§ On the Motion of the Attorney-General, the Order of the Day for resuming the Debate on the Amendment for referring the Bankruptcy Court Bill to a Select Committee was read.
§ Mr. George Bankeswished to ask the Attorney-General, whether this Bill was to be followed by another, and whether that Supplementary Bill was to contain a provision, giving the Lord Chancellor an additional retiring pension of 2,000l.
The Attorney-Generalsaid, he was not aware whether there was to be a Supplementary Bill or not; but it would not include the provision referred to.
§ Mr. Pembertonwished that a greater latitude of time should be allowed for the discussion of this most important question, than it appeared the noble and learned Lord, who was the author of the measure, appeared inclined to allow them. He wished to speak of that noble and learned Lord with the respect he felt for him and for his extraordinary talents; but he would not permit himself to be restrained by any influence to be exercised elsewhere, in his Court, or out of it, from expressing himself with freedom, yet with a proper tone and temper. With respect to this Bill, those who pointed at the defects of the bankruptcy system had done only half their duty; they were also bound to show that the Bill provided a remedy, 726 and the most suitable remedy. Certain inconveniences, which were inseparable from all Courts, had been treated as if, they were peculiarly incidental to the present system of bankruptcy. Appeals were great inconveniences, but they did not exclusively belong to bankruptcy. Unless he fiat of an arbitrary Court was submitted to, the expense of the delay of appeals must be incurred; and in proportion as appeals were multiplied, the sources of expense and delay were also multiplied. But this must be the case, until mutability was removed from human affairs. He objected to the Court of Review as unnecessary, for he considered the duties which were attached to it ought to devolve on the Vice-Chancellor, with an appeal to the Lord Chancellor. The Judges of the Court of Review appeared to him to be a useless incumbrance—an impediment over which it was necessary to pass in order to get at the Lord Chancellor. With respect to the charge of the present Commissioners being, for the most part, young men just called to the Bar, he had only to say, that an understanding had existed that gentlemen should have been seven years in the profession before they were appointed Commissioners; and, if a Lord Chancellor were to appoint such persons as had not been seven years, he would neglect his duty. To fill up the appointments in the new Court, a selection might be made from the present Commissioners, and this might be done both advantageously as regarded the character of the Court, and also would be attended with a great saving to the public. The noble and learned Lord at the head of the Court, had now got rid of the arrears of the Court, and he had stated his intention, so far as he had understood the noble Lord's oration, to take original motions, along with the Master of the Rolls, without the assistance of the Vice-Chancellor, so that the Vice-Chancellor, who had kept down the bankrupt cases hitherto, could take these cases in future, and it was, therefore, not possible to conceive what public benefit could arise from these four Judges; they were not an additional facility, but an additional impediment. He considered the whole scheme as only intended to get rid of the Vice-Chancellor, which he thought most impolitic. The official assignees were to be traders, or persons who had been traders. Now those who were traders would not be able to undertake the office, so that it 727 would devolve upon those who had been traders; in other words, it would fall into the hands of jobbers. The office would be sought as a refuge for the destitute; it would be an hospital for incurables—a provision for decayed merchants; it would be the Lord Chancellor's lumber-room, into which he would cast whatever he despised as worthless. He could not help characterizing this Bill as a most busy, meddling, mistaken piece of legislation. A jurisdiction more liable to abuse, more liable to scandalous jobbing, he never knew. The hon. and learned Solicitor-General had said, that the measure was a gain of the difference between 26,000l., and 28.000l. But it really took away the patronage of four places, and in lieu of it placed in the hands of the Lord Chancellor the immediate, uncontrolled, and irresponsible patronage of 26,400l. If this expense was necessary, he (Mr. Pemberton) made no objection; but let them not be told of the Chancellor's making such a great sacrifice, when it put into the hands of the Great Seal a more enormous amount of patronage than was ever given to a subject of the realm. Though it might seem a strange argument for an Anti-reformer, he contended that the Reform of this Bill was too partial. The public had been promised by the noble and learned Lord, a revision of the law and of the Courts, and if that promise was fulfilled, there was no branch of the law in which the pruning-knife could be applied with so much benefit as the law of debtor and creditor. There was no lawyer who was not fully aware of the anomalies, irregularities, inconvenience, and injustice, produced by that branch of our jurisprudence. It frequently pressed upon the honest and innocent, and as frequently extended impunity to fraud, and indulgence to crime. It filled our gaols with beggars, and was in general as barbarous and absurd as any law that ever disgraced a civilized community. The most wealthy person in the land might be made a bankrupt by the inadvertence or carelessness of his servant, in giving a denial of his master to a tradesman who might happen to call at an inconvenient time. The law again made not the slightest distinction between the fraudulent bankrupt and the victim of misfortune—of those who had pursued a career of gross profligacy and extravagance, or those whom calamity had reduced to insolvency, By the law, as it was at present 728 administered, the only material thing for a bankrupt to consider was, his conduct before the Commissioners; if he dealt tolerably fair with them, all would go well with him. These were palpable defects which required remedy, and it was also necessary that the rights of creditors should be better secured and promoted, and that a more complete protection should be afforded to honest debtors reduced by misfortune. A Court was wanted, not alone for the benefit of traders, but for the management of the affairs of all persons who might happen to fall into a state of insolvency. By rectifying these anomalies, the noble and learned Lord would really do what the Solicitor-General thought he would accomplish by this Bill—erect a lasting monument to his fame. But this Bill was not the stuff of which monuments could be made; a Bill which left all the anomalies and irregularities of the law precisely where it found them, and enacted places and pensions, fees and salaries. Such a Bill as this ought not to have been the first legislative measure of the master-mind of the age, who had been lauded in terms scarcely applicable to a human being. His chief objection to the Bill was, that it was a bar, an impediment to the liberal improvement of the law. He could not believe that the noble and learned Lord would expose himself to the suspicion of being actuated by motives which he knew the noble Lord would disdain, or afford a pretence for saying that this Bill was not intended for the amendment of the law, but for the creation of office—a measure of doubtful utility, but of certain expense—and that he would permit it to be said that an attempt was made to force this mass of undigested legislation through the House, without an opportunity being afforded it of examining and remedying its defects; that the prorogation of Parliament was delayed, and the Lords and Commons of the land were to be kept together at great inconvenience, in order that the Lord Chancellor might have the disposal of two score places six months sooner than he otherwise would. He did not insinuate this as a charge against the noble and learned Lord; if he believed it to be true, he would have asserted it, but he did not believe it; yet it was extremely difficult to understand on what ground this measure was attempted to be forced through the House at this season, when all minds were engrossed and absorbed by 729 other topics. The hon. and learned Member concluded by expressing his regret if any expression had fallen from him which was intemperate towards the noble, and learned Lord.
