COMMITTEE. (Hansard, 8 July 1861)

§ SIR JOHN PAKINGTON
asked if there was not some mistake in inserting the words "chief magistrate" in the Bill, such term being unusual in municipal Acts?

SIR GEORGE LEWIS
had no objection to omit the words, leaving it that "the mayor have precedence."

§ MR. SOTHERON ESTCOURT
moved the omission of the words, "or other persons," which might be understood as giving the mayor a right to preside at voluntary meetings, or meetings other than those of the magistrates. He was surprised that an Act of Parliament should be necessary to give the mayor proper precedence in any borough, and could not help thinking that the objects of this measure were too petty to be dealt with by Parliament.

SIR GEORGE LEWIS
said, that these little things were great to little men. He had received numerous representations upon the subject, and there were persons in many boroughs who took an interest in the question which appeared rather disproportioned to its magnitude. The Bill had been rendered necessary by a decision of the Court of Queen's Bench, that the precedence given to mayors by the Municipal Corpo- 573 rations Act meant only social precedence. The object of the clause was to give to the mayor precedence at meetings of magistrates, the words "or other persons" being only intended to include other persons who might be present at such a meeting, and he had no objection to their omission.

§ MR. BAINES
moved the insertion of words providing that when a meeting of country justices upon county business took place within a borough the mayor should not take precedence at such a meeting.

§ MR. CLAY
resisted the Amendment, as precluding the precedence of mayors in cities and counties. He had a competing Amendment on the paper, which he would move.

§ MR. HADFIELD
objected to vice-chancellors of universities having precedence of mayors.

MR. GEORGE LEWIS
said, that the words were found in an old Act of Parliament, and he had retained them.

§ MR. SOTHERON ESTCOURT
reminded the right hon. Gentleman that Oxford University was not placed first in the Bill.

§ MR. NEWDEGATE
said, Mr. Massey, the time is now come when I trust that I may be permitted to state the objections which I entertain to this clause—objections which are felt by the justices of the peace in a great number of boroughs in this country. And first, I would observe that the occasion of difference which has led to the introduction of this Bill unhappily arose in the borough of Birmingham. I do not, however, wish to trouble the Committee with the personal questions which gave rise to the difficulty. Suffice it to say that a person was elected mayor for that borough to whom the justices objected when he proposed to take the chair of right at their meetings, owing to certain circumstances which were connected with that person's character, and which I had hoped would now have been forgotten. The difference originated in these circumstances: the attempt on the part of that mayor to take the chair as a matter of right compelled the justices, from a sense of duty, to resist his claim. Now, although the right hon. Gentleman the Secretary of State for the Home Department says that this is a little question affecting little men, I must beg the House to consider that for the first time we are asked to enact that whoever may be elected mayor of a bo- 574 rough, whether he be an alderman or a town councillor, is to be entitled to precedence as chief magistrate for that borough. If hon. Gentlemen will take the trouble, as I have done, to look through the Act of 1835, the Municipal Corporations Reform Act, and the debates which preceded the passing of that Act, they will find that in no one part of that Act is the mayor termed chief magistrate.

SIR GEORGE LEWIS
These words are omitted. They are struck out of the clause.

