HL Deb 26 March 1844 vol 73 cc1538-45

On clause 7 (excepting from the general operation of the Bill Royal Chapels, Collegiate, Cathedral, and University Churches, and "the Churches and Chapels of the Inns of Court, and the Preachers and Ministers thereof"),

Lord Campbell

observed, he should be sorry to see interfered with, those ancient and learned bodies, the Inns of Courts, whose exercise of their rights of patronage had been unimpeachable, and from whose preacherships had risen to the Bench so many eminent Prelates; among whom one of the most distinguished he then had the honour of seeing present.

The Bishop of London

said, he certainly acknowledged that those bullies had exercised their patronage most conscientiously and creditably; but he really did not quite see why the lawyers—custodes legis,—should be exempt from the general operation of this Bill.

The Lord Chancellor

remarked, that it had been considered proper under all circumstances, and particularly with respect to the private statutes of the bodies in question.

Clause agreed to.

On Clause 8.

Lord Cottenham

observed, that this Clause proposed to establish a new principle. It was for continuing the Diocesan Courts, and he objected to that Clause standing part of the Bill upon the discussion that had taken place the other evening, and he had said all that he could say upon the subject, and he therefore did not mean to address them at any length on the present occasion. He hoped, however, that before noble Lords went to a division on the Question, they would consider what it was that the Bill proposed, and what was the weight of authority against that proposition. The Bill proposed to continue, under certain regulations, which would make them perpetual, the Diocesan Courts—that was, a Court in each Diocese in England and Wales. This was a proposition that was not only condemned by all those who had considered this subject, but it was also condemned by the reports of two Royal. Commissions—by the reports on the Ecclesiastical and the Admiralty Courts—it was condemned by two reports of Special Committees, one of that and one of the other House of Parliament. It was condemned in the Measure of the Government that preceded the Government of noble Lords opposite; but, above all, it was condemned by the present Government itself. It was condemned by some of the most influential Members of the Government, including the head of the present Government. It was condemned by the present Government, as a Government; for by the Bill brought in by them last Session, they proposed the abolition of all the Diocesan Courts. Before, then, noble Lords were called upon to vote in favour of the Clause, they had to consider whether they would perpetuate an evil in the country without a single reason being offered in its favour. What was the inconvenience to be avoided by perpetuating these Courts? That doing so would interfere with the interests of certain local practitioners in Local Courts. Here, then, they found that the Government had riot the courage to propose a Measure that they felt to be right, even though in doing so they might be assured of the support of those who were usually opposed to them, The Government were not only too weak to carry out their own Measure, but they had not even the courage to attempt it. Last year their Bill abolished all these Diocesan Courts, and this year their Bill perpetuated these very Courts. Such was the position of the Government.

The Lord Chancellor,

in answer to the observations made by his noble and learned Friend, had to state that this Bill carried out many of the suggestions made by the Commissioners. In the Bill that was brought in last year an Amendment was made in the Committee of the other House, retaining the Diocesan Courts. Those who were responsible for the present Bill introduced it in the state in which it had last year left the House of Commons, and in that state they now expected to find it pass the other House. The Bill now contained so much of good that he was satisfied to have it passed in its present state. If after the Bill passed, his noble and learned Friend proposed a Measure with respect to the Diocesan Courts, it should have his best consideration. It was too, intended by this Bill, that the Diocesan Courts should be established not in the way in which they had hitherto existed. They would be placed in an improved state, although it was not meant that the present arrangement should be final; for if after the Bill passed, it were found that the Diocesan Courts did not faithfully discharge the duties entrusted to them, then Parliament would certainly interfere. It was to be observed that Lord Stowell's Bill corresponded with the scope and object of the present Bill. He denied that the Diocesan Courts were incompetent to perform the duties entrusted to them. There were three or four Courts in which justice was as well administered as in any Court of the country—for instance, those Courts over which Mr., Granville Vernon, Dr. Phillimore, and others presided. Were these Courts general, and judges of knowledge and ability placed at the head of them, there was no reason to suppose that the Administration of the Law would not be well and faithfully conducted.

