§ Order for Consideration read.
§ Amendment in page 1, line 7, to leave out "Judges and "
The ATTORNEY GENERAL
said, the first Amendment, upon which he should ask the House to offer an opinion, was that which would have the effect of striking out from the Bill the clauses relating to the Chief Judge; and, whether for good or for evil, materially affecting the character and scope of the measure. He proposed to take the sense of the House on this important point, at the very first part of the Bill in reference to which it was possible to raise a debate upon it. The Bill under discussion had been introduced into the House by his predecessor in office, who had, since, received at the hands of his Sovereign the highest distinction of his profession, and who was then discharging the exalted functions of his new position to the great advantage and satisfaction of the country. It was a measure differing essentially from that which had been brought forward in the previous Session, which had for its end the consolidation of the whole law relating to Bankruptcy and Insolvency; whereas the Bill of the present Session was simply directed to the object of so amending the existing law, as to make it more conformable to the wishes and wants of the community. Having passed through the House' of Commons with singular unani- 1097 mity—only one or two divisions, he believed, having been taken upon its provisions—it was introduced into the Upper House; and he was confident there was scarcely a lawyer, or a representative of the views of the mercantile world, who did not believe that the Bill as it then stood effected great amendments in our bankrupt law; while it would, if passed in that shape, have given, he felt assured, the utmost satisfaction to the great majority of the public. The measure, however, had been materially altered in its passage through the House of Lords, and it was with the Amendments there introduced into it that he was about to deal. Those Amendments were several; but it was to two of them, that which related to the office of a Chief Judge, and that which referred to the creditors' assignees, that he desired in a special manner to invite attention. To the former he would for the present confine his observations. Hon. Members were aware that clauses providing for the appointment of a Chief Judge in Bankruptcy, equal in station to his brethren in Westminster Hall, defining his duties, and settling the amount of his salary, were embodied in the Bill as it went up to the other House of Parliament. Those clauses, however, that House had thought proper to strike out; on the ground, he believed, that if passed into a law they would saddle the country—for the salary of the new Judge was to be paid out of the Consolidated Fund—with an expensive functionary, for whom no duties adequate to his station and salary would remain to be discharged. Now, his own opinion was that the Bill, deprived of those clauses would be—he would not say absolutely useless, but devoid of a machinery which was essential to its satisfactory working; while he was strongly of opinion that there was no good foundation for the assumption, that the new Judge would not find, in the performance of the duties of his office, as much work as the most competent and able man could satisfactorily discharge. In dealing with the point in the House of Lords, reference had been made to the appellate jurisdiction which the Bill proposed to confer on the Chief Judge in Bankruptcy; and it was said, in support of the views of those who objected to the creation of a Chief Judge, that the Lords Justices, who constituted at present the Court of Appeal in Bankruptcy, had been occupied, during the whole of the last year, only fifteen days in disposing of 1098 the business which came before them in that capacity, while the number of appeals was only forty-five. From those facts the inference was drawn that, under the present Bill, no larger amount of appellate business would have to be dealt with, and that the Chief Judge would, therefore, have very little to do in that respect. But nothing could be more fallacious than such a view of the case. It was very easy to keep down the number of appeals. If they made the appellate tribunal sufficiently costly, and if they interposed a sufficient amount of delay in the hearing of cases on appeal, they might keep the number of appeals within very moderate limits. He thought, however, that the House would not think of keeping down the number of appeals by having recourse either to costliness or to delay. There could be no doubt that the present Court of Appeal in Bankruptcy was both costly and dilatory. Somewhere about £60 was either the smallest or the average expense, which must be incurred in carrying an appeal before the Lords Justices; and, considering that the Lords Justices, although appellate Judges in Bankruptcy, had very extensive and important judicial functions of another class to discharge, it could not be expected that they would at once and summarily address themselves to appeals in bankruptcy, to the neglect of their more ordinary business. It was to be expected, therefore, that time, more or less considerable, must elapse before an appeal could be brought on for hearing; and he was informed by those who were practically conversant with the matter that, as an ordinary occurrence, months elapsed between the lodging of the complaint against the decision appealed against, and the final adjudication by the Lords Justices. But a great part of the business of the Chief Judge would consist of appeals: and the whole of his business would be bankruptcy business. There would be nothing, as in the case of the present appellate court, to delay the hearing of appeals: and he had no hesitation in saying that a slight glance at the Bill would satisfy any one that, in future, appeals in bankruptcy would be not only without delay, but also without unnecessary expense. There was another important observation on this point. It would be admitted that the number of appeals must bear some proportion to the gross number of cases brought before the various tribunals from which the appeal lay; and he thought he could satisfy the 1099 House that the general business in bankruptcy, out of which the appeals must proceed, would in future be largely increased. In the first place, a portion of the Bill with which no fault was found