HC Deb 26 March 1824 vol 10 cc1425-37

The House having resolved itself into a committee, to consider of the propriety of granting Compensation to officers for losses in consequence of the County Courts bill,

The Attorney General

said, that compensation had been rendered necessary by the bill introduced by the noble lord opposite (Althorp), for the regulation of County Courts. He had no intention to throw obstructions in the way of that measure: but if an important public benefit were to be conferred, it ought not to be at the expense of private individuals. Offices in courts of justice were not saleable, generally, by several ancient statutes; but there were exceptions, and by an act of Henry 6th, places in the gift of the Chief Justices of the courts of King's Bench and Common Pleas, were allowed to be sold. From that time to the present, therefore, they had been purchased, and even so lately as the year 1809, the provision of the statute of Henry 6th, was recognised and confirmed. In the report of the commissioners, on the fees of courts of justice in England, printed in 1818, special mention was made of the office of chief clerk of the court of King's Bench, as a saleable appointment, and it was considered as forming part of the emoluments of the chief justice of the King's Bench. Whether that judge ought to be allowed to derive a part of his salary from such a source was not now the question. The office of chief clerk was a very valuable place, returning about 7,000l per annum. Shortly after the appointment of the late lord Ellenborough, the chief clerk of the court of King's Bench died and his lordship, as the appointment vested in him, was offered no less a Sum than 80,000l. for the office, but his lordship preferred making a grant of it to his son. He was given to understand, that almost the whole patrimony of the noble lord who now held the place was derived from this source. It was needless for him to refer to the eminent services of the late chief justice of the court of King's Bench; for, if the sale of this place were looked upon as part of the just and legal emoluments of that high station, it would be extremely unjust, not to say ungenerous, to pass a bill depriving the present possessor of the office of chief clerk of his patrimony, without making him an adequate compensation. The three prothonotaries of the court of Common Pleas were in the same situation. Those offices were coeval with the establishment of the court, and they had been always sold by the chief justice for the time being. The general amount of purchase money was about 10,000l. The prothonotaries were obliged to provide clerks, and regularly and personally to attend. Though on the first impression it might appear injurious to the administration of justice, that such offices should be saleable, yet it had not been found so in point of practice. He would undertake to say, from his own knowledge and observation, that the duties of these offices had been discharged with the same fidelity punctuality, and diligence, as the functions of other offices in the gift of individuals, and which by law could not be sold. It was not to be forgotten, that the individuals to whom he referred had a freehold in their office, and that they were charged with taxes to a considerable amount. He also claimed compensation for the secondaries, who were appointed by the prothonotaries. They paid for their places; held them as freeholds; and their emoluments would be materially affected by the County Courts' bill. Another office, the fees of which would be reduced, was that of the master of the two sides of the court of Exchequer, the duties of which were performed by deputy; Mr. Rose had a freehold in that place which was saleable, and for which compensation ought to be made. Compensation was likewise due to an individual from whom he had received a letter, which if he read, the House would immediately allow the justice of the claim. His office was that of senior attorney and secondary of the court of Exchequer. He was a person advanced in life, and his emoluments, it was calculated, would be reduced by the bill to one-fourth of the present amount. Another class of officers entitled to compensation were the prothonotaries of the courts of Great Session in Wales. These officers had purchased their offices; had vested rights in them; had establishments to keep up for the performance of I the duties; were charged to the land-tax; and had, in every other way, been considered as possessors of freeholds. On these grounds it was, that he claimed compensation for them; and it was calculated, that as the writs issued would be diminished by one-fourth, there would be a proportionate diminution of their gross income, while many of the charges now imposed upon them remained undiminished. He had made inquiries concerning the office held by lord Ellenborough, and he found, that if the bill passed without a clause for compensation, he would lose 1,500l. a year. To lay a ground for compensation, he had only to state the question in this manner: if the office were taken away altogether, for the public advantage, there could be no doubt that a compensation would be given to those who had a life interest: If then for the same