The Attorney General,
on moving the Order of the Day for the second reading of the Bankruptcy Court Bill, said, that his hon. and learned friends would do themselves the very greatest injustice, if they supposed that there could be the slightest chance of their not fully understanding the principles of the measure; because, undoubtedly, there was no subject that had been more generally considered, or that had been, for a longer period, a topic of universal discussion among those who took an interest in the commercial prosperity of the country, or who had attended to the administration of the law, than the present constitution of our bankruptcy jurisdiction. Certainly, this was any thing rather than a new subject, for it had been frequently brought before that House, and before the public, who had both seen and felt the very great inconveniences which existed in this department of the law. It was now thought absolutely necessary to introduce a remedy capable of being applied to these existing inconveniences. In the year 1817, a very distinguished Member of that House, and of the commercial body of London, Mr. John Smith, procured the appointment of a Committee to inquire into the matters connected with this question. That Committee suggested various alterations in the Bankruptcy laws; but, up to this time, no further step of any importance had been taken. He did not intend to rest anything on his own individual assertion or authority; indeed, the inquiry had been conducted by skill, experience, and judgment, brought to bear directly upon the subject, which rendered it exceedingly easy for him to make out every part of his case, to shew the extent of existing evils, the necessity of an efficient remedy, and the fitness of that which was proposed in the measure now submitted to Parliament. In the year 1817, the Committee had been appointed, and had held its sittings, not only during that, but through the course of the following year, and before whom several gentlemen of great distinction in the Court of Chancery, as well as many most influential bankers, merchants, and traders in the city of London, had been examined, and had given most important testimony, He would first mention Mr. Cullen, a Chancery barrister of high eminence, who had 902 been for more than twenty years a Commissioner of Bankrupts, the author of a valuable legal work on Bankruptcy, and as a barrister constantly attending on the numerous Courts that carried the system into effect. No man ever was more competent to form a judgment upon its merits. He now begged permission to read to the House the judgment that had been formed by that gentleman, in the very language that he himself had addressed to the Committee.—'The Bankruptcy-law was introduced (says Mr. Cullen) with a view to prevent and punish the frauds of debtors, and to distribute their property equally amongst all their creditors, but it has not succeeded; and however wise the original plan may have been thought, yet it does not now, even with all its subsequent alterations and accessions, appear to effect either of the objects which it professed; the property is not forthcoming, or it is wasted: the same 'frauds still exist, neither diminished nor punished, and a new class has sprung up, engendered by the very proceedings which have been instituted to prevent them; so that the prominent and growing evil of the present day with respect to debtor and creditor, appears to be the Bankrupt-law itself.' He (Mr. Cullen) was far from being singular in the view he took of this question, the opinion of the commercial world, and of almost all who stood in the situation either of debtor or creditor, confirming that of the professional inquirers who had made this law their study. It appeared, upon the evidence of almost all the commercial men who were examined before that Committee, that scarcely any alternative could be conceived, which would not by them be preferred to the benefits tendered by a Commission. One witness stated, that a compromise for 2s. 6d. in the pound was thought better, in the great majority of cases, than taking the chance of a larger dividend under a Commission; and that traders would most reluctantly trust to a Commission whenever the smallest dividend could be secured without it. To this effect he cited the evidence of several commercial witnesses examined before the Commission. This Committee, having sat for some time, made a report in the year 1818; and he would call the attention of the House to the defects which they proposed to remedy. The first defect proved by all the witnesses 903 was the nature of the Commission itself, and the Commissioners to whom it was directed, who were called upon to act judicially, and to perform the most important and most onerous duties with which Judges can be intrusted. Now Mr. Cullen was again examined in the course of that year, and he then particularly stated the defective position in which he found the law; he said, that 'the points which appear particularly to me to require alteration, are—first, the constitution of the Court of Commissioners, and secondly, the expense which must be incurred.' He then proceeded to remark upon the duties of the Commissioners, and the nature of their offices. He said, 'We are' (for he was one) 'seventy Judges, distributed into fourteen Courts, or Lists, as we are called, of five in each.' He preferred going back to the statements of a gentleman who expressed his opinions upon this subject so long ago, because it would satisfy the House that these evils had existed for a great number of years, and that there was, therefore, a