§ LORD CHELMSFORD
rose to callt attention of the House to the Case of the Clerks and Officers of the late Insolvent Court, who have been transferred to the Court of Bankruptcy under the Act passed in the last Session of Parliament for amending the Law relating to Bankruptcy and Insolvency in England. The noble and learned Lord said he felt most strongly that it was his duty to take this course, because he was convinced that either the rights of those officers had been improperly withheld, or that a breach of faith had been committed towards them which ought to be repaired without delay. If a wrong had been committed, the Government alone were responsible for it; he did not, however, think that, so far as the majority of its Members were concerned, the Government were aware of the real circumstances of the case. Although he was politically opposed to them, he had such an esteem for their high character that he was satisfied, if the circumstances of the case had been fully known to them, all complaint would have been long ago removed. The Bankruptcy Act of last Session, in assimilating bankruptcy and insolvency, involved the abolition of the Insolvent Debtors' Court; and the question arose, what was to be done with the staff of officers and clerks of that establishment? There were two ways of dealing with them. The one was to abolish their offices, and of course, if that were done, according to the custom of Parliament a just and liberal compensation would be provided for them; the other was to retain their services by transferring them to the new Court of Bankruptcy. The latter was the course adopted by the Government. The incomes of these officials were constituted partly of salaries and fees—the fees in most cases far exceeding the amount of their salaries. The salaries were paid by the Treasury, the fees were received out of a fund derived from the business of the Court, called the Insolvency Fund. It was a material part of the case that the nature of the official incomes of these officers, and the sources from which they were derived, were perfectly well-known to the framers of the Bill during its progress 1711 through Parliament. The noble and learned Lord on the Woolsack, being then Her Majesty's Attorney General, was intrusted with the duty of passing the Bill through Parliament, and he employed to assist him in drawing it up Mr. Roche, then a member of the Bar, but who had since been appointed one of the Registrars of the Court of Bankruptcy. Mr. Roche communicated with the officers and clerks of the Court which was to be abolished, and made himself thoroughly acquainted with all the circumstances connected with their position. He (Lord Chelmsford) must take it for granted that Mr. Roche communicated to his employer, the then Attorney General, all the knowledge he had derived upon the subject. He should not have had the slightest doubt that the noble and learned Lord on the Woolsack was perfectly aware of those facts, if it were not for a circumstance that had occurred in this House. He (Lord Chelmsford) on a former evening put a question to the noble and learned Lord on the subject of the claims of these officers, and in the course of the answer which he gave, the noble and learned Lord stated that he was not aware at the time of the progress of the Bill through Parliament that these officers were paid partly by salaries and partly by fees; and that if he had known it, he would, undoubtedly, have thought it right to provide for them some means of compensation. This was the more extraordinary because he (Lord Chelmsford) held in his hand a return which was made to the House of Commons on the 22nd of March, 1861, exhibiting in detail the amounts of salaries and fees received by the officers of the Insolvent Court on an average for the last seven years, and showing that the amounts which arose from fees were much larger than those received as salary—for instance, one gentleman received £300 salary and £715 fees; another £150 salary and £599 fees. It was impossible that the noble and learned Lord could have overlooked a return of this importance, which must have been moved for in order to assist the Government in deciding the proper provisions of the Bill in relation to this matter. He ventured to say, that if the noble and learned Lord did not know of this return, he ought to have known of it; and that he neglected his duty if he failed to make himself acquainted with the information which it contained. But he would not believe that the noble and learned Lord 1712 had so disregarded his duty, and therefore he must assume the answer which the noble and learned Lord had given him arose from a momentary forgetfulness, and that there must have been a full knowledge of the fact of the incomes of the officers being composed both of salaries and fees. Mr. Roche was the organ of communication between the Attorney General and the officers and clerks of the Insolvent Court. The latter were naturally anxious to know what was to become of them if their Court were abolished. They were told over and over again by Mr. Roche that their interests were protected, that their salaries and official incomes would not be diminished, and that ample provision would be made for them by the Bill; and he called their attention to three of the clauses, which he assured them would sufficiently protect and secure their interests. Those clauses were the 22ud, 26th, and 30th. The 22nd provided for the transfer of the services of the officers and clerks of the Insolvent Court to the Court of Bankruptcy. The 26th provided for the transfer of the Insolvency Fund to the account of the Accountant in Bankrupcy, and that such fund should be applied, subject to certain payments, as the Lord Chancellor might direct towards defraying the salaries of the clerks and other officers of the Insolvent Court, whose services had been transferred to the Court of Bankruptcy. The 30th clause provided that the chief clerk, clerks, taxing officer, and other officers of the Court of Insolvent Debtors, should, "upon being in manner herein provided transferred to the Court of Bankruptcy, severally continue to receive the full amount of the salary, remuneration, allowances, and compensations which they now respectively receive, as nearly as may be out of the same funds and payable in the same manner in all respects as if this Act had not been passed." If any reliance could be placed on assurances—if there was any plain, honest meaning in words—could the officers of the Insolvent Court have doubted that the full amount of their salaries and emoluments were secured to them by the provisions of the Act? The noble and learned Lord on the Woolsack had expressed his regret that the officers did not secure the services of some one to watch their interests whilst the Bill was passing through the House of Commons; but were they not to be excused for reposing confidence in the repeated assurances they had received? Their case, however, 1713 was not entirety overlooked at the time the Bill was passing through the other House. He held in his hand a copy of the Bill which was used by his hon. and learned Friend Mr. Rolt when the Bill was in Committee. It appeared that the words of the 30th clause had struck an hon. and learned Friend of his (Mr. Malins) as likely to leave the officers in a precarious position, and he proposed an Amendment to the effect that the words "out of the same funds and payable in the same manner in all respects as if this Act had not been passed," should be omitted, and the following words substituted:—"The same shall be paid out of the funds standing to the credit of the Chief Registrar's account." The noble and learned Lord, then in charge of the Bill, promised to consider the Amendment on the Report; and on the copy of the Bill used by Mr. Rolt in Committee were the words, written by himself in pencil, "to be considered." The Bill was reported after it had passed through Committee without any alteration in the 30th clause, and came to their Lordships' House in that state. What was he to infer from that circumstance? He could not believe that the noble and learned Lord had disregarded his promise; and as no alteration was made in the clause, he could only infer that he had considered the point and had come to the conclusion that the words were sufficient to carry out what he had professed to be his intention. In their Lordships' House, when the Bill was referred to a Select Committee, his noble Friend behind him (the Earl of Derby) expressed an apprehension, that as the Insolvency Fund would be merged in the Bankruptcy Fund, the officers might be deprived of the incomes which they had been receiving. The late Lord Chancellor, who was chairman of the Committee, almost ridiculed the idea that the officers were not fully secured by the provision made for them. Mr. Roche, who prepared the Bill, was permitted to be present in your Lordships' Committee; he heard the objection and the answer; and if he had felt the slightest doubt on the subject, he would, of course, have communicated with the noble and learned Lord, and the Government would have insisted on the Bill being amended. Before the Bill became law, the late Lord Chancellor had passed away, and the noble and learned Lord on the Woolsack succeeded him. It was not supposed that the change would be 1714 prejudicial to the officers of the Insolvent Court; they had received assurances over and over again that their interests were carefully protected; and they