§ On the Motion for recommitting this Bill,
§ The Earl of Eldonrose and said, that if the measures then before their Lordships, and the Bills in the other House, the object of which was to alter the existing state of the law were passed, as it were, in a mass, the consequence would be a great deal of mischief and confusion. In opposing those measures, he was not actuated by anything personal—far from it. He protested before their Lordships, that nothing but the most sincere wish to do his duty, and more particularly to the poor subjects of this country, could induce him to give the determined opposition which he meant to give to the present Bill. He would say Let the Bill go over and over again through a Committee, and if it could be so altered as to meet his views (which he feared was impossible), he would not further oppose it; but if the contrary were the case, he would come down on the third reading of the Bill, and enter his protest against it." He begged leave to examine the Bill a little in detail. Was it a Bill for at once establishing Local Courts throughout the country? No such thing. It went to alter the whole course of proceedings under the common law, by selecting such counties, or parts or districts of counties, as those to whom the power was given, might think fit and proper places wherein to try this new experiment. What would be the consequence of this? Why, there would, under this system, be one mode of administering the law in one county, and another in another county. In some districts they would proceed according to the existing law of the land, while in others, they would have recourse to the Courts established under this Bill, for the purpose, he supposed, of enabling people to judge whether the new system, or the Common-law, worked best. The profession 1106 of the law were more disinterested than the noble and learned Lord on the Woolsack seemed to suppose. The Judges were willing to assist in effecting any improvement or wise alteration in the law, although they might view with some apprehension so extensive and sweeping a measure as this. He objected to that part of the Bill which related to the appointment of Judges in the Local Courts. There was a wide difference between the way in which the law was now administered by the sages of Westminster-hall, and the way in which it would probably be administered by young men of ten years' standing at the bar, or sergeants who might not he of ten years' standing. There were many contradictions and discrepancies in the Bill. The first clause assumed the positive necessity which existed for the establishment of Local Courts, while the second spoke of the matter as being neither more nor less than a mere trial—a mere experiment. Under this new system, the country Commissioners of Bankrupt would be superseded. Now, he knew, from his own experience for many years, that the country Commissioners of Bankrupt were a most estimable body of men. Many of them had been at the bar, or had practised as solicitors, for a long period of time; and he knew not of any delinquency having ever been committed by any of them. He could not approve of a measure by which a young barrister was to be sent down to supersede the Judges of the land. Such a barrister would be empowered under this Bill to meddle with the real property of individuals, to deal with estates, either in possession or reversion, where verdicts were obtained in one species of cases for 20l., and in another for 50l. He objected also to the Judge, who had fruitlessly attempted to reconcile a cause, being afterwards allowed to preside at the trial of that cause in the Local Court. Against that, there was no provision in the Bill. He would pay proper attention to the Bill, if it got into Committee; but he could not conceive any alteration that could be made in it that would lead him to give his consent to such a measure. He should not say a word in the Committee, because he could not see what alteration could be made in the measure, so as to render it a safe and proper one; but if the Bill arrived at a third reading, he would come down, and with all his heart and soul, register 1107 his dissent to the measure. It might be considered the opinion of a superannuated lawyer; but such as it was, the present generation and posterity should be apprized of it. His Lordship concluded by moving. That this Bill be re-committed this day six months."
The Lord Chancellorsaid, he was sure his noble and learned friend would believe that he was sincere when he expressed the great respect which he must naturally feel for his long and mature experience; and he would further observe, that any opinion which his noble and learned friend might form, however different it might be from his own, must always command his attention. The alarm respecting Law Reforms, however, which on this, as on former occasions, his noble and learned friend had manifested, seemed to deprive him of that acuteness and accuracy of judgment which were necessary in coming to a correct knowledge of the nature and principles of the intended alterations. He confidently expected, that when the measure was reduced to its proper size—when it was shown in its own true and natural dimensions—when it was proved that it was not likely to produce those evils which the scared imagination of his noble and learned friend had predicted, it would receive the sanction of the House. He could not, however, and he was sorry for it, hope for the support of his noble and learned friend to the measure,—he could not hope, that his noble and learned friend would hereafter feel less repugnance to it than he did at present. First of all, his noble and learned friend, exercising his own judgment on the subject, had assumed, that a mass of measures, having extensive law reforms for their object, were to be considered at once—were to be taken in the lump—were to be swallowed at one gulp—without any time being given for deglutition or digestion. So far from that being the ease, the purpose of those who had the care of these measures was to avoid such haste—to render it, impossible, if any thing could effect that, for any one to bring that charge. To attempt to preclude the bare possibility of himself and his learned friend being subjected to such a charge, the measures had all been separated; they had been kept sedulously apart; one by one they had been propounded to their Lordships—one by one they had been brought forward, with such explanations as could be given of 1108 them—and on no occasion had their Lordships been called on to consider more than one of them. All that he and his learned friends had done on any occasion, and all that their Lordships had been called on to do on any given evening was, to advance one of these measures one little moderate step. His noble and learned friend had expressed himself sorry that they were legislating in such a hurry; but to show how slowly they had proceeded, he would just advert to the course which had been pursued. First, the principle of the Bill was, by agreement, to be taken and discussed on the