Lords Sitting of 30 July 1858

MINUTES.
PUBLIC BILLS.—1ª Bankruptcy and Liquidation, 1858.
3a Militia Pay; Militia (Service Abroad) Act Continuance; Militia Act Continuance (No. 2); Corrupt Practices Prevention Act Continuance; Judgments (Ireland) Act Amendment; Civil Bills, &c., (Ireland) Act Amendment; Consolidated Fund (Appropriation).

LEGAL, REFORMS—GRAND AND COMMON JURIES.—NOTICES.
LORD CAMPBELLsaid, he wished to give notice of two Bills that he proposed to bring in at the commencement of the next Session of Parliament, and he made this announcement with the view of drawing public attention to the subject, and in the hope that he might have advice and assistance in framing the measures, which advice and assistance he should most respectfully and gratefully acknowledge. The object of the first measure was to prevent the practice of clandestinely going before a grand jury and preferring bills of indictment for perjury, conspiracy, and other offences, without any inquiry before a magistrate in the presence of the party accused, who ought to have an opportunity of defending himself. The practice had sprung up of going at once before a grand jury and preferring bills of indictment for conspiracy, perjury, and for obtaining money under false pretences, for which charges there was not the slightest foundation; and grand juries were sometimes induced, behind the back of a party, to find a bill, upon which a warrant was obtained, and the party was imprisoned until his trial, or until he found bail. Under this Bill there would be no such prosecutions without appearance before a magistrate, or the consent of a Judge. The other Bill he proposed was, to deal with a rule which had existed from time immemorial, and it was a matter which he approached with very great diffidence. The rule he referred to was that which required the unanimous verdict of a jury. He had of late experienced great inconvenience on this subject. Jurors were very different in their minds, and they sometimes would not defer, not merely to the Judge, but even to the opinion of the large majority of their own body. What he should propose was this—not that they should be governed by a bare majority, but that if, after certain deliberation by the jury, they all agreed except one or two of them, then the verdict of those who so agreed should be considered as tantamount to a verdict of the whole twelve—still subject, of course, to be reviewed by the Court, and to be set aside if necessary. In several cases lately before

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him, there had been only one or two discontents, and he had been obliged to discharge the juries. The law was very defective on this subject, and he proposed to introduce a Bill to remedy the defect which he had pointed out, by allowing the opinion of the great majority of the jury to be acted on.

ST. PAUL'S CHURCH-YARD.—QUESTION.
THE EARL OF HARRINGTON: My Lords, in passing by St. Paul's this morning, I saw a triangular piece of ground on the east end of the churchyard, placarded "To be let on a building lease." Supposing this barbarous measure carried out, it would mask the only fine view of two sides of the noblest temple ever raised for the worship of God. I, therefore, give notice that, on a future day, I shall put the following question to Her Majesty's Government:—
"The Earl of Harrington to put a question to Her Majesty's Government, concerning a plot of ground at the east end of Saint Paul's Churchyard, which is advertised and placarded to be built on, which, if carried out, will mask a fine angular view of two sides of that magnificent building."
After having put this question on the Record of the House, I learnt from Mr. Richardson, the distinguished architect engaged on my Brompton estate, that great efforts had been made by artists and others to prevent these buildings being erected, but that all appeals had proved hopeless, for the estimated value of the plot of ground was £60,000; and one acre of land opposite the Bank of England had been estimated at £1,000,000 sterling. I said it mattered not, for the Corporation, with a noble generosity, had given up a portion of the said ground in front of the Exchange, and the country would not allow St. Paul's to be bricked up. I allowed this question to remain on the Notices of the House for some days, in order that it might command the attention of the House and the country that, on the 28th July, I would put the question to the Prime Minister.
THE EARL OF DERBYrose and said, I entirely concur with the noble Earl in his wish to prevent these buildings from being raised, but the land was valued at £60,000, and I have no power to stop their erection.
THE EARL OF HARRINGTON: The remarks made by the noble Earl on the mere announcement of my intention to put the question were very discouraging.
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I am aware, indeed, of the great sacrifice the Corporation was called on to make, but I feel confident, first, because I know the magic power and influence possessed by the noble Earl; and secondly, because from experience I anticipate that the Corporation is ever ready to make great sacrifices for the public good. I hope, therefore, that the noble Lord will not consider me presumptuous in putting the question on the day announced. Just previous to my putting the question on the 28th of July, the Earl of Derby had the kindness to place a plan in my hands, and told me that the Corporation had agreed to make a great sacrifice, namely, to build only on one half of the open space, so that a fine angular view of both sides of the Cathedral might be seen from the unoccupied spot. Having been privately and unexpectedly favoured by this communication, I shall limit my remarks.
My Lords, agreeable to notice given, I now venture to put a question to Her Majesty's Government. I solicit the noble Earl of Derby's powerful influence to prevent a piece of Ground at the East end of St. Paul's Church Yard, from being built on, and thereby securing the only fine view of the most sublime Temple ever raised to the glory of God and of our Protestant faith—for there it is that the open Bible reigns and universal charity is preached. I do well remember many years back, passing St. Paul's Cathedral in company with the famous Marquess of Hastings. He told me that Charles Fox had intended to have moved Parliament to pull down a part of the buildings on the Thames side of St. Paul's, but that a change in the administration had prevented it. My Lords, the thoughts of illustrious men should be recorded in history, fixed in our memories, and acted on. I call, therefore, on the noble Marquess of Lansdowne, the friend of Charles Fox, to assist me in this work. Depend upon it, nothing would so much tend to embellish London, and to promote religion and the arts, as the opening of St. Paul's to the constant gaze of three millions of its inhabitants. I have seen many fine buildings—St. Peter's, at Rome; the Domo, at Milan; the Cathedral, at Cologne; the lovely Targe, in British India; and at Athens, the noble Parthenon; but after all, St. Paul's is the wonder of the world. To preserve the fame of the great dead is a sacred duty. Now, Sir Christopher Wren was one of the foremost men

