HC Deb 15 June 1858 vol 150 cc2104-11

Order for Committee read.

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


said, he was not about to discuss the general principle of the Bill, although he did wish to see the powers proposed to be given to the new Court vested in the Court of Chancery. He wished, however, now, as he could not do so in Committee, to call attention to the case of Mr. Flanagan, formerly the secretary of the Incumbered Estates Commission, who surrendered a life office for that appointment, the salary of which was £1,000 per annum. He afterwards assumed without further salary the judicial office of master, the duties of which were extremely arduous, and although that office was now to be abo- lished, yet as Mr. Flanagan had satisfactorily and efficiently performed all its duties, that gentleman was, he thought, fully entitled to a retiring compensation, to be fixed upon the Estimates. If he had continued secretary he would have been provided for in the Bill, but as he had taken a higher and a more laborious office, he was now to be sent away without any retiring allowance.


said, it was impossible, in justice to the other officers of the court, to select Mr. Flanagan for a special provision in the Bill, fixing his compensation at his present salary. He would with the other officers be provided for by the Treasury. The Incumbered Estates Court had been created as an experiment and for a temporary purpose, and Mr. Flanagan became its secretary with a full understanding of that fact, and there seemed no reason why the House should sanction the principle that a gentleman who did so ought on his retirement from an office of that character to be entitled to his full allowance. It was true that he subsequently became master, but that was upon a minute of the Commissioners, and not upon the appointment of Her Majesty's Government, and in virtue of an Act of Parliament which had been strained for that purpose.


said, he thought it was a pity that the Bill should be inaugurated by a gross act of injustice. He saw no reason why Mr. Commissioner Hargreave should receive his full salary in the Bill while Mr. Flanagan, who was also a judicial officer, was left to the discretion of the Treasury.


had heard so much of the efficient manner in which Mr. Flanagan had performed the judicial duties of Master that he thought his right hon. Friend (Mr. Whiteside) would do well to accede to the general wish that Mr. Flanagan's compensation should be named in the Bill.


said, he thought the principle laid down by the Attorney General for Ireland (Mr. Whiteside) was the correct one, and he hoped he would stick to his guns and act upon it, not only in the case of Mr. Flanagan, but also in that of Mr. Hargreave, as it was but right that both gentlemen should have their claims investigated by the Treasury. With respect to the Bill itself, he thought the 51st clause of it was prejudicial to the rights of property.


defended the clause, and stated that when the Incumbered Es- tates Court was first established sales were hurried on, regardless of sacrifice, by solicitors who were only anxious to get their own costs out of the proceeds.


said, he hoped the Bill would be the model for a similar measure for England. He agreed with the Attorney General for Ireland that the compensation of Mr. Flanagan should be left to the Treasury, but the same principle applied to Mr. Hargreave.


said, that the responsibility in this matter rested not upon the right hon. Gentleman the Attorney General for Deland, but upon the Treasury. The matter was fully considered, and the conclusion was arrived at that, although some exception might be made in the case of a judicial officer, it was the opinion of the Treasury that that exception could not be extended to other officers. There was no reason why, if Mr. Flanagan was included, the claims of other officers also should not be placed in the same category. He quite admitted that Mr. Flanagan was a meritorious officer, but it was impossible that Her Majesty's Government should allow a specified compensation to be introduced into an Act of Parliament in any other case than that of a judicial officer.


said, that the masters were introduced in consequence of the pressure of public business; and had it not been for the indefatigable exertions of the secretary, Mr. Flanagan, the Act would have failed to a great extent. He was glad to find that the compensation by the Treasury to Mr. Flanagan was to be liberal; but still he thought that it was very unfair to put a man of his great abilities in the same category as a writing clerk attached to an office which had been abolished.


said, dint the Government had not felt themselves authorized to deal with Mr. Flanagan in the mode suggested by the hon. and learned Member for Cork (Mr. Serjeant Deasy.) The best mode, however, would be for him to take the sense of the Committee upon it, and, of course, if such were the wish of the Committee, the Government had no objection to a vote being proposed for that purpose.


said, he must protest against these personal questions of compensation being brought forward without notice, and at a time when those hon. Members who took a great interest in keeping down the taxation of the country were not present.


said, that inasmuch as the hon. Gentleman proposed to make a Motion, not for the purpose of voting money out of the Consolidated Fund, but for the disposal of money voted by the House, it was competent for him to make it in Committee, when the matter could be discussed.

