§ On the Motion that this Bill be re-committed,
§ Lord Lyndhurst
said, that he felt it his duty, at this stage of the proceedings, to make a few observations upon the Bill which had been introduced by his noble and learned friend upon the Woolsack. Their Lordships would, no doubt, recollect, that this Bill had, on more than one occasion, been postponed by his noble and learned friend, with the assent of their Lordships, in consequence of his absence from town; and from this circumstance he felt that he should be wanting in respect to their Lordships if he were to allow this stage of the Bill to pass without making those observations which it had been understood that he desired to be afforded an opportunity of submitting to their Lordships. The observations which he had to make upon the Bill should be presented to their Lordships in a spirit of the utmost fairness and candour. It was impossible that this question could be considered as a party question. They had, all of them, 231 one common interest in questions of this nature, and that common interest was, to render the administration of justice as pure and as efficient as possible. The present measure, he understood, was introduced on account of an alleged defect in the administration of justice, by the Commissioners of Bankrupts who were named in what was called the London List. That, he was informed, was the ground on which this Bill was founded and rested; and therefore he considered that it was impossible fairly to examine this subject without looking to the charges which had been so frequently urged against those respectable persons who filled the responsible situation of Commissioners of Bankrupts. In saying this, he did not advert to any thing which had passed in that or in the other House of Parliament on this subject; but it was a matter of notoriety, that at various public meetings, as well as in various publications, the gentlemen to whom he alluded had had their characters, as he considered it, most grossly misrepresented and calumniated. They had been charged with incapacity, with negligence,—with an undue anxiety for gain; they had been charged as being influenced not by an honest desire to perform their important duties, but merely by a selfish feeling for the accumulation of profit. It was, their Lordships knew, a very easy thing to run down, either in private or in public, the character of individuals, while it was extremely difficult to adduce evidence in favour of it on many occasions. But censures such as he had spoken of ought to be met and refuted, because the public were deeply interested in maintaining and asserting the purity of those who acted as legal functionaries. During the time that he had the honour of holding the Seals, which was about three years, he had had a full opportunity of witnessing and marking the character and conduct of these gentlemen; and he thought, looking to his experience, he might say, that the charges made against them were unfounded—that the charges so pertinaciously preferred against them were perfectly destitute of any foundation in fact. Amongst that body of men—and he spoke it of his own personal knowledge—there were individuals of great legal learning, of great literary attainments, of extensive general talents—men, whose public and private character would reflect credit on any station. And he might also say, with respect 232 to the great body of those individuals, of the whole body, as a body, that they were well qualified by their knowledge, attainments, and experience, ably and faithfully to discharge the duties of their situation. He spoke from the experience of three years; but his noble and learned friend (the Earl of Eldon) could speak of the upright and honourable conduct of these gentlemen from an experience of a much longer date. What he had thus stated, he had stated merely from his own feeling, and without having had any communication with his noble and learned friend on the subject; but he felt confident that the experience of his noble and learned friend would induce him to concur in the justice of that which he (Lord Lyndhurst) had said. He was the more desirous of making this statement, and of appealing to the noble and learned Earl, in consequence of a reference which had been made by the noble and learned Lord on the Woolsack, to the decision which had been come to on a former occasion by the noble and learned Earl. He had stated then, and he would repeat, that the judgment alluded to by the noble Lord on the Woolsack related not to the individuals to whom this Bill more particularly referred, but to a very different body and description of persons; and he would not have alluded to this circumstance having before given the same explanation, if he had not seen that decision, in different publications, mentioned over and over again, and applied, not to the country Commissioners, but to the London Commissioners. Such had been the opinion of his noble and learned friend on the Woolsack, but it was an erroneous one; and if it were otherwise, the noble and learned Earl could set him right. If any doubt existed as to the conduct and persevering industry of the individuals—the Commissioners to whom he had referred and, if their Lordships were called on to meet the charges against these Commissioners fairly and satisfactorily, he would appeal to this fact—that, not with standing the great variety and importance of the decisions come to by those respectable individuals, on most difficult points of law, but a very small number of appeals had been made from their decisions, and still more, a very inconsiderable number of those decisions were reversed in the Courts where they were appealed from; he would point to this fact as a decisive proof, that 233 they were perfectly capable of doing their duties in a praiseworthy manner. He rested on this statement as a decided answer to the calumnies that had been sent abroad against the Commissioners. He rested on it, as showing the great benefit which was derived from the manner in which these gentlemen discharged their duties, and as a most satisfactory and triumphant answer to the various attacks that had at different times been made upon them. It was important, on occasions of this kind, when so much defamation was thrown out in general terms—it was of importance, under such circumstances, to see whether they could collect from the charges themselves the causes which had led to them. There were two petitions on their Lordships' table with respect to the Commissioners. One of these petitions emanated from a body of persons who met to consider of the present state of the bankrupt laws, and also the manner in which those laws were administered; the second petition, which seemed to be an echo of the former, came from a number of the merchants of the city of London. He should say nothing of the language of the body who called and attended the first meeting; but he had heard from those who were present at it, that the grossest charges were made against the Commissioners. He looked, however, not to what might have been said at that meeting, but he would confine himself to the petition that was presented to their Lordships, for the purpose of showing what the nature of those charges was; and having done so, he confidently expected that he should be able to prove to their Lordships that those charges were not justifiable. It appeared that the petitioners had endeavoured to bring forward every thing they could against the conduct of the Commissioners; but, notwithstanding that feeling, the first charge which he found contained in this petition, referred not to them, but to the system. The petitioners alleged, that the tribunal was objectionable, inasmuch as it included fourteen