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this country ever produced; not inferior to Michael Angelo, as scholar, mathematician, architect, and artist of high classical taste. We are, therefore, bound to protect the fine monument he has erected to immortalize his fame.
THE EARL OF DERBYsaid, that he had applied to the Lord Mayor to ask what was about to be done in this matter. He had been favoured by his Lordship with a plan from which it appeared that only half the site to which the noble Earl referred was to be built upon; and as the building to be erected would have a semi-circular front, the view of the cathedral would be very little interfered with. He thought that great credit was due to the Corporation of London for their conduct in this matter. The piece of ground in question had cost them £90,000; and by surrendering one half of it, with the advantage of a double frontage to St. Paul's and Cannon Street, they had sacrificed no less than £45,000 to £50,000 for the public convenience.

PRIVATE BILLS—THE STANDING ORDERS

  STANDING ORDERS AMENDED.
  Order of the Day for taking into consideration the Standing Orders relative to Private Bills, in order to their being amended, read.
  LORD REDESDALEproposed several new Orders which he believed would economize both time and money, and facilitate the progress of bonâ fide schemes through Parliament, while they would afford ample security to the public, and to all persons concerned.
  LORD STANLEY OF ALDERLEYexpressed his approbation generally of the proposed Orders, which he believed were in conformity with the recommendations of a Committee of their Lordships' House.
  LORD CAMPBELLhoped there was nothing in the Amendments to confirm the doctrine lately stated by a noble Friend of his in the other House (Lord John Russell), that the House of Commons was the Supreme Power in the State, simply because it possessed the power of the purse. It might as well be said that the Crown was the supreme Power, because it could make war and peace, and could cede the Isle of Wight to the Emperor of the French if it chose; or that their Lordships were, because in their judicial capacity they could rule that the second son, and not the first, was the heir to his father.
  Motion agreed to.
  Amendments made accordingly.

  BARONIES IN ABEYANCE.
  LORD REDESDALE, in calling the attention of the House to the return of Baronies called out of abeyance presented on the 19th instant, said, he considered this subject one well deserving of the consideration of their Lordships. There were, he believed, considerably more than 100 Baronies now in abeyance. Of late years it had been the practice for persons claiming Baronies that were in abeyance to present petitions praying that their claim might be investigated, in the hope that if they made out a clear case of their descent from the female co-heir, the Crown would exercise its prerogative by determining the abeyance in their favour. The question was one of great importance in relation to the judicial business of that House. The investigations extended over a long period, an immense amount of evidence was produced, and a large portion of time was occupied to the prejudice of suitors. The practice of calling peerages out of abeyance was far from being an ancient one, and no precedent is to be found for it under any of the Plantagenet or Tudor Sovereigns. The first case occurred in the reign of James I., being that of the Barony De Spenser, in 1604, when this prerogative was exercised in furtherance of a gross job. In that instance, the proceedings were of a very singular character. The Lord Abergavenny died, leaving an only daughter, and the question arose whether the title descended to this lady or to the heir male. The opinion of the Judges was certainly in favour of the descent to heirs general. The House of Lords, unwilling to separate the title from the estates, and from the family of Neville which had long held it, addressed the Crown, stating that they considered both worthy of the Peerage and suggesting that the Barony of De Spenser might be called out of abeyance in favour of one. The King acceded to the proposition, and, by vote of the House, the Barony of Abergavenny was assigned to the heir male, and the Barony of De Spenser to the heir general; but so little was any principle of law attended to in this case, that the House might have arranged the other way, had it been pleased so to vote. In the reign of Charles the First one Barony was called out of abeyance; in that of Charles the Second, two; in that of George the Second, two; in that of George the Third, eight; in that of George the Fourth, one; in that of William the Fourth, two—Berners and

