§ Sir John Newport,
on rising to make his motion respecting the fees in courts of justice, said, that it was now three 3'ears since he had first submitted to the House the necessity of that species of inquiry into courts of justice, which was warranted by the practice of parliament in its earliest and best times, and which was peculiarly necessary to protect the public against the increase of fees, and to secure the due administration of justice. On that occasion he had not been supported by his majesty's ministers. Three cabinet ministers present at that time divided against him. His motion was, however, sanctioned by the House by a majority of one vote. He had been accused at that time by one of the ministers as having not made out any ground for his motion; by another as a visionary and a dreamer, for no abuses, he was told, did exist. The vote of the House for commissions to inquire into this subject was on June 20, 1814, and it was not till the 9th of February following that either of the commissions was appointed. The House had not been fairly 972 dealt with in this delay, and still less in the appointment of the commissioners, for, out of five of the commissioners, two were masters in chancery, though the abuses alleged to exist were in their department; for an hon. and learned gentleman (Mr. Stephen) now no longer in the House, though he objected to the motion then proposed, said, that if abuses were alleged to exist in his own department, he would give his vote for the measure, and that allegation having afterwards been made, he actually gave his vote in favour of the motion, which happened to decide its success. The reports of the commissioners which were before the House, showed that he (sir J. N.) was not a visionary. By the report of the commission on the English chancery, defective as it was, abuses of considerable magnitude had been discovered. He had also the testimony of the lord chancellor himself, who, in April 1815, about nine months after his motion for commissions, recognized that erroneous practices existed in the bankrupt department, and considerably curtailed the fees there taken. This error, it was to be observed, was not discovered till after his motion, and so far the public had been gainers by it. In support of his opinion he referred to the report of the 18th of April 1732* at which period an inquiry into the subject had been instituted by parliament. It was his intention to submit to the House two propositions, involving the general principle on which the inquiry ought at present to be regulated, and then referring the reports of the commissioners to a committee above stairs for their opinion, as to the best mode of carrying the suggestions in the reports into effect. He must observe, that there were many omissions in the reports on the table. Among others there was no statement of the aggregate amount of fees any where. Without this, no judgment could be formed whether or not the fees were upon the whole disproportioned to the service performed or inadequate to the just reward of that service. When on a former occasion this subject was taken into consideration by the House, the hon. member for Norwich complained of the abuse on the part of the officers of courts of justice in taking fees to expedite judgment. It was distinctly denied by another hon. member that any such practice ever exist-* See New Parl. Hist. Vol. 8, 1072.973 ed. An hon. and learned friend of his, however, expressed his astonishment at this denial, asserted that the practice was common, and represented the violation to which it led of that equality in the dispensation of justice to which all men were entitled. In the report on the table, all detailed account of these expedition fees was omitted. They were stated indeed to exist, but the statement was made in such a manner, with such a salvo for the practice, and with such doubts as to the expediency of abolishing them, as to render the whole subject still more worthy the attentive consideration of parliament. [The right hon. baronet here read a passage from the report to the above effect.] It would seem that the old maxim, that justice was not to be sold, was no longer to be acted on. The augmentation of the duties on stamps had nearly closed the avenues of justice against the poor, and if the very ministers of justice were to be allowed to make these demands on suitors, the effect must be utterly to debar from legal redress all persons who were unable to disburse large sums in the maintenance of their rights. It had always been the pride of this country, that within her courts of justice there was no respect of persons; but if the poor were prevented from entering, the evil was just as great to them as if the utmost partiality prevailed in the inside. If he had been correctly informed, he had not, when he formerly called the attention of the House to the subject, had in contemplation a tenth part of the grievances which actually existed. With respect to the commissions on the subject, however onerous; it was satisfactory to think that the public had derived, and were likely to derive great advantage from their investigations; and he felt the highest gratification in having been the humble instrument of bringing under the view of parliament transactions, which poisoned the source of justice and utterly prevented the poor man from obtaining it. The right hon. baronet concluded with moving the following Resolutions: 1. "That fees payable on law proceedings are to be considered as direct taxes levied on the suitor to defray the charge of the offices to which they are incident, and should be fixed in their rate, moderate in their amount, and duly proportionate to the service performed, and, as far as may be possible, carried over to a common fund for the general support of the whole establishment of those offices. 2. That the im-§974 mense increase of taxation on law proceedings, which has resulted during later years, from the increased necessities of the state, imposes forcibly on the legislature an augmented duty of guarding the body of the people, who may become suitors in courts of law or equity, against the payment of any rate of fee which shall exceed a fair compensation for the service performed or preclude the easy attainment of justice equally by rich and poor. 3. That the several reports presented from the commissioners appointed by royal commissions, in consequence of an address of this House, to examine into the state of the courts of justice of England, Scotland, and Ireland, be referred to a committee of twenty-one members, who shall be directed to report their opinion as to the matters therein contained, and the best mode of carrying into effect any regulations which the said committee may deem advisable respecting the officers of the said courts of justice; and that the said committee shall have power to report thereon from time time as they may deem expedient."
