HC Deb 12 March 1845 vol 78 cc759-71
Sir J. Graham

moved that the Justices' Clerks and Clerks to the Peace Bill be read a second time.

Mr. Tatton Egerton

would not oppose the right hon. Gentleman's measure, but begged to submit to him the propriety of postponing the present stage to a future period. The Bill proposed to place the parties whose present position it affected upon an equal salary throughout the country. Now, he begged the right hon. Boronet to consider what an enormous expense he was imposing on the community by this proceeding. A sample of the working of such a Bill might be seen in other measures of a similar tendency. It was only the other day that a Bill came under his notice by which 600l. a-year was granted to one clerk and 400l. to another as commutations for their emoluments, and the duties which they had to perform only occupied them two days in the week; whereas the magistrate, who was superior to them both, was paid only 800l. a-year for duties incommensurately heavier. The right hon. Gentleman was also not contented with making that alteration, but he also forbade the clerks from conducting any prosecutions, and thus a double expense would be imposed upon the counties. Look also at the magistrates' position. The Bill made no provision for the attendance of magistrates' clerks at petty sessions, and the consequence was, that the magistrates must have private clerks to attend. He would not press his opposition to the Bill, though he certainly wished to see it postponed.

General Johnson

asked why the Bill could not be separated into two Bills—one relating to clerks of the peace, and the other relating to magistrates' clerks? The last class of persons had never been heard of before the Bill brought them so prominently into notice. It would be far better to separate the two classes of clerks, and to fix the emoluments, though he certainly considered that fees were preferable to a salary.

Mr. Darby

said, that the Bill would not only add greatly to the expenses of the counties, but it would also very much complicate the machinery of justice and of country business. He doubted if it could be carried out. The very best lawyers ought always to be employed as justices' clerks, and the Bill would effectually prevent that if they were not allowed to conduct prosecutions upon which so much of their emoluments depended. If that part of the Bill were persevered in, a very inferior class of persons would henceforward be found willing to act as justices' clerks. With respect to the fees, he did not see what was gained by substituting salaries for them, and he doubted, moreover, whether the substitution would be effectual. It was a very common practice for magistrates' clerks to abandon their fees; but as now fees would become public property, he doubted whether they could be abandoned after the Bill was in operation, and therefore those who were to derive benefit from it would receive none.

Mr. Brotherton

saw no reason for putting off the Bill. The principle was good, only he did not think it was carried far enough. He thought it would be an improvement in the Bill, if magistrates' clerks were allowed to conduct prosecutions; but they ought still to be paid by salaries, and not by fees. Such was the practice in the borough which he had the honour to represent. The magistrates' clerks there had no interest whatever in sending persons for prosecution. At present, generally speaking, they were interested in sending cases for prosecution, because their fees depended on the numbers of such cases, and thus a heavy expense was thrown upon counties upon frivolous grounds; whereas, if the magistrates' clerks were paid by salaries, they would not be interested in sending cases to the sessions; the business of the country would be better done, and at a far less expense. It had been suggested that it was better to appoint a prosecutor, but of this he would say nothing.

Mr. Henley

observed, that the magistrates' clerks had many other duties to perform besides those which related to prosecutions; such, for instance, as the appointment of proper persons for overseers, the choice of competent surveyors of the highways, and a variety of similar functions, for which they were remunerated by fees; and he feared if salaries were substituted for that sort of payment, those duties would henceforward be performed in a slovenly and ineffective manner. He feared that if clerks at petty sessions had fixed salaries, there would be a disposition to hurry through cases. He confessed that he had never been able to see any data on which they could calculate what would be a just salary to be given to clerks of the peace; he was by this Bill to be paid a compensation for his fees and emoluments; but he should like to know what was meant by emoluments; and it would be difficult to find any proper sum to assign to gentlemen for an average of five years or even of one year in prospective. The gentleman who was clerk at Bow-street acted under a magistrate who was a barrister of some standing, and was constantly employed; whereas in the country the clerks were not constantly employed, and had to advise the magistrates on points of law. The Bill, however, was much mixed up in its principle and in its details, and he should not oppose its second reading.