in the other House was directed to putting an end to the Court for the Relief of Insolvent Debtors, by abolishing the distinction between trader and non-trader. The effect of that would be that the business affecting insolvent debtors, which had heretofore been transacted by the Insolvency Court, would be transferred to the Court of Bankruptcy, more than doubling the ordinary number of applications to that Court. In 1860 about 2,820 petitions were filed in the Insolvency Court by imprisoned debtors; and of these 820 were within the exclusive jurisdiction of the court in London, which extended from Norfolk on the one side to Hampshire on the other. These 820 cases would now fall within the jurisdiction of the court of the metropolitan district, over which the Chief Judge was to have a general control. Of the prisoners who appeared in the same year, 833 appeared in the London Court, and 1,883 in the different courts throughout the country; and of the estates which were realized, 129 were realized in the London Court and 119 in the country. The proceeds whereon dividends were declared amounted, in the London Court, to £20,247, and in the County Courts in the country to £15,790. The amount of scheduled debts in the London district was £365,760, and in the County Courts it was £169,845. The debts satisfied by payment or otherwise amounted to £24,431 in the London Court, and to £12,876 in the provinces. These figures made it manifest that the destruction of the Insolvency Court, and the transfer of its jurisdiction to the Court of Bankruptcy, would of necessity lead to a very considerable increase in the business of the latter, the number of insolvencies being very much larger in the course of a year than the number of bankruptcies. In 1860 there were cases of bankruptcy and petitions for private arrangement to the number of 1,336; but the cases of insolvency were more than double that number. The addition to the business of the Court being thus considerable, the number of appeals might be expected very largely to increase. In addition to the business that would arise from the destruction of the Court for the Relief of Insolvent Debtors, a variety of business was provided for the Chief Judge by the Bill, which would find him tolerably 1100 sufficient employment. For instance, there was the duty assigned to him of transacting business at chambers, under the 59th section. He had no doubt the result would be a most useful employment of a considerable portion of the Chief Judge's time. Every lawyer was aware how very important was the business transacted by the Judges at chambers. If the Judge were created, it would be found that, apart from his appellate jurisdiction and his business in Court, there would be a great amount of business that might be advantageously disposed of by him at Chambers, and which could not in any other manner be so conveniently despatched; and there was provided by this Bill the means of having recourse to the Chief Judge for his advice, assistance, and control, inexpensive in the last degree to the suitor and the insolvent estate. Clause 61 enabled any party to take the opinion of the Judge on any matter that might arise in the course of the proceedings, or on the result of the proceedings. It would be a great advantage conferred both on debtors and creditors, on the occurrence of any legal difficulty or impediment, to have the opportunity of prompt recourse to a competent tribunal, and to obtain the benefit of a deliberate adjudication from a Judge of distinguished position and character. This, therefore, would be another source of a very considerable addition to the ordinary business of a Chief Judge in Bankruptcy. Again, under Clause 67, the Chief Judge might direct any question of fact to he tried before a special or common jury, and he was to preside over their deliberations. Although, in conducting an estate of any considerable amount through bankruptcy, it was found that questions of legal nicety did from time to lime arise, it was equally well known that very often the most important questions of fact also arose, and at present the mode of disposing of them was highly inconvenient. It could not be doubted that it would be of great advantage, with reference to questions of fact, to have an opportunity afforded, at an early stage in the proceedings in bankruptcy, for a competent Judge to summon a jury and preside over their deliberations, and thus be the means at once and for ever, to the satisfaction of all parties, of disposing of such questions. But that was not all. Still further demands would be made on the time of the Chief Judge, for the purpose of determining questions that might arise on deeds of arrangement.
1101 The number of deeds of arrangement being already exceedingly large, it might be expected that they would still continue to be considerable, and many disputed questions of law or fact, arising out of their doubtful construction or confused Ianguage, would necessarily have to be determined. As against the 1,000 bankruptcies in the course of a year no less than 14,900 deeds of arrangement between debtor and creditor were found to be executed. A formidable multiplication of business might, therefore, be anticipated from that source. The Bill required all such deeds of arrangement to be registered, so as to be brought, as it were, under the notice of the Court, whose opinion and direction in respect to them the parties interested would have full opportunities of obtaining. It might be said, indeed, that the Lords had left these provisions practically untouched; but it should be remembered that they had struck out that part of the measure which created that tribunal and that Judge by whom, and by whom alone, these very extensive and novel powers could be beneficially exercised. Nor was that all. There were yet higher functions and duties which it was proposed the chief Judge should perform. Of course it was impossible to make men moral or honest by Act of Parliament. All that could be done was to express disapprobation of certain acts, as being unfair or immoral, or at all events illegal, and then to attach to those acts adequate and appropriate punishments. This course had been followed in the original framing of the Bill; and by it it had been sought to introduce important changes into what he might call the code of commercial morality. In England various