§ The Attorney General moved the Order of the Day for the House again resolving itself into a Committee on this Bill.
§ Mr. Freshfieldwould take the opportunity of making a suggestion to the noble Lord, which might have the effect of removing any further objections to the progress of the Bill at present. He could assure the noble Lord that he made no objection to the measure from any party motives: on the contrary, he concurred in the principle of the measure, and thought it would introduce a much better system than that at present existing, but there were parts of the detail to which he did object: what, however, he would suggest to the noble Lord was, that he should fix the 782 time for carrying the Bill into operation for a late period; he would say June next; that in the interim they might have an opportunity of considering its provisions, and, if necessary, of introducing a measure for further improving them.
§ Lord Althorpobserved, in reply to the hon. Member, that it seemed extremely desirable, to those better informed on the subject than he was, that the Bill should come into operation in the beginning of the year. If it did not come into operation in January, 1832, it would postpone, most probably, the Bill till 1833, although all admitted the defectiveness of the present system, and that those defects called loudly and promptly for remedy. All admitted, too, that the Bill would remedy many of the evils of the system. It was probable, however, that there might be improvements suggested, and amendments hereafter made; yet the passing of the Bill now, to take effect in January, 1832, would be no greater impediment to those amendments than passing it with a clause not to take effect until June, l832. It would, he was informed, too, be highly inconvenient that the Bill should come into operation in the middle of the year. As all were of opinion, that it was highly desirable the improvements introduced by the Bill should take place, he should press the clause for giving the Bill effect in the commencement of 1832.
§ Sir Charles Wetherellsaid, the proposition made by his hon. friend was a most reasonable one, and he was surprised at the disposition of Ministers to press a very important measure through its stages when the patronage of the Lord Chancellor the nomination of all the registrars and assignees, was to take place immediately, while the Bill was not to come into operation until January next. These new offices embraced situations with salaries amounting to 26,000l a-year, and those appointed to them would derive a right to rating for superannuation and salary, from the moment of passing the Bill. He understood that the noble and learned Lord had this very day, from the Woolsack, repudiated the charge of being a second Cardinal Wolsey; he repeated, however, with such a Bill as this in his hand, he had every claim to the title.
The Attorney Generalwould not, in this stage, anticipate the objections which ought to be made regularly in the Committee, further than by assuring the House, 783 that the great recommendation of the Bill, next to the speedy administration of justice in this branch of the law, was the great saving which it would effect to the public. When they came, in Committee, to the clause as to superannuation and salaries of officers, he should distinctly show that the noble Lord at the head of the Chancery Court had not aimed at, nor would he obtain, the extent of patronage it was alleged he required or sought under the Bill, as, in point of fact, the salaries of the officers alluded to under the provisions of the Bill would not commence until January next.
Mr. Humesaid, he most strongly objected to the superannuation clause. It was a departure from the pledge of Ministers, so distinctly given, that they would retrench all unnecessary expense. Here were officers—the Secretary, for example, with not less than 1,200l. a-year to be appointed—why should they not insure their lives, as in other departments of the public service, for the benefit of their families, if families they had? It looked too much like a job. Divided as persons in that House were into parties in politics, and having, of course, adherents and friends and relatives, and even predilections for those with whom the leaders of parties there generally acted, it could not but be looked on with suspicion, that these appointments in favour of the friends of the present Ministry, should be taken out of the general rule laid down as to superannuation of public officers. If, next year, they should pass a bill to limit and restrain the superannuation system, it would seem more than ordinarily suspicious that the Ministry should have availed themselves of this short interval, before the passing of such a bill of retrenchment, to put their nominees out of the reach of the general measure already anticipated. In the United States there were no retiring allowances, and the same system ought to be adopted here. The public ought not to be saddled with such a burthen. He wholly disapproved of the system, as well as the plan for pensioning off the present Commissioners. They had been amply remunerated for their services, and they had a profession from which they ought to derive an income. They had also been paid fees for their attendance, and they might as well be called on to give a retiring allowance to a physician when his patient died, as 784 superannuation allowances to these Commissioners. Persons who served the public should be fairly and liberally paid, but their salaries ought to continue no longer than they fulfilled the duties of their office. At the present moment the country had to pay seven millions annually for retired military and naval pensions, and more than a million a-year to persons who had held civil situations. These sums had increased a million and a half since the conclusion of the war. The Committee which had sat for the purpose of looking into the amounts of salaries had recommended, that for the future no civil officer should be entitled to a retired allowance, and the absurdity of the system to be established by this Bill would be manifest when it was considered that a half-pay lieutenant-colonel or captain, after twenty years hard service, received perhaps about 150l. per annum, while those Commissioners, whose services had been amply remunerated were to be entitled, after one year's attendance in this Court, to a retiring pension of 200l. a-year.
§ Lord Althorpsaid, that the provisions referred to by the hon. member for Middlesex were not essential to the principle of the Bill, and the proper time to discuss them was in the Committee. It was obvious that judicial officers must stand upon a different footing with regard to superannuation allowances from other civil officers. If the Judges were not allowed a retiring pension, they would remain in office beyond the age at which they ought to retire. He should be sorry that anything in the Bill should be taken as a precedent affecting the general question of superannuation. With respect to several of the offices connected with the Court, he was ready to admit the same rule ought to be applied to them as to other offices, but in general he agreed with the hon. Member, that the present system of superannuation was a great grievance.
§ Mr. Huntsaid, this Bill did not look as if the noble Lord were following out his own principles. He had understood that it was the boast of the present Ministers, that they proposed to carry on the Government without the aid of patronage.
