Review: Warren's Law and Practice of Election Committees. 435 adopt the language of Lord Eldon, 'the pro- Now, if the proprietors of The Times had position is clear, that no man can be compelled a difficult matter of business to manage; if to answer what has any tendency to criminate they were in perplexity in an action for a himself." There is a cloud of authorities to libel wherein they had to collect informasupport that proposition, as laid down by this tion which would satisfy a Court and jury transcendent lawyer,—and which is recognised that they had not exceeded the large power in the United States, as well as in this country, -that if the fact to which the witness is inter- conceded to the press in animadverting on rogated, form but a SINGLE REMOTE LINK the conduct and motives of the parties cenin the chain of testimony, which may implicate sured, they must employ agents to transact him in a crime or misdemeanour, or expose the business. The editor and his subordihim to a penalty, or forfeiture, he is not bound nates cannot leave their posts :-to whom to answer, nam nemo tenetur seipsum prodere.' then would they apply? Why, to their Now, bribery is a misdemeanour at both common and statute law, entailing on both parties very able, cautious, and energetic solicitor to it fine and imprisonment, the forfeiture of who would do that in their behalf which no other person-whether barrister or corres-the franchise, and pecuniary penalties; and no or talentedwitness, consequently, is bound to answer any pondent, however learned question tending to implicate himself in such a could effect. In managing the details of misdemeanour. Whether the answer may an election, let it be recollected that an attend to criminate himself, or expose him to a torney, besides having the confidence of his penalty, or forfeiture, is a matter not left abso- client in all transactions relating to his prolutely to the witness, but to the court, to determine, under all the circumstances of the perty, knows his tenants, and all means of fair and just influence,—is essentially a man case, as soon as the witness claims its protection. The court will not require him fully of accurate habits of business,-accustomed to make arrangements for the punctual execution of complicated matters, and can effect the greatest amount of business within the shortest time. Moreover, the attorneys who attend the Revising Barristers' Courts on the registration of voters, who are engaged in supporting or opposing the claims to vote, are the only persons fully acquainted with the state of the register, and are able to advise safely on the progress of the election. to explain how the apprehended effect might be produced, which would be simply compelling him to give the very evidence which he is entitled to withhold. It appears to be still an undecided point, whether the mere declaration of a witness, on oath, that he believes the desired answer would tend to criminate him, will suffice to protect him from answering, where the other circumstances of the case are not such as to induce the judge to believe that the answer would, in reality, tend to criminate the witness, or have that effect. The full operation of this protective rule, would be undoubtedly to restrict within narrow limits the disclosures which it is expedient for the public interests that Select Committees should have power to compel." Having thus adverted to those parts of the work which appear peculiarly interesting, as well to the honourable candidate as to the solicitor who has the management of the proceedings at an election, we may not inappropriately notice a leading article in The Times of the 11th of March, in reference to the influence of attorneys on such occasions which it was supposed they had brought to bear on the question of the repeal of the Certificate Duty. The writer says: We are aware, of course, that according to recent disclosures, other persons, as well as lawyers, have been engaged in these delicate transactions; but we think it has for the most part appeared that, with few exceptions, the blunders in such cases have been generally committed by those who are unskilled in the practice of the law. Mr. Warren's book has the merit of pointing out all the dangers and difficulties which exist in Parliamentary elections, from the inconsiderate and injudicious conduct. of friends and agents unacquainted with, or careless of the provisions of the law, to the unscrupulous agent who measures his merits by his success, without regard to the means by which he has attained it, or the successful result of a contest before a Parliamen"Perhaps the most intimate relation in tary Committee. We cannot but think, which attorneys stand to Parliament is the pe- therefore, that the best and safest agent in culiar and very delicate assistance they have the conduct of a contested election is an invariably rendered in procuring the return of the members themselves; though why an at- attorney of intelligence, respectability, and torney should be wanted at all, it is not easy to experience. say, when all that is to be done is for the candi date to declare his sentiments and the electors to choose or reject him." z 5 436 Certificate Duty-Certificate Tax injurious to the Public.