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  Clifford. In the present reign seven Baronies had been already called out of abeyance—only one less than the number called out during the whole of the long reign of George the Third. The number from the commencement of the practice down to the present day was only twenty-four. No one could be more sensible than he was of the advantage of ancient names to the peerage, and he believed all their Lordships rejoiced when the title of Earl of Shrewsbury was restored to a great historical name. Little objection can be urged to the practice when exercised in favour of Baronies which have for centuries been represented in the House, and which have only been in abeyance for a limited period. But the case assumed a different aspect when they had under consideration Baronies of very ancient date, which had for a long time been without any representative in that House, and the very names of which were unknown except to antiquaries and persons who took a special interest in such matters. The result was, perhaps, that the person in whose favour the abeyance was terminated was placed in a position in relation to the old Baronies which appeared hardly fair, their Lordships being, of course, aware that in the reign of Henry VIII. the long contest on the subject of precedence was decided by an Act of Parliament, declaring that precedence should be determined by the order of creation. The Grandison peerage, the claim to which had recently been decided, was in abeyance for 482 years. Only two of these Lord Grandisons ever sat in Parliament—the last in the reign of Edward the Third. The Lord Grandison who is known historically in the time of Charles I., and of whom such an interesting character is given by Clarendon, was an Irish Viscount of the Villiers family, whose title still exists in his collateral relative, the Earl of Jersey. If this abeyance should be terminated, the effect would be that the Lord Grandison entering the House as the third Peer ever summoned in right of that Barony, would sit before the 18th Lord Stourton, the 19th Lord Clinton, the 21st Lord Grey de Ruthyn, and the 22nd Lord Dacre. He would not detain their Lordships with any further remarks. At that period of the Session he would not ask their Lordships to take any positive step. It was, indeed, matter for consideration whether any step should be taken, and whether they should not look to the effect which discussion might produce on claimants.
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  The noble Lord, having moved that the Return of all Baronies called out of abeyance to the present time, stating the number of years the abeyance had continued in each case, and the date of the termination of the same, delivered on the 19th instant, be printed (which was agreed to), gave notice of his intention to move next Session the following Address to Her Majesty relative to Peerages that have been in abeyance for a long period of years, in order that it might appear on the Minutes, and the House have an opportunity of considering the subject, without pledging himself to bring it forward:—
  "That an humble Address be presented to Her Majesty, showing,
  "That within the last century several Petitions have been presented to the Crown by Persons claiming to be Co-heirs of Peerages for many hundred years in abeyance; which Petitions have, according to ancient custom, been referred to the House of Lords to report thereon:
  "That the laborious investigations consequent on such reference necessarily occupy much of the time which would otherwise be devoted to the Judicial Business of the House, which is thereby interrupted to the inconvenience of the Lords and with injury to the Suitors:
  "That until the period referred to the Peerages called out of abeyance were few in number, and only in favour of Persons inheriting through immediate and well-known descent from the former holders of the said Peerages; whereas, in many cases of later date, that inheritance, from the long duration of the abeyance, has become remote, indirect, and generally unknown, until proved by the evidence brought before the House:
  "That the earliest precedent to be found for calling a Peerage out of abeyance is neither very ancient nor altogether free from the objection which necessarily attaches to any act done for the first time to meet a particular case, being that of the Barony of De Spencer, the abeyance of which was terminated by King James the First in 1604, in order to carry out the amicable arrangement suggested by the House of Lords for the purpose of relieving themselves from the duty of deciding in favour of One of the Two Claimants of the Barony of Abergavenny:
  "That an undue precedence appears to be given to the person in whose favour an abeyance for many generations is terminated over other barons of ancient descent inheriting their titles through a long series of ancestors; thus, in the first case referred to, when in 1764 an abeyance of 358 years was terminated, The Lord Botetourt then summoned sat as Third Lord only of that name, and yet took precedence before the Seventeenth Lord Audley and the Fifteenth Lord Stourton:
  "And humbly praying Her Majesty, that Her Majesty will be graciously pleased to consider whether it is expedient to adhere to the established custom of referring all Petitions of Persons claiming Peerages to the House of Lords in any case in which it shall appear from such Petitions, or any Report of the Attorney General thereon, that the Peerage claimed is in abeyance, and has

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  been so for more than Years; and that Her Majesty may be further graciously pleased to act in relation to such Peerages in such manner as may appear expedient to Her Majesty:"
  LORD CAMPBELLsaid, that the only remedy seemed to be to declare that after a peerage had been for a certain number of years in abeyance it should not be claimed. Otherwise right must be done; and their Lordships could not refuse a claimant his rights by saying that it was inconvenient to do him justice. He did not think the rights of the peerage would be impaired if it were laid down that a peerage should be no longer claimed after it had been 100 years in abeyance; but the only way to make Baronies in abeyance unclaimable would be to pass an Act of Parliament for that purpose.