different courts of judicature, and that the decisions of those who presided differed according to their peculiar ideas of the law. Now, he would appeal to his noble and learned friend, and to other noble and learned Lords who were present, to say, whether this charge was not, on the very face of it, deficient in truth, in justice, and even in probability. The rule 234 of law as it respected bankruptcy cases, was to be found in certain Acts of Parliament; and it was with reference to these Acts, by which the judgment of the Commissioners must be guided, that they came to a decision on every case that came before them. But what followed? If the Commissioners departed from this rule, and proceeded contrary to the Act of Parliament, it became at once a proper ground of appeal. Now, he thought that the small number of appeals from their decision, to which he had before called the attention of their Lordships, afforded the most irrefragable proof that the charge of mal-administration of justice was utterly destitute of foundation. The next charge against the Commissioners,—and he conceived it to be a very grave charge, believing these individuals, or at least the greatest part of them, to be a very honourable body of men,—the next charge was, that they multiplied meetings for the purpose of increasing their emoluments. This charge was advanced, not as a doubtful matter, but as a thing of well-known and decided occurrence. It was thus asserted; but where were the facts? When men were charged with fraudulent and dishonest conduct, something explicit should be stated. Fraud and dishonesty were never to be supposed—they were things to be proved. The allegation ought to be clear. It ought to appear in decisive, distinct, and express terms. If a desire for the multiplication of fees were entertained by these gentlemen, it could only be gratified by the multiplication of private meetings. But he would ever, that no professional man could wish that private meetings should be multiplied. In those cases, the professional man was called from his own home, perhaps to a considerable distance, and at great inconvenience; and, after he had been engaged for many hours, what was his remuneration? Why, 1l. Such was the paltry pittance he received. Now, he would ask, supposing the strong feeling for gain to exist, whether this formed a sufficient, an adequate motive, to induce him to multiply meetings? But he would contrast this charge with the language which was made use of in the House of Commons when certain Members spoke on this subject. They were honourable persons; and the way in which they applied themselves to this point was consistent with their character. They objected to the mode in which the system 235 was now conducted, because, they stated, that it gave rise, in the minds of illiberal persons, to the idea that meetings were improperly multiplied; but, at the same time, they, in language the most precise and expressive, acquitted the Commissioners wholly and entirely of the charge, that they were actuated by the feelings which had been attributed to them with reference to the multiplication of meetings. The third charge was, that the Commissioners who composed this body, were persons inexperienced in the business, and unfit for the duties which they were intrusted to perform. Now, looking to these lists, he saw enough to enable him to contradict the assertion. He saw, amongst many other clever individuals therein named, a gentleman who was, he believed, a Member of the other House of Parliament, and who was highly distinguished by the extent and variety of his attainments. No person, under the mature age of thirty, was ever selected for the office; and he believed, that none were appointed to fill the situation who were not well able to discharge its duties. The next charge was that the Commissioners were not regular in their attendance. That was a charge so futile and so absurd, that he need say nothing about it to those who had at all investigated the subject. These were the charges made against the Commissioners, by individuals who wished to hold them up to public scorn, derision, and contempt; individuals who, he had no doubt, for some objects personal to themselves, had thus attacked the character of honourable men who had behaved well to their country, and had well discharged the duties which had been cast on them. He felt himself called on to say thus much in defence of gentlemen who had been thus unfairly assailed. Those gentlemen had acted under him when he held the Great Seal—he was a witness of their conduct and of their capacity—and he was sure, from all which he had observed, that the charges brought against them were ill founded. He should now proceed to make a few observations on the existing system. There were some advantages connected with the present system—he would say considerable advantages—which ought not to be left out of sight. There was no species of legal business that fluctuated more than that which was connected with bankruptcies. At one time there was a great accumulation of such cases, while at 236 another there was little or nothing of the kind. The tribunal which at present existed was admirably calculated to meet that state of business. The Commissioners, when unemployed with bankruptcy cases, pursued their own ordinary avocations; but when an accumulation of bankruptcy business occurred, they were perfectly ready to discharge the necessary duty. There was, therefore, no delay in the administration of the law in this department, so far as the Commissioners were concerned. Upon that point he had no doubt whatever. Another advantage incidental to the present system was, that every individual suitor procured a decision at an extremely cheap rate. In other cases the suitor must employ counsel. But in the case of a Commission of Bankruptcy, the applicant was introduced to the Commissioners; and if he did not know what to do, the Commissioners instructed him, and directed him as to the legal form he must go through, without the charge of a single sixpence. If peculiar difficulties arose, then the Commissioners pointed out those difficulties, and for the first time the applicant was under the necessity of having additional legal advice. They had been told, over and over again, of the expense attending these bankrupt proceedings. It had been asserted, that estates were frequently sacrificed to meet the extravagant charges. Now he had taken some pains to inquire into this subject, and, as a practical contradiction of this outcry about expense, he would state, that in one list last year, sixty commissions were opened and worked, the whole business was transacted, all the meetings were regularly held, the proceedings were properly completed, and the dividend made; and what did their Lordships suppose was the percentage claimed on all the dividends made? Not one farthing in the pound, being considerably less than what was paid to a broker for his performance of duty in a single case. So much, then, for the expensive charges of the Commissioners, and for their habits of cupidity. It was but justice to state, that in many instances where the Commissioners took their fees, they did so that they might hand them over to some poor and destitute object. He did not mean to assert, that the present system might not be rendered more perfect. He had himself formerly proposed certain amendments. In some cases, where two Commissioners had been 237 employed, it appeared to him, that one would have been sufficient; and he had also wished, that three Commissioners should assemble to decide on claims of disputed debts. He had been anxious to lower the number of the Commissioners, in order that the expense should be reduced as much as