§ Against the Third Reading of the Courts of Justice Concentration (Site) Bill.
§
"DISSENTIENT:—
1. Because it is the duty of the State to provide fit Courts for the administration of justice; whilst the Bills just passed provide the principal means of erecting the new Courts out of the Suitors' Fund of the Court of Chancery and by taxation of the Common Law suitors. Taxation ought never to be imposed for that purpose. As to the Equity Fund, the first Bill directly takes one million stock for the scheme, and subsequently takes indirectly about half a million more by authorizing the Lord Chancellor out of that fund to purchase or redeem certain compensations which are charged on the funds; and by assigning to the Consolidated Fund the value of the late Masters' Offices which are held by the Lord Chancellor as a trustee for the Suitors' Fund, although the section (22) which transfers the property from the suitors to the Consolidated Fund contains no statement of such an intention.
2. Because no portion of the Suitors' Fund can be appropriated by Parliament for any other object than the benefit of the suitors in equity without a violation of the rights of property and indirectly repealing divers Acts of Parliament, to which no reference is made in the Bills. The
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funds in question have arisen from moneys belonging to the suitors in Chancery, which were paid into court from time to time without any direction to invest them, and the Court, with the aid of Parliament, which was required only because the consent of all the owners of the moneys could not be obtained, invested them, and the dividends, with fees of Court, form the fund in question. Until now the Government never ventured to treat it as a public fund, or to appropriate it to purposes not connected with the ease and benefit of the suitors. In the many Acts of Parliament relating to the fund, not a syllable can be found to sanction Parliament in treating this as a public fund. The principal belonged to the suitors; to whom but them should the produce of it belong? The Court of Chancery held it as a fund dedicated to the purposes of the suitors as a class. From the 12th of George II. to the 15th and 16th of the Queen, a period of more than a century, some 10 or 12 Acts of Parliament recognize the fund as belonging to the suitors; the sums not expended for purposes required for the ease and benefit of the suitors were carried to accounts in the name of the Accountant General for the benefit and better security of the suitors in Chancery. It is not disputed that the fund, if required, is liable to the suitors as a class. And, indeed, their right is fully admitted by the provision in the Building Act for providing out of the Consolidated Fund the means of any insufficiency of the cash of the suitors to satisfy their demands, but this provision is improperly confined to the million of stock directly appropriated by the Bill. The Chancery Commissioners, in their Report, state that it is true that in times past this fund has been exclusively employed for the benefit of the suitors in Chancery, but this may have been because the exigency of the moment rendered such an application thereof necessary or expedient. Circumstances, however, have now changed, new and varied exigencies have arisen, and the wants of the present day urgently call for a different application. This statement may be left without a comment.
3. Because, as already stated, there is no foundation for the claim of the Government to treat the fund as public property. The statement in the Building Bill is that the fund stands to the credit of "an account of securities purchased with surplus interest arising from securities carried to an account of moneys placed out for the benefit and better security of the suitors of the High Court of Chancery," which admission seems conclusive against the right of the public; but the Bill adds, "which has arisen from the profit of investments made under the authority of Parliament at the risk of the public of unemployed cash balances paid into court on account of individual suitors." This is the first time since the institution of the fund that it has been pretended that the investments were at the risk of the public, and therefore giving to the public a right to the fund. For this statement there is not the slightest foundation. Not the public indemnity, but the ease or the benefit and security of the suitors, are the objects declared in every Act of Parliament. The public incurred no risk, and therefore is not entitled to the benefits claimed. It is truly said that no individual suitor is entitled to the fund, but it does not follow that the suitors as a class are not entitled to it. All the applications of the fund for the last century and
