§ Mr. M. A. Taylor,
in rising to submit to the House his motion relative to the Separation of Cases of Bankruptcy from the Jurisdiction of the Court of Chancery, felt himself called upon to occupy the attention of the House at some, though, he trusted, at no very protracted, length. Often as he had advocated this question before the House, he felt that he should be unable to discharge what he considered to be his duty to the public, unless the House would lend him its serious attention. Questions of this nature were not, in general, very palatable to the House, because 940 they did not afford any opportunity for the display of eloquence, or for the introduction of such topics as were calculated to contribute to the amusement of the House. He wished particularly to impress upon the minds of honourable gentlemen the nature of the measure which it was his intention to introduce, and upon which he meant to take the sense of the House. The question was one of no ordinary importance; it was not a question of an isolated character, but a question in which the whole body of the people of England was deeply interested. He was satisfied that, without some such reform in the business of the court of Chancery as that which he should submit to the House, all attempts to relieve the suitor would be ineffectual. He had been repeatedly told, on former occasions, in bringing this subject before the House, that, to recommend to the House any reform of the business of the court of Chancery was to pronounce a libel on the character of the Chancellor. "Let the good man," it was said, "who holds the office of Chancellor, live out his time; and then, if you will, reform the court." Such was the language which was formerly urged against proposed forms of the court of Chancery. He had yet to learn whether, after the changes which had lately taken place, he should be supported in his attempt to introduce reform. At any rate, he would do his duty, and let the government do theirs. The whole truth should be fairly stated. If the system still worked ill, its defects should be still exposed; for it was absurd to say, that new brooms would sweep better than the old, and that, therefore, there was no necessity to introduce reform. The question which he was about to bring under the consideration of the House was not one of a complicated nature. He should, in discussing it, appeal to the plain common sense of honourable members. Cases of Bankruptcy were not originally appended to the great seal; they were appended to it by statute, as the jurisdiction in cases of lunacy had been added by a special mandate. To men of plain intellect like himself, it was perfectly clear, that the individual filling the office of Chancellor had more to do than human power was capable of performing, and that the wisest course would be to rid him of an appendage to his office which was not of the essence of the great seal. There would be no difficulty in selecting a person to discharge 941 with efficacy the duties of which he proposed to relieve the Chancellor. He was sorry that he did not see a right hon. gentleman in his place, whom he should have reminded, if he had been present, of an expression which had fallen from him on a former occasion. He begged to say, that he never quarrelled with men for changing their opinions: all he did was to defend his own opinions; and on this occasion he might be permitted to say, that some of the greatest men who had ever adorned this country entertained the same opinions. It was certainly with some astonishment he had heard that the motion he intended to make that night was to be opposed. That motion was merely, that the House should resolve itself into a committee, to take into consideration the statute of the 13th Elizabeth, and such subsequent statutes as gave to the lord Chancellor jurisdiction in matters of bankruptcy. He had often had occasion to bring this question before the House, to expose the delays of the court of Chancery, and to endeavour to introduce some reforms calculated to benefit the suitor; but he had always been met by the assertion, that the introduction of such questions was an attack on the character of the Chancellor. No man could entertain a higher respect than he did for the great and splendid talents, and the profound legal knowledge, of the late Chancellor; but he had often felt surprise, that, when that learned person saw every day before him the mischief resulting from the state of the court of Chancery, he had made no attempt to reform the abuses of the existing system. He trusted that if he did not succeed in his motion to-night, he should succeed on some other night; for he was determined not to abandon the question. There were some gentlemen in that House who were disposed to attribute all the evils arising from the court of Chancery to one man, and others who entirely differed from them in that opinion. For his part, he stood upon his own opinions; and he thought they were not to be told, at this time of day, that parliament ought to wait because there was a new administration, and a new judge of the court of Chancery. It should be recollected, that no effectual step had yet been taken to reform the court of Chancery. None of the recommendations in the Report drawn up by his lamented friend, sir S. Romilly, had been adopted; and the country had little reason to place 942 any confidence in promises of reform, unless parliament determined to carry such promises into effect. Towards the noble lord who now filled the office of lord Chancellor, he had no feeling but one of kindness. He had no doubt that, raised and elevated as he had been to that high dignity, and aware as he must be, of the ruin and distress which had been occasioned by the existing system—ruin and distress which in many cases that he could detail, were enough to make a man's heart bleed—he would, at the first blush, think of improvement; but he might also think of the profits arising from cases of bankruptcy. The present Master of the Rolls, a particular friend of his, had, by his eminent services in the office of Vice-chancellor, assisted by the exertions of sir William Grant, while he remained as Master of the Rolls, contributed, in a great degree, to preserve the character of the court. He was convinced, indeed, that if it had not been for their efforts, the court of Chancery could not have gone on; and he believed there was not one of the late appointments or elevations which had given greater satisfaction, than that of the promotion of that learned person to the Rolls. He contended, however, that the delays of the court of Chancery took their date long previous to the time of lord Eldon. Many persons supposed they were owing to the conduct of solicitors, but he knew that the body of that profession had several times attempted to remedy the evil.—The hon. gentleman then entered into a defence of the conduct of the solicitors of that court, and related some circumstances connected with their efforts to amend the practice. About three years ago a commission had been appointed to inquire as well into the best means of remedying the delays of that court, as into the question of what part of the business could be withdrawn; and, after two years' investigation, the learned person, now elevated to the dignity of lord Chancellor, introduced a bill into that House, founded upon the recommendations of the Report. That bill, however, thus founded upon the recommendations of that commission, contained propositions and clauses so absurd and ridiculous, that no member of that House, who had any common sense, could be found to support it; and, after a short time, it was withdrawn under a pretence of the late period of the session. On the 11th of March, 1813, when he had brought 943 forward his propositions upon the subject of the Vice-chancellor's bill, the right hon. gentleman (Mr. Canning) declared, "it seemed to him most advisable, that some amendment should be proposed, which might tend to relieve the Chancellor, by stripping his office of some great limb of its ordinary business. There was no part of that business the abstraction of which would be liable to less objection than that which was not of the essence of the office, but only superadded to it by statute." He had consequently stated, on a former occasion, that, if any one proposed such an amendment, and if the House adopted it, he should support the bill with his vote. The right hon. gentleman having expressed those opinions upon the subject then, he called upon him to support them now; and he, at the same time, hoped the whole administration would step forward and give him their support, in compliance with the unanimous expression of the feeling of the country. He had conversed with all classes, agricultural and commercial, and he was bound to say, that they all viewed the delays and evils of the court of Chancery in the same light. They declared, one and all, that the court of Chancery produced such inordinate expenses, and such vexatious delays, that it amounted almost to a high misdemean-our in the government to suffer their continuance. As a proof of the opinions entertained by commercial men on the subject of the present administration of the Bankrupt-laws, he would beg to refer the House to a Report made in March last, by the committee appointed by the common council of the city of London, to inquire into the state of the law and its influence upon the interests of trade. As that Report had not yet been published, and members of the House could not be supposed much acquainted with its purport, he would take leave to read an extract or two for their information. The Report states, "that the committee having been appointed to take into its consideration the propriety of presenting petitions to both Houses of Parliament for constituting a regular tribunal for the administration of the Bankrupt-laws, certify to the court, that, after having procured copies of the opinions of many professional men, and the evidence of some of the most respectable merchants, bankers, and traders, in the city of London, and having corresponded with some of the 944 most respectable merchants and traders in Liverpool, Gloucester, Bristol, Manchester, and elsewhere, as well as with the most eminent barristers, solicitors and, commissioners, in those towns; and that, after having considered their evidence, annexed to the Report, and looking to all the information they had received on this most important subject—they are fully of opinion that the present state of the Bankrupt-laws, as now administered in this country, is totally inconsistent, and at variance with the intention and meaning of the original constitution of those laws; and that the present system of the administration of the Bankrupt-laws falls short of the necessities required by the commercial interests of this country; and that, after having witnessed the nature of the administration of the law by the court of Commissioners, they are strongly of opinion, that the Bankrupt-law requires speedy and material alteration." The expression of such opinions, the hon. gentleman observed, connected with and supported by such testimony, from all classes of society, rendered little observation necessary from him with respect to the necessity of the separation he required of bankruptcy from the great seal.—The hon. member then adverted to the opinions expressed by sir Samuel Romilly upon the subject of the secretary of bankrupts not being an accountable officer; and read, from the Report of the Chancery Commission, of which he was chairman, a passage in sir Samuel Romilly's own hand-writing, relative to the inexpediency of suffering, the lord Chancellor to derive, as he did at present, a great portion of his emoluments from the fees received by officers, while he did not acknowledge that he so received them. The consequence of such a proceeding was, that if the officer took a larger fee than he was entitled to, the Chancellor, upon an appeal to him, was compelled, as a judge, to pronounce an opinion, in a case where he was directly interested. These fees, if they were necessary to compose a salary to the lord Chancellor, it was then proposed to abolish altogether, and to increase the Chancellor's salary by a sum equal to their amount; for it never could be supposed, that the highest officer in the kingdom was to be supported by what might be considered nothing short of a tax upon distress and insolvency. If he wanted any argument for a separation of these duties of the Chancellor, he thought 945 this part of the fees taken by the secretary to be sufficient. Lord Thurlow had settled the reversion of the office upon an infant; and whether lord Eldon had given it to his son or not he did not know, but he thought it disgraceful to the country, that so much money should be paid when no work was done.