Sir James Graham

hoped he should not inconvenience the House if he followed his numerous Friends on this (the Ministerial) side, who, he was sorry to find, did not much encourage him in the progress of the Bill. He could assure his hon. Friends that he undertook the measure from an earnest desire to promote the better administration of justice—an object common to them all—and that he entertained an earnest desire to pay respect and attention to the various suggestions which had been thrown out by many men of great practical experience, and of much and attentive observation, in reference to the matter contemplated by the measure. At the same time he would observe, that on the present occasion they were discussing only the principle of the Bill. Many of the objections taken by the hon. Gentlemen on the same side of the House with him, and by some on the opposite side, applied rather to its details than to the principles of the Bill; but he admitted that in a measure of that kind, details and principles were so blended together in the discussion, that it was hardly possible to separate them. Let him first apply himself distinctly to the principle of the Bill. Shortly stated, it was this—that, on the whole, justice was better administered by public servants receiving salaries for the duties performed by them, than by receiving fees for these duties. That was the simple principle of the Bill; and with reference to the administration of justice, it might almost be considered an axiom of which it was altogether superfluous to adduce proof. The Bill before the House proceeded upon that conceded principle; and to that principle, he thought, notwithstanding all that had been said, there could be no serious objection. The application of the principle he admitted to be difficult; but still the principle was, that salaries, on the whole, with reference to the great body of the community—whose interests were involved in the pure and prompt administration of justice—were preferable, as a mode of payment to the officers and dispensers of justice, to fees. He was bound to state that he agreed with his hon. Friend the Member for Sussex, that in applying the principle it was their duty to pay attentive consideration to the interests of the ratepayers, from whom the salaries, at all events in the first instance, of the clerks of the magistrates and of the clerks of the peace were to be drawn. In the first place, he was satisfied that not only the ends of justice would be better answered by the payment of salaries, but he entertained also a very strong opinion that, in the end, economy and the interests of the ratepayer himself would be promoted by the measure they were then discussing. His hon. Friend the Member for Cheshire said that enormously high salaries would be awarded by the magistrates in quarter sessions. He thought much too well both of the prudence and of the sense of justice of the magistrates, considering that they held a trust of the highest responsibility, and a trust of the most honourable description, to believe for one moment, that any such abuse of discretionary power in their hands is to be anticipated. He could see no trust more obligatory on men of honour than that devolved upon the magistrates of the country — that nothing in the shape of prodigality should be tolerated or countenanced. They had an absolute power, controlled only by their discretion, over the county funds. In the disposal of these funds there was no check upon them, except that imposed by prudence and honour; and, acting as gentlemen under these restraints, he was quite satisfied the magistrates of England would find it economical as well as just, that the principle of the Bill should be carried into effect, and that the salaries awarded to the clerks of the peace under the powers given by the Bill, whilst not immoderate, should be adequately sufficient. It was urged by some hon. Gentlemen that if clerks were paid, not by fees, but by salaries, they would perform their duties in a more negligent manner, and that they would be less diligent in their business. But his hon. Friends must bear in mind that, under the provisions of the Bill before the House as it now stood, the power of removal was absolute. That power was given to the magistrates. The hon. and gallant Gentleman the Member for Oldham said, that the clerks of magistrates were a set of functionaries unknown to the law. The office of justices' clerks was perfectly known to the law; but it was not of a permanent character, as compared to the office of a clerk of the peace. But the hon. and gallant Gentleman would allow him to say that, whether known to the law or not, the office was exceedingly well known to that part of the community brought by circumstances before the magistrates, and who sought to obtain justice at their hands. In such cases, the office alluded to was well known by those who had to pay the fees exacted by these clerks. There was a very general leaning on the part of the magistracy, in petty sessions, to consider the interests of their clerks. In this respect some salutary check should be imposed upon them. Now, he knew no check so certain, and that would be so satisfactory in its operation, as the payment of salaries, instead of fees, to the clerks. Many Gentlemen had referred to that particular clause in the Bill which referred to the conduct of prosecutions by the clerks of the magistrates. During last Session, in reference to this matter, he had proposed a provision exactly the opposite of that which was inserted in the present Bill. The information which he had received on this head during the recess, and his own subsequent consideration of the whole subject, had led him to believe that the proposition which he had made last year was, on the whole, untenable. He feared that there would be a tendency, after all, to multiply needless prosecutions if the clerks of petty sessions had the sole and exclusive power of conducting them. On the whole, then, he thought it preferable to place the regulations of the Bill, with respect to this matter, on the footing on which they now stood. But that was a matter quite open for discussion. If the Committee should be of opinion that the provision of last year was preferable to that in the present Bill, such opinion would not affect the main question they were then considering. His hon. Friend the Member for Cheshire appeared to think that there was something new and strange in the proposition that the clerks of the peace should keep an account, and pay over the fees received by them into the public funds. He thought that the proposition was just. With reference to clerks of the peace now in possession of their offices, the average of their fees for the last seven years would be taken, in order to fix the amount of compensation to be given them out of the public funds. With reference to clerks of the peace hereafter to be appointed, the case was quite different. The amount of their salaries would be placed at the disposal and at the discretion of the