§ Order of the Day for the Second Reading read.
THE EARL OF ALBEMARLE, in moving that the Bill be now read the second time, said, its purpose was to amend an Act of George II., which was itself a slight modification of an Act of Henry VI. It was in the reign of this Prince of the House of Lancaster that it was first made penal for anyone not possessed of a certain property in land to act as a justice of the peace. This land qualification was one of a series of antiquated statutes which, on account of their utter unsuitableness to modern times, Parliament in its wisdom had either amended or repealed. All those Acts assumed that one class, and one class only, in this country was fitted to perform the most important functions which the citizens of a free State could be called upon to perform. When he (the Earl of Albemarle) sat in the House of Commons a landed property qualification was required for Membership, but that qualification had been abolished. Then there was the landed qualification for officers of Militia. If this Act had remained in force it would have placed 130 regiments of the Queen's Army out of the control of the Queen's Commander of the Forces, and into the hands of country gentlemen. This Act of George II., though not quite so absurd as the two just mentioned, was tolerably pretentious. It assumed that the possession of land endowed the possessor with such a special capacity for the transaction of business of a judicial nature, that no other person not possessed of land was fit to administer justice in the counties of England and Wales. This property qualification did not extend to Scotland or to Ireland. Now, the country gentlemen might be said to be almost the exclusive owners of game; and yet they 1075 were called on, especially in such a county as Norfolk, to adjudicate in cases where persons were charged with the violation of the game laws. Lord Coke and Lord Holt both went so far as to question whether even an Act of Parliament could confer upon a man the power to be a Judge in a case in which he was a party; and Sir Samuel Romilly—one of the most distinguished ornaments of the legal profession in the present century—speaking of poaching cases, asked—
To whom is this power committed? To the country magistrates—to a body of men highly respectable, but who had peculiar habits and feelings with respect to game which rendered them less fitted than any others to be impartial and unprejudiced Judges in cases of this description.Now, the Bill of which he (the Earl of Albemarle) had now the honour to move the second reading proposed to take the exclusive administration of the game laws out of the hands of the owners of land. It would enact that a personal property of a certain amount should be a qualification for the office of justice of the peace. During a period of 23 or 24 years he had had personal experience in his own county of the inconvenience arising from the present exclusive system, and he had twice brought the subject under the notice of their Lordships' House. When he brought the question under the notice of the House in a former Session, though his noble and learned Friend on the Woolsack caused his Bill to be thrown out, the tendency of his noble and learned Friend's observations was in favour of the propositions embodied in the Bill now under consideration. His former Bill was one for the simple abolition of the existing qualification; and his noble and learned Friend, while objecting to such a measure, recommended him to turn his attention to an amendment of the law instead of its total repeal. He had done so, and his Bill was a short and simple one. The first clause provided that an income of £100 per annum arising out of personal estates should be deemed equivalent to an estate in land of the same amount; and next, it provided that any person who should have held the rank of major in the Army, or commander in the Navy, or any higher rank in any of Her Majesty's land or sea forces, might, without any property qualification, be appointed a justice of the peace. He was anxious 1076 that there should be no obstacle to the appointment of such gallant gentlemen, who under the existing law were in many instances standing idle while Lords Lieutenant of counties were obliged to recruit their benches from the ranks of clergymen of the Established Church. The appointment of the latter gentlemen was objectionable. He had the authority of his noble and learned Friend on the Woolsack for the proposition that they ought not to be appointed except where great difficulty was experienced in getting qualified persons to fill the position of justice of the peace; and the noble Duke opposite (the Duke of Richmond), in moving the rejection of his Bill in 1869, contended that there was no difficulty in getting an adequate supply of qualified magistrates. That remark might apply to the noble Duke's own county of Sussex, where only two persons who were clergymen might possibly not have the property qualification; but it did not apply to the four great counties watered by the German Ocean; for the official Returns gave the number of clergymen appointed to the Bench in Yorkshire, as 69; in Lincolnshire, as 68; in Norfolk, as 61; and in Suffolk, as 74. Another reason for enlarging the area of selection was that many country gentlemen did not live on their own estates. He had heard it said that a man never was ruined unless he lived on his own estate; but be that as it might, many persons scarcely lived on their estates at all, while only very few lived on them the whole year round. The result was that sometimes, and during the summer months especially, the greatest difficulty was experienced in getting together a sufficient number of magistrates to form a quorum. Since the time the Act of George II. was passed, there had been a total change in the habits of the class of society from which magistrates were chosen—that was to say, of the class from whom by this Act of George II. the rural population of England and Wales were to look for the protection of their hearths and homes. They had a picture of a country magistrate in the last century in Goldsmith's comedy, She Stoops to Conquer. Squire Hardcastle always remained at home, and Mrs. Hardcastle was so little given to gadding, that she dressed her hair from a print in an old number of The Lady's Magazine, 1077 while Tony Lumpkin described the roads as dark, dull, and boggy, leading down Squash Lane and over Crackskull Common, the most notorious place for highwaymen in that part of the country. Since, then, they had no longer Squash Lanes and Crackskull Commons to insure the attendance of country gentlemen, he asked their Lordships to make provision for the absentees by giving a second reading to his Bill.