motion for going into Committee. He (the Lord Chancellor) came down and opened the measure to their Lordships, a debate ensued, was brought to a close, and, without a division, the House resolved itself into a Committee on the Bill. Why, then, one would have thought, when their Lordships had gone into the Committee, and disposed of the principle of the measure—when, in fact, they had been twice in Committee, and made amendments in the Bill, that all further opposition to the measure as a whole would have been at an end. But now, on a motion for recommitting the Bill, up got his noble and learned friend, and made a motion which was directed, not against the details, but against the principle of the measure which had already been recognized. He never knew such a course to have been adopted in either House of Parliament. On the motion that the House should resolve itself into a Committee, into which they had previously gone, and in which they had made some progress, and when they were about to make still further progress, his noble and learned friend rose and proposed the extraordinary amendment, that the Bill should be recommitted that day six months, instead of going on, and making some further progress in this great question. This course of proceeding was somewhat hard on their Lordships. He would not complain of any inconvenience which it had caused to himself, although he must say, that it was a hardship on him also. They had taken the debate on the principle—they had gone into Committee—night after night, by considering the Bill in Committee, they had admitted the principle—and yet several attempts had afterwards been made to impugn it. One night he had a long argument with one noble and learned friend (Lord Lynd- 1109 hurst), when the principle of the Bill was largely discussed; that noble and learned friend came down on another night, and, on the motion for committing the Bill, entered on the same subject; and now, when they were about re-committing the Bill, he was compelled again to renew the debate with his other noble and learned friend. When this debate was closed, and his noble and learned friend's motion was negatived, as he hoped their Lordships would negative it, after they had gone into the Committee, and made some progress, he supposed some other noble Lord would, on a future occasion, come down and renew the discussion of the principle of the measure, renew the debate, renew the opposition to the Bill, and with precisely the same result. He knew not where this sort of proceeding was to end—he knew not when the discussion was to terminate—if this plan were adopted; because he who was defeated one night, might, after three debates, come forward and raise a fourth debate; another noble Lord might raise, in the same manner, a fifth debate, and thus create an immensity of delay. They might still go on thus debating the principle of the Bill (after it had been decided on), day after day, and that too on one stage of the measure. This, he thought, a most extraordinary mode of meeting a question. He never knew it to have been adopted in the greatest heats that had prevailed in either House of Parliament. He had never known such a system to have been acted on in the House of Commons, amidst the fiercest debates, for the purpose of carrying any point. Such a course had not been pursued even on that great question, the Reform Bill, although the greatest disposition to oppose and to obstruct it prevailed. On that occasion, the course of opposition which noble Lords now adopted had not been brought forward in either House of Parliament. He judged, from some of his noble and learned friend's objections, that he had misunderstood, because he had certainly misrepresented, the details of this Bill. His noble and learned friend complained that it was an experiment. In one sense he would claim the expression, he had made use of it himself, but certainly not in the sense in which his noble and learned friend used it, nor in the sense in which it had been used by his noble and learned friend the late Chief 1110 Justice of the Common Pleas, from similar inadvertence. There was no one that ever mooted the question of local courts for the last fifteen years—and he followed several who had done so—who was not convinced that the establishment of those courts was expedient—that such courts were necessary—that the lime had come when this great and salutary improvement of the law should be carried into effect—that the Legislature was called on to grant this mighty blessing—this act of common justice to his Majesty's subjects. It was no experiment therefore on this point—namely, whether these courts were expedient or necessary, or ought to be established. If any noble Lord doubted this, and much less if he denied it—if he thought this was an experiment in the sense of the noble and learned Lords to whom he had alluded—he certainly would have no right to expect that noble Lord's support on this occasion. But the Bill proceeded on a principle which was firmly established—namely, that such courts ought to be established. That point was settled. But thus far it was an experiment—it was deemed necessary to ascertain how the principle worked, in order that they might know how to construct the machinery for carrying it into effect; and render its details perfect; and, therefore, it was proposed to establish two or three of these courts in different places before they were spread over the whole country. They would thus have the advantage of knowing how far the details answered—how far the machinery of the Court was effective—how far the minuter parts of the system were adapted to answer the proposed end, which it was impossible for them to know till they had had the benefit of experience. They would thus be enabled to avoid evils, and introduce that which would be advantageous according to the information which the trial might afford. There was, however, no question whatever as to the expediency of establishing those Courts; that was decided, and in that there was nothing of experiment. All that was aimed at in taking this course was to give a fair trial to the working of the details and machinery of the measure, in order that they might see what they would do. To show how unfairly men, actuated by strong feelings, and anxious to advance, even at hazard, strong objections against a measure, were apt to conduct themselves, he 1111 would just advert to what had been alleged against this measure and the introducers of it. If he had at once said, Let those Courts be immediately estabilished over all England—let Local Courts be fixed in every county or every part of a county, where it may seem desirable, "would not his noble and learned friend have exclaimed—" What! are you going to establish twenty or twenty-five Courts, before any mortal man can possibly know whether the machinery of those Courts is adapted to your purpose? I recommend you, in the first instance, to try three or four Courts; you will then see how the machinery of the proposed Bill is likely to answer, and you will know how to