Mr. Pepyssaid, that, the motives from which the Bill had been supposed to originate were those of saving labour to the Lord Chancellor, and increasing his patronage. But if the Court were useful, it was clear that it could not be established without patronage. No new Courts could; and yet they must be established, or there could be no improvement in the administration of justice. But if there was any one quality of the noble and learned Lord more remarkable than another, it was the readiness with which he undertook labour, and which was as eminent as the facility with which he got through it. Although the Bill might have the effect of relieving the Lord Chancellor from the pressure of bankruptcy business, it should be recollected that there was still an overwhelming mass of matter in the Court of Chancery, and that though one part might be relieved, much still remained. Another reason alleged for the Bill, but which his hon. and learned friend professed not to believe, was, that its object was patronage. Yet one would suppose that his hon. and learned friend meant this to be believed, for over and over again he had insinuated it, and the insinuation had been received with cheers. Those who cheered must have believed the charge, though his hon. and learned friend had given a conclusive reason that the object could not possibly be answered. The Bill, in fact, would greatly diminish patronage in value. Its effect was, to limit appointments to persons qualified in a particular manner; they must be of a certain class. The noble and learned Lord could not favour his friends with the same latitude as former Chancellors, because the persons appointed must be of a certain class and qualification. Ever since he had been in the profession, he had heard the evils of the Bankruptcy Court complained of, and those evils this Bill would remedy. It was said, that the Judges would be paid before they had any work to do; that was a mistake. They would receive no salary till April, and in the mean time they would have many arrangements to make for the business of the Court. The separation of bankruptcy from the Court of Chancery had been recommended by Sir Samuel Romilly in 730 1809. The Judges now to be appointed would be armed with all the powers necessary to come to a conclusion in every case; and examining the parties themselves, could Form, from vivâ voce evidence, much more satisfactory decisions than the best Judges from affidavits. In all instances of bankruptcy there was an immense mass of matter which was merely matter of course, and this would in future be got rid of at once, instead of being deferred by the repeated sittings of the present Commissioners. Creditors would now have the means of proving their debts without any vexatious delays. The system of fabricating debts could no longer exist, nor could those evils be continued and renewed which now arose from the appointment of fraudulent assignees, against which the, laws had been so ineffectually directed. The Bill would effect a great point, for it would assimilate the country Commissions to the London Commissions, whereas at present the business was transacted in the country very imperfectly. He begged the learned Members of the House to reflect upon the benefit, the Bill would produce by relieving the Vice-Chancery Court, from a pressure of business, which the Vice-Chancellor could not get through, though the Chancellor and the Master of the Rolls had been able to relieve their respective Courts from the arrears. This was no fault of the Vice-Chancellor, but arose in a great degree from the nature of the present Bankruptcy Laws.
Mr. Alderman Wood, being well acquainted with the feelings of the commercial interest of the city of London, would take it upon him to declare, that that interest was deeply anxious that some measure like the present, calculated to correct the abuses of our bankruptcy jurisdiction, should pass into a law. It was highly expedient that at least one commercial man should be always on the list of official assignees, as none other than mercantile men could determine several practical questions between debtor and creditor. The only plausible objection which he had heard against the Bill was, that it would add to the patronage of the Lord Chancellor; but if it effected the good proposed, it was a matter of only secondary importance whether that noble Lord's patronage would be curtailed or extended.
Mr. Sheil, said, the objections urged to this Bill on the other side were all founded on its details, and did not touch the prin- 731 ciple, which he thought it was agreed should be the subject of discussion that night. Hon. Gentlemen who spoke early in the debate, dealt mostly in general condemnation of the Bill without pointing out specific objections. They indulged, too, if not in invective, at least in ill-founded imputations on the score of the patronage created by this Bill. The question was, however, not whether there was patronage created by the Bill, but whether the Bill was wanted? If it were once established that the Bill was useful, the objection founded on the exercise of patronage immediately vanished; if the Bill was bad, if it was not wanted, then the creation of the patronage deserved censure. Supposing the disposition of the patronage or its amount to be objectionable, it was matter of consideration in the Committee, and did not affect the principle of the Bill. A good deal of misconception—if not of intentional misrepresentation—had been fallen into on the other side. It was stated last night by the hon. and learned member for Boroughbridge, and indeed by other hon. members, that the Judges to be appointed to this new Court would be paid before their judicial duties commenced; but such was not the fact; for if the hon. Member would refer to the Bill, he would find that, although appointed before January, they did not receive their first quarter's salary till April. The hon. member for Penryn stated last night, that the money collected by the official assignee could not be drawn out of the Bank, except upon an order from the Lord Chancellor; but if he would look to the Bill, he would find that the matter was left to the discretion of the Lord Chancellor or the Judges of the Court of Review. The objection, therefore, to the official assignees, grounded on the supposition that the Lord Chancellor's order alone would be able to get the money out of the Bank, was destitute of foundation. This difficulty of getting out the money was only a contingent matter; whilst the security gained by the arrangement was certain. It was made a great objection, by the hon. and learned Gentleman opposite, to the official assignees, that they were to be paid a per centage upon the whole sum collected; and that, consequently, their emoluments might be enormous, whilst the dividend to the creditor was small. But if the hon. and learned Gentleman would look at the Bill he 732 would find that the Court of Review had power to limit the amount the assignees should receive. The hon. Gentleman who spoke last stated, as several other Gentlemen had done, that the assignees ought not to be chosen by the Commissioners, but by the creditors; but that objection, too, was one of detail, not of principle, and might very fitly be considered in Committee. It might be thought presumptuous in him to give an opinion upon this Bill; but there was so much affinity between the bankrupt systems of England and Ireland—there was such a twin deformity between them—that he trusted he should be excused for making the observations he was about to make. What were the mischiefs to be cured? Where did the mischiefs of the present system lie? In the appointment of the Commissioners, and in the choice of the Assignees. The Commissioners were selected from a class of persons who had not the benefit of much experience, who were novices in their profession, whose want of practice must incapacitate them for the prompt discharge of their business, and who had strong incentives given them to increase expense and delay. The Assignees were chosen from a class of persons whose interest induced them to enter into combination with the bankrupt against the creditors, and who often picked up their own fortunes out of the ruins of the estate committed to their care. If this was a true sketch of the present system and its workings, correction ought to be applied with a strong and fearless hand. What was the history of a Commission?—a docket was struck, and a Commission was issued to five persons, barristers, but generally not of high rank or station in the profession. This branch of the Lord Chancellor's patronage was exercised, he would not say with a view to parliamentary or political purposes, but certainly not with an exclusive view to public justice. What was the first duty of these Commissioners? It was, to determine whether the party was a bankrupt or not. It was a monstrous thing that a party should be able to bribe a Judge; and was it not equally monstrous, that the law itself should bribe a Judge?