magistrates in quarter sessions. He was sure that the duties devolving upon all these officers would be better performed if a moderate salary were attached to their office. The hon. Gentleman the Member for Sussex made an observation with regard to the remission of fees. He was quite prepared to admit that if, on the one hand, as was stated in many cases, fees to a very large amount, with the consent of the magistrates, were sometimes taken needlessly from parties applying to justices at petty sessions for the administration of justice,—on the other hand, he was well aware that fees were remitted, and, as he thought, most justly and properly remitted, on many occasions. He had seen the difficulty stated in reference to this matter. He was aware that to give a discretionary power to the magistrates to remit fees, considering the salary of a clerk as fixed with reference to the scale of fees to be received, was open to objection. Yet, when the Bill went into Committee, he was perfectly willing to consider the question, whether the discretionary power of remitting fees might not safely be placed in the hands of the magistrates. The hon. Gentleman the Member for Oxfordshire anticipated that an inferior class of persons would be appointed as clerks. One of the great objects contemplated by the Bill before the House was, to take precautions against the inferior character of many persons at the present moment filling the important office of magistrates' clerks. He did not wish to particularise; but within his own knowledge there were persons who at this moment filled the office, being at the same time totally disqualified for it. In the Bill which he was now pressing on the consideration of the House there was a qualification clause, which was, in his opinion, an ample precaution against the recurrence of the evil to which he had just referred. The hon. Member for Oxfordshire had also fallen into an error with respect to the uniformity of fees. He thought it was competent to make the fees of clerks of assize and the fees of clerks of the peace uniform. He contemplated by his Bill, giving throughout England, all clerks of the peace similar fees. There would be a uniformity in the amount received by clerks of the peace, as there would also be in the amount received by clerks of assize. But he did not contemplate that the fees of clerks of the peace and the fees of clerks of assize should be identical. With regard to the clerks of magistrates, the practice had been that the fees of those officers should be passed by the Judges who happened to go the different circuits. Now it was found that in different counties, contiguous to each other, the fees thus passed and adopted varied frequently to a great extent. He must say that the interests of those who sought for justice in the different courts of this country—whether inferior or superior, required that for the same judicial act throughout England the people of this country should be called upon to pay, not different prices in different places, but the same price throughout, and that a moderate price. The Bill before the House secured that great object. The controlling power over these fees it took away from the Judges, and gave it to a responsible Officer of State, the Secretary for the Home Department, whose duty it would be, acting on his responsibility to the House and to the country, to regulate the fees of three great classes of officers, the clerks of assize, the clerks of the peace, and the clerks of magistrates. The hon. and gallant Gentleman (General Johnson), asked him to separate the Bills, a suggestion also pressed upon him by some of his hon. Friends on that (the Ministerial) side of the House. If he were right in his position that all officers of justice should be paid by salaries and not by fees—if he were right in his second position, as regarded uniformity of payment of fees throughout England—they could only properly arrive at all the objects of the Bill, and especially at the uniformity so much wanted and so much desired, by classing together, in one measure, what related to the administration of justice, whether it referred to assize or quarter sessions, special or petty sessions; they could, in fact, only arrive at their object by dealing with the measure in the comprehensive manner in which he had endeavoured to deal with it. They might vary the details of the Bill in Committee. He was desirous that the House should now read the Bill a second time; and when it went into Committee, he would willingly give his utmost attention to any suggestions which might be made for its modification in matters of detail. He did not think it was altogether decorous in the hon. Member for Oxfordshire (Mr. Henley) to talk of country justices, aided by their clerks, groping their way through the Statutes. The hon. Member thought that higher fees should be given to clerks, in order to secure men of attainments in the office. He (Sir J. Graham) thought that an adequate provision should be made for the due and proper administration of justice throughout England. He did not, however, see that it was necessary to pay a higher sum for that purpose anywhere else than was paid for it either in the metropolis or in any other large city or town where the services of professional men could be obtained. The Secretary of State was bound to fix equal fees throughout England. The whole of the provisions of the Bill which he had the honour to present to the House, would, if permitted to become law, have a salutary effect on the administration of justice. His belief was, that it would not be attended with great extra expense. He believed that the salaries which magistrates would fix with reference to services would not, on the whole, be greater than the fees now received throughout the country. And even if the fees should not, in all instances, cover the salary, he would call on his hon. Friends in the House to remember that, after all, with reference to the fees received by the clerks of the peace, and by the clerks of magistrates, though the ratepayer might, for salary, pay something more, yet the inhabitants paid the fees as now exacted, and in this respect would pay so much less. They would then confer a benefit upon the community at large, even though the county rates should be increased, which he did not anticipate. It would be seen that, on the whole, the inhabitants would be relieved, although the ratepayers should, in the first instance, feel a slight additional burden. He could not for a moment believe, with reference to the remission of fees, where an individual was placed in the painful position of being innocent and put on his trial, and obtaining an acquittal, that on any account fees in this case should be exacted. Such an exaction, under such circumstances, would be oppressive and monstrous. He trusted the House would not oppose the second reading of this Bill—a Bill which he considered calculated to effect much practical good, and to secure the purity and cheapness of the administration of public justice.