  TELEGRAPHIC COMMUNICATION WITH INDIA.—QUESTION.
  LORD WODEHOUSE, in rising, pursuant to notice, to ask Her Majesty's Government their intentions respecting the establishment of telegraphic communication with India, said, that three distinct lines of communication had been proposed, in what he might call the western portion of the line, of which he would only say that many of the objections originally made to the line from Ragusa to Corfu and Alexandria seemed to have been removed, if he rightly understood the last proposal made by Her Majesty's Government to the Austrian Government. In his opinion it was desirable that as many of these lines should be constructed as possible in order that we might have several independent means of communication with India. In the Eastern portions of the route our choice seemed to lie between two lines—one from Bussora to Kurrachee, and the other along the line of the Red Sea. The efficiency of the first depended upon the Turkish Government, and he was not convinced that it would be a satisfactory mode of communication with India, the main objection being that the line was at the mercy of the Arabs who inhabited the wild country through which it passed. It was said that the telegraph was carried through districts in India where the tribes were quite as wild, but there was a great difference between the Governments of Turkey and India. It was true that the safety of this line might perhaps be secured by subsidizing the Arab tribes, and if the line were being made by an English company, the Arabs might have been subsidized by them; but at present the Turkish Government were con-
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  structing the line, which would therefore be an object of jealousy to the Arabs, and the Ottoman Government might not have the influence necessary to maintain it. If the Turkish Government could succeed in making the line, it was very desirable that it should be constructed; yet, of the two, the line by way of the Red Sea seemed most likely to form an efficient mode of communication with India. The objections were principally of an engineering character. [A noble LORD: Jeddah?] The Arabs on the Red Sea might be unfriendly, but the line would be carried along the bottom of the sea. The engineering difficulties in the Red Sea being surmounted, he believed there would be no great difficulty in carrying the line from the south-east end of the Peninsula to Kurrachee or Bombay, and this he had no doubt would be the most satisfactory and secure mode of communicating with India. The question was, how this line was to be made? He believed that the proper course would be for the Government to make it at the public expense. They would then hold in their hands the key of the communication between India and Europe. It was not very creditable to the energy and enterprise of this country and of the Government that, at a time when telegraphic communication with India was of vital importance to the interests of this country, not only was no line in course of construction, but no project had been adopted which promised the speedy execution of a line of telegraphic communication; and he wished to know what were the intentions of the Government with regard to such communications.
  THE EARL OF DONOUGHMOREsaid, he quite agreed with the noble Lord in the importance of the subject, but he was unable to give him any special information that had not been already laid before Parliament. It was, no doubt, desirable that as many lines should be made as possible, but it was important that there should be one line, and the question was, which line of telegraphic communication with India could be secured in the shortest time. When the line of the Austrian Government from Ragusa to Alexandria should be completed there would be a telegraphic communication from London to Suez, because a line now existed between Alexandria and Suez. Unfortunately the Government had not been able to make an arrangement with the Austrian Government with regard to this line. There were some points in dispute between the two Govern-

