COMMON LAW OFFICERS' BILL. (Hansard, 18 August 1836)

§ Lord Langdale

said, My Lords, I request the attention of your Lordships to a Bill which has been recently brought from the Commons, and which is very interesting to those who are engaged in legal proceedings. It is intitled, "An Act to abolish certain offices in the superior courts of common law; and to make provision for a more effective and uniform establishment of officers in those courts;" and it would have given me great satisfaction if I could have given an unqualified support to the Bill; especially as my noble and learned Friend the Lord Chief Justice, has expressed an earnest wish that it should, if possible, be passed into a law during the present Session of Parliament.

The importance of the Bill cannot be doubted. Some of the greatest difficulties which are found in effecting improvements in the administration of justice arise from the practice which has existed from a very remote period, of making the proceedings in the courts auxiliary, or subservient, to the revenue—auxiliary, not only in defraying the expense of justice, but also in conferring rewards or emoluments upon deserving public servants, or undeserving favourites.

The funds affording these rewards or emoluments, have arisen entirely from fees imposed on the suitors, at first, on the pretence of services rendered to them, but afterwards continued and enforced without regard to any such service. The offices, indeed, in which the alleged services are pretended to be rendered, may be continued in Dame, but according to the language of a witness recently examined, "every thing is hypothetical except the fee." That remains a sad reality to be endured by the suitors. The persons, who, of all others, ought to be least burdened with expense have had expense unnecessarily inflicted upon them to a very great amount, and justice has been and is made inaccessible to those who cannot pay the price when thus enhanced.

In the mean time, the persons receiving the fees thus levied have been held to possess vested interests in their rewards and emoluments, and these vested interests have become the subjects of grants by patent—of bargain and sale—and of family settlements.

For two centuries there has been a 1278 struggle between the interest of the suitors on the one hand, and the interest of the persons intitled, or supposed to be intitled, to the fees on the other hand. Whenever an attempt has been made to lessen the costs of proceedings to the suitors, there has been a constant resistance by those whose incomes were derived from the fees; and until lately this resistance has prevailed.

But in 1830, Sir Robert Peel, whose meritorious attention to the law is admitted by all, having stated that his experience of legal reforms had satisfied him that the existence of patent offices formed one of the greatest obstacles to the improvement of the law; and that in almost every attempt to introduce partial reforms, he was met by vested interests which impeded his operations; an Act 1st William 4th, c. 58, was passed "for regulating the receipt and future appropriation of fees and emoluments receivable by officers of the superior courts of common law."

This statute effected its avowed purpose in removing the interest of the officers in the amount of fees, for it provided that the amount on an average of ten years should be ascertained and certified; that any surplus beyond that amount should be paid into the exchequer, and any deficiency paid out of the consolidated fund; and it left the legality of the fees subject to inquiry and investigation. But so much of the Act as connects the Exchequer with the fees of courts of justice for the purpose of receipt, appears to me to be founded on an erroneous principle, which I regret to find acted upon in the present Bill.

Commissioners under the Act 1st William 4th, cap. 58, were appointed, and having met with some difficulty in ascertaining what fees were legal, another Act (1st & 2nd William 4th, cap. 35) declared, that all fees which the Commissioners should deem to be reasonable, and which should have been received for more than fifty years before 24th May, 1831, should be deemed and taken to be legal fees.

The Commissioners then proceeded to ascertain the average amount of fees as directed by the Act; and the sums certified to be payable to the several officers of the different courts were as follows:—

To the Officers of the Court of
King's Bench.	36,072	9	9
Common Pleas	14,878	6	4
Exchequer	18,690	12	7
Total,	£,69,641	8	8

1279 These sums were, therefore, secured to the officers. If the fees amounted to more, the surplus was to be paid into the Exchequer; if to less, the deficiency was to be made good out of the Consolidated Fund.

In the mean time several improvements were made in the practice of the Courts; an extensive reform on the Plea side of the Exchequer was effected under the Act 2nd & 3rd William 4th, c. 110, and the Commissioners were directed to prepare such tables of fees as might be proper to be demanded in the superior Courts of Common Law with reference to the various changes and alterations which have taken place in the processes and proceedings of those courts, and to the diminution of expense, where practicable, to the suitor.

In the consideration of this question, the Commissioners were necessarily led to the inquiry, what were the services to be rendered to the suitors, and what would be a proper remuneration for those services.

