter to the consideration of a Select Committee; he, therefore, must oppose the motion of his right hon. and learned friend.
said, the speech of the earned Lord Advocate had been so discursive, and he had frequently wandered so widely from the true question before the House, that he (Mr. Pringle) should find it very difficult to follow him, without being led into discussions which would be out of in the present stage of the proceedings. The only question which they had to consider was, whether the Committee had exhausted the inquiry which was remitted to them by the House, and to that he should endeavour to confine himself. The learned Lord set out by complaining, that the scope of his right hon. friend's Motion was to impeach the conduct 223 of the Committee. It was so. It was exactly the complaint that the Committee had not discharged the duty devolved upon it, and therefore, the motion was made to have the Bill recommitted. He charged the Committee with not only refusing to go through the case, and making a report on imperfect information, but of actually stifling inquiry. The Committee was called upon, first, to inquire whether, in all the circumstances of the case, the Court of Exchequer could be dispensed with; secondly, supposing it to be abolished, was the mode by which the Bill provided for the discharge of its duties, by transferring them to one Judge of the Court of Session, a proper mode; and, thirdly, would it not be more expedient to continue the Court of Exchequer, and add to it other judicial business, which was not at present provided for in the most satisfactory manner. The two first of these belonged to the very essence of the Bill. Unless they were satisfactorily and clearly made out, the Bill must be inexpedient, and ought not on any account to be passed by the Legislature. The third was also important, though less essential to the merits of the question. Of these three subjects of investigation, only the first was taken up by the Committee, and that very imperfectly; and as the necessity of inquiry was admitted, the Bill itself could not, on any ground, be justified without a full investigation. There were only three witnesses examined. The first of these was the present Lord Chief Baron of Scotland. The second, the late Lord Chief Baron, Sir Samuel Shepherd; and the third, the King's Remembrancer, Sir Henry Jardine. Of these, the evidence of the first was favourable to the Bill—that of the second decidedly against it, and from the third, perhaps, either party might gather something to countenance their views; but, upon the whole, it would be found substantially to agree with the evidence of Sir Samuel Shepherd. He feared he must not presume that many Members had taken the pains to peruse the whole of the Report. To such as had, he might confidently appeal, and ask them if their impression was not, that so far as the inquiry was gone into, the result did by no means justify the Report of the Committee. If, therefore, the House were to legislate upon such evidence as they already had, he should be justified in calling upon them to reject the Bill. He maintained that the inquiry was not 224 exhausted, and ought again to be resumed. The question of the utility of the court even was not gone into. If the two principal witnesses differed, more testimony should have been brought up. There were other persons, such as the solicitors of Excise and Customs, the learned gentlemen who had filled the offices of Crown Counsel, and perhaps other persons connected with the Court of Exchequer, who could have given very important information, and probably knew a great deal more of the subject than a Judge who had not filled his office but for two years. In particular there ought to have been a very full investigation into the causes of the recent diminution of cases. The learned Lord had alluded to the practice of compounding, which might be one principal cause. Of this he did not complain to a certain extent; but he suspected that it had been carried greatly too far; and he wished that so responsible a faculty had been vested in the highest officers of the Crown, rather than inferior ones, as was the case in Scotland. He had never maintained, that the Court of Exchequer had full employment; but other duties might have been devolved upon it with advantage to the country. Not one witness had been examined who was competent to speak as to the propriety of devolving the duties of the Court on a lord of Session. It was true, as had been stated by the learned Lord, that questions relating to it were asked of the several learned persons whom the Committee examined; but both Lord Chief Baron Abercrombie and Sir Samuel Shepherd very properly answered, that never having had any practical acquaintance with the business of a Court of Session, they were not competent to answer these questions: neither was Sir Henry Jardine so bold as to offer any positive opinion upon a subject which was not within his range of experience; so there was no witness called before the Committee who really could give any sound information as to this part of the Bill. It was a very difficult question; he hardly pretended to form an opinion of it. Sonic of the difficulties had been pointed out by his right hon. friend, especially those of having questions of English law decided by a person who had never practised either as Advocate or Judge in an English law court, and the anomaly of appointing a single Judge to review his own decisions. If the Committee had not been willing to stifle inquiry, they ought to have examined some persons connected with the Court of Session. It was proposed to call 225 the Dean of Faculty. A more competent witness, in every point of view, could not have been found, as he added to considerable experience in the ditties of a common counsel, which necessarily gave him much Exchequer practice, a thorough acquaintance with the Court of Session. What did the members of the Committee know of the Court of Session?