purpose, not all, but a half or a quarter of the emoluments of those offices were taken away, by a parity of reasoning, a compensation, in proportion to the loss, was due. He was happy, too, to be able to state, that the whole amount of compensation which the House would be called on to grant in this manner would not amount to more than 5 or 6,000l. a year; a sum small, in comparison with the benefits which would be conferred on the country by the bill of the noble lord. It had been said that the principle of granting compensation in this manner had been condemned by committees of the House. He should show on the contrary, that the principle of compensation in such cases had been uniformly sanctioned by committees and by the House itself. The finance committee of 1798, in its reports on the officers of courts of justice, expressed its opinion, that wherever alterations were made in the constitution of courts of justice, or any changes introduced to make legal proceedings less burthensome to suitors and the public, compensation should be made to the holders of the patent offices, which, though in other points of view materially useful, were in great part supported by the fees on the business they performed. The Report of the commission of 1740, of which lord Hardwicke was a member, was quoted by the committee of 1798, and it recommended, that whenever ancient fees should be abolished, compensation should be made to the officers by whom they were received. If to put a parallel case, the noble lord thought it for the public benefit to abolish the unnecessary proceedings in the transfer of a certain description of property—copyhold property, and to abolish the fines, reliefs, heriots, &c. on admissions, would he not think it necessary to give compensation to the lords of manors? All property depended upon the laws; and the particular kind of property which was affected by the bill of the noble lord, had been sanctioned by repeated acts of parliament, and particularly by the act of 1809.—But it would be said, that it was necessary to see how the House had acted in similar cases. From the time of William 3rd parliament had been in the habit of granting compensation for the loss of fees. By the 6th of William 3rd a particular writ, called capias pro fine, which was deemed oppressive, was abolished; but parliament felt that it could not take away the fees without compensation to the officer; and the fees were directed to be paid as if the writ had issued. In 1803 a bill was brought in to alter the mode of proceeding in the court of Exchequer in Ireland, and a particular class of officers being affected by this alteration, a clause was inserted in the bill to prevent the officers from being injured by the change. The preamble of that clause of the bill might be without alteration applicable to the present bill; it declared, that whereas the lawful fees and emoluments of the parties might be reduced, it was just and reasonable that compensation should be made. There was another case—that of the court of Requests in the borough of Southwark—which was exactly parallel to the present bill. The court of Requests had only jurisdiction at first to the extent of 2l., but it was raised to 5l., and it was thought that this extension of jurisdiction would diminish the amount of business of the court of Marshal-sea, and accordingly it was directed, that 50l. a year should be paid out of the fees of the court of Requests to each of the four Counsel of the court of Marshal-sea. Now, this was precisely parallel to the noble lord's bill. The transfer of business effected by this bill, would carry fees from the courts of Westminster-hall to the County Rates or the Consolidated Fund, according to the ultimate destination directed in the noble lord's bill, and out of one of those funds, according to the precedent of the Southwark court of Requests' bill, compensation should be made to the officers who suffered by the change. There was another case in the granting of leases under the Crown. It was formerly the practice, that leases granted by the Crown should be issued from the Exchequer. It was deemed, that it would tend to the improvement of the administration of the revenue, if the leases were granted in the ordinary way; but, in effecting that public benefit, it was not thought fit that individuals should suffer, and lord William Bentinck, who held the office of engrosser of writs in the Exchequer, and who was injured by the change, received compensation under the same act. In the bill for regulating the court of Common Pleas in Ireland, the prothonotaries, who are sinecure officers, received compensation for the loss of fees; and, in an act of parliament as recent as the last session, the same principle was established; for, in that act, founded on the report of the commissioners on the fees of courts of justice, the judges of the courts of King's Bench and Common Pleas were authorized to regulate the fees of their courts; but it was directed, at the same time, that as it was possible that officers of the courts might suffer loss, they should report what compensation should be made. The hon. and learned gentleman, after recapitulating the grounds on which he urged the motion, moved a resolution,