possible. He was also desirous, that two or three of the most experienced Commissioners should sit, from day to day, to attend to cases of great difficulty. He, however, postponed carrying his proposition into effect, for a reason which he should briefly state. The objection which had been raised did not much apply to the London, but to the country Commissioners; and he conceived, that he should have begun at the wrong end if he interfered with the London instead of the country Commissioners. He wished to proceed with the country Commissioners; and he was sorry that his noble and learned friend had not taken that course more decidedly. He did not mean to assert, though the complaints against the existing system were exaggerated, that therefore another and a better system might not be adopted. He did not mean to argue, that another judicial establishment might not effect the same object as beneficially as the present one did, or even more so. He, however, thought it better to adhere to the present system, at the same time considering how far it might, with benefit, be infringed on, and how far the evils which were complained of could be obviated. This was the course which he would recommend, unless, after looking carefully at the subject, it should appear, that the existing system did not admit of due amelioration and improvement. For his own part, he did not deem it advisable to resort to change, unless the plan proposed was demonstrably better than that which now existed. However plausible the alteration might appear, however well it might look in theory, they ought to proceed a great deal further, and consider how it was likely to operate in practice. Having said thus much of the Commissioners, and thus much of the system at present acted upon, he would now call the attention of the House to the proposition of his noble and learned friend. If, when he had stated his opinion, their Lordships were satisfied that the present system worked ill, if they believed the charges against the Commissioners, and if they thought that the 238 measure proposed by his noble friend was likely to meet every objection, they would of course adopt it. But before they came to that resolution, he hoped that they would maturely consider the question. He would now proceed to examine the machinery of the proposed measure. His noble and learned friend wished, first of all, to have a Chief Judge or Commissioner, with a salary of 3,000l. a-year. To him he meant to add three other Judges, or Commissioners, each with a salary of 2,000l. a-year, and six other persons, under the head Commissioners, with a salary of 1,500l. each per annum. These were not Judges, who were to have other duties, and to perform other business; no, they were to be permanent Judges, holding their situations on the same footing as the Judges in Westminster-Hall. Here, then, were ten new Judges, with salaries amounting to 18,000l. a-year. They were only short by two of the number of Judges, who had, for more than a century, transacted all the common-law business in the Courts at Westminster. His noble and learned friend also proposed to appoint some subordinate officers, with a salary of 800l. a-year each; eight Deputy Registrars, with a salary of 600l. a-year each; and ten other officers; the whole annual expense being 6,400l. in this department. He here passed over the Secretary of Bankrupts and his clerks, appointments which also caused considerable expense. In addition, however, to this machinery, his noble and learned friend proposed also to appoint thirty other officers to be selected from the commercial class of society. His noble and learned friend had not stated what salary he meant to grant to these individuals; but it appeared, that they were to be paid as Commissioners, for deciding on particular cases that might occur in trade, and he could only guess at what they were to receive in the way of remuneration. On a former occasion, when his noble and learned friend opened his plan to their Lordships with so much clearness and perspicuity, he stated, that he meant to draw the officers to whom he (Lord Lyndhurst) alluded, from that class of persons who were in the habit of sitting on Special Juries. Now he (Lord Lyndhurst) knew something about that class of individuals, and he was well aware, that they were not disposed to work for nothing. His noble and learned friend must know, that 239 where an arbitration was called for in the city of London, before gentlemen of this description, the charge was much larger generally than that which was made by the Commissioners. He did not state this as matter of reproach to these gentlemen. They were undoubtedly entitled to be rewarded for their labour and trouble, and therefore, he came to this result—that looking to the class of persons from whom those individuals were to be selected, it was impossible to suppose, that they could procure men of integrity and probity, unless at an expense of 700l. or 800l. a year each, which would create a further expense of 8,000l. a-year. He did not mean to say, that for the due administration of justice, it would be improper to expend the gross sum of 40,000l. per annum. To effect such an object, that certainly was not too great an expense. But, at the same time, he thought, that a strong case should be made out to justify such a large expenditure of the public money. There was another consideration connected with this subject, and it was not, in his opinion, a matter of slight importance—he meant the extent of patronage which was attached to the measure. Here were at least fifty new officers to be appointed, in addition to the patronage already in the possession of the individual who, for the time being, held the Great Seal. This too, was done at a time when in every other department of the State patronage was diminished, not increased. So far as his noble and learned friend was concerned, he was sure that he cared not for patronage. Individuals out of office were very apt to attach much importance to patronage; they were very apt to believe that public men thought of nothing else. But he was certain that his noble and learned friend would agree with him, that patronage only added to the burthen and responsibility of office. He was quite convinced that the possession of patronage created more uneasiness and more unpleasantness of feeling than it ever communicated gratification or satisfaction. He believed that his noble and learned friend cared nothing about it; but still they must consider how the world would view such an accession of patronage; and what would be thought of the individual holding the Great Seal who had introduced a measure increasing his own patronage to such a great extent? It was no answer to say that seventy officers were removed, and that that removal 240 only gave the right of appointment to fifty situations—because the former were appointments already made, the latter were appointments to be made hereafter. He confessed, after the best consideration which he could give to the proposed measure, it appeared to him that it possessed no advantage whatever over the existing system. On the contrary, it appeared to him that the new plan would work worse than the old. The duties of the Commissioners, as at present constituted, were very clear and simple. With very little exception, all those duties were of a Ministerial nature. But under his noble and learned friend's Bill the system was more complicated. Under his noble and learned friend's Bill, one of the new Judges was to decide whether a trader was or was not a bankrupt, whilst under the present system, three Commissioners sat for that purpose. Under the plan of his noble and learned friend, if the single Commissioner found a difficulty