- * First Reading-Pier and Harbour Orders Con- DEVONPORT ELECTION. House informed, that the Committee had determined, That John Fleming, esquire, is not duly elected a Burgess to serve in this present Parliament for the Borough of Devonport. That William Ferrand, esquire, is not duly elected a Burgess to serve in this present Parliament for the Borough of Devonport. COMMITTEES-ASCENSION DAY. Ordered, That no Committees have leave to sit To-morrow, being Ascension Day, until Two of the clock.-(Mr. Chancellor of the Exchequer.) CLERKS TO JUSTICES BILL-[BILL 53.] (Mr. Colvile, Sir Henry Hoare.) SECOND READING. Order for Second Reading read. MR. COLVILE, in moving the second reading of this Bill, said, that the measure was in itself small and unpretending, but it had this merit, that it would, if passed, tend to maintain the dignity of the law, and render pure the stream of justice. The clerks to magistrates stood in a very anomalous position. The whole question of the advisers to our unpaid magistracy required consideration fifty years ago; the rural magistracy were few and far between, their butlers were generally their clerks, and their only legal advisers "Burns Justice;" the increase of population and the consequent increase of crime had altered this, but the position of the clerks had not kept pace with the requirements of the times. The clerk to the magistrates was charged with very responsible duties, he was the legal adviser of the justices to whom he acted, and yet he had no freehold in his office, and he was liable to be discharged at the pleasure or caprice of the magistrates. Now, the House had imposed on these clerks very important duties. They were compelled to make Returns to That it was proved that Frederick Harris' the Home Office under no less than sevenThomas Down, William Cragg, and others, to the teen statutes, some of which were of a very number of seventy-one, were bribed by payments of ten shillings each after the Election; but that important nature. The position which he such bribery was committed without the know-held was this-that these clerks should be ledge or consent, and against the strict injunctions of the sitting Members. That the last Election for the Borough of Devonport is a void Election. And the said Determinations were ordered to be entered in the Journals of this House. House further informed, That the Committee had agreed to the following Resolutions : That John Fleming, esquire, was, by his Agents, guilty of bribery at the last Election for the Borough of Devonport. That William Ferrand, esquire, was, by his Agents, guilty of bribery at the last Election for the Borough of Devonport. That the several sums of ten shillings, by which the above-named Electors are reported to have been bribed, were given to them on account of having voted for the sitting Members in compensation for the time alleged to have been lost by attendance at the Election. That it was further proved that the authorities in the Devonport Dockyard allowed half a day to all Voters in the yard for the purpose of recording their vote, and paid wages for such half day, irrespective of any work done by such Voters. That the Committee desires to record its opinion that the payments above referred to of ten shil lings to each Voter have been customary at former Elections for the Borough of Devonport. That, beyond this, there is no reason to believe that corrupt practices extensively prevailed at the last Election for the Borough of Devonport. Report to lie upon the Table. paid by salary; that they be attorneys of a certain standing, should not be removable from their office except for misbehaviour, and that they should have no direct or indirect pecuniary inducement to recommend commitments to the justices whom it that there was an organized opposition to was their duty to advise. He was aware his proposal, the justices clerks had, like other trades, their union, and had determined to oppose his Bill; they had sent a form of petition to all the Petty Sessional divisions, 433 in number, but only thirtyone petitions had been presented against his Bill; this spasmotic action might keep the matter in its present position a little longer, but there was a strong feeling entertained by the ratepayers that the pre Motion made, and Question proposed, "That the Bill be now read a second time "-(Mr. Colvile.) sent system of unpaid clerks, with the brought before them in their capacity of inducement which they had to recommend coroner. If the Bill should go into Comcommitments, greatly increased litigation, mittee he would endeavour to remedy some and that they were thereby made the other grievances connected with the magissufferers. All fees taken by magistrates trates' clerks. On many occasions the were more or less a tax on the working magistrates' clerks, either by themselves classes of the country. The hon. Member or their partners, actually practised before referred to the evidence taken by the Royal the bench to which they acted as clerks ; Commission which sat in 1845, to inquire and every one must admit that was a most into the state of the criminal law in sup- indecorous proceeding. It was exceedport of his view that the prosecution by ingly improper that the magistrates' clerks magistrates' clerks was a highly indecorous should, either by their partners or in person, proceeding which led to frivolous prosecu- defend persons committed for trial by the tions and gave rise to the obvious remark magistrates under whom they acted. This that they had a direct interest in advising measure was only a step in the right dicommitments. He also referred to the rection; but he hoped that before long evidence given before the Public Prosecu- another step would be taken, and the retions Committee. Amongst the witnesses commendation of the Committee on public was the Lord Chief Justice, who said he prosecutions would be carried