§ Order of the Day for the Second Reading, read.
THE EARL OF ALBEMARLE, in moving that the Bill be now read the second time, said, that its object was to amend the Act of 18 Geo. IL, by which it was declared that no person should be eligible to be a justice of the peace who did not hold land of the annual value of £100. By his Bill he proposed to enact that an income of £300 a-year from personal estate should be deemed equal to an income of £100 a-year from land. The noble Earl said that in the few remarks he desired to offer to the House, it would be his object to show that the restriction instituted by that Act was bad legislation—vicious in principle and obstructive in operation; that it was one of the last remnants of class legislation, and one by which the efficient administration of justice was rendered subservient to the social-elevation of a class:—for by necessary inference, it was declared that landed proprietors alone were competent to administer justice in the rural districts of England and Wales—to the exclusion of vast numbers of gentlemen of rank, wealth, education, and intelligence who might reside within the counties, and to the exclusion even of that learned profession from which all other Judges were taken. The period when a property qualification was first affixed to the magistracy dated 450 years back; and at that time the object contemplated was to restrict the magistracy to the landed class. Subsequently, the Act of George II., by virtue of the tithe rent-charge, qualified incumbents of livings became eligible for the office of justice, and thus clergymen became sharers in that offensive monopoly, and stood in the invidious position of holding lay appointments to the exclusion of the 766 main body of the laity. He wished to speak with all respect of the clergy of England and Wales; but, in his opinion, they were not the most fit persons to administer justice, and he expressed a very common view of the subject when he said that clergymen should not be placed on the Commission of the Peace, except where laymen of proper status could not be found for the performance of magisterial duties. And here he would call attention to a Return which had been laid on the Table, by which their Lordships would see how that clerical element in the county magistracy was spread over the length and breadth of the land. It was a Return of the number of clergymen of the Established Church who acted on the Commission of the Peace in each county; and it told them that in 51 out of the 52 counties into which England and Wales were divided the scarcity of lay magistrates, was supplemented by beneficed clergy. When he moved for the Return, he expected to be able to show that in the two counties with which he was best acquainted, there was too great a number of clergymen; the Return fully answered his expectation, Norfolk and Suffolk being the counties in which clerical magistrates were most employed. If they took the contiguous counties—the counties bordering on the German Ocean—namely, Essex, Lincolnshire, and Yorkshire—and if they would make him a present of Herefordshire, in which also the clergy were very numerous—they would find that in those six counties there was a greater number of clergymen acting as magistrates than in any 14 other counties. He had been told, in fact, that there was scarcely a county in which an extension of the area whence lay magistrates were taken would not be a positive boon; but if it would benefit only the counties he had named, it would fully justify him in asking their Lordships to pass the Bill before them. Why, by excluding the laity from the magisterial Bench, should they create an artificial scarcity of magistrates, when the demand was so much greater than the supply? Was it right that these reverend gentlemen who received stipends from the State, should be regarded as qualified; when men of culture and intelligence, and men well versed in the criminal law, were debarred from rendering assistance on the Bench in cones- 767 quence of the civil disabilities inflicted on them by the law? In the reign of Henry V. justices of the peace were chosen from "the most sufficient men dwelling in each county." If that excellent law had existed, the present Bill would have been unnecessary; it would have qualified resident gentry whether deriving income from real or personal property. That law was repealed by the Act passed in 18 Henry VI., when it was declared that "none should be assigned justices of the peace if he had not lands or tenements of the value of £20 a-year." And the reason for passing that restrictive law was stated on the face of it, and deserved attention:—It was "because men of small substance had crept into the commission, whose poverty have made them covetous and contemptible." Therefore, because covetous and contemptible persons had crept into the commission in the troublous reign of a weak mediæval King, therefore gentlemen who were neither covetous nor contemptible were to be shut out of the commission in the reign of Queen Victoria. The Act of George II. which he now sought to amend was only a re-affirmation of the former statute, and gave the same reason, but raising the qualification from £20 to£100 a-year. What said the Preamble—"Whereas it was of the utmost consequence to the common weal to prevent persons of 'mean estate' from becoming magistrates, therefore, &c." If their Lordships rejected this Bill, would they be prepared to say that their younger sons who might not possess £100 a-year in land were less qualified to discharge the duties of magistrates than their elder sons and incumbents of livings. But more than that, he contended that the tribunals in which these magistrates sat were to a great extent unconstitutional, inasmuch as persons charged before the magistrates were fined or imprisoned by their orders, without having the benefit of being tried by their equals. He did not mean to say that misdemeanours should not be triable by summary process; but he contended that if they must needs have such tribunals, it was their duty to make them as perfect as human ingenuity could devise. From a paragraph which was inserted in Her Majesty's Speech from the Throne at the commencement of the present Session, and from an announcement 768 made in "another place," it seemed to be indicated that the Government were about to ask Parliament to extend the powers of those badly constituted Courts. It was under those circumstances that he offered their Lordships that small measure of judicial reform, either to accept it, or at any rate to gain the assurance that the Government would take the subject out of the hands of an independent Member, in which it ought not to be, into their own. He begged to move the second reading of the Bill.