still greater necessity for the amendment of the system which was now proposed. Mr. Cullen observed, 'Each list is perfectly unconnected with, and independent of, the rest. There is no uniformity, no consistency of determination. The suitor has no certainty; he finds one law and practice in one list, and another in another; he finds everything is to be argued upon first principles. Precedent has no binding force upon us, and is, therefore, of no authority; we are not very much disposed to listen to it; we are apt rather to assert our independence, and to vindicate our right to be governed by our own knowledge. This seems to be the natural consequence of independent jurisdictions. We are all supreme.' He further observed upon the difficulty of procuring a proper attendance:—'Any three out of the five in each list being required to attend, the suitor is exposed, even in the same Court, to a perpetual change of the Judge; and this, not only from one meeting to another, but even in the course of the same meeting. We assemble under a number—sometimes a great number—of different Commissions at once; our attention is solicited at one and the same moment by many suitors, all equally pressing, and entitled to decision and despatch upon their respective cases; and these often involving many nice 904 questions of fact and considerations of law. One party gains the attention of a Commissioner; he is instantly broken in upon by another party, perhaps by another Commissioner; the half-heard case must be repeated, and the second Judge soon, in like manner, gives way to a third; and so the case, taken up by one after another, returns, perhaps, upon its steps, till after having, as it were, circulated through the list, amid the eternal interruption of one Commission by other business; of each other by each other; and all by the public; it remains finally undetermined, unless the suitor, or his counsel or solicitor, undertakes the invidious task of asserting his right to the combined attention of three Commissioners, if three fortunately happen to be present.' Again he said, 'instead of so many lists, there ought to be but one, who, sitting in public or private, as occasion might require, would discharge the business which is done, or rather not done, under the present system.' Here this gentleman pointed out the nature of the jurisdiction, and the impossibility of the Commissioners proceeding to give their undivided attention to the business before them, and of their getting properly through the multiplicity of matters which were unfortunately brought under their consideration, the effect of which was, the entailing of delay and expense upon the parties, to an extent that would hardly be believed. Other witnesses before the same Committee stated the same facts. They said that counsel were heard at great length on any point they might think proper to urge, and if (as it was frequently found) the creditor did not quit the Court in disgust, and abandon the inquiry, the waste of time was enormous; the cost of pursuing his claim fell heavily on the creditor, and the bankrupt's estate was plundered in the process. There was another gentleman, of the greatest experience and ability, who gave evidence in language which very much corresponded with Mr. Cullen's. Mr. Basil Montagu was a barrister of the highest celebrity for many talents and attainments, but he had devoted by far the largest share of attention to the Bankrupt-laws, and no man had had so much practical experience in this branch of the profession. His suggestion was:—'That all the duties now discharged by the seventy Commissioners should hereafter be transacted by a much smaller number 905 —say six; and that one should be a quorum, so that the business should never stand still, the evils attendant upon delay being very great.' This gentleman stated several cases, in which delay had produced the utmost inconvenience and loss, one in particular, in which it was necessary to go down into the country for the Lord Chancellor, in order that he might sign the Commission within a certain time, and the interval had been most injurious to the creditors. To shew how the system worked, he would mention some facts stated to him, on authority fully to be relied on. The House was probably aware, that one of the first duties of the Commissioners was, to open the Commission on the application of the petitioning creditor, and they were then to receive the statements of parties who were desirous of proving debts under the Commission. It was impossible, in both points of view, to conceive any tribunal less able to do justice than that which now existed; the consequence frequently was, that the petitioning creditor's debt was proved, but disputed, and the mere dispute, however groundless, produced long years of ruinous delay. He would state to the House the case of Mr. Bartholomew Thomas, which turned upon the validity of an instrument:—the question was, whether he was a bankrupt or not; a question that might be tried before a great many tribunals, and if it should so happen that any of the necessary ingredients for constituting a good commission were wanting, all that was done was perfectly illegal, and might be made the subject of actions of trespass or trover. In order to try this question, which again depended on another—whether the petitioning creditor's debt was good or not. various actions were brought. The issue turned upon apparently a very simple point of law, as to the construction which ought to be given to a written agreement. Various Courts of Law successively decided that this was a good debt, but the