HC Deb 04 August 1877 vol 236 cc433-42

Bill, as amended, considered.

Clause 8 (Union of offices of Clerk of the Crown and Clerk of the Peace.)


moved to omit the first sub-section, which dealt with the union of the offices of Clerk of the Peace and Clerk of the Crown, and provided that future holders of the double office should be appointed by the Lord Lieutenant. As he had stated, when the Report of the Bill was under consideration, he thought the Clerk of the Peace might well be relieved from all duties connected with the County Court and that these duties might be performed by a Registrar. He did not wish to say anything as to the patronage exercised by the Crown; but he thought that one of the greatest evils in Ireland was the excessive amount of patronage in the hands of the Government. He did not wish to make any charge against those who now occupied the Treasury Benches. So far as he had been able to trace, they had generally singularly escaped— what they must have had great difficulty in doing— the creation of new places. But that did not alter his objection to this Bill, which threw into the hands of the Government of the day patronage which amounted to £26,000 a-year, and for duties which were discharged for £24,000 a-year in England, although not one penny of that amount was paid to any one appointed by the Government in England. There was no Clerk of the Crown in England, his duties being discharged by a person called the Clerk of Assize. In England the Clerk of the Crown was appointed by the Lord Chief Justice, and he himself appointed his assistant. The Clerk of Assize in England had £1,000 a-year, and for that sum he did everything that the Clerk of the Crown did in Ireland, and a good deal more. One of his subordinate officers discharged the duties of Judge's Registrar; but there being no prosecutor on the part of the Crown in England it devolved upon the Clerk of Assize to prepare all the indictments. According to a Return made by a Committee of Inquiry in 1869 it appeared that in the largest English Circuits the salary of the Clerk of Assize was £1,000 a-year, the Clerk of Indictment received £300 a-year, the Clerk of Arraignment £300 a-year, and the Associate £300 a-year. The expense of the Northern Circuit in Ireland amounted to £ 3,400 a-year, as against £ 2,400 a-year. There was also this extraordinary difference— that while the Clerk of the Crown scarcely ever drew up an indictment in England, the Clerk of Assize drew up all the indictments in ordinary cases. They could get a Clerk of Assize for less than £800 a-year, for his time was only occupied during Circuit. At present the Clerk of the Peace was appointed by the Lord Lieutenant of the county. He did not know whether good or bad appointments were made; but in some instances a deputy was appointed, who discharged all the duties for £200 or £300 a-year, and discharged them most satisfactorily. According to a Return made to the House, it appeared that the emoluments and fees of the Clerk of the Peace in county Down — who had no salary— amounted to £211 10s., and the Clerk of the Crown in the same county received £472. Yet they proposed to give £1,000 a-year for the united offices in the county Down, this amount exceeding the salaries which the Clerk of the Crown and the Clerk of the Peace were at present receiving, and there were several other cases of the same sort. He objected to this, if for no other reason than that the work could be done for considerably less. Some of this patronage would fall in before long, and it would be in the power of the Lord Lieutenant to amalgamate the two offices. If a Clerk of the Peace died, and the surviving officer possessed interest with the Lord Lieutenant, he would get the united office; but if he did not, someone else would get it. This illustrated very strongly that the constant current of Irish legislation was to vest all patronage in the hands of the Crown. He would say nothing about the patronage exercised by the Crown; but the patronage exercised at Dublin Castle had been the curse of the country, and did more to debase the character of Ireland than anything else. He was in favour of vesting the appointment of Clerk of the Peace in the custos rotulorum of the county. He strongly dissented from passing this new patronage into the hands of the Lord Lieutenant.

Amendment proposed, in page 3, line 11, to leave out sub-section 1, Clause 8.—(Mr. Butt.)

Question proposed, "That sub-section 1 stand part of the Bill."


observed, that the hon. and learned Member for Limerick said that there was a symptom on the part of the Government of a desire to increase their patronage. He himself had been unable to notice it. The Supreme Court of Judicature (Ireland) Bill vested in the Judges some of the larges and most lucrative patronage. In regard to the particular patronage under discussion, some one must exercise it, and they had vested it in the hands of the Lord Lieutenant. Anyone filling that high position was represented in this House, and as he was amenable to public opinion, he would no doubt exercise the patronage in a proper and becoming way. The hon. and learned Member suggested that the custos rotulorum should exercise the patronage; but the custos had no connection with the tribunal which the Clerk of the Peace had to serve.


