HC Deb 21 June 1864 vol 176 cc22-30

Bill considered in Committee.

(In the Committee),

Clauses 1 to 11 agreed to.

Clause 12 (Appointment of Chief Clerks 15 & 16 Vict. c. 80, s. 16).

Amendment proposed, to leave out the words "one chief clerk" and insert the words "two clerks." — (Sir Colman O'Loghlen.)

Question proposed, "That the words proposed to be left out stand part of the clause."


observed that the Commissioners reported in favour of a chief clerk, and he could not adopt the recommendation of the hon. Baronet without sufficient reason being assigned.


said, it was not satisfactory that an important measure of this kind should be hurried through in the present state of the House—[there were not more than 20 Members present]. He could not help thinking that undue haste was displayed in pressing through these clauses.


said, he had been waiting there half an hour before the House was made. He might express his surprise that those hon. Members who had given notice of Amendments had not come down to move them. He had no desire to hurry through a single clause without the fullest consideration; but it was too bad that hon. Members who had given notice of their intention to move Amendments should fail to make their appearance to move them, and that the Government should then be accused of desiring to press the clauses through the Committee with undue haste. For his own part he was ready to spend any time in order that the Bill should be properly considered.


said, he thought that the Government were hardly in a condition to treat a measure of this importance so peremptorily. He had been in the House up to two o'clock that morning; and when he came down to the Committee on this Bill, hearing that no House had been made, he went to the library to get a book containing the Report of the Committee on this subject, and he lost no time. On his return he found that the House had been made, that the Speaker had left the chair, that the Bill was being hurried through the Committee, insomuch that eleven clauses had already been passed. His intention had been to propose that the Bill should be referred to a Select Committee; but he had lost the opportunity of making the Motion by the precipitancy with which the Committee had been hurried on. It was not for a Ministry that a day or two ago had escaped a Vote of Censure by only half-a-dozen votes, and who last night were signally defeated, to treat the House in this manner. The object of this morning sitting appeared to be not to obtain the opinion of those most competent to give it on this Bill, but to hurry on a Bill, which was not for the interest of the public. The first eleven clauses which had been hurried on contained all that was important. The right hon. Gentleman the Chief Secretary for Ireland knew that he was attending for the purpose of discussing these clauses; the Attorney General for Ireland knew it; and he maintained that it was not a proper course for the Government to force on a Bill without giving Members who were known to be interested in the measure five minutes to pass from one part of the House to another. If the hon. and learned Gentleman thought he could do business in this way, he would find that it was not an insignificant party to which he (Mr. Whiteside) belonged, and that it would enforce due respect for their opinions. When it was first announced that the Committee on this Bill was to be taken at a morning sitting, he (Mr. Whiteside) stated that it would be impossible for him to attend. His hon. and learned Friend the Attorney General for Ireland said he could not help that, and that he had been unable to obtain an evening sitting for the consideration of the Bill. All he (Mr. Whiteside) could say was, that when he served under a Ministry that possessed some influence in the House, he was always able to obtain an evening sitting for the discussion of any Bill so important, and he should have believed that he had failed in his duty if he had not represented to the Ministry the necessity of fully and properly considering such a measure. It was neither wise nor prudent to appoint the consideration of a Bill of the nature of the one before the House at a time when those who were interested were unable to attend. His object in endeavouring to procure the reference of a Bill to a Select Committee was the fact that he felt convinced that it would be found that the Bill was not only clumsily framed, but would be the means of inflicting upon the country a great and unnecessary expense. No one would venture to say that the Chancellor or the Master of the Rolls concurred in this Bill; on the contrary, the head of the Court was of opinion that all that this Bill proposed should be done by general orders. He found no instance of a Bill of this kind being introduced without the consent of the head of the Court. His silence showed that he did not approve of the Bill. He (Mr. Whiteside) wished to see this Bill referred to a Select Committee, because a Committee of the ablest men of the House had considered the appointment of Vice Chancellors, one for the Court of Chancery, one for the Lands Estates Court, and they said the evidence convinced them that the business was better and more cheaply done by the Masters than it could be by a Vice Chancellor, and they refused to appoint the Vice Chancellor. There was no demand among the public for a measure of that description. No petition had been presented in its favour from the Bar, or the body of solicitors, or the suitors. He wanted to examine witnesses for the purpose of throwing light on the merits of the case, and a Select Committee would enable him to accomplish that object. It would be a complete delusion to suppose that the causes in Ireland with which that Bill would deal were of anything like the magnitude and complexity of the corresponding causes in this country. He wished to know how the smaller causes were to be disposed of, if the measure were passed. Were causes which involved sums of only from £200 to £500 to be brought before the Court of Chancery? It should be remembered that five-sixths of the business of the Masters, whom the Bill would abolish, were performed by the junior counsel, and a comparatively trifling expense was thus incurred. The work of the Masters, too, was discharged in the most satisfactory manner. The solicitors in Ireland, who had the conduct of these suits, were paid very moderately; while it was only natural to suppose that if the business was to be removed to a higher Court, higher prices would be demanded for its management. He believed, too, that one Vice Chancellor would be unable to perform all the work which was at present done by four Masters. The expense, he was assured, would be increased one-third. By this Bill they perpetuated the old system of taking evidence by an Examiner, only they made it seven times worse than it was formerly. Were they to perpetuate the system which was so detrimental in the old Ecclesiastical Court? Why, in the case before the House of Lords now, in Scotland nine months were consumed in taking the written evidence; but it was all taken in Ireland and counsel heard in six days; and it was this system of written evidence, which was an obstruction of justice, which this Bill proposed they should return to! Then it proposed to return to the system of demurrers—a system which had worked most unsatisfactory for suitors. Then on the Chief Clerk question the principle of this Bill was directly opposed to that affirmed by the House in the Landed Estates Bill. Take a case of an estate of £100,000 in court, the estate was gone, and the claimants upon it sent in their claims. Was the Chief Clerk as competent a person to decide them as the gentleman who at present performed that duty? He thought not; and this was a question he wished to submit to a Select Committee, The course they should adopt was that of the Landed Estates Court. It was in comparison with that proposed in this Bill perfect. The Court had done an immense amount of business; its accounts were taken satisfactorily by the Judges at one quarter of; the expense and in a quarter of the time that it would take the Chief Clerk. Certainly these Judges were more competent to decide these points than a Chief Clerk, There was at present no court in which the proposed Vice Chancellor could sit, and the fact was that a further expenditure would have to be incurred in the erection of an edifice for that purpose. He would suggest to the Government that if they wished to consult economy in this matter, that the Court of Chancery in Ireland, in addition to the Lord Chancellor, Justice of Appeal, and Master of the Rolls, should consist of two Judges, one to be selected from the Judges of the Landed Estates Court and the other from the present Masters in Chancery, and that no Chief Clerks or other officers with judicial functions should be attached to the Judges, but that the latter should be responsible for the conduct of the entire business in their respective courts. He had intended to move that an Instruction to that effect should be sent to the Select Committee together with the Bill, but he had been informed by the Speaker that such a course could not be adopted. There were three Judges in the Landed Estates Court, and two were ample for the business transacted in that Court, so that if the Attorney General for Ireland were intent upon making a Vice Chancellor, and were at the same time disposed to practise economy, he could effect his object much more cheaply than was contemplated by the Bill before the House—