Lord Campbell

was gratified to find that his noble and learned Friend did not designate the plan for abolishing the Diocesan Courts as "Jack Cade legislation"—he did not denounce it as spoliation or plunder, nor an interference with the sacred rights of pro- perty. But his noble and learned Friend knowing that the abolition of these Courts would be a great improvement in their institutions, what reason did he assign for abandoning the measure by which they might be abolished and abandoning, too, that measure, it being his own? He must say, that in this respect his noble and learned Friend acted as a most unnatural father. They were told over and over again that the Ecclesiastical Courts Bill, abolishing those Diocesan Courts, was framed with the full concurrence of the Government. The Bill of 1835 had that object in view. It was approved of by those opposite, and left as a legacy to their successors. The Bill of 1835, abolishing contentious jurisdiction in those courts, was approved of by his noble and learned Friend. In 1836 his noble and learned Friend approved of that principle in a Committee of that House. His noble and learned Friend approved of it last year. It had the entire approbation of the Government. There was no difference in the Cabinet on the subject. It was supported by Sir Robert Peel, by the Attorney General, and by Sir James Graham. They, in a manner which was to be expected from their talent and learning, showed the extreme mischief arising from the Diocesan Courts. If his noble and learned Friend would look to Hansard, he would find there a most eloquent and elaborate speech from Sir Robert Peel against the Diocesan Courts. Why then were they to be now preserved? His noble and learned Friend spoke of making an experiment with them. These Courts had subsisted for a thousand years and it was on account of the abuses of these Courts and their inherent bad qualities, that their Lordships were now called upon to abolish them. His noble and learned Friend had drawn a distinction between the Courts of Peculiar and the Diocesan Courts, and yet it was impossible to say why the one class of courts should be abolished and the other preserved. Why, he asked, abolish the one and continue the other? It was said, that not much business was done in the one—apply this same reasoning to the other, and they too should be abolished. But then, if they looked to antiquity, like Sir Robert Inglis; if they were to have a matter preserved because it existed in the reign of King Stephen, then they ought to preserve all these courts, Now, as to the cases brought from the Archdiocese of York before the Privy Council, he could say, and he appealed to his noble and learned Friend (Lord Brougham) if they were not full of the grossest blunders, and constantly followed by reversals. [Lord Brougham "Hear, hear."] If, then, that were the case with the Archdiocesan Court of York, what must be the state of the distant Diocesan Courts in England and Wales? If probate were not granted out of the right Court, it was declared by his noble and learned Friend to be void. Let them see all the consequences likely to follow from the continuance of these Courts. By perpetuating these Courts they kept up the system of Proctors, and the public was saddled with an enormous expense. There were to be two sets of agents, where the public would be much better served by one. The truth was, that the only defence of his noble and learned Friend was, that he could not carry the Bill—those opposite could not carry that which they thought for the benefit of the public. It was for them, then, to consider, whether under such circumstances, they ought longer to attempt to carry on the Government.

Lord Brougham

agreed with the opinion expressed by his noble and learned Friend as to the Diocesan Courts. None of them had a good Bar, and many of them were without good Judges. They had neither eyes nor head. He thought, however, there was much good in the Bill; and if he could not go at a full pace, he must be satisfied to go at a half pace. It was, too, his opinion, that the Courts were improved by this Bill, for good judges were to be given by it to these Courts.

The Committee divided on the question that the Clause stand part of the Bill:—Contents 47; Not Contents 20; Majority 27.

