HC Deb 04 July 1859 vol 154 cc591-600

Order read, for resuming adjourned Debate on Question [17th June], "That the Bill be now read a Second Time."

Question again proposed.

Debate resumed.

MR. LOCKE KING

said, that when the Bill came before the House two or three weeks ago, he moved the adjournment of the debate, because he felt that in the absence of a Government the second reading of such a measure ought not to have been urged with indecent haste. It seemed to him that this was an attempt to tax the whole of the country for the purpose of paying the Middlesex Assistant Judge, who was neither more nor less than a paid chairman of quarter sessions, a higher salary than he had at present. If any county chose to have a paid chairman of quarter sessions, the expense came out of the finances of the county and not out of the Consolidated Fund. He did not Bee why an exception should be made for Middlesex. He did not at all object to increasing the salary of the Middlesex Assistant Judge from £1,200 to £1,500 a year, but he objected to the burden which ought to be borne by the rich county of Middlesex, being thrown on the country at large. Let the county of Middlesex pay the increased salary and not the country. If they passed this Bill they would be forming a most dangerous precedent, for they might depend upon it they would have as a consequence all the County Court Judges and many others in England applying for an increase in their salaries. He would remind the House, that in 1853 a similar attempt was made to increase the salary of the Middlesex Assistant Judge, and the Bill was only thrown out on the third reading at the instance of his hon. Colleague, and no attempt had since been made to introduce it until now. While, however, he did not object to an increase of the salary of the present Assistant Judge if it were made out of the county funds, he could not help remarking that during the whole tenure of the office by his lamented friend the late Mr. Pashley, who had worked harder and had, in consequence of his being so good a lawyer, more appeals to decide than any one who had ever held the office, no attempt to increase the salary was made. In conclusion, he begged to move that this Bill be read a second time that clay six months.

Amendment proposed to leave out the word "now," and at the end of the Question to add the words "upon this day six months."

Question proposed, That the word "now" stand part of the Question.

MR. SOTHERON ESTCOURT

said, that he was the individual who introduced this Bill, and he quite admitted that the present Government were in no way responsible for it. The House would, perhaps, permit him to remind them what were the circumstances under which the late Government thought it fair to sanction this increase in the salary of the Assistant Judge of the Middlesex sessions, from £1,200 to £1,500 a year. On the decease of the late Assistant Judge, he, as then holding the seals of the Home Office, received from the magistrates very urgent remonstrance, which were confirmed and strengthened by other gentlemen, against the policy of allowing so important an office as Assistant Judge to be held by a practising barrister. It was urged that it was treating that gentleman unhandsomely and often placing him in a somewhat degrading position. On one day he sat to determine a case, when the very day following he was in the position of an advocate, and liable to be called upon to advocate the cause in a higher court of the very person condemned by him; and although he (Mr. S. Estcourt) did not pretend to be conversant with law, that struck him as such a strange anomaly, that he could not help thinking, as a matter of common sense, that a gentleman who during many months in the year was engaged week after week in presiding in one of the courts of criminal jurisprudence in the metropolis, ought no to devote himself to the profession of an advocate the rest of the time, but ought to be in such a position that he could not be called upon to appear as an advocate in a superior court. The hon. Gentleman on the other side of the House, however, was not quite correct in his statement of the grounds on which the attempt to raise the salary of the Assistant Judge in 1853 was met. The question had now assumed a very different form to that which it presented in 1853, when the question was simply raising the salary of the Judge without changing his position or putting any restriction whatever upon him. The Judge would still have been allowed to practise in superior courts, and if the case had been the same now, the objection taken to the Bill would have been a valid one, and the argument that the county court Judges might with reason apply for an in crease in their salaries would be just. What he, however, maintained was, that there was a good and sufficient quid pro quo given in the condition that the Judge should no longer practice as an advocate at the bar of a superior court. As he understood the gentleman holding the office at present was willing to give up his practice, which was estimated at a low figure at £1,000 a year—he was willing to give that up, and devote his whole time and energies to the office of a Judge, if the House of Commons granted £300 more; and he (Mr. Estcourt) really thought that by consenting to that proposition he was obtaining a very great benefit to the country at an extremely cheap rate. For that reason he had no kind of hesitation in bringing forward this Bill, and he hoped that the Government would support it, looking at the wide difference which the case presented to that brought in in 1853.