—and yet it did, for the Commissioners had a direct interest in finding a party a bankrupt. If they found that he was not a bankrupt, there was an end of their emoluments; but if they found that he was a bankrupt, 733 there was an immediate succession of meetings and adjournments, for which each Commissioner was paid 1l. a-day, as also for proving the debts, settling points of law—in short, every expedient was suggested that could create delay. Another serious evil attendant on the present system was also got rid of by the Bill—he meant that of Commissioners at one moment acting as Judges, at another as Advocates;—with one hand they received their fee as Commissioner—with the other, their fee as barrister, and both from the same attorney. The result was, that the intercourse that rose between the barrister and attorney, extended to an intercourse between the attorney and the Judge. The consequence of this double character possessed by the Commissioners was sometimes ludicrous. In two different compartments two different bankrupt cases were being tried. In one of them an individual was playing the part of Commissioner, when, suddenly he would divest himself of his judicial attributes, and run into the other compartment to enact the advocate. In Ireland this practice had produced the greatest evils. With respect to the assignees, they were generally appointed by the intervention of the creditor who struck the docket; and the assignee generally entered into combination with the bankrupt or with the solicitor. The solicitor dealt in costs, and the assignee in fractions, which he called dividends. The present Bill strove to correct both these defects. It had been suggested that the Vice-Chancellor's Court was competent to become Court of Review; but there was the advantage of four Judges, and of examination upon vivâ voce evidence in the Court proposed to be erected, which there was not in the Vice-chancellor's Court. Gentlemen of great eminence at the Bar opposed this Bill; but it must, be recollected that, there was always tendency in the human mind to defend the abuses by which each had profited. It was said by Lord Chatham, that, touch a single thread in the cobweb of Westminster Hall, and every bloated spider hidden in their recesses, would rush out to its defence. Demonstration was thrown away upon the admirers of the ancient system; and to them might be applied the lines of the poet—
In rules of practice obstinately warm, Suspects conviction, and relies on form
Mr. Alderman Thompsonhad presented 734 a petition from the merchants and traders of London in the early part of the present year, justly complaining of the existing system of Bankrupt-law, which he was glad to find no one had attempted to defend. He was not bout to detail proofs of the defects of the present system, for they must be familiar to every commercial Member of the House; but he was anxious to express his own opinion upon one or two of the proposed changes. It would not become him to impede the progress of a measure, the object of which was, to effect great and important amendment in the law; but, at the same time, he must fairly state, that there were certain parts of this Bill to which he entertained considerable objections, which objections, as well as several others, ought to be, for the advantage of the trading interests, investigated before a Select Committee up-stairs, as suggested by the hon. member for Bridport. He had, for instance, a great objection to the appointment of official assignees; for the individuals best calculated to protect the interests of the creditors were those who were interested in the bankrupt's estate. He never found that there was any difficulty in getting competent individuals to fill the office of assignees. They were generally selected from the most considerable of the creditors; and although the election was made by the majority of the creditors, taking the amount of money and number of persons into consideration, he never found that the interest of the minority was neglected in the way suggested by the hon. and learned Member opposite. He had stated that it had occurred that assets had been lost to the creditors by the failure of the assignees. It had been his misfortune to be interested in many bankrupt's estates, and such a circumstance never came to his knowledge. At the first or second meeting a banker was appointed, to whom all assets were to be paid, and afterwards the creditors ascertained that they had been so paid, and, if they had not, the assignee was liable to a penalty of twenty per cent. He was not aware that circumstances had ever called for the enforcement of that penalty, so that, he apprehended no evil had arisen from the present practice. It might, be beneficial to have individuals appointed as auditors to see that the creditors' assignees did their duty, and used diligence in the collection of the assets, and lodged them in a place of security. Great 735 apprehension had been created by the fear of all assets having to be paid into the Bank of England in the name of the Accountant-general. The very name of that officer was an object of horror to commercial men, from the difficulty and expense of getting money out of his hands. The hon. and learned Gentleman might, cry "hear!" but he would state to him a fact in which he was personally interested. Some hundreds of pounds were due to him (Mr. Alderman Thompson), but he was told that the expense of getting it out of the Accountant-general's hands would absorb it all. Most likely the Accountant-general would, even under this Bill, continue to be the Accountant-general. With respect to the patronage that would be created by the Bill, he had no objection to it, provided the public derived adequate advantage from it. He was sorry to see a disposition in any quarter of the House, to treat this otherwise than as a commercial matter; and for himself, without having any reference to politics, he really thought it would be more satisfactory to the commercial interests of this country for them to adopt the suggestion of the hon. member for Bridport, and refer it to a Select Committee. Unless that was done, they should, Session after Session, have Bills brought in to amend this Act, till the laws with respect to bankruptcy would become so voluminous as to occasion the greatest confusion and inconvenience to the commercial world.
§ Mr. Burgewas anxious to state the grounds upon which he concurred in the propriety of referring this Bill to Select Committee, because it had been insinuated on the other side, and broadly stated elsewhere, that opposition to this measure originated in party feeling. One would suppose, from the speeches of those who made that accusation that the opponents of the Bill considered the system of the Bankrupt-law as requiring no amendment. Not one Gentleman had risen on his side of the House without admitting that there were defects in that law requiring a remedy; the only thing they contested being, not that this measure did not contain provisions adequate to remove those defects, but that it introduced alterations which their nature did not require. As to the number of the Commissioners, and the manner in which their time was to be dedicated to the business of the Court, it was said that the number was to be reduced, and that 736 there would be that constitution of this reduced Court, which would secure the public against loss of time, secure a proper performance of their functions, and be the means of preventing considerable delay and expense. It was said also, that those who opposed this measure, could not be actuated by sincere motives in doing so. He must turn round upon his hon. and learned friend, and say, that there was just as much chance of the other side of the House being wrong in pursuing the course they did; more especially when it was found, that one of the hon. and learned Gentlemen who supported this measure certainly took a very different view of it from that which he took on a former occasion. Certainly his hon. and learned friend, on a former occasion, did not deem it advisable that the jurisdiction of bankruptcy should be separated from the Court of Chancery; but now, at the termination of the Session, when the Bill was introduced at such a period, he thought fit to alter his opinion. There were circumstances connected with the passing of this measure, which he should have imagined would have prevented his hon. and learned friend from arguing that party feeling, with respect to this Bill, existed only on his side of the House without extending to the other. It would be very difficult for him to maintain his opinion, that such a party feeling originated on the Opposition side of the House, when it did so happen that almost every one of his hon. and learned friends had failed, not in shewing that delay and expense had existed, but in proving that they would be remedied by this Bill. When it was said by the supporters of this measure, that the character of the Court of Commissioners, and the number of those Commissioners, were evils which ought to be redressed, and which were proposed to be redressed by this Bill, they certainly need not give themselves the trouble of endeavouring to prove the existence of evils arising from the manner in which the duties of the Commissioners had been performed, and the evils which resulted from the present system, because the existence of those evils was admitted; and it was said they might be redressed by a reduction of the number of Commissioners, and by placing the system in such a point of view as to obtain the assistance of most able Commissioners of Bankrupts, in such manner as to insure the public's receiving 737 the whole of their time, and their giving that uninterrupted and constant attendance to the business brought before them, which was considered essential. If the constitution of the Court of Commissioners was reformed with respect to their qualification, and with respect to the degree of attention and time which they were to devote to the performance of their duty, this certainly would redress an evil which, according to all the evidence that had been produced, was the one most complained of. The complaint had not been as to the manner in which questions had been disposed of in the superior Courts; but the difficulty and delay incurred in consequence of the Commissioners devoting so little of their time to the investigation of one particular question, and by reason of their pressing so much business into the small space of time occupied by their different meetings. That