HC Deb 18 April 1860 vol 157 cc1905-16

Order for Second Reading read.


said, in the sudden but unavoidable absence of his hon. and learned Friend the Member for Guilford, he rose to move the second reading of this Bill. Last Session a similar Bill passed the House of Lords, where it met with the approbation of all the law Lords, and came down to the House of Commons towards the close of the Session, but in consequence of the pressure of other business did not become law. At the commencement of the present Session the hon. and learned Member for Southwark introduced another Bill, containing ten of the clauses extracted from the former measure, the "educational clauses," and he (Mr. Murray) endeavoured upon the Bill of the hon. and learned Member going into Committee to introduce the remaining clauses of the Bill of last Session. That course was, however, not in accordance with the forms of the House, and the hon. and learned Member succeeded in passing his Bill, which had gone up to the House of Lords. In their Lordships' House it was thought desirable to bring in a new Bill comprehending the educational clauses and the omitted clauses, and this Bill having passed the House of Lords, he had now to move the second reading. The object of this Bill was to increase the respectability and education of attorneys and solicitors. Under its provisions, graduates and members of certain universities in the three kingdoms would be enabled, upon examination, to be admitted attorneys, solicitors, or proctors, after three years' service as articled clerks instead of five, as at present. By another clause, gentlemen at the bar in like manner, after leaving the bar and undergoing an examination, would be admitted to practice as attorneys and solicitors at the end of the same term of service. Other clauses gave power to the Judges to make regulations for the examination of clerks during their clerkship, as well as after the expiration of their articles. There was also a clause giving bonâ fide managing clerks, who had served honestly and faithfully for ten years, an opportunity of being admitted after three years' further service. The Incorporated Law Society, who had originated the Bill, would be enabled, with the sanction of the Judges, to increase their registration fee from 2s. 9d. to 5s. That institution, consisting of a body of gentlemen belonging to the profession, were elected according to similar courses adopted at an ordinary club, and the Council of that Institution, at the expense of the Society, took measures for the purpose of preventing improper persons entering the profession, and of getting struck off the rolls, or otherwise punished, solicitors who had been guilty of malpractices. The Bill also repealed certain Acts of Parliament which disqualified attorneys, solicitors, and proctors from being appointed justices of the peace, but provided at the same time that no attorney should practise in the county over which his judicial functions extended. Under another clause the Court of Chancery had power to order that an attorney's bill, after taxation, should bear interest at 4 per cent if it remained unpaid after three months, which would render it unnecessary for him to bring an action against his client. There were similar provisions relating to lunacy, and by a further clause it was enacted that the decision of one of the superior courts to strike an attorney off the rolls for misconduct should operate in all the other courts, without a separate application being made to each.

Motion made, and Question proposed, "that the Bill be now read a second time."


said, that he was loth to reject a Bill containing such valuable provisions as the "educational clauses," which would improve the character and status of the profession, and therefore if the Bill had been introduced in that House, he would have proposed to amend it; but as it had come from the other House, he had given notice of his intention to move that it should be read a second time that day six months. He would remind the House of the curious position in which the matter stood. The Bill of last Session was brought down from the House of Lords and rejected by this House, not, as the hon. Member (Mr. Murray) represented, from want of time to consider it, but really in consequence of the strong opposition offered to some of its provisions. The hon. and learned Member for Southwark (Mr. John Locke) selected all the good parts of the Bill, and formed them into a separate measure which he introduced this Session, and which, having received the sanction of that House, was now before the House of Lords. He (Mr. Knight) believed that he was justified in saying that, if they rejected the Bill then before the House, the measure approved of by themselves would come back to them from the Upper House, and would pass into law, with the general approbation of the profession. He objected to the Bill on various grounds. In the first place the Incorporated Law Society was an ordinary club in Chancery Lane, composed of solicitors. Most of them were highly respectable persons, but they would be enabled by this Bill to tax the whole profession, for certain purposes of their own. They would be entitled to receive something like £4,000 or £5,000 a year, but what they were to do with that large income was not stated. It was stated that it was the duty of this body to weed out of the profession persons who were not fit to remain in it. It was unreasonable to entrust to any body the task of weeding out itself, and if that duty must be performed, a public prosecutor ought to be appointed by the Lord Chancellor for the purpose, and be paid the £4,000 or £5,000, arising from the fees. No doubt the Incorporated Society had been the means of getting many improper persons struck off the rolls, but they had left untouched great defaulters and culprits; and he feared that the great defaulters had been men belonging to that society, a fact which proved they were not proper persons to undertake the duty of proceeding against persons accused of ill-conduct. There were several clauses in the Bill which were very objectionable. One was, that which went to repeal the Act which prevented solicitors from becoming justices of the peace. It was manifestly improper that gentlemen constantly practising before courts should be constituted judges. It was impossible that they could do their duty towards their client without having a certain bias. Again, the clause relating to attorneys' bills after they were taxed was needless, as they had every means at present of recovering as against their clients. Attorneys themselves opposed it, for they said to him, "Whoever heard of one of our cloth being unable to recover the amount of his Bill?—and we don't want to be put upon a different footing from other persons." Upon these grounds, he contended that the Bill ought to be rejected.