proceed. Improvements may be suggested, and then, and then only, you may spread those Courts all over the country." His noble and learned friend objected to the machinery of the Court of Reconcilement, and spoke of the inexpediency of making the Judge of the Local Courts also a Judge in cases of reconcilement, inasmuch as if he failed in reconciling the parties, he would not be able with any degree of propriety to try the cause. His noble and learned friend complained, that this difficulty was not provided for, but it certainly was, and the only thing necessary was to take two contiguous districts and unite the Courts to this extent, that reconcilement cases which failed in the one Court should be taken as actions to the other. His noble and learned friend had alluded to him as attacking the profession of the law to which he had the honour to belong (a profession to which, and to the members of which, he felt as sincerely attached as his noble and learned friend), and his noble and learned friend appeared to blame him for having described some of the members of that profession as being hostile to changes and improvements in the law, and liable to the general charge of illiberality. Now he certainly had stated, and was ready to repeat the statement, that it was not unnatural, but the very contrary (though much to be regretted), that from their character and habits lawyers were much averse from change in any part of the system under which many of them had lived long, in which they had grown old, and to which they were attached; that they were, beyond all bounds of reason or justice, averse, not so much on account of their own interest, in many cases (such as that of his noble and learned friend), as in consequence 1112 of irresistible prejudice, from any material alteration in the law; and, further, that in a great number of cases they were influenced in their opposition to change by views connected with their own interest, by which they could not help being swayed, and for being swayed by which he did not blame, but, on the contrary, commended them. Under such circumstances, it was perfectly natural that persons in the legal profession should be extremely set against improvements in the law, and should oppose them with all their might. He said nothing against that; it was quite natural and unavoidable; but that was no reason why he should yield to the opposition, and above all it was no reason why their Lordships should yield to it. It might be the interest of the legal profession to resist such bills as the present; but it was not the interest of the country or of suitors that they should be successfully resisted; and their Lordships would bear in mind also, that the interest of members of the profession of the law constituted no reason for the Legislature turning a deaf ear to the cases of those who were the prey of the profession, or, more properly speaking, of the abuses and faults of the existing system. He would go further, and say, that the system itself might be to a considerable extent good—its foundation might be solid, and the bulk of the superstructure pure—the benefits connected with it might outweigh its defects; all this might be perfectly true of our legal system, but did it follow that we were not to introduce all the improvements which it required, and of which it was susceptible? He asked their Lordships, or any other men living who had no sinister motives or private interests to warp their judgments, whether beneficial alterations ought to be impeded because there was a reluctance in the profession to admit them? He appealed from the narrow prejudices of a few individuals, and from the interested views of more, and from the sinister motives of others, to the good sense of their Lordships and of all mankind—he appealed from those whose prejudices, quite apart from, and independent of, any possible private interest or personal motive, leagued them (as in the case of his noble and learned friend) with the interested members of the profession, and induced them to lend their powerful co-operation to those who were stedfastly set against all 1113 improvement—he appealed from such individuals to the country. This system of local jurisdiction, which had been described as all but a revolution, which was characterized as unsettling the foundations of property and tearing up law by the roots, had been in a considerable degree the law of Ireland for the last half century. In that country a similar system, extending like the present to sums of 20l, had long existed without causing society to be disorganized, the country to be laid waste, or the foundations of property and all rights to be destroyed. Not one of the speculators and theorists who had of late years discussed Irish affairs ascribed the mischiefs of which they complained to the jurisdiction of Assistant Barristers under the civil Bill process, yet, as he had already stated, to the extent of 20l. the Local Courts of the Assistant Barristers, possessed jurisdiction all over that part of the kingdom. When Lord Clare first established that system, he was charged, pretty much, as another Chancellor had lately been charged, with an unnatural hatred of his own profession, with a neglect of their interests, if not with a disposition to destroy the profession. Lord Clare despised these charges; he went on; the Legislature adopted his plan in –1794 or 1795, about the period of the French revolutionary war, when there existed a morbid hatred of all improvements, provided they were to be effected by any change in existing institutions; notwithstanding that, the Legislature adopted the measure which had been since to the unspeakable benefit of that part of the kingdom, the law of the land. His noble and learned friend had made some remarks on the subject of the bankruptcy system, and he confessed he did feel a little surprised at the course of his noble and learned friend's observations. His noble and learned friend said so much in praise of the existing system, and lauded all persons connected with its administration so highly, more particularly the country Commissioners, that he could hardly believe his own ears when he heard such an eulogium fall from the noble and learned Lord's lips. Either the Court of Chancery, he thought had produced a marvellous effect on his noble friend, or else his noble friend's retirement from that office which he now so unworthily filled had worked a mighty change in his noble friend's sentiments; for it did so happen, that the first or second 1114 day of his noble and learned friend's taking his seat in Court was signalized by an opinion on the operation of the bankruptcy system, his representation of which he (the Lord Chancellor) scarcely flattered himself he could persuade their Lordships to be true, unless he quoted the actual words made use of upon that occasion. The Lord Chancellor took the first opportunity to express his strong feeling of indignation at the frauds committed under cover of the bankruptcy laws, and to declare his determination to do all in his power to repress them. His