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  meats, and no absolute agreement had yet been come to. The telegraphic communication between Constantinople and Bussorah was to be made by an English Company, which had obtained the consent and support of the Ottoman Government. He admitted that portions of the line might be exposed to the attacks of hostile Arabs; but he believed that between Constantinople and Mosul no such difficulties would be encountered. The danger lay between Mosul and Bagdad, from the latter of which places it was intended to carry the telegraph in the bed of the Tigris to Bussorah, and thence by a submarine cable through the Persian Gulf to Kurrachee. For his own part, he was disposed to think that the route by the Persian Gulf was preferable to that by the Red Sea. In the first place, it was much shorter; and the experience with the Atlantic cable hardly warranted the anticipation that a submarine line could be laid down for so great a length as that of the Red Sea. In addition to this the depth of water in that sea was very various, and its bed was full of coral reefs. The Persian Gulf presented none of these difficulties. There were no great inequalities of bottom, and no coral reefs; and the gulf was studded with islands, on which, as they were under the authority of our ally the Imaum of Muscat, we might easily establish repeating stations, and over which the telegraph might be carried on poles—an advantage which we should not possess in the Red Sea. There was under the consideration of the Government another project—namely, to lay a submarine cable from the southern coast of England to Gibraltar, from Gibraltar to Malta, and thence to Alexandria, so that the whole line might be under our own control. This was a subsidiary project, and one which could not be expected to be carried out immediately; but, under all the circumstances, we should, within a reasonable period, have established telegraphic communication between London and Bombay and Calcutta.
  LORD STRATFORD DE REDCLIFFEwas understood to say, that the importance of having a telegraphic communication with India was so great that it did not require any observation to prove it. It was very satisfactory to find that it was in the contemplation of the Government to give every encouragement and offer every facility to parties promoting this object, and that would in the end be greatly for the advantage of the Government. The object most desirable was that this country
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  should possess a telegraphic communication with India which should be quite independent of every other country, and which should not be subject to disturbances that might possibly take place. As to the line suggested to be constructed through the Austrian territories, he was afraid the noble Earl (the Earl of Donoughmore) had not taken into consideration some of the circumstances and difficulties connected with that line. Upon the whole, it appeared to him, from having had some acquaintance with the circumstances, that the Government should encourage the project for a telegraphic communication to India, by way of the Red Sea as well as by way of Constantinople.
  LORD STANLEY OF ALDERLEYsaid, that if he was rightly informed, the Directors of the East India Company had consented to take under their own management the construction of the submarine line from Bussorah to Kurrachee, and probably the new Indian Government would adopt a similar course. For his own part, he was inclined to think that, notwithstanding the danger from the Arabs, which there was reason to hope would be diminished by the presence at Bagdad of so energetic a governor as Omar Pasha, the line by the Persian Gulf would be the best of those proposed. At the same time he agreed with the noble Lord, that it was desirable that we should have more than one line of communication with India. The question then arose how we could best communicate with Alexandria, whether directly from Malta, or by means of the Austrian line from Ragusa to Corfu. If he understood the noble Earl rightly negotiations were still pending with the Austrian Government as to our use of the last mentioned line, and nothing had yet been settled. In the event of the telegraphic line in the Mediterranean going through British possessions, he trusted that the arrangements would be such that the whole line would be in the hands of the English, and no part of it in the power of any foreign Government. If the attempt to lay the electric cable in the Atlantic again failed, and the Agamemnon should return home with a sufficient length of wire for the purpose, he would recommend that she should be at once sent out to lay it down between Malta and Alexandria. This could be accomplished in a very economical manner, and he should be glad to see such a line in the possession of Her Majesty's Government. It had always seemed to him a mistake not to make telegraphic communica-

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  tion part of the postal system of this country. Those lines could be constructed and maintained at a very moderate expense, and made even to contribute to the national resources, besides giving a security in the transmission of important messages which could never be so completely attained through a private Company even when it was composed of British capitalists, and certainly could not equally be relied upon when in the hands of foreigners, and much less when under the direction and control of a foreign Government.

BANKRUPTCY AND LIQUIDATION (1858) BILL.

  BILL PRESENTED. READ 1ª.
  THE LORD CHANCELLOR, on rising, according to notice, to call their Lordships' attention to this subject, said, that though there was a very wide-spread feeling in favour of some Amendment in the law of bankruptcy, yet the opinions entertained as to the mode in which that Amendment should be made were various and conflicting. Any one, therefore, who undertook the task of reforming this branch of the law must expect to be besieged on all sides by suggestions from practical men and theorists, from merchants and lawyers, and from debtors and creditors, all of whom were entitled to be heard on such a subject. Under these circumstances it was, perhaps, less a matter of surprise that his learned Friend the Attorney General, in the midst of his multifarious occupations, should have been so long in framing a measure on this important question than that in the end he should have been enabled to produce a Bill in a form which might be submitted to their Lordships' approval. Nor was it to be wondered at if, after the measure had been prepared by the industry and ability of his learned Friend, those who were to be responsible for it should, while assenting generally to its leading features, yet object to other—and those not unimportant—parts of it. The difficulties which surrounded the subject could not be better exemplified than in the history of preceding legislation on this subject. In 1849, a Bill to consolidate the bankruptcy law was introduced, and after the most careful consideration passed under the auspices of Lord Brougham, to whom the country was greatly indebted for his services in the amendment of this as well of other branches of the law. Not more than four years afterwards, however, defects seriously impairing the efficiency of that Act were discovered in its practical work-
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  ing, and a Commission, at the head of which was my right hon. Friend the present Home Secretary (Mr. Walpole), was accordingly appointed in August, 1853, to inquire into its operation. In April, 1854, the Commissioners made their Report, recommending various alterations in the law, some of which had since then been carried into effect. Many of their other suggestions, however, had not yet been adopted, and some of them were embodied in the Bill which he was now about to lay on the table. He was not presumptuous enough to anticipate a complete acquiescence on the part of their Lordships in the Bill in its present shape. It had been said by Archbishop Whately, with that strong sense which distinguished all his writings, that there never was, and never would be any plan proposed or executed to which there might not be strong and even unanswerable objections urged, and unless they looked at the objections which might be put into the scale on the other side, they never could advance a single step. He, therefore, anticipated objections to several parts of the measure. He invited friendly, and even hostile criticism, because the question was not a party one, and the earnest desire entertained on all sides must be, to make whatever measure was ultimately passed as perfect as possible for its purpose. He now wished rather to point out the leading principles on which the Government meant to proceed in regard to this important subject than to ask their Lordships to agree to details which were both numerous and entitled to mature consideration. It would be found that the Bill combined Amendment with consolidation. He believed it was a most important consideration, not only with regard to this measure, but with regard to all measures for the Amendment of the law, whether it was desirable that these two objects should be united in the same Bill, or whether it was advisable to pursue the course which had been adopted by their Lordships with regard to the Copyholds Amendment Act, in respect to which the Amendments had been first considered and adopted, after which the consolidation of the Copyhold Acts took place. His impression was, that it was the more convenient and desirable course, in the first instance, to deal with the Amendments, and having introduced the Amendments which were deemed necessary, then to bring in a Bill for the consolidation of the law. His intention was to give their Lordships a mere index of the present Bill instead of a