acts of delinquency were made misdemeanours and rendered punishable as such, while other acts, less grave indeed, but still highly culpable, would be visited with punishments of considerable severity. It had been originally proposed by the measure, and assented to by the House, that that new and important criminal jurisdiction should be to a great extent vested in the Chief Judge. It was well known that a very large portion of the contested business in bankruptcy arose in connection with the applications for orders of discharge; and a very considerable amount of the cases which found their way, under the existing state of things, into the present Court of Appeal turned upon questions of that description. Having regard, then, to the enlarged and novel jurisdiction 1102 which this Bill would create, having regard also to the success, so much to be desired, of the experiment it contemplated for the improvement of the commercial morality of the country, it was of the last importance that the Judge who would be called upon prominently to wield these extensive and stringent powers should be a Judge of the highest rank and competency. His authority was one which, unhappily, they must expect would be frequently invoked; and that authority, without intending any reproach whatever to the present Commissioners in Bank ruptcy—could not be safely confided, except to an officer of the first judicial station and attainments. It was of great importance to secure uniformity of decision, and this would be accomplished by the appointment of a Chief Judge. He believed that, as far as might be among lawyers, there was unanimity among the members of his own profession on the clause providing that there should be a Chief Judge; and, without any disrespect to those hon. Members of the House who did not belong to the legal profession, he must be excused for saying that the subject was better understood by those who were lawyers than by hon. Gentlemen whose habits and associations were commercial. At the same time there appeared to be a very general concurrence on the part of the mercantile community in favour of that provision of the Bill being restored. A petition on the subject had been, within the previous few days, presented to that House by one of the hon. Members of the City of London. The signatures to that petition were great in number, and included the names of bankers and merchants of the highest eminence in this, the commercial metropolis of the world. The petition had 200 signatures attached to it, and of these twenty-six were the signatures of banking firms in the Metropolis; the remaining 174 were those of merchants whose names were a guarantee that they were fully competent to understand the provisions of the Bill. The petition stated that since the Bill had left that House several of the most valuable portions of it had been removed. It then went on to pray that provision might be made for several amendments in the law; and it especially prayed for the appointment of the Chief Judge, stating—At present the law is administered by five different Commissioners, sitting in the same building, and frequently giving most conflicting 1103 decisions, thereby involving great uncertainty, while the only appellate jurisdiction,—namely, that of the Lords Justices, was one of a most expensive character.He believed that there was no good foundation for the presumption on which the clause for the appointment of the Chief Judge had been struck out in the other House. The argument mainly relied on was that there would be but scant employment for a Chief Judge; but, as under this Bill every County Court would be a Court of Bankruptcy, and as there were about sixty County Court Judges who heard cases at some 400 or 500 places, if there was only one appeal in each year from each of the County Courts, the Chief Judge would not be left in want of occupation; were he to hear appeals only. Believing, on the whole, that the Bill would not work satisfactorily if there was not a Chief Judge, he ventured to move that the House disagree to the Amendment of the Lords relative to a Chief Judge in Bankruptcy.
§ Motion made, and Question proposed, "That this House doth disagree with the Lords in the said Amendment."
§ Mr. BOVILL
said, that, if there was that great unanimity of the lawyers and of the mercantile community in favour of the appointment of a Chief Judge which the Attorney General seemed to suppose, the hon. and learned Gentleman would have no difficult in procuring the restoration of the clause. He could, however, assure his hon. and learned Friend that there were lawyers both in and out of that House of some distinction who entertained an opinion on the subject exactly contrary to that which he had just expressed. There were lawyers of great eminence in the country who had pronounced an all but unanimous opinion in condemnation of the clause which his hon. and learned Friend so strongly supported, for when this question was under discussion in the Select Committee of the House of Lords there were present:—the late Lord Chancellor. Lord Cranworth, Lord St. Leonards, Lord Wensleydale, Lord Chelmsford, and Lord Kingsdown — no mean authorities on a question of judicial appointments, no mean exponents of the opinion of the most eminent lawyers of the day—and, if he was rightly informed, the omission of the clause for the Chief Judge was proposed by Lord Cranworth, and agreed to by the other noble and learned Lords, the late Lord Chancellor being the only dissentient. That was the unanimity that prevailed 1104 among those who had no interest except in the due administration of justice. His hon. and learned Friend was not more fortunate in regard to the opinions of the mercantile community. On the Committee to which he had referred there was one name that stood high as an authority among the commercial classes—he meant Lord Ovcrstone—and the rejection of the clause appointing a Chief Judge met with the approbation of Lord Overstone. Indeed, among all the Members of that Committee, including noble and learned Lords of all sides in politics, there was an unanimity of opinion for the rejection of this clause, with the exception of the Lord Chancellor. But his hon. and learned Friend referred to a memorial which had been addressed to the House by a body of merchants in the City of London, who objected to the present system, and preferred