§ Moved, "That the Bill be now read 2a"—(The Earl of Albemarle.)
§ EARL BEAUCHAMP, in moving the rejection of the Bill, said, he thought their Lordships were entitled to ask for more substantial reasons for the Bill than those which the noble Earl had drawn from Goldsmith's amusing comedy. If the noble Earl had extended his experience beyond the county of Norfolk, he would have found that the administration of the game laws did not occupy so large a share of the magisterial business as the noble Earl seemed to suppose. But he did not himself see why owners of game were not qualified to administer the game laws because they had property in game. Even in these days of ingenious defences, he believed it had not occurred to any learned gentleman to object to the trial of a burglar by a Judge and jurors who possessed houses. There was really no overwhelming need for enlarging the area of selection, and the present restriction gave some degree of security that no person would be placed on the commission of the peace who had not an adequate stake in his own county. With the greatest respect to the gallant officers of the Army and Navy, he could not see that because gentlemen had obtained rank in those services, they were therefore peculiarly fitted for the discharge of magisterial duties. Having discharged the duties of Vice Lieutenant, it was his opinion that it was of great advantage to Lords Lieutenant that the area of choice should be a restricted one. One reason urged by the noble Earl for passing the Bill was, that the character of the gentry had changed from stationary to migratory; but the measure he proposed would produce a class of magistrates still more migratory. There was a strong feeling among ratepayers that magistrates should be selected from that class of persons who had a direct interest 1078 in maintaining economy and efficiency in the financial administration of county affairs. He (Earl Beauchamp) maintained that the Bill was wholly unnecessary; and, far from producing any useful effect, it would only tend to weaken or destroy the confidence of the ratepayers in the administration of county finances. For these reasons, he begged to move the Amendment.
§ Amendment moved, to leave out ("now,") and insert ("this day six months").—(The Earl Beauchamp.)
§ THE DUKE OF SOMERSETsaid, that from his experience as Lord Lieutenant of the county of Devon, he could bear testimony to the difficulty of finding a sufficient number of gentlemen properly qualified for the office of justice of the peace, and he should rejoice if any measure were adopted to facilitate such appointments. What course should be adopted to bring about so desirable a result he was not prepared to say. He preferred to leave the matter in the hands of the Government, whose business he thought it was to supply a deficiency deplored in many parts of the country, especially in Devonshire. When he said the Government ought to take the subject up, he was not unaware of the hopelessness of relying on the Home Office; and he could scarcely recommend that one more question should be assigned to that limbo, where so many questions remained unsettled at the present moment. For his part, he was anxious that something should be done in the matter; for, since the era of railways, many magistrates were either frequently or continually residing away from their own county, and a quorum could not always be got to carry on the business. In Scotland no property qualification was required, and he had never heard the Scotch magistracy distrusted. He was not, however, prepared to say that the same system should be adopted in England. No doubt, there was force in the objection to clergymen acting as magistrates while they had spiritual cures; but there were many instances where clergymen possessing property had a cure no longer, and might, therefore, be deemed fit and proper persons to sit on the judicial bench. The whole difficulty complained of might easily be met by the Government passing a short Bill during the present Session.
§ THE DUKE OF MARLBOROUGHsaid, his experience as a Lord Lieutenant did not altogether harmonize with that of the noble Duke who had just sat down. He himself had never experienced any serious difficulty in finding gentlemen adequately qualified for the commission of the peace. He thought the noble Earl who moved the second reading did not attach sufficient importance to the financial duties discharged by magistrates. Considerable dissatisfaction was felt—though he could not say it was quite justified—that the magistrates who regulated the expenditure of the counties were of a representative character, and it had been suggested that those duties should be discharged by financial boards elected by the ratepayers. He did not approve that suggestion; but nothing could tend more to bring about such a change than the arbitrary nomination by the Lord Lieutenant of persons who had no stake and no interest in the county. He trusted their Lordships would not consent to such a scheme as that proposed by the noble Earl.
§ LORD VIVIAN, speaking as a Lord Lieutenant, concurred with those noble Lords who said that the greatest difficulty was sometimes experienced in finding gentlemen eligible for the office of magistrate. He would suggest, however, that the qualification founded on an income of £100 a-year from personalty might not be a very satisfactory one, as the possessor of it might become bankrupt.