case went into the Court of Chancery, and was tried before the Lord Chancellor of that time, who said that, however good the debt might be at law, it was null and void in equity; that the commission could not be supported, and must be superseded. This was one of those cases in which, after great delay had taken place, and enormous expense had been incurred, one Court reversed the decision of others before which the case had been tried. It never 906 could be right, that one jurisdiction should lave the power of sanctioning the debt as perfectly good, and all that had been done as legal; yet that another Court should be able to deal differently with the very same subject matter, and undo all that had been effected by an equally competent authority. He would beg the House to reflect for one moment upon the unfortunate situation in which a trader was placed, when he was in such circumstances as these. Mr. Bartholomew Thomas resided at Devonport, and had been in possession of a tolerably extensive business. What was the situation in which he was placed pending these proceedings? Besides enduring for years the utmost anxiety, suspense, and delay; he knew not the nature of his own situation in the world; he could neither go on with his business, nor leave it off, with any prospect but ruin; for though he had no other dependence, that necessarily failed him, when he could neither have credit to buy, nor legal power to sell. He would refer the House to another case of a disputed commission—the case of Mr. Martin Thomas, who was an attorney. This commission was ultimately held to be a good one; the proceedings, however, were, of course, suspended until its validity was ascertained. It was not established until after long delay, many years, and, when it was at length decided, the barren sentence was all that could be obtained; the assignees, debtors, creditors, and all the parties had disappeared:—some were dead, the rest could not be found; not a single party interested could be discovered, and there was not one single farthing to be divided, the whole proceeds of the estate having evaporated in litigation. He would call to the recollection of Gentlemen, a case of very recent occurrence, and one of great magnitude, which would shew, in a remarkable manner, the ruinous consequences that resulted from the present state of the law, to all parties, except, indeed, some members of the profession to which he belonged. He spoke of the commission taken out against Mr. Chambers, the banker. That commission was considered to be a perfectly good one; it was acted upon by the parties for no less a period than five years; it was tried in the Courts of Law, and its validity was always established; goods were seized under its authority by the Sheriffs of almost all the counties in England, who, as the House might 907 know, were bound to keep them, at their own risk, until the final decision of the commission's validity; and yet, after all these proceeding's—after having been tried by the Courts of Law, and having been established—when the case was tried on a late occasion in the Court of Exchequer, the Jury differed from the decisions of all the tribunals by whom the case had been previously tried; and, as far as their verdict could go, upset the commission. The Court had, indeed, decided that a rule for a new trial should be granted; but the ultimate issue is held in uncertainty, and a new and long delay must arise. The interests of all parties concerned were most materially injured during the lapse of time; various alterations occurred in the circumstances of most of them—bankers and assignees failed with assets in their hands—parties died—their representatives succeed to law-suits, in utter ignorance of their actual situation. He might mention several other cases of this description; but he was not disposed to trouble the House unnecessarily. He would proceed now to advert to cases of a different description, in which the creditor desired to prove under the commission, debts of which the bankrupt either denied the existence, or alleged that they had been discharged. In the year 1816, in a case "ex parte M'Donald in the matter of Carter," a petition was presented, praying that a debt of 4,000l. might be expunged; that petition was referred by the Vice-Chancellor to the Commissioners, who held, upon that inquiry, no less than five and twenty sittings. In January, 1821, the Commissioners, after these five and twenty meetings, determined that it was no debt. Afterwards, however, cross petitions were presented to the Vice-Chancellor, complaining of the Commissioners' report; and in March, 1822, he, the Vice-Chancellor, did that which, if it had been done at the outset, would have saved an immensity of expense and delay—he directed an issue to be tried by a Jury under the direction of a learned Judge presiding in a Court of Law. An appeal was lodged against this order, but it was not until April, 1827—five years after this issue was directed—that the appeal was heard by the Lord Chancellor. The hearing took place, the case was considered, judgment had been promised, and postponed several times, when, in consequence of a change of Ministers, my Lord Eldon resigned the 908 Seals. The case, therefore, remained undecided when my Lord Eldon left office. The parties thereupon pursued a course which was not at all of unusual occurrence: they preferred having their case decided by the former Lord Chancellor, who had heard it argued, to the delay and inconvenience of beginning again, and bringing it under the consideration of a new Court. They, therefore, applied to Lord