therefore waited patiently and without apprehension till the first quarter's salary became due. The 1st of January arrived; days and weeks passed away, and no symptom appeared of any disposition to satisfy their claims. This delay was most disastrous to many who were entirely dependent on their official incomes. Some liable to pay debts by instalments had executions put into their houses; others had been distrained upon for rent; and, what was much worse, in one instance at least the premiums of insurance made for the benefit of the family could not be paid. This state of things at last aroused the attention of a most excellent and humane man, Mr. Commissioner Law, for many years the Chief Commissioner. He immediately pressed the claims of the officers on the Lord Chancellor with an energy and ability that did him infinite credit. A long correspondence ensued between the Lord Chancellor and Mr. Law, and he should not be obliged to trust to memory, but was able to give their Lordships the Lord Chancellor's views tinder the hand of his secretary. In the first place, the Lord Chancellor, in his letter, said he doubted very much whether the officers were transferred by the Act, and whether General Orders were not necessary to transfer them. He (Lord Chelmsford) could not understand how the noble and learned Lord could form such an opinion, for the Bill said the persons now discharging certain offices "shall be transferred, and shall act in such manner as the General Orders shall direct;" and a case having been laid before the law officers on this point, they expressed an opinion that without doubt the officers were transferred by the 22nd section of the Bankruptcy Act of 1861. If the noble and learned Lord had any doubt on this subject, it was his duty to have the General Orders ready by the 11th of October, when the Act came into operation, as he had acted with respect to other General Orders, and at once have transferred these officers to the Bankruptcy Court, leaving no gap in the payment of their salaries and emoluments. The next doubt started by the noble and learned Lord was one of a more formidable description, as it went to the very root of the claims of these officers. The noble and learned Lord addressed a 1715 letter to Mr. Law, stating it was his intention to lay a case before the law officers for their opinion; then he went on to say, "But the Lord Chancellor begs that you will consider for the officers of the Court that which is the impression in his Lordship's mind, though he views the matter with every disposition to favour the claimants. First, he is of opinion that there are no words in the 30th clause which give the clerks, when transferred to the Bankruptcy Court by the Act, an income equal to the aggregate amount of their salaries and fees, and it is impossible to strain the words of the section to any such meaning. Now, the words of the section are that the officers shall continue to receive the full amount of their salaries, remunerations, allowances, and compensations which they now respectively receive. The noble and learned Lord then went on to offer the clerks two alternatives. "The Lord Chancellor," said the letter, "can see but two alternatives—either that an effort shall be made to obtain a new Act of Parliament, giving them a right to compensation; or, secondly, that they shall accept such reasonable salaries as the Lord Chancellor has the means of giving, and he will be glad to go as far as prudence will possibly allow him." Now, as to the first alternative, the Lord Chancellor expressed his opinion that it would be impossible to obtain compensation from Parliament? If that were so, the noble and learned Lord left the unfortunate officers to what is vulgarly called "Hobson's choice." The noble and learned Lord went on to say, that if they consented to the second alternative, he hoped to be able to allow them salaries which would be of a permanent character, and ample for the services required of them in future, although he feared that those salaries would not exceed the sum total of the existing salaries and about one-half of the fees. To this Mr. Commissioner Law replied, that he was not at liberty to accede to any such proposition as that contained in the noble and learned Lord's letter, and that whilst he would not attempt to strain the words of the Act in favour of the clerks on the one hand, he would not disregard their rights on the other. There was a point in the letter of the noble and learned Lord on the Wool-Back to which he (Lord Chelmsford) must refer, although it had nothing to do with the subject to which he wag calling attention, because it might possibly raise an 1716 unfair prejudice which might divert their Lordships' minds from the merits of the case. In the letter, inviting the officers to the two alternatives, there was a charge against the clerks of fabricating false returns, for it contained these words, "The cause of the clerks is morally not improved by the manner in which they have attempted to swell the emoluments above the amounts stated in the return of March, 1861. The Lord Chancellor cannot accept the last statement, and regrets that it was made." In answer to this, Mr. Law said he felt it his duty to notice the charge made against the clerks, which he had seen with regret. Knowing the men, he asserted his belief that their statements were true, and he invited, on their behalf, the closest scrutiny. He pointed out that as the amount of the fees depended to a great extent on the number of petitions presented, the increase in the fees was probably occasioned by the increased number of petitions filed during the last year over the number filed in the year preceding the return of March; and that the words of the 30th section, stating that the clerks should receive the same salaries, &c., as they "now receive" were the words of the Legislature, and not of the clerks. If it had been the pleasure of the Legislature that the average of seven or twenty years should be taken, that intention would have been expressed in the clause; but the intention actually expressed was that the present rate of emolument should be taken. He (Lord Chelmsford) had told their Lordships that a case was laid before the law officers as to the construction of the 30th section of the Bill; but where was the necessity for any case at all? Was it for the purpose of asking whether the noble and learned Lord was to keep faith with the officers, or did he wish to obtain the confirmation of the interpretation which he chose to place on the 30th section? If the latter were the case, he met with extraordinary success, for the law officers gave it as their opinion that the officers of the Insolvent Debtors' Court had no right under the Act of 1861 to claim remuneration equal to the salaries and fees received by them previous to the passing of the Act. With great respect to the law officers, he knew something of the English language, and had some pretensions to understand the honest meaning and intention of words, and he was perfectly surprised that they could come to that conclusion with the words of the 30th section 1717 before them. The law officers said, secondly, that the Lord Chancellor had no power to devote the sum transferred to the Bankruptcy Court in payment of the fees or any part thereof. Now, he (Lord Chelmsford) should like to see the case on which the opinion was given, in order to ascertain whether the 30th clause was transcribed in it without the words "as nearly as may be;" for it so happened that in quoting the clause in the letter of the noble and learned Lord to Mr. Commissioner Law those words were omitted. In the clause it was directed that the clerks should receive their income in future "out of the same funds as near as may be," and for that purpose the annual vote of Parliament was directed to be paid to the Chief Registrar in Bankruptcy. But in his letter to Mr. Law, and in his reply the other night in that House, the noble and learned Lord omitted the words "as near as may be," as if they had been words of no importance, while, in fact, they made all the difference, and constituted the entire case. Those words clearly contemplated the possibility of the case arising, when the funds would not be sufficient to pay the salaries and fees of the officers; and he was curious to know whether they appeared in the transcript of the clause which, of course, would be included in the case laid before the law officers. But, supposing the law officers were right in their opinion that the officers were not entitled to receive their salaries and fees out of the funds provided, what course might one have expected the Lord Chancellor to follow? He should have thought the noble and learned Lord would have said, "My intentions have been frustrated by the incautious wording of these clauses; there is nothing to do but tell the Government it has committed a wrong, which it must repair by immediately introducing a declaratory Act. The noble and learned Lord immediately communicated the opinion of the law officers to Mr. Law, and proceeded to say, "The Lord Chancellor (after stating the opinion of the law officers) assumes that you are satisfied that the officers have no legal title to any remuneration equal to that of which they have been in possession at or before the passing of the Act. If, however, this is not so, the officers must, of course, take legal measures for trying the question; and a mode of proceeding for that purpose must be agreed upon."