appeared to be the ground of complaint stated by the principal witnesses who gave their evidence before the Commissioners. This evil must be corrected, and there was no one on that side of the House who was not quite ready to concur in any measure which would have that effect. But was it necessary for that purpose to create a new a Court or jurisdiction? No, it was not necessary that this new Court should be established, because the Courts in Westminster Hall contained abundant means by which all these great, questions could be decided, infinitely more to the satisfaction of the public than if they were decided by a Court which must always be, to a certain extent, considered as an inferior Court. One fact was quite clear, there would not be sufficient business in this new Court to engage the attention of those four Judges for anything like the whole year; and it would follow, as a necessary consequence, that whatever talents or attainments they might possess, they would suffer greatly from not having constant practice to keep alive the information they might possess, and which would be necessary to render them efficient Judges of an appeal Court. Notwithstanding the information, knowledge, and intelligence these Judges might possess, the establishment of a Court to exercise the functions, both of a law and equity Court, was not likely to be advantageous. Was it not the general opinion that this experiment had failed in the Court of Exchequer? This alone would be an object- 738 tion to the constitution of a Court of this description, even if there existed no other. If this Court of Review was meant to answer any purpose whatever, it was intended to supersede the Vice-chancellor's or the Chancellor's Court to a certain extent. But was it to be supposed, that this Court, consisting of four Judges, would possess that degree of knowledge and experience which was now derived from the Lord Chancellor and the Vice-chancellor? Why, then, was the suitor who might be desirous of appealing, to be deprived of the benefit of resorting to the old-established tribunals of the land, and to the superior Courts of judicature? It had been said with respect to the Commissioners, that the number proposed by this Bill might or might not be sufficiently large, considering the duty they had to perform, subject, of course, to an appeal from the decision of the Vice-chancellor's Court. If these Commissioners received the means of devoting their time to the performance of their duties, if care was taken that those duties were properly performed, all that was required would have been done. No case had been made out to call for, or justify, the establishment of this new Court, which would not only be attended with expense, but with positive disadvantage to the suitors, by depriving them of more competent tribunals to which they ought to have the opportunity of resorting. It had been urged that the accumulation of business in the Court of Chancery was an objection to the questions still remaining to be disposed of by that Court; but even with respect to this objection, it had been clearly shown that the delay which took place was not so great as to be incompatible with the very considerable interests of the suitors. Complaints, too, were made of the great evils arising from the use of affidavits in the Vice-chancellor's Court; but affidavits would also be made use of in the Court which it was proposed to establish, because it would not proceed on vivâ voce evidence alone, and affidavits would not be excluded. It had been said, also, that those who contended that this Bill would confer patronage, were mistaken in the view they took of the case. But it was not to the patronage itself that they objected: if it were shewn that it was necessary to establish this new Court—that all this expensive machinery was essential—that the conferring of that patronage would 739 remove the existing defects in the system—neither he nor his friends on that side of the House would oppose it. But his hon. and learned friend opposite had failed to prove the very ground on which he rested this Bill. He said this Bill proposed to get rid of seventy Judges or seventy Commissioners, with the salaries they receive, amounting altogether to 28,000l. This was very true; but was there no difference between possessing patronage to the amount of 26,000l. a-year, and possessing patronage in reversion, with the possibility that it might never come to anything like that extent? There was a very great difference, and the advantage was decidedly in favour of possessing a certain patronage to that extent, which must be superior to the chance of offices becoming vacant. This patronage, therefore, was objected to, because it had not been shewn in any way whatever that the plan proposed was necessary. With respect to the appointment of official assignees, one possible case had been put by an hon. and learned Gentleman opposite; namely, that there might be instances in which an assignee might be appointed who had other objects in view than the interests of the creditors. But would the chance of getting a dishonest assignee be considered a sufficient reason for transferring the appointment of assignees to the Lord Chancellor, who could not have, by any possibility, the same means of ascertaining the character and qualifications of the individual to be selected to fill the office, and who, therefore, could not be so advantageous a person to make the choice as those who had a direct interest in making a fit and proper selection? But was it necessary, for the sake of the estate, that official assignees should be appointed? What had the official assignee to do? He was to pay the monies which he might collect into the Bank, to the credit of the Accountant-general. But could not, any other assignee do thus much? Was it necessary to appoint an official assignee for this purpose? For what reason, then, could he be required? Was it for the purpose of exercising a control over the estate? The Court of Chancery itself possessed that control. It was the object, or rather one of the objects of this Bill, that the money collected should be paid in. But, then there was to be a very considerable commission to be paid to the official assignee, in return for the pains he might take in 740 administering the estate. There was one disadvantage connected with official assignees, which must be apparent to all who heard him: an official assignee could not have that interest in refraining from plunging the estate into expensive litigation, which would be possessed by an assignee chosen by the creditors, and himself a creditor, whose interest it would be, to accumulate as large a fund as possible. That there were defects in the existing system no one would deny; but there was a great diversity of opinion with respect to the remedies which should be applied: the defects ought fairly to be redressed, but this could not be done, if a measure of this importance was precipitated through this House, without great attention and patient investigation by those who were well qualified to form an opinion upon the subject. He would appeal to the worthy Alderman who spoke last, nay, even to the worthy Alderman who spoke before him, whether he could conceive, acquainted as he was with the subject, that this measure would remedy the defects which existed in the present system? This Bill did not provide an adequate remedy, and it was not calculated to answer the objects which the noble and learned Lord who introduced the measure had in view.
§ The House divided on the Original Motion. Ayes 107; Noes 31—Majority 76.
§ The House in Committee.
§ On the question, that the first clause stand part of the Bill,
Mr. Warburtonwould say but a very few words. He was not one of those who considered that the present system of banruptcy did not require very great alteration, or that a radical reform was not required to eradicate the evils which existed. His objection to the present Bill was this; it left unremedied a great part of the evils which existed in the present system. First, as to the delay which was said to arise from the present system of bankruptcy: none of the arguments which he had heard had satisfied him that this delay would be diminished, or that the number of appeals would not be multiplied under the new system. On the contrary, the number of appeals would be multiplied, and the delay would be as great, if not greater, than that to which suitors were at present exposed. He could not understand the use of multiplying appeals. A proper and competent Court to which the parties could carry their appeals 741 was all that was necessary; but it was now proposed, first to establish a Court of Commissioners, then a Court of Review—and, not contented with this, the parties were to have the power of appealing to the Lord Chancellor, and to the House of Lords. Professional men accustomed to the present system, might, at first, feel a great deal of alarm at the proposed alteration, but, he, who was not able to conceive or to understand the advantages arising from such a system, could not help thinking, that the proposition which was now made in this respect was not such an improvement as they might have been induced to expect from that master-mind which originated this measure. It partook of all the evils of the old system, and for that reason, because it was not a radical improvement, he would contend against it; and if he found any of the clauses which called for observation, he would certainly express his opinion upon them, with no intention to delay the House. He must, however, take the opportunity of saying, that, to force forward a Bill of this importance at this period of the Session, when many Members were gone, and many more were going out of town, was not by any means proper.