Eldon to decide the case, all parties agreeing to be bound by his decision. Lord Eldon was good enough to undertake this office; but it was not until the month of January in the present year that he made an order, reversing all that had been done in all the other Courts in every form or stage of the proceedings. He had doubtless reversed it very properly, but the costs incurred amounted to upwards of 2,000l.; and the whole amount of assets at the conclusion of the cause did not exceed 300l. Those funds which ought to have paid the just debts of the creditors, and might have left a decent surplus for the bankrupt—if a proper Court had existed for the trial of the case in the first instance—were frittered away, and absorbed in fifteen years of destructive litigation. Mr. Montagu informed another Committee, that sat on a different occasion, of a transaction of the same kind. A debt was admitted as good, but the commission was superseded, and the proof was to be renewed before a second commission. There it was disallowed: a third commission was dated the 4th of March, 1821; and no less than seventeen examinations took place. On the 9lh of November, 1821, a petition was presented to have the debt allowed; and on the 22nd of December it was heard, when the Vice-Chancellor, before whom it was argued, was strongly disposed to send it at once to a Jury. The parties, however, insisted on having his judgment, which he accordingly gave, against the debt, with leave to the parties to have an issue if they thought proper. That issue was tried in December, 1822; a rule for a new trial was granted in February, 1823; and then, nearly two years afterwards, in December, 1825, the cause stood for a new trial. This new trial never came on; but on the 12th of January, 1826, after all this frivolous delay, vexation, and expense—after the decision by the Vice-Chancellor—after the first trial—and after the second trial was moved for and suspended, the Lord Chancellor, at the request of 909 both parties, undertook to decide the case—they preferring his decision to running the risk of additional expense and delay—and he confirmed the decision of the Vice-Chancellor after all. This was the nature of the grievances that existed, and he had stated enough to shew that the Court of Commissioners, as at present constituted, was not a fit Court for the discharge of the duties which they were meant to perform—that justice could not be done under such circumstances, and that it was not only highly desirable, but indeed absolutely necessary, that some remedy should be applied. What was that remedy? He had stated already, on the evidence of Mr. Montagu, that one Court, consisting of about six Commissioners, with one Commissioner to go through the less important and merely technical part of the duty, would transact all this business better than the present number of Commissioners, acting as imperfectly as they did. It was stated to the Committee, by most respectable solicitors (whose evidence he adverted to), and gentlemen well acquainted with this part of the business, that the greater part of it might be all transacted by one Commissioner, so that the difficulty of procuring the necessary attendance might be at once obviated. It was suggested by the witnesses, that there should be one permanent Board, composed of individuals who would not be looking forward to higher promotion, and who would not have other business to attend to. Other witnesses said, that a very small number of Commissioners of experience and ability would, under a proper system, be enabled to discharge the business satisfactorily to all parties concerned, and to the public, and they all strongly recommended the appointment of a permanent Court of Appeal. The Report of the Committee of 1818, adopting these views, recommended a radical change in the constitution of the Board of Commissions. He thought he had high authority in favour of this change. His hon. and learned friends opposite were, no doubt, aware, that a few years ago, when the new Bankruptcy Bill was introduced, a highly distinguished individual, since appointed one of the Masters in Chancery (now Lord Henley), was employed by the Lord Chancellor to draw up that Bill. This gentleman published a sort of commentary on that Act of Parliament, after it became a law, setting 910 forth its object, explaining its provisions, and contrasting them with the former statutes. Some very remarkable words appeared in his preface to that work; and, considering by whose co-operation and encouragement he wrote it, and considering also by whose desire, and under whose sanction that Bill was introduced, they would appear fairly to justify the presumption, that Lord Eldon was favourable to this very extensive change. The author thus spoke of the amendments effected by the new Act. 