in deciding, that Commissioner might, he believed, call in the assistance of one or more Commissioners to aid in the adjudication. As the law was now constituted, three Commissioners decided this matter in the first instance, and he could not see why the three Commissioners, under the new Bill, should be better able to come to a proper decision than those on whom that duty now devolved. Then, if an individual were declared a bankrupt, under the existing law he had aright to appeal—to whom? Why, to the Vice-Chancellor, or to the Chancellor himself. When the person concerned appealed to the Vice-Chancellor, or to the Chancellor, every thing else gave way to his application; the case was heard, and decided promptly. And he would say, with reference to the present Vice-Chancellor, as well as to his predecessor, that no men were better calculated to give satisfaction to the suitor. But what did this Bill propose? Why, instead of an appeal to the Vice-Chancellor, or the Lord Chancellor, there was to be a Court of Review. He wished to know whether more reliance was likely to be placed on the decision of this Court of Review, than on the decision of the Vice-Chancellor? He considered the original tribunal—that which now existed—to be at least as good as that which his noble and learned friend proposed. As the law at present stood, a man who was declared to have committed an act of bankruptcy might bring his 241 action to decide whether such was or was not the case. This was a proper and necessary course; because the bankruptcy of a man was, in the first instance, founded on an ex parte statement, it was bottomed on evidence entirely bearing on one side, and given in his absence. But here he had the advantage of an appeal to a Court of Justice. It was tried before Judges of long experience, and the person seeking redress had the advantage of advocates who had long been devoted to the practice of the legal profession. Such was the law as it at present stood. But what had his noble friend substituted for this? Why, an ex parte proceeding. An issue of fact might, it appeared, be tried—before whom? Before a Judge of the Court of Review. But why a mere issue of fact? Why, if a man's property were likely by ex parte evidence to be taken from him, why should there not be, as there was now, an opportunity of trying an issue of fact and of law before one of the Judges in Westminster-hall? Why should this trial take place before the Court of Review? He wished it to be had before the Court of King's Bench. The experience of the Court of Review must, of necessity, be limited; and therefore he wished such cases to be tried before individuals who were hourly and daily engaged in administering the laws relating to property. The plan proposed in this instance by his noble and learned friend was, in his opinion not only not an improvement, but was a substitution of something infinitely worse than that which existed before. But there was another point well worthy of attention. A discretion was vested in the Judge of the Court of Review, whether he would try the case of appeal, as it might be called, or not. A pauper, without a sixpence in his pocket, might, in the ordinary Courts of Justice, have his case brought forward; but it appeared, according to this Bill, that an individual who wished to impugn, by an application to the Court of Review, the declaration that he was a bankrupt, could not proceed unless he gave security to pay the costs. Here was a man who, on an ex parte statement, was declared a bankrupt, and he was to be told, when he wanted to overturn the original proceeding, when he wished to try the validity of the charge of bankruptcy, that he could not do so without finding security for the payment of costs, he having been, in the first instance, 242 deprived of his property. Here again he conceived that the Bill of his noble and learned friend did not operate any improvement whatever. Another circumstance to be considered was one which he ought to have mentioned before, but had forgotten it. The two main points to be adjudicated by the Commissioners were the bankruptcy and the proof of debts. He did not see how this could be better done by his system than it was done by the present Commissioners. Suppose a question of account to arise in a cause in the Court of King's Bench, what sort of persons would be there selected in order to settle the account? Precisely persons of the same description as the present Commissioners. Then, as to the final examination of the bankrupt. The present Commissioners were exactly the description of persons who were employed in the examination of witnesses in the Courts of Law; and here, again, the present system was not only as good as that which it was proposed to substitute for it, but better. Then he objected to this new system on another ground. The whole of the business which at present was done in the Vice-Chancellor's Court was to be done by this Court of Review, which was to be substituted for the Vice-Chancellor's Court. This was no improvement; the plan was inferior to the present system. Sir Samuel Romilly had often said that the best Judge to try questions, both law and fact, was that Judge most conversant with law and the rules of evidence, and most frequently employed in considering and deciding upon them. Now, in this view, the Vice-Chancellor was the preferable Judge, for what was it that was to be substituted for his tribunal? It was a Court of Review, consisting of three Judges, who were to sit not constantly, but pro re nata. Was there any necessity for the appointment of this new Court? There was no arrear in the bankruptcy cases. The Vice-Chancellor kept them all down, and there was no occasion for an inferior tribunal to do the business which he could do so much better. The Vice-Chancellor sat for thirty-five days in the year in bankruptcy, and in that time completely disposed of the bankrupt petitions. This Court was appointed for the whole year, and three Judges were to be employed throughout the year in doing that which the Vice-Chancellor did in thirty-five days. For a great part of the year, therefore, they 243 would be altogether idle. There was another point which ought not to be omitted. The great evil complained of had no reference to the London Commissioners, but to the country Commissioners. And as the measure chiefly affected the London Commissioners, and interfered very little with the worst part of the system, he looked upon it to be extremely imperfect. It began at the wrong end. The great evil was to be found amongst the country Commissioners, and their efforts ought to be directed to the correction of the system in that respect. This was a subject of very great interest and importance. For many years his attention had been attracted to it. In touching upon it they ought to proceed with great caution and consideration, because it was a subject which was intimately mixed up with the law of debtor and creditor. He therefore recommended to his noble and learned friend, and he trusted that he would receive it as a recommendation, that the subject of this Bill, and the whole law of debtor and creditor, should be referred to a Special Committee of their Lordships' House. His noble and learned friend would have an opportunity of giving to that Committee the benefit of his intelligence and of his experience; and the other noble Law Lords would, he had no doubt, avail themselves of the same opportunity to perfect any plan that might be brought before them. By a calm and serious consideration of the subject, they might produce a plan which would be beneficial to the commercial world, and which would be more likely to give general satisfaction than that which had now been proposed.