§ Lord Althorpobserved, that he had only said the Government would do as much as possible without patronage, for he was satisfied that it was a greater evil than good. He trusted the House did not 785 believe they were making a change in a Court of Justice for the purpose of acquiring patronage. If any persons did think so, he would recommend them to look at the provisions of the Bill, and they would find patronage would be diminished by it. Certainly, however, he was of opinion that in all cases where appointments were necessary they ought to be filled up by Government.
§ Mr. Huntsaid, the noble Lord had expressed nearly the same opinion as he had understood him to entertain, viz. that the Government was not to be carried on by means of patronage; but this Bill, notwithstanding, would give a pretty tolerable share to one of the members of the Cabinet. He must complain of the haste with which the Bill had been pushed forward, for which he could understand no other reason than that there were fifty new places to be at the disposal of the Lord Chancellor. He regretted, however, to hear the noble and learned Lord compared to Cardinal Wolsey. He did not believe him to be so rapacious of patronage and personal emolument as that person undoubtedly was, if history told the truth.
§ Mr. Daniel Whittle Harveysaid, it appeared from the objections made to the present measure, and to the change of system in the Bankruptcy Court, as if this were the first time when anything had been said against the mode of administering that branch of the law. The nature of the opposition that had been manifested must produce an effect upon the public mind. One of the chief arguments that had been urged against this Bill, and the only objection that the hon. member for Preston stated against it, was, that it would give great patronage to the present, Lord Chancellor. But if the measure was good and just in itself, the argument respecting patronage ought not to be regarded. To no person could the disposal of the appointments created by this Bill with more propriety be intrusted than to the Lord Chancellor for the time being. Indeed, the stoutest opponent of the Bill would not wish the patronage of judicial offices to be placed in other hands than in those of the head of the law. If an improper use was made of the patronage intrusted to that high office, the holder was amenable to the laws of the country, and the jealousy with which this House and the public always regarded any matter connected with the administration 786 of justice, would at once prevent such an abuse of authority as hon. Gentlemen opposite seemed to anticipate. If anything of the sort were to happen, it would immediately be brought under the attention of the Legislature. It had been said, that this Bill was hurried through the House in an improper manner, and without due discussion. But, surely the House must recollect how often this subject had been brought under its attention, and how many complaints had been made from all the great commercial places in the kingdom, of the manner in which the Bankrupt-law had been administered. He would recommend the hon. member for Preston, who did not appear to be very well acquainted with the defects of the present system, to spend a little time in reading some of the petitions that had been presented to this House on the subject, and also some of the reports of the Committees that had been appointed to inquire into the matter. In 1818, a Committee was appointed to inquire into the subject, and that Committee, after receiving the evidence of the most eminent lawyers, experienced solicitors, extensive merchants, and respectable traders, who all concurred in condemning the present system, presented a report to the House, and this Bill was the very measure, in substance and spirit, which that Committee recommended to be adopted. Upwards of fifty witnesses were examined upon that occasion, and no person who would take the trouble to refer to these names would say that all these respectable persons were actuated by party feelings. Three of the most eminent practitioners in that Court, namely, Mr. Cullen, Mr. Montagu, and the present Lord Henley, all joined in condemning its constitution, and they agreed that it was impossible to speak in too strong terms of the mode in which business was transacted in that Court. The present Bill was, in letter and in spirit, in perfect accordance with the recommendation of the Committee, and more especially the mode of forming the Court of Review, which had been so much condemned by hon. Members opposite. He would not take up the time of the House at present, nor do anything calculated to impede their getting into Committee, but if an opportunity had been afforded him at an earlier period, and the hon. and learned member for Borough-bridge had spared him one of the many 787 hours during which he had occupied the time of the House, he would have endeavoured to shew the absolute necessity of such a measure as the present, as also the probability that it would work extremely well, and that, at all events, the experiment should have a fair trial.
§ Mr. Pollocksaid, that the Bill before the House would, in his opinion, provide a good and efficient Court, in the place of the present defective and most inefficient system—substitute despatch for delay, and economy for extravagance. That was not a hasty and ill-advised opinion, for he had given the subject all the consideration in his power. He had had repeated opportunities of forming a judgment on this subject during the course of his experience—and he might, perhaps, be allowed to add, that he believed, with the exception of Mr. Cullen, and his hon. and learned friend op-opposite (Mr. Serjeant Wilde) he had had more experience of this Court than any member of the profession. From a very early period of his career he was accustomed to attend the Court of the Commissioners of Bankrupts day after day, and year after year, and he agreed in the conclusion arrived at by his hon. and learned friend, that it was the very worst tribunal in existence for the administration of justice. But in making that observation he felt bound to state, that more honourable and upright men did not exist than many of the present Commissioners. He had the happiness of living on terms of intimacy with many of those Gentlemen: the defects that he complained of arose from the very constitution of this Court. Some of the Commissioners never came near it, and he knew one List before which he had repeatedly been engaged, in which one of the Commissioners did not attend for fourteen years. On investigation it would be found, that never more than one half of the Commissioners attended. It often happened that, after the proceedings had commenced, one of the Commissioners would want to go away, either out of town for pleasure, or on business to some other Court in which he was engaged—in short, the system was so defective, that no time ought to be lost in improving it. It was said, "Why not wait until next year?" but he contended, that the Legislature would be culpable in procrastinating the removal of acknowledged defects in a most important part of the administration of the law. With reference to the want of economy charged 788 against the present measure, he would say one word; and he assured the House that he would not take up much time in the few observations which he felt desirous of making. He did not think that any charge need be made on the public for the maintenance of the new Court, for there were different sources of revenue already existing which might be applied to that purpose. First of all there was the undivided surplus of estates which had come under the cognizance of the Bankrupt Court; and secondly, there were the unclaimed dividends, which amounted to an exceedingly large sum. He knew that, in the course of fifteen or twenty years, unclaimed dividends to no less an amount than 2,000,000l. had been collected, and he was convinced that many millions remained yet uncollected. These revenues would be found more than sufficient to pay all the expenses of the new Court. Several hon. Members who had addressed the House on this subject had thought proper to disclaim being influenced by party considerations. He considered that any such disclaimer was entirely uncalled for. This was no party question; at least, he knew that the noble and learned Lord who presided in the Court of Chancery did not consider it so; for he had, during the preparation of the measure, consulted every person, no matter what his politics might be, who could communicate valuable information, or make useful suggestions. A great deal had been said with respect to the patronage which would be created by this Bill; but those hon. Members who objected to the Bill on the score of its increasing the patronage of the Lord Chancellor, should consider, that when a new Court was established it was necessary to appoint. Judges to that Court; and therefore patronage must be vested somewhere. Now, who was the most fit person to have the disposal of those appointments? He had no hesitation in saying, that looking to the character of the noble individual who now held the Great Seal, there was no person to whom that patronage could be more safely intrusted than to that noble and learned Lord; and the appointments which, it was whispered, were already intended, reflected the greatest credit on his judgment. Knowing, from experience, that the present system was most defective, and being of opinion that the proposed change would have a most advantageous operation, he did hope that no unnecessary 789 delay would be thrown in the way of the passing of the Bill. He thought there could be no doubt that in the details of the Bill economy had been consulted; and the creditors would be greatly benefitted by its being carried into effect.
