§ Order for the consideration of the Bill, as amended, read.
§ MR. WESTHEAD moved a clause in lieu of Clause 91, providing for the transfer of all documents and papers to the District Court of Probates.
§ Clause brought up, and read 1°.
§ Motion made and Question proposed, "That the said clause be now read 2°."
THE ATTORNEY GENERALsaid, he must oppose the clause. He had no objection to send the documents to the District Court of Probate when established—it would be absurd to send them anywhere else. But he preferred the 91st clause as it stood, agreeing in principle with the hon. Member, that the documents ought to be left with the Registrar when the Court was established. He hoped the hon. Member would be satisfied with this assurance.
§ MR. WESTHEADsaid, that he was satisfied, provided a verbal alteration be introduced into the 91st clause, rendering the necessity of transmission to the Registrar more stringent.
§ Motion and Clause by leave withdrawn.
§ MR. WESTHEADthen moved a clause, granting compensation to advocates practising in the Courts of the Province of York and diocese of Ripon, such compensation 1378 to be in amount equal to half the profits made by such advocate, as determined by the average of the last five years.
§ Clause brought up, and read 1°.
THE ATTORNEY GENERALsaid, he could not agree to the proposition. The line of compensation had been laid down to its extremest limit, and he would not consent to go a step further. The proposition of compensating counsel was unheard of, and could not be entertained. The profession of an advocate was supposed to be honorary.
§ MR. WESTHEADsaid, that he had no interest in the matter beyond protecting the interests of his constituents, and he had therefore thought it right that the claims of the advocates should be brought before the House. The case of the advocates in the Prerogative Court of York was very peculiar. There were but four of them, and they had an exclusive right of audience, although the great advocates from the other Provinces were admitted to plead on great occasions. Considering how tenderly they had dealt with the Registrars, whose offices were sinecures, and who had been appointed when in the cradle—considering all these and so many others were compensated—he thought that the advocates had a fair claim.
§ Motion made and Question "That the said clause be now read 2°," put, and negatived.
§ MR. AYRTONsaid, he now rose to move a clause to the effect that every person to whom any compensation shall be granted under this Act shall at all times, when called upon, be liable to fill any public office or situation in England under the Crown for which his previous services in any office abolished by this Act may render him eligible; and that if he shall decline, when called upon so to do, to take upon himself such office or situation, and execute the duties thereof satisfactorily, being in a competent state of health, he shall forfeit his right to any compensation or allowances which may have been granted to him in respect of such previous services, under sec. 19, 4 & 5 Will. IV., cap. 24. His object was simply to make the provisions of the general statute applicable to the present Bill, which they would not be without some such clause as the one he proposed.
THE ATTORNEY GENERALsaid, that he was ready to admit that the principle of the statute was a salutary one, but it would be fur the House to decide whether 1379 the provisions of the statute applied. He did not understand the statute to apply to compensation granted for what might be called valuable consideration, but only to pensions which were given as it were out of gratitude for past services. By this Bill, however, the compensation was, in almost every instance, an act of pure liberality, and the case, therefore, might be said to come within the spirit of the Act. He did not feel himself at liberty to support the clause as he conceived himself to be under a compact to adhere to the compensation clauses of last year. For this reason he should leave the matter to the House to judge, without taking any further part in the discussion.
§ SIR JAMES GRAHAMsaid, he was responsible for the clause which he had introduced into the Superannuation Act. The very fact mentioned by the Attorney General, that the compensation was given as an act of liberality to those who had accepted office since 1839, only strengthened the proposition instead of weakening it. The principle of that proposition had been applied to the Superannuation Fund. It was on the principle of half-pay in the army—it was a retaining fee for future services. He thought that the principle was a sound one, and after the great liberality shown by the House in compensating those whose offices or emoluments were put an end to by this Bill, he should support the clause if it was pressed to a division.
§ MR. WIGRAMobserved, that he thought the clause would be of very difficult application. They would not be able easily to ascertain whether the person discharged his duties satisfactorily. The instance of half-pay officers was different. There it was easy to say when duties were satisfactorily performed. He thought that this matter should be left to the Commissioners of the Treasury to decide.
§ MR. ROEBUCKsaid, he thought they were building a wall for the purpose of breaking their heads against it. He did not think that there would be much difficulty in respect of the working of the clause, but there was a difficulty of another kind. Who was to enforce the clause? They were told that Acts which had been passed for twenty-four years had become rusty—he supposed that in a short time this clause would equally become rusty. As he was always against a sham, he should, for this reason, oppose the clause proposed. They were trifling and wasting the public time. Next year he 1380 should call for a return showing how much we paid for this Bill, and to estimate the value of the benefit conferred upon the public by the hon. and learned Attorney General. For his part, he believed that if the matter had been left as it was, we should have been as well served and at less cost.