Two objections had been raised to separating the bankruptcy business from the great seal. The first was, that a considerable degree of ability and legal experience was required for bankruptcy; and the next objection was, that the time of the judges would not be sufficiently employed, if that business was separated from the great seal. The hon. member then referred to the Chancery Report, and read various extracts, tending to show the time which was occupied by the court of Chancery in disposing of questions connected with bankruptcy. If they would look to the state of the Bankrupt-laws in this country, and consider the numerous intricate questions that grew out of them, they would find that bankruptcy cases alone were sufficient to occupy the whole of any judge's time. With respect to suits in Equity, as the system had formerly gone on, there was a nominal, but, as it appeared to him, no real, appeal; for that could not be called an appeal which merely brought a case decided by an individual in one place, before the same individual in another. Would it not, then, be proper, where there were thousands and tens of thousands of pounds depending, to appoint an individual, to whom an effectual appeal could be made? When an arrear of business was formerly complained of, it was asserted, that it could not be got through without the assistance of two judges. There were at present two judges sitting, besides the lord Chancellor; yet the arrear, to a certain extent, continued. Why, then, should they not have a judge permanently established, for the purpose of deciding in bankruptcy cases? An individual placed in the department would have sufficient, and more than sufficient, to do. That there was a great evil in the system was clear; and why that evil should be continued, it was impossible for him to imagine. It ought to be remedied; and that, too, without delay. Could any person assert that the practice of the court of Chancery, for some few years past, was not such as to extort the disapprobation of every thinking man in the country? He 946 did not mean to blame the late lord Chancellor; but he certainly did censure the system. He felt, to use the language of Mr. Shadwell, that no three angels could discharge the onerous duties of the office of lord Chancellor, as it was at present constituted. Under these circumstances, he was perfectly convinced, that the separation of bankruptcy cases from the jurisdiction of the great seal would give the highest degree of satisfaction to the country. If gentlemen did not feel the misery which was inflicted on those unfortunate persons who became suitors in the court of Chancery—if they did not commiserate those who suffered under the existing system of delay in that court (delay occasioned by multiplicity and variety of business), then he feared that nothing which he could urge would convince them of the necessity of separating the bankruptcy cases from the jurisdiction of the lord Chancellor. He called for inquiry; and, where so prominent an evil appeared, he trusted that the House would receive favourably the motion which he was about to submit to their consideration. In the view he had taken of this subject, he might be mistaken; but he had the consolation to know, that, if he erred, he erred with the public at large. Those, however, who might attempt to keep up the present system, would, he believed, in the end find themselves in error; and that error should be pointed out and exposed, if he had life. In his opinion, the government ought to take up a subject of such immense importance, and thus relieve a private individual, like himself, from bringing it forward. It was admitted, that his views on the question were generally correct; and he felt, most decidedly, that a greater boon could not be bestowed on the country, than the separation of the jurisdiction in bankruptcy cases from the great seal. Such an act would do the government honour, and would, in a very eminent degree, benefit the nation. Whether, however, the government did or did not take that course, nothing should deter him from taking the sense of the House now, and at all other convenient times, on this important question. The hon. gentleman concluded by moving, "That the House resolve itself into a Committee of the whole House, to consider of the statute of the 13th of Elizabeth, and such subsequent statutes, as give to the lord High Chancellor of England Jurisdiction in matters of Bankrnptcy."
said, that he should not be doing justice to his own feelings, nor to the character of his hon. and learned friend, if he did not acknowledge him to be one of the most zealous, consistent, and persevering, advocates for a revision of, and an alteration in, the practice of the court of Chancery, that had ever appeared in the House of Commons; and though it was not his good fortune to agree with his hon. and learned friend, generally, in his view of the question, yet he thought the public were under great obligations to him, for bringing a subject of this nature before the House, and he doubted not that its discussion would be found advantageous. If he could perceive that any practical object was likely to be gained by the House resolving itself into a committee, he should not be disposed to offer any opposition to the motion. But his hon. and learned friend had not alluded to any specific plan which he meant to submit to the committee; and therefore he conceived the motion, having no clear and distinct ulterior object in view, was unnecessary. If his hon. and learned friend had demonstrated some plan—if he had pointed out some tangible proceeding—which the House was likely to adopt, after it had been examined, that would have been sufficient to induce him to withhold his opposition to the motion; but, as he was satisfied, so far as his own opinion went, that no such thing would emanate from the committee, he felt it to be his duty to oppose the proposition of his hon. and learned friend. His reasons for that opposition were very short. The arguments which he had to offer, and the facts that he had to state, in support of his view of the case, lay in an extremely narrow compass, and he hoped to dispose of them very soon. He had always thought that they ought not hastily to make places to fit particular men, but that they ought to find men to fit particular places. His hon. and learned friend would recollect that this was one of his (the Attorney-general's) arguments against making alterations in the court of Chancery—alterations which had, from their nature, the effect of imposing additional burdens on the public. He had not the honour of being a member of that House at the time the Vice-chancellor's court was the subject of discussion; but the same objection was then made by the learned gentleman who afterwards filled 948 the situation of Vice-chancellor, to the alteration then proposed. In considering this question, it was not his intention nor his wish to make allusion further than the case required, to the late lord Chancellor. No individual, who knew that noble lord, could speak of him without feelings of respect, both as a man and as a judge. His hon. and learned friend had stated, that if any thing more than another was calculated to produce dissatisfaction with the proceedings in Chancery, it was that constitutional caution, that slowness of decision, which amounted to delay; and which, in its practical effects on the suitors of that court, while it gave satisfaction to some, created dissatisfaction and discontent amongst many. Now, if there should be found in an individual placed in that high situation any peculiar excess of caution (which was in itself a laudable quality) that gave dissatisfaction, it did not follow that they must, of necessity, resort to a multiplication of judges, and to an entirely new-modelling of the court. That, he feared, would not cure the evil. The very learned and eminent individual who was the second Vice-chancellor, sir J. Leach, had expressed the same opinion in that House; and the truth of that opinion was afterwards fully illustrated.—He should now proceed to state a few facts, from which he would deduce this inference, that, with three efficient judges (and such they had) there was not the least necessity for subtracting from the court of Chancery any part of the jurisdiction which it now possessed; nor would the public have any cause to complain, that the bankruptcy cases were not separated from the great seal. He did not mean to say, that if the legislature chose to disjoin these powers, no person could be found adequate to the fair adjudication of bankruptcy cases: he entertained no superstitious fear that they could not find an individual calculated to perform the functions of a separate judge in those cases; but, before they adopted such a course of policy, he thought it was necessary that its expediency should be established. He should now advert to the business in the court of Chancery during the last year. He should take the whole of the cases of all descriptions, and then point out what the late Vice-chancellor had done to relieve the court from the burden by which it was pressed. His hon. and learned friend, as well as many other hon. members, well 949 knew the course of practice in Chancery; but, as it might not be equally well known to all, he should briefly describe it. The first proceeding in a case was by bill and answer. When the case was heard, in the first instance, it might be ordered for further hearing; sometimes on exceptions to the bill, sometimes on exceptions to the answer. Besides these protracted cases, there was a considerable number which were disposed of very shortly. With respect to motions, there had been no complaint of delay, until within the last two years, when, from circumstances to which he need not call the attention of the House, considerable delay had occurred. Now the number of cases set down in the court of Chancery during the last four terms stood thus:—Original cases, three hundred and twenty-two; cases of further direction and exception, seventy-six; cases of exception, thirty; pleas and demurrers, forty-five. He next came to the Master of the Rolls, in whose court there was set down—of the first class of cases, two hundred and fifty-eight; of the second, ninety-eight; of the third, seventeen; and none of the fourth. The total amount was five hundred and eighty original cases; one hundred and seventy-four cases for further direction and exceptions; forty-seven cases of exceptions; and forty-five pleas and demurrers. This he would take to be the average number of cases that were to be disposed of in the course of a year. The question then was, what number of cases was one judge capable of getting through in the course of the year? In answer to that, he would call on the House to look to experience. The late Vice-chancellor had, during the four years which preceded his severe illness, disposed of a great variety of cases. He (the Attorney-general) had taken the average, so as to give a correct idea of the number which that learned gentleman had decided in one year. From that calculation it appeared that sir J. Leach, the late Vice-chancellor, had, in one year, disposed of four hundred and fifty causes of the first class; two hundred and twelve of the second and third; and seventy-nine pleas and demurrers. So that, if they deducted from the number of cases of all kinds set down, in the last year, before the lord Chancellor and the Master of the Rolls, what the Vice-chancellor had been able to decide upon in the course of a year, they would find the result to be, that it 950 only left one hundred and thirty causes in the first class, nine in the second, and none in the third. Now, could any man suppose, if one individual was capable of going through such a mass of business, that two learned judges were not able to manage a much greater portion? These cases were regularly set down before the lord Chancellor or the Master of the Rolls. The Vice-chancellor, who was a sort of supernumerary judge, took the overflowing of the practice in the other courts.