Mr. Escott

was obliged to the right hon. Baronet for introducing this measure, by which very important objects would be attained. The objections which had been started applied more to the details than to the principle of the Bill; but he was convinced that those who had urged them could not be aware of the enormous evil which the Bill would remove. The Bill embraced a system of payment by salary in lieu of fees. That might be an excellent system to work on; but it was not the Bill for which he asked the right hon. Baronet last year. The measure he asked for was a short declaratory Act to put an end to the system of unjust and illegal fees. One clause would have effected that object; and it appeared, by the unanimous testimony of the hon. Gentlemen who had spoken that night, that no objection would have been raised to such an enactment. However, he was far from saying that the right hon. Baronet would not have done better by going further; though it was enough for him (Mr. Escott) to know that the Bill now introduced would abolish those unjust and illegal fees. But, in fixing salaries to these officers in lieu of the abolished fees, it would be necessary to ascertain what those fees were; for the House had no right to make the ratepayers pay on account of illegal fees, but only on account of legal fees. It frequently happened that a poor labouring man was called on to pay 3l. or 4l. before he could plead to a common assault, for which 1s. would probably be an adequate punishment even on conviction. Thus this system might be used as a means of oppression by any one having a spite against another. He wished all these officers to be well paid for their services; but he did not think that the amount of illegal and extortionate fees should be taken as a rule for fixing their future salaries. He repeated that he was obliged for the introduction of the Bill. It would be a great benefit to make courts of justice objects of affection to the people, which they never could be until they were purified from extortion.