§ MR. NEWDEGATE
But the provision is retained that the mayor shall, of right, take the chair at all meetings of the justices for the borough. Well, practically, that is the point at issue, because the term chief magistrate was merely descriptive and illustrative of the claim which was resisted for the reasons that I have described. According to the Bill in its original form, there were words in the preamble setting forth that doubts existed as to whether the mayor had this right or not. But, Sir, there never existed any reason for doubt at all. When the first attempt was made by the Mayor of Birmingham to take the chair at the meetings of the magistrates as a matter of right, and was resisted, he did not think fit to take the question before a court of law. His successor, however, was induced to do so; and the unanimous decision of the Court of Queen's Bench was that the mayor had no right to take the chair at the meetings of the magistrates. I have referred, in passing, to the Municipal Corporations Reform Act. Well, in every portion of that Act the distinction between the administration of municipal law, which rests with the mayor and town council, and the administration of the criminal law, is carefully preserved. In the 5th Section the mayor is termed the chief officer of the borough. By the 57th Section he is constituted a justice of the peace for the year of his mayoralty, and for the year next succeeding. But by the 99th Section provision is made for the appointment of a stipendiary magistrate, if the council of the borough shall think that appointment requisite. And, by the 103rd Section, the mayor is expressly debarred from presiding at the quarter sessions for the borough, because a barrister of not less than five years' standing is to be appointed Recorder, and that barrister is the real chief magistrate of the borough. He is to have of right the position of Judge at quarter sessions, and his precedence is settled as 575 next to the mayor on all occasions. Now, I beg the Committee to believe that I do not seek to detract in any way from the dignity of the office of mayor. I do not seek, by opposing the retention of this clause, to take anything from the mayor. On the contrary, I wish the dignity of the office to be preserved as fully as possible. But I put this to the House—will it be consistent with the wholesome government of our municipal boroughs, will it be consistent with the dignity and the position of mayor, that mayors, without the slightest knowledge of criminal law, that persons who have never acted as magistrates, that persons without the slightest acquaintance with the laws of evidence, that persons elected to the office of mayor for every reason in the world but their competency as magistrates, should be suddenly invested with the position which their being of right chairmen of the bench of petty sessions must give them? I say that, if ever any device had been thought of calculated to bring the office of mayor into contempt, it would be the forcing of persons who are known to be incompetent into the position of presiding in criminal jurisdiction at petty sessions; and this is a provision which can apply to incompetent mayors only—I mean to mayors only who are incompetent as justices. For it is not denied, and it cannot be denied; it was so stated before the Court of Queen's Bench that, in no case where the mayor was competent, had the justices not willingly elected him their chairman. But they value the power of choice, because in petty sessions each magistrate is individually responsible for the decision of the whole bench; and, therefore, having a great mass of business to transact, perhaps having to act in troublous times, they do feel that that responsibility would be most unfairly enhanced by their being compelled to accept as their chairman an officer whom they would themselves have chosen, if he were competent, but whose pretensions they have resisted only when they believed him to be a person unfitted to discharge the functions of their chairman. Now I say that the House should do one of two things: it should either insist upon such qualifications for mayors as shall render them surely competent by previous acquirement and experience to the discharge of these functions, appoint a prefect at once, or else the House ought not to fetter the discretion of the justices in the choice of their chairman, when each justice is personally responsible 576 in petty sessions, by forcing upon them a chairman whom you take no security shall be either mentally, or by acquirement, or by character, competent for the situation. I only ask the House not to sweep away at one stroke all the carefully considered provisions which were introduced into the Municipal Corporations Reform Act in this respect; and I beg the Committee to allow me to show them that that Act was passed on the faith of those provisions being strictly observed. In introducing the Bill the noble Lord the Member for the City of London stated that nothing would be done by that Bill which would in any way establish or promote the establishment of a system of elective magistrates. The noble Lord said— With respect to the 129 boroughs, the town councils are to have the power of recommending to the Crown certain persons whom they think proper to receive the commission of the peace within the borough; but they are not to have the power of electing magistrates in such sense as that the assent of the Crown shall not be necessary to perfect the election. Now, if you pass this Bill, leaving the other provisions of the Corporation Reform Act untouched, one of which is that the mayor shall be elective, and shall be a justice, by virtue of his election, though only for two years, you virtually make him superior to the other justices, all of whom are appointed by the Crown for life, or during good behaviour, which is the same as for life. You not only appoint an elective justice, but you make that elective justice necessarily chairman at every meeting of the justices, than which I cannot imagine any more direct contravention of the understanding upon which the Municipal Corporations Reform Act was introduced and passed. But, further, the noble Lord said— I am of opinion that the town councils will take care not to recommend to the Crown any persons but such as the advisers of the Crown can with safety appoint to the magistracy. But the mayor is appointed under the Act of Parliament as magistrate, and although he is placed in the commission of the peace, he is placed there by Act of Parliament, not by the independent discretion of the Lord Chancellor as the representative of the Crown; and this is the magistrate to whom the House