§ Sir Charles Wetherellsaid, that as he and many other hon. Members who had thought proper to express an opinion against this Bill, had been pointed out as determined and obstinate opponents of his Majesty's Government, it was to him matter of peculiar consolation to hear an hon. Member of that House, who had been an habitual supporter of his Majesty's Government, condemning the precipitate manner in which this measure had been introduced. He could not regularly allude to what look place elsewhere; but it was pretty generally known, that it had been said in another place, in a somewhat, magisterial tone, that, Parliament should not be prorogued until the Bill was passed. Some one had said it should be passed—some one had laid down the law—some one had put his veto upon the prorogation until this Bill had passed into a law. It certainly was not, possible for an individual who was not a member of the Cabinet to know what passed in it; but rumour said, that one man told them this shall be done, and that shall not be done, just in the same manner and tone as he would say to the House of Commons, you shall do this and you shall not do that. Whether the hon. Member alluded to these arrogant dicta- 742 tions he knew not; he certainly did virtually, if not literally. To bring forward a Bill of this description at the close of a protracted and laborious Session, and to call upon that House to pass it at midnight, without any previous parliamentary inquiry, was not quite consistent with that degree of respect which the head of the law had usually shewn to members of the profession, and to the House of Commons. In the progress of this discussion, he had taken the liberty to state his objections to this Bill almost to empty walls. He certainly had never had the good luck to see so many Gentlemen present during any part of the argument as he had had the good or bad fortune to see during the division which had just taken place. There was certainly a considerable number of Members present, who had made a pretty large majority in favour of the Bankruptcy Court Bill. He did not blame hon. Gentlemen who were not professional men, for disliking these discussions; to such persons they must, no doubt, be very dry and uninteresting; and, therefore, without troubling themselves to listen to the arguments on either side, they merely appeared in their places when they thought they would be called upon to give their votes. It was true they were not to look solely to the expense of establishing this new Court, without reference to its utility. Assuming this Court to be necessary, which he denied, he should be the last man in the world to look to the expense of establishing this tribunal, though he might, perhaps, be disposed to say a word or two about the patronage. When he heard a complaint made, however, on the ground of additional patronage and expense, he should certainly be disposed to found a complaint on both these grounds, on the statement of the hon. member for Louth. What was this Court to be, and how was it to be constituted? It, was to be composed of a Chief Justice, at a salary of 3,000l. a-year; and three Puisne Judges, who were to receive an income of 2,000l. a-year each; and, certainly, if he thought it necessary to establish this new superior Court, he should not object to its establishment on account of these salaries being too high. His plan for the improvement of the Bankrupt-laws would be something of this kind; he would reduce the number of Commissioners to a certain limit: he would compel that reduced number of Commissioners to exercise the strict duties of the Court be- 743 low, and he would give an appeal from that Court to the Court of Chancery, by allowing petitions to be heard, either before the Lord Chancellor or the Vice-chancellor. The opposite side of the House had found fault with them for opposing this Bill without having some plan of their own ready cut and dried—there was his plan. He had not expected this Bill to have been brought forward this Session, or, if at all, he expected to see it brought forward here in the first instance, and that it would not have been left to the House of Peers to originate a Bill of this description, although, of course, he did not dispute the right of my Lord Chancellor to bring forward a Bill like this in his own House. Hon. Gentlemen opposite said, "where is your Bill? where is your plan?" If it had been intimated at the early part of the Session that my Lord Chancellor meant to bring forward this Bill, that might have been urged as an argument against them; but to do so now, and under existing circum-stances, was not only not consonant with parliamentary usage, but it was really a breach of faith. In the first place, they were to have a list of six Commissioners, who were to perform all the duties now discharged by the existing body. He was firmly convinced, that when this Bill came into operation it would accelerate the progress of the very evils which were now complained of: it was with this persuasion, and not with any views to his own personal comfort or convenience, that he thought it his duty to address the House upon this subject. His objection to the establishment of this Court was, that it was not wanted, and that there could be no possible necessity for appointing four Judges. However, this being a Court of Review, they were to have an inferior Court, composed of six, or seven, or eight barristers, who were to constitute a tribunal analogous to that which now existed, and which was conducted by the Commissioners of Bankrupts. He did not know whether the hon. Gentleman who had just now addressed the House, objected to the very great decrease which was to be made in the number of these Commissioners—this Bill certainly did set to work, and cut up right and left, root and branch, these septuagint Commissioners. He was of opinion that the number of Commissioners in the present lists was too numerous. He would reduce them to a given number, perhaps thirty. Hon. Gentlemen opposite, who, 744 in the course of these discussions, had talked of their authority and their experience, never dreamt of proposing such a plan as the Court of Review until this Bill was introduced. His memory might deceive him, but he could not recollect that any man ever thought of proposing the establishment of a Court of Review until this Bill was introduced; on the contrary, every man examined before the Commissioners gave it as his opinion, that the best remedy would be to prevent litigation, and to provide cheap and expeditious justice. He might be wrong certainly, in the view he took of this part of the question, but his being in the wrong had not been proved. He would move as an amendment, that everything relating to these Judges shall be left out of the clause. Of course he knew that it would be of no use, because the man with the master-mind—he was going to say, the master of the Cabinet—said the Bill shall be passed, and, of course, passed it must be. So it was with the Reform Bill—the people were told, "My friends, be so good as to keep yourselves quiet—be cool, do not rebel, and you shall have your Bill." Many hon. Gentlemen might, perhaps, like to have an inquiry upon this subject; "but no," said the man with the master-mind, "let your own judgment be what it may, you must vote as I tell you." Under these circumstances, he very much regretted having to address himself to this subject in the presence of so few hon. Members, knowing that he was undertaking a hopeless case, and knowing, as every labourer in this field did know, that he was sure to meet with ironical cheers, and sardonic grins from hon. Gentlemen on that side of the House. However, a man must not permit himself to be turned away from the subject by such matters; they had an imperative duty to perform, and they must do justice to themselves as well as they could by expressing their opinions. The preternatural masterminded lawyer might calculate à priori on their decisions, but he would nevertheless discharge his duty, by moving to omit the words to which he had referred. What was this Court, consisting of a Chief Justice and three Puisne Judges, to do? A very eminent man said, that the Court of Exchequer had a vast deal to do; measure after measure had been brought forward for reducing that Court; and if, in conformity with the fiat of the man with the master-mind, this Bill was passed, 745 they would yet have to revise their own act, and to pension these Judges off—they must have a little of the otium cum dignitate. They were very robust Judges now, flourishing Judges, but the House must look forward to their future comforts and enjoyments, and provide a retiring pension for them, in addition to a liberal salary while they were acting. He requested hon. Gentlemen who had voted, and to whom, therefore, his request could do no possible harm, to consider with him for a moment what these Judges would have to do; they were very able persons, and no doubt would be very willing to work—but what work was cut out for them to do? It was calculated that all this business might be done in the course of fifty or sixty days in the year; that was to say, judicial days, from ten in the morning until four in the afternoon. This was about the period in which the Lord Chancellor could get through the business; so there was at least one consolation in the constitution of this Court—the Judges would not exhaust themselves, they would not spoil their constitutions with hard work, but they would remain in the full possession of their bodily and mental faculties. The labour of these Judges would not be adequate to the salaries they were to receive, and the House was appointing Judges, whose judicial labours might be embraced within a period of two months. The learned Solicitor General smiled at that—he was very glad to see it. Perhaps he would oblige them with a contradiction, or perhaps he would depute some hon. Gentleman on that side of the House to do so. There could be no doubt that there should be an immediate appeal from the Court below without travelling through these other Courts. Supposing the Court to be necessary, where was the necessity for four