-Opinions of the Press. ANNUAL CERTIFICATE DUTY. We have but little to add to the information which we have from time to time been enabled to lay before our readers. Before our next publication the Parliament will have re-assembled, and the Chancellor of the Exchequer, according to his promise, will have fixed" an early day" for making his financial statement. It will have been observed in the report of the debate on bringing in the Bill on the 10th of March, that the right honourable gentleman intimated that the Government might be disposed, in lieu of repealing the Annual Certificate Tax, to abate the duty on the Articles of Clerkship, which, he said, fenced in the attorneys, operated as a monopoly, and restrained free competition. This supposed concession would be no boon to the members of the Profession who have all paid the duty. In truth, if there is to be "unrestricted competition" in the law, all the three taxes should be repealed. It happens, however, that the certificate duty was first imposed, and ought to be first removed. The others may follow if the money can be spared; but at present the attorneys are willing to leave the 1207. on articles and 251. on admission undisturbed. These taxes, yielding 84,000l. a year, afford an answer to the auctioneers and others who also pay a personal tax, but to which they submit on account of its protecting them from the inroads of a multitude of petty competitors, who, having no probation through which to pass (like professional men) would spring up and reduce the emoluments of the present licensed auctioneers. The offer, therefore, if it can be so called, of the Chancellor of the Exchequer, should be respectfully declined. In the mean time, before the second reading of the Bill, every practitioner should put his name to a petition for the repeal of the tax, and write to every member with whom he may be acquainted. The demand is a just one, and ought to be granted. THE CERTIFICATE TAX INJURIOUS AMONGST the Petitions against this obnoxious impost, we observe the following statement, showing its injurious tendency in relation to the public : "That the case of the attorneys is distinguishable from that of auctioneers, &c., inasmuch as the latter do not pay 150%. or more as taxes on their articles, admissions, and commissions, in addition to a premium; but your petitioners have no doubt that all taxes of this description stand in the same category, and react in a manifold degree on the public, and increase of tax on auctioneers, whose charges this has been recently experienced since the have been enhanced commensurately, and fre quently beyond it; this being the invariable and natural consequence of a tax imposed on the necessaries of life, whether food or raiment or the requirements, also indispensable, of professional services of any kind, whether legal, medical, or any other, and it would be equally latter as our Profession, and your petitioners impolitic (though alike in principle), to tax the are impressed also with the conviction that all taxes of the same class (beyond a trifling amount for the expenses of a registration, in cases where it is expedient), have a tendency to demoralisation, by tempting to a practice of self-redress through extortion." No respectable attorney thinks of making a higher charge, or increasing the number of items in his bill of costs, on account of the annual tax; but amongst 10,000 men it may not uncharitably be supposed that some of them "recoup" their outlay in the course of the year by ingenious charges which the Taxing Master cannot strike off. On grounds of policy, therefore, as well as justice, the tax should be repealed,-pressing as it does on the honourable practitioner, whilst the unscrupulous repay them selves with interest for the advance. OPINIONS OF THE PRESS ON REPEAL ING THE CERTIFICATE DUTY. thus continues its support of the proposed The Morning Post of the 24th of March repeal of this oppressive impost :— the attorneys' certificate duty on the ground "The Chancellor of the Exchequer defends that the law gives the members of that branch of the profession a virtual monopoly. He says, it were-around the profession of an attorney. "The law had erected a high fence-a wall, as and it likewise imposed upon that profession certain burdens. The noble lord's proposal was to take away the burdens, but to leave the Opinions of the Press.-Taxation of Conveyancing Costs in Chancery. 437 fence just as it was.' In other words, the wall they have a right to advance their claims to is the stamp duty of 1207., and the burdens are the indulgent consideration of the legislature ? the certificate duties of 127. and 87. Consider- "It cannot be doubted that the tendency of ing the highly confidential, important, and dif- all modern law reforms has been to diminish ficult duties which solicitors and attorneys are the gains of professional men. Supposing that constantly called upon to perform, the Legisla- their profits were at one time so inordinate ture can scarcely be said to create a monopoly that they scarcely condescended to notice this by guarding the very threshold of the profession exaction of 121. or 8., the case is now very by an impost which, with the compulsory exa- different. Law in all our courts has become mination, affords some guarantee to the public cheap, and has been brought home to every against the admission of improper and unqua- man's door; and, although the junior common lified persons. The barrister pays his stamp law bar has suffered more materially than have duty on admission and on call to the bar, but the solicitors by the change, we do not believe here the power of the Chancellor of the Exche- that the latter are in such flourishing circumquer ends, unless the young barrister makes stances as to think that an annual item of 121. 