§ Mr. John Woodsaid, that an hon. and learned Member (Sir Charles Wetherell) had designated this measure as a gross job, which stunk in the nostrils. He wished to know whether the hon. and learned Member likewise considered the conduct of Lords Thurlow and Eldon stunk in the nostrils? Lord Thurlow had given to his nephew two offices worth 12,000l. a year, the reversion of which offices had been secured by Lord Eldon for his son. This was part of the patronage which the present Lord Chancellor meant to cut off, and yet the time of the House had been wasted for five or six nights in discussing the expense of the new system, which would not exceed 26,000l.
§ Sir John Newportconsidered, that the Bill would remedy the evils of the present system in the most economical and efficient manner. There was one clause in the Bill, relating to official assignees, upon which he wished to address a few words to the House, but he thought the most proper time for so doing would be in Committee. He considered it unfair towards the Speaker, who was oppressed with business, to keep him in the Chair to listen to debates which ought regularly to be entered upon in Committee. With respect to official assignees, he would at present only say, that he knew, from his own experience as a commercial man, that the great grievance of the present system was, the want of official assignees.
Mr. Alderman Waithmansaid, he had considerable experience in subjects of this nature, and when the matter had been formerly before the House he had suggested alterations in some degree similar to what were contained in that Bill, He knew that the present system was very inefficient, and he considered that the proposed Bill would effect a most beneficial change. He did not mean to say, that, it would not be found, after some time, to require alteration, but he thought that it was, upon the whole, a most excellent measure.
§ Mr. Praedsaid, that if any discussions had been introduced merely for the purpose of protracting the passing of the Bill, he certainly had not been a party to them. He was very sorry that the proposition which 790 had been made by an hon. and learned Gentleman near him, which would have had the effect of shortening the time spent in debate, had not been agreed to by the noble Lord. That proposition was, to let the Bill be passed, but not to allow it to come into operation until June next, and in the mean time an opportunity would be afforded of making inquiries, and any alterations that might be thought desirable might be made. The Bill had not been brought under the attention of the House of Commons at a time when proper consideration could be given to it, and when an investigation of the subject, in all its details, could take place. The hon. member for Colchester observed, that this was not a new measure, for it was founded on the recommendations contained in the various Reports of the Committee up-stairs; but he would beg him to recollect, that a considerable portion of the Members of the present House were not Members of the Parliament in which those Reports were made; but, the House was almost entirely constituted of a different set of individuals. He knew that a Court of Appeal, formed of the Commissioners, had repeatedly been recommended, but this was very different from having an entirely new constituted Court. His hon. and learned friend said, that the objection to the Bill coming into operation in January, would apply to any time, and that it might as well be postponed to an indefinite period as to be deferred to June. He was called, by the courtesy of the House, learned, though his professional experience had been extremely small, and yet the noble Lord, certainly with not more professional experience, said that, he could not consent to postpone the operation of this Bill beyond January next, as it would lead to great inconvenience. He (Mr. Praed) had not heard any positive inconvenience pointed out, which could result from postponing the operation of the. Bill from January to June. He would not now go into the question of the official assignees, upon which point he entertained strong objections, but should defer what he had to say on the subject for the Committee. With respect to the imputations that had been cast upon the Lord Chancellor, he must disclaim having any participation in them. He was old enough to know that the imputation of being actuated by unworthy motives would be cast upon those who took an active part in political matters; 791 and he certainly was not disposed to impute either the motives he had heard assigned to Lord Brougham, or to interpret the conduct of the noble and learned Lord in the way it had been, as a difference in political sentiments was not, in his opinion, a sufficient excuse to attack the character of a man. Lord Brougham was a man of great talent; and supposing that he were not actuated by a desire to do good and serve his country, yet his high ambition would preserve him from the influence of such considerations as he was sorry to hear imputed to that noble Lord. He certainly did not agree in the political opinions of the noble and learned Lord in question, for he had had a chief part in framing a measure which, in his opinion, was an organ which would lead to other steps ending in the destruction of the Constitution of the country. He did not think that any man, under the circumstances in which Lord Brougham was placed, would be actuated by such motives, and still less did he entertain such an opinion of that noble and learned Lord.
§ The House went into Committee—Mr. Bernal in the Chair.