"That it is the opinion of the committee, that his Majesty be enabled to grant an annual sum out of the consolidated fund of the United Kingdom of Great Britain and Ireland, by way of compensation, to be paid to the present chief clerk on the plea side of the court of King's Bench in England, the clerk of the rules, and the clerk of the papers of the said court; the present prothonotaries, secondaries, and filacers of the court of Common Pleas in England; the present master, senior attorney, and secondary of the plea side of the court of Exchequer in England; and the present prothonotaries of the courts of Great Sessions in Wales; for any deficiency in their lawful fees and emoluments, that may arise in consequence of any act that may be passed in the present session for the more easy and speedy recovery of Small Debts is England and Wales."

Lord Althorp

wished he had been convinced by the speech of the hon. and learned gentleman, not only because it was unpleasant for him to stand up to oppose a claim for compensation made in behalf of gentlemen with many of whom he was acquainted, but because he was aware, that, with a view to facilitate the passing of his bill, it would be good policy for him to accede to the motion. But he thought this principle of granting compensation for losses indirectly occasioned, could not be too strictly watched; and he thought the House should have more direct precedents than those adduced by the hon. and learned gentleman, before they saddled the country with the burthen. The only precedent in favour of the hon. and learned attorney-general, which could be at all considered as a direct one was, that of the compensation made to the counsel of the court of Marshalsea. But this, if not technically, was substantially a private measure. The compensation was not made out of the consolidated-fund. The officers of the court of Requests, who received more fees is consequence of their extension of jurisdiction, undertook to pay 50l. a year to the counsel of the Marshalsea, who suffered by that change. The hon. and learned gentleman had referred to Ireland, but he would find in that country a precedent directly against the principle for which he contended. When the mode of proceeding by civil bill was introduced—which comprehended cases to a much greater amount than the present measure, he believed as high as 20l.—there was no idea of granting compensation to the superior courts. He did not think the hon. and learned gentleman was borne out in his analogy drawn from private property. If a man's landed property were taken for a public purpose, compensation was made to him; but if, by any measure taken for the public benefit, that property was incidentally rendered of less value, compensation was not made. For instance, if a new and shorter road was made between two towns, there was no compensation made to the owner of an inn on the old road for the loss of custom. This was a question of great importance to all future improvements in the jurisprudence of the country; for if every man who brought in a measure of improvement was to be assailed with claims for compensation, and obliged to saddle the country with salaries on account of every incidental loss of fees, it would operate very much to deter all such attempts. He, for one, though since he saw the advantages that might result from the bill, he should not now be deterred from urging it on by the claim for compensation, should have been very reluctant to propose it, had he foreseen that claim. He should move a resolution to put his sense of the subject before the House, though he should not press it to a division. He then moved as an amendment—"That it is the opinion of the committee, that no precedent exists for a compensation being made to persons holding offices for life in the courts of Westminster hall, for diminution of fees resulting from the establishment of courts for the recovery of small debts, and that the establishment of such a precedent is inexpedient, as it will go to impose fresh burthens on the people, whenever any measure of improvement s introduced in the system of jurisprudence.

Mr. M. A. Taylor

said, he was friendly to the principle of the bill, but he could not consent to pass over the rights of individuals. Many of the persons who held offices in courts of justice, had given up professional pursuits for what they considered as freehold places. He was instructed to state the case of one very respectable individual, the county clerk of Durham, who was appointed by the bishop under patent Though that office did not produce more than 200l. a year, it was as much a freehold as any of their estates. He hoped the noble lord would not risk his bill, which was calculated to be most useful to the country, for the sake of this 5,000l. a year. He should move to introduce the name of the county clerk of Durham into the resolution of his hon. and learned friend the attorney-general.

Sir George Rose

stated the case of the clerk of the plea side of the Exchequer. His office had been executed by deputy: one half of the profits were paid to the deputy, and the principal paid the whole expense of the establishment. According to the best calculations, the bill will reduce the receipts one-fourth; so that it was obvious the condition of this officer would be anything but advantageous. This, he thought, formed no substantial objection to the bill of the noble lord, the object of which was most laudable. Nothing could be more honourable to a man of the noble lord's rank, than to see him thus devote himself to the endeavour of procuring a freer and cheaper administration of justice.