'Amendments (after enumerating them) which are not only most beneficial in themselves, but which may be hailed as a prelude to a change that will, alone, remove all the evils which at present exist, and without which the law cannot be adequately administered; for, unless a complete alteration be made in the tribunal by which the Bankrupt Laws are administered, it will be in vain to expect that the reproaches which are cast upon the present system can be removed.' The great change thus declared to be essential to any real improvement in the Bankrupt Laws, the present Bill proposed to effect. Instead of scattered and fugitive Courts, picked up from time to time among the seventy practising barristers who are named Commissioners, and discharging their duties in the manner already cited, from some of their own body, a permanent Court is to be established, to consist of ten members in all, selected from some of the most respectable and able individuals in Westminster Hall. Of this number, six are to be called and act as Commissioners: the other four, possessing all the powers of Commissioners, would also constitute a Court of Review, and exercise large powers of superintendence and revision. It would also be enabled to preside at the trial of disputed facts by a Jury, which might be called upon to decide them, while they are recent, and the witnesses at hand, thus avoiding that endless succession of expensive suits which is so often engendered under the present system. He might be here allowed to appeal to the same high authority: he again spoke of Lord Eldon. That noble and learned person, when consulted by Mr. Charles Bell, the eminent Scotch advocate, a man equally remarkable for professional knowledge, and for enlarged and benevolent views, as to the best mode of conducting process of bankruptcy in Scotland, had strongly recom- 911 mended that it should be placed in the hands of a Court consisting of four Judges. If such a Court had existed when the cases occurred to which he had endeavoured to call the attention of the House, what would have been the consequence? Why, instead of cases travelling from the year 1816 to 1831, through all these various Courts and jurisdictions; instead of there being appeals from one to another, one reversing the decisions of another, the case would have been settled without delay; great expense would have been saved; much fraud and perjury prevented; creditors would have received their debts, bankrupts their surplus; the ruin of many would have been averted. In a word, it was reasonably expected, that by securing promptitude of decisions, both as to doubtful law and controverted facts, the estates of bankrupts would be really made available for the benefit of creditors, to the great relief of the commercial world. The next consideration of importance was, the appointment of assignees. To say, that the assignees were generally selected from the body of the creditors themselves, and that the creditors were likely to be the best judges of their own interests, appeared to be a plausible and fair vindication for the present state of things, yet, in point of fact, the results were not satisfactory. The assignee selected by the creditors, generally a creditor himself, commenced his operations with a keen appetite for a dividend, laudably attentive to his own interest, which was involved in that of his constituents, and desirous of doing justice to all. But encountered with difficulties, harassed by delays, involved in unexpected legal contests, he finds his ardour cool, and loses the hope of settling the bankrupt's affairs without a sacrifice of his own. Experience proved, that most assignees became supine and careless, and pointed out the remedy. A greater evil existed. Some enemy of the bankrupt, from feelings of personal animosity, or some friend, with a secret desire to serve him, procured the appointment of assignees, to forward private objects. To prevent the estate from suffering through any of these causes, it was proposed that official persons should act as assignees, under the authority of the Lord Chancellor, with a compensation proportioned to the labour and success, and always amenable to the Commissioners and the Court. He apprehended that no better 912 security for an active pursuit of funds, and a speedy division of the forthcoming property, could be devised. On this subject, the late Lord Redesdale, in the year 1809, on proposing certain amendments in the Bankrupt Laws, particularly suggested the employment of official accountants, who should not be creditors of the estate, but who would act for the creditors. He thought that the creditors ought not to have a vote in the choice of them. Many of the witnesses pointed out the same description of persons, under various names—trustees—official assignees, &c.—and the Committee, in their Report, strongly approved of the proposal. It was also suggested, that the dividends remaining in the hands of the assignees should be transferred to some officer of the Court, for the purpose of forming a Suitors' Fund of the new Court. He did not like to mention the present amount of unclaimed dividends now in the hands of assignees, without some direct authority; but he could state, on the best authority, that it amounted to many hundred thousand pounds. If these dividends were not paid to the creditors under the commission, they might at least be paid into the hands of the Court, where they would form a fund of some benefit to the public, instead of remaining idle and useless. He had now laid before the House the leading and most important objects of the present Bill. He could see no objections to the remedy which it was proposed to apply to the most serious grievances existing at the present time. It was proposed, after long investigation, with the sanction, and by the advice, of the most intelligent and able individuals, the most experienced, and the most interested in the success of the measure. There were a great number of other provisions in this Bill, which it was not now necessary for him to develope, but they were well adapted to the end in view, namely, facilitating the business of the Court, and promoting the interests of the suitors. But it was necessary for him to go into some details respecting the mode in which the expense of the Court was to be defrayed. The amount of fees to be received on each bankruptcy would be materially