§ On the clause being read, enacting, "that the said Judges, or any three of them, shall and may form a Court of Review, &c,"
§ Sir Charles Wetherell rose to defend himself from the attack which had been made on him by the hon. and learned member for Preston (Mr. John Wood). The hon. Member had thought proper to criticise his (Sir Charles Wetherell's) vocabulary, and had found particular fault with him because he had said, that the patronage granted by this Bill "stunk in his nostrils." Now when he used that phrase he had distinctly stated, that he would not have used so strong an expression, if Lord Brougham, when a Member of that House, had not given utterance to it. He still objected to the extent of patronage provided by this Bill. Not with respect to any pecuniary advantage that might accrue from it—nothing he had said had the most distant approximation to such a dirty, paltry, miserable idea; but because that patronage might be made the source of political influence. A more unfounded charge than that levelled at him by the hon. member for Preston never was advanced against any one. He wondered how such an idea could enter into, he would not say, the muddy head of any 792 man, but he would say, that the head of that man must be very thick, and his understanding very groggy, who could suppose that when he (Sir Charles Wetherell) alluded to political patronage, he was insinuating, that in the framing of this Bill any individual was actuated by the dirty motive of putting emolument into his own pocket. He thus thought that he had removed himself out of the unjust and un-candid atmosphere of the hon. member for Preston—an atmosphere which he did not wish to breathe. He had thus fairly met the hon. member for Preston, and hurled back his dirty insinuations. As to the retiring pension to the Chief Justice, he did not object to it; but would the House give retiring pensions to the Puisne Judges? Assuming, then, that a pension should be given to the Chief Justice, though not to the subordinate Judges, nor to the officers of the Court, he would beg leave to notice what had fallen from the hon. member for Colchester, who told the House that he was a fortnight waiting for an opportunity to deliver his sentiments upon this Bill, and now that it had been given, it did not enable the House to arrive at any very distinct or satisfactory result; for he had not touched any one of the considerations which were of importance in the decision of a question of this nature. The matter in dispute between the Members on this side of the House and the hon. Gentlemen opposite was, not the existence of the evils complained of, but the best mode of remedying those evils. The chief difference between them was, respecting the intermediate Court, or rather the construction of that Court; and upon that subject the worthy Alderman, who had already taken a part in these discussions, had said, that there were many defects which ought to be remedied; and so there were in this Act many defects which must be remedied before it could be rendered useful to the community, or in any respect promotive of the ends of justice. In the whole course of these discussions there was not one hon. Member who had not thought proper to make him a subject of animadversion—some had found fault with his arguments, others with his language—one objected to his vocabulary as vulgar, and others complained of his statements as exaggerated; but he consoled himself by the reflection, that he endured this in common with all those who had ever maintained the opinions of the minority. 793 It was not long since, owing to an accident which left him in that place almost alone, he had as many as six or seven speakers to reply to, supported as those speakers were by a host of cheerers. He was somewhat in the situation of his poor friend Lord Londonderry, who was pelted by half-a-dozen at a time. Being now in Committee, he was in a situation to meet his adversaries—adversaries upon whom he never turned his back, if they were ever so formidable, and the Ministerial cheers by which they were supported ever so loud. The importance, he and his party attached to the creation of patronage which would take place under this Bill, had been made a subject of ridicule, in the House and elsewhere; but let it be recollected, that their objection to that patronage did not rest upon any probable use to be made of it by the present Lord Chancellor, and, therefore, the answer that had been given to this argument, met no one of their objections. The answer which their adversaries gave was, that Lord Brougham had said, "With respect, to the patronage, do not let that be any obstacle; I am perfectly willing to give it up." But there were far other grounds upon which they opposed this Bill, and far other exceptions which they took to it, though the organs of Ministerial opinion were pleased to say that they urged these objections, not from conviction, or a sense of public duty, but from a desire to gain time till circumstances should prove more favourable to their views. They were, in fact, accused by the Press of speaking against time. Such was the miserable organ to which their opponents were compelled to have recourse—an organ that would, whenever permitted, issue ukases as violent and as tyrannical as those which were obeyed upon the banks of the Volga or the Don; and for disregard of these ukases, they (the Opposition) were proscribed—they were told by this organ that they were guilty of a waste of time. The more this Bill was examined, and the more frequent and repeated the attempts were to expose its faults and imperfections, the more evident must it be to the independent Members of that House, that the present was not a factious opposition—notwithstanding his hon. and learned friend, the Attorney-General, seemed to say as much—and although he did so in the quaint and polite manner peculiar to him, still the accusation amounted to something of that sort. 794 Notwithstanding all this, they proceeded—notwithstanding all this, they gained ground every day. The hon. member for Buckinghamshire admitted that a good many alterations ought to be made, and the hon. member for London made a similar admission. If the principle of giving the retiring Judge a pension were confined to the Chief Justice, he should not object to it, but even in this case a matter so purely experimental ought not to be allowed to accumulate upon the public so enormous an expense. He had an amendment to propose to that clause under which the Court of Review was to be appointed; but he should, of course, postpone submitting that amendment to the consideration of the Committee, until they had arrived at that particular clause.
§ Clause agreed to.
§ The next clause enacted, "That all such matters to be heard and determined in the said Court of Review shall be brought on by way of petition, motion, or special case, according to the rules and regulations to be established, as hereinafter provided, subject to an appeal to the Lord Chancellor on matters of law and equity, or on the refusal or admission of evidence only, &c."