Mr. Miles

thanked the right hon. Gentleman for introducing a Bill so well calculated to remove an existing evil. He was glad to see the Solicitor General in his place, and wished to know from him whether fees taken under an Act of Parliament were illegal or not? He understood that upwards of thirty counties paid salaries to the justices' clerks instead of fees; and he also wished to know from the Solicitor General whether it were legal to pay them salaries? He did not think the accusation made against the clerks of the peace of taking illegal fees just. An Act passed in the 27th of George III. regulated that a table of fees was to be settled in one Session, and two Judges of Assize having in the ensuing Session approved of that table, it became the legal standard of fees for the county; and if the clerk of the peace charged fees not authorised by that table he became liable to an action for extortion. The fees taken by the clerk of the peace were therefore legal fees, and should be regarded as such until the Legislature altered the law under which those fees were charged. He thought the proposed alteration in the law necessary, and he had made those observations because he did not like to see any aspersions thrown on a class of men, who, in charging those fees, were acting under the authority of an Act of Parliament.

Mr. Hawes

was disposed to think the fees legal; but thought it unnecessary to raise that question, as those fees were now about to be put on an equitable footing. He approved of the measure before the House, and hoped no obstacle would be thrown in the way of the right hon. Gentleman who had introduced it, and who, he hoped, would succeed in carrying it into law.

The Solicitor General

said, he had been asked if those fees settled by Act of Parliament were legal. If they were so settled, most unquestionably it was perfectly legal to take them. But his hon. Friend had imposed a greater difficulty on him in asking him to state the law and the facts of the case. If his hon. Friend would state the facts, he (the Solicitor General) would do his best to state the law of the case. But there appeared to be some difference between the hon. Member for Somersetshire and the hon. Member for Winchester about the facts of the case; and it fortunately happened that there was no necessity for the House to determine which of them was right. But the reason why he should not venture to express an opinion was, that this was a question now pending before a Court of Law. He should have to argue this question in another place, and before a tribunal competent to decide it. The facts of the case would be there ascertained, and when the facts were known the law could be applied. He should, therefore, with great submission to the hon. Member for Somersetshire, decline to give an opinion upon the law, and leave the facts doubtful for the present. The House seemed to be agreed on the principle of the Bill, and he had little reason to suppose that when they came to the consideration of the details any difference of opinion would arise.

Mr. Wakley

thought the Solicitor General should have given a direct and explicit answer to the question—whether it was legal to grant compensation for fees which had been taken illegally? That was an important question; but whenever a question was put to a legal Gentleman in office, there was always a difficulty in answering it. The question was always sure to take him by surprise. It must be very unsatisfactory for a legal gentleman to answer every question respecting the state of the law, as hon. Members were in that state that they did not understand the laws which they themselves had made. The right hon. Gentleman who had introduced the Bill was entitled to much praise, and he (Mr. Wakley) hoped the same principle of reform would be extended to the higher courts. Only ten years ago he had the misfortune to publish a statement respecting a country magistrate, for which he thought proper to issue a criminal information against him. A printed paper was served on him, which contained no account of the accusation. On inquiry at the Crown Office, he was informed that certain affidavits had been filed. It was necessary that he should answer these; but he could not see them without paying 3l. or 4l. Subsequently he had to file affidavits in reply, and had to pay more for them than he would have been charged in the event of his conviction. That practice was at present in operation at the Crown Office. The system was inconsistent with the administration of justice, and he hoped, wherever it existed, it would be abolished.

The Solicitor General

thought the hon. Member for Finsbury had hardly done him justice, for he had never evaded answering a question that had been distinctly put. Had he heard the question alluded to, he should certainly have answered it. The question was—whether a party who had taken illegal fees, and which illegal fees were afterwards abolished, was entitled to compensation in respect of those fees? Did it require a lawyer to answer that question? He thought it did not require even the ingenuity of the hon. Member for Finsbury. Such an officer was certainly not entitled to compensation.

Bill read a second time.

House adjourned at twenty-five minutes past eleven o'clock.