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a half prove this, for they were all for the benefit of them as a class. The ownership of the fund is strikingly exemplified by the great settlement in 1852 (l5th and 16th of Victoria, cap. 87), followed by the Act of 1853 (16th and 17th of Victoria, cap. 98), of which latter Act the Chancery Commissioners do not appear to have been aware. These Acts made all the funds in question at once applicable to the relief and benefit of the suitor, and the unclaimed funds were added to the others, although subject to be made good if claimed hereafter; and now the present measure, without referring to this important and, as I thought, final settlement, repeals and destroys it. In 1852, so far was Parliament from claiming the fund as public property, that it relieved it from charges to the amount of £9,000 a year which had been imposed upon it by Parliament for the salaries of some of the Equity Judges. This was done on the ground stated, "that it was expedient that the salaries of all the Judges of the Court of Chancery should be paid out of the Consolidated Fund instead of out of the interest of the securities purchased with the cash of the suitors." This relieved the fund for the benefit of the suitors, and was a just and proper provision, but utterly inconsistent with the claim now set up in the name of the public, for if the Suitors' Fund did belong to the public it might properly be applied to the payments from which it was relieved, or, indeed, be expended on the Thames Embankment, or any other public work. The analogy attempted to be set up that the Court of Chancery is a banker, and therefore is entitled to the profit will not bear examination, and if it could, still the profit would belong to the Court, and the Court, with the aid of the Accountant General, is the guardian and not the owner of the property to which the public can have no claim. The Lord Chancellor, if a trustee without authority invested the trust money and made a profit of it, would be bound to compel him to pay it to the owners of the capital, although they had given no directions for its investment with costs. All the risk would fall on the trustee, all the benefit would accrue to his cestui que trust. This will be a painful rule to follow, now that the Court itself holds the interest of the fund belonging to the suitors, which was invested without their consent not to belong to them as a class. Those who rely upon the fact that no individual suitor can claim the fund and deny the right of the suitors as a class, yet maintain the right of the public, that is the nation, to the fund. Has any individual citizen any claim to any portion of it?
4. Because, although no objection could be made to the erection of new Courts of Justice for the Equity Judges if necessary, at the expense of the Suitors' Fund, yet no such necessity exists beyond a very limited application of that fund. There are six Equity Courts—1, the Lord Chancellor's; 2, the Lords Justices'; 3, the senior Vice-Chancellor's; 4, and 5, the two Courts of the other Vice-Chancellors; and, 6, the Rolls Court. The first five Courts are all in Lincoln's Inn; the first three of them are good Courts, and require none others to be substituted for them; the other two are unfit for Courts of Justice, and would long since have been replaced by new and good ones, if the present scheme had not been introduced. Lincoln's Inn was prepared to expend £100,000 on new Courts, and to require
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from the Suitors' Fund only £4,000 a year, including the present payments from that fund to the Inn, and a plan was made and laid with a Bill for effectuating that object before this House. It is, therefore, wholly unnecessary to build on the proposed site any new Courts for the Equity Judges. In Lincoln's Inn the Courts have long been established. The suitors, the Bar, and the solicitors have the benefit of the garden and the open grounds. If left where they are they would not interfere with the proposed concentration of the Courts, for the Common Law Courts would be concentrated on the site proposed, and the Courts of Equity would be within a few yards of them. The Rolls Court is a fine and excellent Court. The Master of the Rolls objects to be removed; more especially as the great Record Court of which he is the head is connected with his Court, and he has constant occasion to resort to it. There is no reason why his Court should be removed. The distance between it and the proposed Courts is too trifling to form a reason for the removal. Nevertheless, all these Courts are to be removed at the expense of the Suitors' Fund. Concentration after all will not be effected. The Nisi Prius Courts are left at Guildhall, the Court of Bankruptcy in Basinghall Street, the Central Criminal Court in the Old Bailey, the Land Transfer Court, the Charity Commissioners, and the Inclosure Commissioners are to remain where they are, and some of them at a great expense to the public. The still more important Courts of Appeal in this House and in the Privy Council Court are, of course, left undisturbed. Two Courts are to be removed; one the Lunacy Commissioners' Court, which ought not to be taken into the turmoil of all the Courts, and the other—the Divorce Court—which for obvious reasons should be kept as far as possible from the seat of the other Courts. The suitor will be astonished to find how little benefit the concentration will afford him; an injury, in all probability, it will inflict on him; for at present the Equity Bar confine themselves as much as may be to one Court, but when their Courts are all under one roof, the suitor may have to regret the absence of his leading counsel, or of his junior, when he requires the services of both.