Judges? If an intermediate Court was really necessary, one Judge, eminent as the Chief Judge of this Court was to be, would be amply sufficient. He should, therefore, move for the omission of that part of the clause which provided for the three Puisne Judges. The hon. and learned Gentleman who addressed the House last night said, he should not reply to the vulgar attacks which had been made upon the Lord Chancellor on the subject of patronage. His hon. and learned friend, for the last ten or twelve years of his life had been much better and much more profitably employed than in that House. It 746 certainly would have been infinitely better or him (Sir Charles Wetherell) had he like his hon. and learned friend employed his time elsewhere, than within hose walls. When his hon. and learned friend stated that the imputation upon the Lord Chancellor, of a desire to create patronage, was so extremely vulgar that he could not make up his mind to reply to it, he would assure him, that had he been a Member of that. House during the last ten years, he would over and over again, have heard imputations, at least of equal vulgarity, from his Whig associates, while they were sitting on that side of the House. He had been constantly listening to these vulgarities from the Whigs—to vulgar assertions upon the smallest matters—objections in duodecimo. A right hon. friend of his, now the first Lord of the Admiralty, had often been extremely vulgar upon matters of this kind—sometimes accompanying the vulgarity of his objections with a little wit—sometimes with a little acrimony. But all had been exhausted on but trifling subjects, which, as compared with the monstrous folio of patronage, which would result to the Lord Chancellor from the passing of this Bill, was like the most diminutive of all diamond editions. Objections to little pocket volumes, mere 24mos., he had never heard complained of. Indeed, the hon. member for Middlesex and the right hon. Baronet, the First Lord of the Admiralty, had gained no inconsiderable merit among their party for their industry, ingenuity, and cunning in raking up petty grounds of objection. But when they came to this elephant folio of patronage, amounting to some 26,000l. a-year, any objection to it was mixed up with the idea of vulgarity. If to object to such an amount of patronage which was needlessly, wantonly proposed to be introduced, was vulgar, doubtless he was the vulgarest of men. Although they had not yet seen an official list of the names of the persons whom it was intended to appoint to the offices which would be created by this Bill—he was aware that the son of an illustrious friend of his, the late Lord Erskine, would be one of the Judges of the new Bankrupt Court. My Lord Erskine and he were friends, although he was a very eminent Whig, and he was then, as now, and as he should always continue to be, a Tory. If he compared my Lord Brougham—preternatural man, though he be—with my Lord 747 Erskine, who in many respects was the equal of any man who ever filled the office of Chancellor, he thought that, upon the point of patronage, at least, my Lord Erskine had the advantage. The morning after that noble and learned Lord was appointed to the custody of the Great Seal, he had a long discussion with him upon the subject of the list of Bankrupt Commissioners, and indeed upon the business of bankruptcy generally. What was the noble and learned Lords conduct? As Chancellor coming newly into office, he had the undoubted right of removing every one of the Commissioners appointed by his predecessor; of placing them upon the retiring Pension-list, and of appointing other persons of his own selection, and, if he chose, in his own interest or belonging to his own political party, to the vacancies thus created. But what did he do? To his immortal honour, although several of them were violently opposed to him in politics, and had written and published strong and virulent pamphlets against him and his political friends, he did not displace one of them. One of these pamphleteers, Mr. Bowles, had distinguised himself beyond any other for the violence of his attacks upon the Whigs, so much so as to incur the displeasure of the whole of that party. When my Lord Erskine, therefore, was appointed to the Woolsack, many of his party pointed out to him the propriety of removing Mr. Bowles from his office. He had seen several letters written to the noble Lord upon the subject, from men of considerable eminence. He was not sure, indeed, whether Mr. Fox was not one of those who desired that Mr. Bowles might be removed. But Lord Erskine, although he had the right to displace every man upon the list of Commissioners of Bankrupts, declared that not one should be removed upon any party consideration whatever. He remained true to his word. Not a single Commissioner was displaced; and, what was more, the individuals who filled the various other offices connected with the Court of Chancery, whom the Chancellor had power to remove at pleasure, were left by Lord Erskine in the undisturbed enjoyment of their places. Such was the conduct of the last Whig Chancellor—unmindful of party-feelings where party-feelings should not operate, he would not avail himself of the right of demolishing the list of Bankrupt Commissioners appointed by his prede- 748 cessor, for the sake of courting patronage by appointing another of his own. There was now another Whig Chancellor; and what did he do? His friends had pronounced him to be more than mortal. The angel Gabriel's sword certainly could not be more sweeping or more trenchant than this preternatural Chancellor's Acts. By the Bill which he had introduced, the Septuagint, as the seventy Commissioners had been whimsically called, was to be sliced off from the body corporate of judicial administrators; and a new Court, consisting of an eminent—he believed not a superhuman—Chief Judge, three Puisne Judges, a list of Commissioners, and a train of Official assignees all dependant upon the appointment of the Lord Chancellor, was to be soldered on in its stead. Certainly, there was a strange difference in the conduct of the two Whig Chancellors. He did not pretend to say which was the more correct; but that of my Lord Brougham, every one must admit, carried with it the appearance of a desire for patronage. It seemed to him, that the Press was a ready instrument in the hands of the present Government; and when he saw the leading journals of the day taking a particular line of conduct, he felt quite sure that it was the precursor of some political measure; therefore, as a precursor to this Bill, they saw, in one of the leading papers, a virulent scrutinizing, but false description of the birth, parentage, and education of every man who was now a Commissioner of Bankrupts. He did not say, that in that libellous, unjust, and calumnious description, my Lord Brougham was a participator; he did not suppose that he was. But certainly nothing could be more suited to his purpose, because nothing could tend more to lower and degrade the individuals attacked, in the estimation of this House and of the country; and consequently nothing could be better adapted to reconcile Parliament to their removal from office, and to the substitution of a different tribunal for the administration of that branch of the law which was previously intrusted to them. He had read the attack of the newspapers upon the Commissioners with pain. He did not know them all, but he was acquainted with many of them. He esteemed them; he knew them to be men of talent, of honour, of untarnished character. He knew the attack which had been made upon them to be false and 749 calumnious. Did it follow, because a man held the office of Commissioner of Bankrupts that he must therefore be dishonest his private character bad—his public conduct disreputable? He could not suppose that any hon. Member would allow his mind to be prejudiced by such illiberal notions as these—notions, which the organs of the Government had been at such pains to inculcate. Without, troubling the House at any greater length upon this part of the subject, believing that one Judge would be sufficient to constitute the proposed Court of Review, he begged leave to move that the word "Chief" before the word "Justice," and subsequently the words "three Puisne Judges" should be left out of the clause.
§ On the question being put—
§ Sir Henry Hardingedid not rise to make any observations upon the question before the House, of which, as a matter of course, be could know very little, but upon which he should not hesitate to have his vote guided by his hon. and learned friend who had just sat down, in whose judgment, honesty, integrity and straightforwardness of purpose he had the most implicit confidence. His object in rising was, to state that in the course of the labours which his hon. and learned friend had undergone upon this Bill, and upon the Reform Bill, not withstanding the attacks which had been made upon him this evening, that no man ever more distinguished himself in that House for an uncompromising independence, for strict consistency, unflinching integrity, or for a brave and gallant vindication of every political sentiment that he ever uttered, than his hon. and learned friend. And although his hon. and learned friend might have attacked others, and been himself attacked, he would undertake to say, that during the present Session of Parliament no man had laid in a greater stock of admiration from his friends, and, if not of admiration, at least of respect from his opponents, than the hon. and learned member for Borough bridge. As he was compelled from illness, and other circumstances, to leave town to-morrow, he could not help availing himself of this opportunity to express his heartfelt thanks to his hon. and learned friend, for the course which he had pursued upon the two great measures which had been submitted to the consideration of the House during the present Session of Parliament. As 750 one of the many who had admired, and who felt indebted to him for the unwearied exertions which he had made, he had uttered these sentiments with a sincerity which nothing could exceed.