§ The Lord Chancellor rose thus early, to make some observations in answer to the arguments of his noble and learned friend, and to explain the general nature of his system; and the reason was, that the speech of his noble and learned friend probably embodied all the objections to the Bill, and it was much easier to recollect them and deal with them than if he had to apply himself to the speeches of a great number of speakers. Nothing could be more candid than the spirit and temper with which his noble and learned friend had spoken. His noble and learned friend had well said, that this was not a party question, for it was one in which they were all equally concerned. The great question was, in what manner could the existing evils be best remedied, if evils there were. He 244 fully admitted to his noble and learned friend, that the first question was, whether any evils did exist; and then they had to consider whether the proposed remedy was good and efficient for the purpose. He fully admitted that no change ought to be attempted without good reason and really substantial cause. If evils did not exist at all, or if they existed only in a small degree, then certainly the legislature ought to let well alone, or at most only modify the existing system, and do nothing more. His noble and learned friend had commented on the charges contained in two petitions, and the language in which they were conveyed. One of the petitions was from the Common Council of the City of London, and the other from the merchants, traders, and bankers assembled at the Mansion House. The latter of these petitions he himself had the honour to present to that House, and it had affixed to it the names of most of the distinguished bankers, merchants, and traders in London; and as to the complaints made by them, he might say, that they might be exceedingly good judges of the existing evils of the present system, which was nothing more than saying that they were exceedingly good judges of their own sufferings under the system. They were the best witnesses of the fact of the existence of the evils, since they were the parties who suffered by them; but it was possible that they might not be able to judge clearly and learnedly of the immediate causes of these evils, and still less of the proper remedy: he did not trust to them, therefore, as authority in regard to the remedy to be proposed, but he did consider them as good judges on the question, whether the existing system was a good one, and whether it wrought well. As to that remedy, he had not depended merely on his own experience, or his own reflections, but had had recourse to quarters the most distinguished for wisdom and learning, and long and extensive experience. He had had many interviews and consultations on the subject with those who were much wiser and more experienced than he was himself, and took their suggestions into account along with his own experience and knowledge. He had also availed himself of the assistance of six or seven of the most experienced of the existing Commissioners of Bankrupts, not certainly showing any indisposition to consult that very 245 class of men against whom his noble and learned friend appeared to think that his system was levelled. He had shown no distrust of them, but had consulted the most sagacious and experienced of them, and laid his plan before them, and explained to them its general principles. By them his system had been examined and sifted, and he might say, unsparingly scrutinized. In some points he had yielded to them, and in others, where he thought he had himself greater experience, pertinent to the subject in hand, in a department of the law, he had not yielded to them. In this manner they had gone on, alternately yielding and resisting; and the result was, the formation of the first plan. That was not the plan now proposed to their Lordships. The plan now proposed had been the result of still further communication and consultation with others the most experienced in bankruptcy cases in the Courts of Law and Equity. This he had done before he had been intrusted with the Great Seal, and had continued the correspondence afterwards. Added to this, he had consulted with some of the most eminent Attornies and Solicitors, the most extensively experienced in matters of this nature, and from them he had obtained information as valuable as any that he had obtained from any quarter, especially in regard to the appointment of the official assignees, and as to the disposition of some assignees under the existing system to give preferences to creditors, and in other respects to act contrary to their duty. From them also he had obtained the most explicit and distinct information as to the frauds of assignees and solicitors. He had also consulted many of those who had signed the petitions at the Common Council and the Mansion House, and many other persons who had been the greatest sufferers from the present system, and upon the whole he had been enabled to frame a much more complete system than he had at first formed, and that more complete system was now under the consideration of their Lordships. He had made several changes in the details of the Bill, and had in every way endeavoured to make it better than it was at first: and the Commissioners appointed under the former Bill had carefully investigated every part of it, and made alterations wherever, upon the fullest consideration, they appeared to be necessary; and the result was, the improved Bill now 246 before their Lordships, not differing, in any respect, however, from the principles of the other. His noble and learned friend would therefore perceive, that the Bill had not been inconsiderately introduced. The first of his noble friend's objections related to the attack which he said had been made upon the Commissioners of Bankruptcy. Now he (the Lord Chancellor) quite concurred in all that his noble friend had said in favour of those learned and respectable persons. In every thing that he himself had said respecting the necessity for that Bill, he had endeavoured to guard himself from the suspicion of making an attack upon them. What he objected to was, the system, of which the effects were, in the first place, to give less able Judges, and to render those less able Judges still less efficient for their duties. It was obviously difficult to find at any Bar seventy men fit to perform the duties of those Commissioners. It was