REFERRED TO SELECT COMMITTEE. (Hansard, 3 May 1861)

§ THE EARL OF DERBY

I was about to say that I was in hopes, after the intimations we have received, that the noble and learned Lord would himself have moved that this Bill be referred to a Select Committee, and thus have spared your Lordships the necessity of hearing a single word from me in support of my Amendment. Indeed, the announcement which the noble and learned Lord has now made renders it unnecessary for me to trespass on your Lordships' attention for more than a single moment. In the first place, I have to express my entire concurrence and satisfaction that the noble and learned Lord has taken notice of the language of some petitions which have been presented 1479 to your Lordships to-night. A petition has been presented to-night by the noble Baron opposite (Lord Overstone) and other petitions, couched in nearly similar terms, coming from persons of the greatest eminence and of the highest authority on mercantile law, and are on that account entitled to our most careful consideration. I have no doubt that the general expression of opinion coming from numerous bodies interested in the subject will materially facilitate the passing of any Bill that, in its main features, obtains the approbation of the mercantile community. But the point on which I think we are most indebted to the noble and learned Lord for expressing his opinion is that which refers to the impropriety of these petitioners suggesting that this Bill should not be referred by your Lordships to a Select Committee. Now, my Lords, I venture to think that, although those mercantile persons who have petitioned your Lordships may be admirable judges as to the alterations that ought to be made in the law of bankruptcy, yet, as to the mode of dealing with the Bill, or the course of proceeding to be taken on it, your Lordships do not require suggestions from any quarter. But the petition which the noble Baron has presented was sent to me this morning, accompanied by a letter from the secretary of the Mercantile Law Amendment Society, in which I am informed that that body regret to learn that Her Majesty's Government, being unable to resist my powerful influence, have consented to send this Bill to a Select Committee. Now, my Lords, while I disclaim for myself the honour and compliment which is thus paid me, of being supposed to possess an influence capable of overbearing the determination of Her Majesty's Government, I must be permitted also to repudiate, on the part of Her Majesty's Government, an insinuation so injurious and offensive to them, as that they, from fear of a political defeat on a question which really involves no political difference, should have given way and taken a course opposed to their own judgment and views. Far be it from me to taunt the Government for a single moment by supposing the possibility of there being differences of opinion between them, this way or that, on this subject. We know that on this, as on all other questions, they are united in the strictest harmony. From what quarter the Mercantile Law Amendment Society has received the notion that the Government has been com- 1480 pelled by my influence very reluctantly to give up their own course, I am sure I cannot say. I am sure that Her Majesty's Government have acted on the conviction that the course they have adopted commends itself most to their own judgment, and for the public interest, as the best means of dealing with a measure which contains so many complicated details. The petitioners to whom I have referred made two statements—one is that a reference of this Bill to a Select Committee would cause so much delay that it would be impossible to pass the Bill in the present Session. This anticipation shows great ignorance of the proceedings of your Lordships in Select Committees, and holds out, if it were true, a very melancholy prospect to those noble Lords who may be placed on that Committee of attending it for the three months that the Session may be expected to last. Again, they apprehend that if the Bill is referred to a Select Committee it will receive so many and such important alterations that it would not be adopted by the Government, or be acceptable to the profession at large. Now, my Lords, I must say that the anticipation is not very complimentary to the distinguished lawyer who is the author of the Bill, that its being examined by eighteen or twenty of your Lordships who are most competent, from their acquaintance with the law and practice of commerce, to consider the question, must necessarily lead to such alterations as will change the character of the Bill. My sole object in moving that the Bill be sent to a Select Committee is that a Bill containing 246 clauses, and dealing with a vast variety of the most complicated details, should be more satisfactorily, effectually, and speedily dealt with, as it would be by a Committee of eighteen or twenty members, all of them interested and familiar with these questions, and who would give their undivided attention to them, than it could be in a Committee of the Whole House, where the greater portion of the Members would be comparatively indifferent to the question, and who would probably give their votes on other considerations than the strict merits of the arguments. My Lords, it would be idle and impertinent in me to enter upon a critical examination of the various points of the Bill. The noble and learned Lord, in referring to the question of a Select Committee, said that if it were referred on mere questions of detail he would not object to sending the Bill up stairs; but that 1481 if opposition was to be made to matters of principle it would be better that they should be discussed in Committee of the Whole House. Now, my Lords, the difficulty in this Bill is to know what is principle and what is detail. There are, however, four or five leading points of this Bill on which it is necessary that your Lordships should be especially careful. In the first place, there is the great power that is given by this Bill to the county courts—the indefinite multiplication of their functions. In the next place, there is the relative position between the creditors' assignees and the official assignees—complications between them so great as I believe will render the Bill unworkable—I mean the clause which provides that the official assignee should collect one portion and the creditors' assignee another portion of the debts on the same bankrupt's estate. Again, there is the provision with regard to non-traders, which will require the most careful consideration, both with regard to its details and its principle. Even if your Lordships sanction the principle, as I think you ought, of bringing the non-trader under the operation of the bankruptcy law, it must be made subject to such modifications as will provide for the different circumstances of the two parties. But over and above all others, there is a point which, whether in Committee or in this House, I am satisfied your Lordships will feel it necessary to make some change—I mean that provision of the Bill which makes non-traders subject to its retrospective operation. I am satisfied that your Lordships will never consent to expose parties who have contracted liabilities under a different system, by the ex post facto operation of this Bill, to penal consequences of the severest character. But beyond these questions I am satisfied that even on points of detail your Lordships will give them the most careful consideration, so that we may produce an efficientand well-considered measure. There is one other objection to which I may here refer. When my noble and learned Friend (Lord Chelmsford) produced a measure on the same subject the noble and learned Lord now on the Woolsack proposed that it should be sent to a Select Committee, and gave as a reason for doing so that the measure had not passed the House of Commons. Now, my Lords, the strongest possible argument for sending this Bill to a Select Committee is that it has passed the House of Commons. Because we might have agreed to pass the Bill with the less 1482 consideration if it had afterwards to undergo the scrutiny and examination of the House of Commons. But, as it has passed through the ordeal of that House, it is now the more necessary that in this its last stage and before it becomes law it should receive the closest scrutiny and the most anxious deliberation. And, my Lords, though it is true that this Bill did undergo a lengthy and protracted discussion in the House of Commons, yet there are considerations that induce me to believe it was in the end somewhat hurried through the House. The Bill as it stands at present—as it was brought up to your Lordships—was never seen by the House of Commons. It was never reprinted after it passed through Committee. As might be expected, in such circumstances, several inaccuracies of an unintentional kind have crept in. I will mention one instance to show the incorrect state in which it has come up to us. I see that in the Amendments talked of by the noble and learned Lord on the Woolsack that he has observed the inaccuracy to which I am about to refer. It was intended to make some distinction between the acts which constitute the bankruptcy of a trader and the bankruptcy of a non-trader. There are eight acts which are taken to constitute bankruptcy on the part of a trader; and it was intended to specify three or four acts which were to be held as constituting bankruptcy on the part of a non trader; but, as the Bill now stands worded, the non-trader will be subject to bankruptcy not only on any of the three or four acts which apply to his case, but also on all the other eight which are intended to apply only to the traders. This is one of the points on which your Lordships' care will be required. I am sure it is of the highest importance that in an Act of this kind we should use our best endeavours to send it out so perfect that we shall not be called upon perpetually for Acts to amend the Act, but that we shall send forth a measure containing all that is necessary in a bankruptcy law, and which will form a fitting preparation for that consolidation of the whole bankruptcy law which I think the Attorney General has acted wisely in postponing for the present. I hope we shall be able to send back the Bill to the other House not only relieved of its inaccuracies, but greatly improved in many of its provisions. Because I consider that the Bill will be best considered in a Select Committee up stairs, therefore, 1483 I move this Amendment, and I am glad to find there is to he no opposition.