MR. LOCKE KING

said, he must repeat that he did not object to the increase of the Assistant Judge's salary, but to the increase being paid out of the Consolidated Fund.

MR. ALCOCK

said, he should support the Amendment, as he considered the principle of the Bill to be altogether anomalous, and he hoped the attention of the Chancellor of the Exchequer would be aroused to the dangerous precedent which passing it would create. In all other places, such as Liverpool and Birmingham, in which they had stipendiary chairmen of quarter sessions, the money was paid by the county, and why should not this salary be paid by the county of Mid- dlesex? Some time ago the Surrey county magistrates were met by a similar demand, but they had avoided it and got on very well. It was not the increase of the salary that he cavilled about, but it was the principle of the measure to which he objected.

MR. MALINS

said, he considered the arrangement which had been made by his right hon. Friend (Mr. Sotheron Estcourt) eminently beneficial to the country. The late Assistant-Judge, Mr. Pashley, was eminently fitted for the office, but its duties clashed with his practice at the bar, which was very considerable. The consequence was, that he was frequently very much inconvenienced, and he himself had told him that there must, in many cases, inevitably be a contest between interest and duty in the breast of a Judge who was also a practising barrister. Twelve hundred pounds a year was not sufficient to call upon a person in the situation of Assistant-Judge to give up practice; and however anxious a Judge might be to discharge his duty, it was perfectly vain to deny that if on any particular day on which his Court sat, an important cause in which he was retained as chief counsel was coming on in the Superior Courts, there would not be a contest between interest and duty which could not fail to be very injurious to the public service. The hon. Member (Mr. Locke King) however did not object to the amount of salary but to the fund out of which the salary was paid. But this argument went too far, because if an error were made in originally ordering the payment of this salary out of the Consolidated Fund, the hon. Member ought to move that the salary be taken off that Fund and paid from some other source. If, however, it were found that the duties could not be performed for £1,200, public justice and convenience alike required that such a salary should be paid as would insure the efficient and proper discharge of the duties of the office. With regard to Mr. Bodkin, every man in the profession would admit that, from his peculiar experience and high character, a fitter selection could not have been made. He believed that the learned gentleman was offered the appointment by the right hon. Gentleman (Sir George Grey). He had but a slight acquaintance with Mr. Bodkin, but he had, like every other lawyer, the most profound respect for him. Mr. Bodkin had given up his private practice to accept this appointment, and he had every reason to suppose that an arrangement proposed by the Home Secretary would be adopted by the House. He was willing to consider, at the fitting time, whether it was proper that this salary should be paid out of the Consolidated Fund, but he trusted that the House would ratify what his right hon. Friend had done by passing this Bill.

MR. W. WILLIAMS

said, that fourteen years ago, this officer was the Chairman of the Middlesex Quarter Sessions. The office was then contested for the honour of holding it. Mr. Serjeant Adams was the first who applied to the magistrates of Middlesex for a salary. They refused to grant it, and he then applied to the Secretary of State for the Home Department. For himself, he thought £1,200 a sufficient salary, though he did not wish to disturb the present arrangement. He certainly thought however, that the salary ought to be paid by the county. During Serjeant Adams' tenure of the office, Bills were brought into the House three times for the increase of the salary to £1,500 a year, and each time the Bill was thrown out, but he continued to hold the office for years after to the satisfaction of the public. The late Assistant-Judge, Mr. Pashley, never thought of applying for an increase of salary. He was glad to see the Chancellor of the Exchequer in his place, and he would take the opportunity of calling his attention to the fact that before the passing of the Reform Bill the Civil Service Estimates amounted only to £4,200,000 a year, and that now they amounted to £9,100,000. The Question never came before the magistrates of Middlesex.

MR. SOTHERON ESTCOURT

observed, that the Middlesex magistrates expressed to him their desire that the Assistant-Judge should not retain his private practice.

MR. W. WILLIAMS

said, it never appeared on the business paper. He dared any some of the political friends of the Assistant-Judge wished to increase the salary, but it was better for that gentleman that he should be able to earn £1,000 a year by his practice, than to have his salary increased by £300 a year, and to be idle half his time. The Judges of the County Courts had a great deal more to do, and they were not allowed to practise.