The result is, that the sum of 36,072l. is payable in the King's-Bench by the suitors or the public for services and sinecures, the real services being such as would be fairly remunerated by 8,800l. That the sum of 14,878l. is payable in the Common Pleas by the suitors or the public for services and sinecures, the real services being such as would be fairly remunerated by 6,800l., and that the sum of 18,690l. is payable in the Exchequer for services and sinecures, the real services being such as would be fairly remunerated by 8,800l.

The object of this Bill is to abolish all the useless offices in the several Courts, and to appoint efficient officers at reasonable salaries to transact the business which is really required for the benefit of the suitors.

This object is so far from being objectionable, that all parties will probably concur in the propriety of it. When fully carried into operation, the effect of it will ultimately be to reduce the present annual charge from 69,641l. to 24,400l., a saving of more than 45,000l. per annum.

But the present possessors of the offices are to be compensated; and questions of considerable importance arise upon the amount of compensation and upon the means of providing the requisite funds.

And first, as to the amount: with respect to the emoluments of the abolished offices which are in immediate enjoyment, it is proposed to give compensation under the regulations of 1st William 4th, c. 58, and after what has been already done, it does 1280 not appear that this course can reasonably be objected to. But with respect to such advantages or emoluments as may depend on the rights of patronage or sale, it is proposed, sect. 22, to substitute annuities equal in amount to three-fourths of the incomes of the abolished offices and payable out of the Consolidated Fund, in lieu of the abolished offices, and to give to the officer, having or supposed to have this right of patronage or sale a right of disposing of the substituted annuity as a compensation for the right he now has of disposing of the office.

This mode of compensation assumes what cannot be admitted without inquiry; that these offices are, by law, saleable; and that there is no legal authority to reduce the fees payable to the persons holding them, to such just sum as would be a fair remuneration for the services, if any, which are performed. It is to be observed, that the Act 6th George 4th, c. 82, does not declare the offices to be saleable; and that the Act 1st William 4th, c. 58, provides for the reduction of fees payable to officers subsequently appointed.

The amount of compensation proposed to be given at present, is such as to leave an annual charge of 62,145l. 8s. 1d., being only 7,496l. 0s. 1d. less than the present charge; and being 37,745l. 8s. 1d. beyond the amount of what is necessary for the fair remuneration of efficient officers or the sum to which the expense is ultimately to be reduced.

Next, as to the means of providing compensation: the payments are to be made out of the Consolidated Fund, which is right. A common benefit should be purchased at the common charge; and I can conceive no good reason why the suitors, who have the misfortune to be called upon to establish or protect their rights in courts of justice, should in addition, to the expenses which cannot be avoided, be burthened with the expense of providing compensation to the persons who once held offices since abolished.

Nevertheless, with a view, I suppose, of affording compensation to the Consolidated Fund, it is proposed that, notwithstanding the abolition of the offices, all the fees shall be for the present continued; and that the surplus of the fees, after paying the officers actually employed, shall be paid into the Exchequer to the credit of the Consolidated Fund. This, your Lordships will observe, is following the example set by the statute 1st William 4th, 1281 c. 58, and gives the Exchequer a direct interest in, and claim upon, the fees received from the suitors in the Courts of Law.

But this is not all, there are certain funds, very unlike in amount to the sums belonging to the suitors in the Courts of Chancery, but certain smaller sums belonging to the suitors in the Courts of Law; and this Bill proposes, that the Masters of the several Courts shall render an account of the Suitors' fund to the Treasury, and that if it shall appear to the Treasury that any portion of the fund is not likely to be wanted for the purposes for which they were paid into Court, they may direct the Masters to pay such portion into the Exchequer to be carried to the Consolidated Fund; and this, your Lordships will observe, gives to the Exchequer a direct interest in, and claim upon the funds belonging to suitors in the several Courts.

I will not at this time detain your Lordships by stating at greater length my objections to the compensation clauses contained in this Bill. I apprehend them to be money clauses, and that they cannot be successfully altered in this House; and it is now too late in the Session to hope that they can now be altered in the other House; and under these circumstances, though I entirely approve of the abolition of these offices, and do not object to a proper compensation being given to the officers, yet being of opinion that the compensations here proposed are not proper, and that the Bill improperly connects the Treasury with the fees received from the suitors, and the money belonging to the suitors in the Courts of Justice; and seeing that the errors (if they shall be thought such) cannot be corrected in this Session, I think it my duty to move, that this Bill be read a second time this day three weeks.