The Attorney Generaldid not rise to engage in any contest with the hon. and gallant Officer upon the subject of his hon. and learned friend's conduct, cither upon that Bill or upon the Reform Bill. Upon both his hon. arid learned friend's opinions had differed from his; but believing them to be the honest conviction of his mind, he did not blame him for the manner in which he had advanced them. He was far from claiming for himself any particular confidence from his friends. But it was quite certain, that upon a question of such a description as that now under the consideration of the House, confidence in particular individuals must go far to influence the votes of the majority of Members, because, from the nature of the question it was impossible that many should be able to understand it. Therefore he trusted that, the observations which had been made upon the absence of several hon. Gentlemen from the argument, who were present at the division, would not be allowed to operate to the prejudice of any who, upon a question of this kind, were perfectly justified in placing reliance upon those public men in the propriety of whose opinions and conduct they felt confident. To these observations he must take the liberty of adding, that there never was a measure in the House of Commons more amply considered, more fully discussed in detail, than this had been. It was said that the Bill had been hurried through its different stages with an impetuosity which nothing could warrant, and that the House had been driven into the consideration of it, at late and unreasonable hours of the night, He should like to know whose fault that had been? They had been anxious, on many occasions, to go into the discussion of the Bill early in the evening; but how had they been prevented? By incidental discussions upon inconsiderable subjects, raised and swollen, out to inordinate length by the hon. Gentlemen on the opposite side of the House. Thus they had been prevented from bringing this subject forward until a late hour; but, nevertheless he contended that the measure had been well considered and fully argued. His hon. and learned friend, the member for Boroughbridge, among other 751 grounds of admiration, might certainly claim for himself the merit of having kept his word well, as regarded the conduct which he promised to pursue upon this Bill. As long ago as that day fortnight, he stated his determination to interpose every objection that his ingenuity could suggest to the progress of the Bill. Doubtless he had fulfilled that pledge, for he had this night for the third time advanced the very same argument—for the third time indulged in the same series of extraneous and irrelevant raillery. Such conduct was hardly consistent with parliamentary fairness. His hon. and learned friend had said, that he was not aware that the Bill was to be pressed forward at this period. Perhaps he would allow him to state the history of its progress, and to explain why it had been delayed so long. On the 23rd of February last it was introduced into the House of Lords by his noble and learned friend the Lord Chancellor. It was not founded upon any theory or fancy of the noble and learned Lord, but upon the combined opinions of many eminent persons. At the time of its introduction, its nature and its intended operation were fully explained. It was laid upon the Table of the House of Lords—it was printed and circulated—it became matter of universal discussion, both at the Bar, and among mercantile and commercial men in the City—its progress was delayed by the dissolution of Parliament. When the new Parliament assembled, it was again brought forward. It had been, maturely considered by the parties most interested in it. But again its progress was delayed—not as the hon. Gentleman opposite had presumed, for the sake of pushing it off to the end of the Session, then to be carried in haste, and without due consideration, but in consequence of the unavoidable absence of two noble and learned Lords who were anxious to take part in the discussion upon the third reading in the other House. Thus it was prevented from being carried through its final stage in the other House as early as it otherwise would have been. But had it now been but a very short time in the House? At least a fortnight had elasped since he first brought it forward, so that there really had been plenty of time to give it all the consideration that it could possibly require. He regretted the course which the hon. member for Bridport had taken in the discuss- 752 ing of this measure, because he did not think it a very fair one. The only real objection that he now heard from his hon. and learned friend was, that he thought the Commissioners would constitute a very efficient tribunal. As to variety of appeals he said, "You may avoid uncertainty, but you will not save expense, nor prevent delay." Expense and delay were the offspring of uncertainty, and by providing against the one evil, the two others were effectually prevented. Expense and delay, then, vanished with the removal of uncertainty. No doubt a variety of appeals was troublesome, but by this Bill they were so arranged as to be made almost immediate, so that little delay could result from them. He had thought it necessary to make this short statement to the House, in explanation of the progress of the measure, and of the reason of its being introduced there at that period of the Session. He had now only to hope that they should be allowed to go bonâ fide into the merits of each clause, and to continue the discussion in reference to the provisions of the Bill alone.
§ Mr. Wranghamentirely concurred in the views which had been taken by the hon. and learned member for Borough-bridge, and should vote for the amendment which he had moved.
§ Mr. John Campbellbegged leave to say a very few words upon the question of whether there should be four Judges, or only one Judge in this new Court. He was convinced, that the great advantage of the Court would be, that it consisted of four Judges, and not of one Judge. To come from Lord Bacon to Mr. Angelo Taylor he would observe that that hon. and learned Gentleman, who, during his Parliamentary career, devoted much of his time and attention to consider of measures for a reform of the Court of Chancery, always contended that three Judges should sit in equity. Even now, upon great occasions, the Lord Chancellor borrowed assistance from the Chief Justice of the Common Law Courts. The Insolvent Debtors' Court, too, which had only been recently established, had three or four Judges. Another advantage arising from this Court being constituted of four Judges would be, that while three were sitting and deciding questions of law, the other might be sitting with a Jury, to try questions of fact. This Appeal Court should not, therefore, be confined to a single Judge, as the decision 753 of four Judges was likely to carry more authority with it than the decision of one Judge. In the case of a high and responsible officer, such as the Lord Chancellor, it might be expedient to have only one Judge; but the attempt was likely to fail in a case like the present. If there was to be a Court of Appeal immediately connected with the Bankruptcy Court, it was indispensably necessary that there should be more than one Judge. Dr. Paley made use of the expression, that in all Courts of Appeal there should be more than one Judge; and he added, that it appeared to him, that four was the most convenient number. For his part, he would much rather abolish the office of Vice-chancellor, than consent to the change now proposed in the constitution of this new Court of Bankruptcy.