a Chief Judge because of the expense attending the present system of appeals. But the expense of the appeals had no reference to the question at issue, for nothing would be more easy than to transfer the simple and inexpensive mode of appeal provided in the Bill to the present system of appeals to the Lords Justices. These petitioners had evidently been misled on the supposed difference of the expense. Other opinions altogether in favour of striking out the Chief Judge clause had been expressed by the mercantile community. The Liverpool Chamber of Commerce had carefully considered the matter, and he would refer the House to the petition which his hon. Friend the Member for Liverpool had presented to-night from them. They objected to certain alterations that had been made by the Lords, but they did not object to the striking out of the clause for appointing a Chief Judge. There was also an important petition from Manchester, signed by forty-eight of the principal firms in that city. They not only did not object, but they stated their opinion that the appointment of a Chief Judge would be an useless expenditure of the public money, as the Lords Justices disposed of the appeals in a perfectly satisfactory manner, and they had ample time at their disposal for the purpose. There was also a standing Committee representing various chambers of commerce—he would not read all the names, but the list comprised those of Belfast, Birmingham, Bristol, Glasgow, Leeds, Hull, and Sheffield, besides the comparatively minor towns of Wolverhampton, Co- 1105 ventry, and other places; they stated certain objections to the Lords' Amendments, but they did not object to the rejection of the Chief Judge. He had listened with great attention to what he might call the laboured exposition which his hon. and learned Friend had given of the duties which the Chief Judge would have to perform. But his hon. and learned Friend forgot that there was another important body beside the Judge. There were the Commissioners in Bankruptcy, and when his hon. and learned Friend argued that the House of Lords had struck out the clause relative to the Judge, and that there was now no one able to exercise jurisdiction in regard to these deeds of arrangement, he was greatly mistaken. The clause set forth that "the Court" might do such and such things. That Court existed and exercised its functions by the Commissioners of the Court. What was the origin of the appointment of this Judge? In the Session of I860 a Bankruptcy Bill was introduced as a measure of consolidation. On that occasion it was proposed to appoint a Judge, but to abolish the Commissioners; while the objection to the present measure was that it kept both the Judge and the Commissioners to perform their functions at the double expense to the country. All the arguments used by his hon. and learned Friend as to the duties of the Judge and the extent of his business were addressed to the Legislature in 1831, when Lord Brougham proposed to pass his great Bill appointing permanent Commissioners and a superior Court of Bankruptcy, to consist of four Judges. It was then asserted that it was necessary to have a Court so constituted as to command respect. It was said then, as it was said now, that the business was so large that it was necessary to have a new court. There were, then, to he Commissioners and a superior Court of appeal, consisting, not as was now proposed, of a single Judge, but of a regular court of four Judges, in order that their decisions might command the respect of the country. The experiment was tried, and the four Judges were appointed; but in the course of a few years several of the Judges were pensioned off, a single Judge was found sufficient to do the whole work, and soon afterwards the single Judge was abolished also. The Commissioners were found to perform their duties so satisfactorily—the appeals from their judgments were so few—that from sheer want of business the Court was actually and en- 1106 tirely abolished. But if a Court of Appeal was necessary why need they have recourse to a new court? The Legislature had already selected for its Court of Appeal one of the best courts that could be provided—a court that was presided over by two of the ablest lawyers in the country—who had ample time, opportunity, and ability to decide all cases that came before them—he referred to the Lords Justices, who were now constituted the Court of Appeal in Bankruptcy. Was there any one bold enough to say that that was not a satisfactory Court of Appeal? Had there been a single complaint as to the mode in which the appeal business had been administered by the Lords Justices, or had they delayed the decision in any cases that had come before them? Why, the appeal business had given them fifteen days' occupation out of the whole year, and the number of appeals had been forty-two. Did that show any ground why a new Judge should be constituted? Did his hon. and learned Friend know the position of some of the Courts of Chancery? Did he know that some of the Vice-Chancellors and the Master of the Rolls had sometimes to close their Courts for want of business? Did he know that the Vice-Chancellors had the power to act as Judges of the Court if necessary? The fact was that there was abundance of judicial power to deal with these cases. If they wanted a new Judge, let them give an additional Judge to those Common Law Courts which were so overwhelmed with arrears that two Courts would scarcely be sufficient to perform the duties now thrown upon one. The Government were now proposing to put the country to the expense of £5,000 for the Judge, together with the salary of the registrar of the Judge, in order to perform those duties which up to the present moment had been amply and satisfactorily performed by the tribunal of the Lords Justices. But, putting the Lords Justices aside for the moment, he would ask this question—What opinion would be entertained throughout the country of the decision of any gentleman who was raised from the ranks of the Bar, if that decision were given in opposition to the judgment of such men as Mr. Commissioner Holroyd, for instance, who had acted for the last thirty years in his capacity of Commissioner in Bankruptcy, and who had made the study of that branch of the profession the business of his life? Would such an opinion command the respect of the country?