reduced, and the whole expense of bankruptcy much lessened: but the fees and the receipts were expected to amount to a sum large enough to pay the Judges, 913 Commissioners, and officers, now to be appointed, as well as emoluments equal to those which the Lord Chancellor now received from bankruptcy, and also a compensation to him for some loss, which his office was to undergo. If the fund to be raised by the intended fees should fall short, the House would probably see no objection to having recourse to the Suitors' Fund, consisting of the unclaimed money now in the hands of the Accountant-general, the property of suitors, who were not to be found, or did not apply, the accumulation of which, called the Dead Fund, had already been partially appropriated to objects connected with the Court of Chancery. Out of these savings a Register Office had been erected, the Masters in Chancery also received considerable payments from them, and the larger part of the Vice-Chancellor's salary was drawn out of this fund. The surplus now greatly exceeded 20,000l. a-year, and was, therefore, perfectly competent to answer all those new charges. It was universally known, that certain sinecure offices, connected with the Court of Chancery, had long formed an important part of the Chancellor's means of providing for those connected with him. One of these, a patent office, arising from Commissions of Bankruptcy, was now held by Mr. Thurlow, and the reversion of it was vested in the son of Lord Eldon. This office it was proposed to abolish: but as the present and all future Chancellors would thereby lose the chance of providing 7,000l. or 8,000l. a-year for some member of his family, an addition to his retiring pension would be thought not unreasonable. It was now 4,000l., the same sum as the Chief Justice received on his retirement, and by only 500l. exceeding that of a Puisne Judge. The same retiring pension was secured for Lord Loughborough, when many sinecures were in his gift, and for Lord Thurlow, when he had also a Teller-ship of the Exchequer, of the yearly value of 4,000l. He thought no Gentleman would consider 6,000l. per annum as an extravagant remuneration for a Lord Chancellor, after he should have resigned the Great Seal. No one would be likely to urge an objection to placing the Lord Chancellor in a state of complete independence, and few persons would accept the office without resigning a professional income, exceeding the amount even of the larger retiring pension now to be proposed: while the public would gain by the aboli- 914 tion, both of sinecures and reversions—both indefinite, as attached to Courts of Justice. A material saving would accrue to suitors in Bankruptcy from the new arrangement and distribution of the fees to be paid hereafter. For example, the seventy Commissioners, now receiving among them 28,000l. yearly, would be exchanged for Judges and Commissioners, whose combined salaries would amount to 18,000l. The Chief Judge (and he had reason to hope that the office would be accepted by one of the most learned, experienced, and popular Judges that this country had ever known) was to receive 3,000l. salary; each of the Puisne Judges 2,000l.; each of the six Commissioners, 1,500l. He ought to remark, that all the new judicial officers, unlike the former Commissioners, were to resign all other practice, and devote themselves entirely to the business of the new Court. If any imputation were cast on the acquisition of this patronage by the Lord Chancellor, he would contend, that the Bill, in fact, proposed on his part to surrender some of the best patronage that belonged to the Great Seal. The seventy commissionerships afforded the means of conferring perpetual obligations, not seldom on the first families in the kingdom. A canvass was always going on, not only for the office, but for the remotest chance of obtaining even the most distant prospect of succession. The opportunities of connexion were still more valuable than the income arising from the office—sometimes not unimportant at the commencement of a professional career. Yet it seemed a small boon to ask for: the duty would not be too heavy for any man, and if it should be ill performed, the public did not detect the fault. But when a very limited number of Judges was to be selected, for the discharge of important duties, under the public eye, the range of patronage was circumscribed; it was only among very few that the choice must be made. He then entered into some farther particulars relating to the future expenses, for the purpose of shewing, that upon 1,800 commissions (the average yearly number) the whole expense would be reduced from 56.000l. to 40,000l. a year; and after shortly recapitulating the improvements introduced by the Bill, he moved the Order of the Day.
§ Sir Charles Wetherell
moved, as an amendment, that the Order of the Day be postponed till Tuesday next.
§ The Speaker
The hon. Gentleman will find some difficulty in doing that. An Order of the Day belongs to a particular day—to a day fixed, and it would be rather an inconsistency, therefore, to postpone an Order of the Day. The hon. Gentleman can meet the motion by a direct negative, or, when the Order of the Day is read, he can move, that the Debate be adjourned; but he can hardly move the postponement of the Order of the Day.
§ The Order of the Day read, and on the motion that the Bill be read a second time.
The Attorney General
hoped his hon. and learned friend would allow the discussion to proceed for some time longer, if they were not able to get through it that night, he could then move the adjournment.