—He now came to the cases in bankruptcy, to which his hon. and learned friend had stated that his argument chiefly applied. He should take the average number of bankruptcy cases for the three last years. From this it appeared, that there had been in each of these years, five hundred and ninety petitions in bankruptcy cases. To this point he called the particular attention of the House, because it had immediate reference to the nature of the jurisdiction which his hon. and learned friend wished to sever from the court of Chancery. Let the House, then, look to what the Vice-chancellor had done during the last four years. He would not, on account of that learned gentleman's illness, refer to an anterior period. The Vice-chancellor had, on the average, disposed of four hundred and, fifty-three bankruptcy petitions, in each year, during that period. Deduct that number from five hundred and ninety, and it left one hundred and thirty-seven petitions to be disposed of by the Chancellor. He had already shown, that the Vice-chancellor had, in one year, disposed of cases, in the first class, to which he had before referred, so as when deducted from the average total number set down, to leave only one hundred and thirty for decision; and not more than nine in the second and third classes. This was not more than an active judge would dispose of in a term; and yet these remained through the year. What had been the progress of business in the Vice-chancellor's court, when the late Master of the Rolls recovered his health? There were, at that time, four terms in arrear: so that, when he returned to his professional duties he found that there was a considerable accumulation of business. To meet that arrear, the vice-Chancellor began by reducing it, in the proportion of one term each year; so that, in the second year, there were only three terms in arrear; in the third, two;and at present he be- 951 lieved the arrear was very trifling, and would in a very short time be wholly removed.—He had now given a simple statement of the business in Chancery. If his hon. and learned friend asked him what was the reason of the delay in deciding the remainder of the cases, he must beg leave to decline answering that question. He was merely stating a series of facts: and it did not make against his view of the subject, if it happened that a particular judge finished, in the course of a term, only two cases, perhaps but one, or sometimes not even one. The question was, whether it was necessary (when they had three judges, of one of whom they had had full experience, and with respect to two of them they had no reason to despair) to re-model the court of Chancery, and to place additional burdens on the public? In his opinion, the judges whom they had at present were more than equal to do the whole business of Chancery. He admitted that the lord Chancellor had to attend to lunatic petitions, and to appeals in the House of Lords. But with respect to lunatic petitions, if they would look even to those which found their way on the papers, they would not amount to more than ten or a dozen in the year. The quantum of labour was not so very considerable; and a Chancellor, with the benefit of youth, health, and activity, would be able to accomplish all that his office required. It was in the contemplation of the present lord Chancellor, assisted as he was by the experience of those gentlemen who practised in his court, to apply himself to the introduction of some mode by which the voluminous proceedings in cases of bankruptcy might be abridged. Such a plan would be attended with the best effects; for at present those proceedings were extended to a length hardly conceivable. Let this experiment, then, be tried, before they proceeded to a new field—before they attempted to re-model the whole form of the court of Chancery. He was happy to state that such a plan as he had adverted to was in contemplation; and he felt most confidently, that it would succeed. They must all know, that the court of Chancery was in the habit of receiving affidavits, answers, replies, rejoinders, rebutters, and sur-rebutters, to an almost endless extent. This was a great defect in that court; and he believed that, from an over-anxious feeling on the part of the late lord Chancellor (which, God forbid 952 he should impute as a fault to that individual) it was carried entirely too far. That learned lord, from an over-anxiety that nothing should be left undone that could give satisfaction even to the losing party, allowed the greatest latitude to this system. He thereby imposed great labour on himself; while those who thought that a court of justice should be a court of decision, and not of doubt, were dissatisfied and discontented. Any measure which tended to check this expensive accumulation of documents would be a very great improvement in the constitution of the court. His hon. and learned friend had asked, what had become of the bill which the present lord Chancellor had introduced, founded on the report of the Chancery commissioners? He begged to remind his hon. and learned friend, that the bill was not brought in during the last, but in the present session, when the lord Chancellor held the situation of Master of the Rolls. That learned lord gave notice of his intention to bring in a bill, and he introduced it with an elaborate speech, but not until the month of last November. Now, if the House would permit him, he would state, that in his opinion, the bill in question would always disappoint the public. He did not disagree with the commissioners on any material point; and he approved of many of their suggestions, though not of all: but he certainly felt, that, to make those suggestions the subject of a cumbersome bill in parliament, was a proceeding not only useless in itself, but one that would disappoint the public. The present lord Chancellor, who was only the organ of the commissioners, felt, he knew, as he (the Attorney-General) felt on that question. The present lord Chancellor was of opinion, and it was his opinion also, that the specific points of improvement noticed in the report of the commissioners, did not require any act of parliament for carrying them into effect, but might be made by the authority of the lord Chancellor in his own court.—He knew nothing further about the bill. He was not aware that the learned lord who introduced it had requested any other individual to take it up. He put it to his hon. and learned friend, whether, under the present circumstances of the government and the country, to which he would not allude more particularly, it would not be more decorous to pause before he called upon the House to take this matter, important though it was, out of the hands 953 of his majesty's government. He owned that the motion of his hon. and learned friend would appear to him, even though he were to approve of it much more than he did at present, to be premature, and uncalled-for, under existing circumstances. He felt no alarm lest the duties of the court of Chancery should be found too great for the performance of the head of that court and the two learned judges by whom he was assisted. He knew that sir S. Romilly had given it as his opinion, that the lord Chancellor did not even require the assistance of the Vice-chancellor; and he could say, of his own personal knowledge, that though that great and illustrious man might have lent himself to the forwarding of improvements in the practice of that court, he had never deemed it necessary to give additional assistance to the lord Chancellor for the discharge of its business. His hon. and learned friend had referred to the evidence taken before the Chancery commission, in order to show that the commissioners were of opinion, that the lord Chancellor did want assistance. He by no means intended to dispute the honesty of those who had given evidence before that commission, and least of all the honesty of that gentleman who had declared that three angels could not perform it. He (the Attorney-General) was of opinion, that when they had infused fresh vigour into that court, and had introduced more celerity into its proceedings, the business of it would be performed, not only by three angels, but by three men of ordinary talent and industry.—He had now stated the grounds on which he intended to oppose the motion of his hon. and learned friend. He received what his hon. and learned friend had said upon this occasion, as he did upon all other occasions, with the most perfect conviction of his honesty and sincerity. He differed from him with great pain, as he had always been accustomed to look up to him as a sort of authority upon this question. But he was sure that his hon. and learned friend would do him the justice to recollect, that from the very first moment in which the subject had been mooted in parliament, he had always differed from him as to the propriety of giving additional assistance to the lord Chancellor; and it was upon that ground principally that he felt bound to meet the motion of his learned friend with his decided opposition.