—and yet, without any evidence before them, from any persons at all competent to give them information, they had presumed to pronounce an opinion on a matter which would occasion great anxiety to any Scotch lawyer who might be called to make up his mind upon it. The learned Lord had said, that many of the questions of law brought before the Court of Exchequer were questions which the Legislature had even committed to the Justices of Peace; but did he forget that the Justices of Peace had a line prescribed to them by all those statutes, from which they must not travel? Their duty was distinct and precise, and if they erred there was at present an appeal for redress to the Barons. But he was not going to stand out on his own opinion for retaining the Court of Exchequer in Scotland; all that he insisted on was, full and complete inquiry, which this Committee had refused to make. If the result of such inquiry should be unfavourable to the expediency of continuing the Court, and if he should find that proper means were provided for satisfactorily discharging its business, he should readily give way; but he could not discharge his duty to Scotland without insisting that justice should be done to her interests. The only argument for the change proposed was economy. The saving was not very large, but he was by no means insensible to the propriety of making even the smallest saving. He doubted very much whether, after all, it would prove any real saving; but let not the saving of expense be the only consideration. Scotland had a good claim that her business should be well done, and he entreated the House not to grudge her the means of securing this.
§ Mr. Hunt
said, the House had been engaged for upwards of two hours discussing this Bill; the object of which was, to get rid of an expensive Court of Justice, in which little or no business was done. It appeared that the Court of Exchequer in Scotland cost between 10,000l. and 12,000l. a-year, and that the average number of causes tried in this court in a year, did not exceed twelve; that was to say, that it cost the country at 226 the rate of about 1,000l. a cause. It was really surprising that any one should defend the keeping up the present Court. Allusions had been made to the able lawyers who had presided in this Court, and, among others, to Sir Samuel Shepherd, who, no doubt, was a very able man, and a very good lawyer; but he did not see why he should be sent to Scotland, as to a refuge for the destitute, and take from the country no less than 40,000l. for doing nothing. He trusted that this Bill would pass, and they should hear no more of the Court of Exchequer in Scotland.
§ Sir George Clerk
was aware that this was not a question of any great interest to the majority of hon. Members, and he was not surprised at their extreme eagerness to come to a vote in favour of this Bill; but he could assure them that it was looked upon as a matter of considerable importance to the people of Scotland. He had been a member of the Committee up-stairs, to which the consideration of this subject was referred, and shortly after that Committee was appointed, he had felt it his duty to call the attention of the House to the constitution of that Committee, and the result had fulfilled the anticipations he then formed. He had proposed an addition of four or five hon. Members to this Committee, who had taken part in the discussions on the subject: his proposition, however was rejected. He had then stated, that many members of the Committee were not likely to feel greatly interested in the matter to be submitted to their consideration. This turned out to be the case; but the inquiry that took place before the Committee was not of that nature to throw any great light on the subject: and, although several Members were anxious that additional evidence should be called, all motions to that effect were rejected; and a Report was made, which was founded on a very narrow basis. For his own part, he thought it most inexpedient to abolish this Court, for there were various judicial duties in Scotland, which it could have performed, greatly to the advantage of the public. The Committee ought to have taken all these circumstances into consideration; but it was determined that this was unnecessary. He was convinced that the transferring the business of this Court to the management of one of the Judges of the Court of Session, would be attended with great public inconvenience. Much of the business of the Court of Exchequer in Scotland was diminished by the practice of 227 compounding revenue cases, instead of bringing the parties before a Jury. He should content himself however with entering his protest against going into the present Committee, because, whether the measure was right or wrong, it was a case which ought to be inquired into; and the Select Committee had not done their duty in stopping that inquiry just at the point at which it was so essentially necessary to have the fullest information.
§ The House went into a Committee; and the clauses of the Bill having been agreed to, the House resumed.