out. He was of opinion that the clerks to the jus- hoped they should have as magistrates' tices could be made useful agents to con- clerks gentlemen of legal standing, and duct public prosecutions; but unless the that they should have public prosecutors clerks were put on salaries that plan would to conduct the prosecutions intrusted to not do. Lord Campbell said it was of the them fairly and impartially. last importance that the magistrates' clerk should have no interest in the prosecution to bias his mind, and no advantage, directly or indirectly, in the case in which he gave his advice. He also read letters from gentlemen holding official position in England and Wales, in favour of his proposal. On the passing of the Municipal Act, it was provided that the clerks to magistrates in boroughs should not prosecute any person sent to gaol by the borough magistrates. It seemed an anomaly that a clerk to borough magistrates, and a clerk to county magistrates, should live side by side of each other in a town that one could prosecute, the other could not. Was the integrity of the one greater than that of the other? He had inquired in the larger boroughs, and found that no practical inconvenience had arisen from that enact ment. The town clerk of Birmingham said that the prohibition of justices' clerks conducting prosecutions in the borough had not caused any inconvenience whatever. The town clerk of Leeds stated that no inconvenience had arisen in that borough from the clerks of justices being prohibited from conducting prosecutions of prisoners committed for trial by the borough magistrates. They were not, then, to suppose that the prohibition would cause any inconvenience in counties. No person should be personally interested in a matter that came judicially before him. There was a provision in the Coroners' Act to prevent coroners from acting as solicitors in any case MR. GOLDNEY moved that the Bill be read a second time this day six months. The only allegation in the preamble was that inasmuch as by the 5 & 6 Will. IV. c. 76 it was enacted that it should not be lawful for the clerk to any justice for any borough in England or Wales to be employed in the prosecution of any offender committed for trial by the justices to whom he acted as clerk, it was expedient that the same restriction should be imposed on clerks to justices in counties. But he would observe that no analogy could be drawn between the position of clerks to borough justices and clerks to county justices. The position of the former was regulated by the Municipal Corporations Act, which statute enacted that they should not prosecute prisoners committed by their own bench; but it should be borne in mind that that Act was passed during a time of great excitement, and it was then thought desirable to take steps to prevent political bias from being imported into prosecutions. Two Committees had sat in reference to this matter, and the witnesses all agreed that the magistrates' clerks were the most efficient persons to carry on prosecutions; and the danger was that if they were prevented from carrying on prosecutions the business would fall into the hands of a low class of attorneys, and the cases would be inefficiently put before | MR. STEPHEN CAVE said, it seemed the Courts, and facilities would arise for to him that the passing of this Bill would compromising felonies, and for committing tend very much to increase the evils which other irregularities. According to the evi- the hon. Member was anxious to prevent, dence given before the Commission, only and would lead in many instances to exone or two complaints a year had been treme inconvenience, and even to the mismade to the Treasury with reference to carriage of justice. Extreme accuracy prosecutions conducted by magistrates' being required in criminal cases, it was very clerks. Those complaints generally came important that prosecutions should be prefrom rival attorneys, who probably felt pared by attorneys of the best practical some jealousy in the matter, and he be- knowledge and experience, and clerks to lieved the present proposal originated in justices had, as a general rule, these adthe same quarter and from the same feel- vantages more than other attorneys. Again, ing. The hon. Member had talked of an it was of great consequence that the deorganization of justices' clerks, but he had positions should be accurate and full. Jusheard of no such organization, nor had he tices were not obliged to do more than was received any petition or communication, ex- necessary to justify their committing a cept a letter from a gentleman in Devon- prisoner, and justices' clerks, if forbidden shire, who objected to the Bill as likely to be to prosecute, would have no interest in takinjurious to the profession and to the public ing down more than barely enough to jusat large. The present scale of fees was tify a committal; whereas now they had a so low as to offer no inducement to respect- direct interest in making the case as comable attorneys to undertake prosecutions, plete as possible, otherwise they would inand though magistrates' clerks, from their cur the censure of their counsel, and possibly familiarity with the work and the number of the court also. It was also very useful of cases conducted by them, made them for the attorney to become acquainted with to some extent remunerative, there was the demeanour of the witnesses, and a no ground whatever for the imputation that Queen's Counsel of great experience in for the sake of so small an emolument they criminal cases had related to him a case of would advise magistrates to commit per- murder, in which there would have unsons for trial improperly. Indeed, summary doubtedly been a failure of justice, had not convictions were more remunerative than the clerk judged from the demeanour of committals. The justices, moreover, so one of the principal witnesses