[BILL 97.] COMMITTEE. (Hansard, 18 June 1869)

THE ATTORNEY GENERAL
said, he rose to move the first of the Amendments of which he had given Notice— namely, in line 1 to leave out "where."

§ MR. SCLATER-BOOTH
said, he wished to know if the Commissioners were to be allowed to retire on their full salaries. He could not think it advisable that any class of officials should be allowed to do this.

THE ATTORNEY GENERAL
said, the 130th and 131st clauses had been amended with the consent of the Treasury. The intention was that the Commissioners only should have their full salaries, and that registrars and other officers, who held office during good behaviour, should have two-thirds of their salaries. He did not know what other employment could be tendered to the commissioners, who had held judicial offices, whose position, therefore, was different from that of the registrars. The whole amount of public charge which the clause involved was about £15,000 a year. He trusted the Committee would not see any difficulty in acceding to the proposal affecting the Commissioners; and that affecting the registrars and other officers could be discussed on the next clause.

§ MR. WEST
said, he was at a loss to understand the distinction between the two classes of officers, for they both held their offices during good behaviour, and by the same title—an Act of Parliament; and the registrars acted for the Commissioners in their absence, and therefore performed judicial functions the same as the Commissioners. Both classes of offices also were freehold offices; and a man deprived of such an office was surely entitled to receive his full salary. There was no precedent for the distinc- 315 tion which it was proposed to make. The registrars had a right to complain of being taken by surprise by the Government proposing these Amendments at the last moment. He would ask the Committee to reject the Amendment.

MR. G. O. MORGAN
said, he quite agreed with the hon. Gentleman (Mr. West) as to the unfair way in which the registrars were treated by the provision in question. Most of those registrars were gentlemen who had given up lucrative professions for the offices they held.

§ MR. DIXON
said, he did not believe that the Attorney General himself could approve of the change made in the provision regarding those gentlemen. He (Mr. Dixon) felt it his duty to protest against it. Upon no rule or principle with which he was acquainted could such a change be made.

§ SIR ROUNDELL PALMER
said, he was desirous of making his view of the matter perfectly understood. He did not hesitate to say that the rule laid down by the Superannuation Act was a good, convenient, practical rule, which might, with advantage to the public, be extended to all officers of all classes, to be hereafter appointed. But it could not, without breach of contract, be applied retrospectively to cases to which it was not at present legally applicable. It had been expressly stated, on the face of that Act itself, that it was not to apply to the class of judicial officers who were the subject of the present discussion. There were, he was aware, several Acts in which it was provided that gentlemen holding offices, of which the holders were paid by fees without salary, or by fees and a small salary, should receive compensation on their offices being abolished, at a rate which might be less than the maximum amount of the income actually received by them from all sources. But, in these cases, the public had entered into no contract for the payment of a fixed annual sum: nor had it undertaken to renounce its control over the regulation of the fees payable for business done, or over the distribution and supply of the business itself. There was not so much as one instance, that he was aware of, of the same thing being done upon the abolition of any freehold office paid by salary only. He therefore submitted that this was a matter of good faith with individuals who must be taken to have 316 accepted offices on the understanding that they were to have the right of retaining them for the rest of their lives, subject only to the proper discharge of the duties required of them. The rule laid down in the Superannuation Act was a fair rule, but to make it applicable by an ex post facto law to officers who had accepted their appointments on the express understanding that they should not be subject to it was unjust, unless it could be shown that it had been the practice of Parliament to apply the same rule of compensation in such cases; but the practice of Parliament had been universally the other way. Several recent cases were known to him in which Parliament had given the full amount of salary, and there was not an instance to the contrary. By all means let them reduce the number of these cases to a minimum, by finding employment for those whose offices were abolished, and let it be now understood that, in future, offices abolished would be dealt with on the principles of the Superannuation Act, but let them not now apply its principles by ex post facto legislation to those who had accepted offices on the express understanding that they should be differently treated.

MR. HENLEY
said, he thought the Attorney General had placed the Committee in a difficult position, because he had first placed Commissioners and registrars on the same footing, and now he treated them differently. On behalf of the Government he asked them to do that which had never been done before. He (Mr. Henley) must protest against the injustice of the course proposed. He had failed to hear from the hon. and learned Gentleman any distinction between the two classes of officers, who held their offices on the same terms and conditions; and, if there were no such distinction, he saw no reason why the one class of officers should be treated differently in this matter from the other. As it was impossible to say how many more Bankruptcy Bills might year after year be introduced, it appeared to him that it would be wise of the Attorney General to introduce a provision into this Bill to prevent any inconvenience here after arising in respect to such questions as those they were now discussing.