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  minute description of its details. Supposing the question were put at the outset, what would be the most desirable Amendment of the bankrupt law, and that which would be most acceptable to the commercial community, he would refer their Lordships for an answer to the important petition he had lately presented from no fewer than 4,000 merchants and bankers of the City of London, who put prominently forward their earnest wish that some legislative sanction should be given to the arrangement of debts by liquidation under the superintendence of inspectors. In that suggestion lay the principal key to the measure which he was about to introduce. There were provisions in this Bill which would enable creditors to avoid going through the expensive course of proceedings in the Bankruptcy Court in which, as their Lordships knew, there was a percentage upon the estate of every insolvent debtor who went into the Court, and in which the creditors had very little power over the proceedings, which were entirely under the control of the official assignee. By the provisions of this Bill either the creditor or the debtor might proceed to the Court of Bankruptcy, and there petition for an order with a view to liquidation. When the petition was presented the debtor immediately received a protection from the Court, and was bound instantly to prepare a schedule of his debts and assets. A meeting of creditors was then to be called within three or four days, at which meeting the creditors were to decide whether the estate of the bankrupt should be wound up by means of liquidation, and if so, in what manner; and if three-fourths in value and number of the creditors agreed that the estate should be wound up in that manner the agreement should be binding on all of them. They might then proceed in the Bankruptcy Court to obtain an order of liquidation in the manner agreed upon between them, and to appoint inspectors, and the debtor might be called upon to assist. The whole matter went on completely under their control and management; but they were not confined to the particular arrangement which had been agreed upon, because if, in the course of the investigation of the affairs of the bankrupt, it should be found that a different arrangement was more advisable, then they were to be at liberty to change the arrangement, of course with the consent of the majority of the creditors; or if the debtor should turn out to be refractory or if for any other reason it should be
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  thought desirable that the affairs should be wound up in bankruptcy, they might abandon the arrangement altogether and proceed to ask for an adjudication in Bankruptcy. So that in this manner the whole affairs of the bankrupt would be completely within the power of the creditors. There were other provisions of minute detail, which would enable this machinery to work most completely and satisfactorily. Those provisions would not in the slightest degree interfere with the mode of winding up the affairs of an insolvent debtor which was now very much resorted to—namely, by deeds of arrangement and composition. That he regarded as a most important feature in this Bill. Then the question arose, how were they to deal with non-traders? At times a desire had been expressed that all distinction between traders and non-traders should be abolished, and that both alike should be subject to proceedings in bankruptcy. He had very great doubts whether it would be desirable to abolish that distinction; as at present advised, he did not think it would be advisable; but, at the same time, he thought it was proper that where a person who was not in trade had incurred debts which he was unable to pay, and where he went on wasting that substance which in justice should be distributed among his creditors, they ought to have the power of enforcing a just and honest distribution of his effects. It would accordingly be found that provision was made for enabling the creditors to compel a liquidation of the debts of non-trading debtors by means of the machinery provided with respect to traders. But that provision was guarded in a certain way, and for this reason it appeared to him that it would not be advisable, where a debt was merely owing, that the creditor should be able to go at once to the Bankruptcy Court and insist on the non-trading debtor being brought into the court and the whole of his effects being distributed in satisfaction of his debts. That provision was, therefore, thus guarded:—Where a creditor had a judgment upon which he could issue execution, or where there had been an order or decree of a Court, for the payment of money which had been served upon the debtor and had not been paid at a certain time, then the creditor might go to the Bankruptcy Court and present a petition for liquidation and obtain an order, whereupon the non-trading debtor was brought within the jurisdiction of the Bankruptcy Court and the machinery of this liquidation. In that manner he would

