HC Deb 24 July 1858 vol 151 cc2067-74

Order for Committee read.

Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."


said, he wished to ask for a distinct statement of the course which the Government intended to pursue with respect to this Bill. It had been stated that the Government intended to proceed only with those portions of the Bill which related to procedure, and would strike out those clauses about which there was any difference of opinion. But the Attorney General had not on that occasion confirmed this statement. The Attorney General must be aware that there were strong objections to several parts of the Bill by the Incorporated Law Society and others, and the long list of Amendments to it upon the paper was sufficient to show that it was not a measure that ought to be taken on a Saturday. The Secretary to the Treasury, moreover, stated last night that no Bills respecting which difference of opinion was likely to arise would be taken that day, and it would be a violation of the understanding if the present Bill should be now proceeded with, unless the Attorney General was prepared to assent to the various Amendments of which notice had been given, or abandon the clauses to which objections had been taken. He should, therefore, move that the House should resolve itself into Committee on Monday next.


seconded the Motion. He had an important Amendment on the paper, throwing open the Admiralty Court to the legal profession, and he also intended to move another, admitting the bar and the attorneys to a participation in non-contentious business in the Court of Probate. He appealed to the Home Secretary to let them know what they were to do; for if he did not pledge himself that these and other Amendments which were placed on the paper should be conceded, he (Mr. Warren) must support the Amendment, in order that these and other subjects should receive a full consideration on Monday next.

Amendment proposed,— To leave out from the word "That" to the end of the Question, in order to add the words, "this House will, upon Monday next, resolve itself into the said Committee," instead thereof.


said, he did not complain of his noble Friend having given him an opportunity of stating the circumstances under which these Bills were necessarily submitted to their attention, and the part which the Government felt it their duty to take in the management and carrying of them through the House. Both in the Probate Act and in the Divorce Act of last Session omissions and defects had been ascertained to exist which rendered it difficult to administer justice satisfactorily in those courts. Under these circumstances, Lord Cranworth, the Chancellor of the late Government, introduced the present Bill and the Divorce Act Amendment Bill. These Bills were submitted to a Select Committee of the House of Lords, and were minutely considered in that assembly. They came down to that House about a month ago. As these Bills emanated from the late Government it was thought fitting that a member of the late Government should undertake the conduct of these Bills through the House. His hon. and learned Friend the Member for Aylesbury (Sir R. Bethell) had undertaken to do this; but he found that such was the pressure of public business that, notwithstanding the offer of every assistance on the part of the Government, it was impossible for him to conduct the Bills through the House. Accordingly, he (the Attorney General) had undertaken to conduct them, because he felt that if these measures were not passed, great inconvenience would result to suitors in those courts. These Bills were introduced to remedy practical defects in the previous Acts; but both in that and in the other House important Amendments had been suggested in such a way that if they were to enter upon their discussion the whole of the following week—in which they hoped to close their labours—would not suffice for the disposal of the Bill. Under these circumstances he would abandon the clauses which were not of urgent necessity, and were likely to lead to considerable discussion, as he had notified some days ago. Had he not been prepared to do so, he should not have proposed to meet that day in order to pass both these Bills through Committee. He did not, however, see that he was called upon to take the unusual course of stating before they went into Committee whether he would or would not assent to each of the Amendments put down on the paper. More especially did he say this, since the hon. and learned Member for Midhurst (Mr. Warren) had given notice of Amendments which might endanger the passing of the Act during the present Session. As to the 24th Clause, in respect to which several notices of Amendments had been given he was prepared to state the intentions of the Government. Under the Probate Act of last Session registrars were appointed in country districts to act in the grant of probates and letters of administration. It was thought that these officers should be allowed to grant probates of letters of administration to persons applying for them without the intervention of a solicitor. No powers were, however, given in the Act of last Session to enable the registrars to do this. The 24th Clause was introduced that registrars, for such fees as the Judge should think to specify, might be enabled in non-contentious business to transact the whole business themselves, and relieve the suitor from the necessity of resorting to a solicitor. Now, the noble Lord (Lord Hotham), the hon. and learned Member for Sheffield, and many others, overwhelmed him with objections to that clause. That being the case, and seeing no chance of carrying it within the brief time that remained, he would withdraw that part of the Bill. Having done so, he must press the hon. and learned Member for Midhurst to withdraw the clauses which he intended to propose. They must encounter considerable opposition, including that of the Government; for, from the late period of the Session at which they have been proposed, he had not been able to communicate with Dr. Lushington with respect to the one relating to the Court of Admiralty, and that with respect to the non-contentious business of the Court of Probate would require more consideration than could then be given to it. If those clauses were given up, he (the Attorney General) would, between that and the next Session of Parliament, consider both matters, and whatever course should be thought most consistent with public convenience and justice should be adopted. As he would give up the 5th clause of the Divorce Bill, and the superannuation clauses in both Bills, he did not think there was anything remaining that should be the subject of discussion.


said, he thought it would have been more convenient if the Attorney General had stated his intentions with respect to this Bill on the previous evening. He hoped that the noble Lord would divide the House unless they had a distinct understanding that the Amendments to the Bill—which had been assented to by the Solicitor General, but were now opposed by the Attorney General—would be agreed to on the part of the Government.


said, he would have made a statement on the previous evening with respect to the clauses which he proposed to abandon, but he did not like to do so without previous communication with the Judge of the Court of Probate. He had since done so, and had obtained his assent to the withdrawal of the clause.