§ MR. HENLEYsaid, he agreed in the principle of the clause, but he must object to its wording. Some of those who were to receive compensation might be said to stand upon strict right—he meant those who had accepted office previously to the condition that they were not to be entitled to compensation if the offices were abolished, while others were compensated by the liberality of the House. Now, there was no distinction in respect to these two categories in the clause. Again, some of those compensated had held sinecure offices and had performed no previous services, and they, therefore, could not estimate those previous services which had no existence. He was, therefore, disposed to agree with the hon. Member for Sheffield (Mr. Roebuck) that this clause was a mere brutum fulmen, and that nothing would come out of it. He could not quite see what offices the persons in question would be fit for. They were not fit to be attorneys, and proctors were done away with. [Mr. AYRTON: They would be fit for Registrars.] He thought that the present Registrars would fill up all the Registrar-ships under the new system.
MR. WILSONsaid, that there would be no difficulty in applying the clause, as the principle was applied in public offices which had been abolished, while he knew from his own official experience, that a great number of persons whose offices had been abolished had been brought back into other branches of the public service, and whose compensation had thus been saved to the public. It was true the difficulty was in finding fit employment for these officers, but he thought that in the present case they might be recalled in case of vacancies in the Registrar's office, and he should be very glad to see the principle retained.
MR. BECKETT DENISONsaid, he should support the clause on the same ground—that the officers might be recalled to fill the very offices they had already tilled.
§ MR. SPOONERremarked, that the clause ought to be restricted to those who had taken office since the Act of 1839.
§ Clause twice read and added to the Bill.
§ SIR FITZROY KELLYsaid, he wished to call the attention of the Attorney General to the fact that by the Divorce Bill now before the House very important duties would be thrown upon the Judge of the Court of Probate. He, therefore, ought to be put upon an equal footing with the puisne Judges and the Vice Chancellors; and their ultimate salaries, as determined by the Government, should at once be put to the maximum.
THE ATTORNEY GENERALsaid, it was his intention to bring up a clause to the effect that if the Judge of the Court of Probate should also become the Judge of the Court of Divorce and Matrimonial Causes he should be placed, with regard to salary, in the same position as the Judges of the Superior Courts of common law.
§ MR. HEADLAM moved in Clause 17, after the word "act," to insert the words "or where there is now no such Court, then the Registrar or Deputy Registrar (as the case may be) now executing in person the duties of Registrar of any such Court at any other place within the same diocese, if he shall be willing to accept the office, and."
§ Question proposed, "That those words be there inserted."
§ Amendment by leave withdrawn.
§ MR. HADFIELDsaid, he wished to move an Amendment to the 45th clause, having for its effect to permit attorneys and solicitors to practise in the Court of Admiralty and in divorce and matrimonial cases. They had given full compensation to those who had hitherto the monopoly of these courts, and yet they kept up the monopoly. The public had a strong interest in the admission of their professional advisers to all these courts.
THE ATTORNEY GENERALsaid, that the Divorce Bill contained an express provision which threw the court open to solicitors. That clause had already passed the Committee in that House. He had no objection to the admission of the solicitors to the Court of Admiralty, and would consent that the clause should be amended by the insertion of the words "Court of Admiralty."
§ MR. HADFIELDsaid, he would agree to the suggestion of the hon. and learned Gentleman.
§ Amendment made accordingly.
1382§ MR. HADFIELDsaid, he now had to propose an Amendment for the purpose of substituting declarations or affirmations for affidavits. It had long been the policy of the House to reduce the number of oaths, and by this Bill they increased that number.
THE ATTORNEY GENERALsaid, that the purpose might be carried out by inserting at the end of the clause, that, where the word affidavit occurred, it should include the words statutory declaration or solemn affirmation. This would save a multitude of alterations.
§ Amendment, by leave, withdrawn.
THE ATTORNEY GENERALsaid, in accordance with his suggestion, he would now move, at the end of Clause 49 to add the words—
Wherever an affidavit is required by this Act, a statutory declaration or solemn affirmation may be received in lieu thereof, where by law the same is now receivable.
§ Question proposed, "That those words be there added."
§ MR. MALINSsaid, he would remind the Attorney General that they were strictly judicial proceedings, with reference to which it was now intended to substitute a statutory declaration for an affidavit, and called on him to retain the greater solemnity attaching to an affidavit, and to withdraw the concession he had made to the hon. Member for Sheffield.
THE ATTORNEY GENERALsaid, that perhaps it was advisable to withdraw his Amendment; but he would take care that the principle of substituting declarations for affidavits, wherever it was admissible by law, should be introduced into the rules and regulations of the Court of Probate, which would be printed with the Act.