150. in his first year, when, of course, the or Sl. is altogether unimportant in their yearly income-tax collector commences his disagree-disbursements." able visits, and exacts the inevitable 7d. in the pound. TAXATION OF CONVEYANCING COSTS IN CHANCERY. IT will be recollected that the late Lord "The case of the solicitor and attorney is entirely different. He first pays a large stamp duty, and then is for ever afterwards required to pay a certificate duty, to enable him to carry on the business of his profession-to enable him, in fact, to make a single shilling. Should Chancellor St. Leonards, on the 24th of his income amount to 1501., he has to pay the December last, intimated to the Taxingadditional tax of 7d. in the pound. It has Mastersbeen said-you tax the banker, the auctioneer, the horse dealer, ergo, it is just to tax the at"That in his Lordship's opinion, where, in torney. There is not the slightest analogy pursuance of any direction by the Court or between these cases. The millionaire who Judge, or of any request by a Master in Ordiwishes to open a bank, or the auctioneer who nary, drafts are settled by any of the conveyhopes some day to reign supreme at Garraway's, ancing counsel, under 15 & 16 Vict. c. 80, s. is not compelled to pay a preliminary stamp 41, the expense of procuring such drafts to be duty, or to serve an articleship of five years counsel, is not to be allowed on taxation, as previously or subsequently settled by other before he can commence business. They go between party and party, or as between soliwith the money in their hands, and directly they have paid the duty they commence busi- citor and client, unless the Court shall speness. The articled clerk has not only to pay a cially direct such allowance. This intimation, stamp duty of 1207., and to serve five however, is not to prevent the allowance of the years, but he has to undergo an examination, which is expense in cases which may already have ocnot a mere matter of form, but a bona fide test curred, where, in the judgment of the Taxingas to his moral and professional qualifications. Master, there has been a reasonable ground for The doctor pays a stamp duty on his diploma laying the papers before other counsel." -for the arms of the Chancellor of the Exchequer, like Briareus, stretch everywhere and reach every person—but he is not compelled to pay an annual duty, to enable him to dispense medicine and to visit his patients. There appears to be some difficulty in carrying this direction into full effect. Where there is no expectation of the parties disagreeing in the form of a deed, the "We, therefore, think that the case of the at- instructions and papers are laid before the torney's certificate duty is an exceptional one, Conveyancing Counsel usually employed by and that it is well worthy of the considerate the Solicitor who is entitled to prepare the attention of the Chancellor of the Exchequer. deed. If afterwards a difference of opinion The amount which it produces is 120,000l. a should arise, and the question be brought year-a sum easily levied-which, in the eyes before the Judge at Chambers, or the Masof a Chancellor of the Exchequer, must cover a multitude of sins of injustice; but it is never- ter, and he should not be satisfied with the theless a practical restraint upon industry, form of the draft, he may of course refer which, in these days of quasi universal free the question to one of the six Conveyancing trade is an anomaly, and something more. Counsel; but it seems unjust to disallow But the Chancellor of the Exchequer protests the fee paid to the party's counsel,-the that the decision of the House upon such a point may disarrange the whole of his budget. previously to any question on the subject. papers having been submitted bond fide No doubt it may—no doubt it is extremely inIt cannot of course be intended that the convenient that 120,000l., at one fell swoop, should be abstracted from the ordinary revenue patronage of the Lord Chancellor should of the year; but have not the remonstrants at operate to the injury of the Conveyancing this particular time special reasons on which Counsel, usually consulted by the respective 438 Proposed Affirmations in Lieu of Oaths.-Expenses of the Court of Chancery. solicitors. No doubt the Lord Chancellor acted. The service of writs, summonses, &c., will remedy any grievance of this kind as the due attendance. at Judges' Chambers, the soon as it may be brought before him. acknowledgments of married women, and all similar cases, ought to be proved by declaration. The slight temptation to untruth (if PROPOSED AFFIRMATIONS IN LIEU there be any) would be as effectually counterOF OATHS. acted by a dread of the penalties annexed to a misdemeanour as by a dread of the guilt or temporal consequences of perjury; and by making the administration of an oath an event of rare occurrence, we should proportionably enhance the public regard for the sanctity of an oath. SIR, I am rejoiced to find that an agitation is in progress with a view to the extension of the Act substituting, in certain cases, declarations in lieu of oaths. The honourable member by whom the subject was brought before the House of Commons the other even- I should be glad to know whether my sentiing, appears to project the total abolition of ments are participated in by yourself and by oaths. This is perhaps going a little too far. the Profession of which I am a member. In public Court-when questions of life, liberty, or property are at stake-the check afforded by an oath may properly be required. All that can be asked in such a case is, that in administering the oath, due solemnity be observed-which, I regret to say, cannot be affirmed is the case at present. It has been, however, by me a long-entertained opinion, that in no case but in giving testimony in Court should an oath or affirmation be ex Should it fortunately happen that your views are in accordance with my own, I would urge upon you to exhort the Incorporated Law Society and the kindred societies throughout the kingdom, to second with their influence the exertions of Mr. Pellatt, and confident that so good a cause in such able hands could not fail to be victorious, would leave the matter with you in full assurance of success. A. Z. THE ACCOUNTANT-GENERAL'S ACCOUNT OF THE EXPENSES OF THE COURT OF CHANCERY AND RECEIPTS FOR FEES. PAYMENTS OUT OF THE SUITORS' FUND, For the Year commencing the 2nd of October, 1851, and ending the 1st of October, 1852. £ s. d. £ s. d. 6,795 17 5 4,321 5 4,305 8 9 1,253 2 4,854 494 3 4 3,601 1 1 25,638 19 4 873 15 0 436 17 8 6,716 17 0 436 17 8 8,464 7 4 582 10 0 194 3 4 776 13 4 255 7 5 Usher Court-keeper Persons to keep order Tipstaff. Serjeant-at-Arms 291 5 2 11 74 16 7 569 3 08170 |