Lordship added with considerable warmth, that the cause of the Bankruptcy Law was a disgrace to the country, and that it would be better at once to repeal all the existing statutes on the subject, than to go on as at present." [The Earl of Eldon: Yes, but I did not come to Parliament.] That was true; his noble and learned friend did not come to Parliament, but he thought it safer to come to Parliament and ask it to decide on the subject, than, sitting as Judge in a Court without appeal, to pronounce his own opinion. Surely this latter would be a far more questionable course than coming, as he did with all humility, to ask their Lordships to amend a law which admitted of so many abuses. Their Lordships recollected what had been said about security of property, and the general advantages and good of all persons under the existing system. Let them see how that system worked, according to his noble and learned friend, who went on to say, There is no mercy shown to the estate; nothing is less thought of than the objects of the Commissions. Commissions, as they are frequently conducted in the country, are little more than so much stock-in-trade for the Assignees, the Solicitors, and (whom did their Lordships think?) the Commissioners." Here, then, according to his noble and learned friend, was a most unholy alliance amongst the very parties whom he now commended—an alliance formed for the flagitious purpose of pillaging the bankrupt's estate. His noble friend proceeded to state, that instead of solicitors attending to their duty in a proper manner, as Ministers of the Court in Commissions of Bankruptcy, Commissions were treated as matters of private and personal interest—in fact, as so much stock in trade." His noble and learned friend added, that unless a tight hand 1115 were held upon Commissions, they would become as great a nuisance as any in the land. "Such were his noble friend's sentiments in 1801. Now he did not mean to say, that in the present day things were not greatly better than at the time when they called forth these animadversions of his noble and learned friend; it might be that they were; but any one who had practised in a Court of Law or Equity—any one who had lived in the profession half as long as he had done must know, that though there might not be now the same grounds for this excess, or, perhaps, not excess, but bulk of vituperation, as in 1801, yet, nevertheless, thirty-one years had not so entirely purified this branch of practice as not to leave any cause of blame—any reason for these or other changes and improvements nor any paramount necessity for making them. He must again remind their Lordships, that he had proceeded with caution in this matter; for his noble friend must remember that when a Bill had been introduced two years ago—a bill which, he must say, was as beneficial as any that had been introduced into Parliament in our times; (and in saying so he was only speaking on the authority of all those commercial men in the city with whom he had had any communication—he meant the Bankruptcy Court Bill) when that Bill, was introduced he had announced his intention of introducing the present measure after the other should have been tried in London—after its good effects, which he fully expected, had been felt in the metropolis, that then, with the improvements to which experience might suggest, the plan might, according to the preamble of this very Bill, be extended to the rest of the community with all the benefit of those improvements. The former Bill had succeeded, not past all expectation, but so as fully to realise all the most sanguine hopes entertained of it; and now was the time, in compliance with the wish, not of the Bar of the provinces—not of the solicitors of the country towns—not of their clerks and dependants, who might be supposed to have an interest—not as profitable an interest as it had been, but still an interest in the matter—but in compliance with the wish of the merchants, manufacturers, and tradesmen, to establish a similar measure in the country; and now the time was most favourable, when the establishment 1116 of the Local Courts would enable them to execute the plan with even still greater effect. Last of all, as to this being a hurried legislation. His noble and learned friend, in making this accusation, must have forgotten the course which had been pursued. He had first brought this Bill into the other House three years ago; it then underwent great discussion. He had no sooner been placed in the situation he now occupied, than he brought the Bill into this House. It was propounded by him to the consideration of their Lordships, and after going at length into the nature of the measure, he brought in the Bill. That was in the year 1830, at the close of the year. It stood over for a few months for further consideration, and he renewed it in the ensuing Session. At the suggestion of a noble and learned friend, it was referred to the Commissioners of Inquiry into the state of the Common-law; they reported in its favour; and how it could now be said, after all this, that the measure had been introduced in a hurry, he was at a loss to imagine. If he had been charged with proceeding too slowly, or pursuing, according to a fashionable phrase of the day, a vacillating line of conduct; or if he had been charged, as the Government were sometimes charged, with infirmity of purpose, he should have felt more difficulty in meeting that charge, than he did in meeting the charge of having proceeded with too little deliberation. He thought that three years might, by dispassionate men—three years so occupied in that and the other House of Parliament, and by investigations before Commissioners—be deemed proceeding too slowly; but that hurry, impetuosity, and want of due deliberation, should be made a charge against him, was the last thing he could have expected, or against which he should find the slightest difficulty in defending himself. He ought to apologise for addressing their Lordships three times upon the principle of this Bill; but as long as the course was adopted of debating that principle piecemeal, he was left without a choice, and was obliged to meet the objections as they were made.
§ The Earl of Eldonadmitted having complained of the working of the bankruptcy system in 1801, but he endeavoured to repress the evil in his judicial capacity, and did not come to Parliament for assistance.
§ The House divided on the Question 1117 that the Bill be recommitted—Content 52; Not-content 38: Majority 14.
§ The House went into a Committee.
§ Upon the first Clause being proposed,
§ Lord Wynfordobjected to the increased patronage which the Bill would confer upon Government. With a view to try the experiment fairly, and upon a moderate scale, he should move, by way of amendment, to omit the words "for any one or more county or counties, riding or ridings, and insert in their place for the counties of Lancaster and Kent." He named those two counties, in order to see the working of the system in a manufacturing and agricultural district.