Motion agreed to.

House in Committee.


said, that since the Bill was last before the House it had been carefully revised, and various points on which great discussion took place had been considered with reference to the objections which had been made. Several clauses, including that for the appointment of receivers, and for the purpose of sending issues to be tried by a jury, had been struck out. Other difficulties had been obviated, and he was not aware that there was anything he could yield which he had not yielded, except as to the principle of the Bill, to which he was determined to adhere.

Clause 1 and 2 agreed to, with verbal Amendments.

Clause 3.


said, he regarded this as one of the most important measures of law reform in the present generation, and he believed that a similar court would ere long be established in England. Great improvements had been made in the courts of equity of late years, but still the tendency was to relieve the Judges, and to throw the work upon the officers of the Court. It was a false step to diminish the number of the Judges of this Court from three to two, and there was no economy in so doing, because they pensioned off the third Judge upon his full salary. It would be quite enough to diminish the number of Judges when experience had proved that two Judges could efficiently perform the duties of the Court. He moved to leave out the word "two" and insert "three."


said, he thought that hon. Members hardly knew what would be the consequence of agreeing to this Amendment, The proposition of the Government was to construct a permanent court with a permanent staff, and to elevate the Commissioners of the Incumbered Estates Court to the position of Judges. The whole matter had been examined minutely by a Commission, which gave it as their opinion that the business of the Incumbered Estates Court, together with some of the business of the Court of Chancery, could be discharged by two Judges sitting daily, with a proviso that those Judges should be Messrs. Hargreave and Dr. Longfield. When he read that statement he confessed he was astonished, but Mr. Hargreave himself had expressed his opinion that two Vice Chancellors and the Master of the Rolls, with a competent staff, would be able to do the business of the Incumbered Estates Court in addition to the business they then performed, although he thought it probable that they might be hardly worked. Subsequently he was asked what number of Judges sitting daily would be required to do the business of the Incumbered Estates Court alone, and he gave it as his opinion that one Judge with a proper staff would do. The opinion of Dr. Longfield was similar. By the Bill of the late Government the right hon. Gentleman opposite (Mr. Fitz-Gerald) proposed to transfer the Incumbered Estates Court to the Court of Chancery, and to appoint two Vice Chancellors to transact the business; but his (Mr. Whiteside's) proposal was, that they should only have to transact the business of the new Court, and there was no ground to suppose that the number of Judges was not sufficient. The learned persons who composed the Commission to which he had alluded, had made certain recommendations, every one of which were carried out by the Bill. It would be a very dangerous thing to introduce a system by which the number of Judges in the Courts might be increased with too great a facility. The number of petitions in the Incumbered Estates Court was by no means such as to justify such a proceeding. About sixteen petitions had been presented in February, seventeen in March, and twenty in the last month; and had there not been great arrears to get through, it would be ridiculous to suppose that the business would fully occupy three Commissioners. Dr. Longfield had recently sent him a document in which he said, that if he now had the whole business of the Court to transact he should not be so pressed as he was in 1853. If this was not a permanent measure, the case would be different; but they must remember, that having once appointed a Judge of a permanent Court, there was no getting rid of him, unless with very large compensation. When they took into consideration that the Judges of the new Court would sit separately every day in the week, instead of sitting together, as the Commissioners of the Incumbered Estates Court did, on Wednesdays and Saturdays, and that the appeal would be not from the three Judges as now, but from each Court, it was impossible not to see that two Judges would be able to do the work of three under the old system. It would not be possible to refer the business of the Court to other officers, because they would not exist. The hon. and learned Gentleman would not be able to persuade the Treasury to grant some £10,000 a year for salaries to the Judges, and, therefore, the hon. and learned Gentleman in effect proposed to give the same suns of money to three Judges which he (Mr. Whiteside) proposed to give to two. He had the authority of the two subordinate Commissioners for saying, that they would not consent to remain in the Court if their present position of equal work, but inferior rank, were perpetuated in the new arrangement. He might also remark, that if three Judges were retained, there must be three sets of officers retained, which would cause a great additional expense. He, therefore, submitted to the Committee, in opposition to the proposal of the hon. and learned Gentleman, first, the opinion of the Commissioners in Ireland; secondly, that of the Committee of the House; thirdly, that of the Commissioners themselves; fourthly, the state of the business in the Court; and fifthly, the financial question. He hoped that on these grounds the Committee would agree with him that, considering no injustice would be done to Mr. Hargreave, and that his allowance would cease when he had another judicial appointment, there was not sufficient ground alleged for the increase in the number of the Judges of the proposed new Court.