1107 Then his hon. and learned Friend went very laboriously through a vast mass of duties which he said the Judge would have to perform. He would not attempt to follow him through them all. He would content himself with one or two instances. He would remind the House that the Bill as it went to the House of Lords not only provided for an appeal from the Commissioners to this new Judge, but further, for an appeal from the Judge to the Lords Justices. So that if he differed both from the Commissioners and from the Lords Justices he would have no power of control, for the Lords Justices would overrule his decision. His appointment would be useless at the best, for if he agreed in opinion with the Commissioners his judgment would add no weight; if he disagreed, and his judgment was appealed against—as in such a case it would surely be—his interposition would only add to the expense and delay. The scheme of the present Bill was founded on the Bill of 1860, and transferred to gentlemen who held the office of registrars the greater part of the business in bankruptcy now transacted by the Commissioners, and he should like to know what the Commissioners would have to do. The 59th Clause of the original Bill provided that the Chief Judge and Commissioners should respectively sit at chambers, and what the House of Lords said was that if the Commissioners were fit for that duty let them perform it without the Chief Judge. His learned Friend had spoken of the probable increase in the number of appeals, and referred to the insolvency jurisdiction and to the number of cases likely to arise from deeds of arrangement. But who could say before-hand that there would be this increased number of appeals? And with respect to the insolvency cases, in a great many instances the assets were very small and insignificant, and the House might depend on it that, however numerous the bankruptcies and insolvencies might be, there would not be found, unless the estates were worth fighting for, any great number of appeals. The House was called on to sanction a new Judge with £5,000 a year, on the mere allegation that there might be an increase of appeals, though in the Divorce Court, where the necessity for further judicial power had been actually felt, the Government did not propose to supply that want. He thought that, in respect to the Bankruptcy Court, it would be ample time to appoint a new 1108 Judge when the necessity for one was by experience rendered manifest. If this increased number of appeals should arise the Lords Justices would be found able to go through them, and, if necessary, they could have the assistance of one or two of the Vice-Chancellors or of the Master of the Rolls. The next matter touched on by his learned Friend had reference to the trials by jury; but it should be borne in mind that the Lords Justices, and the Commissioners also, had power to try by jury, just as much as the Judge; and that many important questions constantly arose out of bankruptcy cases, which the Judge in bankruptcy would have no power to try. Such, for instance, were the cases in which persons, being neither creditors or debtors, and over whom the Bankruptcy Court had no jurisdiction, complained of the seizure of their property, and brought their actions in the ordinary Courts. The advantages of uniformity had been much dwelt on, but they might have both uniformity of decision and sound judgment form the Lords Justices. He contended that the Commissioners in Bankruptcy formed a perfectly fit tribunal for the cases which would come before the Court. Not a word of complaint had been made against them personally, although it had been said that they had no sufficient occupation, and that their duties were for the most part mere routine. However, when any important case requiring decision came on, they were there to hear it, and they had discharged their duties with satisfaction to everybody. It was now proposed to substitute a Court of Appeal, which would be worse than that now existing, composed of the Lords Justices. Moreover, the cost of appealing would be the same, whether the Court consisted of two Judges or of one. He, therefore, submitted to the House that there was no sufficient reason for restoring this clause. The decision of the Lords had been all but unanimous, five ex-Chancellors being of opinion that the appointment of a new Judge was unnecessary. Their opinion was confirmed by the petitions from Manchester and Liverpool, and he trusted that the House would agree to the Lord's Amendments.
§ MR. COLLIER
said, he did not think that the House would be much influenced in its decision by the opinion of lawyers on either side. The question was whether reasons had been given to induce the House to alter its unanimous opinion on this subject, and he certainly thought, 1109 after careful consideration, that no sufficient reasons had been given. The changes proposed in the law could not be carried satisfactorily into operation unless the Court of Bankruptcy were presided over by a superior Judge. It was absolutely necessary that the Court should have a head, or it would break down under the new labours imposed upon it. Even at present the Court was not remarkable for uniformity of decision, or for the order which prevailed there; and under the new jurisdiction it would become confusion worse confounded, unless a Chief Judge were appointed. Parliament was about to enact changes in the law of bankruptcy as important and extensive as those effected in the law of probate and divorce. There those changes had been eminently successful, mainly because they had been carried into effect by a Judge of the first class, who, by the exercise of great judicial ability and great patience and labour, had established a new system harmonious in itself and in harmony with the rest of our jurisprudence. If, however, the administration of the new law of divorce had been intrusted to a set of inferior officials, accustomed only to the old law, and whose decisions differed from each other, there would have been confusion instead of harmony, and instead public satisfaction murmurs of discontent. The application of the bankrupt law to nontraders might, it was thought, be harsh and injurious, and an attempt had been made to guard against that danger; but the safeguards which the House could invent were comparatively valueless without the most important of all safeguards—the administration of the law by a Judge of the highest ability and learning. He doubted whether, if the House had believed that the law would be administered by Commissioners, they would ever have abolished the distinction between traders and nontraders. He had no wish to speak in disparagement of the Commissioners, but neither their position at the Bar before appointment, nor the mode in which they had transacted their business since, marked them in the estimation of the profession or of the public as first-rate Judges. Their decisions had been notoriously conflicting, and those decisions had never carried any weight or authority in Westminster Hall. After the passing of the Bill most important questions would speedily arise upon the interpretation of the new law, and it was essential that they should be so decided as to prevent future litigation. It was said 1110 that the Commissioners had long experience of the old system; but he doubted whether this would be the best