5, Because the Bills will take one million and a half of stock from the Equity Suitors' Fund for the purpose of building new Law Courts and unnecessarily rebuilding Equity Courts, thus depriving the suitors of £40,000 or £50,000 a year revenue, and thus stopping the future relief of suitors in equity from fees of court which ought to be reduced. The Commissioners appointed to inquire into this subject, in their Report of July, 1862, were of opinion that if the Suitors' Fund was taken, the Consolidated Fund should provide £40,000 a year to furnish the suitors with funds to meet their claims—a Parliamentary indemnity. But so far from this being adopted in the Government Bills, they first take £1,000,000 of stock, which reduces the income of the Suitors' Fund some £40,000 a year, and then the Lord Chancellor is to draw upon the fund for another £400,000, or £500,000 stock in order to relieve the fund from the compensations to which it is liable, or in other words to supply the annual revenue of which the appropriation of the one million will deprive it. If the suitors had still their funds in their own possession, the repurchase or redemption of the compensations charged on
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them might be a legitimate transaction. But one million of their stock is first taken from them absolutely freed from the charges which affect all the Suitors' Funds. If the remainder of the funds taken under section 16 were left to the suitors, they would be able to pay off the compositions till they fell in by the deaths of the annuitants, and when and as they died the fund itself would remain for the suitors' benefit clear of charge. The scheme is to take a million of the capital, and then, foreseeing that the interest would be required to meet the claims upon it, nearly half a million more of capital is taken to clear the million in the hands of the Government from its liabilities, and thus the suitors are stripped of all their funds.
The charge on the Consolidated Fund as an indemnity is a poor security. Instead of having their own funds in the hands of their own officers to answer their demands, they must resort to the Treasury as claimants on the public funds, and, of course, the relief from Court fees and other benefits from the fund are at an end. The injustice to the suitors in Equity is further shown. There is a sum of £88,254 5s. in the power of the Government, and of which they receive the dividends, which arose from fees in the Common Law Courts. Now, the Commissioners in their Report state, ''that this Common Law Fund is wholly free and unappropriated, and there cannot be a more legitimate application of it than towards the completion of a scheme from which the suitors at Common Law will derive the most essential advantage." Yet the Government retain this large sum as public money, and take, of course, the like sum from the Equity Suitor's Fund, to build Courts for the Common Law suitors. Besides which they indirectly take from the suitors the value of the Masters' Offices, which is strictly and clearly their property, and of which the Lord Chancellor is a trustee for them.
6. Because the funds of the suitors in Equity cannot bear the reduction of a million and a half of their stock. Upon the great settlement of 1852 fees in Equity were remitted, which, within a few years, it is proved would have amounted to £40,000. The Lord Chancellor is bound to further relieve them if the funds be not taken away; they still pay 8 per cent. The accumulation was stopped in 1852, and the interest of the Suitors' Fund was carried to the Fee Fund, and it appeared in I860 that this arrangement had saved the suitors £551,978. At times the whole income is nearly exhausted in payments. The income is subject to fluctuations. £1,200 to £1,500 a year was cut off by a decision as to receivers; and in 1860, £6,000 a year charge had been added since 1858. Whilst Lord Cranworth was Chancellor he had to order the sale of £300,000 to meet the suitors' demands.
The payments into court cannot be depended upon. The power in one of the Bills, for which I am responsible to executors to administer with safety the assets without filing a bill and paying the money into court, was followed next year by the amount paid into court being £600,000 less than the previous year. Immense sums are paid in by railway companies, which must soon cease. Payments into court of trust moneys will, no doubt, be reduced in number when it is understood that the Government claim for the public a right to the fund which is still described as placed out for the benefit and security of the suitors.
