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English baron are no longer essential him, to order him to make out his reor requisite. With the exception of port, of which they disapproved or one of our number, we concur in approved. When they had given their thinking, that five barons areone more approbation or disapprobation, their than necessary, and that the business labour was at an end. Now he would of the Exchequer might be conducted beg leave to contrast the duties which with equal advantage by four, as in they thus performed, with the duties the Court of Exchequer in England, performed by the Barons of the Court and without adding to the duties and of Exchequer in England. The Barons labour of these judges.” If the House of the Exchequer Court of England did not concur in the recommenda- went the circuit ; the Barons of Scottion of the commissioners, the eight and performed no part of this duty. Reports which they had already pre- The Court of Exchequer in England sentedwould be useless paper,and Par- performed the duties of a Court of liament would neither do its duty by Equity; in Scotland no such duty dethem nor by the country. He would volved upon the Barons. In England, now state the duty of the Barons, and other suitors could apply to the Court he begged it to be observed, that the of Exchequer besides the suitors of account was not that of an enemy, but the Crown ; in Scotland only the was supplied by these judges them- suitors of the Crown. The Barons selves. They stated, as was to be of England took their turn at the found in the 10th page of the Report, Old Bailey, and performed other that there were four terms; one be- parts in the administration of justice ; ginning on the 24th of November, in Scotland they had no similar laand terminating on the 20th Decem- bour. In England the Barons had to ber ; another beginning on the 15th decide on references from Parliament; of January, and ending on the 3d of in Scotland they had to do nothing February; a third beginning on the similar. There could, therefore, be 12th of May, and ending on the 2d no comparison between the labour of June; and a fourth beginning on performed by the four Barons of the the 17th of June, and ending on the Court of Exchequer in England and 5th of July. The Court, it was re- the five of Scotland. He would beg marked, did not usually meet on Mon- to know, as connected with this subday, except it was the first or the last ject, what was the opinion entertainday of term. Thus, then, the Barons ed of the appointment of the present were not employed in their judicial Chief-Baron of the Exchequer (the duties more than two months in the late Attorney-General of England, year, and this, be it remembered, was Sir Samuel Shepherd.) Did he contheir own account of their employ- sider himself, or was he considered ment. The average number of causes by his friends, as going to perform a set down for trial did not exceed a laborious duty, or going to fill an easy hundred. They likewise acted as a situation, if not a sinecure office ? board of treasury, and the average The late Chief Baron (the Right Honumber of petitions, memorials, and nourable Robert Dundas) held his ofother applications disposed of by them fice three years, while he never apin that capacity, amounted to 1300. peared in court; he was in Italy two In point of practice, the disposal of of those years from bad health, and this part of the business belonged to when he returned he was unable to the Remembrancer; it was their duty attend to business. The present only to transmit these memorials to High Commissioner of the Jury Court
of Scotland, though almost unac- not offices of business. With regard quainted with the laws of Scotland, to the individual appointed, (Sir Paand going down to establish a new trick Murray) he was scarcely known court, and to perform the laborious as a lawyer, and had seldom entered dnties of a new appointment, was yet the courts, unless from curiosity. The able to execute the functions of a Ba- only argument which could be urged ron of the Exchequer in addition to his for the number five was, that if four other avocations. Indeed, when it was were equally divided, there might be proposed in the last Parliament to want of a deciding voice; but the exgrant retired pensions to the judges, it perience of England shewed how litwas contended by some hon. members, tle room there was for this apprehenthat such pensions ought not to be al- sion; and it would be strange to inlowed to the Barons of the Exchequer, cur the expense of an additional judge as they were already in a state of re- for the mere purpose of inequality. tirement. He could not refrain from The Lord Advocate had indeed prodenouncing a scandalous appoint- duced a paper, purporting to contain ment, alike injurious to the character the opinion of four judges, the heads of Parliament and to the credit of the of the courts in Scotland, and which courts of justice. The opinion of the was unfavourable to the discontinucommissioners had been unanimous, ance of the fifth Baron. Lord A. conwith the exception of Sir llay Camp- ceived that the judges, from their very bell, whose nomination had been ob- situation, were liable to hias, and that jected to, on the ground that nothing their whole authority was destroyed had been done regarding appoint- by one assertion contained in this paments in courts of justice for the last per. In opposition to the recomhalf century, but by his advice. The mendation of the commissioners, that opinion of no person in Scotland could the duties of the two clerks of bills be of less weight, as, without mean- should be devolved on the principal ing any personal disrespect to him, clerks of session, it expressed an opihe had protected all the abuses that nion that the last office was sufficient had prevailed for the last fifty years, to occupy the