possible qualification in the working of the new. They would have to learn and to unlearn much, and the latter was a very difficult process. He was far from saying that they would not be useful under the guidance and superintendence of a first-rate Judge, but it would not be prudent or safe to leave it to them to carry out the great and important changes now effected. Again, it was desirable to appoint a Judge now rather than when confusion should have arisen; to use a sporting figure, there ought to be a first-rate whip to start the new team. With regard to the trials by jury which had been proposed, the Commissioners had never charged a jury in their lives, and some, possibly, had never seen one. The House of Lords, therefore, feeling that it would be Commissioners, had struck out the trial by jury altogether. It was true that the Lords Justices were empowered to call a jury; but would that provision work? An attempt had lately been made to transplant trial by jury into the Court of Chancery, but the exotic did not flourish there; it withered and died; and he had heard that the last jury-box had been removed from the last Vice Chancellor's Court on the motion of a learned friend of his that it was a nuisance, and ought to be taken away. Much could not be hoped for, then, from trial by jury before the Lords Justices. As to the new criminal jurisdiction created in bankruptcy, and the power of obtaining the opinion of the Court upon the statement of a special case, the Commissioners could not be properly instructed with such functions. Commissioner A might give one opinion on a special case, Commissioner B another; and, if there was a tertium quid, Commissioner C might give a third. The uniformity of decision which would be secured by a first-rate Judge would here be wholly wanting. Then, again, an important jurisdiction would arise—that of determining all disputes under deeds of arrangement. If all these functions were intrusted to the Commissioners, the change in the law, instead of being a success, would turn out a disastrous failure. It had been said, to his surprise, in "another place" that a new Judge would not have enough to do, and that he would only have appeals to occupy him for fifteen days in the year, the appeals before the Lords Justices only occupying that time; but his hon. and 1111 learned Friend the Attorney General had shown conclusively that the number of appeals would double and quadruple under the new system. Increased efficiency in the tribunal would create increased business; and, for his own part, he should not be surprised if the number of appeals increased tenfold. But the new Judge would not only hear appeals; he would have an extensive original jurisdiction. In the first place, he would have to hear all the opposed orders for the discharge of bankrupts within the London district. That business alone would occupy him a great portion of the year, and in such cases it would be very desirable to have uniform decisions. Besides that trials by jury would give an original jurisdiction, which it was most important to encourage. Every tribunal should have the power to deal complete justice between the suitors. It was not right to hand suitors over from one jurisdiction to another, and the Court of Bankruptcy ought itself to determine, as far as it might be, every disputed question which arose in the cases before it. Then there was the criminal jurisdiction, and the opinions upon special cases, besides which the Chief Judge would also have to sit in chambers for the purpose of superintending and controlling the administration of the law. It appeared to him that, in order to secure the beneficial object of the Bill, it was necessary to have a new Judge of the first class, whose time would be fully occupied by the business that would come before him as any Judge in Westminster Hall. Nay, it was probable that in a year or two he would require assistance. He hoped that House would adhere to its original opinion, and if they thought it was right to vote £5,000 a year for the administration of public justice the House of Lords, notwithstanding its new-born zeal to protect the national finances, would not venture to resist an improvement in the administration of the law, which, however unimportant to themselves, materially concerned the great middle class of the country.
§ MR. MALINS
said, he had not, like some of his hon. Friends, changed his opinion upon this subject, and, therefore, thought that a Chief Judge ought to be appointed, and that without such an officer the Bill would be worse than useless. The bankruptcy laws had for a long time worked badly, and there had been a great outcry against the system. In 1856 he called attention to the evils, and he then sug- 1112 gested that the only way by which they could be removed would be to entirely abolish the Commissioners, and to begin with a new system, and appoint a Chief Judge in bankruptcy, with the rank and emoluments of a Judge in Westminster Hall. In the Bill which his noble and learned Friend, the Lord Chancellor, introduced last year, that suggestion was carried out; and it was proposed to abolish the office of the Commissioners, giving them a retiring allowance of full pay, and appointing a Chief Judge. That plan would have cost £10,000 a year for the Commissioners and £5,000 for the Judge. On that occasion no opposition was raised to the appointment of the Chief Judge by the hon. and learned Member for Guildford (Mr. Bovill), or the hon. and learned Member for Belfast (Sir Hugh Cairns). The clauses passed the House without a dissentient voice. How was it, then, there had been such a sudden change in the opinions of the hon. and learned Member for Guildford and the hon. and learned Member for Belfast? The hon. and learned Member for Suffolk (Sir FitzRoy Kelly) and himself adhered to their opinions. They were not made of such changeable materials. Nor could the unanimity of opinion of five noble and learned Lords, who had for years withdrawn from the practice of their profession, induce him to depart from conclusions which were founded on his daily experience. He had the utmost respect for the learned Commissioners by whom the law, as it at present stood, was administered, but then he quite concurred with those who said that their decisions did not constitute an authoritative exposition of our commercial law, and it would, he contended, be impossible to secure the services of a person of the requisite judicial weight if only a small salary were given. The same course ought to be adopted with regard to the Court of Bankruptcy that was adopted with regard to the Court of Chancery in 1852. Before that time the Court of Chancery was a disgrace to any civilized community. In 1852 the entire system was changed, and now the Court of Chancery was a credit to the country. He repeated that unless the Court was removed to Westminster Hall, to the other Courts of law, and placed under a Chief Judge, instead of the existing five Commissioners, the Bill would be a failure. He would rather see the Bill withdrawn altogether than assent to an arrangement by which they should continue the Commissioners for the 1113 present, and consider hereafter the expediency of appointing a Chief Judge. In two successive years the Bill had passed through the House with the clause appointing a Chief Judge without any opposition, and he was