also quite obvious, that the number being limited to ten, there could be little difficulty in securing high capability in each of them. Those Judges being so numerous, their appointment became, almost inevitably, a matter of mere patronage; the perfect competency of one individual out of seventy being considered, on every new appointment, as not a matter of very weighty importance. But if the Judges were limited to ten, the person having the appointment would be careful to select the most efficient he could find. He had known instances of the grossest incapability on the part of the London Commissioners, and when he inquired into one of those cases, he found that the two Commissioners who sat upon the occasion, were—one of them an Attorney, and the other a young gentleman not yet called to the Bar. The other two Commissioners, who were competent men, were not present. Still the majority of those Judges were much superior to what was to be expected from the natural tendency of the system under which they were appointed. His noble friend thought, that the fourteen lists were expedient, because they left room for the contraction or expansion of the numbers of attending Commissioners, according to the state of the business. But what else did this contraction and expansion mean, than that the number was much greater than was wanted? It meant that there were seventy Commissioners, and that there was no occasion for seventy. Under 247 the hurricane of bankruptcy, and in the dead calm of stagnation of trade, the number of Commissioners was the same. In reply to the objection that the present Court was too expensive, his noble friend had stated, that sixty Commissions had been worked at an expense not exceeding one farthing in the pound sterling. But the person on whose authority that statement was made, admitted, in his examination by the Commissioners that it was founded in error, and was wholly inaccurate. In the different lists there were different rules. A person going into one room had one manner of justice dealt out to him, and going into the next, found quite a different plan in operation. It was well known, perhaps not to their Lordships, but to every attorney, merchant, and tradesman in London, and also to the House of Commons, that the chances of a fraudulent bankrupt's committal were very different in the different lists; and that one list committed more than all the others together. He did not mean to charge the Commissioners of that list with exceeding their duty; on the contrary, he thought that it might be better if there were more instances of committal in the other lists. In fact, those gentlemen were not protected in the exercise of their judgments like all other Judges. They were liable to an action of damages for false imprisonment, in the same way as common bailiffs were. The consequence was, that in some lists, the Commissioners shrunk from the responsibility of committal, and allowed the bankrupt to pass unpunished rather than risk an action for damages. One other important duty of those Judges was, to find the property of the bankrupt, to detect the fictitious creditor, and to defeat those who endeavour to make the Commission the means of defrauding the real creditor. The system under which those Courts were at present constituted prevented their being fit for that duty. It was well known to be one of the most difficult duties of the Judge or the Lawyer to search, and sift, and analyse the testimony of a dishonest witness. But he could name a score of those Commissioners who were wholly incapable of performing such a duty. He did not blame those gentlemen. The fault was not in them, but in the appointing of them. Many of them were boys taken from Westminster-hall almost the first day they entered it. The Bill before their Lordships would secure the appointment 248 of Barristers of standing, experience, and character: who, being protected as Judges, would be competent to their duties, and would perform them efficiently. He no more blamed the present Commissioners for their inability to discharge their functions of Judges, than he would blame his noble and learned friend (Lord Lyndhurst) for his inability to play upon the fiddle, because he had not practised that art. His noble friend objected to the appointment of the official assignees, on the ground of their high salaries; but that part of the Bill was, in his opinion, the most valuable. There were, at present, some hundreds of thousands of pounds in the hands of assignees, of which not one shilling could be recovered, because the assignees had become bankrupts themselves, or had left the country. To remedy such evils, it was proposed to appoint assignees responsible to the Court, who should take possession of the funds of the bankrupt, not excluding his choice or that of his creditors, from the appointment of assignees, as usual, for the administration of his estate. As matters were managed at present, assignees were frequently known to put off as long as possible the winding up of the bankrupt's affairs, that the money might remain so long in their own hands. Therefore, when he (the Lord Chancellor) inquired into the sources of the clamour which had been raised against that Bill, he found that it came from the trading assignees, one or two attornies connected with the Bankruptcy Court, and one or two public accountants, for all those persons were immediately interested in upholding the present system. His noble friend spoke of the expensiveness of the system proposed by the new Bill. But the expense of that system would be no more than 48,000l., whereas the present system cost between 70,000l. and 80,000l. As to the patronage also, his noble friend knew, that the Chancellor had the appointment of the present seventy Commissioners. Now, this Bill would reduce the patronage considerably, for, instead of seventy, he would have the appointment only of eleven Judges. The chances of new appointments were diminished much more than in proportion to that diminution of number. The present Commissioners had many openings for promotion, but the new ones would have no promotion before them, except to become one of the fifteen Judges 249 of the Superior Courts. The vacancies that would be occasioned by such promotions were averaged too highly at one a year. They could not be more than one in two years. Besides, the Chancellor being obliged to make his choice from so small a circle, inasmuch