1718 The answer of Mr. Law was—Your Lordship, in addressing me as their adviser, assumes that I am satisfied that the officers have no legal title to remuneration equal to that of which they were in possession at or before the passing of the Act. I am not so satisfied. It is true I am not prepared to frame a remedy which shall have the force of law against the Treasury, or against the Chief Registrar of the Court of Bankruptcy. If a legal title means a claim founded upon justice and legal enactments, then I am satisfied that these officers have a title as legal, moral, and equitable as any man can boast of for his possession, and that every member of the Legislature is called on—especially those who allowed the Bill to go out with this blemish, are called upon, in all righteousness to remedy the matter.The noble and learned Lord in reply to this said—If the officers rest their claims upon moral and equitable grounds, relief must be sought in the House Of Commons, where alone it can be given; and the Lord Chancellor would suggest that any officers or persons making any claim under the 30th section should present a petition which shall set out the nature of the several claims. There will be no difficulty in finding a Member to present it, and of course the officers will select one in whose ability they have confidence; and the Government will then propose that the petition he referred to a Select Committee, and of course if the report is in favour of a further provision being made for the officers, the House of Commons will make that provision.Thus the noble and learned Lord had disregarded altogether the original assurances given to the officers that their rights should be secured, and the intention repeatedly expressed that the provisions of the Act were sufficient for the purpose, instead of the full incomes which it was intended to continue to them; he had tried to induce them to receive an amount only equal to half their fees; he had told them that the House of Commons would refuse them compensation if they attempted by petition to obtain it; and then he invited them afterwards to go by petition to the House Of Commons, and promised them that the Government would have a Select Committee appointed to see whether further provision should be made. Remember this, that the Government was to select their Committee, and they were all aware that when the Government selected a Committee they would have the majority in it; and of course, with the best intentions, the Members would feel bound by the decision of the law officers, as to whether they were entitled to receive the full amount of their fees. The consequence would be a Report of the Committee against the officers. Would they then obtain any further provision from the House of Commons? They 1719 Would be laid prostrate at the feet of the noble and learned Lord; they would be entirely at his mercy, and, instead of half their fees, would probably be fortunate if they could obtain a quarter of the amount. But even this harbour of refuge, which the noble and learned Lord so kindly proposed to open to these officers, he immediately blocked up with stones. For the noble and learned Lord added this warning to his invitation to the officers to petition the House of Commons—The Lord, Chancellor, however, begs you to consider a point which has occurred to him, but Which he has not mentioned until now—namely, Whether the fact of an officer joining in a petition to the house of commons, if the result be unfavourable, may not affect his right to claim the benefit of the 22nd section.He (Lord Chelmsford) could not find what were the benefits of the 22nd section, except that they should hold their offices during good' behaviour, subject to dismissal by the Lord Chancellor for some sufficient grounds. Surely the noble and learned Lord did not mean to say that petitioning the House of Commons would be a ground of dismissal. Mr. Law stated in reply, that certainly the officers should not by his advice go to Parliament with a petition under this mysterious intimidation. He said—If I rightly understand this, I would offer no advice upon it.Thus the matter was brought nearly to a conclusion; but there was one little incident which formed the only bright spot in the scene, and which in fairness ought not to be omitted. The officers were apprehensive, that if they received that portion of their incomes which consisted of salary, it might prejudice their claim to the farther emoluments; but the noble and learned Lord assured them that the fact of receiving their salaries should not be allowed to prejudice their case. The noble and learned Lord also said—The Lord Chancellor begs that he may receive early intimation whether the clerks do or do not intend to adopt the course which the Lord Chancellor proposes to facilitate—namely, that of presenting a Petition to the house of commons, in order that their case may be considered, and their remuneration settled before a Select Committee.To which Mr. Law said, that should the officers petition under the present circumstances, it would not be by his advice. And so the matter rested. He appealed to every honest and impartial mind whether he had not proved in the first instance that the officers had originally an assurance that they should be secured in the full amount of their salaries and compensations; whe- 1720 ther the clauses to which he had directed their Lordships' attention were not framed with the view of giving them that benefit; and whether they were not assured, over and over again, that those clauses were amply sufficient for the purpose. And then, he asked, what was the conclusion from the whole—who had committed this error, whose fault was it that the intentions had not been carried out? Was it not the fault of the Government, and were they not bound without delay to introduce a declaratory Act to give these officers their rights, which had been so long withheld from them, and to which they were so justly entitled?
THE LORD CHANCELLOR
My Lords, I do Hot desire, having regard to my own character and position, that the noble and learned Lord should have used any different tone or exhibited any different manner from those he has displayed in bringing forward this subject; for it must be evident to all who have heard him, that if he pities the clerks much, he hates the Lord Chancellor more. The noble and learned Lord, in bringing forward this attack, has not shrunk from charging the Lord Chancellor even with falsehood; and yet he has actually been during several weeks, and even during the present week, in daily and confidential intercourse with me; yet not one word, not one intimation of an attack of this malignant description have I received from him; not even to the extent of enabling me, by inquiry, to ascertain the facts of the case, that I might come prepared even with an explanation of them. Such is the nature of the attack which your Lordships have heard. Your Lordships will collect from what passed on a previous occasion, what is the feeling that has given rise to it. My Lords, in the first place, it would be most unbecoming that I should ask any one to believe that I have no desire to oppress or to be an obstacle to these poor gentlemen. I was anxious to give them all I could possibly give them. It would have been a pleasure to me—whatever the noble and learned Lord may say—to satisfy to the full their just expectations. I say with sincerity, and I care not whether or not the noble and learned Lord will give me credit for it, but I sincerely say I heard of this difficulty with the deepest regret. Let me now possess the House with what it was not made acquainted by the noble and learned Lord—the real facts of the case and the difficulties that surrounded it. The very words of (he clause referred to 1721 are evidence in this matter. I had believed that the salaries of the clerks of the Insolvent Court were included in the Parliamentary Vote; and, accordingly, if your Lordships look to the clause, you will see that it proceeds upon the hypothesis that the Parliamentary Vote, as near as may be, will be sufficient to meet the amount of the salaries. The clause was framed entirely with that view. The noble and learned Lord says that I sent assurances to the clerks that their salaries would be fully paid. I desire to know by whom and when. Personal communication I had with none of them, except once, when a gentleman called upon me on behalf of the provisional assignee, who desired that his salary should be increased to the amount of his present emoluments—a request to which I acceded with great difficulty. It now appears, that although the clerks were paid by salaries, yet they were also in the habit of receiving fees which were carried to a fund and divided among them. I desire to know, if this fact was known to the noble and learned Lord when he was a member of the Committee, why he did not correct the expressions in this clause. I am told that the Committee were satisfied with the assurance of the late Lord Chancellor that the words were amply sufficient. It is impossible that any man, attending to his duty, and with a mind to understand, can read these words and come to the conclusion that the fees of the clerks were secured to them by it. Now let me give your Lordships the fact. The amount of the annual Vote by Parliament is usually £6,176, the sum of £1,200 interest on certain funds in possession of the Court being deducted from the total amount of the salaries, £7,376. I was desirous of securing the same Vote in future, and I was desirous of giving the officers of the late Insolvent Court a priority of claim upon that money, fearing that it might be held liable to the claims of the officers of the Bankruptcy Court. I thought it right those officers should be transferred, and that they should have that priority of claim, and therefore it was that this clause was framed in this manner. But when the claim came to me showing the amount required by these gentlemen, £19,476, it must have been palpable to any person of ordinary understanding—to every man whose mind is in a state to be free from anger and an inclination to malice—it must have been palpable to every one that the amount of £19,476 could never be paid out of the money voted by Parliament. It is idle to 1722 talk of the words "as near as may be" as charging the bankruptcy funds; they only dedicate the Parliamentary Vote to that purpose. In the next place, the noble and learned Lord said that a return was moved for, and he has actually so represented the matter to the House that those who have listened to him must believe that it was moved for the purposes of my Bill. The fact is, that the Bill had been prepared and laid upon the table of Parliament before the return was made, and I never knew of the existence of the return. It was moved for by Mr. Hunt, with whom I have had no communication. Why or wherefore he moved for it I do not know, but certainly the Bill had been prepared before the return was in existence. The next perversion of real facts and truth—the next perversion of the facts of the case of which the noble and learned Lord has been guilty ["Order! Order!"]—was in misrepresenting what took place in the House of Commons. He actually represented to your Lordships that I had undertaken to alter the form of the clause upon the Report.
§ LORD CHELMSFORD
I beg pardon, I said, "to consider it," and I read Mr. Rolt's note, "to be considered."
THE LORD CHANCELLOR
I have fortunately here a record of what took place in Hansard, and any noble Lord who favours me with his attention will perceive in what really did take place the strongest confirmation that I was entirely ignorant of the fact that the Parliamentary fund would not be sufficient to meet the salaries, and I was astonished at the nature of the application then made. I find in Hansard —Upon clause 36,Mr. MALINS proposed to omit the words, 'as near as may be out of the same funds and payable in the same manner in all respects as if this Act had not been passed,' and to substitute these words, 'the same shall be paid out of the funds standing to the credit of the Chief Registrar's account.'The ATTORNEY GENERAL said, the hon. and learned Gentleman had not explained the reason why he proposed the alteration with regard to the mode of payment of the messengers and brokers of the Insolvent Debtors' Court. He hoped the Committee would allow the clause to pass in its present shape, upon the understanding that it should be open to alteration upon bringing up the Report." [3 Hansard, clxi., 519.]