§ MR. G. GREGORY
said, he concurred in the views expressed by the 317 right hon. Gentleman (Mr. Henley). The question, after all, only involved a sum of £7,000 a year, being the amount of the one-third of the salaries of the registrars, which they would be deprived of by the proposed arrangement of the Attorney General.

§ MR. STEPHEN CAVE
said, it was notably the duty of the Government to get the services of the country performed at a moderate rate; but, if in future bargains, the retiring pension were left uncertain, the present pay would have to be raised. Gentlemen often gave up good practice and promising careers for a modest certainty for the rest of their lives. He knew the case of a registrar who, in order to accept that office, resigned a professorship at an University, a revising barristership, and a recordership. The clause, as it originally stood, ought, in common justice, to be retained.

§ MR. T. HUGHES
said, he thought that the same rule should be applied in dealing with officers whether they occupied the highest or inferior positions. He would urge the Government to withdraw their Amendments.

§ MR. MORLEY
said, he should protest against such an arrangement as that every person employed in a law court, and whose office might be abolished, should receive his full salary for life, no matter how short the period of his previous service, from the messenger, in whose office he denied that there was any more a freehold right than there was in a situation in a warehouse, to the Commissioner.

§ MR. CANDLISH
said, he had no wish to do injustice; but whatever might be the technical bargain there was no natural right to such compensation. There was a difference between the retirement of a man advanced in life, and that of a young man who could take his talents into the labour market. The case of a man who retired at the age of thirty should therefore not be treated so liberally as that of a man who retired at the age of seventy.

§ MR. AYRTON
said, that he had been somewhat misunderstood on the last occasion on which he had spoken on this point. He had said that he thought it would have been better on the whole to leave the whole matter of compensation to be dealt with by the 131st clause. He must protest against the mode in 318 which these claims had been urged. Was there ever any contract with these gentlemen that a court of justice should be maintained for their benefit? He thought that they were there to perform their duties for the benefit of the public, and there was no contract binding the country to give those who had held an abolished office their full salaries for life. The House of Commons was always clamouring for economy in the abstract, but still was ready to support individual claims for extravagance. At present the nation was paying£4,800,000 a year for non-effective services, and whenever the Government made any attempt at economy they were met by pretensions of freehold offices—pretensions which had no firmer foundation than the ideas of the lawyers, and were told they must wait for the next case. He proposed that the Committee should leave the matter open, and allow these compensations to be estimated separately, so that Parliament might not pledge itself to a highly dangerous principle. In dealing with the old Court of Admiralty the House had passed a clause leaving it to the Commissioners of the Treasury to award compensation.

MR. GATHORNE HARDY
said, he thought that the lecture delivered by the hon. Member (Mr. Ayrton) fell upon the Government and not upon the House. Having warned the Committee that they ought not to give any compensations the hon. Gentleman desired that the question of compensation should be left to him. The hon. Gentleman accepted the claim of the Commissioners. Why? Because they held office during good behaviour. These offices had been erected by Parliament into freehold offices; and a few days since everybody supposed the Government was going to compensate on the principles laid down. The hon. Gentleman recognized the Commissioners; upon what possible ground, then, could he fail to recognize those who held their positions by the same tenure? He hoped that the Government would have too much regard to their own honour and to their own sense of responsibility to be diverted from their course by a subordinate Member of the Government.