said, that it might be deduced from the arguments of the right hon. Gentleman that one Judge would be sufficient. Indeed, he thought that it was very probable that after the first rush of business one Judge would be enough. Seeing that there were three Judges to be disposed of, and that it was the intention of the Home Secretary to introduce this system into England, the best plan that could be adopted would be to retain Mr. Hargreave, equalizing his salary and that of Dr. Longfield, until a similar court were established in England, when he might be transferred to such court. He saw no difficulty whatever in equalising the salaries; and inasmuch as the greater the numbers of the Judges the less work there would be fur the examiners, they might get rid of one of them. He did not think that the extreme difference to the Treasury would be more than £1,000, and it would be most miserable economy to dispense with the services of Mr. Hargreave by allowing him to retire on his full pay. He trusted, therefore, that the Amendment would be carried, as his hon. and learned Friend intended to follow it up by another Amendment, that upon any vacancy occurring it need not be filled up.


said, he thought that if it had not been for the accidental circumstance that three Judges already existed, no such proposition as that made by the hon. Member opposite would have been submitted. Arguing from the analogy of the English Court of Chancery, there was very little doubt that two Judges would be amply sufficient. It was most unwise to multiply Judges unduly, as men who were only half occupied never did their duty properly. Nor did he agree in the proposition that Judges should be called upon to transact the business done in chambers in the Court of Chancery.


said, he wished to remind the learned Attorney General for Ireland that the Court would have to exercise a new jurisdiction infinitely more extensive than was ever exercised by the old Court, or by the Court of Chancery. It might have to adjudicate on the title of every man in Ireland. Three Judges were certainly not too many for the anticipated duties. On the establishment of the Court, there would be a greater influx of business than took place at the beginning of the Incumbered Estates Court. Whatever expense was necessary, the House would not refuse, though the Treasury might do so. They would not peril the success of the measure for a paltry £1,000 a year. The Irish bar would look upon the removal of Mr. Hargreave as a very heavy blow to the efficiency of the Court.


said, he wished to express his belief that the other Commissioners were equally popular with Mr. Hargreave. He was in favour of the appointment of three Judges with salaries equalized at £3,000 a year.


said, the Bill had been prepared with great care, and had been well received, as it deserved to be. When he was in office, on the retirement of Baron Richards, strong remonstrances were made against the Court going on with two Commissioners. There were petitions from suitors to that effect, and the two remaining Commissioners expressed their inability to take Baron Richards's business, saying that they would rather retire from the office. With the view to preserve the efficiency of the Court, a third Commissioner had been appointed, Mr. Martley; and it was impossible to impugn the motive of that appointment. He believed that considerations of economy would not be allowed to stand in the way. Efficiency was the best economy.


said there were already three Judges in the Court, and had been from the commencement. Two, or even one, might be sufficient for the present business, but under this Bill there would be an increase to an extent of which no legal gentleman could form an idea. A considerable part of the business of the Court of Chancery would be imported into this court, which would deal with unincumbered as well as incumbered estates. The probability was that every man in Ireland who had a defective title would come before the Court; and yet they proposed to pension off the very man who was best qualified to deal with questions of that kind. Why not pension off Mr. Martley, who had only had one year's experience, in preference to Mr. Hargreave, who had had nine? He believed that this Bill would cause such a rush of business as would rejoice the hearts of the Irish lawyers. He objected to the salaries as too large; £2,000 a year for each of the Judges would be sufficient.


They would not take those salaries.


Then give them to others—there are plenty of men in Ireland as competent as Mr. Hargreave.


said, he should support the clause.


said, that the existing court bad worked so well that he was desirous to see as little change as possible.

House resumed.

Committee report progress; to sit again on Friday.

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