before the far from objecting to the practice, actually justice that he was not to be relied upon, encouraged it, as otherwise prosecutions and been prepared with additional evidence would fall into the hands of an inferior accordingly. In important cases it was class of attorneys, and extortion might be often necessary that justices' clerks should practised, and the ends of justice frus- be present to give assistance and informatrated. Cases occasionally occurred of tion to counsel, and if forbidden to prosepersons being reprehended for touting for cute, and yet obliged to be present, addiprosecutions, and this Bill, if passed, tional costs would be incurred. The costs would render such cases very much more allowed in prosecutions being very small, frequent. Some of the witnesses ex- respectable attorneys would rarely underamined in 1855 suggested that justices' take them; but justices' clerks having clerks should be paid by salary instead several cases, it was worth their while to of by fees, which course had been ren- do so, especially as they were able to copy dered optional by a subsequent Act; but the depositions on their briefs, instead of not one of them questioned the propriety paying for copies. Mr. Greaves, who was of justices' clerks conducting prosecutions, second, perhaps, to none as an authority in and the general tone of the report was such matters, and who authorized him to that any scheme which did not provide say that he disapproved this Bill, recomfor the efficient conduct of prosecutions mended that justices should ask the promust necessarily be defective. Believing, secutor if he intended to employ an attortherefore, that to adopt this restrictive ney, and if not, should themselves appoint measure without making other provision their clerk if he were an attorney; for, for the proper conduct of prosecutions after forty years' experience, he was satiswould be attended with very injurious fied that justices' clerks conducted proseresults, he begged to move that the Bill cutions quite as well as they could be exbe read a second time that day six pected to do, considering the low scale of months. allowances, and he had, as a general rule, found less desire to press a case unduly by them than by independent attorneys. It was true that this practice was forbidden in boroughs, but in large boroughs, such as Leeds, which had been mentioned by the hon. Member, attorneys of high standing were appointed to act as public prosecutors, and to do exactly what magistrates' clerks did in counties. There was less necessity, however, in boroughs, because the cases being tried there the attorneys were at home, instead of going for two or three days together to a distant sessions or assize town; but, looking at results, were there not far more cases in boroughs than in * counties of scandalous practices by low attorneys competing and bargaining with policemen for prosecutions, and even such unseemly occurrences as two counsel rising to conduct the same prosecution? He should rather prefer altering the law with respect to boroughs than assimilating that of counties to it. If cases were unduly committed it was the fault rather of the justices than of their clerk, and it was not a practice likely to prevail to any extent, as it seldom failed to call forth strong observations from the prisoner's counsel and from the court itself. It had been said that the clerk should be paid by salary, but it should be remembered that this did not touch the point, because the conducting prosecutions was beyond his duty as clerk for which the salary would be received. On these grounds he thought this measure uncalled for and likely to be mischievous, and he therefore seconded the Amendment. Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."-(Mr. Goldney.) MR. EVANS regretted that he could not on this, as on most occasions, concur with his hon. Friend and Colleague, who had moved the second reading of the Bill. His experience convinced him that the present system was the best that could be adopted under present circumstances. At the same time he should quite approve the payment of justices' clerks by salary, and of their undertaking prosecutions as a part of their duty; but this Bill seemed to him to begin at the wrong end. It had been his duty as Chairman of County Sessions to endeavour to ascertain the opinion of the magistrates concerning this Bill, and there was almost an unanimous opinion that the Bill would do more harm than good. The same opinion, he was informed, prevailed in Nottinghamshire. They said that in some districts there were no respectable attorneys willing to conduct prosecutions, the remuneration being so small, and the Bill would, therefore, throw the work into the hands of an inferior class of practitioners. In boroughs the case was very different, as there were plenty of qualified attorneys ready to prosecute. He did not wish to take up the cudgels for the magistrates' clerks, but he thought it right that he should notice one matter, and that was with regard to the depositions, and he must say that there were very few cases that had come under his notice during nine or ten years experience of the subject in which it appeared on the face of the depositions that there ought not to have been a committal, and though prisoners were frequently acquitted, this arose from witnesses varying in their evidence and other causes. The Bill, he was persuaded, would make matters worse rather than better, and for these reasons he should vote for the Amendment. MR. PACKE said, he had acted as a Chairman of Quarter Sessions for upwards of thirty years, and he thought no case had been made out for the Bill. Had a foreigner listened to the speech of the hon. Gentleman (Mr. Colvile) he would have inferred that the magistrates were not present at committals, or had no voice in the matter, and that the prisoner was committed by