§ THE CHANCELLOR OF THE EXCHEQUER
said, that this case was undoubtedly one of some difficulty, but it was also of much importance, involving ge- 319 neral considerations of a very wide nature, and he therefore hoped the Committee would give him its attention for a few minutes. Everyone was anxious, of course, to do justice to those gentlemen who were to lose their offices, but justice must also be done to the pockets of the British tax-payers. Now, what was the real agreement between those gentlemen and the public? The position of the Commissioners was different from that of the registrars, inasmuch as the former held their offices during good behaviour, whilst the registrars could be dismissed for cause. These gentlemen were dismissible by the Lord Chancellor; but then came the legal superstition that the office so held was a freehold, and upon that superstition was based the monstrous conclusion that if the office was abolished the holder of it must continue for the rest of his life to receive his full salary. So that either the office must be perpetually maintained, though its use had passed away, or the person who held it was to become a public pensioner, discharging no duties, but drawing his full pay. But on what ground should such an inference be drawn? Was it a matter of law? The law afforded no countenance for any such notion. Was it justified on the ground of contract? The law of contract was altogether silent on the subject. In the case of land there was no question about the existence of the thing to be occupied, and the only question was who was to be the occupant of it; but an office might cease to exist. It really did not alter the nature of a thing whether you called it a freehold or anything else. No doubt these gentlemen had the right to be treated with the utmost fairness; the loss they sustained ought to be equitably estimated, and they should be paid accordingly; but beyond that they had no claim. There was no contract with them that the office should be kept up for their benefit after its use had passed away, or that if it were abolished, they should be maintained in the same, or rather in a better position. The compensation to which they were entitled would vary according to their age, and there was no fairer means of arriving at it than by referring all the claims to the consideration of an impartial tribunal. He thought it was high time that this general principle should be clearly established, how- 320 ever comparatively unimportant its application might be in the present case.

§ MR. RUSSELL GURNEY
said, that it was difficult to understand what the Chancellor of the Exchequer meant in arguing that they were relying on a technicality when an office held for life was said to be a freehold. In so calling it they were only using the term that had been applied to it for centuries. Now, what was the contract between those gentlemen and the public? It was defined in the words of the Act, which provided that they should hold their offices during good behaviour, and should only be removable for cause shown by a judicial officer acting judicially. If it now appeared that it was for the public advantage that their offices should be put an end to let it be done on the same terms as had always been observed in previous cases. When they took their offices they had the right to expect that they would be so treated. They had made a sacrifice of their professional incomes; it might as well be said that a late Cabinet Minister now in the enjoyment of a pension, could have returned to his profession as that some of these officers could do so. As a matter of law and justice, the Committee ought to adopt the clause in the form in which it was introduced.

§ MR. WHITBREAD
said, he agreed with the Chancellor of the Exchequer that nothing could be more absurd than that a person whose office was abolished should be entitled to receive his full salary. He might have been appointed only a few weeks, and yet he was to draw his whole remuneration to the end of his days. That was reducing the matter to an absurdity. But in this case he regretted that the Government had prevented the Committee from giving its adhesion to that principle, because their present proposal was to give full compensation to the richest officers, and only to reduce it in the case of the poorest. They also appeared most conveniently to forget that this was a Government Bill. It was unprecedented that in such a measure the Government, after introducing it, should propose in Committee to diminish the compensation. It was as if, when the Irish Church Bill was in Committee, they had come down with a suggestion that the vested interests — not of the Bishop, but of the curates— should be compensated on a 321 reduced scale. While, therefore, he objected altogether to the principle that in cases where offices were abolished their holders were entitled to full compensation, he was unable on this occasion to support that principle by his vote.

§ MR. BARROW
said, he would suggest that a fixed scale, applicable to all such cases, should be framed for future use, but it seemed to him that the House must now give the full salaries.