rose to order. There was a distinct Motion before the House; but the hon. and learned Gentleman, instead of speaking upon that Motion, was going into the details of the different clauses of the Bill. He apprehended that the hon. and learned Gentleman ought to speak upon the Motion, and not to pursue the extraordinary course which he was taking.


contended that he was not going through the Bill clause by clause, but simply showing reasons why the Chairman should report Progress, with a view to his moving in the whole House that the Bill be referred to a Select Committee.


said, he understood that the hon. and learned Gentleman would conclude by a Motion to report Progress, with a view to an ulterior proceeding, and he was showing reasons why it was desirable that he should take this ulterior proceeding, and that to enable him to do so the House should resume.


That was precisely so. He proceeded to point out that there were numerous claims for compensation. Then as to the expense of the Bill—what would it be? There was a building clause, under which offices were to be erected; but before they had any ground for these offices to be built on, the staff was to be appointed and paid, whilst the present officers were doing the work; in fact, the measure could not come into operation for two years. He believed the time at which the Bill was introduced was inappropriate, and it would be well to withdraw it, and have some general orders drawn up and submitted to the Chancellor and the Master of the Rolls for their sanction. Another point he wished to call attention to was this, that Ireland was not in a condition to bear increased taxation, which the Bill would impose. It was idle to expect that a Bill of that magnitude could be passed during the present Session. [The hon. and learned Member, whose address had been listened to throughout with great impatience, and who consequently was very imperfectly followed, concluded by moving, That the Chairman do leave the Chair.]


seconded the Motion. He had objected from the beginning to the Bill being appointed for a morning sitting, and the result of that day's proceedings proved the correctness of his opinion. When he came into the House there was one Member on the Opposition Benches, and only six on the other side of the House. Many Irish Members were engaged on an important Committee and were unable to attend, and others also were unavoidably absent. It was most undesirable that a Bill of such importance should be considered in so thin a House. His constituents in Dublin strongly disapproved of the Bill, and did not wish to see the present cheap and efficient tribunals abolished. Substantial justice was obtained in the existing courts at a very small cost, and if the present measure were passed, they would necessarily have with the English system the English scale of costs. The most important clauses of the Bill had been passed accidentally and without any discussion, and he hoped that under these circumstances the Government would consent to refer the measure to a Select Committee.