§ Mr. D. W. Harvey
commenced his observations by complaining of the inconsistency of the professional gentlemen on the other side of the House, who now declared that bill to be utterly worthless and unavailing, which they had formerly praised as calculated to remove most of the delays and grievances to which the unfortunate suitors of the court of Chancery were exposed. He wondered what new light had beamed upon their understanding, and made them see no importance in the various recommendations which had been proposed by the Chancery commissioners. The whole mischief in the administration of the bankrupt laws was now to be got rid of, not by legislative enactments, but by a few regulations, to be made by lord Lyndhurst and the two learned personages who assisted him in that court. He deemed it quite impossible that such a crying grievance could be so removed; and he corroborated his opinion by reference to that of lord Eldon. The real nature of that evil was felt by his lordship when at the bar, and was expressed by him when he took his seat on the bench:—"The lord Chancellor took the first occasion of expressing strong indignation at the frauds committed under cover of the bankrupt laws, and his determination to repress such practices. Upon this subject his lordship observed, with warmth, that the abuse of the bankrupt laws is a disgrace to the country, and it would be better at once to repeal all the statutes than to suffer them to be applied to such purposes. There is no mercy to the estate; nothing is less thought of than the object of the commission. As they are frequently conducted in the country, they are little more than stock in trade for the commissioners, the assignees, and the solicitor. Instead of solicitors attending to their duty as ministers of the court, for they are so, commissions of bankruptcy are treated as matter of traffic. A taking out the commission; B and C to be his commissioners. They are considered as stock in trade, and calculations are made how many commissioners can be brought into the partnership. Unless the court holds a strong hand over bankruptcy, particularly as administered in the country, it is itself accessory to as great a nuisance as any known in the land, and known to pass under the forms of its law." He wished the House to attend to the opinion which lord Eldon 955 had here expressed, as his (Mr. D. W. Harvey's) object was not so much to dissever bankruptcy from the great seal, as to simplify the administration of the bankrupt laws, and to prevent a commission of bankruptcy from becoming what lord Eldon had styled it—a stock in trade to professional gentlemen engaged in it. He was sure that every gentleman who had paid the slightest attention to the evil of the present system would see the necessity of altering it immediately; and he thought that the alteration might be comprised under a few short heads. The first thing which he would have done would be, to provide for the publication of the bankrupt's insolvency at the very earliest period; the next would be, to collect the remnant of his shattered fortunes with as much celerity, and at as little expense, as was practicable; the next would be, to divide that remnant, as soon as collected, amongst his creditors; and the last would be, to reward him with a small portion of the property so recovered, wherever his insolvency had sprung out of inevitable misfortune, and to punish him wherever it had arisen from dishonesty of principle or extravagance of conduct. He did not know that bankruptcy could be defined more simply than it was at present; nor was he certain that the principles of the law could be much better arranged. But, with regard to the mode of its administration, nothing could be more injurious and absurd. He did not wish to speak with any personal disrespect of any one of the seventy-two gentlemen who now officiated as Commissioners of Bankrupts; but he must say this, that a more incompetent tribunal than that which they formed could not easily be imagined. The commissioners consisted of two classes of individuals: the first were young men of no experience, to whom the possession of 3 or 400l. a-year at the outset of life was a matter of importance; indeed, it was a sort of apprenticeship fee to experience, with this remarkable circumstance attached to it—that they received, instead of paying it. The first, he repeated, were young men, frequently of great promise, and generally backed by great parliamentary influence: the second were often men who had mistaken their talents, and, after spending half a century in a briefless condition in the court, received the appointment, as a means of soothing their decline of life, and of saving them from distress and 956 penury. It was his firm belief, that what between capacity with inexperience on the one hand, and experience with incapacity on the other, there were not more than five or six commissioners out of the seventy-two who were able to discharge their duty as they ought to do. He wished that any of the hon. gentlemen opposite would go down to Guildhall; because he was certain that they would see the necessity of supporting any measure which tended to the removal of such a nuisance as the existing tribunals in bankruptcy. There were fourteen petty courts, in each of which there were five commissioners, of whom three must necessarily attend to transact the business. These commissioners were not paid, as they ought to be, by permanent and adequate salaries, but by fees, arising from their ingenuity in making out business for themselves, to the injury of the bankrupts' creditors. The manner in which they ran after their fees—the impatience with which they looked at their watches to provide against their staying longer than their two hours—and the anxiety with which they sought to pocket another guinea, by devising another meeting in Quality-court, was one of the most disgusting scenes that any professional man could witness. He had no hesitation in saying, that this mode of administering the law was not more disgraceful to those who were engaged in it, than it was injurious to the suitors whose property was at stake. There were generally twelve or thirteen causes under each list, and scarcely any two of those causes arrived at the same stage. At one moment, the commissioners had before them a creditor trying to prove a fraudulent debt; at another, a bankrupt undergoing his final examination; and, at a third, another bankrupt claiming his certificate. All these cases—different and difficult as they were—were to be decided within two short hours, amid the clamour of a court, where there was no presiding judge, nor guiding rule. He did not know of any terms sufficiently strong to express his abhorrence of so disgraceful a system. But, as Mr. Basil Montagu, who was one of the ablest of the commissioners, had pointed out the mischief of it in very clear and able terms, he would adopt that gentleman's language for the expression of his own sentiments. "I now proceed," says Mr. Montagu, "to the third defect, which is, the uncertainty attendant upon 957 this tribunal. In London there are seventy commissioners in fourteen lists; each list unconnected and independent of the other; the practice, in some respects, varying in all of the lists, and the law in many of them; and, from the nature of the tribunal, in most of them, unless there is considerable professional exertion. With respect to their uncertainty in their judgments, when it is considered, that in London there are fourteen different tribunals, and perhaps double their number in the country, and when each of these tribunals is composed of members who cannot be constant in their attendance, and who are continually fluctuating, there must, of course, be occasional opposite decisions, not only by different tribunals, but even by the same tribunal." Such was the description of the court which the hon. and learned member for Durham now called upon them to correct, and which he had never yet heard defended by any person who was at all conversant with its proceedings.