REPORT. (Hansard, 28 May 1857)

§ EARL STANHOPE
said, he cordially approved the general scope of the Bill, but had the strongest doubts as to one of the Amendments made in Committee. By Clause 37, as it originally stood, the right of appeal in testamentary causes was to the Judicial Committee of the Privy Council. By the Bill, as altered in Committee, that right of appeal was transferred to the House of Lords. Now, he doubted whether the House of Lords, regarded as a Court of Appellate Jurisdiction, was so perfect, so free from all error or defect, as to justify them not only in continuing the existing system, but in increasing the 907 number of causes brought before it. The defects of the House as a Court of Appellate jurisdiction were felt on all sides last year—a feeling consistent, with the greatest possible respect for the noble and learned Lords who, with so much honour and credit to themselves, administered the jurisdiction—and their Lordships sent a Bill to the other House to remove those defects, which Bill it did not please the other House to pass. Therefore, whatever defects then existed still remained; there was no change in that respect. Moreover, it was admitted that the time of the House as a Court of Appeal was fully occupied by other business; and, therefore he doubted whether it was politic or just to transfer the right of appeal in testamentary causes from the Judicial Committee to the House of Lords. If it should please their Lordships to adhere to the Amendment, he thought it would be incumbent upon them to appoint a Select Committee next Session to inquire whether, not by legislation, but by the exercise of their own powers, it might be possible to place their appellate jurisdiction on a more satisfactory footing than at present.

§ THE EARL OF MALMESBURY
wished to make a few remarks with regard to the position of the proctors in relation to this measure. It appeared from a statement laid before him by a deputation from that body, which had recently waited upon him, that the entire probate duty paid throughout the country during the last year was £990,000, of which £750,000 was levied in London, and that the result of the measure, so far as the proctors were concerned, would be to reduce their profits from about £90,000 a year to £15,000. Many of these gentlemen had entered into partnership agreements, and depended for their fulfilment on the retention of their professional emoluments. There were, for example, agreements between two proctors, each of whom agreed that if he outlived the other he would pay a certain amount to the survivor's wife or children. Such an arrangement would be rendered impossible by the loss of their profits. He wished to ask the noble and learned Lord on the woolsack whether, taking into consideration the position of these gentlemen, with whom no fault had been found, it was not fair that some compensation should be given to them and to their articled clerks, who had each paid £800 to £1,000 for their position.

THE LORD CHANCELLOR
said, that 908 the gentlemen to whom his noble Friend had alluded had waited upon him also, and he could entirely confirm the statement of his noble Friend that they were themselves persons of great respectability, and that they represented a most respectable body. In the case of all reforms, it unfortunately happened that what was for the general good must inflict some hardship on particular individuals, who had profited, and not improperly profited, by the system which was about to be overturned. That was a necessity incident to all improvements; and the question where compensation should be given or should be withheld for losses of that kind was always a very difficult and painful one for the person who had to decide it. He was one of those who thought that in order to promote the cause of reform it was very desirable that the Legislature should be liberal in the course it adopted upon these occasions, for he believed that the feeling that they were acting harshly to individuals often stopped useful reforms; and, therefore, if he could see his way honestly and fairly to a recommendation that compensation should be given to those gentlemen, nothing would give him, personally, greater satisfaction than to offer that recommendation to their Lordships. But he could not conscientiously take that course. He believed that all persons who held public offices and whose offices were to be abolished had, de facto, a fair claim to compensation; but he could not admit that there existed a similar right to compensate a whole profession because they would lose a portion of their professional emoluments in consequence of an alteration in the law which it had been found desirable to effect. If compensation were granted in the present instance it would be necessary to appoint Commissioners, who should examine each proctor's books for the purpose of ascertaining the amount of his profits, and who should afterwards have to determine what portion of those profits would be lost under the change in the mode of conducting the business of the profession. It would be impossible to bring any such labours to a satisfactory issue. It could not be done even if it were reasonable. But it would be unreasonable to take that view of the justice of the case. There was an obvious distinction between compensating officers removed from public situations, and compensating private individuals because the adoption of a social improvement would diminish the necessity for their services. 909 He did not think that these gentlemen had as strong a claim to compensation as other parties whose right to such an advantage had been denied by the Legislature. In the present case the professional men who petitioned their Lordships had not so much claim as had been supposed, for the Bill would leave them all the "common form" business—in other words, exclusive practice in ninety-nine out of every 100 cases. It was true that he had been told by one gentleman that the litigated business formed one-third of the practice of the proctors; but that statement was entirely at variance with the information he had received from other quarters. There were but thirty or forty litigated cases in a year, but in the same time there were nearly 30,000 wills and administrations. Under these circumstances he could not think that those parties had any right to compensation. They would receive under the Bill all the advantage which the Commissioners recommended should be extended to them, for they would be left, as long as it should be found expedient, a monopoly of the non-contentious business; and he was convinced that was all their Lordships could do for them.