And that the noble and learned Lord has represented as an engagement by the Attorney General to consider the matter, and to bring it again before the House upon the Report. Why, the language speaks for itself. I could not understand why Mr. Malins should propose to substitute 1723 those words for the original words. I could not then state the particular reason I had for keeping the existing words; but I hare no difficulty in doing so now. I was apprehensive that the bankruptcy fund would be insufficient for the ordinary purposes of bankruptcy, especially when these additional offices were added, unless I secured the continuance of the Parliamentary Vote; and I thought that if at any future time the bankruptcy fund should not stand in need of the Vote, the House of Commons need not be asked to vote the money; but as I then believed that the bankruptcy fund would be insufficient, I wished to secure to the clerks a priority of claim upon that money. That was the feeling with which these words were originally inserted. Your Lordships have been told by the noble and learned Lord with so much violence that Mr. Malins was fully informed upon this subject, and brought it before the House of Commons. Now, Mr. Malins said not one word about it. He never said, as he would have said had he been fully informed, "You are proposing to pay £15,000 or £18,000 a year out of a Vote that does not exceed £6,000." All Mr. Malins does is to substitute the words without stating any reason; and I find in the same record this statement, which I have no doubt is correct—The ATTORNEY GENERAL said, that the hon. and learned Gentleman had not explained the reasons why he proposed the alteration.From this your Lordships will see that the reasons were not stated, and the whole matter left my mind without any knowledge, or means of knowledge, that the particular fund which I endeavoured to secure for the clerks would not be sufficient for the purpose intended. The next insinuation of the noble and learned Lord is one which positively I feel ashamed of hearing made in your Lordships' House—namely, that the Lord Chancellor, in directing a case to be laid before the law officers, had actually taken pains to prevent the clause in the statute from being correctly stated. Does the noble and learned Lord imagine that the Lord Chancellor would have the preparation of the case? Dues he not know that it was the Solicitor to the Treasury who prepared the case? Does he believe for a moment that there is any man so base who could entertain the conception that was not in his own mind conscious of the possibility of the thing being done—who could entertain the conception that there is any man so base as to garble and mangle an 1724 Act of Parliament to secure a result in which he had no interest? It is simply disgraceful to be stated that the thing is possible to be done by a noble and learned Lord, but the disgrace, I think, hangs on the head of the man who believes the thing possible; and the contempt I feel for the insinuation it is scarcely possible to find words to express. What was the Lord Chancellor to have done but what he has done? Here was an Act of Parliament passed, and the Lord Chancellor was called on to find £19,000 and odd, instead of having to provide, as he had thought, between £6,000 and £7,000. He is called on to provide money under the powers of the Act. What would the Lord Chancellor do under the circumstances, except have a case submitted to the law officers of the Crown? The noble and learned Lord has made another attack, for he says that a doubt has been suggested about the officers being transferred. What the noble and learned Lord has said on this point I will attribute rather to his ignorance of the subject than to his want of candour. What he did say was, that by the Act of Parliament the officers were transferred, subject to another clause which he told you nothing about—namely, that the Insolvent Debtors' Court should continue to discharge its functions (but it cannot discharge functions without officers) till the Lord Chancellor should have transferred those functions. When the word "transferred" was used in that letter, which, to my surprise, has been referred to—I certainly did not take the precaution of marking my letter "Private" or "Confidential;" but, as will appear from the language which I used, I wrote unreservedly, and, as I thought, in confidence, to a gentleman who was anxious in the cause of the clerks, and without the least notion that my letter would be subjected to this description of criticism. The difficulty arises in this way—whether the clerks could be considered transferred till the Court is closed. While the Court continues open, there are certain fees being received by the clerks, and the doubt arises whether the clerks really are transferred till the Lord Chancellor closes the Court. On that ground alone arises the question as to the meaning of the word "transferred." I found myself in a situation of great embarrassment. The noble and learned Lord has directed attention to some funds transferred from the Insolvent Debtors' Court, and read you part of a sentence which 1725 gives to the Lord Chancellor a power of applying a portion of those funds towards defraying the salaries of clerks and others transferred; but he did not tell you that that was only one of the purposes to which those funds are to be applied. First, there is a fund liable to the creditors to whom they belong. It is a fund which consisted, in a great measure, of unclaimed dividends. Then a power of application is given to the Lord Chancellor in respect to the salaries of the clerks, and in respect of payments towards defraying the expenses incidental to pauper prisoners, and for indemnifying professional assignees. The last is a very important matter. The Lord Chancellor would only have the power of appropriating a part of that income towards the payment of salaries. There has been a complaint as to the difficulty experienced in getting money, to which reference has been made; but that delay is not attributable to me. The chief registrar wrote again and again to the Treasury before he succeeded in getting the remaining instalment of the fund. The case is still further complicated by the fact that many of these gentlemen have sent in two statements of their salaries, and that the sums set forth in the last of these statements are much higher than those set out in the first. From the return made on the 22nd of March, 1861, it appeared in the case of one of the clerks that the pro fits of his office for the last seven years were £715 15s. 2d. The return made on the 11th of October, 1861, shows those profits to have risen to £899 16s. 7d. In another case, the first return was £389; the second £566: in another the first return gave the profits at £599; the return of October makes them £782. If I had to deal with the original amount, probably I might have approximated to that amount; but I was not left to deal with the matter on the first return. What I did, therefore, was to inform Mr. Law, in a courteous but decided manner, that if the claim in question was put forward as a matter of right, and that the Government were advised that it was not a matter of right, all I could do was to expedite in the quickest manner the means of deciding the question. And, my Lords, as the law officers could not advise the Government to accept this as a clear legal demand, how could I answer it except in the manner I did? In the spirit of fairness, and even going beyond what I ought to have done, I told Mr. Law that the law officers of the Crown had expressed an opinion that the officers of the Insolvent Court had a strong moral claim to favour 1726 able consideration. I beg you to pause for a moment and ask, could I have done more? I then went on to say:—"The Lord Chancellor had no opportunity of calling the attention of the Government to the subject till the day before yesterday." I gave a promise that I would take the first opportunity of calling the attention of the Government to the subject. I did call the attention of the Government to the matter, and the Government agreed and decided upon the course to be adopted, subject always to this—that Mr. Law, on behalf of the clerks, should be content to rest the question on a claim founded upon moral and equitable, and not upon legal grounds. I had no wish to deprive them of the notion that they had a legal title, but I maintain that I had a right fairly to say—"If you assert that you have legal rights, agree as to a tribunal and have this question determined. But if you are content with the opinion which I myself entertain, and which the law officers have expressed, that you have not a legal title, then bring forward your claim on moral and equitable grounds; and, to encourage and assist you, I frankly tell you the law officers say that you have a strong moral claim to favourable consideration." I went on to tell Mr. Law what the Government meant to do—Without presuming in any way to dictate, the Lord Chanceller would submit to you the following mode of proceeding:—The Lord Chancellor assumes that you are satisfied the officers have no legal title to remuneration equal to that of which they were in possession at and before the passing of the Act. If that is not so, the officers must, of course, take legal measures for trying the question, and a mode of proceeding for that purpose must be agreed on. But if the officers rest their claim on moral and equitable grounds, relief must be sought in the House of Commons." Now, I should like to know where else it could be sought. If it be sought from me personally, let me ask, have your Lordships power to give any portion of the public money? A previous letter of mine has been referred to, in which I stated that I was afraid the House would not give compensation. Let any one who knows the house of commons, and has heard the opinions there expressed, particularly since compensations were given under the Probate Act, tell your Lordships whether he thinks they would be likely to give compensations in the present instance. My letter proceeds to say—The Lord Chancellor would suggest a petition by all the officers and persons making any claim under the 30th section, which petition shall state the nature of the several claims, and the grounds on which they are rested. There will be 1727 no difficulty in finding a Member to present it. Of course the officers will select one in whose ability and energy they have confidence; the Government will then propose that the petition be referred to a Select Committee. Of course, if