§ Sir Charles Wetherellsaid, that this clause spoke of rules and regulations to be "hereafter established," by which matters to be heard and determined in this new Court should be brought on. He should be glad to know something of these rules and regulations. Here was a Bill going through the House in October, 1831, which was to come into effect in January, 1832, and yet the rules and regulations by which its proceeding were to be governed in certain cases were to be "hereafter established." Now, if he were to divide the Committee on this point, he should, no doubt, be assailed by the gipseyjargon of the day, and told that he was taking a factious part. The present Bill, he must say, was the most crude heap of non-existent legislation that he had ever seen.
§ Sir John Newportcontended, that the Bill did contain that provision which the hon. and learned Gentleman complained of as having been omitted. If individuals would look carefully to the clauses of the Bill, they would not fall into such errors, and much time would, in consequence, be saved. In page 4, there was a clause which completely met the hon. and learned 795 Gentleman's objection. It was there enacted, "That the Judges of the said Court of Review, with the consent of the Lord Chancellor, shall have power from time to time to make general rules and orders for regulating the practice of the said Court of Bankruptcy, the sitting of the Judges and Commissioners thereof, and the conduct of the practitioners therein." What could be more plain than this? The enactment proceeded on the principle acted upon in every Court in this country, each of which had a right to frame rules and regulations for its government.
§ Sir Charles Wetherellsaid, his objection was, that the present measure went to overturn an old system of practice, without giving them any insight as to what the new practice was to be.
The Solicitor Generalsaid, that the object of the clause was, to allow parties to proceed by motion and by special case, as well as by petition. He was surprised at the objection of his hon. and learned friend, because no one knew better than his hon. and learned friend the inconveniences which resulted from the present jurisdiction.
Mr. Warburtonhad already stated, that if he were compelled to choose between the present system and this Bill, he should prefer the Bill, defective as it was. He could not, however, help perceiving, that there was flowing a tide of improvement, which would carry away all the defects of the existing system, and he must therefore object to so defective a measure as the present. He could not understand the necessity for this series of appeals—this cascade of appeals—which came so rapidly upon each other, that if the frail bark should escape one or two, and ride for a time in smooth water, yet still it must, perish before it cleared the last. Why was not one man of pre-eminent abilities, and with a good salary, placed at the head of the Court, and the ultimate appeal made to him? The hon. Member then read several extracts from evidence of Sir Samuel Romilly, Mr Horne (the present Solicitor General), and Mr. Cooke; all of which, the hon. Member said, justified him in contending, that there would be no necessity for an appeal to the Chancellor, if a Judge of the first abilities were selected to preside over the Court. He valued but as dust the uniformity of decisions which had been so much lauded. Let them reduce their laws to writing; let them bring 796 their laws together into a code, and all the arguments respecting uniformity of decisions would fall to the ground.
The Solicitor Generalsaid, that he had never given any general opinion upon bankruptcy. He was asked to go before the Chancery Commissioners, and he went. The Commissioners put questions in a set form of words, and he was obliged to frame his answers to that form. Surely those answers could not be taken as his opinion upon bankruptcy. If the Commissioners had asked him for his opinion respecting the bankruptcy jurisdiction, he should have stated what he thought the best plan of ameliorating it, and not have contented himself with an opinion, with reasons, or with the exposure of faults, without the suggestion of what he considered remedies for those faults.
§ Mr. Godsonsaid, it was evident that the hon. member for Bridport (Mr. Warburton) did not understand the appellate jurisdiction created by the Bill. The general objections to appeals did not apply to the appeal given by this Bill, for it would be accompanied neither by the delays nor the expenses which usually attended appeals. The facts would be settled by the Court below, and the appeal would only be made on a matter of law. The Chancellor, therefore, would have, in fact, merely to perform the part of a Court of Error.
§ Mr. Serjeant Wildewas convinced, that if the hon. Member (Mr. Warburton) opposite would give his attention to the nature of this appellate jurisdiction, the hon. Member would see that his objections to it had no foundation whatsoever. There was no other way of guarding against the mischiefs of conflicting decisions than to promote such an appeal as would ensure uniformity of decision. The hon. Member (Mr. Warburton) had said, that he valued uniformity of decision but as dust, for he wanted a code. This was a very extraordinary position. Take an Act of Parliament—there was the hon. Member's code for him at once. But how did the hon. Member become the better off by means of a code, since Courts would act upon the construction of the Act of Parliament—upon the construction of the code—and upon nothing else? Now the advantage of this appellate jurisdiction was this—it would lessen the, expense and the delay of the present system. At present, ninety-nine out of every hundred appeals, were 797 appeals as to the facts, and not as to law, and the enormous delay and expense of such appeals were notorious. Appeals as to facts were positively ruinous, but as to law they were not attended with much expense, and were decided speedily. The authorities which the hon. Member (Mr. Warburton) had quoted related to appeals as to facts. Sir Samuel Romilly was neither so unlearned nor so inexperienced as to be unaware of the distinction between these two classes of appeals; and it was to appeals as to facts, and to those appeals only, that Sir Samuel Romilly and the other authorities cited, referred. But the appeal given by this Bill was an appeal upon the law, not upon the facts of the case. No disputed fact was ever placed in a special case; special cases were usually contained in three brief-sheets: they involved matters of law only, and in the Courts in which he practised, not more than one counsel was usually heard on each side. Such would be the nature of the appeal to the Lord Chancellor under this Bill: whereas the appeals under the existing system, stated all the facts and the disputes upon them, and not unfrequently occupied upwards of 1,000 brief-sheets. He would venture to say, that the appeal given by this Bill was given in a more economical, a more speedy, and a more efficient manner than the ingenuity of man had ever before devised. Among all the objections which had been urged against this Bill, that which had surprised him most was, the objection of his hon. and learned friend (Sir Charles Wetherell), that the Judges to be appointed under it were to be appointed forthwith. Now if a Court were appointed for new purposes, there would be no great inconvenience, perhaps, in naming the Judges the very day before they were to enter upon the discharge of their duties, because business would come but slowly to such a Court, and the Judges would have time to make their rules as occasions for those rules presented themselves. The Bankruptcy Court, however, would take up every Commission in existence, and would be not only full, but more than full of business by the 11th of January, the day from which the Act was to take effect. When, he would ask, if the Judges were not to be appointed forthwith, were, the rules for the Court to be made? If his hon. and learned friend's suggestion were to be attended to, the Judges would be 798 introduced to each other for the first time upon taking their seats in the Court, when they would have to enter upon the immediate discharge of their duties, without laving had an opportunity of consulting with each other and settling the rules by which the proceedings of that Court were to be regulated.
