LORD BROUGHAMwould now state the course he intended to pursue in reference to a very important Bill—the Bill for amending the Law of Evidence, and to move the first reading of another Bill which he then proposed to lay upon the table, and which he considered of not less importance—namely, a Bill to transfer the business in Bankruptcy to the jurisdiction of the County Courts. He had already stated, when he laid the first of these Bills on the table, that he would explain the particulars of it to their Lordships when he moved its second reading. One reason for bringing these measures forward at so early a period of the Session was, that he saw no grounds for hoping that, if he deferred the exposition of the dry details connected with this and his other Bill till a later period, he did not think he should find more time or less indisposition to discuss them, than now, when the minds of all men were almost exclusively engaged in the consideration of one great and overwhelming question. But his principal reason for moving thus early in the Session in this matter was, that, as he was delighted to 171 hear, proceedings were now in progress under the sanction of the Crown for amending materially the law of the country, and the different courts of judicature, and for making material improvements in both; and he therefore thought it his duty to lose no time in laying before the House such considerations as he conceived to be correlative to these objects. He would not go further into the measure for improving the Law of Evidence than was necessary to remind them of the Bill introduced and carried by his noble and learned Friend Lord Denman, a few Sessions since, for the purpose of taking away all objection whatever to the admission of evidence on the ground of want of character of witnesses even as established by conviction, and, above all, on account of the interest, be it great or be it small, be it direct or be it indirect, which they might have in the matter in dispute, leaving it to the court or the jury to put their own value on the testimony of witnesses who might be obnoxious to such objections. He might simply state that the object of his measure was to render that Bill complete by carrying its principle into full operation, by giving the parties to a suit the right of tendering their own evidence, and of examining and cross-examining one and another adversely. He would not move that this Bill should be read a second time that evening, but should propose that its next stage should be taken at whatever time should best suit his noble and learned Friend on the woolsack, his noble and learned Friend the Lord Chief Justice of the Queen's Bench, and his noble and learned Friend (Lord Lyndhurst), whom he was now happy to congratulate on his recovery from his recent indisposition. With regard to the other Bill, which he had mentioned to their Lordships, for extending the jurisdiction of the County Courts to cases of bankruptcy, he must now proceed to make a short statement respecting its history, in order that their Lordships might see it was no new measure. When the Bill which he had introduced in the year 1833 for the establishment of local courts throughout England was unhappily lost, it became necessary, a few years afterwards, as we then had no local courts, to extend the new system of administering the bankruptcy law adopted in the London district, where its success had been complete. It had been said at the time that his noble and learned Friend (Lord Lyndhurst) was 172 premature in making that extension, and that he should have waited till a local jurisdiction was established. That was the objection of his noble and learned Friend (Lord Cottenham), whose absence from the country, owing to the state of his health, he deeply lamented. But the answer was obvious: "You have now a system of administering the bankruptcy law in operation in London, which, during the last nine years, has been eminently successful; ought we to wait for nine years more before we extend it to the whole country?" The consequence was, that the London system was introduced into every part of England by Lord Lyndhurst's Act of 1842. Twelve officers were appointed to act as commissioners at salaries of 1,800l. a year; as many registrars with salaries of 800l. a year; and as many ushers with subordinate salaries; and the result was that an expense of 55,000l. a year had been added to the bankruptcy system, and entailed upon the country, and without any objections being urged against it, except by interested parties. Watching anxiously, as he had done, the working of this system for the last eight years, he had heard of little or no objection to it; but he had seen irrefragable proofs of its excellent working, in all the country districts. Thus, first, the seventy commissioners in the London district, who were sometimes called in the profession the Septuagint, were got rid of, and six commissioners, now reduced to five, and hereafter to be reduced by any new vacancy to four, who were men of great eminence in the law, and whose time was entirely devoted to their duties as Commissioners, were appointed in their stead. Then in 1842 the same system was extended to the country. But then, after the experience of seventeen years, a period which he thought might have well been shortened, came first the Act of 1845, appointing local courts, and then the Act of last Session to complete it. No doubt the establishment