The Lord Chancellorsaid, that the amendment of his noble and learned friend would have an effect the very reverse of that which he proposed. As to the allegation, that this Bill would increase the patronage of the Crown, he at once admitted the fact, and he regretted it; but he did not see how it could be avoided. He once thought, that he saw a way of disposing of the patronage without vesting it in the Crown, it having been suggested that it would be a good way to vest it in the Lords-lieutenant of counties; but, on consideration, it was thought that this would be a very bad way of disposing of it. It was next suggested, that it would be well to vest the appointments in the Sheriffs of counties; but this also was abandoned as not being likely to lead to any satisfactory result. The Judges were next mentioned as proper depositories of this patronage, but he thought that those were still more objectionable as dispensers of patronage than either of the others, for, in his opinion, those learned personages could not be kept too free from any contact with matters of patronage; and, indeed, he regretted that, even that of the appointment of the revising barristers had been vested in them. On looking at every mode of disposing of this patronage which had been suggested, he thought that the least objectionable would be that of vesting it in the responsible advisers of the Crown, acting as they would in the face of the public. It was well known, that when he first introduced this measure in the House of Commons, he bad proposed that the patronage should be vested in the Crown, and that, it would be remembered, was at a time when neither he, nor any of those friends with whom he acted, could have had any idea, that they would be the dispensers 1118 of that patronage. He would now say one word as to the salaries to be given to the judges to be appointed under the Bill; and he must observe, that if Parliament should give only small salaries, the Bill would fail. The wisest plan would be, to make it well worth the while of men of talents and ability to accept the appointment. Referring to this subject, a noble Baron had made a wild calculation as to the expense which the measure would occasion to the country, which he estimated at the enormous sum of 300,000l. That was, however, far beyond the actual amount, for if the whole number of Judges suggested by the Commissioners were to be appointed, it would not exceed 50,000l.; and if twenty-five such Judges were to be named, the whole expense would not exceed 60,000l. a-year. He should greatly regret the necessity of having any part of this paid out of the fees in Court; and he thought that if a fund were provided for the purpose from any other source, it would be so much the better; but if the payment by fees, even in part, should be resorted to, it would not alter his opinion as to the impolicy of that mode of payment.
§ Lord Wynfordconcurred with his noble and learned friend, that the patronage which would accrue under the Bill should be vested in the responsible advisers of the Crown. He admitted, that giving it to Lords-lieutenant or to Sheriffs, would be bad policy, and that it would be still worse to vest it in the Judges of Assize; for though he had had the honour of sitting as a Judge himself for many years, and though he had the highest opinion of the integrity of the learned Judges—and no men could be more entitled to the highest respect—he thought that the less they were mixed up with questions of patronage the better.
§ Lord Lyndhurstadmitted, that if the experiment were made only in two counties, it would be unsatisfactory and inconclusive. What he objected to was, that the Crown should have the power to name the number of the Judges and the extent of the districts in which they were to preside. This, he believed, was altogether unprecedented in legislating on matters of judicature; what he was anxious to learn from Ministers was, the amount of salary which they would propose for the learned Judges to be appointed under the Bill?
The Lord Chancellorsaid, that the question was not quite regular, considering that the amount of salary was to be decided 1119 in another place; but he had no objection to state to his noble and learned friend his own individual opinion of what those salaries ought to be, and it was, that it ought not to be less than 1,500l. a-year for each Judge; but, in saying this, it was to be subject to future discussion. He thought that the salary ought not to be less than the amount he had said at the least.
§ Lord Lyndhurstread the clause in the Bill, which stated that the salary should not be less than 1,500l. a-year, with such additions from the amount of fees as his Majesty might direct, so that the whole income of any such Judge should not exceed 2,000l. a-year. He would not offer any further objection; he felt that it was disheartening, and of no use to enter into objections against the details of a measure in which it appeared that so few of their Lordships took any interest
The Earl of Wicklowsaid, that the system of the assistant Barristers who presided in the Civil Bill Court, in Ireland, had given great satisfaction, and in one respect particularly—that the Barristers were not resident in the county. They were generally practising Barristers, who attended the Courts above, and went down to hold these Courts with fresh knowledge and experience each Session, and, what was more, free from those local prejudices and impressions which were inseparable from a Judge who was constantly resident in the county.
The Lord Chancellorsaid, that the system of Assistant Barristers in Ireland was so different from that which was proposed under this Bill, that it would be impossible to assimilate them. One objection to the attempt would be, that if the same system were adopted under this Bill as in the system of Assistant Barristers in Ireland, they must necessarily get a very inferior set of men as the Judges, because necessarily they must have men at much lower salaries. One great advantage of the proposed plan in this Bill would be, that the small local jurisdictions, the Courts of Request, and other Small Debt Courts, which in general at present did not administer justice either for the advantage of the debtor or creditor, or of the community at large, would gradually merge in the jurisdiction of the new Courts. In this respect, he thought there would be a great advantage in having a resident Judge.
§ Lord Lyndhurstwould mention one instance 1120 of a learned Judge, who in integrity and intelligence was not surpassed by any individual on the bench, yet that most learned person had given great dissatisfaction, by constantly choosing one circuit (the northern) for a great number of year: and if such an objection was raised in his case, it would, of course, be still stronger in the case of one of a Judge of inferior standing and acquirements.