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


said, that the Bill, like that of the previous Session, emanated from the Law Society, the members of which employed themselves in eating and drinking and reading the newspapers—amusements which they occasionally varied by hunting a brother attorney in the courts of law. By this Bill they sought to put themselves in funds by the taxation of the profession, for the purpose of enjoying themselves in that manner in future, as well as to obtain privileges which they had no right to possess, and which had been denied them by several Acts of Parliament. They had cunningly appropriated clauses from a measure which he (Mr. Locke) had attempted to pass through Parliament, designed to elevate the character and improve the position of attorneys; but they had so altered and mutilated those clauses as to destroy the fair and liberal effect he intended them to have, and, under the pretence of improving the educational status of the profession, they had sought to obtain for it monstrous and intolerable powers over a client's property by way of lien. He (Mr. Locke), for example, had proposed in his measure to enable clerks to attorneys or solicitors, who bad served for ten years, to be admitted to practice on their own account after an additional service of three years under articles; but the Law Society, by introducing the word "managing" before "clerks" in one of the clauses which they had taken from his Bill, endeavoured to restrict, if not altogether to destroy, the operation he had intended it to have. Again, Clause 18 repealed the present law which prevented attorneys from becoming Justices of the Peace, but said that an attorney should not act as a magistrate in a county in which he practised; but the absurdity of such a restriction was evident, for there were a thousand modes in which it might be evaded. Then Clause 21 gave an attorney a lien for costs on whatever property he might have "recovered or preserved" for a client in a suit in any court of justice. He was at a loss to know what was meant by the term "preserved" in such a case; it was clearly a term not known to the law; but, whatever it meant, he contended that the existing law of lien went quite far enough already, and he did not think the country gentlemen in that House would sanction such a proposition emanating from so suspicious a body as the Law Society in Chancery Lane, who might naturally be supposed to have their own interests at heart, although they might not be very careful of those of anybody else. He could not see what use this Bill was meant to effect, for the educational clauses which it contained bad been embodied by him (Mr. Locke) in the Bill which had passed that House, and was now waiting a Second Beading in the House of Lords. No doubt, if the objectionable clauses in this Bill were struck out, the Law Society, for very shame, could not send the set of educational clauses to the House of Lords, but they had endeavoured to make them a cloak for their own clauses, which had been so much lauded by the hon. Gentleman who moved the second reading of the Bill. It behoved the House to consider whence this Bill emanated, and to ask themselves whether they conceived that any advantage which might arise to the community at large by the passing of this Bill would not be counterbalanced by the very great danger they ran of placing an irresponsible power in a body of men who, up to the present time, had not shown that they bad exercised the powers which they already possessed for the benefit of the profession.


said, be believed that if the Bill had only contained the educational tests, which would raise the character of attorneys and solicitors, the House would readily have given to it its assent; but while coming before them under the guise of a measure of that kind, it embraced some of the most extraordinary clauses which bad ever been suggested. He was not inclined to indulge in satire upon the Incorporated Law Society, in which there were many members of the highest character, and which had done much to maintain the character and integrity of the profession; but he could not see on what ground they presumed to ask the House to empower them to tax the whole body of attorneys and solicitors. They absolutely sought power to tax every solicitor, who already paid twelve guineas a year for his certificate, an additional sum of 5s., which would yield them a revenue of about £5,000 a year, for the application of which they would be responsible to nobody. The society might occasionally be instrumental in bringing delinquent members of the profession to justice, but there was nothing in that or any other way which it was incumbent on them to do; and therefore it would be monstrous to give them such an irresponsible power of taxation. He contended also that the clause which precluded an attorney from acting as a magistrate for a county in which he practised might be easily evaded, and, that being so, it would be fatal to the administration of justice if attorneys were to be allowed to sit side by side on the bench with their clients, over whose property and interests they had often considerable power. Again, a more monstrous proposition was never made than that which gave attorneys a statutable lien for costs over any property which they might recover or "preserve" for a client in any suit before a judicial tribunal, seeing that an attorney had already a lien for costs on every deed and document in his possession belonging to a client. The tyranny implied in the proposition was further aggravated by the provision that all conveyances, assignments or other acts done to defeat, or which should operate to defeat that right, should be null and void. So that if a man recovered an estate worth £50.000 he could not execute a conveyance of it to his wife or brother, or any one else, unless the at- torney was satisfied. The 19th clause provided that the amount of an attorney's bill certified on taxation was to carry interest if not paid within three months. The more respectable members of the profession did not desire such legislation in their interest, and they repudiated the attempt to obtain the exercise of a power over their clients' property for which they had never asked. With regard to managing clerks, there were many in London who were paid salaries of from £300 to £400 a year, and who had no idea of ever becoming solicitors themselves. The Bill generally was very objectionable, and he trusted the House would never sanction it.