§ Sir Charles Wetherell
said, that there was not a single statement in the speech of his hon. and learned friend which would not admit of a complete answer. There was one observation, however, with which his hon. and learned friend preceded that statement, that was to him (Sir Charles Wetherell) very satisfactory. It was, that the Bill ought to be treated with respect, as proceeding from a high, deliberative, and legislative body. It was consolatory to know, that there was still such a body in existence. Away, then, with the attempts of the hon. and learned Gentleman, and those who surrounded him, and of their friends the Press, to strip that high, deliberative, and legislative body of the right to deliberate and legislate at all. [Oh, oh!] An hon. Member exclaimed oh, oh! Perhaps that hon. Member participated in the notion of the non existence of the House of Lords. Be that as it might, he thanked his hon and learned friend for having recognised the existence of the House of Lords, as well as for his recognition of their being capable of forming a deliberate and wise judgment. The immediate subject before the House was, unquestionably, one of the highest importance. The property of which the new Court, if it were established, would have to dispose, would be much greater than that disposed of by the Court of Common Pleas or the Court of Exchequer. How necessary was it, therefore, that a Bill of such magnitude should undergo a 916 thorough investigation. His hon. and learned friend had said, that they must not touch it. According to his hon. and learned friend, the body from which it proceeded had such a plenitude of the deliberative faculty, that it was entitled to deliberate, not only for itself, but for the House of Commons. His hon. and learned friend's conduct accorded with his doctrine. The Bill had not been brought down to the House until Wednesday, and the printed copies had not been delivered until that day at twelve o'clock, and yet he, and those who thought with him on the subject, were called upon, at so short a notice, to argue it against his hon. and learned friend, who, in addition to his knowledge of the Bill, held in his hand a schedule full of information and arguments collected from all quarters. The present system of administering the Bankruptcy Laws had been approved of by successive Chancellors during the last century—by King, Camden, Erskine, &c. none of whom had detected the delays, the expenses, and the corruptions now attributed to it. It was true, that from time to time, various improvements had been suggested in the system. Even in his own humble opinion, the system might be materially improved, retaining, however, its principle. But he could by no means consent to the three-fold denunciation in the preamble of the Bill, which charged the existing system with the greatest delay, expense, and uncertainty. His hon. and learned friend had quoted authorities in favour of the Bill which, however, were not so at all. Did his hon. and learned friend mean to say, that Lord Eldon was favourable to the Bill? If so, as it was irregular to allude to the debates in the House of Lords, he would refer his hon. and learned friend to the Journals of the House of Lords, in which it appeared, that the eminent and illustrious individual in question had recorded his protest against the Bill, on the ground, that its principle was false, and that the threefold denunciation of the present system in the preamble of the Bill was unfounded. His hon. and learned friend had also quoted the opinions of Mr. Cullen and Mr. Montagu, in favour of the Bill; but they were not in favour of the Bill. They said, that the Bankruptcy Laws must be regulated and amended, and so said he; but none of the authorities quoted by his hon. and learned friend went the length of expressing an 917 opinion of the constitution of such a tribunal as the present Bill would establish. He had made some inquiry in the City, and he found that the strongest objection existed to the Lord Chancellor's having the monopoly of appointing all the authorities under the proposed system; not only the four new Judges, but the official assignees, who were not merely to act with the assignees appointed by the creditors, but to over-rule them; and who would, ere long, get all the assets of all the bankrupts in the kingdom into their possession. He admitted, that there were many injurious delays in the present system, he allowed all that the Attorney General had said about the unfortunate cases of Chambers and others—and he should be happy to agree to a statute of limitation upon bankruptcy proceedings; but what had that to do with the establishment of an entirely new Court, at the expense of 28,200l. a-year to the public? He would readily adopt any improvement in the bankruptcy jurisdiction which should preserve the principle of the present jurisdiction; but this Bill destroyed that principle entirely, and swept away every vestige of the existing system. The inconvenience of appeals had been argued by his hon. and learned friend; but the new Bill was full of causes of appeal. As to the machinery of the Bill, the more he examined it, and the more he reflected on its details, the more he became convinced that it could not work well. But reference had been made to authority, both in its favour and in favour of the general principle of the measure. Well, he must be allowed to say, that if the question were to be decided by authority, and not by reason, he at least should have no cause for discontent, seeing that the authority against the Bill quite preponderated. There was not a man in the country, competent to form an opinion upon such a question, who would not at once say, that the whole business of Bankruptcy ought to be exclusively in the hands of the Lord Chancellor; for it was essentially matter of equity, and decisions could scarcely be made on it, that were not in substance equitable decisions. The preamble of the Bill, from its large proportions and mendacious character, reminded him of,—"London's column, pointing to the skies, Like some tall bully lifts his head and lies.This description of Mr. Pope would an- 918 swer for the preamble of the Bill, and was fully