§ Moved, "That the Bill be now read 2a."—(The Earl of Albemarle.)
§ LORD HAMPTONsaid, he hoped their Lordships would not accept the Bill of the noble Earl. He submitted to their Lordships that no case for the change proposed by him had been shown by the noble Earl—that no necessity existed for the proposed change, and that the change was in itself objectionable. On former occasions a similar proposition had been opposed from both sides of the House, and had been rejected, as he trusted this would be now. He was ready to concur with the noble Earl that it was not desirable that clergymen should be placed on the Commission of the Peace where a sufficient number of lay gentlemen could be found qualified for the exercise of magisterial functions; but he thought that was a matter which might be safely left to the discretion of the Lords Lieutenant of counties—it was, in fact, the principle on which the Lords Lieutenant acted at present, and he could state from his own experience that among some of our most valuable magistrates were clergymen who had been placed on the Commission. Clerical magistrates were especially useful in relation to poaching cases, where the landowners were looked upon as personally interested against the labourer, and in cases which frequently arose between landlord and tenant. For himself, he should greatly regret any change by which the magistracy should be separated from the local interests of their several counties. The noble Earl seemed to have omitted from his consideration one very important point—namely, the financial duties performed by the county magistrates. Now, it was most desirable that the fiscal affairs of counties should be conducted by gentlemen who had a local interest 769 in the localities where the county rates were raised. He doubted that the landed qualification was a serious obstacle to the appointment of gentlemen who would come in under the noble Earl's Bill, because if a person had £300 a-year from personal property he was in a position to purchase a property in land of the annual value of £100. For these reasons he should move that the Bill be read a second time that day six months.
§ Amendment moved to leave out ("now") and add at the end of the Motion ("this day six months.")—(The Lord Hampton.)
§ EARL COWPERsaid, he should support the second reading of the Bill, for he could not but look upon the question raised by the noble Earl as one of very great importance. As Lord Lieutenant of a county his experience in that capacity led him to think that desirable men were excluded from the Bench by the existing property qualification. The proposal of the noble Earl had been before their Lordships' House on former occasions, when it had been argued that this qualification was a sham, and that the restriction, like all other restrictions, would be evaded. If it were a sham, that was a very good reason for not keeping it up—and, indeed, would be a very good argument for not requiring any qualification whatever. But the restriction could not be so easily evaded as was supposed. He knew, from his experience as Lord Lieutenant, that there was sometimes great difficulty in placing persons whom he knew to be well qualified for the magistracy upon the Commission of the Peace. The noble Lord who moved the Amendment (Lord Hampton), spoke of having the magisterial Bench filled by gentlemen who had an interest in the affairs of the county. "Well, he believed there were in every county plenty of such men who would make valuable magistrates, and who would enjoy general respect, who were prevented from taking their position by the qualification required by the existing law. There were, for instance, agricultural tenants, men of practical good sense, who had a considerable interest in the financial affairs of the counties in which they resided; there were retired professional men, whose legal training would make their services on the Bench most valuable, but who were excluded by the restriction. He knew a case in 770 which a retired physician, who had been in large practice, found it very difficult to get appointed to the Bench. The Bill for the abolition of a property qualification for Members of Parliament, after being many times introduced into the House of Commons, and as often rejected, was at last carried under a Conservative Administration; and, in like manner, he hoped that this proposition for the removal of the landed qualification for the magistracy, which had been several times proposed and rejected, would finally be accepted under the present Conservative Government.
