HC Deb 01 May 1843 vol 68 cc1134-6

Mr. Escott moved for a return of all fees taken or demanded from defendants by clerks of assize and clerks of the peace in the several counties of England and Wales at the last two assizes and the four last sessions of the peace, as well as at any special commissions held within the last or present year. He had, shortly before the Easter recess, called the attention of the right hon. Baronet the Secretary of State for the Home Department to the practice which very generally prevailed of clerks of assize, and clerks of the peace at quarter sessions, taking certain fees, when they could get them, from defendants in cases of misdemeanour,—not only clerks of the peace, but the officers of the highest courts of judicature in the country. The clerks of assize were in the habit of demanding large fees from defendants in cases of misdemeanour before they could be placed upon their trial, and before their guilt or innocence could be determined by a jury. A return was ordered some time since with reference to this subject, on the motion of the hon. and learned Member for Bath; and he found, from that return, that on the Oxford circuit fees amounting to 7l. 16s. 8d. were received by the clerks of assize from persons charged with misdemeanours before they could plead; and this was not the maximum amount, for it might be increas- ed by the length of the indictment. The total amount of these fees received by the clerks of assize on that circuit in five years was 712l. 18s. 4d. No maximum was stated with respect to the Western circuit; but in a very recent case the sum demanded from a defendant, before her plea could be recorded, and she could take her trial, which terminated in a verdict of acquittal after only two witnesses had been examined—was 9l. 11s. On the Northern circuit, the clerk of assize stated that the maximum amount he received, supposing the legal measures were taken of which the defendant might avail himself for postponing the trial, was no less than 20l. 8s. 8d. He thought that these state merits would induce the House not only to agree to the motion which he now proposed, but to pronounce an unanimous opinion as to the impropriety of these charges. The general principle of law with regard to such charges was, that no charge was legal unless it was expressly authorised and sanctioned by act of Parliament, or unless in the absence of such authority the party making the demand had a clear prescriptive right to do so. Certainly the charges to which he now called the attention of the House were not authorised by act of Parliament, and he would undertake to say that no prescription, no usage, could sanction such gross injustice. It might be asked how this practice had arisen? He could not answer that question, he could only say that the practice did exist. He believed that it had been carried on with some degree of secrecy; that the clerks of assize had made these charges without its being generally known that they were made, and that the defendants, being frequently persons ignorant of such matters, had paid them without inquiry. The law was express upon this point, for it denounced most explicitly the imposition of such charges upon defendants. It was, indeed, a highly criminal offence to make such demands, for the parties who preferred them were guilty of extortion. Suppose the defendant refused to pay the demands made for recording his plea, the officer of the court said, "If you do not make the payment I will not record your plea, and if it is not recorded you will have failed to fulfil the terms of your recognizance, which requires you to appear and plead, and it will be forfeited." He had consulted his hon. Friends the Attorney and Solicitor general on this subject, and they agreed with him in the opinion that these fees were illegal, and that they ought to be abolished. He hoped, therefore, that the House would agree to his motion, and he had no doubt that a simple expression of its detestation of the practice would have the effect of preventing its continuance.

Sir J. Graham

said, that he was reluctant to express any decided opinion on a law question without consulting the Law officers of the Crown; but his hon. Friend had stated that he had received their sanction to his motion. On a former occasion a question had been put to him with respect to some fees exacted by the clerks of assize in Somersetshire. He had since ascertained that the standard of fees ought to be fixed and signed by two Judges of assize, and that the fees complained of in that instance were no longer exacted. By the 5th George 3d., it was distinctly enacted that no fees should be demanded from defendants, and—but for the positive statement of his hon. and learned Friend—he could scarcely have credited the accounts stated by him. There was an exception, however, in the case of a traverse—where certain fees were allowed. If the abuse existed in the manner described, it should certainly be put an end to, and the returns were of a very proper nature to decide this question. He, therefore, willingly supported the motion.

Lord Worsley

thought it extraordinary that these fees should be demanded, but he was not surprised that the parties should pay them, because they could not help themselves. The existence of this practice was only a proof that the clerks of assize and of magistrates should be paid by fixed salaries and not by fees.

Mr. R. Scott

conceived the case alluded to by the hon. Member constituted a gross infringement on the liberty of the subject. They showed that 'parties were punished before they were convicted.

Mr. Escott

said, that on looking over the returns he had received, he found that one poor unfortunate individual was charged a fee not only for his acquittal, but also for his discharge

Motion agreed to. House adjourned at a quarter past eleven o'clock.