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  be compelled to do justice to his creditors, which, if he was an honest man, he would be disposed to do without the necessity of having recourse to these measures. There was also this provision—that a person who was not a trader might, if he pleased, voluntarily submit himself to the proceedings of the Bankruptcy Court. There was another subject which, as their Lordships knew, had occupied a great deal of public attention—namely, the propriety of some measure for administering in the Bankruptcy Court the estates of insolvent debtors after their decease. There would be found in this Bill various clauses which were familiarly known as "dead men's clauses." The subject was full of difficulty. It was very difficult indeed to know under what circumstances it would be desirable that the Bankruptcy Court should have the administration of the estate of a deceased debtor instead of the Court of Chancery, which had now jurisdiction to administer or distribute the estate through the medium of a creditor's suit. Their Lordships were aware that where there was an adjudication against a debtor in bankruptcy, and he died the next day, the Bankruptcy Court, having possession as it were of his property, could administer it after his death. And therefore this Bill provided, with regard to the effects of a deceased insolvent debtor, that if there had been an act of bankruptcy committed a month before his death, and if there were an application for adjudication within a month after his death, the Bankruptcy Court should then have the power of administering his property. There was also in this Bill an important provision as to the mode of dealing with partnerships where a firm became insolvent. It was proposed to treat the firm itself as a person, and to allow a fiat in bankruptcy to issue against the firm in the same manner in which it might issue against individual partners, and to apply to it the system which existed with regard to corporate and quasi-corporate bodies, so as to enable the creditors to compel individual partners to satisfy the joint liabilities of the firm. At the same time that this was a new system it would not interfere with the old one as to insolvent individual partners where the firm itself remained solvent. The subject of joint-stock companies had of course occupied a great deal of public attention. Their Lordships were aware that those companies were amenable to the bankruptcy laws, but that the law relating to them could hardly
  2298
  be deemed a part of the bankruptcy code, because they were governed by Acts of Parliament relating exclusively to them. The law provided for the winding-up of joint-stock companies by the Court of Chancery, and for the administration of their effects by the Court of Bankruptcy. There had been a great contest between the authorities upon that subject, and the Legislature had endeavoured to remove all doubts upon it by bringing the two streams, as it were, into one receptacle. It was proposed to take away the business of winding up from the Court of Chancery, and to confer it upon the Bankruptcy Court. He believed that would be deemed upon the whole to be a very desirable alteration. It was proposed that the Bankruptcy Court should have, in addition to its existing powers, all the powers which existed under the Winding-up Acts, and that joint-stock companies should have the same facilities with regard to the liquidation of their debts as was afforded in the case of debtors and creditors in the manner already mentioned. If his noble and learned Friend Lord Brougham were then in the House he would probably say, "What are you going to do with the County Court Judges? Are you going to give them any increased jurisdiction on this subject?" His answer was, that he thought that the County Courts hardly possessed the machinery which rendered it desirable that they should have a more ample jurisdiction in these matters than they had at present, and he did not propose, therefore, to throw any portion of this business upon them. In the petition to which he had already referred, from the merchants and bankers of London, it was suggested that all distinctions between insolvency and bankruptcy should be abolished, and that traders and non-traders should be subjected to one common law. He did not know that the matter was quite ripe for that proposition; but he proposed that the vacancies which took place in the Insolvent Court as they occurred should not be filled up. He believed that the process of liquidation provided in the Bill would reduce the business of the Courts very considerably, and that in a short time they might be able to put an end to the Insolvent Court altogether, one Court being sufficient for the business which it would then have to transact. The Bill further provided that a good deal of the business of the Bankruptcy Commissioners, being purely of an administrative character, should be transacted in chambers, where it might be

