HC Deb 07 May 1858 vol 150 cc252-60

—Sir, when the right hon. Gentleman below me, the Chancellor of the Exchequer, told us the other night that we had now to pay no less a sum than a quarter of a million sterling, for years to come, to the Proctors in return for their allowing us to reform our Ecclesiastical Courts, I partook of the mild surprise which seemed to pervade this most amiable and liberal House. That communication might of itself have justified my present Motion, but notice of it had, in fact, been given some time before; and I am anxious now to call the attention of the House to two points, in order to show it how we stand with reference to the consideration we have received for the enormous payment out of the Consolidated Fund, which we sanctioned last Session. We, none of us, can have forgotten our exertions in respect of the demolition of the Ecclesiastical Courts and rearing new structures on their ruins. Our efforts were great; for we had to reduce a sort of ecclesiastical Sebastopol which had withstood a thirty years' siege, and even at last we could succeed only by bribing the garrison—that is, by making a vast payment to the Proctors. However, that is done, and we must stand to it. But I must observe that the Bill came down to us from the other House without exhibiting a trace of compensation to practitioners in the Ecclesiastical Courts. The then Lord Chancellor (Lord Cranworth) indeed, on a subsequent occasion, repudiated it in strong terms as highly objectionable in principle and likely to form a dangerous precedent. This House, however, was on the urgent and powerful entreaties of the Proctors, of a different opinion, and my hon. and learned Friend, the Member for Wallingford, became their champion, and entered on their behalf into a deliberate compact with the Government, ratified by the House. He declared that, as far as he anti the Proctors were concerned, he would support the Bill on one understanding only—that those should be compensated whose whole prospects in life would be ruined by it. Now I don't stand here as the advocate of the legal profession or any branch of it, but in the interest of the public on whose behalf this bargain was made, and in language well-known to lawyers I shall try to show that a part of the consideration which we were to receive has failed. The two points to which I have alluded are, the exclusion of the great body of barristers-at-law from the non-contentious business of the Probate Court, and both barristers and attorneys from the Court of Admiralty. And, first of all, as to the non-contentious business of the Probate Court. Unless I am in error the proportion between contentious and non-contentious business is that between 30,000 causes of the latter and 1,300 or 1,400 of the former. That, at least, was the statement made during the Debates last Session in this or the other House. The distinction between the two kinds of business is carefully drawn by the Probate Act of last Session and the rules and orders issued by its authority, and may be stated as substantially this:—Non-contentious business consists of obtaining Probates and Administrations when the right to them is uncontested, and passing them after a contest to that right is at an end; of all Court business of a non-contentious nature in matters of testacy and intestacy not constituting proceedings in any suit; and the lodging and the warning of caveats. This is now the statutory definition of "non-contentious business;" and that of "contentious business" is, all proceedings in the Court of Probate or in its Registries except the above. Now from the whole of this immensely preponderating non-contentious business, sergeants and barristers-at-law are rigorously excluded, and either Proctors or attorneys and solicitors must employ advocates. Now I ask, is this right and fair? Is it in accordance with the understanding on which we proceeded last Session? That all monoply of practice should be done away with—that the New Court in its entirety of business was to be thrown open to the whole body of legal practitioners, thus affording the public the amplest choice of those in whom they had confidence? Proctors and attorneys and solicitors were, by the Probate Act, placed completely on a footing of equality, each eligible for practice in the Probate Court and in all Courts of Law and Equity. Advocates are also admitted without restriction of any sort to all Courts of Law and Equity, with the same eligibility to appointments as if they had been called to the Bar at the period of their having been admitted advocates. Now, Sir, I for one, as a member of the Common Law Bar, am glad of this; I am delighted that this select body of learned and accomplished gentlemen should be at once incorporated with the Bar at large. Several of them have since received the honour of silk gowns, have been elected Benchers of the Inns of Court, and admitted members of the circuits, and why, after all this, should they be invested with what they themselves, I am sure, must regard as an unjustifiable and invidious monopoly? Why, should they alone be capable of being selected by Proctors and attorneys and solicitors to conduct the cases of their clients? If this be allowed to continue, it will of itself, in a perfectly easy and intelligible way, practically attract to itself a monoply also of the contentious business, such as it is. But I may be told that the language of the Act—of the 40th section—is clear and precise. The 40th section, while admitting the Ecclesiastical Advocates to "practise as advocates or counsel in all matters and causes whatsoever in the Probate Court," restricts the right of serjeants and barristers at law "to practising as advocates or counsel in all contentious matters and causes in the said Court." Whether the distinction was or was not designed, I shall not stay to inquire. I must own, therefore, that the wording of this clause admits of no doubt—nay, more, that it stood so in the Bill when it came to us from the Lords, and so returned to them; but I must add that it was retained inadvertently without the distinction having challenged the attention of the Gentlemen of the long robe, as we are called in this House, for almost all of us were absent on circuit. But however this may be, the distinction appears to me altogether unjust and impolitic, and ought not to be maintained. Sir, I am very far indeed from wishing to make any attack on the Advocates of Doctors Commons in what I am saying, especially bearing in mind that not one of them happens at present to have the honour of a seat in this House to vindicate their rights, if so disposed. I wish indeed some of them were here; I do not think that they would seriously dissent from what I am saying on the question before us, and I must really put it to the candour of my hon. and learned Friend the late Attorney General, whether—having regard to the whole tenor and scope of the measure which he introduced into and carried through this House with so much ability—he will support the exclusion of which I am complaining. I appeal, I say, confidently to the candour of my hon. and learned Friend, who exhibited throughout the whole conduct of the Bill scrupulous good faith. Probably the point wholly escaped his at- tention, as it was not brought