MR. GLADSTONE
said, that the hon. Member for Bedford (Mr. Whitbread) spoke to them in the spirit of a line of Horace, not, however, satirically but practically, and that which was written as a sarcasm he converted into a recommendation— Quidquid delirant reges, plectuntur Achivi. That was intended to ridicule the state of things in which the faults of rulers were visited on the people; but the hon. Member took the matter up at the other end, and said that because the reges in this case had committed a blunder, the Achivi must and ought to pay. He did not dispute the responsibility of the Government, but he thought that the right hon. Member for the University of Oxford (Mr. G. Hardy) had rather stretched the point. But whatever the immediate result of this discussion he for one rejoiced that that afternoon had witnessed the explosion of a great superstition. Law reforms had done much in other directions; but none of them—at least none of the legal profession—had come forward to demolish this superstition which the independence of the Judges—than which there could be no principle more important—had brought with it, and by which every officer, great or small, who only had the good fortune to tie himself to the tail of some Judge, great or small, had built up around him this sanctity of tenure, by which the public had been sconced generation after generation. He rejoiced to think that they had now at last nearly arrived at the end of the wearisome chapter under which he, as First Minister, and in other capacities, had so long groaned. For the future he hoped that while they gave reasonable and partial compensation—and partial compensation did not mean partial justice—to public officers whose offices were abolished, it would be understood universally that those officers were not entitled to anything more. The right hon. 322 Gentleman the Member for Southampton (Mr. Russell Gurney), speaking with the authority of an oracle of the law, had addressed the Committee on this subject in language which he (Mr. Gladstone) confessed edified him little more than a foreign tongue. The right hon. Gentleman had declared that it was a "well-known" doctrine that offices held upon good behaviour were freeholds. But that method of argument was over-riding rather than convincing him. On the face of it assuredly there was no inherent necessity that such offices should be freeholds—nothing that conveyed to an ignorant, extraneous person like himself, any conviction on the subject. A freehold, he considered, was that which was held free—free from conditions. He could understand, indeed, that benefices in the Church were freeholds, although connected with the performance of duties, because the profession was primary and the duty secondary, and the possessor if unable to perform the duty did not lose the freehold. In the case before them the man would lose his office if he became incompetent to perform the duties; and it consequently appeared that the duties were at least placed upon a parity with the receipts. Therefore, when the right hon. Gentleman said that that office, which was voidable in the case of the non-performance of the duties, was a simple freehold, and that that was a question which it was totally useless for laymen to discuss, he would again tell him that he over-rode him by authority, but he did not convince his reason. The right hon. Gentleman said again that the terms of the contract were stated in the Act of Parliament. He had read that Act, and he found in it nothing whatever about the continuance of the office. There was no abandonment in it by Parliament of its title to repeal the Act; therefore, to say that the contract was silent was really to say that there was no contract at all in that respect. It seemed to him, moreover, that the advocates of the high doctrine of freehold had not been consistent with themselves. He thought his hon. and learned Friend the Member for Richmond (Sir Roundell Palmer) was one of the highest advocates of that doctrine, but yet he proposed to give other duties to the holders of those offices which were abolished. How was that consistent with the doctrine of freehold? Who was to be the judge whether those 323 duties were consistent with duties which the officials had before performed. And he would tell the House not to rely upon the discovery of other duties for these gentlemen. If they chose to place the whole judicial patronage in the hands of some one body that they could call to account from the Treasury Bench for its administration, and if they made that body responsible for the appointments to be made, they might, perhaps, have some chance of having those dismissed gentlemen appointed to other duties. But he wanted to know where were the men to be found in any profession, whether, as Lord Chatham had said, it be "the sanctity of the law or the purity of the ermine," with whom it was a first thought to overlook the redundant list and see if they could find somebody upon that list who was already drawing emoluments on whom they could impose the burden of a vacant office, and thus convert their fine opportunity of conferring a favour upon a deserving friend into an opportunity for requiring a man to make a public sacrifice? His hon. and learned Friends behind him knew human nature too well to expect it. If they were consistent, however, in their doctrine of freehold, they could not force those gentlemen to accept other duties. He must now say a word for his hon. Friend the Secretary to the Treasury (Mr. Ayrton). His hon. Friend had fought a gallant battle for the Treasury, and it was his duty to do it. He must say for him what he (Mr. Ayrton) would not say for himself, and that was that, in the course of nine or ten years during which he (Mr. Gladstone) held the office of Chancellor of the Exchequer, when his hon. Friend was an independent Member below the Gangway, and at a time much more favourable for the purpose than the present, because it was a time when, not every, but almost every man in the House was pecking, more or less, at the public purse, his hon. Friend had never attempted so to invade the public revenues, and was always to be found in support of the Government in resisting those assaults. Therefore, if his hon. Friend was now keen in the same cause, he trusted that indulgence, and something more than indulgence, would be accorded to him for a fault which, if it were a fault, was not a very common one, and from which no great public mischief was likely to arise. The proposal which 324 was made to the House on the one side, as he understood it, was, that whenever a man had an office, whether as messenger or anything else, and whether he were able to perform the duties of that office or not, he should continue to receive his salary for the whole of his life, subject to the chance of work being found for him. He thought that was too extreme a measure. With regard to the Commissioners to whom allusion had been made, their case was quite different. They had been, more or less, all their lives in the service of the public, and re-employment in their case was out of the question. And wherever that condition could be shown with regard to any man, be he a registrar, a messenger, or what you like, if he had reached a point in his life at which practically his re-employment was out of the question, the Government would be quite ready to give way in such a case. He trusted that this assurance would be satisfactory to his hon. and learned Friend (Mr. West); and he was ready, if the clause were postponed till Tuesday, to propose Amendments to the clause which they were about to consider, with that object. It was not correct to say that no objection was taken to the clause as it originally stood, for the late Secretary to the Treasury (Mr. Sclater-Booth) and the late Chancellor of the Exchequer (Mr. Hunt) both took exception to the payment of full salaries. If there was any jealousy of the severity of the Treasury he would consent to make it essential that the Lord Chancellor should be a party to its decision.