§ The Amendment negatived, and the clause agreed to.
§ The 2nd and 3rd Clauses were then agreed to.
§ On the 4th clause being read,
§ Lord Lyndhurstsuggested that three or four Judges, travelling circuits three times a-year like the Commissioners of the Insolvent Court, would be a much more useful machinery than the twenty-five Commissioners to be appointed under this Bill. That was the system which he would oppose to the system of his noble and learned friend, and for this reason, that it would not detach these Courts so entirely from Westminster-hall.
The Lord Chancellorsaid, that there was nothing which you might not prove, provided you were permitted to assume the whole matter in debate. With all respect to the Commissioners of the Insolvent Court, against whom he did not mean to say a word, and whom he readily admitted to be most excellent men in their profession, he did not think that three or four Judges, even with abilities equal to theirs, would be able to perform the labour which it would be the duty of these twenty-five Commissioners to go through. Besides, these three or four Judges would be a sort of perambulatory Court; whereas, the object of this measure was to have a Court upon the spot always open.
§ Clause agreed to.
§ On the 6th Clause, which proposes that the Judges and registrars shall not be removable except by address of the two Houses of Parliament,"
§ Lord Wynfordsaid, it was rather too much to have the Registrars of these Courts—who were merely Ministerial Officers—only removable by address from the two Houses of Parliament. In every other Court in the country the Ministerial Officers were removable without the necessity of such an address. A Judge must be impeached if he were guilty of misconduct; but that was not the case with any subordinate officer of his Court.
The Lord Chancellorsaid, if you give a man an office so long as he shall behave himself therein, how are you to remove him from it if he behave himself ill, except after convicting of such ill behaviour? The Registrar in the Court of Chancery, and the Prothonotaries in the Courts of Common Law, held their offices during good behaviour; and that proviso gave the two Houses of Parliament the power of removing them by an address to the Crown. He thought, at any rate, that his noble and learned friend would not object to placing the Judges of these Courts on the same footing as the Judges of Westminster-hall. To place them on an inferior footing would be,pro tanto, to degrade them.
§ Lord Wynfordagreed that these Judges ought not to be in any respect degraded; but, with regard to Registrars, he would only observe, that Clerks of the Peace were officers quite as high as these Registrars, and they could be removed from their offices without an address, if they were convicted of misconduct in the performance of their duties.
The Lord Chancellorcontended, that the power given in this clause ought to exist in Parliament; for in case a Registrar was prevented by age or other infirmity from performing the duties of his office, and yet did not, legally speaking, behave himself ill, he could not be removed except by an address from Parliament to the Crown.
§ Lord LyndhurstWhy should the Registrars of this Court be placed in a different situation from that of the Registrars of the other Courts? His noble and learned friend had not given even a plausible answer to that question, and he should, therefore, suggest to him to give way upon this point, otherwise it would show the spirit in which his noble and learned friend was desirous of discussing this Bill.
The Lord Chancellorthought the last remark of his noble and learned friend might as well have been spared, as he had all through these discussions declared himself anxious to adopt any real Amendments which might be suggested to him. He could assure his noble and learned friend that these Registrars had higher functions to perform than he seemed to be aware of; for instance, in the bankruptcy business their names must, in some cases, be inserted in the fiat directed to 1122 the Judges in ordinary. In other cases, where the Chief Judge was absent, they would be empowered, for certain proceedings to act as Local Judges. The Registrar's name must, therefore, be inserted in the Commission along with that of the Judge. If his noble and learned friends could point out to him any mode (save that given by this clause) of removing a Registrar rendered incompetent by age or infirmity, before that Registrar misde-meaned himself, he (the Lord Chancellor) would agree to strike out the clause. He had known instances of officers—ay, and of Judges too—who, being too old for the performance of their duties, and yet not long enough in possession of their situations to entitle them to their retiring pensions, could not be induced to resign until they received a pretty strong hint that Parliament had the power to remove them.
§ Lord Wynfordcontended, that the moment these officers became unable, either from age or other infirmity, to perform the duties of their situations, they could not be said to behave themselves well therein. They might, therefore, be removed by the Court of which they were the ministerial servants. So strong was his impression upon this point, that he should move that the words the Registrars be struck out of the clause.
§ Lord Lyndhurstsaid, that if the Bill really turned these Registrars into Judges, the objection which his noble friend had made to this clause fell to the ground; but he did not think that the Bill went that length. If the Registrar were, as he contended, that the Registrar was, a mere Ministerial Officer, why was he to be made an exception to the law which applied to the Registrars of the Court of Chancery, and of the Court of Exchequer? Why was a slight to be cast upon those very respectable officers by exalting this new officer above their heads? If the law were as his noble and learned friend stated, that these officers were not removable without an address to the Crown, why not amend the law in this respect altogether?
The Lord Chancellorsaid, that he really could not see the weight of these objections, nor did he think that his noble and learned friend would have attached any importance to them, had he not come down to the House as the political opponent of the Law Reform Bills introduced by the present Government. He should 1123 be sorry if the Registrars of the old Courts, whom he admitted to be most excellent and valuable public functionaries, should feel it as a slight upon themselves to have the Registrars of these new Courts placed above them. To prevent that feeling from being generated in their minds, he would agree to leave the words the Registrars "out of this clause; but he must insist on retaining the Judges."