under his notice specially in the House. The question has arisen directly, more than once already in the Probate Court, the Judge of which has declined to hear any but advocates in non-contentious business, properly saying that the plain words of the Act prevented his doing so. The common law counsel, who appeared before him, then asserted his common-law right, as a member of the bar, to practise in all the Queen's Courts, one of which this is declared by the Act to be—and that point the Judge expressed himself willing to hear argued, whenever the question arose between an advocate and a member of the common-law bar. And having mentioned the Judge of that Court, I take this opportunity of congratulating the late Government on their having selected for so important a post, or rather I congratulate them and the country on having had the good fortune to secure in the right hon. Judge of the New Court a gentleman in every way so admirably qualified to preside over it, and organize its procedure to the satisfaction of all branches of the legal profession and of the public. I pass on now to the second point to which I would bespeak the attention of the House, as one touching, as I think, its privileges—the total exclusion of the whole legal profession, except advocates and Proctors, from the Court of Admiralty. There seems a mystery about this matter, which it concerns this House to have cleared up. Let me premise that in the year 1840 the Court of Admiralty was entirely remodelled, and in many important particulars assimilated to the common-law courts. Its practice was greatly improved, and its civil jurisdiction also extended, its criminal jurisdiction, however, being taken away, and transferred to the Central Criminal Court and the Assize Courts in the last-mentioned year and the preceding year 1834. Its present jurisdiction comprises disputes relating to the ownership of ships, questions of collision, salvage, prize, booty of war, and bounty—all matters of great public interest and importance, but becoming infinitely more so in time of war than of peace, when the practice of the Court is of course rendered greatly more lucrative. In the year to which I first referred, the mode of taking evidence in this Court was totally altered. It was thenceforth to be taken vivâ voce, in open Court. The Judge may now order issues to be tried by a jury, and grant new trials. Appeals from the Court are made to the Judicial Committee of the Privy Council, and the advocates, surrogates, and proctors of the Arches Court were in the year in question, admitted to practise in the Court. Now, in introducing the Probate Bill into this House, the Attorney General stated, and the Act now contains a corresponding provision, that as soon as the office of Judge of the Admiralty Court should become vacant, that Court should be united to the new Probate Court, thenceforth to be presided over by one and the same Judge; the present salary of the Judge of the Probate Court by the Act fixed at £4,000 a year, being in that event raised to £5,000. This arrangement is effected by the 10th and 11th sections of the Probate Act—which thus shows, that the Court of Admiralty was fully within the view of Parliament as the subject of legislation while founding the Probate Courts. Now as discussion proceeded on the Probate Bill, and after the principle of compensation had been assented to by the House, it occurred to Members, and particularly to the hon. Member for Sheffield (Mr. Hadfield), that the Court of Admiralty ought to be no longer retained as a closed court in the hands of the old Ecclesiastical practitioners, who were being so largely compensated; and he gave due formal notice, in the votes, that on a future day he would move the insertion of a clause admitting attorneys and solicitors to practise in the Admiralty Court. On the 11th August the discussion came on, and the feeling of the House appearing in favour of the Motion, the Attorney General, sanctioned by the right hon. Baronet, the then Home Secretary (Sir George Grey), instead of going to a division, expressly assented, as also did the hon. and learned Member for Wallingford, to the introduction into the 45th clause of the Bill, with reference to the rights of attorneys and solicitors to practice in the new Probate Court, of the words, "and also in the Court of Admiralty." Well, Sir, with these words the Bill went up to the Lords on the 12th August, and on the ensuing day the Bill and our Amendments, were ordered by the Lords to be printed. On the 18th they were taken into consideration, and the then Lord Chancellor moved that "with some verbal alterations" the Lords should agree to the Amendments of the Commons." Not a syllable was said as to the propriety of retaining the proctors' monopoly in the Ad- miralty Court, or as to the insertion or rejection of the clause in question; and on the 21st the Bill came down to the House, when we agreed not to insist on certain supposed inconsiderable Amendments so disagreed to by the Lords. These Amendments were not printed; and we all recollect the very hurried procedure of both Houses at the close of that protracted Session. The Bill—with this unexpected and serious omission—became law on the 25th August, Parliament being prorogued immediately afterwards; and as soon as the Act had been printed, it appeared that the words throwing open the Admiralty Court to attorneys and solicitors, were not there, but had been struck out without a syllable having been said to draw public attention to the subject, and thus the bargain we had made on the part of the public was violated in an essential particular. Thus the Court which we had expressly insisted on having opened to the public generally, as a part of the return for the compensation we had granted, remains as strictly and closely in the hands of the Proctors, as though they had not received a farthing of compensation—as though Parliament deliberately deemed it expedient to leave that Court thus fenced out from the great body of that branch of the profession specially trained to and familiar with the common-law method of procedure introduced there in the year 1840. Now, Sir, though I have heard a whisper on the subject, I do not profess to know how this strange interposition was effected, but I should much like to know—I think this House is entitled to know—whose were the hands dint thus manipulated the Bill after it had left the hands of those who, as the then Lord Chancellor, reminded the House of Lords, held the strings of the national purse. I must therefore ask for full explanation on this subject, from either the late or the present Government; and it will depend on the answer either may give me, whether I move for a Select Committee to inquire into the matter, or myself bring in a Bill to rectify the miscarriage of which I complain. I must, therefore, particularly ask for explanations in the first instance, from my two hon. and learned Friends the late Attorney General and the Member for Wallingford, who were the parties to that compact, of the violation of which I complain. I perceive the impatience of the House, and its desire to proceed to more exciting matters, but I felt it my duty to bring dis- tinctly before them a matter affecting so materially the administration of justice.