at a loss to understand why it should be opposed by any hon. Member upon that occasion. It was supported, moreover, not only by the merchants and bankers of the city of London, but also by the great mass of mercantile authority throughout the country. The Chief Judge would have plenty to do. As the Bill abolished the Insolvency Court, and transferred its jurisdiction to the Court of Bankruptcy, there would of necessity be many more appeals than heretofore, and from that source alone the Chief Judge would get abundance of employment. It was absurd to suggest that the Vice Chancellors could assist the Lords Justices in hearing appeals in bankruptcy. The Courts of the Vice Chancellors were overwhelmed with business, and neither they nor the Master of the Rolls could undertake any other duties. He thought that the Commissioners ought to have been allowed to retire; but their retention would not interfere with the duties assigned to the Chief Judge, and the Bill provided for the reduction of their number form five to three. For these reasons, and because he believed the Bill would not work without a Chief Judge, he hoped the House would disagree with the Lords' Amendments.
§ MR. ROLT
said, he wished to state, very briefly, the reasons which induced him to think that it would be wise in the House to agree to the Lords' Amendments. Nothing could be more unwise than to tamper year after year with the constitution of the tribunals of the country, and to make changes which those who proposed them represented as not final, which were introduced for a temporary purpose, which were adopted with a view to expediency, and which did not carry into effect the views of their authors. Last Session the Bankruptcy Bill was introduced with a distinct statement by the hon. and learned Attorney General that his object was to place the ordinary and original jurisdiction in bankruptcy, as far as the metropolitan district was concerned, in the hands of a Chief Judge, putting an end to the Commissioners. To that measure there could be no reasonable objection, but to retain the original jurisdiction in bankruptcy with the Commissioners, and at the same time to appoint a Chief Judge was a proposal to which 1114 he, for one, could not assent. It was only necessary to refer to the changes which had been made in the constitution of the Court of Bankruptcy to see that it was now proposed to go back to a system which had been already tried and had failed, and to be satisfied that we shall have to tamper again with the constitution of the Court in the course of a few years. What were the changes which had been made during recent years in the constitution of the Court? At the beginning of the reign of William IV. the Court of Bankruptcy was instituted with one chief Judge, three other Judges, six Commissioners in London, and a certain number of Commissioners throughout the country. By the 10th and 11th of the Queen the Court of Review was abolished, and the powers were to be exercised by one of the Vice Chancellors. After that, a Consolidation Act was passed, and the London Commissioners were reduced to four. By the 14th and 15th of the Queen the jurisdiction of the Vice Chancellor in bankruptcy was transfered to the Lords Justices of Appeal. All these various changes had taken place in the constitution of one tribunal, and they were again going back to that system which had been the first in the series of changes. The whole had been a tentative proceeding, and hitherto had not succeeded. The system of a single Judge, not having Commissioners with him, had not yet been tried, and had much to recommend it. He entirely agreed with many of the arguments which had been urged in its favour. The system of bankruptcy might be consolidated, having regard to what was done in the Court of Probate, with great advantage. Instead of having Commissioners all over the country the formal business might be done by registrars with a Chief Judge in London, with whom they might communicate, and the experiment of such a system might judiciously be first tried in the London district. This was the Government scheme of last year. But if they went on tampering with the constitution of the Court, by merely going now backwards and now forwards, there could be no hope of real progress; they never would get at a trial of that system which it was evidently the desire of the Government to promote. It would be far better and wiser to continue the present system a little longer, in order to see what new business would be introduced by the new measure. The extent of that new business, he believed, had 1115 been greatly exaggerated by the hon. and learned Member for Plymouth (Mr. Collier). The change was comparatively small and unimportant, as far as the duties of the heads of the Court were concerned. It would not so add to the duties of the Court that it would be impossible it should continue for a reasonable time to see what machinery might be wanted to carry into execution the changes in the law now effected. Nothing could be more easy or natural. There was a tribunal already consisting of Commissioners and a Court of Appeal. As far as the Court of Appeal was concerned every one admitted that it was a competent Court, and since the Government though approving of the abolition of Commissioners were not willing now to press such a measure, the obvious course was to continue for the present the existing judicial machinery. It was a mere hallucination on the part of his hon. and learned Friend the Attorney General to speak as he did of the delays before the Lords Justices. If parties were not ready with their appeals delay must of course intervene; but when parties were ready their cases might be always put on the Bankrupt paper for hearing and be heard within a week. The cases were always put in the paper and disposed of on the second day appointed for hearing, if not on the first. But, said his hon. and learned Friend the Attorney General, here was another dreadful abuse, an appeal cost £60, and, therefore, they must have a Chief Judge. There was no logical connection whatever between the two, nor did his hon. and learned Friend say for how much less than £60 he supposed important questions could be brought before an appellate Court for decision. The question was reduced simply to this—Should they when introducing changes in the law of bankruptcy be governed in deciding on the requisite judicial machinery, by the extent to which these changes would introduce new work? Let them, first of all, see how the new work could be disposed of under the existing machinery, and, having ascertained the extent of the new duties, then let them come forward with a measure to constitute the Court once for all, if a reconstitution shall be necessary. But do not let them tamper with the Court on the present occasion, admitting as they must that the alterations is not to be final. Constant appeals to what he or any other Member had said or thought in regard to that measure were wholly beside the ques- 1116 tion. He had, however, always been disposed to support the original view of the Government for a Chief Judge without Commissioners as an experiment in the London district, and he still believed that when the present measure had been fairly tried, the time would arrive for having a Chief Judge, and for remodelling the constitution of the Commissioners and Registrars.