said, that the Bill came before the House under very considerable authority—it had been prepared by the Incorporated Law Society, and had received the sanction of the Law Lords in the House of Lords. It was, no doubt, very easy to cast ridicule on any public body, and more especially one composed of lawyers; it had been said that the Law Society was a mere club; but he would remind the House that the Society had certain public duties to perform, as they were entrusted with the power of examining attorneys and solicitors before they were admitted to practise, and it was admitted that they had done their duties well. Whatever had been done of late years to remove improper persons from the rolls of the Court had been done by the Society, and at their own cost. The Bill was last year brought in by Lord Campbell, now Lord Chancellor; and this Session it was introduced by a noble and learned Lord who had sat on the woolsack, and it was again supported by the Lord Chancellor. He was surprised to hear the hon. and learned Member for Southwark (Mr. John Locke) claim the paternity of the Bill, for he had copied the Bill introduced by the Law Society last year, and had only added the clause that admitted attorneys' clerks to practise. It was admitted on all hands that the educational clauses were good and worthy of support, as it was of importance that attorneys, who were intrusted with a knowledge of the secrets and private concerns of their clients, should have the education and feelings of gentlemen. An objection had been made to a clause in the Bill which allowed interest on unpaid bills after three months, but he did not see why that objection should be made, seeing that a tradesman might, on giving notice, charge interest on his bills. That, and the objection to the clause which gave a lien, were objections in detail which might be discussed in Committee. The clause which allowed attorneys to be justices of the peace involved a principle, and he thought it would be better to strike the clause out of the Bill. But admitting that there were clauses which could be amended, and some which had better be omitted altogether, there would still remain enough of good in it to induce the House to read it a second time.


said, the support of the hon. and learned Member for Truro (Mr. M. Smith) gave to the Bill was a very modified support. He brought forward an argument why solicitors should be entitled to charge interest, if their bills remained unpaid for three months. Now, he thought that solicitors were well capable of taking care of themselves, and that they charged quite enough, without the House passing a Bill empowering them to charge interest after three months. But he rose principally to draw the attention of the hon. Member for Truro to the clause with reference to certified conveyancers. He believed there was not a more respectable class than the certified conveyancers. This Bill provided that these men might be struck off by the benchers without any appeal. He thought that was an injustice, and his vote would depend on whether he had an assurance that that clause should not be retrospective. There were other objectionable clauses, and unless they were assured that they would either be improved or withdrawn, the wisest thing the House could do would be to reject the Bill altogether.


said, he trusted the House would allow the Bill to be read a second time. The objections to the Bill merely related to details, which might be discussed in Committee. If the Bill only contained the educational clauses, it ought to be read a second time. They heard constant complaints of the inefficiency of that branch of the profession. They were now-anxious to improve themselves, and he thought they ought to give them the opportunity.


said, the hon. Member for Truro said a tradesman might, by giving notice, charge interest on his unpaid bills; and he asked why a solicitor should not do the same thing. The truth was, that attorneys had already the power to do just what tradesmen did; but the present Bill would enable them to charge interest without the knowledge of their clients, and without giving notice. If an attorney were to tell a client that he meant to charge interest upon his bill, the latter would probably go to another attorney; but under the present measure a bill might stand over for years; and the client, when he came to discharge it, would have a large sum to pay of which he knew nothing. Attorneys, he thought, could take very good care of themselves without the aid of this provision. He thought the House was placed by the proceedings of the House of Lords in an unpleasant position with regard to this Bill. This House had sent up a Bill to the House of Lords containing all the enactments of the Bill, which everybody approved. The House of Lords neither rejected the Bill, nor carried it, but hung it up, and sent down a Bill containing word for word the clauses already agreed to by this House, after having tacked on other clauses, which had no relation whatever to the matter in hand, but which gave the attorneys large benefits at the expense of the public. Suppose they struck out of this Bill the objectionable clauses, they would send up a second Bill precisely the same as the first, and he did not think that was a position in which the House of Commons ought to place itself. For these reasons he should oppose the second reading.