Under the Commission before referred to, Mr.
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Johnson, the solicitor to the Suitors' Fund, was examined at great length, and he showed clearly the impolicy of touching the fund, but to this important evidence no attention has been paid. Vice-Chancellor Stuart had a very strong impression that drawing upon the Suitors' Fund for an enormous scheme of that kind, including the Courts of Law and Equity, would involve considerations of injustice that required a profound deliberation. Lord Justice Turner, in an elaborate statement, objected to the fund being taken: he held that the fund belonged to the suitors by original right, and that it was besides appropriated by Parliament to the purposes of the Court of Chancery; and he said that every appropriation of it by Parliament had been for the benefit of the suitors, and for their benefit only, and he did not think that it could, consistently with moral justice, be applied for other purposes than for the benefit of the suitors; he treated the notion that the Court was to be considered as a banker as a mistake, and he agreed with me that the Court was a trustee of the fund, and the suitor was the cestui que trust. He was of opinion that if Parliament did take the fund, not merely a guarantee, but an actual revenue should be paid by the Exchequer to the Lord Chancellor equal to the interest of the fund taken from the suitors. The Master of the Rolls thought it very objectionable to touch any part of the Suitors' Fund for the building of Courts of Justice, and he stated that a former Chancellor of the Exchequer who wished to take the fund for public purposes, under a guarantee from the public, admitted that it could not fairly be so taken after its origin had been explained to him by the Accountant General. Vice Chancellor Wood, one of the Commissioners, dissented from the Report as far as it related to the appropriation of the Suitors' Fund, giving elaborate reasons in a separate form for his dissent; he agreed with Lord justice Turner and the Master of the Rolls that the first step towards the appropriation of the Suitors' Fund to purposes unconnected with the business of the suitors would he erroneous and unjust, and he thought it wrong on the general principles of political expediency. He held that the fees should be reduced with the funds, which the appropriation to the buildings would prevent; and, in fact, you would levy fees on a Chancery suitor in order to ease Common Law suitors in the expense of their litigation.
7. Because the scheme will displace 4,175 persons, of whom 3,082 are of the labouring class, including children. Many of them are described as of filthy habits, and it is proved that in some parts fever is never absent. The houses, warehouses, &c., occupied by this population are about 400. Now, much credit is taken for clearing away this crowd of people. Where are they to go? Government has made no provision for their future residence. Nobody pretends to know where they are to be located. We know that, go where they may, they will assist to further crowd some place I already too full. Doubtless their filthy habits will accompany them, and the fever stricken—the never-failing fever—will be carried to other localities, to add misery and sickness to their in. mates. Every one must desire to limit these evils as much as may be. Now, the unnecessary removals for the New Law Courts for the Equity Judges will greatly add to these evils, which ought to have much weight in the consideration of the subject, if we are in earnest in the sympathy
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which we so often express for the labouring man, who Is driven from his home by public improvements.
8. Because no plan of the new Courts has been matured, and, therefore, no estimate of the expense can be relied on. Everything is left to be done, and doubtless the expense will far exceed the sums provided. The accesses to the Courts will cost a large additional sum, for which no provision has been made. When it was proposed to build the Courts in the centre of Lincoln's Inn Fields, Sir Charles Barry, then Mr. Barry, in answer to a question from me in a Committee of the House of Commons, could not say that to open accesses from the two Turnstiles, Duke Street, and Clare Market, all of which would be required, would not cost a million of money. Five years are allowed for the purchases of the site, and it is not probable that the buildings will be erected in less than twice that period, during which, no doubt, after the Suitors' Fund is exhausted, large calls will be made upon the public funds before justice can be administered in the New Courts, and during all which time the suitors in Chancery will have to pay fees which ought to be abolished, and to put up with the two Courts of the junior Vice-Chancellors, so much complained of, without deriving the slightest benefit from the proposed concentration of the Courts.
ST. LEONARDS.