—It had been said by the hon. and learned gentleman who had been recently exalted to the office of his majesty's Attorney-general, that no plan had yet been suggested for its correction. Now, though an individual might not point out the very best plan, still, if he ventured to guess one, he could not, by any perversion of ingenuity, stumble upon a worse plan than that which existed at present. To cut away that argument from the hon. and learned gentleman, he would venture to suggest the following plan:—That instead of there being seventy-two judges, of whom one half were inexperienced from youth, and the other imbecile from age, there should be five judges with liberal salaries, whose time should be exclusively given up to adjudications in cases of bankruptcy. Instead of there being fourteen courts, with five judges in each, there should be five courts with one judge in each. The bankrupt causes should be brought under his notice individually; and, so well were the principles on which those cases were determined understood by commercial men, that he would venture to affirm, that there would very rarely be any appeal from the decision of that individual judge. In cases of appeal, however, he should suggest that the appeal, instead of being made to the lord Chancellor, should be made to three out of the five commissioners; and then, if the parties were still dissatisfied, should be from the three 958 commissioners to the lord Chancellor. Under such regulations he would venture to predict, that there would not be ten appeals in the year. Whilst he was upon this subject, he was very desirous to explain to the House a statement which he had made upon a former occasion. He had then moved for the production of several documents which were calculated to illustrate the amount of the fees received in the last year by the lord Chancellor. The hon. and learned gentleman who now sat below him (sir C. Wetherell) had extended his motion from one year to the last fourteen years, on the ground that the last year was a year of great pecuniary distress, and was therefore not a fit criterion to judge by. Those documents were now upon the table, and he called upon the House to consider what they contained. He had formerly astounded the House, by stating, that the fees arising from the sub-division of the practice in bankruptcy during the last year amounted to 32,015l. 1s.; and it now appeared, by the documents for which he had called, that they amounted to 32,212l. 11s. 2d. He alluded to this circumstance now, because it had been insinuated, that he had declared that all those fees found their way into the lord Chancellor's pocket. He knew very well at that time, that the whole amount of them did not go to the lord Chancellor; but he certainly thought a much larger portion of them found their way to his lordship than he now found did: for who could have anticipated, that 16,812l. would have been received by a person who obtained his appointment when an infant, and had been in the receipt of them ever since? He recollected the remark which was then made by the hon. member for Callington; and it was so deserving the attention of the House, that he would venture to repeat it. "It was indifferent," said the hon. gentleman, "by whom such a sum was received, but it was monstrous that the law could not be administered, without incurring an expense of more than 30,000l. in one small branch of it." It would appear, from what had fallen from his majesty's Attorney-general, that, in the ensuing recess, the noble lord who was now at the head of the court of Chancery was to concoct a small, neat system of bankrupt laws, which was to put an end to the ruinous expense complained of; and was to devise some intelligible code of 959 official arrangement, by which all the clamours of the country were to be stilled. The judge was to be changed, but the practice of his court was to remain almost unaltered; and all the splendid denunciations which had thrilled through every bosom in that House and in the country, were only to be considered as party tactics, and to be looked upon as the result of disappointed ambition. Now that the object of professional advancement was obtained, those who had been most loud in their attacks had become the eulogists of the late lord Chancellor's merits. And the House was now told, that if, in the vehemence of debate, any thing had been said which was calculated to injure his character, it amounted to nothing, and was only to be considered as the accidental effusion of party spirit. Suitors were now to be satisfied that the court would, in future, move on with the utmost celerity and harmony; that they would no longer have their hopes withered, their prospects blasted, and their comforts destroyed by the delays and expenses; that they would no longer be consigned to a premature grave, or entombed alive in madness in Newgate. If such were the case, it would be well to place a couple of learned gentlemen at each end of Chancery-lane, to point out to every passenger the road to the court of Chancery, and to proclaim in the streets, that "all its ways were ways of pleasantness, and all its paths were paths of peace." A greater insult than such a declaration could not easily be imagined. The abuses of the court of Chancery still reigned in all their pristine deformity. It was a mockery to the House, and to the country, and to the commissioners who had presented the Report, to say that this branch of the law was as it ought to be, and that a few petty regulations were all that was wanted to make causes be despatched with promptitude and justice. The country was inclined to place confidence in the new government; and the new government ought therefore to recollect, that much was expected by the people from it. Every body was now asking, what benefit the country was to derive from the success of the new administration? When they looked for a reform in the court of Chancery, were they to be told, that all the denunciations which had been uttered against it were mere party tactics, and were uttered with no other view than to answer party purposes? If the administration though 960 that the country was to be so deluded, they were deluding themselves, and would discover their error when, perhaps, it was too late. Though there were some questions which might be deferred without injury to the public interests, the present question was not one. It was his opinion, that, if the new administration had not been formed, the bill which the present lord Chancellor has introduced into that House, for the improvement of the court of Chancery, would have been carried by acclamation. But now that it was formed, parliament was told, that it was a useless measure; that scarcely one of its provisions was advantageous; that the one hundred and eighty-eight propositions of the Report, which had a hundred and eighty-eight eulogists, were to be abandoned; and that all that was necessary to simplify the court of Chancery was for the lord Chancellor to make certain regulations, under which all expenses and delays were to cease. If any man had a judgment so weak as to place confidence in such a statement, he thought that he ought to be placed forthwith under another branch of the lord Chancellor's jurisdiction—he meant the jurisdiction in lunacy. The system, he repeated, must be reformed. It was full of abuses; and those who now undertook to defend them had, not many months ago, poured forth against them torrents of fiery indignation. He could not subscribe to the eulogies which had that night been passed upon the disinterested feelings of the gentlemen of the bar; but, as he should have another opportunity of expressing his opinions upon that subject, he would not enter into it further at present. He held in his hand a document, which justified the House in proceeding warily with professional reforms proposed by professional men. It was a tabular view of the offices of the court of Chancery; from which it appeared that, out of three hundred and ninety-eight officers belonging to that court, all but twelve were in the appointment of the lord Chancellor. When such was the case, he thought it was evident that gentlemen who were still engaged in the active duties of the profession were not likely to be the most active and impartial correctors of abuses. A commission of inquiry, to be thoroughly useful, should consist of counsel and solicitors who had retired from business, and who, by their experience and independence, would be able to understand 961 the bearing of the different grievances and remedies which might be brought under their consideration. Such a commission would have full employment in this country for some time; for, sorry was he to say it, abuse and law were in England synonymous terms. The country, he repeated, was law-ridden [a laugh]. He used the expression advisedly; for what else could be said of a country which had six thousand certificated attornies, each of whom, upon an average, received 1,000l. a year? The House would see from that statement, that 6,000,000l. of money were annually expended in law. If the hon. and learned gentlemen had not changed their principles with their seats, they would see that something more than a mere change of men was expected in the court of Chancery. A change of system was also requisite; and, unless it was effected, before long they would have nothing to congratulate either themselves or the country upon in the ensuing session of parliament. The hon. member concluded by supporting the motion.
said, he could not have supposed that there was any man whose mind was so weak, and whose judgment was so slender, as to believe that he could have said that a change of men, and not of measures, was all that was required to sweep away the abuses of the present system of the court of Chancery. He had not said that a few regulations would sweep away those abuses; nor had he said, that the aid of the House of Commons would not be asked to effect that desirable consummation. He had never thought of entering that night into the general question of the court of Chancery. He had confined himself simply to the question before the House, and that was—ought the business in bankruptcy to be severed or not from the jurisdiction of the great seal?