of County Courts for the recovery of all sums under fifty pounds had produced the greatest satisfaction in all parts of England; and when he mentioned the number of suits that had been decided in them, first, under the Act which limited their jurisdiction to all sums not exceeding 20l., and next under the Act which extended their jurisdiction to all sums not exceeding 50l., he thought that he should convince their Lordships that those two Acts had proved eminently satisfactory in their opera- 173 tion. In the course of the last five years, a million and a half of suits had been tried in the County Courts, and in the course of the last five months, taking the suits for sums between 20l. and 50l., there had been no less than 4,000 tried, being at the rate of 10,000 for the year. He stated this upon the authority of a very sound lawyer, who was now acting as a County Court Judge a person on whose good judgment on the system he could rely, as well as on his accurate statement of the fact. He had asked that learned gentleman what part of these 4,000 suits had been withdrawn from the jurisdiction of the superior courts in Westminster-hall; and his reply was, that no doubt some, even a considerable part of the number, had been withdrawn from those courts, but that by far the greater part would never have been taken there at all, and that they were brought into the local courts on account of the facilities which they afforded to suitors, and on account of the saving of expense and of time with which their proceedings were conducted. Now, in his (Lord Brougham's) opinion, a greater eulogy than that could not be passed on the new system; for, if a large number of these suits would never have been tried at all but for the introduction of it, justice would have been denied pro tanto to the subject; and therefore, he conceived that the extension of the first Act for the institution of County Courts had conferred a most important benefit on the community. He regretted that that Act had not been passed, as he proposed, 17 years ago; for, during all that long interval the benefit which the country was now deriving from it had been withdrawn from its inhabitants. He, therefore, implored their Lordships not to postpone for so long a time, or for an indefinite period, the measure which he was then about to propose. There were three parts of the measure of 1833, which had not been introduced either into the County Courts Act of 1845, nor into that of last Session. First of all, he had proposed in that Bill to give to the County Courts a certain equity jurisdiction, which was not given them in either of the two Acts now in existence. He had also proposed to assign to them many of the powers now exercised by the Masters in Chancery and other subordinate officers in that Court; but that proposition also was not contained in the existing law, except to a very limited extent. Secondly, he had proposed to enable the County Courts to act as courts of reconcilement—a 174 system which worked admirably wherever it was tried upon sound principles, as in Denmark and Belgium; in the former country it had existed for upwards of half a century, and it had stopped four or five parts of the litigation which formerly prevailed, without any compulsion, too, but with the consent of the parties in each case. It was agreed by all his noble and learned Friends at the time that, if the Bill of 1833 passed at all, this important provision should form a part of it. Lastly, it had been proposed in the Bill of 1833 that the local Courts should have all the jurisdiction in matters of bankruptcy; and the result of not acceding to his proposition at that time was, that we had now a system of bankruptcy which cost us an annual expenditure of 55,000l. that might have been spared. What he now proposed to do was this—gradually to hand over all transactions in bankruptcy to the jurisdiction of the County Courts, so as only to have one local judicature for bankruptcy, as well as for insolvency, of which the County Courts now have cognisance. We had now established, by the Acts of 1842 and 1845, two different jurisdictions when one would have sufficed, if local courts had been established: we had a Bankruptcy jurisdiction with twelve commissioners, twelve registrars, twelve ushers, and all the other expenses of the court; then we had the County Courts with their sets of local judges, local clerks, and other officers, requiring an outlay of 90,000l. or 100,000l. more; and yet it was now quite clear that the County Courts might do all the work of these two jurisdictions without any Commissioners of Bankruptcy, without any registrars, but with official assignees, the very corner-stone of the system. The Bill which he was then about to lay on the table was calculated to absorb these two jurisdictions gradually one into another by letting the County Courts administer the business in bankruptcy, as they now did, to every body's satisfaction, in insolvency. On moving the first reading of it, it was not necessary for him to describe the details by which it would accomplish this desirable change safely but yet effectually. The saving to the country would be very great, and would eventually amount to nearly 60,000l. a year; but it could only be effected to its full extent as the existing Commissioners in Bankruptcy made vacancies in their office either by death or resignation, inasmuch as they now held their offices for life, like the 175 