that report be in favour of a public provision being made for the officers, the House of Commons will make that provision.I made this proposal with the object of giving them an opportunity of doing everything they could desire. I am sure that any one distinguished for candour and impartiality will believe that I should be as ready to do what lay in my power as any of your Lordships. Now, why did I propose the Committee? I did so because I thought there were a great number of circumstances which could be proved by evidence before a Committees and which might forward and promote the claims of the clerks. We have been told—I know not with what truth—that assurances were given to those gentlemen that the whole of their emoluments were absolutely secured to them. If they went before a Committee, they would have had an opportunity of proving that. The late Lord Chancellor told your Lordships that there can be no doubt of their being entitled to their emoluments. Would not that be a very cogent and important fact to be brought before a Committee of the House of Commons? Now, I desire any noble Lord to suggest a better or more Parliamentary course—one more in accordance with good faith—than that which I have suggested. Is it not surprising that after all that has been done, with the most perfect sincerity on my part, and with a view of redeeming the pledge which I gave to this House—after my stating that nothing which occurred since the passing of that Act has given me so much pain—or, indeed, any pain—as finding the position in which these gentlemen are placed—is it not surprising that I should in return be assailed, denounced, and held up to obloquy and ridicule on the part of your Lordships, no sort of scruples being used with regard to statements or to insinuations by the noble and learned Lord who has thought it fit and becoming to bring them forward? I leave the decision to the mind of every honourable man. If any noble Lord will point out what I could have done more I shall be obliged to him, and, in case your Lordships concur in opinion with him, I shall submit to the reproach that I might have done more than I did. Remember that it is a very difficult thing, under such circumstances, to get anything done. I 1728 can only assure you that I have spared no effort, and I adhere to the opinion that the course I suggested was the best and wisest. Notwithstanding the language used by their self-constituted adviser, and notwithstanding the course adopted by Mr. Commissioner Law—which is unworthy, as far as I am concerned, that I should stop to comment on it—I can only say in sincerity that my feeling with regard to these gentlemen, and my disposition to go to the House and do what I can in their favour, remain unaltered. The singularity of the advice given to them your Lordships will best appreciate when I tell you that, after I succeeded in getting from the Treasury a sum of money, and after the checks were prepared to be given to those gentlemen, not one of them would make application for their money. This gave me great and serious pain, and, after the checks had for some time been lying unclaimed, I, unsolicited, and purely from a feeling of anxiety, caused this letter to be written to Mr. Law—The Lord Chancellor is much vexed at finding that the clerks of the Insolvent Debtors' Court refuse to receive the salaries lying for them, under the erroneous notion that it may prejudice their claims under the Act of 1861. The Lord Chancellor can only repeat that it shall not in any manner whatever prejudice their case, nor shall it be used in any way to their disadvantage. The Lord Chancellor regrets that he cannot carry back the provisional augmented salaries which he proposes to give to those clerks who now enter upon active duty in the Court of Bankruptcy further than the 11th of January. Such salaries will be purely provisional, and the receipt of them will not in any manner affect the ultimate rights of officers. The Lord Chancellor begs that he may receive an early intimation whether the clerks do or do not intend to adopt the course which the Lord Chancellor proposes to facilitate—namely, that of presenting a Petition to the house of commons, in order that their case may be considered, and their remuneration settled before a Select Committee.It has been maliciously represented to your Lordships as if that was a threat to deter them, and a part of the clause was read so as to make it appear as if it only contained a direction that the clerks shall hold office during good behaviour, subject to dismissal by the Lord Chancellor. Why, my Lords, the latter part of the clause provides that—Nothing herein contained shall be deemed to deprive any person now holding office in the Insolvent Debtors' Court of any benefit to which he may now be or may hereafter become entitled by virtue of the Acts;and they are mentioned, relative to superannuation allowances. Now, if these gentlemen had gone with their claims 1729 before the House of commons, and had been left with diminished salaries, it might have affected their claim to superannuation allowances—allowances which would be claimed upon the right as it stood at the time of passing the Act. Two gentlemen have claimed these superannuation allowances, and have withdrawn their claims under the 36th section; and the suggestion which was made was well worthy their consideration, and was intended to be beneficial to them, and not to operate as a threat. My Lords, this is the whole of the case as it actually exists. I do not know a single particular that I have to regret, except that the clause should have been originally worded under a misconstruction; and the only thing that has been said correctly is that it was the duty of the Attorney General in bringing in the Bill to have acquired the most perfect information upon the subject. I admit that; but I think your Lordships will agree with me, that if you introduce a measure to alter the salaries and emoluments of any set of officers, and they are perfectly passive, do nothing, make no representation or no application to the house of commons, any one would be justified in concluding that they had no reason to complain of their position under the Bill. They may be entitled to say that they misconstrued the Act, and that they had believed that they were provided for. I do not, in the smallest degree, wish to diminish their moral and equitable titles to a favourable consideration; but if they had brought forward their claim in the house of commons, what would have been done? Do you suppose that the House of Commons would have given them for the rest of their lives salaries equal to their then existing emoluments? The House of Commons would have required the taking of an average, and I am very much mistaken if it would have given them full salaries And now observe in addition to that—what you have not yet been told—that the position of these gentlemen has been greatly altered. Many of them—I have not perfect information—held office during plea sure. By the 12th section of this Act it is provided that they shall hold office during good behaviour. Their offices have been converted into freeholds for life, though of smaller annual value; but a small freehold weighs more in the balance than fees which are contingent, uncertain, and precarious, although in particular years they may amount to a larger sum. All these things have to be considered, and where can they 1730 be properly considered except before the tribunal which can not only decide upon the case, but apply the remedy? Is the case likely to be forwarded by what we have heard to-night? Can any one suggest a better mode of proceeding than that which has already been suggested to these gentlemen? I therefore leave this case in the hands of your Lordships. It has been to me a subject of deep regret that this scene should have occurred to-night; but I appeal to your Lordships whether what you have heard has been justified in the smallest degree; I appeal to you to determine whether it was possible for the Lord Chancellor, acting from those feelings which alone ought to animate him—an earnest desire to do the utmost that law, and reason, and good faith, and equity, and good-nature, and a spirit of kindness could dictate towards these gentlemen—to take any other course than that which I adopted. I do not want to be tried merely by the standard of whether I have done that which I was compelled to do, but I desire all those who hear me, with candid and upright minds to tell me what more I could have done under these painful circumstances than that which I have manifested my willingness and anxiety to do. If any one can suggest any course which can be adopted, I shall forget all the irritation which this event is likely to produce, and shall apply myself with singleness of mind to do the utmost in my power to make to these gentlemen the best possible return that I am able to make for the loss of income which they are represented to have sustained.
§ THE EARL OF DERBY
My Lords, bearing in mind the warning which I received the other night from the noble and learned Lord on the Woolsack, I refrained, and my Friends near me, from interrupting the noble and learned Lord, even when he used language of a nature which your Lordships are certainly not accustomed to hear in this place. My Lords, I can easily understand that the noble and learned Lord felt considerable irritation at the charges that were brought against him, the representations which were made, and the statements that were supported by evidence, in the very powerful speech of my noble and learned Friend who sits near me (Lord Chelmsford). But the noble and learned Lord must not be surprised if, when a person holding a high station indulges himself by, in the mildest and calmest manner, making use of expressions at- 1731 tributing to noble Lords malignant feelings—feelings of rankling irritation and malignancy—and ascribing every kind of injurious motives of which we are not accustomed to hear in this House, and which, I believe, are not attributed in the other House of Parliament—if, I say, a noble and learned Lord who can make use of such expressions in this House, and who can speak of a gentleman as honourable and; as highly respected as Mr. Commissioner Law as a person who is utterly unworthy of his notice—
§ THE EARL OF DERBY
The words which I understood the noble and learned Lord to make use of were, that Mr. Commissioner Law was a person unworthy of his notice.
THE LORD CHANCELLOR
I said the manner in which that correspondence had been used was unworthy of any further notice.