THE LORD CHANCELLORsaid, he was not aware, until he heard the noble Duke (the Duke of Richmond) and the noble Lord on the cross-benches (Lord Vivian) state it, that there had been any practical difficulty in finding gentlemen to act as magistrates in counties. He knew that there were objections to placing clergymen on the commission of the peace. His predecessors entertained that objection—in which he confessed he himself concurred—where other gentlemen could be found; but he invariably deferred to the statement of the Lords Lieutenant, that for certain districts they were unable to find other persons qualified to fill the office, and had accordingly appointed them. He concurred in the proposal of the Bill to do away with the distinction between £100 a-year derived from personalty and £100 a-year derived from land, because he was of opinion 1080 that if it was held to be an object in legislation on the subject that there should be a property qualification, it was most difficult to sustain any reasonable distinction. Although the word "land" was used, it did not mean acres, but house or any other landed property, such as rent-charges and interests in freehold mines. He could not understand why majors in the Army and commanders in the Navy were, by virtue of their commissions, to be eligible, because if the £100 personalty qualification was agreed to instead of £100 in land, it would come to this—that they were to be selected because they did not possess that qualification, and it was not desirable to introduce into the Bill any specialities that would render it necessary that majors in the Army and commanders in the Navy need not possess even that moderate amount of qualification. In reply to the noble Duke's statement that the Government ought to take up the Bill, he had only to say that up to that time no representation had been made to him by Lords Lieutenant of any difficulty experienced by them, except that in reference to clergymen, in finding gentlemen qualified for the office. He should support the second reading of the Bill, reserving to himself the power of dealing with the question of qualification when in Committee.
§ THE DUKE OF RICHMONDsaid, that in adopting a personal qualification, a gentleman totally unconnected with a county might be appointed a justice of the peace for that county.
THE LORD CHANCELLORsaid, that the present landed qualification need not be in the county in which the gentleman was appointed to act.
§ THE DUKE OF RICHMONDsaid, that the appointment of gentlemen unconnected with land would be to introduce a class of men who would have less sympathy with the administration of justice in that county than would otherwise be the case. The noble Earl who had introduced the Bill (the Earl of Albemarle) had failed to make his point good against the appointment of clergymen to the commission of the peace. The noble Earl had given a list of clergymen in the commission of the peace in four of the counties; but to make out his case he should have shown that in those counties a sufficient number of properly qualified gentlemen 1081 could not have been found without appointing clergymen. And with regard to his statement that the possessors of game were not persons who ought to decide in game cases, he could assure the noble Earl that many majors in the Army and commanders in the Navy were just as ardent sportsmen and were as desirous of convicting poachers as any landlord in Norfolk, or any other county. As a rule, landlords or persons interested in game who were in the commission of the peace did not sit on cases in which they were interested. Was it to be said that a magistrate was never to sit either at quarter or petty sessions, and give his opinion upon a sheep-stealing case, because he happened to possess a flock of sheep; or that one who kept poultry was not to send a man for trial because he was supposed to have stolen fowls? He was at a loss to understand why majors in the Army and commanders in the Navy had been selected beyond all others as eligible men for magistrates; because, although they might not be owners of game, the probability was that they were quite as keen sportsmen as any landowners in the country. Nor did he see why men should be entrusted with the power of dealing with the finances of counties and the management of gaols and county lunatic asylums who had no interest in the counties in which they would act. He must further remind their Lordships that since the noble Earl (the Earl of Albemarle) introduced his previous Bill, the area of selection had been much enlarged by the Act of last Session, under which solicitors might be appointed to the Bench in counties in which they did not carry on professional business. He thought his noble Friend (Earl Beauchamp) had shown good grounds for his Amendment to the Motion for reading the Bill a second time.
LORD ORANMORE AND BROWNEsaid, that in Scotland the duties of the magistrates were discharged by sheriff substitutes. Their duties were much more limited than those in England, and no qualification was required in Scotland. From the low class from which magistrates were selected in Scotland great partiality frequently prevailed, such as granting licences at the solicitations of their friends.
THE EARL OF AIRLIEdenied that magistrates in Scotland were of the low 1082 class stated by the noble Lord. When it was stated as an argument that no qualification was required for magistrates in Scotland, a very important distinction had been lost sight of—that was, that the magistrates in Scotland did not impose the rates. The rates were imposed by the Commissioners of Supply, and for them a qualification was required. In England it would be anomalous if the magistrates who imposed rates should be persons perhaps neither paying rates nor liable to rates, and nominated, not by the ratepayers, but by the Lords Lieutenant. He should, therefore, oppose the Bill.
THE EARL OF MORLEYsaid, it was not necessary at present that those who imposed rates or administered justice in the English counties should possess property in those counties. The qualification now required was, it was true, £100 a-year in land, but that land need not be in the county in which the magistrate acted; there was not, therefore, any connection between the qualification at present in force and the imposition of the rates in the counties in which the justices acted. The main reason assigned for the Bill was that the existing area of choice was not sufficiently large. The noble Earl who moved the rejection of the Bill (Earl Beauchamp) denied this statement; but it was a statement which had been confirmed by other Peers who had spoken. As to the assumption that the possession of land was necessary as a qualification for rural justice, it rather reminded one of the well-known line—
Who drives fat oxen should himself be fat.It seemed to him of no importance, either in rural or urban districts, whether the qualification was one arising from land or from personalty. In all probability the persons qualified under the Bill would be occupiers in the county, and would therefore be payers of rates, and quite as trustworthy in the discharge of the duties of the magistracy as the owners of land. For these reasons, he should support the second reading of the Bill.
§ On Question, That ("now") stand part of the Motion? their Lordships divided.—Contents 26; Not-Contents, 36: Majority 10.
§ Resolved in the Negative; and Bill to be read 2a this day six months.