Judges. But the sooner the Bill passed the better, as vacancies might happen every hour, and those vacancies might be filled up, and the substitution of one system for the other would thus be indefinitely postponed. Now, as to the question of saving. Taking the whole expense of Bankruptcy, together with that of the County Courts, the entire saving effected by the plan which he proposed would amount to 42,000l. a year; that was to say, supposing there would be no increase of salary to the County Courts Judges, in consequence of the additional duties they would have to perform. If such increase were given to them, the saving, of course, would be diminished; but if they had efficient County Court Judges, it might possibly be fit that they should have some increase to their duties without an augmentation of salary. There was another saving of considerable amount, which was also contemplated. The receipt of moneys in every County Court required an expense of treasurers amounting at least to 14,000l. a year. In the London district the expenses incident to the receipt of fees in Bankruptcy had been entirely done away with by the simplest possible arrangement with the Stamp Office, by means of which, through orders issued by the Commissioners of Inland Revenue, all the proceedings were upon stamped paper, and not a single treasurer was required. Extend this to the County Courts generally, and you save 14,000l. a year. There had been a falling-off in bankruptcy business of late years. He was glad of it; for it was both an indication of the greater prosperity of the kingdom, and a proof of the facilities which the County Courts afforded for recovery of debts, and thereby for the avoidance of bankruptcy. It was also in part owing to the improvements in the Bankrupt law effected two years ago, and which rendered their operation upon dishonest or extravagant traders more stringent. The average number of bankruptcies for the last five years, including the two years of distress in 1847 and 1848, was 1,440; and taking the average of the other five years, excluding the years 1847 and 1848, the number was 1,340, which was a diminution of 606 from the average of the last seven years; and of 400 and odd from the average of the last five years, which might be taken as ordinary years. He had not many more observations with which to trouble their Lordships. He should postpone, as he had already stated, the description of the ma- 176 chinery of the Bill until it reached the Committee, where alone it could be properly discussed. There was, however, one point on which he thought it important that he should still make some observations. There were two modes in which their Lordships might enable the Judges of the County Courts to exercise their jurisdiction in bankruptcy, either, as now in insolvency, and in their general jurisdiction, not fixing them to the spot, or by fixing them to the spot, and making them resident and permanent judges. The objection to their being, as it were, itinerant judges, was the delay which might occur in the first and important proceedings in Bankruptcy in their absence; but this might be obviated by giving the registrar or clerk power to do it in his absence, liable to the reversal of his proceedings when the judge next came to that place in his circuit. The objections to their being made fixed and resident judges was the possibility of their becoming influenced by local intercourse—of their losing the advantages of the superior legal society with which they mixed in Westminster Hall—and of their not having that knowledge of the law which circulated through its courts, and without which every practitioner of the law soon fell behind his fellows. Upon the whole, and after a balance of the difficulties, he was inclined to think that these judges should not be fixed any more than they were at present. This, however, was not a matter on which he had yet formed a final opinion, though he inclined to that which was the inclination also of his noble and learned Friend opposite (Lord Lyndhurst). The noble and learned Lord concluded by moving the first reading of the Bill, expressing a hope that the Lord Chancellor would take charge of it.
The LORD CHANCELLORadmitted that he had received many acts of favour from his noble and learned Friend, but could not accept the last favour which he had tendered him—namely, that of taking charge of the Bill. His noble and learned Friend had much leisure and great facilities for amending the law, which he (the Lord Chancellor) regretted did not fall to his lot. The new Law of Bankruptcy had been amended every year since it was first passed, and the consequence was that neither the suitors nor the Judges could comprehend it. He should be happy to render his noble and learned Friend every aid in his power in improving the law and judicature of this country; but surely his 177 noble and learned Friend would not expect him to promise to take charge of a Bill of which he knew nothing, and of which he had heard a description in a few words now for the first time. It was not quite fair for his noble and learned Friend to prepare the outlines of a Bill, and then to hand it over to others to discover the details by which it was to be made useful in practice. He hoped that his noble and learned Friend would give his own superintendence to his own Bill, and that it would prove more useful than some Acts of Bankruptcy which had recently been enacted.