MR. BYNG

said, he could corroborate the statements made by the right hon. Gentleman (Mr. Sotheron Estcourt). He had received a communication from the chairman of the Middlesex magistrates, showing that the administration of justice in the Metropolitan county was much less expensive than in other counties. For example, it appeared that, in 1856, the number of prisoners tried at various borough sessions was 3,774, at an average cost of £8 10s. each case, while the number tried at the Middlesex Sessions was 2,065, at an average cost of £2 3s. 10d. each case, and at various other County Quarter Sessions the cost of each case, was £10 1s. 4d. Unless the Assistant-Judge were prevented from taking private practice, it might happen that he would be found engaged as an advocate in appeals made from his own decision. These appeals were necessarily large, varying from £60 to £80 and £100 a year. He thought that an addition of £300 a year to the salary of the Judge, in lieu of private practice, was not an excessive compensation, and he believed that the proposed arrangement would be advantageous to the impartial administration of justice.

MR. PACKE

said, that as it had been stated that this salary ought not to be paid out of the Consolidated Fund, but that the Middlesex Assistant-Judge should be paid in the same way as the chairman of other Quarter Sessions, he wished to observe that the county rates were in no way chargeable for the payment of any chairman of Quarter Sessions, and he thought it desirable that the statement he had alluded to should not go forth uncontradicted.

MR. EDWIN JAMES

said, he thought that the House would cordially agree to the principle of the Bill; that the gentleman filling the office of the Assistant Judge of Middlesex Sessions should not practise as an advocate. Any contrary course would be prejudicial to the public interests; for a Judge one day associated on the bench with the magistrates of the county might on the next day have to apply to them for a license for a victualler; or a case might be put to him for his opinion as counsel, and afterwards the same case might be argued before him as Judge, and he might possibly be obliged to pronounce an opinion as Judge contrary to the opinion he had given as counsel. With respect to the amount of salary he thought no lawyer in that House would express an opinion that any Judge was over paid, but with regard to payment out of the Consolidated Fund, he believed it originated in this way—the Middlesex magistrates applied to have their Judge paid out of the Consolidated Fund, and the Home Office said that in that case it must have the appointment. That was agreed to, and so the matter had gone on ever since. He did not think the payment of £1,500 to a gentleman of eminence too much, and he should therefore vote for that sum. But the House should know that that sum was not the whole amount required for the administration of criminal justice at Middlesex Sessions. The Assistant Judge had a right to appoint a deputy, with the sanction of the Home Department, at five guineas a day. That deputy was almost permanently appointed. He did not object to that; because the sitting of two Courts diminished the expense of prosecutors and witnesses; but the House must not suppose that this sum was the whole expense. There ought to be some provision in the Bill in respect to this point, for if the principle were good that the Assistant Judge should not practise, it surely followed that the deputy, too, should not practise.