Mr. Littleton

was sorry the noble lord did not accede to the claim for compensation, which appeared to him so just. As to the clerk of the court of King's-bench, the late lord Ellenborough had his mind so fully impressed with the sacredness of that office, that he left it to his son, and left him little else besides the income of it. Nor was it surprising that the late lord chief justice should have felt so confident, after the uniform language of commissions and committees. He reminded the noble lord, that there was never a case in which a bridge was built, but compensation was made to the owner of a ferry, if the ferry was injured by it, even though the bridge was not built on the land of the owner of the ferry. He thought however, that the House should take an early opportunity of revising the patent offices of courts of justice, which were the cause of great injustice to the other officers of the courts. The salaries of the chief justices of the court of Common Pleas and King's Bench were small, on account of the patronage of those offices. It so happened, that the late lord chief justice of the King's Bench was enabled to make a provision for his family, but the present chief justice was left with the reduced salary, and with no means of making any such provision.

Mr. L. Foster

supported the amendment.

Mr. R. Smith

said, that if compensation were not granted to these officers, they would be placed in a worse situation than if the offices were wholly abolished. In the latter case, they would be able to turn their talents into a different channel, whereas, in the present case, they were left sticking in their offices, while half their emoluments were taken away.

Mr. Bankes

thought, that, in point of principle, it was just that a fair and adequate compensation should be made to the holders of patent offices, whose incomes might be deteriorated by the effect of any legislative measure. Among the cases, however, which had been cited by his hon. and learned friend, the compensation which had been granted in Ireland appeared to him particularly objectionable, on account of the extravagant terms on which it had been made. He considered that case as one of the grossest abuses of the principle of compensation which had taken place even in Ireland; where there had been so many instances of improvident compensations granted at the time of the Union. Admitting the principle to be just that compensation ought to be made to the holders of patent offices, if the value of the offices were affected by an act of parliament, he thought, at all events, they ought not to legislate before it was ascertained to what extent the profits of offices would be diminished, or whether in point of fact, they would be diminished at all. The resolution proposed by the hon. and learned attorney-general was altogether premature. It would be better to allow the aet to continue in operation for twelve months; by which time its effect on the value of these patent offices would be ascertained, and the House would be in a condition to grant a fair and adequate compensation.

The Solicitor General

agreed with the hon. member for Corfe Castle, that the amount of compensation could not be ascertained by anticipation; but, they were now discussing the preliminary question, whether any compensation should be granted? He should be ever ready to give his support to any measure which was calculated to effect a reform and an improvement to the administration of public justice, but it was necessary, at the same time, to protect most scrupulously the rights of property. That House was the asylum for reform; but it was also the sanctuary for the principles of property. The principle of compensating individuals who held offices, the value of which might be affected by a change of the law, had always been recognised by that House. Suppose the mode of authenticating wills were abolished, would not the persons who held offices of profit in the ecclesiastical courts be entitled to compensation? If the form of passing real property by fines and recoveries, or if the registration of deeds in the counties of Middlesex and York were abolished, would not the persons holding those offices be entitled to compensation? The principle of compensation ought certainly to be circumscribed within just limits; and he thought the office in the palatinate of Durham, to which the hon. gentleman opposite had called the attention of the committee, came within those limits.

Mr. Abercromby

said, he should be happy if he could bring himself to accede to this principle of compensation, but he had not been able to come to that conclusion. It had occurred to him at first, that there was a reasonable distinction between those offices which were the subject of purchase, and those which were not; but, upon further reflection, he saw no sound reason for that distinction. His hon. and learned friend had said that there was an implied compact between the officers and the public. He admitted that there was such an implied contract, to a certain extent; for instance, they had no right absolutely to abolish an office without compensation during the holder's life, or if a man had been accustomed to receive 2s. 6d. as a fee, they had no right to reduce it to Is. It would be a great public evil, however, if no measures could be taken to effect an improvement in the administration of justice because the indirect effect of those measures might be to diminish the quantity of business brought to the offices of those individuals. If such were the nature of the contract, no time ought to be lost in giving notice to all future purchasers, that such a claim would not hereafter be recognized. The holders of these offices were not the only persons whose interests would be indirectly affected. His hon. and learned friend, the attorney-general, was aware that there were a great number of individuals who had embarked a considerable capital in the expenses of a legal education, under the supposition, that the court of King's Bench would retain all its present business. If these persons were to make a claim on that House for compensation, would not the House laugh such an application to scorn? Yet, in point of fact, there would he no difference between such a claim, and that of the holders of offices, for there was no specific contract, on the part of the public, in either case. The alteration of a road by an act of parliament, which, from time immemorial, might have passed through a particular village, had often reduced many families to poverty; but was a claim for compensation ever heard of in such a case? The objections which had been made to the resolution by the hon. member for Corfe Castle, in point of time, were, in his opinion, unanswerable. Nothing could be more preposterous and unjust than to shew such extraordinary tenderness to these individuals, on a mere speculation, that certain consequences would ensue, and that they were therefore entitled to a certain amount of compensation. These consequences might never arise; and if these individuals got the compensation for an anticipated injury which they might never suffer, he should be glad to know how the country was to get it back again.