§ THE EARL OF DERBY
I certainly rejoice to hear this correction of the noble and learned Lord; but so he was understood by those who sat near me, who certainly commented on it, at the time as very strong language. But I was about to say, and I repeat, that the noble and learned Lord, if he indulges in the habit—and that not under the influence of violent feeling, but in the calmest and most placid manner—of attributing most sordid motives to those associated with him in this House, he cannot be surprised that such a course should lead to some corresponding irritation; nor must he be surprised if his own conduct is spoken of in hard words, and his own motives called in question. Now, the noble and learned Lord on the Woolsack began by complaining that my noble and learned Friend near me (Lord Chelmsford) had sat with, him during the last three weeks, and had had confidential communication with him during that time, without giving him any intimation of what be has brought forward to-night. I do not know what was the confidential communication between the noble and learned Lords. I presume that in the discharge of their official and legal duties they have been in constant: and frequent communication; but I apprehend that such an association does not prevent either from making comments on the other's political conduct, or bringing forward in the debates of the 1732 House the arguments by which he can substantiate to the country that injustice has been done to many of our fellow-subjects. The noble and learned Lord, however, seems to have an extraordinary idea of what constitutes confidential intercourse and communications. If the correspondence with Mr. Law—a correspondence carried on by the Lord Chancellor's Secretary on the one hand, speaking in the name of the Lord Chancellor, and Mr. Law on the other, in reference to the claims of public officers appointed by another public officer—if that correspondence so conducted is a confidential correspondence, which is not to be made use of, I certainly know not what is the meaning of confidential communications, or what can be correspondence of a public character. I shall not pursue any of the irritating topics which have been introduced, further than to assure the noble and learned Lord—and I do so without the slightest feeling of anger—that if he desires not to excite unpleasant feelings in this House, he must not make use of language which appears to intimate his belief that he is infinitely superior to all whom he is addressing, nor 'attribute to other Members of the House motives that, to say the least, are not Parliamentary. I must do the noble and learned Lord the justice to say that he has argued the case, apart from the personal question, with the most perfect calmness; and I give him the credit of believing that he is actuated by a desire to do justice to these gentlemen whose case is before your Lordships. At the same time, I must confess, as he has invited any noble Lord to tell him what further he could have done than he has done, I feel bound to say that I think the course he has taken is not that which, on the part of the Government, he might be expected to take. Now, what are the circumstances of the case that are admitted on all hands, setting aside anything that can be matter of controversy? A Bill is introduced on the part of the Government by the noble and learned Lord on the Woolsack holding at the time the high and responsible situation of Her Majesty's Attorney General. It dealt with a most important question, with a most extensive subject, and one which no man was more competent to handle than the noble and learned Lord, who deserves a great amount of credit for dealing with a subject so complicated and important. In the course of these proceedings it was necessary—not, mind, to abolish certain offices—but to do away with 1733 a certain Court, and to transfer the officers of that Court to be the officers of another Court, with which, in point of fact, it was incorporated—the Court of Bankruptcy. I press this point, because in a further portion of the noble and learned Lord's speech he argued as if the claim of those officers were claims for loss of offices; whereas they are claims for a continuance of salaries and other emoluments, as they were received at the time of the passing of the Act—not on the abolition of their offices, but on the transfer from one Court to the other, and their continued employment in the new offices; and that I believe is one of the questions upon which the noble and learned Lord entertains no doubt, because it is one on which the law officers of the Crown have given an opinion as to the legal construction of the Act; that the actual construction of the Act according to the law officers is that those officers were transfer red. Well, now, surely, the noble and learned Lord never means to argue, that if, for the purpose of facilitating the transaction of public business, some of those officers who remained discharged the duties of the Court that was abolished, finishing up the remaining business of that Court, and it was impossible for them suddenly and in a body to be transferred from one Court to another, for their services were required in the business of the former Court—it is impossible that the noble and learned Lord can contend that they were not entitled to the full remuneration they would have received from the time the transfer might be effected. It was the intention of the Act that those gentlemen should not be sufferers by their transfer from one Court to another. It was intended that they should receive—continue to receive—the full amount of their salaries, allowances, and remunerations upon that transfer, as they had received them at the period of the passing of that Act. And then the question is whether the words of the enactment are such as bear out that proposition and object of the Government. The noble and learned Lord who as the Attorney General introduced the Bill, says—and of course he says it truly—he admits fairly and honestly—that there was neglect on his part in not making himself thoroughly acquainted with the measure he was about to introduce; but I must be permitted to say, with an acknowledgment of the fairness and candour of the noble and learned Lord in making that admission, that it is a most extraordinary course for the law officers of 1734 the Crown to undertake to abolish a Court and transfer the officers to another Court, and to say they really were ignorant how the officers of the Court which was to be abolished were paid. That is a mode of conducting public business which if the noble and learned Lord had not put it forward as his vindication, I could not have believed was a manner in which so important an Act as that for the amendment of the law of bankruptcy could have been introduced. But he says he was not aware that those officers were not paid wholly by salary. That, again, is a most extraordinary case, because my hon. and learned Friend who sits near me (Lord Chelmsford) has pointed to a paper laid on the table of the House of Commons on the subject. I find it was moved for on the 12th February, 1861—and that is the day after the introduction of the Bill of the noble and learned Lord. Upon the introduction of the Bill, though the Attorney General did not think it necessary to inquire into the subject, the House of Commons did, and they ordered a Return how the officers to be dealt with had been paid, and what proportion of their income was in salary and what in fees. On the 12th of February this Return was called for. It could not but have attracted the attention of the Attorney General when a Motion was made for such a Return. It was laid on the table of the House of Commons on the 22nd of March, 1861, while the Bill was still under consideration; and that Return, which the Attorney General admitted was necessary in order to the inquiry it the house of commons, did contain a full and particular account of every individual, and of the amount of every salary, and the average amount of fees for a period of seven years. There is no plea on the part of the Government for being ignorant of the circumstances connected with this paper showing the particular circumstances of each case. One word with regard to that which has been commented on by the noble and learned Lord, the difference between the claims of the officers under the Act and the Return I hold in my hand. The Act declares that the "officers shall severally continue to receive the full amount of the salary, remunerations, allowances, and compensations"—the words are as large, as extensive as possible—" which they now respectively receive." That was the enactment. The Motion, made by an independent Member of the House of Commons, was for a Return of 1735 Salary and Emoluments they had been receiving on the average of the last seven years; and then the noble and learned Lord, who is very free in making charges and insinuations, although he himself is so keenly sensitive on that score, makes a charge against these officers, that for the purpose of obtaining an undue allowance they had falsified their incomes.
§ THE EARL OF DERBY
I hope the noble and learned Lord will imitate the forbearance I used while he was speaking. The discrepancy arises from the fact that the Parliamentary Return gives the average emoluments for seven years, while the other Return relates to the year before the passing of the Act; and I must say that because they make two true Returns the noble and learned Lord is not justified in saying that they made a Return to swell the amount they have to receive. Then the question is, first of all, do the words of the Act carry out the intentions of Parliament? and next, if they do not, who is responsible for their not carrying into effect the alleged intentions of Government, and certainly the intentions of Parliament? I am at a loss to understand, certainly, upon what ground the law officers of the Crown have decided that that 30th clause does not give to the officers of the late Insolvent Court the full amount which they claim—namely, the full amount of their salary and emoluments. We have not the reasons of the law officers. We only know they have asserted this; and the noble and learned Lord has been kind enough to say that it was impossible that, however that clause might be strained by my noble and learned Friend—it was impossible for any one possessed of common sense, and certainly not for any one of a legal mind, to read that clause and put upon it the construction of my noble and learned Friend. Whether unhappily or happily for me, I am not a lawyer and I do not possess a legal mind; but on that occasion I sat in Committee with a number of lawyers, including more than one ex-Chancellor and the then Chancellor—who I presume may be considered to have legal minds, or at all events were capable of judging of the construction of a clause—and all those high authorities were perfectly satisfied, and more than satisfied, because they had the assurance of the good faith of the Government, that the clause did carry out that which was claimed by the officers of the Insolvent Court.
1736 Now, I am willing to give the noble and learned Lord on the Woolsack credit for wishing to do all that he can to remedy the injustice which has been so unintentionally done to these gentlemen, but he said that Parliament did not make a sufficient provision to meet their claims, inasmuch as it had only voted a sum of £6,000, and consequently it was utterly impossible to pay £19,000, the amount of the claims, out of that provision. I do not know how the noble and learned Lord makes the amount of the claims £19,000; for, according to the correspondence which passed with Mr. Law on the subject, the sum claimed amounted only in the whole to £14,000.
THE LORD CHANCELLOR
said, the claims on the whole were about £19,000; deducting the Government grant, they might be roughly stated at £14,000.