is asked to give this additional power. The noble Lord continued, speaking of the smaller boroughs— These magistrates will not have the power of sitting in quarter sessions, and, as I have already 577 stated, they will have nothing to do with granting alehouse licences. But there are a considerable number of these boroughs of the largest size, in which it may be proper to have a court of quarter sessions, in which, indeed, there is a court of that kind already established, and in which there is a Recorder perfectly fit for his situation. Remember the summary jurisdiction which you have given by recent Acts to the justices in petty sessions; and here you are about to control the justices who are appointed for life by the Lord Chancellor by appointing them a chairman, not of their own free choice, but against their choice. The mayor is an elective magistrate, the only elective magistrate, and elected for only two years; and in presiding at petty sessions he must virtually act as Judge. The noble Lord said— It seems to me better that the power should be in the Crown, it being understood that the person (the Recorder) to be appointed shall be a barrister of five years' standing at least, than that there should be anything resembling the popular election of a Judge. The Recorder will be appointed during good behaviour, and will not be removable at the pleasure of the Crown; and it may, therefore, be expected that he will exercise his functions independently and fairly? Now, what are the securities that the Recorder shall "exercise his functions independently and fairly?" First, that he is competent to those functions, for he must be a barrister of not less than five years' standing; secondly, that he is approved by the Lord Chancellor; and next, that he is appointed for life. Now, if you put the mayor in this position, and it will apply only to the mayor whom the justices do not consider competent, and who is not a justice for life, but for two years; whenever he acts as Judge, or sits in that position, he does so in contravention of every condition which the noble Lord deemed to be essential in the appointment of a Recorder. I think I cannot better express this than in the language of the Lord Chief Justice—["Move, move."] Some hon. Members who exhibit impatience may have come down to vote on the Bill in obedience to a certain pressure. I trust, however, that the House contains many other Members who, when such a change of the law is proposed, will not be inclined to disregard the unanimous judgment of the Court of Queen's Bench. The Solicitor General having observed, "I apprehend, if our construction of the statute is right, there is a duty cast upon the parties to perform:" The Lord Chief Justice said, as I understand it, it is something more than mere precedence. This is a right claimed to preside as chairman. 578 The Solicitor General: Yes; to preside. Mr. Justice Wightman: It may be requisite for the due performance of the magisterial business that the chairman should be a more experienced magistrate than the rest. Mr. Justice Hill: The ordinary justices of a county take precedence according to the date of their appointment; yet they exercise the right of choosing their own chairman. The Solicitor General: It is a question we are anxious to have an opportunity of arguing, and having it decided. Mr. Justice Hill: It is manifestly inconvenient to allow a man who is not a magistrate, who becomes mayor for a year, and is a justice of the peace ex officio, to preside over magistrates who have been accustomed for years to deal with most difficult cases. The Solicitor General: It is found from inquiry that in nine-tenths of the boroughs the mayor presides without question or challenge. Mr. Justice Wightman: That might be; and here the justices of the borough say they are perfectly willing to allow the mayor to preside as a matter of courtesy. The Solicitor General: Yes. It is a question arising on the 57th Section, and whatever decision the Court comes to will settle the matter. The Lord Chief Justice: I agree in the propriety of the mayor, who is called the chief magistrate, having precedence everywhere, and to preside; but there may be reasons in individual cases why men generally conversant with magisterial functions should preside. All that the Act says is that the mayor shall have precedence, such as the order of going into a room, &c.; but I do not think it means that he shall take precedence in all magisterial duties. It appears from the Act that the Legislature never intended him to do so, or they would have said that he should have precedence of all persons and justices.…. The terms of the section are plain; it refers to social and not magisterial precedence. The result was that the Court refused to hear any further argument on the case. The law, then, is perfectly clear. The intention with which the law was framed is perfectly clear. And all that can be effected by this clause is, that when a mayor is not, in the opinion of the justices, competent to preside, the Legislature will force him upon these magistrates as their chairman, induce him to examine in chief with perhaps no knowledge whatever of the law of evidence, and place him in the position of having to announce decisions without the slightest acquaintance with the first principles of the law, and even when there are reasons connected with his personal position that render it highly improper that he should pronounce the decisions of the Court and give their warnings. And for what reason? Merely because a certain number of the mayors of England have, upon solicitation, consented to support the Mayor of Birmingham, 579 whose claim being illegal, was resisted by the magistrates, and this, after the justice of their resistance has been confirmed by the decision of the Court of Queen's Bench. Sir, I move the rejection of this clause from no wish to diminish or impair the dignity of the mayors, and from no disrespect towards our municipal corporations, but because I am perfectly certain that if the clause be agreed to it will produce instances of incompetency which will tend to degrade the position of the mayors, and to bring our municipal institutions into contempt.

MR. DANBY SEYMOUR
moved the adjournment of the debate. The Bill was most unpalatable in the country, and contained an important principle which ought to have been discussed on the second reading.

§ MR. ADDERLEY
hoped the Government would agree to the Motion for adjournment.

SIR GEORGE LEWIS
did not believe the clause had the great importance attributed to it, because, as they well knew, the mayors were persons of respectability. He had no objection to the adjournment.