Mr. Sykes

said, he had considered this to be a measure which was calculated to produce the greatest benefit to the country; but, if the principle of compensation were carried to the extent contended for, he believed no advantage whatever would be derived from it. Claims would be preferred by all the holders of places of special jurisdiction throughout the kingdom. At the present time, and under the present circumstances, he thought the claims for compensation perfectly unreasonable. If the measure must be clogged with this principle of compensation, it had better be abandoned; for. under such circumstances it would lose its character with the public. He thought the claim quite unreasonable.

The Attorney General

said, that he meant to construct a clause in the committee on the bill, which would, he was convinced, obviate all the objections; but he could not frame such a clause, unless his present resolution was agreed to. It was merely to pave the way to such an arrangement that he proposed this resolution. As to the objection, that there would be no limit to the number of claims, no offices would be entitled to compensation, except such as were specifically in- cluded in this resolution. He should include the office to which the hon. member for Durham had alluded; because it would be a hardship on the officer who held it if a compensation were not granted to him, and it would make no material difference in the sum which he proposed to apply to these compensations.

Mr. Hume

thought the resolution ought to be amended by a declaration, that it should not be lawful for any chief justice, or any other person, to sell or dispose of any of those offices for which compensation was proposed to be given. He wished to know whether it was the intention of the attorney-general to introduce such a clause?

The Attorney-General

said, he certainly did not intend to propose any clause, that would tend to restrict the emoluments of the chief justices.

Mr. Hume

said, that they ought to be paid by direct salaries in a sufficient manner, and not by the sale of offices.

Lord Milton

could not assent to the principle of purchasing the right to effect a great public improvement in the administration of justice. Let the grievance first be redressed, and the inquiry into individual and incidental injuries follow. He agreed with the hon. member for Corfe Castle, that they ought not to legislate on this subject by anticipation. If the suitor was offered a better mode of redress it one court it was natural that the fees of the officers in the other courts should be diminished pro tanto; and, speaking upon principle, if they compensated at all, they should extend the compensation to all officers, and not confine it merely to the rich and powerful, whilst they passed over those who had not equal facilities to make their voice heard in Parliament. But he was opposed to the principle of compensation altogether, for he thought there was no reason why allowances should be made to persons who might happen to be incidentally injured.

Mr. Abercromby

was desirous to know for what length of time these compensations were to be carried on. If his hon. and learned friend should answer, that they would terminate with the life of the present officers, then would arise the question respecting the chief justice; for if the emoluments of these officers should be diminished, he would of course receive proportionally so much less for them when, they fell within his disposal.

The Attorney General

said, it was his intention to confine the compensation to the lives of the present holders of the offices, and not to extend any remuneration to any beyond those with whose lives the interest should expire. With respect to the latter point, there was a precedent by which he meant to be guided. A question had arisen some years back, with respect to the right of selling the office of master in chancery in Ireland. It had been doubtful, whether such a right did in reality exist; but it was found to have been sanctioned by long usage. And what did Mr. Ponsonby propose to do? He brought in a bill to prevent the sale of the office in future, only allowing those who had purchased the office the privilege of selling it because it would have been hard to prevent them from so doing. So that here he had a precedent, by which he was justified in stopping at the precise point he proposed.

Mr. M. A. Taylor

then proposed the addition of the name of the county clerk of the County Palatine of Durham.

Lord Allhorp

said, that if compensation were to be granted to any man, no one had a better right to it than this gentleman; since a considerable portion of business would be taken out of his court by the operation of this bill.

The proposed addition was agreed to. After which, the amendment moved by lord Althorp was negatived, and the original resolution agreed to.