My proposal was that the Clerk of the Peace should be relieved from all the duties connected with the County Court.


said, that if the Clerk of the Peace was relieved from the important duties of the County Court he should be in favour of abolishing him altogether. Was it not better that that official should be amenable to the Executive, who would look after the manner in which he discharged his duties? The custos had no more control over these officials than the man in the moon. A great many of the Clerks of the Peace in Ireland were men of no legal training, and their duties were in many cases discharged by deputy. The Government were trying to get rid of this vicious system altogether. He admitted that the duties were in many cases most exemplarily discharged by the deputies; but it was essentially a vicious system, which Government had resolved to grapple with, and they would insist that in future the duties should not be discharged by deputy, except in case of sickness. The hon. and learned Member said they had not been as saving as they might have been; but the fact was that, while at present the existing officers were paid in Dublin £3,247, the officers now proposed would only get £1,200, so that there was a saving there of £2,000. In Cork the present officers received £3,243, and the officers substituted would only receive £1,100, so that another saving of £2,000 was effected. In the county Down the emoluments of the present officers amounted to £1,428; while the emoluments of the officers appointed under the Bill would only amount to £1,000, thus effecting a saving of £400 a-year. The hon. and learned Member never misled the House, and the discrepancy between these figures and his statement was to be accounted for by the fact that the emoluments of the Clerk of the Peace were derived from several sources, that of salary bearing a small proportion. The salary of the existing officer was under £1,000 a-year; but if the emoluments and fees were added, they brought the income up to £2,428, while in future the same officer would only receive £1,100. There was not a single salary given in the Schedule of the Bill that was not substantially less than the existing emoluments which were being swept away. Instead of being behind England in the matter of economy they were in advance of that country, inasmuch as they had no Clerk of Assize at all. He did not understand that his hon. and learned Friend intended to press his Amendment, and he hoped that he would be content with having expressed his views upon it.

Amendment, by leave, withdrawn.

Clause 68 (Parties may appear in person or by attorney or by counsel, &c.)


moved an Amendment, the effect of which was to enable a second attorney to be heard before the Courts. He said his Amendment involved no Party considerations whatever, as it was not a political question, but was simply an Amendment which greatly affected the interests of the suitors. The question which it raised was, whether a suitor in the Court below was to have the right to retain the services of the persons who he thought was best able to conduct his case. Up to the present time there had been a different practice in Ireland to that proposed to be adopted by the 68th clause. It had been decided in one or two cases that the Chairman need not hear a second attorney on any case. After these decisions of the Judges, meetings were held on the subject, and a vast majority of the Chairmen adopted the course of allowing a second attorney to plead before them. The clause of the Bill went to exclude a second attorney being heard. If the clause was adopted without his Amendment, the result would be that many of the young men in the Profession who were just commencing life would not be able to advance themselves in the Profession, for the reason that they were inexperienced in their Profession, and suitors would, therefore, be obliged to employ counsel, instead of employing a second attorney in whom they might have great confidence. No less than five Members of the House who were attorneys had told him that if they had been present when the clause was being discussed in Committee, they should certainly have voted against the clause, if some such Amendment as that which he now proposed had not been adopted. His Amendment was merely to add at the end of the clause words which would enable a second attorney to plead before the Court in cases where it was thought advisable that a second attorney should be heard. He did not ask the House to adopt an Amendment that would make it obligatory on the Chairman to hear a second attorney; but simply asked that the Chairman might be allowed, in cases where he thought it right, to hear a second attorney. He must say that he thought that was a very fair principle. A meeting of the Bar was called in 1876, when this Bill was first introduced, which was only attended by 12 gentlemen of the Bar, three of whom were Queen's Counsel, and they agreed upon a Report. They stated in that Report that— Notwithstanding such declarations, that a second attorney has no right to plead, many of the Chairmen admit a second attorney to be heard as an advocate; and considering the new and enlarged jurisdiction proposed to be conferred, we think it is of vital importance to the Bar, as well as to the advantage of the public, that a clause similar to that in the English Act should be included in the present Bill. It was a remarkable fact that in Committee this clause was only decided upon by the casting vote of the Chairman. There were upon that Committee gentlemen who were called to the Bar, and amongst the majority there were six gentlemen who were members of the Bar. He was glad to see that his hon. and learned Friend the Member for Limerick (Mr. Butt) took a more enlightened view, and that he had supported his Amendment. He had received, since this Bill had been before the House, letters from many Chairmen, and amongst them letters from Mr. Johnson and Mr. Ferguson, the Chairmen of the West Riding. Both these gentlemen said they thought it would be a most unadvisable thing to prevent a second attorney from being heard in many cases, and said they had often derived great advantage from a second attorney being allowed to plead. He hoped his Amendment would be agreed to.

Amendment proposed, In page 30, line 4, to leave out after the word "party "to the end of the Clause, and insert the words " or with the permission of the Judge for an attorney retained by such first-mentioned attorney, or for a barrister retained by or on behalf of such party, but without any right of exclusive audience or pre-audience to such barrister, to appear and address the Court and conduct the case, but subject to such rules and regulations as may from time to time be prescribed for the orderly transaction of the business of the Court,"—(Mr. Downing,) —instead thereof.