THE BISHOP OF PETERBOROUGHsaid, he had no intention of offering any remarks on the merits or demerits of the Acts which the present Bill was intended to amend, but wished to say a word or two with respect to the clerical magistrates, whose presence on the Bench had been alluded to more or less unfavourably by the noble Lords who had spoken on the Bill. As those reverend gentlemen were not represented in their Lordships' House, they might possibly expect a Bishop present at the debate say a word or two for them. He must say he entirely concurred in the general tendency of the observations of the noble Lords as to the great undesirableness of having clergymen on the magisterial Bench—in many respects that was not a thing to be desired—but his reasons for this opinion were very different from those which seemed to prevail with those noble Lords. He thought the appointment of clergymen to the Commission of the Peace was not to be desired; but not because he thought they made worse magistrates than laymen did; there was nothing in their previous education, in their intelligence, or in their habits of thought, to warrant any such conclusion. A distinguished countryman of his, about 100 years ago, described a country clergyman as a squire who was obliged to wear a black coat, say his prayers, and live on his own estate. There were, on the other side, circumstances under which a clergyman might make a better magistrate than a layman. He would, probably, be a better judge as between landlord and tenant, as between a game preserver and a poacher, and as between a rich man and a poor one. But he did not think it fair of the State to take the clergyman from his higher duties and put him to that work, and he felt that 771 there was an obvious incongruity between the spiritual functions performed by a clergyman on Sunday, and the secular duties of fining and imprisoning men on week-days. He had only one more word to say. The statement that the clergy received "a stipend from the State," was one which he could not hear used in their Lordships' House without offering his most decided protest. The clergy lived on estates belonging to the Church, which were given to it, not by the State, but by the piety of ecclesiastics and laymen in times gone by; nor had the State any claims to their services, except that indirect claim which arose from their being bound by reason of their benefices to render service to Church and people. He protested against its being said that the beneficed clergy received any stipend from the State.
§ THE EARL OF HARROWBYsaid, he thought it undesirable that there should be a preponderance of the clerical element upon the magisterial bench; but he thought, at the same time, that a small proportion of clerical magistrates was an advantage. It was some advantage that, by being engaged in administering the law, the clergy should have to be obedient to the law in their own persons—a duty which some of them seemed to be in danger of forgetting. He thought, also, that it was a great benefit that the clergy and laity should intermix as much as possible, so that they should become acquainted with each other's habits of thought. He believed that it would be found impracticable in many districts of the country to avoid placing clergymen on the Commission, for there were many localities in which properly qualified resident laymen were not to be found. He quite agreed in the opinion expressed by the noble Lord who had moved the Amendment, that the gentlemen selected for the bench should be connected with the counties by the possession of land, in order that there might be a sufficient security against improvident local expenditure. So long as the magistracy was constituted as it was, it was better that those who imposed taxes should impose them upon themselves as well as upon others, and it was some protection against possible abuse that Lords Lieutenant should be obliged to look out for men to be appointed who had a local position in 772 the midst of their fellows. He hoped that some means would be provided by which the wealth and intelligence of the country, now so widely diffused among other classes not connected with the land, should be enlisted in the administration of justice; but as he did not approve of the Bill in its present shape, he should, on a division, vote against it.
§ LORD WAVENEYsaid, that as Chairman of Quarter Sessions, he could bear testimony to the excellent manner in which clerical magistrates discharged their magisterial duties; but, at the same time, he did not desire to see a large proportion of clergymen on the bench where it was possible to find efficient laymen. No doubt the current of popular opinion was against clergymen acting as magistrates:—he feared that that feeling might lead, in those districts where a sufficient number of laymen could not be obtained, to the appointment of stipendiary magistrates. That he should very much deprecate. He should indeed greatly regret to see our present system of local magistracy superseded by a system of stipendiaries. He preferred seeing the local gentry taking their proper places in the counties. He believed that this was the first occasion on which a Bishop had risen in that House to express an opinion against the expediency of placing clergymen on the Commission of the Peace; but he had had a letter from the Bishop of Norwich, in which the right rev. Prelate stated that he had always objected to the appointment of clergymen to the magistracy, because it interfered with the performance of their spiritual duties, and prevented them from giving that independent and moral support to the magistrates which was so desirable; for, when appointed, that independent and moral support became merged in the clergyman's magisterial functions. He believed that this was the third occasion on which Bills having the same object had been before the House; and he had always objected to the appointment of clergymen as magistrates, believing that it would interfere with their spiritual office. As far as the direct object of the Bill was concerned—the alteration of the property qualification—he should support the noble Earl's Motion.