LORD BROUGHAMsaid, his noble and learned Friend thought this Bill was a mere outline; but the Bill had every detail, and was drawn up exactly as he should wish to see it passed, subject to the doubt he had expressed on one provision, and as having been suggested by Lord Lyndhurst. He wished it to be under the can; of his noble and learned Friend; but he did not wish him to alter a single line of it, though he should be happy to hear his noble and learned Friend's objections, and thankful for his suggestions. His noble and learned Friend had stated that the bankruptcy law was in such a state that no one could understand it, and that in consequence the Judges were not able to administer justice. No wonder that there were delays in the Court of Chancery. In former times Judges were supposed to be too learned and subtle, and that made them doubt; but now it turned out, from his noble and learned Friend's statement, that there was another cause of delay, namely, the ignorance of the Judges—not the fault of the Judges, God forbid!—but the fault of the Legislature, who passed laws that nobody could understand. The result must be injustice. Misera servitus ubi jus vagum et incognitum. Now, he formed one four hundredth part of that House, and, taking the other House, he had only one thousandth, or a twelve hundredth part of the responsibility. His noble and learned Friend said he (Lord Brougham) had introduced a great number of Bills to amend the bankrupt law. He introduced one two years ago which passed their Lordships' House, for the consolidation of the bankrupt law, which was very fully considered, not only by himself, but by a Committee which sat for many weeks, and before which they examined the practitioners of the court, as well as the members of the commercial and trading bodies; so that if they wanted Acts of Parliament that people could 178 understand, he did not know how they could take more pains than they did with that Act. It was very much the worse, as appeared to him, for the alterations made elsewhere; nevertheless, he would fain hope that it was not quite deserving the censure pronounced by his noble and learned Friend, the greatest censure certainly they could pass on a law, namely, that it was unintelligible.
§ LORD CRANWORTHsaid, their Lordships could not at present be in a position to form a decided opinion on the subject, because the Bill depended entirely on the details, and it was a waste of time to discuss it until they had examined those details. He quite agreed with his noble and learned Friend, that the subject was one which, though not so exciting as many others which were engaging the attention of the country, was of deep importance. It had not reference to the subject matter alluded to by his noble and learned Friend as having caused great uncertainty in the law, seeing that it was not a Bill, as he understood it, to alter the law of bankruptcy, but to transfer the administration of it from one set of judges to another. The question was how it was best to be done? Was it best done by certain judges, or would it be better done by other judges? The policy of the transfer was rather statistical than judicial, and was to be determined by details in the execution of it, without which it was impossible to decide correctly upon it. There was one observation made by his noble and learned Friend in which he was anxious to express his entire concurrence, and that was as to the benefit which, up to a certain point, the County Courts had been to the country. These courts had existed for five years, and the number of causes tried in them amounted to a million and a half, or at the rate of 300,000 a year. Now, it was very true that before the Act of last Session, there was nothing in the nature of an appeal from these courts to a superior court, and therefore it was impossible to say how far the public was satisfied with the decisions; but though there was no appeal there were certain occasions on which the proceedings might be brought before the superior court, where, for instance, it was alleged they were exceeding their jurisdiction. Certainly his experience led him to say that the occasions on which applications to superior courts were made were exceedingly small, which had led him to the conclusion that these courts were exceedingly satisfactory. With re- 179 gard to the extension to 50l., there being now an appeal between 20l. and 50l., his own belief was that it would be satisfactory. It was stated that there were only two or three appeals, which was certainly a very small number. He believed that one circumstance which had rendered the County Courts so popular was, that in the proceedings in those courts both the parties to a suit might be examined. What difficulties might arise in adopting such an arrangement in the superior courts, it was not for him to discuss on that occasion; but, unless there were difficulties more formidable than he anticipated, he concurred with his noble Friend in thinking that the question was one which that House would do well to consider; for he believed the adoption of such a principle, if it could be done safely, would go very far to render the superior courts as popular with the country as the County Courts generally were.
LORD BROUGHAMsaid, he ought to mention with regard to the Bill for the examination of the parties, that the answers sent by the Judges of the County Courts to the queries put to them on that subject by the Law Amendment Society were all in favour of it, except one. They admitted that a very clever party had an advantage over one less clever, and a knavish party had an advantage over an honest person: this was inevitable, and it applied to a party's witnesses as well as to himself; but, upon the whole, those learned judges were clearly of opinion that the good greatly preponderated over the evil.
§ Bill read 1a