§ Mr. G. Bankes
denied that the commissioners of bankrupt were young men without experience, or old men without practice, or that they were appointed either from parliamentary influence, or from motives of charity. In the list to which he belonged, there had been three vacancies within the last year, and they had all been filled up by individuals, against whom it was impossible to make any exception. He was sorry to say, that, in the warmth of his eloquence, the hon. member for Colchester was accustomed to go a little fur- 962 ther than facts warranted him. He had himself admitted it in his speech of that evening, when he stated, that he had estimated at too high a value the fees received by the lord Chancellor in bankruptcy. He trusted that the House, when it reflected upon what had been said upon former occasions, and what had transpired that night, would acquit lord Eldon of having been swayed by any thing like a sordid love of money. If he opposed the motion of the hon. member for Durham, it was solely in reference to the time at which it was brought forward, and to the declaration of lord Lyndhurst, that he had in his breast several propositions for the remedy of the grievances now existing in the court of Chancery. He wished that he could force an inquiry into the charges which had been brought, not only against the form of the tribunals in bankruptcy, but also into the manner in which they were conducted.
rose to express briefly his sentiments on this question, and he trusted that the House would allow him to trespass a little on its time, as he could not well avoid taking a part in the debate, considering that he had been a member of that commission which had been alluded to by the hon. member for Durham, not in the most respectable terms. He would state at once, that he rose to give his most decided negative to the present motion. He was convinced that it would not be advantageous to the administration of the bankrupt law, nor beneficial to the interest of the suitor; he was convinced that it would not diminish the expense of clearing away the various difficulties by which this subject was surrounded, if the House were to take from the lord Chancellor his jurisdiction, in the last resort, on this important question, and were to create another tribunal independent of him, and without appeal: for the same cases might come before the commissioners of bankrupt and the lord Chancellor, and thus they might have decisions in the law which were utterly irreconcileable. For these reasons, he could not agree to any plan which had a tendency to destroy what he conceived of infinite importance —an uniformity of decision, on all points relating to the property of the subject. That was his chief reason for dissenting from the hon. member for Durham, who wished to dissever questions in bankruptcy from the jurisdiction of the lord Chancellor. 963 But, though he entirely differed from his hon. and learned friend, he perfectly agreed with those who thought the question ought to undergo complete revision—who thought that the property of the subject was wasted by the expensive nature of the processes of the court—who thought the delays of the court of Chancery equally unnecessary and indefensible—who thought that the mechanism of seventy-two commissioners was one of the most absurd schemes that had ever entered into the brain of man. He knew that the existing system of bankrupt laws had produced evils in the metropolis, to an extent which it was deplorable to describe. He knew that the hon. member for Colchester had not exaggerated the fact, that not merely hundreds but thousands of individuals had been reduced to ruin, not because there had not been property to divide among them, but because it, had been wasted by the maladministration of the law, which had been prostituted to the basest of purposes. He would never give up the opinion which he had formed upon this question. He acceded to every thing, that had been said by the learned member for Peterborough; but he could not accede to what had fallen from the hon. member for Colchester, who had said that the commissioners protracted business at their different meetings, in order to put money into their pockets. Such was the evil, and such the iniquity of the present system, that he defied the commissioners to do justice by all their exertions. It was true, that no individual could hold a commission of bankrupt who was in great business. As soon as he got into that commission, he must either neglect his own business, or that of the commission on which he was placed. What could be so destructive of business as meeting for one hour, merely, on affairs of an intricate and complicated nature. He knew that another hour was sometimes given to them; but then, at the conclusion of the second hour, they must separate on account of their different private avocations. He was of opinion, that nothing could give to the merchants of the country proper security, except an entire revision of the subject, and the abolition of the existing list of commissioners. The hon. member for Colchester had suggested the erection of a Board of five Judges in their stead. Now, the hon. member must not be allowed to take the credit of that sugges- 964 tion to himself. It had been discussed by the Chancery commissioners: all the difficulties which had occurred to the commissioners had been put in the shape of questions to the witnesses whom they examined, in order to see whether they could or could not be obviated; and the reason why the commissioners had not made a report on that subject was, because they were of opinion—erroneously as he thought—that bankruptcy was not one of the questions included in their commission. It was also thought, that the commissioners ought to examine how the time of the Chancellor could be saved. He thought that such a scheme would be abortive; and he had nobody on his side but sir Anthony Hart. With regard to the administration of the bankrupt laws, he knew that it was a pressing evil. He felt severely the obloquy to which he should be exposed, in case the report came forth without any proposition for its redress. If his hon. and learned friend, the member for Durham, would propose any specific measure to reform the administration of the bankrupt law, he would willingly support it; but to go into a committee of the whole House, to read the statute of queen Elizabeth, which not more than seven individuals would understand when read, and to read subsequently the other statutes in bankruptcy down to the present day, appeared to him to be a practice as useless as any the imagination of man could devise. What did his hon. and learned friend wish to have done? What practical good could he effect by his motion? Had he considered the period of the session to which they had arrived? Could any scheme that he might propose now meet with due consideration? On the other hand, was the House to wait throughout the session without claiming of the government some specific promise of reformation? He thought it was proper that the country should have some statement, in order that it might undergo discussion at present, and be submitted to the House in the next session of parliament. He was convinced that nothing but legal enactments could remedy the evil. It was therefore absurd to expect that lord Lyndhurst would devise a remedy for that which nothing but an act of parliament could remedy. He was of opinion that bankruptcy, in the last resort, ought not to be taken from the lord Chancellor. The bill which was brought in by lord Lyndhurst had been 965 since abandoned; and they had been told to wait until they could see what his lordship and his two coadjutors could do by the force of their own regulations. He was ready to give lord Lyndhurst every confidence; but he must doubt whether any exertions which the noble lord might make, notwithstanding his advantages of being earlier in life, and more bold and fearless in disposition than his predecessor, could ever reduce the business of the court of Chancery within those limits of despatch and accuracy which were requisite to do justice between all parties. He was of opinion that much more must be done than his hon. and learned friend, the Attorney-general, seemed to anticipate. He was ready to wait until the next session of parliament; but, when it came, it would be necessary to lay on the table of the House forthwith, plans to alter the law of the court of Equity, and also that of real property; and, when those objects were attained by legal enactments, he entertained hopes, though he had also doubts, that the three judges would despatch their business with all requisite celerity. One thing above all others he deprecated. He deprecated any attempt to diminish, with undue celerity, the present number of arrears. He did not say that lord Lyndhurst would pursue that course of proceeding; but he hoped that nothing would be said in that House which would lead to an expectation that his lordship would do more than any man could do; for, if any such expectations were raised, it would be equally inconvenient to the public and to the noble lord. Let the noble lord proceed steadily in his course; and, if he should happen to find that the mass of arrears was too great for him to put down, let him not be ashamed to confess it. He should conclude by stating, that he should always support any measure that tended to reform our jurisprudence, and that he conceived to be productive of public advantage. He was convinced that every branch of our law required to be investigated, and that alterations might be made in most of them, which would tend greatly to the public benefit.