said, that nothing he had heard from the Attorney General had altered his determination to press the clauses of which he had given notice, and on which he should, unless the Government yielded, take the sense of the House. On a former occasion, during the present Session, he had called the attention of the House to the state of the question as to throwing open to the Bar at large the non-contentious business of the Probate Court, and the whole practice of the Admiralty Court to the whole legal profession. He did not, therefore, propose again to go into details on the subject, but he was willing to make a proposal to his learned Friend the Attorney General. He had just had a conversation with a gentleman entitled to the highest consideration, who had intimated to him that he thought it was hardly courteous or respectful to so distinguished a person as the present Judge of the Admiralty Court (Dr. Lushington), to effect so great a change in his Court as that proposed, merely by way of a clause tacked to a Bill brought in with another object. It was suggested that if the Admiralty Court were to be thrown open to the whole profession, it ought to be by a separate Bill; and in that view he (Mr. Warren) was disposed to concur. If, therefore, the Government would assent to the clause admitting the Bar at large to practise in the non-contentious business of the Probate Court, he would withdraw those clauses relating to the Court of Admiralty. This was a matter of real importance to the Bar and the public, as the House would feel when it knew that while the contentious business averaged from thirteen or fourteen hundred causes annually, the non-contentious cases actually averaged 30,000 annually. Why was all this large field of practice to be studiously confined to the Advocates? They were made free of all the Courts of Common Law and Equity, and why ought not Barristers to be made free of the whole field of business in the new Probate Court? He (Mr. Warren) neither saw, nor had heard, any real reason for preserving so unjust and invidious a distinction, and one which he could hardly believe the Advocates themselves would insist on preserving. Recollecting what had passed in the last Session, he did not choose to place himself in a similar predicament during the present; and, therefore, begged to repeat that if the Government did not concede his clause he should, undoubtedly, take the sense of the House upon it.


said, he must appeal to the noble Lord not to press the Amendment. The objectionable clauses could be struck out in Committee.

Question put, "That the words proposed to be left out stand part of the Question."

The House divided:—Ayes 42; Noes 17: Majority 25.

Main Question put and agreed to.

House in Committee.

Clauses 1 to 4 were agreed to.

Clause 5.


said, that although a fourth registrar might be ap- pointed, yet, in consequence of the adoption of a new scale, the salaries of the four registrars would not, after the deaths of the present holders of these offices, amount to a larger sum than was now paid to the three registrars of the Court.


stated, that the three registrars appointed under the Act of last Session were so overburdened with work that it was absolutely necessary, in order to dispose of the business of the Court, that a fourth officer of that nature should be appointed.


said, he would withdraw the Amendment in this clause of which he had given notice.

MR. HADFIELD moved the insertion in the clause of a provision that the registrars should not accept any other office, or be engaged in any profession or business whatever, except as registrars.

Amendment proposed— At the end of Clause 5, to add the words 'That the registrars shall not accept or continue in any other office, or be concerned in any profession or business except as registrar.'


said, that none of the registrars, except the chief registrar, had any other employment. But the insertion of these words would inconvenience the chief registrar, who held the office of chancellor of a diocese, which had never interfered with the discharge of his duties in the Court of Probate, and which he believed that Dr. Bayford was prepared to resign. He should not object to the Amendment if its application were made prospective.


said, he thought that these words could not be applied to the present holders of these offices. On the other hand, he did not think that it would be advisable to insert words prospectively forbidding the holding of other offices, because that would give the present registrars an implied sanction to combine other duties with the offices, which he thought should not be the case. He wished to suggest that a person who was now receiving compensation should be appointed fourth registrar, in order that that compensation might be saved.


contended that Dr. Bayford ought to resign the office of diocesan chancellor. He found that the Judge of the Court of Probate had, with one or two necessary exceptions, appointed to offices in the Court persons who would otherwise be receiving compensation.


said, that the Amendment proposed by the hon. Member for Sheffield (Mr. Hadfield) was quite unnecessary. The best security the House could have, that proper persons would be appointed as registrars was, that if an improper appointment was made, attention might be called to it in that House.

Amendment negatived.

Clause agreed to; as were also Clauses 6 and 7.

Clause 8.


said, he would suggest that persons who had been managing clerks to proctors for seven years before the passing of the Probate Act should be allowed to practise in this Court.


said, he would take into consideration before the Report the suggestion of the hon. Member.

Clause agreed to, as were also Clauses 9 to 23 inclusive.

Clause 21.


said, that with reference to the Amendment of which he had given notice, he wished to explain that his object was not to compel suitors to employ an attorney or solicitor to transact business in reference to probate and letters of administration, but to prevent the officers appointed under the Act from entering into competition with solicitors and attorneys for the practice of these Courts. When the Report came up he would move to introduce words to carry out his object.


said, he had already stated that he would withdraw the clause in question, as one calculated to lead to discussion. He concurred in the object of the hon. and learned Member, and should have no objection to cooperate with in him devising means to carry it into effect.

Clause struck out.


said, he wished to move a clause enabling all serjeants and barristers at law to practise in the Court of Probate. This would place them on the same footing in regard to non-contentious as to contentious business. He did not intend to press the clause in reference to the Court of Admiralty.


said, he must oppose the introduction of the clause, which would have the effect of reversing the decision of both Houses of Parliament in last Session—namely, that it was inexpedient to do away altogether with that sort of exclusive practice which had so long existed in the Ecclesiastical Courts with regard to non-contentious business. He did no say that he approved that decision himself, but as it affected personal interests it ought not to be disturbed in a House containing less than forty Members.


said, he should support the clause.


intimated his willingness to agree to it, with the view of obviating discussion.

Clause agreed to.

House resumed.

Bill reported, with Amendments as amended, to be considered on Monday, at Twelve o'clock.