§ Mr. Burgecould only account for the speech of his hon. and learned friend, on the supposition that he presumed hon. Members on that side of the House were blind to the evils of the present system of Bankrupt Laws, and therefore conceived no remedy to be necessary. If his hon. friend thought so, he misconceived their opinions. They felt and admitted, that there were evils in the present system, but they did not consider the present Bill the proper remedy for those evils. He decidedly thought, that a part of the expensive system of the new Court was not required. With respect to the additional patronage that would accrue to the Lord Chancellor, he saw nothing whatever objectionable in it, provided it could be shown, that the Courts and officers in which it would originate were essential or necessary to the public interests. In answer to what his learned friend had stated as to the beneficial result of viva race examinations, he begged to refer to the Bill itself; the latter part of which left open the power of calling for affidavits as much as for oral testimony. In addition to these and other objections, he also thought, that the Judges' salaries were insufficient to lead eminent men to give up their practice and the prospect of advancement to other judicial appointments.
Mr. Pagetsaid, that while he admired the able speech of the hon. and learned Member (Mr. Serjeant Wilde) he must, at the same time, say, that the terror felt by commercial men at the ruinous delay in the proceeding in bankruptcy would not be lessened by the present measure. Such would be the result of the additional appeals. For his part he could see no utility in appealing to the Chancellor, and much less to the House of Lords. As the source of fear to commercial men, next to the delay and expense of the law, came its uncertainty, and this would be augmented by the number of Judges. If a single Judge had been appointed in the new Court as the ultimate judge of Appeal, he should have deemed the measure a great benefit to the country. One Judge, 799 in his opinion, would be preferable to four—would have given more uniformity to the law, and better satisfied suitors. After thirty years' experience in business he had found the expenses incidental to the present system so enormous, that he believed even this Bill, bad as it was, would be a great relief to the community. In these days, however, of improvement, he trusted that they would see a little more of the philosophy of law introduced into practical legislation.
§ Mr. Freshfieldsaid, that three appeals would be unnecessary on the grounds upon which the hon. and learned Serjeant founded his argument, for he was inaccurate in his data. This was also the case with the hon. and learned member for St. Alban's (Mr. Godson), in saying that there were two appeals in every case, and that, therefore, they must be continued. He had stated, that an appeal would be first to the Exchequer, and then to the House of Lords. In this instance, the hon. and learned Member was in error; he, therefore wished the House not to seek for imaginary reasons to support the appeals on this Bill.
§ Mr. Warburton moved pro forma, as he stated it was not his intention to divide the Committee, to leave out all the words of the clause after the word "provided," in the fourth line of the clause.
§ Sir Charles Wetherellexpressed his satisfaction, that the factious part of the House had received such a useful reinforcement in the two hon. members for Bridport and Leicestershire. He contended, that the prevailing evils in the Bankruptcy Courts would not be removed by the Bill. It was an experimental Bill: there had been no inquiry, no Committee, as there ought to have been. The Bill laid down no rules, established no practice, and would be inefficacious. He agreed with the two hon. Members alluded to, in thinking that there ought to be a superior Judge of Appeal; but he thought that Judge should be the Lord Chancellor or the Vice-chancellor, while those hon. Members thought he should be a separate Judge.
§ Amendment negatived without a division—the Clause agreed to.
§ On the question, that the clause relating to costs in the Court of Review stand part of the Bill,
Mr. Warburtonsaid, he saw no provision in the Bill for the due investigation 800 of long and complicated accounts; some regulation and provision for the due examination and settlement of such ought, undoubtedly, to be made.
The Solicitor Generalobserved, in reply to the hon. Gentleman, that it was a part of the duty of the official assignees to take such, matters under their superintendence, and if he would refer to the Bill, he would find the case he put was specially provided for.
Mr. Warburtonsaid, it was perfectly notorious, that by the existing system one set of creditors endeavoured to prevent another from proving their debts, for the purpose of excluding them from voting for assignees. This frequently gave rise to great disputes and very considerable inconvenience and expense among the creditors with respect to the appointment of assignees, and this made it positively necessary that a special provision should be made for the examination of long complicated, and perhaps disputed accounts.
§ Sir Charles Wetherellquite agreed with the principle laid down by the hon. Gentleman, that accounts should be investigated without reference to strict and technical rules. The great fault of the Bill was, that it proposed to remove existing abuses, but provided no specific remedy for them. He apprehended the mode of proceeding with long and complicated accounts would be, that the single Commissioner would refer them to the three Commissioners, and they would refer them to the Assignees or somebody else for revision and settlement, and this would be the result of this economical and, as it was called, save-all Bill, even in the first stage of its progress.
The Attorney Generalsaid, there would be a special arbitrator appointed to decide upon all disputed accounts, and, therefore, he thought such an officer, who, he had no doubt, would do his duty, would fully meet the objection taken by the hon. member for Bridport. Such accounts would be settled by the strict and technical rule of evidence.