§ The first resolution being put,
while he admitted that the right hon. baronet had brought this important subject under the consideration of parliament very fairly, clearly, and temperately, complained that he had not fully stated the grounds on which his motion with respect to it had, on a former occasion, been opposed. If he recollected rightly, the reason why his Majesty's ministers had formerly opposed the right hon. baronet's motion was, that no grounds had been laid for an inquiry into the English court of chancery, although they admitted that ample grounds had been laid for an inquiry into the Irish court of chancery, to which latter inquiry they stated, that they had no objection. Although he admitted to the right hon. baronet, that such inquiries as those which had been instituted on the right hon. baronet's suggestion, frequently brought out information that might prove useful, yet it certainly was the reverse of economy to institute such inquiries for the mere purpose of fishing, in the expectation that some information or other might possibly be the result of their labours. They were attended with considerable expense to the public. The inquiry already (he did not mean to say that an equivalent benefit might not be derived from it) had cost a considerable sum. Propositions, therefore, of that na- 975 ture, ought not lightly to be entertained by the House, or without distinct grounds for expecting that the result would be attended with considerable national benefit. Notwithstanding these considerations, however, parliament had thought proper to extend the inquiry to the court of chancery in England, and that inquiry was still in progress. But hitherto the investigation of this subject by the several commissions was very incomplete. Only two reports had been laid on the table respecting the law offices in Ireland, one respecting those offices in Scotland, and one respecting them in England, forming, upon the whole, a result very short of the intention of the address to the Crown on the subject. In his opinion, it would be very unwise for that House to enter on the consideration of this very technical and difficult and complicated question, until it should be ascertained, that it was not the intention of government, or of the distinguished individuals at the head of the respective courts, to apply such remedy to the evils pointed out in the reports as might be calculated to remove them. This could not be suddenly accomplished. The lord chancellor had immediately, on the presentation of the report, put an end to all those fees, personal to himself, on which there could be the slightest doubt or question, as well as to those of a similar description paid to all officers of his court holding their situations during pleasure; and the noble and learned lord was now engaged with the master of the rolls in investigating the more elaborate parts of the subject to which the report of the commissioners referred. Little conversant as the house necessarily was with such questions, he was anxious that they should not commit their character in undertaking the examination of them, until they saw the whole scope of the inquiry by the commissioners, as affecting not only the courts of chancery, but all the other courts; for each court had principles of regulation, to which no general rule could by possibility be made applicable. With respect to the other branch of the subject, that of the constitution of judicial offices, it was a question which was certainly open to discussion. It could, however, never be in the contemplation of the right hon. baronet to leave the chief judges on the existing salaries, after striking off from them all the other means of fair emolument which they had hitherto possessed [Sir J. Newport observed across the table, that he had said 976 nothing on the subject.] To inquiry into the other part of the subject, on which he had already dwelt, his objections were, however, by much the most strong. He had read the reports of the commissioners on the table, and was persuaded that it required great professional knowledge thoroughly to understand them. For himself he owned that there were parts of them of which he could make neither head nor tail; and he was persuaded that had it not been that two of those commissioners were masters in chancery (gentlemen, he understood, although he had not the pleasure of knowing them, of great learning and ability) the report must necessarily have been most insufficient. With respect to the practice alluded to by the right hon. baronet of paying fees for the expedition of judgment, he had no objection whatever to its being put down, if that could be done. The subject was distinctly noticed in the report, and the abolition of the fees recommended. The noble lord urged the right hon. baronet to withdraw his motion, on which, if that was not done, he should feel it his duty to move the previous question.
§ Mr. Webber
did not perceive any necessity for the appointment of a new committee, as the former reports were as full as time and circumstances could permit. It was more advisable to wait for all the reports of the existing commissions, before the House proceeded to any ulterior measures, as they would thereby have the whole case before them in a connected shape.
contended, that the noble lord's memory had failed him, as to the nature of the opposition made by ministers to his right hon. friend's motion, which had been nevertheless carried for the appointment of the commissions, the reports from which were now on the table. His majesty's ministers had opposed every part of the proposition; and it had been carried by one vote, in consequence of an hon. and learned gentleman, no longer a member of that House (Mr. Stephen) having declared, that if his right hon. friend could show and abuse in the office to which, as a master of chancery, he belonged, he would support the motion, and he had very honourably done so on such an abuse having been pointed out to him. With respect to the expense of such commissions, that very much depended on the facilities afforded them, or withheld, by government and persons in authority. As to the objection made by the noble lord 977 to the appointment of a committee to take into consideration the reports on the table because those reports were incomplete, he was far from thinking it a sound one. He doubted whether it would not be a wiser plan to take the matter up deliberately and in detail, as the reports from the commissioners might be from time to time presented rather than to wait until they should be so accumulated as to protract the termination of the labours of the committee to an almost indefinite period. The noble lord recommended that the subject should be left to government, and to the heads of the courts. He (Mr. P.) had known reports of similar commissions lie on the table of that House a long time, unnoticed by a minister of the Crown, or a head of the department to which they referred; nor was he very sanguine as to a more favourable result on the present occasion. If the noble lord would state any reasonable but specific time which, in his opinion, ought to elapse before the House, took any step on the subject, in order to give government, and the distinguished individuals at the head of the courts, an opportunity of taking up the subject, he, for one, would request his right hon. friend to withdraw his motion; but not otherwise. If the noble lord would not name any time, he must excuse him for saying, that his present opposition was evidently only a device for getting rid of the matter altogether.