§ LORD LYTTELTONsaid, that he had supported similar Bills on former occasions, and he should vote for the 773 second reading of this one; but he dissented from some of the arguments that had been advanced in its support. He knew many clergymen who made excellent magistrates, and he saw no objection to it; indeed, he quite concurred in the remark of the noble Earl (the Earl of Harrowby), that it was not desirable to have a strict line of demarcation in those respects between laity and clergy, and he believed that in some districts of the country it would be quite impossible to do without them. He himself, as a Lord Lieutenant, had experienced difficulty in finding a sufficiency of properly qualified laymen. He might further remark that clergymen were not appointed to the Commission as a matter of course; a special case had to be made for their appointment—otherwise the Lord Chancellor would object. Nor did he believe, whatever might have been formerly the case, that there was any class jealousy in the matter now; on the contrary, he objected to the present restriction as unreal, as assuming a social distinction which did not exist. A gentleman with a trifling income of £100 a-year from land did not really differ from his neighbour who had a larger income from personalty. As to what had been said about the importance of appointing men who had a personal interest in the financial affairs of the locality in which they were to act as magistrates, it was a mistake to suppose that object was attained by the present qualification. A man might he appointed a magistrate for Cornwall on a qualification derived in Northumberland. His only doubt with regard to the Bill was whether the qualification for personal property proposed was not higher than it need be.
THE LORD CHANCELLORsaid, that as to the appointment of clergymen to the Bench, the rule was that when a Lord Lieutenant recommended a clergyman for appointment, the holder of the Great Seal requested him to consider whether there was any layman in the county better qualified for the position; and unless the Lord Lieutenant reported that it was quite impossible to find such a person, the holder of the Great Seal did not decline to appoint the clergyman; if such layman could be found, the appointment of the clergyman was refused. He (the Lord Chancellor) did not look upon this Bill as being one of great importance in regard to the changes which 774 it proposed. It placed greater power in the hands of Lords Lieutenant than they at present possessed, by giving them a larger range for selection, but he was not aware that any of them had expressed a desire for the change. He was greatly surprised to hear the noble Earl the Lord Lieutenant of Bedfordshire (Earl Cowper) argue in favour of the Bill that the present qualification was a sham, and that they had got rid of a property qualification for Members of Parliament. If the present qualification was a sham, it would be better to get rid of it than to substitute another sham for it. He took it for granted that when a Lord Lieutenant recommended a gentleman for the bench he looked at his connection with the county. It was difficult to imagine a Lord Lieutenant recommending any man for the office of a county magistrate without taking into account his particular interest in that particular county. Their Lordships all knew that the statute of George II. did not require that the landed estate which gave the qualification should be in the county for which the appointment was made; but he took it for granted that when a Lord Lieutenant considered whether he should recommend A. B. to be appointed a magistrate in the county he considered whether that person had property or at all events a residence in the county. He did not mean to say that there were not cases in which persons were appointed magistrates of a county without having either property or a residence in it; but such cases must be very rare. Now this Bill would make personalty to a certain amount a qualification, but personal property had no locality, it might consist in stock in some foreign loan; and he did not quite see why the possession of £300 a-year in the Honduras Loan should qualify a man to be a county magistrate in England. If this qualification were a rated residence, and in addition, the possession of a certain amount of personal estate, a desirable change might be made in the present law.