§ THE EARL OF DERBY
Well, admitting the noble and learned Lord to be correct in his statement as to the amount, I do not think that the actual sum claimed is material, except as it affects the question of the intentions of the Legislature. If I recollect rightly, Commissioner Law states that the £14,000 is subject to very considerable deductions, and that £8,000 or £9,000 is the utmost required to meet the present case. However that may be, the noble and learned Lord says Parliament granted only a sum of £6,000, which was clearly inadequate to fulfil the expectations of the Act. But I very much doubt whether it was intended that the grant should satisfy the claims of these officers, because that sum was to be applied towards payment of the charges of the Insolvent Court, which were to be provided by Parliament, and the language of the 26th clause implies that the charges for which the Vote was taken were the salaries and the salaries only. If the payment was intended to be made only towards salaries, I want to know from what fund it was contemplated the other charges would be met—namely, for the fees, allowances, and emoluments of the officers transferred from one Court to the other. It is quite clear that Parliament contemplated the insufficiency of funds; and in order to meet the difficulty Mr. Malins brought forward the Amendment to which allusion has been made, providing a specific fund out of which the deficiency should be supplied. The noble and learned Lord says that my noble and learned Friend (Lord Chelmsford) has represented too strongly the language held upon the withdrawal of that 1737 Amendment. We all know that Hansard does not give very accurately incidental language used in Committee; and, as to the understanding that the matter was to remain open for consideration, I very much prefer the pencil-note of a Member of the house of commons, and that Member a lawyer, made at the moment, to the necessarily meagre account which must appear in Hansard. Assume that the fund is at present insufficient; assume that the Lord Chancellor has no power of proceeding beyond the funds at his disposal; but assume, also, that the parties who are interested have not been neglectful of their own case, and that they were informed by those whom they had the right to trust, privately and publicly, in Parliament and out of Parliament, that their claims were fully provided for in the Act. When it is admitted that their case went before a Committee of your Lordships' House with all the most eminent lawyers serving upon it, and that the Committee were satisfied that their claims would be met to the full extent—when it is admitted that the plain, manifest, and intelligible construction of the Act by any one understanding the English language would render unnecessary the assurances of the Government, and that these officers had reason to believe no questions would arise to such an extent that the opposite conclusion would be the height of absurdity, are they to be told that by some means or other, for which they are not accountable, they are not entitled to receive that which Parliament intended they should receive, and that they have no remedy except throwing themselves upon the mercy of Parliament, and appealing, not for their rights, but for compensation for offices which have never been abolished? By way of example of the manner in which the incomes of these gentlemen were made up I will mention the case of the Provisional Assignee of the late Insolvent Court. It appears that his salary amounted to only £100 a year—he had ten clerks under him; but his fees amounted to about £1,400. Now, I ask, how was it possible that any human being could suppose it was the intention of the Legislature to continue to that officer his salary of £100 only, and to take no notice whatever of his fees and emoluments? Now, the officers had in their favour the declarations of those they were taught to trust—declarations made to them both publicly and privately—that their case had been fully provided for; they had also the assurance of the Govern- 1738 ment; nevertheless they are now told—no provision having been made in the Act to meet their claims—that they are not entitled to that to which it is admitted they have an equitable claim, and that therefore they must throw themselves on the mercy of the House of Commons; that, in fact, they must apply as petitioners, not for their rights, but for compensation for offices which have never been abolished. I can quite understand the noble and learned Lord saying, that if these gentlemen stood upon their strict legal rights alone, they must try the question at law. But in what manner these unfortunate men are to try a question at law against her Majesty's Government I am unable to suggest or to suppose. If the noble and learned Lord, in asking them to admit they had no legal rights, said, "We grant you have a moral and an equitable claim, that we will introduce a measure into Parliament with the object of giving that which we have led you to expect," I do not understand that these gentlemen would make any difficulty in waiving their legal rights, provided they had any certainty of receiving substantial justice. But if they are first to abandon their legal claim and then petition Parliament, and take their chance of what Parliament will do, that would be very foolish and unwise, more especially after the assurance of the noble and learned Lord, that if they applied for compensation to the house of commons, he was quite sure they would not get it. With such encouragement, it would be unwise to abandon their legal claim, and rest their appeal solely on the strong moral and equitable claim which has been recognised by the law officers of the Crown. The noble and learned Lord asks, what could the Government have done for them? I will tell the Lord Chancellor what he might have done. He might have gone to his colleagues and said, "I find, by a construction put upon the Act of last Session which was never intended, and for which I and you, although I chiefly, are responsible, serious loss, severe injury, and great pecuniary and personal inconvenience have been entailed upon a number of exemplary men, who for twenty, twenty-five, thirty, and forty years have served the public for small remuneration compared with the services rendered." The noble Lord might have said to his colleagues, "It is a case of grievous hardship, but it is a case where these persons have no legal claim for the full amount which they claim, though it is 1739 by our act, by our ignorance of the real facts of the case, by our mode of framing the clause, that they are placed in this painful and embarrassing position. It is for our honour"—had I been the Lord Chancellor I should have said, "it is more especially for my personal honour that this grievance should, without hesitation, be redressed." Instead of telling these gentlemen that they may go down to the House and petition, and take their chance of what may be done, the course which the Government ought to pursue, and the course which I hope the Government will pursue, after what has taken place (setting aside any irritation or personal feeling, which I deeply regret should have arisen, and looking only to the merits of this case (is to bring in a declaratory Bill by which justice may be done. If the Government were to go down to the House of Commons with a declaratory Bill, or a Bill to remedy the defect introduced inadvertently into the other Bill, and if they were to say to the house of commons, "These gentlemen are suffering from no fault of their own, but from the inadvertent manner in which we drew up the clauses of the former Bill, and we appeal to you to remedy our inadvertency," I feel as confident as that I am now addressing your Lordships in the cause of justice and equity, that the House of Commons would at once acknowledge, if not the strict legal right, certainly the moral and equitable claim, of these gentlemen, and would take such steps as would do them full justice.
§ EARL GRANVILLE
My Lords, I am not about to enter into the details of this question, but I must say that I never saw a case in which the lecture delivered by the noble Earl opposite to my noble and learned Friend on the Woolsack, was more undeserved. This conversation was begun by a speech from the noble and learned Lord (Lord Chelmsford), which I will not call "violent" with the Lord Chancellor, nor can I call it "powerful" with the noble Earl opposite; but it was a speech full of details and quotations from beginning to end, which it was not always very easy to understand, and which was delivered in the presence of a much fuller House than is usual, as though noble Lords had come down specially for the purpose of hearing it; it seemed tome to be marked by a tone of banter and sneer which, had it been applied to myself, I should have considered singularly offensive. I certainly did not feel as much indignation as I should have 1740 felt had I not been perfectly certain that the answer of my noble and learned Friend on the Woolsack to the question in hand would be thorough and completely conclusive. Not only was the speech of the noble and learned Lord (Lord Chelmsford) delivered in a tone which is most undesirable in this House, but it assumed throughout a degree of hostility on the part of the noble and learned Lord on the Woolsack towards these officers and clerks which I know does not in the slightest degree exist. The noble and learned Lord opposite went so far as to accuse the Lord Chancellor of garbling the case submitted to the law officers, and he described the manner in which the law officers gave their opinions without referring to the clause of the Act of Parliament, which really one would not have expected to hear from an ex-Chancellor and an ex-law officer. The noble Earl (the Earl of Derby) followed, too, a course which is not usual in this House. After the Lord Chancellor had acknowledged in the most candid manner—going, as I think, even beyond the necessity of the case—that there had been an error in the wording of the clause, on account of imperfect information, and had expressed his regret for it, the noble Earl still persevered in going into the details of the question, criticising all that had been done by my noble and learned Friend. I do not intend to follow him into these arguments, but I wish it to be distinctly understood that the Lord Chancellor is not to be made personally responsible for the course which the Government authorized him to take. The noble Earl gave a very eloquent description of what he would have said to his colleagues had be been in the Lord Chancellor's place. Now, it so happens that that is in fact very much the sum of what the noble and learned Lord did say. Instead of that spirit of hostility against these persons which has been attributed to him, my noble and learned Friend's language has always been that he regretted that a mistake should have been made in the wording of the clause, and he has always been animated by a most sincere desire that full justice should be done to these gentlemen. It is quite clear that these gentlemen have either a legal right or they have not. If they have a legal right, the case is perfectly simple, and their remedy is in their own hands: but if they have not—and I think, after the conversation of to-night, that is the opinion most persons will form,—their claim then rests upon a moral and equitable 1741 ground. I can see no reason whatever for departing from the course which the Lord Chancellor has announced. My noble and learned Friend has already given a reason for not bringing in a declaratory Bill, as suggested by the noble Earl opposite. He has explained why it was not thought for the interests of the clerks that a Bill should be brought in crudely, without giving the House of Commons an opportunity of examining into the merits of the question, and without any opportunity being afforded of making out that Parliamentary case which the noble and learned Lord, from his experience of the other House, must know is so necessary before any remedy can be applied. It is with these feelings that the Government have pursued the course which they authorized the Lord Chancellor to announce to the officers and clerks, and I trust that this debate—though certain things have been said in it which I much regret—will not tend to create any prejudice that might interfere with a fair and equitable consideration of the matter in hand.