whole time and attenand might say of them, quorum pars tion of any individual. What would magna fui. The next name that he the House think, when it understood found subscribed to the report was that Sir Walter Scott was one of the that of Sir James Montgomery, who principal clerks of Session? Could they had been Lord Advocate of Scotland. believe that his whole time was en. His authority, he did not hesitate to grossed by the duties of that office ? say, weighed as much with him as The paper containing their opinion that of the learned lord or of the did not carry conviction to the people Lord Register opposite. Mr Robert- of Scotland; it did not carry convicson Scott, and Mr Threipland, were tion to all the judges ; it did not, he every way qualified for their appoint- was assured, carry conviction to the ment by character and knowlerige. bar. As the paper could not carry He came to Mr Glassford, though conviction, so neither could the vote last not least, whose opinion deserved of that House, if a vote of confirmathe greater credit, as he had written tion, carry conviction to the country. a book upon the courts. That gen- “ The time may soon come,” contitleman had said in his publication, pued his lordship, “ when I shall that the appointments of the Exche- meet with this appointment in the quer were sources of patronage, but mouths of persons in the disturbed district with which I am connected, 1799 till last year, except one year whom I may be called upon to re- that he held an office in London. He press. With what consistency can I, was by this means better fitted for as deputy lieutenant or justice of the the ministerial and judicial functions peace, put down at the point of the of a baron than he could have been sword those whom distress has goad- by the longest practice as an advoed to madness, and who from time to cate in the Courts of Justice. As the time are outraged by acts of this English law is the law of the Court kind?” The noble lord concluded by of Exchequer, a barrister had to learn moving, that the House concur with all the forms and rules of the Court the commissioners, that five Barons when appointed to preside in it as of Exchequer in Scotland were un- one of the Barons. The noble lord necessary, and that four were suffi- had said that he had performed his cient for all the business of that court. office by deputy, but he (the Lord
In reply to these observations, the Advocate) knew that he had perfordefence of the measure was under- med it personally, since 1799 till last taken by Sir William Rae, Lord Ad- year, except the year that he had an vocate. On him it naturally devol- office in London. Nor was such an ved, both as holding an office usually appointment of an inferior officer withsupposed to include that of minister out precedent, for Baron Moncrieff for Scotland, and as having taken an had been deputy King's Remembranactive part in forwarding the appoint. cer for 25 years before he was apment. The constitution, he obser- pointed one of the Barons. Another ved, of the Court of Exchequer, was remark he begged leave to make here, founded upon the national contract respecting the selection of the indiat the union of the two countriesma vidual. By his appointment a very union which proved satisfactory to the considerable saving was occasioned, people, and promoted the interests of because the office of King's Rememthat part of the country, for more brancer ceased, on its becoming vathan a century. That contract was cant, by an act of an honourable memnot to be wantonly broken in upon. ber on the floor. The saving hence The appointment took place in con- arising amounted to one half the sasequence of a circumstance connect- lary of one of the Barons of Excheed with the trial by jury, lately intro- quer. By the statute of Anne it was duced into Scotland. Mr Adam, Lord enacted, that the number of Barons Chief Commissioner of the Jury Court, should not be fewer than five. The and to whose zeal, talents, and good expression was, “should not exceed management, the success of the ex. five;" but this, he contended, in Parperiment was mainly owing, found liamentary language, implied the same his duties as Baron of Exchequer in- thing. “We always have been accompatible with due attention to the customed to five," said his lordship ; business of that court. He therefore “you have always been accustomed to resigned the former, that he might be- four; we prefer five, according to what tow on the latter his undivided atten- we have been accustomed to; you tion. With regard to the choice made prefer four, according to your cusof a successor, an individual better tom.” The nature of the business fitted for the situation could not have required an admixture of Scotch and been found. He had held the office English lawyers; of the former, there of principal Remembrancer in the could scarcely be fewer than three, Court of Exchequer from the year or of the latter than two. If there should be a division of opinion re- weight, even if it stood alone, and specting the granting of a charter to unopposed by the weighty opinion of an individual, what could be done ? the late President of the Court of SesIt might be of importance to an indivi- sion, Sir llay Campbell, but above dual at the moment when an election all, of the Chief-Baron Shepherd approached. The noble lord had him- an individual who had gone so lately self alluded to elections. A judge from this country, after acquiring a could give up his opinion where a thorough and extensive knowledge court of review decided against it ; of the whole body of the laws of these but why should a judge give up his kingdoms, and whose special duty it opinion, if an honest and conscien- was, if it were any one's, to say whetious one, when there was no court ther an appointment of this nature of review? The consequence would was or was not necessary.