§ Mr. George Bankescould not help feeling that this was a topic well worthy of consideration. He regretted that the House rejected the proposition for referring the whole matter to a Committee up-stairs, for then there would have been an opportunity afforded them of examining this and other important questions, which it was impossible to treat in a proper manner in the short time allowed by his Majesty's Government. He was surprised at the argument they had just heard from the hon. and learned member for Stafford; for, in point of fact, it would come to this—that they ought to have three Lord Chancellors, except at the present time, when a "master-spirit" held that office. The hon. and learned Gentleman, however, admitted, in a subsequent part of his speech, that it was always possible to find a person adapted for the proper discharge of the duties of Lord Chancellor, but that at, the same time, it would be impossible to find another person who ought to be intrusted to sit by himself in this Court. The honourable and learned Gentleman had quoted authorities in favour of the views he had adopted, and, among others, he had referred to the opinions of Lord Bacon, and of Mr. Michael Angelo Taylor on the subject. He had met in the course of his perambulations that day, the latter of these eminent authorities, and they had entered into conversation on the merits of this Bill. And he had the authority of Mr. Michael Angelo Taylor to declare, that he had never been consulted on this measure, although he fully expected that 754 he should have been, and that he approved of but a very small portion of it. So much for the approbation bestowed on the Bill by one of the hon. and learned Member's authorities. The hon. and learned Attorney General had not acted very fairly towards his hon. and learned friend, the member for Boroughbridge, in the course of these discussions, in refusing to enter into the discussion of topics of the highest importance in connexion with this subject. It was forgotten that the alterations involved in this measure were of the utmost consequence, and ought not heedlessly to be made. The hon. and learned Attorney General, in answer to what fell from the hon. member for Bridport, said, that this Bill would certainly attain one of the three objects which it was desirable to attain with reference to the Bankrupt-laws—namely, the removal of the uncertainty attending the present proceedings. He said, that if the uncertainty attending the administration of the law was done away with, this would do away with most of the appeals. It was to be lamented that the learned Gentleman thought it necessary to go out of his way to make an attack of this sort upon the Commissioners, for his language implied that the gentlemen who held these offices were negligent in the discharge of their duty. The noble and learned Lord, the author of this Bill, would assuredly never lend himself to attacks of this nature. He was aware that the noble and learned Lord did in another place make some allusions to the Commissioners, but he would not countenance charges that had been insinuated against them. All those charges arose from the learned Gentleman labouring under a total misapprehension of the real state of the case, and from his being quite unacquainted with its real circumstances The allusions were rather founded on ignorance than upon any correct information upon the subject. It had been said, that all the opposition to this measure had originated in one quarter, and that it had been made chiefly for the purpose of delay or for some other party purpose. He reprobated the idea as absolutely false and groundless; and he asserted, that only a sense of duty had influenced those who sat around him in opposing a Bill which proposed to reconstruct a Court of justice, when they had had no opportunity of inquiring either into the expediency of the change, or into the probably 755 workings of the new Court. As For the assertion that all the opposition originated with those opposed to the Reform Bill, he would merely mention, that the hon. member for Bridport had taken the lead in the opposition. There was no ground for the charge of unfair dealing, and he would not be deterred from doing his duty by the throwing out of such imputations. He was one of the Commissioners of this Court for several years, and did not hesitate to say, from what he had seen in that Court, that he believed all of them were extremely anxious to discharge their duties. As for the charge of delay in their decisions, he would refer to the authority of the hon. and learned Member behind him, who stated that, of the 600 bankrupt petitions brought under the consideration of the Lord Chancellor, within a certain period, only fourteen were appeals from their decisions. In the list to which he belonged for upwards of seven years, there was only one appeal to the Lord Chancellor, who confirmed their decision. The most unfair charges had been brought against the Commissioners, and imputations the most groundless had been made against them. Taking the system as it stood, it was impossible to perform the duties in a more exemplary manner than they were executed by the Commissioners. The hon. member for Malton said, that all those offices seemed filled up without reference to the peculiar qualifications of the person appointed. He did not know whether the hon. Gentleman alluded to the present Lord Chancellor or to his predecessors, Lord Lyndhurst, Lord Eldon, or Lord Erskine, in whose times all the present appointments had been made; but such a charge appeared to be utterly groundless; for in a Parliament where each of these noble and learned Lords would be liable to impeachment for such conduct, he did not think that any Lord Chancellor would act so disreputably, or perform his duties in so negligent a manner. With respect to the question more especially under the consideration of the House, it was, on all accounts, better, in a Court of Appeal, to have one Judge in preference to four; for, by this means the responsibility was increased, and persons were protected against being compelled to go into an important question of this nature, without having sufficiemt time allowed for the examination of it. He should only add, if any one supposed that he supported 756 this Amendment merely from a motive of promoting delay, that such person was completely mistaken.
§ Mr. Robert Grantobserved, that the subject had occupied his attention for several years, and many eminent men had spent much time in investigating the best form of the tribunal for the decision of cases of this nature. From all the consideration he had been able to give this Bill, he was of opinion that many of the objections which now applied to the administration of the Bankrupt-laws, could not be urged if a Court like that now contemplated were established. No one intended to cast any imputations on the character of the Commissioners and the objections that were urged did not apply to them, but to the system under which they were called upon to act. Under that system the judicial duty was absurdly and mischievously distributed amongst a great number of persons, so that, in fact, it was a surbordinate duty; whereas, being a most important duty, it should devolve upon only a few persons, and be their sole and exclusive business. It was one of the great evils of the present system, that the Judges were not persons of great responsibility, and one of the principal objects of this Bill was to remedy that evil. He would venture to say, from his own experience, that if this new system should be found to work well, every one of the Judges in this new Court would be fully and completely employed. He would not enter into the question of the propriety of having one or more Judges in the Court of Appeal, as it was a matter of great difficulty, and required much attention before a satisfactory conclusion could be arrived at; but it appeared that, at least, the present Court would be more in unison with the spirit of our institutions than such an alteration as was proposed by his hon. and learned friend. Objections had been made to an intermediate Court, but by this course all the process of working the Commissions would be settled before the case could come under the consideration of the Chancellor, who would have only to rescind or confirm the judgment of the inferior tribunal upon some question of laws and not of fact.
§ Sir Charles Wetherellwould, in the first place, allude to what had fallen from the hon. and learned member for Stafford. The hon. Member hoped that this Bill would pass in its present form. His wishes would probably be gratified; but it 757 was also probable that, in the course of next Session some measure would be submitted to Parliament for the purpose of altering and amending this sage scheme. There could be little doubt that this measure would become the law of the land, as an intimation had been given in a high place, that Parliament was to be kept sitting until it was passed. Such an order—which he understood was issued from the Woolsack no later than yesterday—had not been promulgated from the days of Wolsey to the present period of political freedom. He hoped that similar orders would not be issued on other subjects, and that the master-mind would at least confine its attention to measures of this nature. In a newspaper, one of the organs of the Government—the Lord Chancellor was made to say, that the Bankrupt Bill shall pass. The Commons of England were to be mere automata, not to escape censure even for discussing this measure in transitu. The House of Commons had received orders from the Woolsack to pass the Bill without delay; he was certainly not inclined to obey such an order, and should, therefore, discuss it as long as he had anything to say against it. He was opposed, as an individual, to such a scheme; and a grosser judicial job or a grosser piece of judicial patronage, had not been effected than this Bill since the time of Cardinal and Chancellor Wolsey. Since the time of that clerical Lord Chancellor, they had not had the same person holding the Great Seal, and also the Archbishopric of York, the bishopric of Durham, and the deanery of St. Paul's in commendam, but there was an instance of a lay successor of that eminent personage manufacturing a Court of Justice with salaries of 26,000l. a-year, without any ostensible reason. The resemblance between the eminent ecclesiastic and the eminent lay Lord, must instantly strike the mind of any man. The prudence and economy of the Government when some 40l. or 50l. was saved by clipping and pruning was loudly boasted of, but when new establishments were to be formed, and when thousands were to be expended, so that Ministers might have new patronage, not a word was said of economy. In all our Equity Courts except the Court of Exchequer, there was only one Judge; arid he should, therefore, like to see the Puisne Judges of this Court of Review Struck out. Nine months of the year 758 they must be unoccupied, unless, indeed, their time should be filled up by being made Commissioners under a bill with which the Parliament was threatened from the Woolsack—for the Cardinal threatened the Peers as well as the Commons. Notwithstanding the dreadful condition in which he should put himself by presuming to oppose this sort of usurpation, and these kinds of threats, he should certainly divide the Committee on his Amendment, being resolved to have only one Judge, in the new Court, if he could effect the object.
§ The Committee divided on the Amendment:—Ayesl9; Noes 71; Majority 52.
§ Clause agreed too, and House resumed Committee to sit again the next day.