said, he wished to remind the right hon. Gentleman that the House of Lords had last Session sent down a Bill containing a large proportion of the clauses in the Bill now before the House; but owing to the late period at which it came down, the House of Commons had not had time to consider the measure. The subject was then taken up by the hon. and learned Member for Southwark in the present Session, and the result was the Bill which was now in the other House. The present Bill, had, he thought, been too much treated as the measure of the Incorporated Law Society, which was a very inadequate representation either of the Bill or the motives which had led to its adoption. Before it was introduced the subject had been very carefully considered by the Judges, by the Benchers of the Inns of Court, and by every branch of the legal profession, and as a whole the Bill might be said to have received the sanction of the profession, and to have come down to the House with the stamp of approval of the law Lords. Objections had been taken to the clause relative to certificated conveyancers; but he was authorized to say that that there would be no objection to the modification of this clause, so that it might refer only to persons admitted as certificated conveyancers "after the passing of the Bill." The Bill introduced general regulations for the education, the examination, and the qualification of attorneys. No one could object to these provisions, for everything which tended to add to the respectability of the profession would promote the public interests. The clause with regard to managing clerks had been introduced in favour of those who had not had the advantage of a liberal education. Then came the question, should there be a registration of attorneys. The medical profession enjoyed the advantage of having a record of every man belonging to it. But if a person wished to know whether any one was an attorney he had to search at several places in order to ascertain the fact, and when the person was admitted. Then, objections were taken to the registration fee of 5s. The Incorporated Law Society were Registrars by law, but they had not the means of making the registration. The council of this society were gentlemen of eminence in their profession, who gave their time and services without pay or remuneration for the interests of the profession, while they at the same time conferred a great advantage on the public at large. For himself, he should be prepared to recommend that funds, if necessary, should be placed at the disposal of the Incorporated Law Society, for the purpose of enabling it to purge the profession of its unworthy members. At present the Society could not take the steps which the interests of the public required for want of funds. When it was remembered that the stamp duty amounted to £120, no attorney would grudge the payment of a registration fee of 5s. The Bill then dealt with the costs of solicitors, which ought also to form part of a Bill embracing the general interests of the legal profession. If objections existed to this or any other detail of the Bill they ought to be dealt with in Committee. Objections were made to the clause enabling solicitors to act as Justices of the peace. He could easily imagine that in some districts of the country it would be for the public advantage that a gentleman of high standing in the profession should be in the commission. Take, for example, a London solicitor who might have a country seat in a remote part of Wales. The Bill only authorized the Lord Chancellor to place a solicitor in the commission of the peace, and that high legal functionary might, he thought, be safely entrusted with this power. He hoped that the House would give the Bill a second reading.


said, he shared in the dissatisfaction which had been expressed at the circumstances under which this Bill came under consideration. There was, however, much in the Bill which was excellent, and though there were other things which he did not approve of, yet he would venture to suggest the adoption of a more temperate course than had been followed elsewhere, and he should therefore vote for the second reading, reserving to himself, of course, the fullest power of discussing and altering the Bill in Committee.


said, one objection to the Bill was the clause relating to certified conveyancers. He also objected to the clause which would enable the Incorporated Law Society, an irresponsible body, to raise £5,000 a year. That society ought not to be entrusted with an expenditure of so large an amount. There was great jealousy of that society in the country, and great opposition to it, and very justly. In his opinion the £5,000 a year would be spent in the persecution and oppression of the weak members of the profession.


complained of the extremely inconvenient and almost unconstitutional position in which the House of Commons had been placed in consequence of the conduct of the House of Lords in this matter. If they agreed to this measure, it would be the second Bill on the same subject passed by them in one Session. The House of Lords ought to add any new clauses they wished to introduce to the Bill already passed by the House of Commons, instead of framing a fresh one. He suggested that the present Bill should be got rid of in order that their Lordships might take that course.


remarked that the additional clauses referred to were not introduced into the former Bill in the House of Commons simply because they were held to be too remotely connected with the subject, and such as ought to be incorporated in a separate measure. He thought the present Bill contained a great many good points, and ought to be considered on its merits. It was inconsistent with the dig- nity of the House to enter too minutely into the history of the two measures.


said, he agreed with the Solicitor General that it was unnecessary to stand on any ground of punctilio as to the procedure with reference to the House of Lords. There were, however, seven additional clauses in this Bill, which were not in the measure before the House of Lords; and they were money clauses. Being, as was technically termed, "red-letter clauses," he very much doubted whether they could have been added in the House of Lords; so that the Commons had not been treated with any want of respect by the other House. There were many provisions in the Bill to which he entertained strong objections; but as he approved of its general principle, he should feel it his duty to vote for the second reading.

Question put, "That the word 'now' stand part of the Question:"

The House divided:—Ayes 191; Noes 29: Majority 162.

Main Question put, and agreed to.

Bill read 2°, and committed for Tuesday 1st May.