§ Amendment, by leave, withdrawn.
§ SIR FITZROY KELLYthen moved to add, after Clause 56, the following:—
And each Judge of County Courts, having jurisdiction under this Act, whose salary shall be less than £1,500 a year, shall be paid out of the Testamentary Fee Fund, in lieu of any fees for the business done by him under this Act, so much money annually as, together with his salary as a County Court Judge, shall amount to £1,500.The additional duty which would devolve upon the County Court Judges would be very great, and, independently of this, many of them were in an invidious position, owing to special Acts or particular regulations. There were three or four in receipt of £1,500 a year in respect of these salaries. He could point out ten Judges or more who only received £1,200 1383 a year, and who were fully equal in learning and merit to any one of the gentlemen in receipt of the larger salary, and who transacted in many instances a greater amount of business. This was not only invidious, but unjust. No kind of business would involve higher qualifications, than the contentious business likely to be brought before the County Court Judges under this Act. They could not secure such good men at the lower as they could at the higher salary; and they should recollect that the County Court Judge was obliged to give up all practice in his profession.
§ Question proposed, "That those words be there added."
MR. WILSONsaid, he would not for a moment deny the high qualities of the County Court Judges, or the great services they rendered to the public; but he thought it was hardly right in the hon. and learned Gentleman to raise this question in that indirect manner, after it had been fully considered in the last Session of Parliament, and deliberately settled on a distinct Motion made in that House. Again, there was, in point of fact, no testamentary fee fund out of which the proposed addition to the salaries of the County Court Judges could come; and the result would be that the addition would fall as a direct charge either on the public revenue or the Consolidated Fund, and that could not be carried out without the consent of the Crown, and not even then unless the proposition had originated with a Resolution in Committee.
§ SIR FITZROY KELLYexplained, that the addition to the clause, as he had proposed it, had been drawn with reference to a form of the Bill which had since been superseded; but he suggested that, with the permission of the House, the error might be cured by a verbal alteration.
§ MR. SPEAKERsaid, as the verbal alteration suggested by the hon. and learned Member presupposed the payment of fees under this Bill, for which it did not provide, and as the only fees to be taken under it would be in the shape of stamp duties, which would form part of the public revenue, it would not be competent for him to move such an alteration.
§ SIR FITZROY KELLYsaid, he would withdraw his Amendment, but at the same time he wished to intimate that he would take another opportunity of bringing the question again under the consideration of the House.
§ Amendment, by leave, withdrawn.
§ MR. SPOONERsaid, he would move an Amendment on Clause 99, the effect of which would be to provide for the payment of certain fees to the Registrars of County Courts for the additional duties which this Bill would devolve upon them.
§ Amendment proposed, in Clause 99, page 30, line 14,after the word "Probate" to leave out the words "or of any County Court."
§ Question proposed, "That the words proposed to be left out stand part of the Bill."
THE ATTORNEY GENERALsaid, he had been in favour of the principle of the Amendment, but the Secretary of the Treasury had contended that the fees were to be paid to the Treasury.
MR. WILSONsaid, he must oppose the Amendment. It was quite understood last year, when the salaries of these registrars were increased, that they were to perform any further duties which might be placed upon them. This Amendment, like the one just proposed, could not then be put, as it interfered with the public revenue.
§ MR. MALINScontended, that the duties thrown on both the County Court Judges and the registrars, by the Bill, would be absolutely insignificant; and he would oppose any proposition to increase their emoluments on that ground, though he agreed with his hon. and learned Friend (Sir F. Kelly) that it was desirable to make an increase on other considerations. It was well known that there were not more than fifty contested will cases, on the average, in this country in a year; and, having regard to the number of the County Courts, the probability would be that each one of them, under the provisions of this Bill, would have to try a contested will case about once in three years.
§ SIR FITZROY KELLYreplied, that it was impossible for his hon. and learned Friend (Mr. Malins) to say with any certainty whether the duties to be imposed upon County Court Judges by the Bill would be slight or otherwise, and that the House was legislating on that part of the Bill in the dark. But at all events it was altogether unfair to keep on heaping up fresh business upon those courts, while an increase of salaries to Judges and officers was steadfastly refused. He should therefore support the Amendment.
§ SIR HARRY VERNEYsaid, that if the duties were small, the fees would likewise be small.
§ MR. BENTINCKsaid, he should support the Amendment. The Bill seemed, as it stood, to be a delusion; it gave money by one clause, which it took away by another.
§ MR. AYRTONsaid, that the Amendment would involve payment partly by fees and partly by salaries. He thought the principle of the Secretary to the Treasury a sound one.
§ MR. ADAMSdenied that there had been any understanding that the officers of the County Courts should undertake additional duties without further payment.