as he must necessarily select a well-qualified barrister, could not in truth be said to have any patronage at all in the appointment. He would trouble their Lordships with a very few words respecting the charge made by his noble friend, that he was increasing, by the Bill before their Lordships, the patronage of the Chancellor—indeed his own personal patronage. Now, it was acknowledged that the retiring pension of the Lord Chancellor was taken very low, when it was made the same as that of the Chief Justice of the King's Bench—the expenses of the latter Judge being very little compared to those of the Chancellor, who was obliged to take an active part in the business of the State. Those expenses were especially heavy on a man who, like him, had never saved anything. Perhaps it was in consideration of those expenses, and the uncertain duration of the office, whereby the man holding was rendered less able to provide for his family, leaving him at the same time a title to support, that the Lord Chancellor had always in his gift several places with high salaries, which were mere sinecures, and by which he was enabled to provide for his family. One of those sinecures, worth about 9,000l. a-year, had been given by Lord Chancellor Thurlow to a member of his own family, and one of the family still held it. That it was a sinecure would readily be acknowledged, when it had actually been held by no less celebrated a person than Nell Gwynne. There were, besides, the office of Clerk of the Hanaper, and several others, absolute sinecures, which were always given to relations of the persons holding the Great Seal. Amongst those were the twenty-four Cursitors, some of whom received 2,000l. a-year, and the others from 150l. to 500l. a-year. Here, then, was a power of disposing of upwards of 20,000l. a-year, which he (Lord Brougham) had cut off for ever from the Great Seal. The Bill which he proposed might be a bad one. The present system for carrying the Bankruptcy Laws into effect might be excellent. The merchants, bankers, and traders of London, might all be mistaken respecting their own interests. He might have introduced 250 the Bill without submitting it to any competent persons to give an opinion on the subject, to suggest an improvement, or to detect a fault; and the whole measure might be an example of imbecility and presumption. All that might be very true. But it could not be true that he had introduced the measure for the sake of increasing his own patronage, at the very moment that he was cutting from his family the rich provision which they might have found in those sinecures,—when he was depriving himself of all means of providing for them, while he was leaving them a title to support, except the retiring pension, which was less than half the emoluments of the profession which he had exchanged for the Great Seal. He would frankly confess, that whatever other faults he might have supposed his noble friend could attribute to him, he was not prepared to hear a charge of designing to increase the patronage of his office, and of himself personally. Not having been prepared for such an accusation, he trusted that their Lordships would make some allowance if he had not sufficiently repelled the charge. His noble friend approved of the present system, because it gave an appeal to the Vice Chancellor. But it was to be considered, that in the Court of Review, to which the Bill would give the appeal, there would be a Trial by Jury. Now, it was well known that the Court of Chancery was wholly unfit to deal with a question of disputed facts. He himself had found the difficulty of wading to the truth, through a mass of affidavits; for in that Court there was no end to swearing. He had himself seen no less than eighty affidavits of conflicting witnesses on a point of fact. After the first affidavit had been sworn, another was put in in reply, then there came one in rejoinder, and another in surrejoinder. In fact, in the Court of Chancery, there was no end of swearing; and perjury, delay, expense, and vexation, seemed to meet encouragement there. He therefore thought it advisable to take the investigation of disputed facts from the Vice Chancellor's Court, and leave it to a Jury. His noble and learned friend had spoken of the appeal to the Vice Chancellor, and of the manner in which it would be affected by this Bill—c nte ding, that the system ought not to be disturbed; it was to be recollected, however, that the office of Vice Chancellor had only been created for a temporary purpose; that of 251 getting rid of the arrear of business at that time before the Lord Chancellor: but it might so happen (he did not mean, of course, to say absolutely that it would happen) that the appointment of a Vice Chancellor might not be longer necessary, and in that case, what would become of the appeal? Of course it could no longer exist, and in that case the benefit of the change of the system would be fully experienced. Complaint had also been made with reference to country Commissions, and it was unquestionably a most objectionable part of the present system; but it was easily capable of some improvement, and the improvement now contemplated, would at least give to the country the advantages at present enjoyed by the commercial interest in London. The purpose now was, merely to apply the Bill upon the Table to the metropolis, and a district of twenty miles round it, and hereafter, as it was found to answer, it might be extended further; but the machinery was too complicated to be spread over a wider surface, until it was clearly found that it was well adapted to remedy prevailing defects. One of the consequences of the change would, perhaps, be, to lessen the number of bankruptcies, inasmuch as it would put an end to fraudulent, and sometimes to friendly, Commissions; if such were not found to be the result, it would be owing to the circumstance, that not a few who now were discharged under the Insolvent Act, with all its future liabilities, would then give a preference to the new Bankrupt Law, by which they would be freed from further responsibility to their creditors. At least such would, probably, be the effect with honest debtors, who were only anxious to give up the whole of their property to those to whom it justly belonged. Having troubled their Lordships with these remarks in explanation and vindication of the Bill, he would not occupy their attention longer.