SIR GEORGE LEWIS

observed that when the present Bill was brought in a previous Resolution was not moved, as was usually the case when charges were made on the Consolidated Fund. Consequently, the material clause was only printed in italics, and was not in fact, at present, part of the Bill. Therefore, in voting for the second reading, no Member gave a vote for any charge on the Consolidated Fund; and the only point the vote would decide would be the proviso that the As assistant Judge during his continuance in office should not practise as a barrister. The question as to placing the increase of salary on the Consolidated Fund could only be raised after the second reading, in the event of a Resolution being proposed as a necessary preliminary to the introduction of such a clause as was now printed in italics. He would now say a few words with respect to the merits of the Bill. In 1844 a Bill was brought in to give a salary to the Assistant Judge of Middlesex Sessions of £1,200 out of the Consolidated Fund. That Bill was sanctioned by Parliament and the sum had been annually paid since that time. Nothing, however, was then said as to the Assistant Judge not being permitted to practise; and the Assistant Judge was allowed to hold his office concurrently with any private practice he might receive. Mr. Serjeant Adams was the first Assistant Judge. That learned gentleman did not, in fact, practise, and therefore the question of the inconvenience of allowing the Judge to practise, did not arise during his tenure of office. Mr. Pashley, however, had a considerable amount of private practice when acting as Judge, and considerable inconvenience was felt, he was informed, from the combination of the two functions; for it was open to any solicitor to lay before the Assistant Judge a case of appeal without a name, and thereby to obtain the opinion of the Assistant Judge, by which he might be guided in bringing an appeal or not. Any one could see that such a practice might lead to considerable abuse without any blame attaching to the Judge. Under these circumstances, when Mr. Pashley died, a deputation from the magistrates of Middlesex went to the right hon. Member for Wiltshire (Mr. Southeron Estcourt) and represented to him the expediency of putting an end to such a state of things. The arrangement agreed to was that the right hon. Gentleman should propose an increase of salary to the extent of £300, to be paid out of the Consolidated Fund. Mr. Bodkin, who he believed was admitted on all hands to be an eminent barrister, fully competent to discharge the duties of the office, accepted the office on the understanding of receiving £1,500 a year and giving up his private practice. That was the existing state of things. There was a distinct contract with Mr. Bodkin, which he felt to be binding on the existing Government. He had had an interview with Mr. Bodkin, and had ascertained the views he entertained with respect to the office and its duties, and the proposal he had to make to the House was that the salary of £1,200, payable out of the Consolidated Fund, should still continue. He expressed no opinion whether it was right that that sum should be charged on the Consolidated Fund. The charge was made in 1844, and continued ever since, and he was not now called on to express an opinion with respect to it. With respect to the future, he proposed that power should be given to the magistrates, if they thought it desirable that their Assistant Judge should be inhibited from private practice, to charge the county rates with an addition to his salary of not less than £300 a year. That was the arrangement to which Mr. Bodkin consented. Therefore, if his hon. Friend (Mr. L. King) was satisfied with this explanation, he would suggest that the Amendment should be withdrawn and the Bill allowed to be read a second time He would then undertake to propose in Committee clauses in conformity with the understanding come to.

MR. CRAUFURD

said, that the explanation of the right hon. Gentleman removed the objection with regard to the financial portion of the Bill; but there was another point worth remarking on, namely, the relative positions of the Assistant Judge under the Bill and of the County Court Judges. The latter had to give up all private practice, and could not hold a seat in that House and he thought if £1,200 was deemed sufficient for them, that sum might also be considered quite enough for the Assistant Judge of the Middlesex Sessions. Again, the principle of preventing a Judge from pursuing his private practice, if good for one case, was, in his opinion, good for all, and a Bill should be brought in to prevent Recorders from practising as Banisters. He admitted that the recent appointment to the Assistant Judgeship of Middlesex Sessions was one of the best appointments, but it was matter of question whether that functionary was not amply paid with £1,200, considering that police magistrates were only paid 1,000 a year.

MR. HENLEY

said, he was glad to hear that the Home Secretary did not intend to extend the principle involved in this Bill beyond the County of Middlesex, or to allow any further pull out of the Imperial Exchequer. Indeed he could not understand on what ground the Assistant Judge for Middlesex should be paid out of the public funds, any more than the stipendiary magistrates of Manchester, Liverpool, or other towns, He assented to the second reading of the Bill on the understanding that by so doing he merely expressed his approval of the principle which, he believed was laid down by this Bill, that the Assistant Judge should not engage in private practice. After what had been stated by the hon. and learned Gentleman the Member for Marylebone, (Mr. E. James), however, he thought that the House should receive some further explanation in Committee. It was stated that the Assistant Judge appointed a deputy Judge at five guineas a day, and that this office was a great advantage. Well if that be so, they ought to receive some explanation why the assistant Judge should receive at the rate often guineas a day for the 120 days he sat when the deputy Judge only received five guineas a day. These were matters, however, which could be better considered in Committee.

MR. PALK

said, he thought this Bill might establish a precedent which it would not be desirable to adopt; for if the magistrates of Middlesex were empowered to increase the salary now paid to the Assistant Judge of the sessions out of the county rate, a similar power might be demanded by the magistrates of other counties. At present he was not aware of any county in which the chairman of quarter sessions was paid by a county rate. The measure was, in his opinion, calculated to increase the discontent of the ratepayers, who already objected to the magistrates having the power of burdening the county rates with the salaries of certain officials.

Amendment, by leave, withdrawn.

Main Question put, and agreed to.

Bill read 2°, and committed for Friday.