§ EARL GRANVILLE

, who was imperfectly heard, was understood to say that there would be a unanimous agreement on the part of their Lordships to send this Bill to a Select Committee; and he was glad that the noble Earl (the Earl of Derby) had given him an opportunity of explaining the reasons which had induced the Government to acquiesce in that step. He must say at the outset that he certainly thought it would have been a more desirable course to allow the Bill to considered in a Committee of the Whole House. He saw nothing in the constitution of their Lordships' House that made it less fitted for the consideration in Committee of a Bill of this kind than the House of Commons. Their Lordships were not more numerous than the House of Commons; he was not aware that they were less orderly in their proceedings; and while they had not so many lawyers among them, those they had were men who had arrived at the top of their profession, and were in consequence more likely to bring to the consideration of the measure a large amount of ability, experience, and judgment. Another reason why this Bill should be openly discussed in a Committee of the Whole House was that the Bill affected classes of the community who were not specially represented in that House, and he thought it desirable that clauses affecting their interests should be discussed in the House itself. The noble Earl spoke with apparent surprise of a letter which he had received that morning from a gentleman connected with the Society instituted for the Amendment of the Law, in which the writer stated his belief that the Government had been compelled to consent to the appointment of a Select Committee from a fear of the great power and influence possessed by the noble Earl. The noble Earl said he could not conceive what had put such a notion into the writer's mind. Well, he (Earl Granville) was not in the writer's confidence, but he thought it just possible that it might have come into his head and into the heads of many other persons after a perusal of a brilliant postprandial speech reported in the morning papers of yesterday. The real reason, however, why the Government agreed to send the Bill to a Select Committee was that several of his noble Friends on that (the Ministerial) side of the House—and among others his noble and learned Friend (Lord Cranworth) were of of opinion that that was the wisest course 1484 to pursue. He must add, that nothing more strongly induced him to consent to such a course than the statement of the noble Earl himself, that he was not actuated by any feelings of hostility to the Bill, that he did not wish to attack its principles, and that all he desired was to improve its details and facilitate its working. As the noble Earl stated, there might be an occasional difficulty in knowing what was principle and what was detail. No doubt matters of detail might be matters of great importance, and the noble Earl referred specially to four or five points which he thought called for serious consideration. Among those four or five points to which the noble Earl alluded there were at least two which he (Earl Granville) hoped the Committee would not alter. He would not object to the appointment of the Select Committee, on the understanding that if there was any point on which the Government did not agree with the decision at which it arrived they should have an opportunity of bringing the subject under the consideration of the Whole House.

Order for Commitment discharged; and Bill referred to a Select Committee. The Lords following were named of the Committee:—

Ld. Chancellor.	L. Brougham and Vaux.
Ld. President.	L. Stanley of Alderley.
D. Devonshire.	L. Overstone.
D. Marlborough.	L. Cranworth.
E. Derby.	L. St. Leonards.
E. Spencer.	L. Wensleydale.
E. Powis.	L. Chelmsford.
E. De Grey.	L. Kingsdown.
V. Hutchinson.	L. Lyveden.
L. Lyndhurst.	L. Taunton.
L. Wynford.