borne out by its character, for it performed nothing that the preamble naturally led one to hope for. He regretted that the hour of the night did not allow of his doing justice to the sentiments which he entertained respecting this measure, and he should, therefore, be under the necessity of adjourning to a future day many of the observations which he felt it necessary to make, for the purpose of fully exposing the weaknesses and imperfections of the present measure; but there were one or two points which he could not help noticing. Here was an Administration which founded its claims to public confidence and favour upon unflinching economy, which looked after cheese-parings and candles' ends—the save-all Ministry proposed, that public officers should be salaried before they commenced their duties. But he did not oppose the Bill upon that ground, nor upon any single or isolated, or narrow ground; he opposed it because it took out of the jurisdiction of the Court of Chancery the business of Bankruptcy. He should like to know whether the merchants of London did not, and would not prefer the immediate opinion of such a Judge as Lord Eldon to that of any intermediate Court. He never heard that merchants expressed a wish to give up the power of naming their own assignees, and to resign the whole power to the Lord Chancellor. He had no objection, that the assignee appointed to collect the assets should give security. He could not admit, that Lord Brougham, however versatile his talents, was the fittest person to select the best accountants and the best assignees. His objection to the Bill was, not that eminent Judges would not be appointed, but that the tribunal was uncalled for, and that it would aggravate all the mischiefs now complained of. He opposed it, likewise, as a needless and mischievous expense; especially did he object to the expense being defrayed from the Suitors Fund. Hitherto the practice had ever been, that the whole expense of a bankruptcy be defrayed from the estate; and the average expenses to the estates of bankrupts did not amount to more than three-pence in the pound—of course, that was taking the whole mass. In a court of law or of equity, if A and B had matters in dispute, costs were paid by the parties, and never by the State; and 919 why should the nation at large be called upon to defray the expenses of bankruptcy? He complained of the measure, not only on account of the funds whence its expenses were to be drawn, but by reason of the amount of those expenses: the lowest estimate which had been made of those expenses was 40,000l. In that there was no provision for the brick and mortar to be used, for it was to be presumed, that those gentlemen were to have some place in which to sit, and then the salaries of the retiring gentlemen were totally omitted. Now that he was on the subject of retiring salaries, he would observe, that something had been said about the retiring salary of the Lord Chancellor, and about the necessity for raising it to 6,000l. a year. It was proposed to increase the retiring pension of the Lord Chancellor from 4,000l. to 6,000l. This did not appear very consistent with the principle of economy, one of the three pillars on which the present Administration was founded; nor did he understand what connection the subject had with the administration of the bankrupt laws. Lord Rosslyn and Lord Eldon, and other Chancellors, had no more than 4,000l. a year. He regretted the hon. member for Middlesex was not present, as he took these financial matters into his own hands. It somehow or other happened, that of late he was sometimes absent upon occasions of this kind. He would expose this matter very ably, as he always did. He would clothe it in proper terms from that peculiar financial vocabulary of which he was so great a master. He would shew the extravagance of this plan. And this was the Administration that was no longer to govern the country by patronage! To use an expression of Dr. Johnson, patronage of late was rising every where round them like exhalations from the earth; it was springing up like mushrooms. He did not know how many places they had already created. Besides those to which the Reform Bill gave birth, here were Judges, Commissioners, and Assignees, all to be appointed by the Lord Chancellor of England. When Reform was so expensive as this, was it to be supposed, that the people of England could not distinguish between Reform and Reformers—between what was for public and what for private advantage? Take the whole of the History of England, from the time of Walpole down to the present day, and he 920 would venture to assert, that there never was an Administration which had dared to arrogate one-fourth of the patronage which the present Ministry had attempted to grasp. And this was the Ministry which so loudly complained of places, and pensions, and sinecures, and overpaid offices! This was the Ministry which was to manage the affairs of the country upon principles of the most parsimonious economy. The change proposed was worse than useless. There could not be a better system than the present if it was carried properly into operation. This House, he contended, had no business to interfere with an experimental Court of Bankruptcy against the opinions of Lords Eldon, Lyndhurst, Sir John Leach, and other equally respectable functionaries in the Court of Chancery. The Attorney General, he repeated, had not quoted the opinion of a noble Lord, a former Chancellor, correctly, for the words of the protest of that noble Lord, as entered on the Journals of the House, were, that he dissented from this measure because, instead of diminishing, it was calculated to increase the expense, the litigation, and the delay of the present system of Bankrupt administration; and looking at it himself in that light, he must in order to have more time to prepare himself, and in order that the House also might be prepared to consider the measure, move as an Amendment to the present Motion, that the Bill be read a second time on Tuesday next.
§ Sir E. Sugden
hoped the second reading might be appointed for some day when it could be brought forward at an early hour.
§ The Debate adjourned to Tuesday next.