§ Lord Wynfordhad no objection to the words the Judges being retained in the clause.
§ Lord Lyndhurstsaid, he was not the political opponent of the Law Reforms of the present Government. He thought that his noble and learned friend, in making that charge against him, had acted towards him both unjustly and ungratefully. His noble and learned friend must recollect that when he first showed him (Lord Lyndhurst) the batch of bills respecting Law Reform now on the Table of that and the other House of Parliament, he told his noble and learned friend that of those bills there were some which he highly approved of. The Limitation of Actions Bill, for instance, and, as a proof of it, he had offered his noble and learned friend to conduct it through the House. On what grounds his noble and learned friend represented him as sitting on the Opposition Benches as the political opponent of the Law Reform Bills of the present Government he could not conceive. First of all, he did not sit upon the Opposition Bench at all; and, in the next place, he had chosen his present seat in the House for the purpose of showing that in opposing this Bill he was standing by himself, and not acting as the agent of a party.
The Lord Chancellorreminded his noble and learned friend that the five Bills, to which he had alluded, as the Government batch of Bills, were not, in point of fact, Government Bills. They were brought into Parliament in consequence of the recommendation of the Commissioners appointed to inquire into the state of the law affecting real property. Having, however, been so introduced, they would undoubtedly have the best support of his Majesty's Ministers. In point of fact, this Bill was the only Government Bill now upon the Table.
§ Lord Lyndhurstthought that his noble and learned friend had just been guilty of a great error. He did not often forget what fell from the lips of his noble and 1124 learned friend, and in regard to this Bill, he recollected well that in introducing it originally to their notice, his noble and learned friend had distinctly said, I introduce it, not as a Government measure, but as a measure resting upon my individual responsibility. "In giving his opposition, therefore, to this Bill, he was not acting as the political opponent of the Law Reforms proposed by his Majesty's Ministers. Now, let their Lordships mark the different way in which the other Law Reform Bills carne at present before their Lordships. They arose out of the recommendation of a Commission appointed by the Crown to revise the law respecting real property; and when a Government authorized a Commission to revise the law, he held that Government to be bound to bring into and carry through Parliament the Bills which the Commissioners recommended. In point of fact, the Government was doing this at the present moment.
The Lord Chancellorwas happy to inform their Lordships, that if his noble and learned friend continued to act upon the principles which he had just laid down, he should put an end, by what he was about to say, to his noble and learned friend's opposition to this measure, which was now, in the strictest sense of the words, a Government measure. His noble and learned friend had said, that he (the Lord Chancellor) had originally proposed it as his own individual measure. True, he did so propose it in April, 1830, in the House of Commons, and again in December, 1830, in that House. On that latter occasion he had stated distinctly that it was his own individual measure, brought in on his own responsibility, and without any concert with any of his colleagues in the Administration. Mark the difference now. Formerly he had stated, that he had not communicated his Bill to his colleagues. Now, he stated that he had communicated it to them, and that it had obtained their concurrence. But their Lordships would, perhaps, recollect, that there was a wide difference between his former Bill and his present. His former Bill was much more extensive, and he would freely confess that if he had had to bring in a Bill of his own, it would have gone much further than this Bill was intended to go. He had formerly proposed to give to these Local Courts a jurisdiction over all suits where the cause of action did not exceed 100l., 1125 and also to give a different right of appeal. Alterations had been suggested upon these points by the Common Law Commissioners, to whom his original Bill had been referred for consideration and revision. When it was so altered as to meet, not only with their support, but also with the unanimous support of his colleagues in the Administration, he had brought it forward as a Government measure. As such it was proposed last year—as such it had been known for the last four or five months, and as nothing else. He trusted, that he had now removed all the doubts of his noble and learned friend as to the Bill being a Government measure, and having removed them, he trusted, that as neither his noble and learned friend nor any of the noble Lords by whom he was surrounded could be influenced by any party feelings against the Government, he should have their support. He was certain of having his noble and learned friend's support to this, which was, strictly speaking, a Government measure
The Duke of Cumberlandsaid, that the noble and learned Lord said, that this Bill was argued as if it were a party question; and though he did not mean to deny that he was an opponent of the present Government, he should be ashamed of himself, and he felt that he should be degrading his character, if he could allow party spirit to direct his vote on a measure of great general and national importance. He protested against this measure being discussed as a party measure.
§ Lord Lyndhurstassured the House that if his noble and learned friend could only satisfy him that this was a proper measure, it should have his support without any regard to the quarter from whence it emanated; but it certainly would not have his support otherwise. He assured their Lordships, that neither he nor any of his friends had treated this Bill as a party measure. It was true that at a meeting held previously to the second reading of it, they had determined not to divide against the principle of it, and to that determination they had come upon this principle, that the Bill was recommended to the House by a Commission acting under the authority of his Majesty. If he and others had considered it as a party measure, he could assure their Lordships, that the result of a division would not have been such as would have given his Majesty's Ministers any satisfaction, and of 1126 that no persons were more aware than his Majesty's Ministers themselves.