Mr. Leslie Foster
contended for the propriety and advantage of committing the investigation in the court of chancery to the lord chancellor only, and in support of this opinion, he instanced the case of the commission appointed, in lord Hardwicke's time, for a purpose similar to that contemplated by the first motion of the right hon. baronet, when the report was made to the king in chancery, and in less than three years every abuse notified in it was corrected. There never had been so complete a clearance of the avenues of a court of justice. He had no doubt that, on the face of the report, there might be some instances of increase of fees and irregularity of practice; but in all the really important affairs of the court he was persuaded there was little ground for complaint. For the last seventy years there had not been one increase of fees, nor one abuse in the master's office; none in the register's office; in the six clerks office a few, but those small; in the sworn clerks office none since 1740; no increase in the 978 examiners of the court; none in the master of the reports; and none in the register of affidavits office. In this enumeration he had set forth the whole machine which substantially did the business of the court. He was far from saying that the report did not deserve consideration; but the question was, how the matter should be taken into hand? and he thought the same course should be pursued as before, and believed it must finally come to this. If a committee, formed of professional men, were to sit every day till the end of the session, their undertaking would be little less laborious than that of the former committee. He knew this by experience, as he had himself sat upon the commission in Ireland. He had then found the difficulty of the subject, and he was persuaded that a committee of the House was more likely to take up insulated points and to do harm, than to effect any real service. It would be by far the best mode to submit the whole to the lord chancellor, and if there were any points which be might not like to venture on, they might be made the object of a supplemental act. He was aware it might be urged, that this was calling the chancellor to be judge in his own cause, and that many of the fees of the court appertained to himself. At least this would be no objection as far as the fees of others were concerned; and, with respect to his own, it was to be expected, that the consideration of his own interest would, with so exalted a character, be an additional motive for the exercise of impartiality. It appeared by the report that not one of the lord chancellor's fees had been increased; and the report stated, that they were all ancient and legal. The right hon. baronet seemed to think otherwise as to the office of secretary of bankruptcies; but that had been lately regulated, and the lord chancellor had himself voluntarily relinquished 1.000l. a year to those who transacted a great share of the business. On these grounds he thought it would conduce to the public good, to put the reformation called for into the hands of the only competent authority, and he could assure the House that he would never support any undue delay.
§ Sir J. Newport
shortly replied, that he would forbear to press his motion, if the noble lord would name a certain time for the settlement of the business. However, he thought it unfair to refer to the lord chancellor the revision of office, in the 979 gains of which he himself participated. It had been said, that the lord chancellor had relinquished 1,000l., a year; but when had fie relinquished it? After the commission had been instituted! The office of secretary of bankruptcies had been discharged sometimes by one person and sometimes by another, and no regular appointment had been made till the inquiry took place. The noble lord had alleged that it was inconvenient to adopt general principles which might be controverted by the language of some subsequent report; but it was impossible that the principle contained in the first resolution could ever be impugned. The second resolution stated, that the immense charges on all proceedings at law imposed a binding duty on the legislature to examine into the charges made by the officers of the courts of justice, for the purpose of preventing abuses. The stamps imposed on law proceedings were the most fatal tax ever proposed, and had the effect of shutting up every avenue to justice. The noble lord was afraid of encouraging litigation, if the stamps should be abandoned; but if they were continued, the poor man was denied justice altogether. The load of law taxes had induced thousands to relinquish altogether their legal demands, because they could not pay the duties of the suit. No tax that could be devised could be half so injurious as this; not even a tax on the necessaries of life. If, by such a tax as that, an individual were prevented from purchasing a whole loaf, he might purchase perhaps half a one; but no man could obtain justice by halves, or pay for half a writ, if unable to discharge the stamp for the whole. The legislature should be called on to abandon these duties, which closed the courts of justice against every poor man, taught him to look for irregular means of redress and destroyed the proudest boast of England—that her courts of law were open to the poor as well as to the rich. He would not, however, press his motion, if the noble lord would name a certain day; but if the matter was to be delayed indefinitely, he must now take the sense of the House.
said, it was impossible to name a certain day on such a complicated subject; but it was open to the right hon. baronet to apply to the House again, if he thought the interval which might take place too long.
§ The House then divided; For the motion, 16; against it, 63.