§ The Earl of Eldon
said, that in consequence of severe illness, he had been prevented from speaking upon this subject, when the matter was first brought forward. He had, however, observed, from the usual vehicles of intelligence, that the noble and learned Lord on the Woolsack had stated, that he had brought forward this Bill lest, if he had waited longer, like other persons who had gone into the Court with a determination to improve it, he should have found himself so hampered by a continuance 252 in the abuses, as to be able to do nothing. He (the Earl of Eldon) thought it a duty to his country to say, that he would accept no such apology for his conduct. He knew well what had been the practice of the Court for many years before he became a Judge. He had practised long in the Court. It was his duty immediately to set about a correction of the abuses, if he believed them to exist. His opinion was, that such abuses did not exist. He did not doubt, that the noble and learned Lord had taken great pains with his Bill, and had made it as perfect as circumstances would allow, but the great point to be decided in the first instance was, whether it was necessary, and that question the House ought not to leave to the determination of any individual, however well qualified, but should institute a grave and patient inquiry into all the facts before a Committee of its own. The change was extensive and violent, and the least that could be expected was, that no means of acquiring information had been neglected. With respect to the Vice Chancellor's Court, he wished it to be understood, that that Court was not created at his suggestion, but at the suggestion of Lord Redesdale. He considered at the time that the establishment of that new Court would tend to produce difficulties; and he thought, that the opinion which he then entertained had been confirmed by experience. A great deal of misconception had gone abroad with regard to the expenses of the present system, and the exaggerations might be judged of from the mis-statements that from time to time had gone abroad, respecting the emoluments of the Keeper of the Great Seal. While he was in that situation, it had frequently been stated that the income of the Lord Chancellor was 30,000l. a-year; nay, some had gone so far as to assert that it was not less than 35,000l. a-year. The fact, however, was, as he had repeatedly stated, and shown by documents, that the average income of the Lord Chancellor, while he was in office, little exceeded 15,000l. a-year. Difficulties and doubts had arisen out of the fact, that part of the emoluments of the occupant of the Woolsack were derived from the payment of fees—an arrangement, he admitted, highly objectionable. It led to the suspicion that business was delayed or increased for the sake of the fees, and it would be far better that this part of his income should be put 253 upon the same footing as that of the Chief Justices of the King's Bench and Common Pleas. Objections had also been taken to the amount of patronage possessed by the Lord Chancellor; but in this point he in some degree coincided with the noble and learned Lord, recollecting the very uncertain tenure of the office. The noble and learned Lord on the Woolsack was mistaken in supposing that Lord Thurlow had appointed any member of his family to the situation which had been formerly filled by the celebrated Nell Gwynne. The situation originally granted to that lady, had been afterwards granted, from time to time, to a family of great distinction in this country; until, upon its becoming vacant in Lord Thurlow's time, that noble Lord advised his Majesty not to fill it up. Upon Lord Thurlow retiring from office without a pension, his Majesty, in consideration of the eminent services of that noble Lord, granted a situation, by patent, to his nephew, who succeeded to the Peerage. The truth was, that the services of such a Judge could not be adequately compensated, especially by mere wages; and it was not fit, that after they quitted the Woolsack, that the Keepers of the Great Seal should be left in a state of destitution Upon this point he could say, that his own opinion was confirmed by the opinions of Lord Somers and Mr. Burke. After all his experience of the evils of unnecessary change, he must again enforce the necessity of patient inquiry by a Committee, before such a Bill as the present was adopted, or even entertained. It professed to prevent uncertainty, expense, and delay in the proceedings in bankruptcy, but from his experience, he was satisfied, that it would increase uncertainty, accumulate expense, and augment delay. He felt convinced that the change was needless, or even if a change were required, that now recommended from the Woolsack was not likely to be beneficial. He repeated his conviction that if this Bill were carried into effect, the delay and the expense would both be increased almost indefinitely. He objected to the proposition of appointing additional Judges in Westminster-hall, and must say, that the Commissioners of Bankruptcy had laboured under great embarrassment, in consequence of the contradictory decisions of the Judges with respect to their power of commitment. He was far from blaming that list which had been so much censured 254 for its commitments, for he thought that it was the only list which had conscientiously discharged its duty. Notwithstanding what the noble and learned Lord had said about patronage, he could not but think that the patronage of the Chancellor would be increased—at least it would be increased at the present moment to a very great extent. There was another objection to the Bill. The persons to be appointed to these judicial offices in bankruptcy would all be Barristers. Now he thought that the distinction at present existing among the Commissioners ought to be maintained, and while he was in office he had always maintained it. He had always supplied the vacancy, created in consequence of the death or resignation of an attorney, by the appointment of an attorney; and the death or resignation of a Barrister, by the appointment of a Barrister. His reason for doing so was this, that though a portion of the office of Commissioner of Bankrupt was judicial, yet a portion of it also was Ministerial, and required, therefore, the peculiar knowledge and practice of an attorney for its proper discharge. This Bill, also, gave a preference to Common Lawyers, which he thought both unwise and improper. For the discharge of the duties of a Judge in Bankruptcy, the Equity Barristers were fitted by the peculiar nature of their practice. The chief discussions in bankruptcy turned on matters of equity, and, of course, those whose whole professional life had been directed to the consideration of such subjects, were the most fitted to decide upon them. He believed that the eminent persons who had presided in the Court of Chancery during the last 120 years, had entered upon the discharge of their duties in that Court with the firm determination to effect every improvement that could be effected in it; and as none of them had proposed, or recommended such a change as this, it was plain that it was not a species of change which they would be inclined to regard as an improvement. If the noble and learned Lord on the Woolsack would do him the justice to look over his judgments, and the orders which he had made on Acts of Parliament, he would see that, without altering the constitution of the Court, he had paid due attention to the interests of creditors; and he would say, that if creditors would not take as much care of themselves as the Court did, they should blame themselves, and not the 255 Court, for the consequences. Feeling as he did upon this subject, he thought that before their Lordships adopted any decisive measure, they ought to be well assured of the existence of the evil, and of the nature of the proposed remedy; and he, therefore, besought them not to be in a hurry to pass this Bill.
The Lord Chancellor
said, that he thought the noble and learned Lord was somewhat mistaken on the question of qualification for the office of a Judge in Bankruptcy. The Bill gave no preference to Common Lawyers over Equity Lawyers—and he must be a bad Common Lawyer who was not fit to sit as a Judge in Bankruptcy, for the Common-law was directly connected with nine-tenths of the matters that occurred in bankruptcy.
§ Report brought up.