LORD WYNFORD
instanced the more liberal manner in which another class of practitioners were to be treated under the 96th clause, compensation being guaranteed to the office-holders in the different episcopal courts throughout the country. A great many of those offices were held by persons who had never practised in any court whatever.

THE LORD CHANCELLOR
said, he intended by an alteration of the 96th clause in the Bill to restrict compensation, unless in the case of persons who held offices for life, to persons who had actually discharged duties.

LORD WYNFORD
said, the statement of the noble and learned Lord was satisfactory as far as it went; but a great many of those who would still be compensated had been appointed since Acts of Parliament had passed, warning them that if they accepted such appointments they would not be entitled to compensation. It seemed to him rather a strong measure to give compensation to them, and to refuse it to the hardworking and expensively educated class of persons, whose case had just been brought under the notice of their Lordships.

§ LORD ST. LEONARDS
said, he thought that the greater number of the 910 officers alluded to by the noble Lord were barred from compensation. The Act the noble Lord alluded to was passed about twenty years ago, and provided that no person subsequently appointed to any office in the ecclesiastical courts, except the Prerogative Court of Canterbury, should have a vested interest in their appointments so as to be entitled to compensation. About ten years ago another Act passed, withdrawing the exception of the Prerogative Court of Canterbury, and, as to future appointments, placing the officers of that court on the same footing as the officers of other ecclesiastical courts. In order, therefore, to give compensation under this Bill, it would be necessary to repeal those Acts. He objected to the compensation clause in the Bill. The noble and learned Lord on the woolsack wished the matter to stand over, and had to-night stated his intention to make some alteration. He should wait to see the alteration of the noble and learned Lord before giving any opinion upon the subject. The only argument in favour of giving them compensation, notwithstanding the provision of these Acts, was that they had held their appointments for so long a time that it would be cruel to deprive them of them without compensation. But as to office-holders having a better claim, because they had been so long in the enjoyment of their offices, he thought that argument was on the other side of the question. They took office with Acts expressly denying them compensation, and with the expectation that the courts would soon be remodelled. If from circumstances the alteration had been postponed for ten or twenty years, instead of taking effect within a short period of their appointment, they had by so much enjoyed greater benefit than they anticipated. It might be true, however, as was stated by thirty-nine of the parties to the petition he had presented, that when they took office they were not aware of the existence of the Acts referred to.

THE BISHOP OF CHICHESTER
was understood to point out the mode in which the Bill would affect the business and emoluments of the officers of the district Consistory Court of Chichester, but was inaudible.

THE EARL OF DONOUGHMORE
wished to trespass on their Lordships for a few moments while he called attention to the claims of the proctors to compensation. The body of proctors had 911 existed for over 600 years, and every Commission which had sat on the subject of testamentary jurisdiction reported that they had performed their duties with advantage to the public, and admitted that if the practice of the court was thrown open their claim to compensation was irresistible; in point of fact, the Government of which the noble and learned Lord was a Member had admitted their claim, as the Bill which they had introduced into the other House in 1855 provided for giving them compensation. The Bill now under discussion did not, indeed, in terms abolish their business, but did so in effect; as all non-contentious business under £1,500, which formed 79 per cent of the whole, was withdrawn from them. By a clause in the Act of George III. proctors were forbidden to enter into partnership with solicitors: the Bill proposed to repeal that clause, the effect of which would be to deprive the proctors of a portion of their reduced profits; not content even with that, the Bill authorized the Judge of the Court of Probate to admit any person he chose to practise in his court. The proctors had been at great expense in obtaining admission to their profession, and now it was proposed to expose them to the invasion of 10,000 solicitors. Did the noble and learned Lord wish to abolish the order of proctors altogether, and so deprive the country of services which were so valuable in the litigation arising in time of war? He (the Earl of Donoughmore) was as anxious as any person to see the testamentary jurisdiction placed on a better footing; but that might be done without destroying the proctors; and, he trusted the Government, in adopting measures for the furtherance of so desirable a reform, would not overlook the just claims to compensation of a most efficient and responsible body of men.

§ LORD WENSLEYDALE
said, he would not object to give the proctors the exclusive right of conducting contentious suits.

THE MARQUESS OF WESTMEATH
said, that the proctors ought to congratulate themselves upon having been able to retain their monopoly so long, and he for one could not recognize in their case any just grounds for granting compensation. Whenever any object was to be effected for the benefit of the great mass of the people, some particular class generally suffered, and he hoped that the noble and learned Lord (the Lord Chancellor) would consider the public, and persevere with the Bill, which had his hearty support.