  2299
  conducted more conveniently and less expensively than in open court. There were some of the officers of the Court to whom it was necessary to advert. His noble and learned Friend Lord Brougham had been extremely desirous that the official assignees should be paid partly by salary and partly by fees, and had objected altogether to their being paid by salary alone. The Bill did not at present touch that question, because it was quite uncertain what the effect of the proceedings for the liquidation of the affairs of an insolvent debtor might be, and it was very possible that it might remove so much of the business from the Bankruptcy Court as to leave the official assignees without sufficient emolument from fees. It would be time to consider this subject more in detail when they knew exactly what would be the amount of business. With respect to the brokers, they were not appointed under the provisions of any Act of Parliament, but were selected by each Commissioner to attend his Court, having the duty imposed upon them of taking a valuation, in every instance, of a bankrupt's effects. This valuation of a broker was a very costly and utterly useless proceeding, and it was proposed by the Bill to abolish it altogether, and to provide for a valuation either under the authority of the Court or with the sanction of the creditors, as might be considered most advisable. And inasmuch as those persons were not appointed under any Act of Parliament, and had no legal claim to their offices, they could have no title to compensation on the abolition of their offices. There was another matter which had led to much litigation, and on which it was necessary to legislate—that was with respect to the classification of certificates. As the law now stood, there were three classes of certificates,—first, second, and third,—which were awarded according to the supposed merits or demerits of the bankrupt. [Lord CAMPBELL: Do away with them altogether.] His noble and learned Friend had anticipated him. The Bill proposed to do exactly what his noble and learned Friend had suggested. The Commissioners took different views of what constituted moral delinquency. Then came appeals to the Lord Chancellor or to the Lords Justices, and a great amount of time was wasted in considering the kind of certificate which a bankrupt ought to receive. The Bill abolished the distinction. There was only one other point—but it was a very important one—
  2300
  to which it was necessary to direct attention, and that was with regard to the offences of bankrupts and insolvents, and their punishment. He was astonished to find that the bankers and merchants of the City of London desired to give the Commissioners power to punish fraudulent bankrupts or insolvents by sending them to the House of Correction. Now, he must say that he never would consent to invest any man with the arbitrary power of sending a person to prison without the intervention of a jury; and therefore he could not consent to that proposition, although he might observe, in passing, that his hon. and learned Friend (the Attorney-General) who prepared the Bill originally seemed to have given his adhesion to it. The offences peculiar to bankrupts, such as the falsification of accounts, the concealment of property and the like, would require a great deal of consideration, because the language of the Bill, as originally framed, was not sufficiently precise to exclude from the operation of the punishment clauses various dealings which he believed were considered to be perfectly legitimate in the city of London—among others, the accepting of accommodation Bills. He mentioned this in the hope that during the recess their Lordships would direct their particular attention to this portion of the Bill. He himself should devote all the time in his power to it, and should endeavour, as cautiously and guardedly as he could, to frame those clauses so as to meet cases of real delinquency. He hoped that he had kept his word with their Lordships, and that he should not be considered to have entered too minutely into details. He had endeavoured to make his remarks serve rather as an index to the Bill, pointing out the more important provisions which it contained. He trusted that those who took an interest in the subject would give him the benefit of their assistance and advice in considering most carefully the clauses of the Bill, in order that at the commencement of next Session the Government might be enabled to introduce a measure which would prove beneficial to the public, and would receive the ready acceptance of the whole commercial community.
  The noble and learned Lord then presented
  A Bill to amend the Law of Debtor and Creditor, and of Insolvency and Bankruptcy, and to enable and facilitate the liquidation by creditors of a Debtors Estate,

  2301
  and the Administration of Estates of Insolvent Trailers, deceased.
  LORD CAMPBELLsaid, he would content himself with expressing his entire approbation of the course which had been taken in this matter by his noble and learned Friend on the woolsack, in having deliberately considered the subject, and having favoured their Lordships with an outline of the measure which he proposed. This certainly was no party question, and all must be anxious to assist his noble and learned Friend in framing his measure so that it should be generally acceptable to the public. He trusted that his noble and learned Friend would consider whether means could not be adopted for abolishing the distinction between traders and non-traders, and he suggested that a perusal of the Scottish bankruptcy laws might enable him to arrive at a solution of that question. The Scotch laws upon the subject generally were worthy of consideration; for he believed that under them the expense of working the commission and distributing the effects of a bankrupt did not exceed charge of 7 per cent upon the estate, as contrasted with about 30 per cent under the English law.
  THE LORD CHANCELLOR: The pamphlet has been sent to me also, but I find that it does not praise, but condemns, the Scotch system.
  LORD CAMPBELL: The proof I gave of the system was 7 per cent as contrasted with 30 per cent—a considerable proof of our Scotch advancement.
  LORD CRANWORTHexpressed his satisfaction at the lucid statement of his noble and learned Friend on the woolsack. In most of the propositions of his noble and learned Friend he entirely concurred, though of course he could not be expected to give in his assent to all the details without further consideration. He was glad that the noble and learned Lord proposed to amend before consolidating, for of course until it was settled what the law on the subject was to be, it was impossible to proceed to consolidate it. He sincerely hoped, that in the course of the next Session, a comprehensive measure of Amendment and consolidation on this subject would pass into law.
  Bill read 1ª.

  GOVERNMENT OF INDIA BILL.
  Lords' Amendments agreed to.
  Returned from the Commons, with a Message, That they do not insist on their.
  2302
  Disagreement to the Amendments made by the Lords on which the Lords insist, and that they agree to the further Amendment made by the Lords to the Bill.

  DIVORCE AND MATRIMONIAL CAUSES ACT AMENDMENT BILL.
  Lords' Amendments not insisted on.
  Message from the Commons that they insist on their Amendment to which the Lords disagree, with their Reason for so doing; and agree to the Amendments made by the Lords to certain of the Commons' Amendments to the said Bill.
  Commons' Reason for insisting on their Amendment to which the Lords have disagreed, considered.
  Moved. not to insist in the Disagreement to the said Amendment; agreed to; and a Message sent to the Commons to acquaint them therewith.
  House adjourned at a quarter to Nine o'clock, to Monday next, a quarter to Two o'clock.