MR. WILSONsaid, he should ask that the Resolution which, upon the 3rd day of July last, was reported from the Committee on Probates and Letters of Administration (Stamps), and which was agreed to by the House, might be read, to show that it involved payment of their salaries by stamps, and therefore was brought under the category of the public revenue.
§
Resolution read, as follows:—
Resolved, That the Fees payable to the officers of the said Court of Probate, or of any County Court, in respect of business under the said Act, shall be collected by means of Stamps.
§ MR. SPOONERsaid, that this point of order affected equally the Amendment introduced by the hon. Gentleman himself.
MR. WILSONdenied that the instances were alike, and explained the transaction of the last year respecting the agreement with the registrars, by which they under took to perform additional duty if called upon.
§ MR. SPEAKERsaid, that the House had acquiesced in the rule in the case referring to the salaries of the County Court Judges—that the subject could not be entertained in that stage of the Bill. This Amendment involved the same principle, although on a minor matter, and ought to fall under the same rule.
Whereupon such Amendment was not put from the Chair, as involving a direct charge upon the Public Revenue.
§ MR. SPOONERsaid, he should now move that Clause 99 be omitted, that he might have the opportunity of raising the question hereafter. He denied the alleged compact with the registrars, and said that it was quite understood that they should be paid for all new business.
§ Amendment proposed, to leave out Clause 99.
THE ATTORNEY GENERALsaid, that he was sorry for the position in which they stood. He had believed that the fees would have gone to the registrars, and if 1386 the question had been put to a division, he should have voted with the hon. Member for North Warwickshire.
§ SIR FITZROY KELLYsaid, that after the declaration of the hon. and learned Gentleman, he hoped that the Government would take the matter into consideration, and bring in a clause in conformity with the views of the Attorney General.
§ MR. HENLEYsaid, that the position in which they stood was not creditable to the House. The justice of the case (as it was admitted) was, that those who did the work should have the fees; and he hoped that the Government would find means to set the matter right, unless it was clearly proved that there had been a compact with the gentlemen as stated.
MR. WILSONsaid, that he adhered to his statement that last Session, when the registrars' salaries were settled, the salaries did include future business. If, however, the Attorney General had represented to the parties that they should retain the fees, he (Mr. Wilson) would not interpose a point of form. Nevertheless, he objected to the recommencement by payment of fees, after the principle of payment by salaries had been established last year.
§ MR. ROEBUCKsaid, that if the registrars were to be better paid, the same principle ought to be applied to the County Court Judges.
§ Question, "That Clause 99 stand part of the Bill," put, and agreed to.
§ MR. ROLTsaid, he wished to move an Amendment to Clause 108, the object of which was to authorize compensation to be awarded to the managing clerks of proctors who had been in continuous service in that capacity for fifteen years and upwards before the passing of the Act.
§
Amendment proposed,—
In Clause One hundred and eight, line 37, after the word "Registrars," to insert the words "or Proctors, or continuously employed partly in the offices of Registrars and partly in the offices of Proctors.
MR. WILSONsaid, the Amendment contemplated the imposition of an additional charge on the revenue, and it could not therefore be entertained in that stage of the Bill.
THE ATTORNEY GENERALsaid, he should leave the question for decision to the House, without expressing any opinion upon it himself.
§ MR. MALINSsaid, he should support the Amendment.
§ Question, "that those words be there inserted," put, and negatived.
1387§ MR. COLLINS moved that, for the purposes of the Bill, the West Riding be divided into two different district registries, and that Leeds be the place of district registry for the wapentakes of Ewe-cross, Staincliffe, Claro (including the liberty of Ripon,) Skyrack, Barkston, Ash, and for the borough of Leeds, all in the West Riding of the county of York.
§
Amendment proposed in the Schedule:
Before the words "The West Riding of the County of York, "in the first column, to insert the words "Wapentakes of Ewecross, Staincliffe, Claro (including the liberty of Ripon), Skyrack, Barkston, Ash, and the Borough of Leeds, all in the West Riding of the County of York—Leeds.
§ Question proposed, "That those words be there inserted."
§ MR. BAINESsaid, he would support the Motion. When Lancashire and Somerset were divided into three districts, the West Riding should have at least more than one, and had, considering its vast importance and great population, an undoubted claim to a place of district registry.
§ MR. ROEBUCKsaid, that if the principle of division was adopted, what was urged in favour of Leeds would equally apply to Sheffield. He thought that one place of registry would be preferable, inasmuch as the concentration of wills would be more perfect, and persons searching for wills would not have to go to two or three places. The distance from Leeds to Wakefield, which was now the sole place of registry, was only nine miles, while that from Wakefield to Sheffield was thirty-two miles, which gave a preferable claim to Sheffield.
§ Debate adjourned till this day.