§ EARL GRANVILLEsaid, that the noble Lord opposite (Lord Hampton) who had moved the Amendment, had stated that this Bill was not wanted, and that it would be useless in operation. Now, if he (Earl Granville) thought that would be so, he should recommend his noble Friend behind him to withdraw his Bill. But the Lord Chancellor said 775 he took it for granted that no Lord Lieutenant would recommend a gentleman for the position of magistrate who was not connected with the county for which the appointment was to be made; but he would remind their Lordships that several Lords Lieutenant had stated in that House that they had experienced great inconvenience and difficulty in finding proper persons for the office of county magistrates, without having recourse to beneficed clergymen; and most of them had concurred in the opinion that the appointment of clergymen was not desirable where competent laymen were to be had. If that were so, he thought a case had been made out for the change proposed by the noble Earl. For himself, he (Earl Granville) thought it a great evil that the youngest sons of Peers could not be appointed to the Bench; gentlemen who had practised at the Bar, and who resided in the counties; and gentlemen who had held office in the Colonies or at home, and who had administered large affairs. He agreed that it was better that clergymen should not be selected, and it seemed to be the general opinion of their Lordships that if other persons could be found clergymen should not be appointed. Notwithstanding that general opinion, they found by the Return produced on the Motion of the noble Earl (the Earl of Albemarle) that in almost all the counties a large number of clergymen sat on the Bench as magistrates, and that in the Eastern counties there was almost a preponderance. Now, all that this Bill did was to make wider the field from which a selection could be made by the Lords Lieutenant and the Lord Chancellor, and he hoped that their Lordships would not reject it without very careful consideration of the question on its merits—as he feared they had done on a previous occasions. But while attaching great importance to the subject, and desiring to see it set at rest as early as possible, he would advise his noble Friend not to press the measure in case the Government would undertake to deal with the whole question. He would just observe that there was a great want of a change in the law, to enable the local authorities in some districts to appoint stipendiary magistrates. Corporations of boroughs having 25,000 inhabitants could appoint, if they found the necessary stipend; but there were manufacturing and mining districts, as 776 large as boroughs, in which there was no power to appoint such magistrates, and the consequence was that in some of those districts the magistrates were gentlemen connected with the manufactories and mines—a circumstance that placed their decisions under some degree of suspicion. He wished that the Government would seriously consider whether something could not be done.
§ THE DUKE OF RICHMONDsaid, that the noble Earl (Earl Granville) had made a charge against their Lordships that they had on former occasions rejected similar measures without due consideration; but this charge could not apply to the present Government or the present Bill, because this Bill was of a different character.
§ EARL GRANVILLEsaid, the present Bill was identical with the Bill of 1872.
§ THE DUKE OF RICHMONDsaid, he referred to those former measures, which the noble Earl himself had concurred in thinking ought not to be passed. It might be the case that at times the Lords Lieutenant found it difficult to fill the vacancies that occurred on the magisterial Bench of their respective counties; but he thought this difficulty seldom arose of late years: and as to the appointment of clerical magistrates, they had heard the statements of the noble Lord the Lord Lieutenant of Worcestershire on the one side and of the noble Earl the Lord Lieutenant of Bedfordshire on the other. He (the Duke of Richmond) certainly did not think that there was very much to complain of in the present practice of appointing magistrates. If a Lord Lieutenant should be required to inquire whether a man was always of a good temper, and was always likely to act wisely and well on the Bench, he was glad that he was not Lord Lieutenant of Sussex. He doubted whether the noble Earl (the Earl of Albemarle) had shown that there was a great necessity for this Bill. The noble Earl had singled out one or two counties in which a large number of clerical magistrates had been appointed; but that was no reason why they should alter the law of all the other counties. He would, however, advise his noble Friend (Lord Hampton) not to press his Amendment, in the hope that some arrangement of a satisfactory character might be come to in accordance with the suggestions of the Lord 777 Chancellor. At the same time he totally divested himself of any connection with the much larger question of providing stipendiary magistrates for the mining
§ LORD CARLINGFORDsaid, that, as Lord Lieutenant for a county, he had experienced the difficulty of finding persons, not clergymen, fitted for the position of magistrates; and he had a strong opinion against clergymen being on the bench—those gentlemen had other duties to perform; but, assuming that they were to be called upon to act in that capacity, a competent clergyman might not be found where he was needed. The only argument he had heard against the Bill which had any weight in his mind was, that which insisted on the anomaly of gentlemen having the disposal of county rates without being ratepayers themselves. He trusted the suggestion of the Lord Chancellor would be accepted.
§ LORD HAMPTONsaid, that though not in favour of the Bill he would not, after what had fallen from the noble and learned Lord on the Woolsack and the noble Duke the Lord President, press his Amendment to a division.
§ Amendment (by leave of the House) withdrawn: Then original Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House, on Tuesday the 27th instant.