Whereupon Motion made, and Question proposed, "That the Chairman do leave the Chair."— (Mr. Whiteside.)


said, he had listened to the extraordinary performance of his hon. and learned Friend the Member for the University of Dublin with very considerable amazement. He had never doubted his hon. and learned Friend's powers; but here the hon. and learned Gentleman had occupied—he would with all due respect say abused—the patience of the Committee for two hours and a half with a speech which had about as much to do with the Motion as with the affairs of Kamschatka or the Great Mogul. Even the authority of the Chairman could not restrain his eloquence; for although he had given notice of a Motion which the Chairman told him he could not move, he had continued to speak upon it for an hour. The motive for his hon. and learned Friend's proceeding was apparent, and the proceeding was worthy of the motive; but he would put it to his hon. and learned Friend, whether such a course was worthy of his hon. and learned Friend's position? He, therefore, would not follow his hon. and learned Friend into the details upon which he had entered; but there were assertions—marvellous assertions, audacious assertions—in the address of his hon. and learned Friend which he could not allow to pass unnoticed. With regard to his position in reference to this Bill, it was a most simple one; he was the mere instrument in the matter. The Commission, upon whose Report the Bill was founded, was one whose ability and integrity were unquestionable; and after two years' labour they unanimously recommended an adoption of a certain course to assimilate the practice of Ireland to that of England where it was desirable, and it became his duty to introduce this Bill to the House carrying out the recommendations of the Commission. There was not a Member of the Irish bar of position who was not in favour of it. He brought forward the measure and gave ample time for its consideration; on its introduction and the second reading it was discussed, and he found it impossible to pass it except at a morning sitting, which was fixed to-day. He came down at twelve o'clock for the Bill, waited for a long half hour before the House was made; and those who were outside knew whose fault it was that it was not made. The hon. Member for Mallow (Mr. Longfield) had an Amendment on the paper, and was sitting in the House until the Speaker was moved out of the Chair for the purpose of going into Committee; but the hon. Member left the House and did not move his Amendment. Was be, then, to be told he had taken advantage of the hon. Gentlemen on the other side of the House? When the hon. Member for Mallow left the House, in rushed the right hon. and learned Gentleman (Mr. Whiteside) in the fine frenzy that so well became him, and was so usual with him, and made a charge against him (Mr. O'Hagan). The right hon. and learned Gentleman said he intended to move that the Bill be referred to a Select Committee; but that question was not yet before the House, and he (Mr. O'Hagan) had only to say that he brought in this Bill on his own responsibility. He believed it was for the public interest, and that it should be carried. If it were not carried it would not be his fault, and he left the responsibility on those who chose to accept it.


said, he would remind the hon. and learned Gentleman that it was not the duty of the Opposition to make a House, keep a House, and cheer the Minister. The attention of that hon. and learned Gentleman had been drawn to the fact that it was not desirable that this Bill should come on at a morning sitting, and it was proved that this was so by the fact that the Government was unable for so long a time to make a House, and that the hon. Gentlemen most competent to express an opinion on this Bill were absent. He did not blame the hon. and learned Gentleman for pressing on his Bill, but he thought the Irish Members had a right to claim an evening sitting for the discussion of a Bill of this importance to them. He thought much more progress could have been made in the Bill had the opinions and views of Irish Members been consulted.


pointed out that several important measures had been disposed of at morning sittings. Three years ago he moved for the appointment of a Commission to inquire into the difference between the English and Irish practice. Finding it impossible to succeed in this House, it was with his consent taken out of his hands and carried by a noble Marquess in the other House. That Commission was appointed, and this Bill was founded on the Report of that Commission. Every person in the courts of justice in Ireland who had been examined had given their evidence in favour of the assimilation of the practice in England and Ireland.

Question put, "That the Chairman do leave the Chair."

The Committee divided:—Ayes 42; Noes 41: Majority 1.

[No Report.]