He did therefore be, when there was an equal not know what authority the Chiefdivision, that no charter and no tu- Baron's name might have there; but tory would be issued. He could not certain he was, that in his (the Lord see how such an evil could be reme. Advocate's) of the country, they died without an inequality of num- felt grateful to his Majesty's minisbers. He contended that the com- ters for having sent among them a missioners had exceeded their powers, man whose talents as a judge were and went entirely out of their way, not more respected than his
virtues when they reported on the constitu- as an individual were admired. After tion of the Court of Exchequer. Their attaining to very high honours in his instructions were, as stated in their profession, he declined those highest own report, to inquire into the fees, ones to which he might reasonably salaries, and emoluments of the se- and certainly have aspired, and, in veral clerks, officers, and ministers of the discharge of his duty, was willing, justice. Now, he would be glad to at his time of life, to undertake that know under which of these heads the duty, accompanied as it was with the “judges" were meant to be included? necessity of forming new connexions, As to the commissioners themselves, and in a distant part of the kingdom ; with all the respect and esteem which although the office was of a nature he entertained for them personally, far below that which he might have he must say that he did consider them been entitled to claim. He submit to be unqualified. One of them, af- ted, then, that unless they were willter practising at the bar, went into ing to suppose that there was somethe country and lived upon his estate, thing infectious in the air of Scotland, without returning to his practice; which had the effect of instantly deanother went to India, and, after stay- stroying that character of honour ing there for some time, returned, and which an individual had sustained lived almost entirely in the country, through life, it was utterly incredible and a third, having also practised and impossible that the learned judge some time at the bar, retired to his in question, when called upon to deestate, improved the country round cide on the constitution of the court it, but never returned to the profes- over which he was to preside, should sion. Now he thought proper to have concurred in the propriety of an mention these circumstances, be- appointment of which he did not see cause he would submit to the House and feel the necessity. It was a mis. that the opinions of that commission take that the late Lord Chief Baron could not be entitled to any great was ever more than a year absent from the court at a time; this was been required to affirm, not the rewhen unavoidably obliged to go abroad port of a deputation of its own body, by the state of bis health; but even but the mere dictum of four out of five when generally residing at Bath, he gentlemen in no way connected with came and attended the regular terms. Parliament. He could not agree to
Some observations were made by the present motion ; on the contrary, Sir John Newport, in defence of Lord he should move the previous question Archibald Hamilton's motion.
upon it ; but he would assent, on any Lord Castlereagh now came for- future day, to refer the whole quesward in defence of the appointment. tion to a select committee. The noble The noble lord (A. Hamilton) had lord (A. Hamilton) seemed to think called upon the House, without pre- that he had made out a good case in vious inquiry, without any evidence favour of four Barons, if he could in the appendix of the report, and shew that even once the business of without suggesting any facts on his the court had been transacted withown authority, to come to the con- out the presence of the fifth ; and beclusion that the constitution of the cause he found that one ministerial Court of Exchequer in Scotland ought officer was a poet, he jumped at the to be changed that that constitution conclusion that all the offices could for ages had been faulty—and that be discharged as well by poets as by the decision of certain commissioners lawyers. Yet was it not known to all ought to be preferred to the deli- who heard him, that the brightest luberate judgment of the learned heads minary of the law of modern times, of all the different Courts. Lord C. Lord Mansfield, had long been incaindignantly repelled the insinuation pacitated from attending the court to that ministers felt any reluctance to fulfil his judicial functions, and no redress and reform actual abuses; but man had been so obtuse in his faculto represent them as looking only to ties as to argue from thence that the influence and patronage, and all pub- office of Chief-Justice was a sinecure. lic virtue and purity as monopolized He begged to be allowed to say, that by their antagonists, was a language of all economies abhorrent to comby no means new to gentlemen on the mon sense, that was the most absurd opposite side of the House, and par- which regarded the bench—to secure ticularly convenient at the opening of the pure administration of justice was a new Parliament. He did not mean always the best economy. He must to blame the commissioners for tra- congratulate the other side of the velling into various matters, and mak- House upon the cheerfulness they dising the suggestion they had done re- played. They were never so happy specting the Court of Exchequer ; at as when they had got some paltry the same time, if it had been the pur- thousand pounds to peck at : as soon pose of the House to authorise them as they had hold of a particular sum, to examine into the constitution of how they rejoiced in their supposed the Courts of Scotland, as well as into advantage, until the necessity of its the mere details of fees, he could not payment was shewn, and then they help thinking that individuals of a endeavoured to overcome argument different class would have been more by clamour. The constituents of the properly nominated to such high, im- noble lord were a little too enlightportant, and extensive functions. He ened to be persuaded even by him believed that the present was the first that the addition of a poor thousand occasion on which the House had pounds would make a serious differ