List of the CONTENTS.
Archbishop of Can- EARLS.
terbury Beauchamp
Lord Chancellor Cathcart
DUKES. Dalhousie
Buccleuch Delawarr
Wellington Falmouth
Ailesbury Jersey
Camden Liverpool
Cholmondeley Longford
Salisbury Malmesbury
Winchester Ripon
St. Germains London
Shaftesbury Peterborough
Sheffield LORDS.
Beresford Brougham
Canning Farnham
Hawarden Feversham
Strangford Kenyon
BISHOPS. Middleton
Bangor Ravensworth
Exeter Redesdale
Hereford Sondes
Lichfield Tenterden
Llandaff Wharncliffe
List of the NOT-CONTENTS
Clanricarde Beaumont
Headfort Campbell
Lansdowne Colborne
Normanby Cottenham
EARLS. Crewe
Auckland Dinorben
Besborough Kinnaird
Clarendon Monteagle
Melbourne Teynham
Ponsonby Vivian

On Clause 9,

Lord Cottenham

complained of the closeness of the Courts at Doctors' Commons, both as respected Advocates and Proctors. No person was admitted to plead who was not admitted an Advocate of these Courts, and none but Proctors expressly admitted were allowed to practise. No persons pleading at the bar of other Courts, however great their experience, or however high their professional attainments, were allowed to practise as advocates, and no attorney or solicitor could act as agent. If a party wished to employ his own confidential solicitor or attorney it was done by engaging a Proctor on condition that he should not interfere in the business, but should receive all the fees. The monopoly was one which was very injurious to the public, and had been much abused, and he hoped his noble and learned Friend would be prepared at a future stage, to open these Courts, both as respected Proctors and Counsel.

The Lord Chancellor

said, he had had communications with different persons belonging to the Ecclesiastical Courts, and he had found them extremely intelligent and perfectly conversant with the business in which they practised. After all the inquiry he had made, he did not think that the class known by the name of Proctors, were liable to the observation made by his noble and learned Friend, as to their competency to discharge all the duties required of them, there being men of great learning and great intelligence amongst that class of persons. It would be impossible to abolish their exclusive privilege without compensation, and the amount was so heavy that it rendered the measure impracticable in 1836. The abolition of the Six Clerks in the Court of Chancery had cost upwards of 40,000. With respect to the bar of the Civil Courts, the Advocates were brought up at the Universities, and were men of much learning, and in time of peace their fees were small. It was of the utmost consequence to the country that there should be a number of persons who applied themselves to the study of the Civil Law, so as to make themselves masters of learning applicable to questions of national law that arose between this and other countries. Upon the ground of policy, therefore, he must resist the suggestion of his noble and learned Friend in respect to the Bar, and as to the Proctors, on the pecuniary ground, that it would be impossible to effect the object without a charge upon the public which it would be utterly impossible to impose.

Lord Cottenham

could not understand the fondness of his noble and learned Friend for Proctors in Doctors' Commons, when he had surrendered the cause of the Six Clerks in his own Court—both classes of officers standing precisely on the same footing. There was, however, an anomaly in the practice of these Courts to which he wished to call the attention of his noble and learned Friend. In some of them a party was not allowed to appear in person but must employ a Proctor. He could not do what in other Courts was considered a right of the subject, although it was one which it was not always thought wise to exercise—namely, to plead his own cause. Would the same privilege be allowed to suitors in the Ecclesiastical Courts, that were given in several of the Law Courts?

The Lord Chancellor

said, that the object which his noble and learned Friend sought to accomplish would be effected by the provisions of the Bill; or, if it were not, he should take care that the suggestion should not be lost sight of. With respect to the power of suitors pleading in their own causes, he remembered an instance in which a man pleaded for him- self, in a case before him, and, in consequence of some experience which he had of the individual, he appointed ten o'clock in the morning for hearing the case. The individual commenced addressing him at ten, and continued until a late hour in the evening, when he said he was so much exhausted, that he was unable to proceed further, and he put it to his (the Lord Chancellor's) humanity, whether he would not allow him to refresh himself, as he was unable to proceed further without some rest. He (the Lord Chancellor) agreed to the request, and the greater part of the next day was consumed in the remaining portion of his address. There was another case of the same sort that occurred in his Court more recently. He did not think such a practice at all tended to facilitate the administration of justice; but he would take care, if his noble and learned Friend's suggestion was not already sufficiently provided for, it should be by a subsequent Clause of the Bill.

Clause agreed to.

Remaining Clauses agreed to.

House resumed.—Report to be received.

House adjourned till Thursday.

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