§ MR. BOUVERIE
said, the difficulty had been created by the conduct of the Government, who were not entitled at this stage to make the change proposed. The rule upon which the House had always acted in such cases was not without expediency. If Parliament dealt in a shabby manner with cases of this kind, they would find that such officers would exert their obstructive influences against reforms. Having offered liberal terms to these officials, and thus secured their support, the Government now turned round upon them and made proposals of an entirely different and very niggardly character.

§ MR. WEST
said, that if Her Majesty's Government were really prepared to postpone those clauses till Tuesday next, and deal with the question then, it would 325 be most unreasonable to press the matter now to a division.

§ MR. HUNT
said, he thought the right hon. Gentleman the Member for Kilmarnock (Mr. Bouverie) was too hard upon the Government. What had happened was that those clauses had been framed without due consultation with the Treasury; and, when they had come to be considered by those whose duty it was to look after the public purse, it was found that they were such as the Treasury could not agree to. The same thing had happened with a Bill of a similar kind when he was Secretary to the Treasury; and it was then his duty to state to the House that, as Secretary to the Treasury, he would not be able to afford the terms of compensation which one of his Colleagues was proposing to give. He quite concurred with the doctrine laid down by the right hon. Gentleman at the head of the Government, that a man should not be paid his full salary for doing nothing.

§ MR. JESSEL
said, that nothing was so plain as that those offices were freehold offices, and that the word freehold applied to an office was no myth. Again, nothing was plainer to his mind than that all freehold offices originally had duties assigned to them, and the fact of the office being freehold did not entitle the holder to his salary. This right depended upon a contract. He came then to the Government proposition—If they broke a contract, what ought they to pay to those who suffered by the breach? Now, the contract in this case was express and clear, and it was a well-established principle that in such a case the compensation should be varied according to the amount of injury received, and that the damages ought to be assessed by a jury. Upon this principle the proposal now made by the Government appeared to him to be perfectly satisfactory, because it proposed that the compensation should be assessed by the Lord Chancellor, who was the highest authority known to the law, and he would have the Lords Commissioners of the Treasury associated with him as a sort of jury. The principle argued on the other side of the question by his right hon. and learned Friend. (Mr. Russell Gurney) was one not of principle, but of practice. He said that for centuries, whenever they abolished offices of this kind they gave to the holder an annuity equal to the 326 amount of the salary he received; and relying upon that practice, persons had been induced to accept offices in the hope that if they were abolished they would not suffer. He had heard no satisfactory answer to the appeal made to the Government, and grounded on this argument. If the Government thought the principle now acted on was wrong let them abolish it for the future; but let them act generously and liberally so far as the present and the past were concerned. He regretted that the appeal had not been met exactly in the spirit he hoped; but still he thought that after what had fallen from the right hon. Gentleman at the head of the Government substantial justice would be done. With regard to future appointments, he hoped that no expectation of life annuities would be held out.

§ MR. DENMAN
said, he regretted to hear his hon. and learned Friend (Mr. Jessel) express himself as willing to accept the proposition of the Government, which was a departure from the principle on which these questions had always hitherto been settled. It was a very hard thing to consign gentlemen who had considered themselves holders of freehold offices to the tender mercies of the Secretary to the Treasury. He thought a wider and more generous view had been taken by other Members, and especially by the hon. Member for Birmingham (Mr. Dixon), who had made a manly and able speech though he was no lawyer. He knew what would come of the arrangement proposed by the Government. Some gentlemen would be put to the expense of engaging counsel and paying heavy fees to argue their case to show that they were entitled to the full amount of their salary. He should regret if he had to go into the Lobby against the Government, but he could not assent to a breach of faith; but, if a division took place, he should vote against the proposal now made. If, however, no one thought it worth while to divide the House in favour of giving these officers a retiring pension equal to their full salaries, he would suggest that at all events a man who had held office for a certain length of time—say, fifteen years—should be entitled to his full salary. His hon. and learned Friend the Attorney General offered to introduce some provision of the kind, and with that pledge he must rest satisfied.