requested that the original motion might be read from the chair. The motion was read accordingly. He said, he thought that such was the motion of the hon. and learned member for Durham, and he was persuaded, by the able and candid speech with which he had intro- 966 duced it, that his object was to moot, upon the present occasion, a question which he had often previously brought forward; namely, the propriety and expediency of severing bankruptcy from the great seal. The terms of his hon. and learned friend's motion embraced no larger scope. The argument on which he went, entered into no wider field; and he was not, therefore, surprised that his hon. and learned friend, the Attorney-general, confining himself strictly to the subject matter in debate, had only applied himself to answer the arguments of the hon. and learned member for Durham. He was, however, surprised to observe, that as soon as his majesty's Attorney-general had sat down, the hon. member for Colchester having acceded to the debate, went into a wider field—he would not say a less important one—which, whatever might be its merits, was not then under the consideration of the House. That the matter of the bankrupt laws was one of paramount importance—that they might be freed from all the intricacy and complexity which was predicated of them,—that they might require great revision, not only as to their principles, but also as to their mode of administration,—that the mechanism of seventy-two commissioners, which had been so much attacked, might be injurious, cumberous, ill-contrived, and little calculated to produce the effects for which it was intended,—that many great reforms, and each of them important, might be introduced into the bankrupt laws, as regarded their administration, was a proposition which might be well founded, but was not the proposition which was then before the House. That proposition was exclusively this—and it was that to which his majesty's Attorney-general, and his hon. and learned friend, the member for Durham, had particularly addressed themselves, and on which alone he felt himself entitled to vote and speak—shall bankruptcy be severed from the great seal? Shall the House, with a view of considering that question, resolve itself into a committee of the whole House on the acts, giving the court of Chancery that jurisdiction? That was not an unimportant limit of the debate: for though he did not, whilst he was in the House, hear any observations tinged with asperity affecting either of his two learned friends who had spoken on this question, yet, on his return from a temporary absence, he did hear remarks, 967 which could only, by possibility, be brought to bear on the conduct of his majesty's Attorney-general, by totally confounding the matter to which he had opposed himself, and by mixing it up with that wider inquiry which, on a former occasion, had occupied the attention of the House. He asked, what inconsistency there was to vote against severing bankruptcy from the great seal, which was all his learned friend did that night; even supposing that his learned friend had formerly voted for the adoption of changes in the court of Chancery? But he would ask, did his learned friend ever vote against the proposition which had been made that night? Did he ever say, that bankruptcy should be severed from the great seal? Why, the question was never mooted in parliament before that night. His learned friends had said, that the court of Chancery required investigation. Did they object to it now? They said, that they saw at the present moment reasons for not effecting the separation which the hon. member for Durham proposed. Was that a dereliction of their former principles? He had been told that night, that a wondrous change was now visible in various members of parliament—that they were all opposed to the changes in the court of Chancery, which they had formerly advocated most strenuously—that they had no objection to all the arrangements of the court, though they had formerly poured forth against theta torrents of fiery indignation. Let the House mark the fairness of this attack. His hon. and learned friend, the Attorney-general, had said only one word upon this question. What torrents of fiery indignation came from his hon. and learned friend, either against the lord Chancellor or the delays of his court, or the system of his court, or the arrears of business, or the inveterate abuses which prevail in it, he was at a loss to divine. His recollection served him not on the point. He did not remember his learned friend bearing any permanent part in those debates; but he did know who bore a part in them—he himself bore a prominent, though an inadequate part. It had been assumed, for the purpose of attack,—not indeed by the hon. member for Colchester, but by those who cheered him,—that he (Mr. Brougham) had changed his opinions on that subject. How did they ascertain that his opinions were changed either on that or on any other subject? He called on the hon. 968 member for Colchester to say on what measure of government—on what chapter of policy—on what affair of state—on what part of the jurisprudence of the land—had his conduct, opinions, and principles changed. He demanded to know who they were that accused him of a change of principles. Let him and the House have charges. Let them have no more insinuations [great cheering]. For if there was a vile, mean, dirty, contemptible, mode in which slander could be lavished, it was that form of paltry insinuation, which skulked from the day, and defied investigation. As to the charge of changing sides in this House, some of those who had changed from his (the ministerial) to the other side had changed on no defined principles, if on any principles at all. But he would ask, whether those who had changed from the other side of the House to this—a movement which he knew would never be forgiven,—whether they had ever been called upon to alter an opinion, or to cancel a vote? On the question of severing the bankruptcy from the great seal, agitated upon a former occasion, he had concurred with his right hon. friend both in the House and out of the House; and his opinion stood recorded upon the proceedings of the committee on the court of Chancery in 1811. That opinion was, that the Chancellor could undertake bankruptcy and the ordinary jurisdiction of Chancery; and now he was to be charged with acting contrary to the declarations he had uttered, and flying in the face of all the opinions he had ever given on the subject, if he opposed the motion of his hon. friend! What was his argument on the constitution of the court of Chancery? It had been said, by those who contended that lord Eldon was not to blame for the arrears in the court, that no man could get through the mass of business which had accumulated there. Why had it accumulated? Because, it was said, the business of the court had increased since the time of lord Thurlow and lord Loughborough. He (Mr. Brougham) replied, if the business had increased, the means of disposing of it had increased too, by the establishment of the Vice-chancellor's court. He begged to remind the House (for he was on his defence, and called on to prove the consistency of his opinions) that the Vice-chancellor's court had not had fair play. Instead of having an efficient Chancellor, Vice-chancellor, and Master of the Rolls, 969 there had always been either an unfit Vice-chancellor or an unfit Master of the Rolls, which left the court in the same situation as before the Vice-chancellor's bill passed. There was first, sir Thomas Plumer, Vice-chancellor, and sir William Grant, Master of the Rolls. He would speak of sir Thomas Plumer now, as he spoke of him before, with all possible tenderness and respect; but he must say of him now, as he said then, that if he asserted that sir Thomas Plumer was a man who could get through business, he should state what was contrary to the fact, and what every person who heard him could contradict. A most able and efficient judge succeeded sir Thomas Plumer as Vice-chancellor, a judge who possessed great talents; though he would not attempt a picture after others had bedaubed the canvass. Yet, at this time, an inefficient judge had been transported to the Rolls court, whilst there was an efficient Chancellor, and an efficient Vice-chancellor: thus, instead of three equity judges, there were but two. He had objected, in the life-time of the judge to whom he alluded in the Rolls court, who possessed many amiable qualities in private life and considerable legal talents, that he was transplanted, at the age of forty from a sphere in which his talents would have continued to adorn himself and his profession, to a situation for which he was not adapted. At that period of life, and coming from common-law courts, he was not likely to show many talents as an equity judge. His (Mr. Brougham's) argument was this— "Do not tell me the system is in fault, when the men are in fault; give the bill fair play, and then consider of further alterations." Mr. Shadwell, when he was asked if three men could get through the business of the court of Chancery, had said, "No; nor three angels." Did he (Mr. Brougham) agree in this, as they must say who asserted, that he and his friends had changed their opinions? No; he said that angels, as well as gods, should not be called in, except to untie a knot worthy of an angel. He said, "Give us three human sublunary judges, able and willing to get through business; and, if they cannot get through the business of the court of Chancery, then it would be time to say the system was bad, and give more judges, and create more expense." He appealed confidently to the hon. member for Durham, and to the learned 970 member for Tregony, whether he had not urged this? He had thus stated what his argument was. He said, on the present question, we had, in the first place, one of the most efficient equity judges who had ever sat in court,—the present Master of the Rolls. Of this individual he would only say, that what had been said that night, and upon previous occasions, in his praise, was quite inadequate to do justice to his talents. There was no man who had witnessed his conduct in his arduous and difficult, in some respects unpleasant, situation, who was not satisfied—who was not impressed with wonder, and in some cases with unbelief—when it was known what struggles he was making with a