§ LORD CRANWORTH
said, there was much in the debate to which he had listened with the greatest possible pain, Any personal disputes, or anything which could lead to personal acrimony between two noble Peers who had to sit together day by day in the administration of justice, was very much to be deplored. When his noble and learned Friend opposite (Lord Chelmsford) first introduced the question, he concurred with him entirely that it was the bounden duty of the Government, for their own credit, and for the credit of the Legislature, to lose no time in setting the matter to rights. He hoped that no time would be lost in adopting whatever course might be best suited to lead to the application of a remedy for the position in which these persons were placed, whether it might be by referring the matter to a Select Committee of the house of commons, or any other course. It certainly would be somewhat of a scandal on the Legislature if there should be any hesitation in setting right a mistake which had occurred from the over-confidence of these persons in all the law Lords, and all the other noble Lords who were on their Lord ships Committee. He believed it was the noble Earl opposite (the Earl of Derby) who first called attention to the point in Committee, and mentioned that doubts had been suggested whether the language of the clause was sufficiently strong; and he recollected that the late Lord Chan- 1742 cellor then replied that the matter had been thoroughly considered, and that there was no doubt that the words were quite strong enough.
§ EARL RUSSELL
My Lords, I rise merely for the purpose of observing, in answer to the appeal of the noble and learned Lord opposite (Lord Chelmsford), that these acts are the acts of the Government—they are acts for which the Government are responsible, and it is unjust to charge my noble and learned Friend the Lord Chancellor with particular acts as separate from the Government of which he is a Member, when he is supposed or represented to have acted harshly. Now I beg you to consider what was the question which the Government had before them. The late Lord Chancellor and several law Lords had agreed to a clause that seemed to grant to these clerks compensation for the whole of their fees; but if the Treasury had been asked to pay the compensation, the proper fund being insufficient, the Treasury would have required legal authority for the payment. If the law officers of the Crown said that no such charge was created by the clause, would the Treasury have been justified in paying it? Another course to be considered was, whether a Bill should be brought in in order to give the clerks the full amount of their salary. The Government thought that that course would not be successful, and that the clerks would not obtain by it what they expected and asked. Another course then remained—namely, that the clerks should state their case, state their grievances, state the assurances which they had received, and the expectation they had entertained, on the matter being brought before a Select Committee; and although the Government could not say, after the opinion of the law officers of the Crown, that this is a legal claim, they nevertheless could have said that they considered it a moral and equitable claim, and have asked the House to consider the circumstances with a view to satisfy that moral claim. The noble and learned Lord assumed that this Committee would be called upon to consider the question of law; but that is not so, the Committee would not have to enter on the question of law at all; for if this were a legal claim, the matter could have been sent to a legal tribunal; but if the clerks decline that course, and consider this a moral and equitable claim, then it becomes a question for consideration by a Committee of the house of commons, and 1743 I believe it can be better thus considered than by any other body. I have always been of opinion that the claims of losers by any legal reforms were best consulted by a Committee of the House of Commons; but before the imposition of a charge on the public, the House of Commons must be satisfied of the justness of doing so. I hope the clerks will be induced to take the course pointed out by the Government, which is prepared to support them in this as an equitable and moral claim.
§ LORD KINGSDOWN
hoped that this discussion would facilitate the adjustment of these claims. He had the fullest confidence in the opinions of the law officers on this subject, but he did not understand what were the precise grounds on which they said the clerks had no legal claim. There were two possible grounds—the one that the language of this clause did not provide these people with compensation; or they might have proceeded on the ground that the emoluments were directed to be paid out of a distinct fund, but that there was no fund in existence out of which the emoluments to which they were entitled were to be paid. He was not aware on which of these grounds the law officers proceeded, but there was this distinction—in the one case the Act of Parliament had given them a legal right without providing a fund to satisfy it; the other view of the case was that the clause itself would not give a legal right, even if there were a fund. If the intention of the Legislature was—and there appeared no doubt that it was—that the clerks should have their emoluments and salaries, he confessed his opinion was that the proper course would have been to introduce a declaratory Act, explaining that such was the intention of the clause, although the language had not given effect to that intention. If, on the other hand, the clause was sufficient to give the right to the salaries, and no fund was provided out of which to pay them, then, of course, the House of Commons would necessarily be the authority to which to go. He was satisfied that in proposing this course it was the intention of the Government to support the moral and equitable claims of the clerks, and he contended that what the Legislature intended to do in this matter would be done readily, and that eventually this debate would assist in effecting the intentions of the Legislature.
§ LORD REDESDALE
said, if there was any doubt about the equity of the claims, he could understand the proposal to refer 1744 the matter to a Select Committee of the House of Commons; but there appeared, from the conversation which had taken place, no doubt upon the subject; and if similar explanations to those which he had heard were made in the other House, the matter could be settled without reference to a Select Committee, or wasting much of the valuable time (already overtaxed) of Members of Parliament.
§ THE DUKE OF SOMERSET
believed, the House of Commons would not listen to such a proposal so easily as the noble Lord imagined. Where the question was one of compensation for fees, the amount of those fees must necessarily be inquired into, and the fact that there were two very different returns as to the amount of the salaries and fees received, would induce them to sift the matter very carefully. The noble and learned Lord (Lord Chelmsford), while accusing his noble and learned Friend upon the Woolsack of suppression, had himself omitted to read some very important words in a letter from the Lord Chancellor to Mr. Commissioner Law, in which he stated that the law officers were of opinion that the clerks had a moral and equitable claim.
§ THE DUKE OF SOMERSET
regretted that it should not have been heard by any one on that side of the House.
THE LORD CHANCELLOR
said, that before the discussion closed he wished to correct one observation of the noble Earl (the Earl of Derby). He had not accused the clerks of the Insolvent Court of falsifying returns, but he had mentioned the great difference between two returns, as showing the difficulty in which he was placed in dealing with this matter. The return prepared in March stated the amount of fees at £3,000 and the late return at £14,000. The noble Earl had also said it was strange that he (the Lord Chancellor) had not known that the salary of the provisional assignee was only £100 a year; but the fact was, that the Bill provided that that officer should become an official assignee of the Court of Bankruptcy, and he was therefore provided for.
§ THE EARL OF DERBY
was glad to hear that the noble and learned Lord disclaimed any intention of imputing falsification to the clerks, but thought that he was justified in supposing that such an imputation was conveyed in the terms of the noble Lord's letter which he had quoted. He had 1745 therefore explained that the first Return to the order of the House of Commons gave the average amount of seven years, and the Inter return that for the last year only, and that therefore the apparent discrepancy did not justify any such imputation.
THE LORD CHANCELLOR
explained, that his letter referred to the difference between the Return of March and that up to the 11th of October.
§ After a few words from the Earl of DERBY,
§ House adjourned at a quarter before Nine o'clock, to Thursday next, a quarter before Five o'clock.