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


opposed the Amendment on the ground that the clause was simply declaratory of the existing law as laid down by the 12 Judges of Ireland so recently as in 1861, and did not propose any innovation, although in some instances an irregular practice of allowing one attorney to be instructed by another had been tolerated. Now that the Courts were to be vested with Equity jurisdiction, it was advisable on public grounds to keep the functions of barrister separate from those of attorney, and the expense would be all the same to the suitor, because the fee of a competent attorney would be as large as that of a barrister. He hoped his hon. Friend would not press his Amendment.


could not accept the Amendment of his hon. Friend, and much preferred to have the clause struck out. In the Select Committee he and several other Members believed this clause was introduced in some sense by accident. It had been said that the law as it stood was in accordance with the clause; but if that was so, he could not see the necessity of going out of the way to insert this clause in the Bill. If abuses had crept in, it was quite clear these had grown up from necessity, but the practice was by no means a general one. In some of the outlying towns of Ireland it was impossible to get barristers to conduct cases, and it would result in much inconvenience to business men if the clause were allowed to stand. He hoped the Government would consent to strike out the clause altogether and end the dispute.


denied the clause had been inserted in the Bill in any way by surprise or accident, as suggested by his hon. Friends the Members for Cork. There was no doubt it was the desire of the Chairmen to have the matter settled by legislation, as they wished to be relieved from the unpleasant duty of having to declare and enforce the law on this point; and as the question had been raised by the hon. and learned Gentleman the Member for Cork's attempt here and in the Select Committee to legalize the practice of attorneys acting as advocates in the County Courts, it must now be settled by express enactment one way or the other. Nor would it do to omit the clause altogether, as proposed by his hon. Friend who had last spoken; for whilst the controversy would thus appear to be left open, the adoption of such a course would be relied on as an indication of the opinion of Parliament upon the subject. In settling the point he regarded it from a public point of view, rather than as between attorney and barrister; but he must say that, although the practice or abuse of attorneys acting merely as advocates was permitted or overlooked in some only of the Irish County Courts, he had heard no complaint of inconvenience to the litigants in the other counties of Ireland, where the law was enforced and the practice disallowed. The general desire was to secure cheap and efficient law; and no one wanted to force the litigants of the County Courts to employ barristers in all cases, or to prevent them being satisfied with the advocacy of their attorneys alone; but a good deal of confusion had been introduced by forgetfulness of the fact that there was nothing to prevent any man, who had recourse to the County Court, employing any attorney he thought fit to conduct his case, providing he engaged him from the first. It might, of course, be a matter of discussion whether it was desirable to preserve the distinction between the Professions of barrister and attorney, but that was a large question, which could not now be satisfactorily dealt with, and yet this practice of attorneys, acting as mere advocates, involved the practical amalgamation of the two Professions, for, if allowed in these Courts, it would, be impossible to prevent the practice extending to the Superior Courts. The same abuse was many years ago beginning to creep into the English County Courts, and it had been found necessary to put a stop to it, the general opinion of the Judges being with Lord Brougham that each Profession, or branch of the Profession, should keep within its own proper province. He (Mr. Law) would be prepared to do everything in his power to smooth the way for any attorneys who might desire to come to the Bar; but whilst the Professions were kept distinct, he would resist all attempts by either to encroach on the legal province of the other. It had been thought expedient to assimilate the law of Ireland to that of England; but if this Amendment were permitted, it would make an important difference between the legal systems of the two countries.


said, he had heard that it had been ruled by the 12 Judges that it was illegal to employ a second attorney. How could it have come before the 12 Judges as a question of law? No Chairman was bound by an informal opinion of the Judges. No person could be more strongly opposed to the breaking down of the barriers dividing the two Professions than himself, and he admitted that he entered the Select Committee with a strong prejudice against attorney-advocates. But, as a matter of fact, an attorney did meet a barrister on perfectly equal terms upon questions of law and practice, and if this were amalgamation, it was already done. The question was simply this — if a man could employ one attorney, why should he not employ two? In the Committee he was struck with the arguments and evidence brought forward to show that it was the habit of the people to employ two attorneys, and he could not see there was ground for the Bar to contest it as matter of privilege. He favoured the principle of not restricting the rights of suitors, unless there was some public interest in doing so. In this case there would be an advantage; but, on the other hand, there would be a grievance to many people in Ireland.


said, that at present there were no barristers who practised at these Courts, and if attorneys were not allowed to practise in them enormous expense would be entailed upon suitors. He should vote against the clause; but if it were agreed to, the Government ought to postpone its operation for a certain number of years, so that the Bar might attend these Courts.


expressed his surprise at the course taken by the hon. and learned Member for Limerick, because on the Select Committee the hon. and learned Gentleman supported the clause, and assisted in carrying it. It had been laid down again and again in England that for an attorney to appear as an advocate was a direct violation of the law. The clause was almost identical with the clause in the English County Courts Act, and there was no reason why it should not be passed.


said, the arguments had been advanced on both sides on previous discussions with great amplitude, and he remained of the same opinion as when the discussion took place in Committee, and that was to retain the clause. It was in accordance with English practice, and he believed it would work advantageously for the public.

Question put, and agreed to.

Bill read the third time, and passed.