§ Mr. John Campbellthought the Bill contained a sufficient provision for the due investigation of the most complicated accounts. The Commissioners would wholly neglect their duty if, they held that matters of account were to be decided by a Jury. The only questions really for a Jury to decide in bankruptcy cases would be simple matters of fact, such as whether an act of bankruptcy had been committed, 801 whether the party was a trader and came within its provisions, and questions in general of that sort. The arbitrator would investigate the accounts, and they would be decided upon oath—according to the rules of plain common sense. The Commissioner would, in the first instance, examine them; if they were complicated he would call in assistance, but all issues to be tried by a Jury would only relate to questions of fact.
Mr. Warburtonwould take the case as the hon. and learned Gentleman put it, for there could be no doubt, if the Commissioners were authorized to call in assistance, they would do so in almost every case. Indeed, in times of mercantile distress it was impossible they could have time to investigate accounts without further assistance. In the year 1826 there were 10,291 public and private meetings; this would average five meetings a day to each of the six Commissioners, and he thought this duty alone would fully employ them.
§ Clause to stand part of the Bill.
§ On the question that the clause relating to Subdivision Courts stand part of the Bill,
§ Sir Charles Wetherellsaid, the effect of this clause would be, that a party would have to run the gauntlet, through all the Commissioners; he might appeal from one to another until he had run through the whole list.
§ Mr. John Campbellthought nothing could be more simple than this provision. One Commissioner would decide upon ordinary questions, but if there was any difficulty he had the power to cull in assistance. He was surprised, that the hon. and learned Gentleman should disapprove of this clause, when he knew that the great disadvantage of the present system was that three Commissioners must decide, by which much labour and money was thrown away. Besides, the practice was common in the superior Courts to have only one Judge. He frequently made motions before one, when if any question of importance arose, it was postponed by the Judge who presided until his brethren were present. This was the practice in the Court of King's Bench, and it would be followed by the Commissioners appointed under this Bill.
Mr. Warburtonwas most ready to allow, that ordinary questions being decided by one Commissioner was an improvement but why should he appeal to two others if 802 the question was important? He could take time for deliberation instead of sheltering his ignorance under a plea of appealing to his fellows. He was afraid the practical effect of this arrangement would be to bring people into the Commission who were unfit for the office.
§ Sir Charles Wetherellsaid, the case his hon. friend had put, relating to the practice in the Court of King's Bench, had not, the slightest analogy to what would happen under this Bill. Upon such a motion as that made by his learned friend, there was no examination of witnesses, and no inquiry whatever. That case simply was, his hon. friend moved, perhaps, "That judgment be entered for the defendant," to which the Judge answered, "You had better move it when the Court is more full." How could such a case, with any propriety, be said to resemble the case of the Commissioner for Bankrupts, who must go through the whole of the case before him, whether he decided it or not, and who must put in motion the whole functions of a Judge before he could determine whether he would decide the question himself or refer it to others to decide. This part of the Bill was applicable, however, to something else, he meant a certain Cabinet measure, for which the hon. Gentlemen opposite said "We are all responsible alike." The Commissioners, who would form a sort of demi-Cabinet among themselves, would also follow this example, and say, "We will make this a Cabinet measure, and then we shall be all of us equally responsible." By these means this double hearing would be productive of no other results than as a sort of loop-hole through which guilty parties might escape, and would relieve the Judge from individual responsibility. He would not move an Amendment to the clause, for he despaired of carrying it, but he could not let it pass without shewing he had great objections to it.
§ Mr. Serjeant Wildesaid, the operation of the clause would be advantageous in this way that the parties in all cases of difficulty would have three well qualified persons to decide their case instead of one.
§ Clause to stand part of the Bill.
§ On the question relating to the appointment of Registrars and Deputy Registrars,
§ Sir Charles Wetherellsaid, this clause was to appoint two Registrars at 800l. each, and eight Deputy Registrars with 803 salaries of 600l. a-year each. These were pretty handsome allowances certainly, but he hoped to be told what were the duties they would have to perform; for besides these, there was to be a Secretary for Bankrupts with a full establishment of clerks.
The Attorney Generalsaid, his hon. and learned friend would of course recollect, that it was impossible to have a Bankruptcy Court without Registrars, and while the chief of them attended the Court they must have Deputies to look after the duties of their offices; and as to the expense, this establishment would cost 1,600l.a-year less than the present one.
Mr. Warburtonsaid, if these Registrars could be made the means of taking down the evidence and proceedings of the Court in short-hand it would save much time; every body knew that whole days were taken up occasionally with putting a few questions.
§ Sir Charles Wetherellsaid, he agreed with the hon. Gentleman that short-hand writers would be much more useful than such an establishment of Registrars, whose appointment in such numbers he thought a farce if it was not for the purpose of obtaining patronage. He should, therefore, move as an Amendment, that the word "two" as applying to the Registrars be left out, and the word "one" substituted, and, that the word "eight" should be left out as applying to the Deputy Registrars in the clause, and that the word "four" be substituted.
§ Amendment negatived, and the clause ordered to stand part of the Bill.
§ On the clause authorizing the Lord Chancellor to issue a fiat in lieu of a Commission,
§ Mr. Lefroysaid, it appeared that the fiat might be issued both for London and country Commissions. How was this fiat to be authenticated? The Seal authenticated itself, but that was not the case where only the signature of the individual was attached in London. The hand-writing might be well known, but how could the country Commissioners be sure that it was authentic? and upon the validity of the instrument depended the legality of their whole proceedings. A Commission might be issued at not more expense than a fiat, and was much more easily ascertained to be genuine.
The Solicitor Generalobserved, in reply to the hon. and learned Gentleman, that his objection was of no weight whatever. 804 The most important orders were daily made under the simple signature of the Lord Chancellor.
§ Clause agreed to.