The Lord Chancellor.—These things escaping from the lips of noble Lords tend, I suppose, to sustain the high character of this House in the estimation of the country. I have never yet been accused of showing any want of respect to this House—I have never yet been accused of attempting to lower its dignity. I have heard of such charges being made against his Majesty's Ministers, but nothing can have so great a tendency to produce that effect as words such as those which have fallen from my noble and learned friend within the last few minutes. Whether they will produce that effect I cannot tell; but certainly they must have that tendency.
§ Lord LyndhurstI have been strangely misunderstood, if anything I have said deserves the reproof which I have just received from my noble and learned friend. Are such things as party feelings unknown to this House? I ask whether the noble Lords who come here nightly, and range themselves on the opposite benches, do not act upon party motives?
Lord HollandI speak to order; and in so doing I am compelled myself to commit a breach of order; for I must request your Lordships to let me address you sitting, as my infirmities prevent me from addressing you standing. Speaking, then, to the point of order, I must say, that a more disorderly, a more irregular, and a more unparliamentary conversation than that which has taken place during the last ten minutes, I have never heard since I had the honour of a seat in this House. I have heard of party and of party motives in this House, where, if we act as honest men by our country, we are bound to consider the public interests only. It is irregular to allude to any motives, and certainly most irregular to allude to party motives in this place. The noble and learned Lord says, that he never considered this as a party measure. He tells us, that for certain reasons he and his friends determined not to divide against the second reading of the Bill; he adds, that if they had divided against it, and had acted together as a party, he knows what the result would have been in that case. Now, it is most irregular to describe a measure, brought in avowedly upon public grounds, as a party measure; and to say, how the House would have dealt with 1127 it had they considered it to be a party measure or not a party measure, is to use language which I am sure would not have been listened to fifteen years ago in this place. A more certain mode of disparaging the character of this House in the estimation of the public cannot be found than by our describing the Bills introduced for the public benefit as party measures. The speech of the noble Lord, which I rose—I beg pardon—which I speak to interrupt, appealed to the existence of party motives in this House. Is that parliamentary language, or is it not? Is it even consistent with the question which we are now pretending to discuss? The question before the House at present is, whether the registrars shall be removable from their office by address from the two Houses of Parliament, or whether an Act of Parliament shall be passed to enable the Judges who preside in the Courts of which they are ministerial officers to remove them, whenever they become incompetent to discharge the duties of them from age or other infirmity—for as yet we have had no answer to that point.
§ Lord Lyndhurstagreed with the noble Baron who had just sat down, that the sooner an end was put to this irregular conversation the better it would be for all parties. He would only remind their Lordships, in his own justification, how this discussion had originated. His noble and learned friend had charged him with opposing this Bill as the political opponent of the Law Reforms of the Government. His noble and learned friend said, that he opposed the Bill on party principles; that he denied, and in his denial he had defended himself to the best of his ability. He appealed to the speech which he had made against the committal of the Bill to prove, that he was not influenced, and he had then said, that he was not influenced, in his opposition to it by party principles, but by general considerations of state policy and expediency.
§ Lord Wynfordwould only say, that from what had just passed in the House it must be quite clear that party had nothing whatever to do with its discussions.
§ The Amendment agreed to, and clause agreed to.
§ On the 12th Clause, which defines who are to be the practitioners in the Courts of Judges in ordinary, being read,
§ Lord Lyndhurstasked whether in these Courts barristers were to be opposed by 1128 attornies? If so, it would lead to great confusion, as he had seen in his own experience at the Quarter Sessions. His Lordship, who had never practised in the minor Courts of the country, might not be aware of this circumstance. He therefore requested him to consider this point, and perhaps upon consideration he would see the propriety of striking out that part of the clause which gave to attornies the power of practising as advocates in these Courts.
The Lord Chancellorsaid, that perhaps the clause was liable to this objection; but he had no doubt that wherever barristers were opposed to attornies, barristers would soon obtain the command of the Court.
§ Lord Lyndhurstsaid, he knew a Court in which the barristers refused to wear their gowns and wigs, so long as attornies were allowed to plead there. The Magistrates excluded the attornies, and the consequence was, that at the next sitting all the barristers appeared in their gowns and wigs. He also objected to the power given to the Judges of fining attornies to any amount for improper conduct, without the intervention of a Jury.
The Lord Chancelloradmitted, that the power given to the Judges was very large, but it was deemed necessary, in order to repress improper practices on the part of a certain class of practitioners who might resort to these new Courts, as well as to prevent parties, from a spirit of hostility to the present measure, throwing obstacles and impediments in the way of its execution. He had had himself an opportunity of knowing the virulence and violence with which the first Bill on this subject had been attacked by certain individuals, who had gone the length of sending circular letters to attornies in all parts of the country, with the object of depriving him of business at the bar, his only crime being that he was the author of a measure which, among other regulations, empowered the Judge in ordinary to suspend an attorney, guilty of improper conduct, from practising. He had, however, gone on unmoved by these attacks, and the alteration which appeared in the present Bill had been made, not from any yielding on the subject, but because it was thought that a more effectual control would be exercised over these parties by giving the Judge the power of fining, instead of suspending.
§ Clause agreed to.
§ Clauses to the 28th, inclusive, were 1129 agreed to, with the exception of the 15th, 18th, and 25th postponed.
§ The House resumed, the Committee to sit again.