severe and distressing complaint. That conduct had excited the highest respect. Here, then, was as efficient and as proper a Master of the Rolls as could be required. Of sir Anthony Hart—and he spoke in the hearing of his friends—he would say, that he had been one of the oldest and most experienced practitioners in the court of Chancery. To the extent of his professional knowledge, he could not speak; but he was admirably calculated to get through business, which would compensate for other qualities in which he might be deficient. Here, then, was another good equity judge. Did any one doubt that the present lord Chancellor, though not educated in the Equity courts, was a man of great legal talents, and of a strong, manly, and independent mind? He possessed a remarkable power of simplifying and dealing with the most complicated questions. It was the remark of those who had the greatest experience in Westminster-hall, that no man knew so well how to split the nut, throw away the husk, and get at the kernel. Speaking as a man of plain common sense, and without offering to defend his profession, which had been alluded to that night by the hon. member for Colchester only for the purpose of its being described as tarnished in its honour, void of principle, and full of treachery and tergiversation, notwithstanding what he (Mr. Brougham) had seen and read, daily and weekly, printed and exhibited, he should say little with respect to himself, except that he took a pride in avowing himself a member of that profession. Without going to sentence-makers, paragraph-mongers, and magazine-writers [a laugh], but to attornies, solicitors, and practitioners, he would under- 971 take to say, that what was predicated of the lord Chancellor was, that he was a man qualified for reforming the court, and anxious to save its time: it was the general opinion that he excelled in this, and that he would make up for that defect in his education, in not being brought up in a court of Equity, which was not his fault, but his misfortune. That he would, in a short time, make up for that defect, he entertained a most sanguine expectation. This was a ground of his confidence in the present arrangements. But he did not, therefore, say, "attach the bankruptcy to the great seal for ever—marry them—link them eternally;" but he said, "wait a year; give time to the court of Chancery, which now had three, not two, judges, for the introduction of practical and effectual reforms; " one of which had been mentioned—he meant the removal of the system of affidavits upon affidavits, without end, under which the court groaned, and suitors groaned still more; forming a weight heavier, and to them more costly, than gold. All this had been regulated by one simple order—that before a certain day all the affidavits on one side should be filed; and before another day, those on the other; and before a third day, the affidavits in reply; after which it was a rule of court, that no further affidavit could be allowed, unless under very particular circumstances. All this, it might be said, was easy enough; like Columbus's egg, it was very simple; and the result was almost as good as the discovery of that adventurous navigator; for it brought us nearer to the discovery of cheap justice. Then he said, leave thy lord Chancellor to make these experiments. The noble lord thought he could do something, with the aid of his two efficient coadjutors. Let the House wait and see what effect their united endeavours would produce. They had now judices a judicando, not judices a non judicando; they could now try the experiment in the court of Chancery, where there were not two judges but three, but it could be fairly tried, and if at the end of a year the case should appear hopeless, then he would admit, that the bankruptcy experiment should be adopted, and he would support a proposition which he now deemed mischievous, or at least premature. This was his opinion; and he believed it was consonant with the opinion of the lord Chancellor. That noble and learned lord was 972 of opinion, that if, after trial, it should still be found that the three judges did not (it would be because they could not) get through the business of the court, he would have no objection to sever the bankruptcy from the great seal,—Before he sat down, he trusted he might be allowed, if not on his own account, at least on that of his hon. and learned friend, the Attorney-general, with respect to the observations passed upon lawyers, to express his feelings (he would not say of unqualified contempt) of absolute indifference towards such reflections. Had they been applied to himself, he should have said nothing; they were not so applied. But, when he heard an attempt made to impeach his profession, and to taint the unsullied honour of his hon. and learned friend below him, he felt it to be due to his hon. and learned friend, whom he had now known for a quarter of a century, whose great professional knowledge had been confessed by all—and he would wring the acknowledgment from his enemies, for truth could be wrung from them—that he was now in a situation—and long might he remain in it!—from whence he could look down with contempt on all such reflections. His hon. and learned friend had led a life of seclusion, not of ambition. Although the most eminent and the most successful advocate in the common-law courts, he had been voluntarily exiled from all the honours of his profession, because he adhered to his political sentiments. Was it to be said in that House, that the law was a degraded profession—a profession from which the judges of the land were chosen?—that where the members of it were successful in their pursuits, they were to be objects of suspicion? The greatest men in that House had been proud to own a connection with the profession of the law. The constitution of England owed greater obligations to no class of persons than to the lawyers, who had made their way in that, and in the other, House of Parliament. To go no further back, there was sir Edward Coke, a name which almost indicated law itself, as he had remarked with respect to the venerable judge whose work he wrote upon; as the name of Tully had been said to be as much the name of eloquence as of the individual. Sir Edward Coke was a man who, from the post of Attorney-general, mounted the bench; from which he descended, to become a leader of the Opposition of his day. He 973 was followed by a host of others, by Maynard, Somers, Bacon; by the great lawyers who flourished after the Revolution, such as the Talbots and the Finches, and some who followed different lines of policy from his. Need he come further down, and enumerate Glynn, and Romilly, and Pigott, whom they had heard, and under whom he and his friends had had the happiness to serve? Where was there a band to which the nation owed more than to this? Was such a profession to be treated with ridicule and scorn; was it to be gibed at and despised; were lawyers to be degraded, as if only fit to be transported to the hot-beds of corruption? He would say, that this was one of the most vulgar, as it was one of the most false, sordid, mean, ignorant, calumnies ever hatched [cheers]. He begged pardon for thus trespassing upon the time of the House. If it were justly said, that the character of public men was the property of the country, when the character of his hon. and learned friend was attacked, and the attack was extended to the profession to which he (Mr. Brougham) also belonged, he deemed it to be his public, rather than his private, duty to offer his tribute to both.
§ Mr. M. A. Taylor
rose to reply. He expressed his surprise at the turn which the argument had taken. He had never spoken of the late lord Chancellor as the cause of the evil of the system. He had always said, that the functions of the office were too various and extended for any man to fulfil them properly, and that the system, which was bad in itself, had been made almost incurably so by the dubious mind of lord Eldon. That opinion he had expressed on former occasions, in common with the hon. and learned gentlemen opposite. Sir S. Romilly had given his opinion rather in favour of separating bankruptcy from the jurisdiction. What harm, in any case, could arise from allowing the subject to go to inquiry? Was there a man in the House who thought so well of the system as that it ought to continue? Would either of the hon. and learned gentlemen opposite, with all their respect for the three new equity judges, like to take a cause of their own into those courts? Then, what was the argument? Oh! there was a new lord Chancellor, of such ability and assiduity, that, if the House would but give him a fair trial, he, together with his coadjutors, would sweep away every thing 974 improper, and make the court quite nice and proper. The best times of equity were to be inferior to those which the country would enjoy since the advent of this new and brilliant ornament of the profession. And then, his qualifications were so eminent! It was true, he had not much practice as an equity judge; but he was a perfect common lawyer, and the vigour of his mind would make up for other defects! But why were they to trust to the mind of any man for a remedy to the system, after the failure of some as great at least as lord Lyndhurst? He did not wish to undervalue the talents of that learned lord, nor of the judges in the other courts of Chancery; but he would not be guilty of flattery to them, at the expense of others. They were but men, however highly gifted, and could do no more than men were equal to. They could not reform that system without the aid of parliament. However small the number with whom he might divide, he would content himself with the consciousness of doing his duty.
The House divided: For the motion 37; Against it 134; Majority 97.
|List of the Minority.|
|Birch, J.||Maberly, J.|
|Borradaile, R.||Maxwell, J.|
|Bright, H.||Osborne, lord F.|
|Buck, L. W.||Palmer, F.|
|Clive, E. B.||Ponsonby, hon. G.|
|Dawson, A.||Ponsonby, hon. F.|
|Denison, W. J.||Rancliffe, lord|
|Drake, T.||Rickford, W.|
|Fane, J.||Russell, lord W.|
|Fergusson, sir R.||Tufton, hon. H.|
|Forbes, sir C.||Warburton, H.|
|Forbes, J.||Webb, colonel|
|Grattan, H.||Wells, J.|
|Guise, sir W.||Wilks, J.|
|Halse, J.||Winn, hon. G. M.|
|Hay, A.||Wood, alderman|
|Hobhouse, J. C.||Wood, J.|
|Lombe, E.||Howick, lord|
|Lumley, J. S.||Taylor, M. A.|