§ On the clause providing for the appointment of Country Commissioners and the directing fiats to them.
Mr. Pagetsaid, if the appointment of these Commissioners was left entirely to the Chancellor, who ought to be responsible for them, there would be more security for their being proper and respectable persons than if appointed by the Judges of Assize, who must be guided only by hearsay as to the merit and qualities of the persons to be appointed.
The Attorney Generalsaid, he thought the case would be quite the contrary. The Judges went the circuit, and had the best opportunity of knowing, from actual observation, the merit and capabilities of the persons whom they appointed. That was an advantage that the Chancellor would be wholly destitute of, from his constant residence in town.
§ Mr. John Campbellsupported the clause. Nothing could be worse than the present, appointments. The Commissioners were mostly country attornies who played into each other's hands. To show how the present system worked, he would state a fact, the truth of which was perfectly well known to him:— A friend of his, a practitioner at a provincial Bar, was made a Commissioner; a case of bankruptcy occurred, and considerable sums of money were collected from the estate. "Now," said my friend to the attorney, "I think we may have a dividend." "A dividend!" echoed the attorney with great surprise, "let me advise you never to mention the word 'dividend,' or you will not suit us."
§ Mr. Burgeobjected to the clause that there would be two kinds of jurisdiction established by it. The country Commissioners were not to have the same powers as the London Commissioners. He wished to know if these country Commissioners were to have the power to direct issues?
The Attorney Generalsaid, if it was desirable issues should be tried in the country, he saw no reason why an amendment to that effect should not be introduced. The object of the clause was only to improve the general practice of such Commissions.
§ Sir Charles Wetherellsaid, the plain matter of fact was, that out of 1,500 Commissions of bankruptcy annually issued, 500 was the outside of those which 805 took place in London—so that two-thirds of the bankruptcy cases would never be brought before the new Issue Court as established by this Bill, and he would never consent to an extension of what appeared to him likely to be an absurd and troublesome system.
The Attorney Generalwas perfectly ready to admit, that the materials could not be readily found in a country town for the constitution of such a Court as was proposed to be formed in London; neither was it expedient or necessary, for a large proportion of the country bankruptcies were brought to London to be worked, and surely, if every case could not be embraced, that was a very bad reason why the management of other cases should not be improved.
§ Sir Charles Wetherellsaid, the Bill constituted a new Court, and many of the questions which would be brought before it were matters of right; others were matters of discretion. A larger discretionary power ought to be allowed, or they would find the machinery of this much-lauded Court not competent to deal with the laws that were left.
The Solicitor Generalobserved, that the present measure had nothing whatever to do with the Bankrupt-laws themselves, but only related to the administration of them. The whole of the present laws were consolidated about six years ago, by a bill brought in by Mr. Eden. The new machinery, he was free to admit, was not applicable to some of their provisions.
Mr. Warburtonsaid, the age of the statute was of very little consequence; the great object of inquiry was, whether the law were good, and, if not, how it could be improved. Many gross errors and faults had been pointed out in the Bankrupt-laws. He would just mention one: the law now was, that if a man became a bankrupt thrice, and his estate, in the second Commission, did not pay 15s. in the pound on the third bankruptcy, the assignees for the second bankruptcy could pounce upon the effects of the third. This operated frequently as an inducement to fraud. He himself had been concerned in a case where this effect took place.
§ Sir Charles Wetherellsaid, it was a whimsical course to make anew Court before the anomalies and absurdities of the whole of the present system of the Bankrupt-laws were revised and corrected. It 806 was not at, all likely that the machinery would be found to suit the new codes. He had hitherto made no remarks on these laws, but had confined himself to the new Court. When they came to the laws themselves, he feared they would find it a very difficult task to prevent complaints as to their working in particular cases.
§ Clause agreed to.
§ On the clause providing that a discretionary power of superseding Commissions should be vested in the Great Seal,
§ Sir Charles Wetherellobjected, that such a power should be delegated to the Lord Chancellor. It would be a direct interference with the rules of his Court, as already long since clearly laid down and established by long usage.
The Solicitor Generalreplied, that there were sufficient constitutional controls for the prevention of that judicial functionary's improperly enforcing this privilege in any Commission that should come under his cognizance, and the Bill expressly provided, that he should exercise it in no case, except where manifest and valid grounds should be shown for his interference.
§ Mr. John Campbellsaid, the Chancellor might be impeached in this as well as in other cases if he abused the power given him: all that was done by granting the supersedeas was simply saying, he should have the same authority over the fiat that he had over the Commission.
§ Sir Charles Wetherellsaid, that by the rules of the Court, and by the usual practice, the Chancellor could only decree A's property to B in certain known cases; but the clause enabled him to supersede a. Commission at his good pleasure.
Mr. Fresfieldobserved, that instead of putting the order or fiat upon the same footing as the Commission now stood, this clause was so prodigal in its power, as to allow the Chancellor to do what he pleased with the fiat, regardless of existing rules.
Mr. Bonham Cartersaid, these existing rules were cases in which former Chancellors had, in the exercise of their discretion, come to certain decisions. There were no statute rules.
§ Sir Charles Wetherellsaid, certainly there were no statute rules, but there was the usage of two centuries; and they now proposed that the Chancellor should wholly dispense with that usage, and decide wholly at his unlimited discretion. He would not, however, press his objection to a division.
§ Clause carried.
807§ On the clause relating to the appointment of official assignees being read,
Mr. Warburtonsuggested, that as this and other subsequent clauses might give rise to some discussion, it was advisable that at that advanced hour (half-past two o'clock) the Chairman should report progress, and ask leave to sit again.
§ Lord Althorpassented to the proposal.
§ The House resumed—the Committee to sit again the next day.