§ LORD GEORGE CAVENDISH
said, he hoped that some Members not lawyers would be found who would support the Government in their attempt to enforce some economy. There was too easy a disposition on the part of the House of Commons to grant compensations. He supposed if they were to take a sheet of paper as large as the floor of that House it would not suffice to write upon it the names of those lawyers who were superannuated, and the amount of the compensations they received for the abolition of offices. He should be glad to know why such extraordinary concern was shown for a profession so well able to take care of itself. He was old enough to remember the compensations of the officers of a private court. The Government proposed a reform in that court, and all officials who were afterwards appointed received their appointments with the intimation that there would be no compensation. But the reform was not carried out till ten years afterwards, and then they were compelled to compensate the very men who had been told they were to receive no compensation. "When the dockyards were lately reduced all the compensation the labourers who were not wanted received was a free passage to Canada. It was lately said by the Attorney General that there could be no real reform of the Bankruptcy Court unless there was a clean sweep out of all the officials. If that were so, he thought the Government ought to give them, too, a free passage to Canada.

§ MR. WEST
said, he thought that the clause should be postponed and brought up on Tuesday on the Report.

§ MR. HIBBERT
suggested that full salary should be allowed to those who accepted other duties, and two-thirds only to those who would not.

§ MR. HUNT
said, he wished to know what was the exact proposal of the Government on which they were to divide.

THE ATTORNEY GENERAL
said, it was proposed to give the Commissioners, their full salaries, as other employment could not be given to them; and that the registrars, messengers, and. assignees should certainly have two-thirds of their present salary, with the understanding that if the Lord Chancellor and the Lords Commissioners of the Treasury thought any of them entitled, on account 328 of their age and service, to their full salaries, they should have them.

§ MR. HUNT
said, he had understood that the Government would frame a clause to place all the officials on the same footing, and that, whether they received their full salaries or only a portion of them, they were all to be dealt; with in the same way. He did not see why some of the Commissioners should not undertake other duties, for instance, County Court Judgeships.

MR. GLADSTONE
said, that in omitting that consideration he was thinking of the London Commissioners; but, as regarded some of the younger country Commissioners, it would not be unfair to require that they should undertake such judicial duties as were offered to them; none that were unworthy would be offered them; and, of course, the Government would be bound to take care that they were not asked to accept an inferior salary.

§ MR. RUSSELL GURNEY
said, he thought that after the explanation which had been given by the Government, it would be useless to go to a division.

§ SIR ROUNDELL PALMER
said, it appeared to him that the proposal of the Government was calculated to do substantial justice to all parties, and that was the only thing he had contended for. Those who had served a certain time, and could not be expected to accept other duties, were to have their full salaries, unless the Lord Chancellor and the Treasury saw reason to the contrary.

§ MR. ANDERSON
said, he thought that after what had fallen from the right hon. Gentleman at the head of the Government, and from other hon. Members, the simplest remedy would be to adopt the Amendment which stood in his name—namely, to leave out the clause.

§ MR. WHITBREAD
said, he thought the wiser course would be to postpone the clause.

§ MR. HUNT
said, he wished to point out that the Government were not prepared with an Amendment in relation to the future employment of the country Commissioners.

§ MR. DENMAN
said, he hoped they would not go to a division on the point in question.

MR. GLADSTONE
said, he would remind the Committee that the question before them was the 130th clause. The 329 time had not arrived for an expression of opinion on the point referred to by the right hon. Member.

§ MR. HUNT
said, he doubted whether anything would be gained by going on till hon. Members could see the whole scheme of compensation in print.

MR. GLADSTONE
said, he must admit that the Government had no reason to complain of the spirit in which the discussion had been conducted, and as the general desire of the Committee seemed to be in favour of a postponement of the clause, he should not object to it.