said, that it had been with the consent of the Government that the clause had been introduced at his suggestion opening the Court of Admiralty to all departments of the profession. In the House of Lords, through some unexplained influence, the clause had been struck out, and that Court, which ought to be open, was now a close Court. He trusted that the hon. and learned Member for Aylesbury (Sir R. Bethell) would explain to the House how it happened that the clause had been struck out in "another place."


was understood to say that he believed it was the intention of the Act that there should be no distinction in the practice of the Court of Probate between contentious and non-contentious business. It appeared, however, that some doubt having arisen as to the construction of the Act of Parliament, the learned Judge of the Court had given directions to have the point argued in order that the question might be settled. He could only add that if it was decided that that was not the proper construction, it was desirable that the matter should he rectified. As to the other point to which the hon. and learned Member for Midhurst (Mr. Warren) had alluded—the clause opening the Admiralty Court to the legal profession generally—he was not aware of the circumstances under which it had been struck out, but was told the reason was that it was deemed necessary that some further provisions should be introduced, and that if the clause had been allowed to remain it Would not have been sufficient for the object desired. He had intended to introduce a Bill for the purpose of throwing open the Court of Admiralty to the whole profession. He hoped that his hon. and learned Friend who had succeeded him in the office of Attorney General would direct his attention to the subject, and he (Sir R. Bethell) would be happy to give him any assistance for the attainment of the object in view.


said, he understood that a sum of £250,000 a year had been devoted under the Act of last Session as compensation to the proctors. If he had been present when that question was under consideration he should certainly have protested against any such preposition, believing it to be a most extravagant sum. The House would never have voted that sum, unless upon the understanding that the monopoly of the proctors was to be wholly abolished. They now learned that this monopoly of the proctors was, to a certain extent, to be continued. He protested against the whole arrangement.


said, after the statements which had been made he thought it right to set aside some erroneous impressions which seemed to prevail. It had been stated by the Chancellor of the Exchequer the other night that the compensations under the Act would amount to £250,000 a year. Assuming that to be the correct amount, they must remember that that included Mr. Moore's compensation, and that of all of the officers entitled to compensation. He believed, however, that it was an exaggerated estimate, and that the amount of compensation to the proctors would not exceed the estimate he had given when the Bill was under discussion, namely, £80,000 to £100,000 per annum. [Mr. Walpole: That is pretty well]. So it is pretty well; but he (Mr. Malins) trusted the House had not forgotten that he had said last year they were about to pay a price for what they would never get value for. He was told that they were going to make compensations to a body of men who would retain their practice. It might be satisfactory to the House to know that the Bill had utterly destroyed the proctors as a body; and if it had not been for the compensation provided by the Bill, they would have been left utterly destitute, That, however, was beside the present question. What he desired was to correct the statement as to the amount of compensation, which, he believed, had been greatly exaggerated. He thought also that the Chancellor of the Exchequer was wrong in saving that the Consolidated Fund would have to bear the whole of the burden, for it received quite as much as it had to pay. There were certain fees payable under the Act by the suitors which would go to the Consolidated Fund, and which would in their aggregate amount to a sum quite equal to that which would be abstracted front it to pay those compensations; so that no additional burden was thrown on the country. Then as to opening the Court of Admiralty, it was true opening the hon. Member for Sheffield (Mr. Hadfield) had introduced a clause, which had been struck out in the house of Lords; but he thought that his hon. Friend had been to blame for not remaining to see that the words which he had inserted were retained. When the Bill was sent back to that House he was not here to make his complaint, and surely there was no one else whose duty it was to complain. He (Mr. Malins) understood, however, that the clause as to the Court of Admiralty had been struck out because a learned Judge of that Court had represented that the machinery of the Court was not prepared for the change, and that they ought to wait for the introduction of a more general measure.