the clerk. Now he never sat on the bench when the magistrates did not act on their own judgment, uninfluhon. Baronet the Secretary of State for enced by the clerk. He was sorry the the Home Department was not present to defend the magistrates from the reflections which had been passed on them. The clerks in his own county were paid by salary under the permissive law passed a few years ago, and he hoped and believed this system would be more extensively adopted. For he quite concurred in the opinion that it was better to avoid the possibility of suspicion, that the clerk advised the committal in order that he might obtain the fees for prosecuting. He did not, however, think a sufficient case had been made out for the Bill, and he should therefore vote against the second reading. MR. LEEMAN said, that for more than a quarter of a century he occupied the position of one of the clerks of the peace. to one of the Ridings of Yorkshire, and he thought, therefore, he might claim to have had some experience in this matter. When examined before the Commission | barrister, who had practised for a great on Public Prosecutions in 1855, he ex- many years at quarter sessions, might not pressed an opinion in favour of justices be unacceptable. He should certainly vote being authorized to direct their clerks to against the second reading of the Bill, for see to the due prosecution of all cases sent it provided no substitute whatever for that to the sessions for trial, and he objected which, though it might be open to some to the appointment of district agents at abuses, was the only machinery that seconsiderable salaries as unnecessary, the cured prosecutions in proper cases. Petty justices' clerks, in most instances, in the sessions being scattered all over the country, North of England being the principal soli- in places where no legal practitioners recitors in the towns where the Petty Ses- sided, it was evident that if there were not sions were held, and among the most some person authorized to undertake the respectable men in the profession. The duty, there would, in a multitude of cases, ten years that had since elapsed had only be no one to conduct the prosecution until strengthened these views, and he was con- the case came on at the quarter sessions, vinced that the Bill, instead of improving and there would be seen a scandal which the administration of justice, would se- was even now occasionally witnessedriously impair it. As to the pecuniary policemen, or attorneys with no knowledge interest of justices' clerks in prosecutions, of the case, scrambling for the prosecutor, he need only remark that the sum allowed and endeavouring to get the job into their for the preparation of the brief and for own hands. The practice in boroughs, a journey, sometimes of fifty miles, to moreover, could not be cited as a model, the place where the trial took place, was for within his own knowledge persons had only two guineas. been appointed to conduct prosecutions who, though otherwise efficient, had in consequence of their entire ignorance of the case up to that moment committed mistakes, the ends of justice being thereby defeated. No substitute was proposed in this Bill for the present system, and believing that justice would in many cases be defeated were that system to be abolished without any other provision taking its place, he could not support the measure. MR. SCOURFIELD, as a member of the Commission of 1855, remarked that the evidence of the Lord Chief Justice was irrelevant to the question now before the House, his examination having been confined to the appointment of public prosecutors. While admitting the right of the hon. Gentleman to bring forward this proposal, he must say that it was inconvenient to deal with matters of legal procedure in this patchwork manner; and if an alteration were required in the administration of the law, he would rather see a Bill introduced by the responsible advisers of the Crown. In his eighteen years' experience as Chairman of Quarter Sessions, he could hardly call to mind a case in which improper motives could have actuated the committal, and so far from its being the vice of the age to prosecute people improperly, he believed that for one person who was improperly convicted there were 999 who were improperly acquitted, or, he should rather say, who were not brought under the cognizance of justice at all. The question of the appointment of a public prosecutor could scarcely be discussed on this occasion; but he was persuaded that the Bill would make matters worse in every respect, and he hoped that after the expression of opinion that had taken place, the hon. Member would not put the House to the trouble of a division. MR. DENMAN said, that as it had been stated that certain members of the Bar were in favour of the Bill, his opinion as a MR. NEATE said, as no hon. Gentleman had said a word in favour of the Bill, except the hon. Mover, he hoped he should be allowed to offer one or two remarks. He thought that the present system of prosecutions was most defective, and that it was kept up for the mere sake of economy. It appeared to him that the magistrates' clerk-who was the person employed to prepare the depositions-was not the proper person to conduct the prosecution. The hon. and learned Gentleman the Member for Tiverton appeared to think that if the conduct of these prosecutions were not left in the hands of the magistrates' clerk there would be a failure of justice. It, however, occurred to him (Mr. Neate), that there was probably a failure of justice in some cases in consequence of the prosecutions being left in their hands. It was quite clear that if a scale of allowance was fixed in the different counties, which would give a sufficient remuneration, respectable attorneys would be found to conduct the prosecutions. There was no doubt that the whole system required revision. He, how |