§ MR. CRAWFORD
said, the House had hitherto had very much of a legal discussion on this question, and he trusted it would now give him, as the representative of a commercial community which took a great interest in bankruptcy reform, a few moments' attention while he stated the views entertained by his constituents. The hon. and learned Member who spoke last advocated a Micawber-like mode of dealing with the subject, thinking that they should wait a year or two until they saw what might turn up. That would not be a very expedient course. If they waited a year or two, they would be told that the question was settled as lately as 1861, and that it was too soon to interfere with it. His constituents were not favourable to that suggestion. On the contrary, they desired him to state that any alteration of the law of bankruptcy which did not embrace the appointment of a Chief Judge would be wholly unsatisfactory to the mercantile community, and they would far rather the Bill should be altogether lost than passed into law without that provision. There was almost perfect unanimity of opinion on that matter in the City, as indicated by the petition he had recently presented, to which 800 signatures had been appended, and amongst them those of twenty-five of the principal bankers. Sentiments nearly identical to those of his constituents had been expressed, by petition and otherwise, in all other parts of the country, with the single exception of Manchester, and, perhaps, also, of Birmingham. At the late meeting of the Associated Chambers of Commerce, held to discuss this subject, and which arrived at conclusions favourable to the measure as approved by that House, among the principal towns represented were Belfast, Bristol, Coventry, Dundee, Glasgow, Hull, Leeds, Liverpool, Norwich, Wolverhampton, &c. With respect to the opinion of Manchester, he wished to draw attention to certain facts connected with the expression of that opinion. In February last certain mercantile firms in Manchester addressed a memorial to the hon. and 1117 learned Attorney General on the question. In April they also addressed a petition to the other House, complaining of the uncertainty, expense, and delay at present attendant on proceedings in bankruptcy, asking for increased facilities for arrangements, and declaring that the standing and character of the Courts ought to be improved, and that uniformity in the administration of the law ought to be secured. But how could such uniformity be secured while the law was administered by five or more different persons? The existing Commissioners were not responsible for the defective state of the law; but the creditors of a bankrupt did not know into whose court they were going; they said that if they only knew that, they could form some idea of how the case was likely to be settled; and, in short, the whole matter was now a perfect lottery. Besides that, there was an utter want of dignity about the existing tribunals, which deprived them of that public respect which ought to be secured for any court of justice. To return to the petitions from Manchester. Attached to the first of those petitions there were 62 signatures; to the second only 48. He had a memorial from a gentleman representing one of the large mercantile bodies at Manchester; and, although that and another body had about 1,500 or 1,600 firms belonging to them, only 48 out of that number prayed that House to agree to the Lords' Amendments. These 48 firms, he understood, represented property to the amount of £14,000,000; but he was assured that £200,000,000 more nearly represented the property held by the 800 firms whose signatures were appended to the petition in favour of the Bill; and he earnestly prayed the House to give due weight to the opinion so forcibly expressed by that petition.
§ MR. HORSFALL
observed, that he would not have said a word on that occasion had the hon. Gentleman confined his remarks to his own constituents; but the hon. Gentleman had spoken also for Birmingham and Liverpool. And in justice to the hon. Gentleman he must state that he thought he had been somewhat deceived by the circular he had received from the deputation of the Associated Chambers of Commerce. He had himself received a similar circular, and he found, on inquiry, that Liverpool was not represented in it at all. The Chamber of Commerce of Liverpool had spoken for itself; its petition to the House was in reference to one clause 1118 only of the Lords' Amendments, the clause which referred to creditors' assignees. As to that clause, the petition affirmed the principle laid down in the Bill, but on the question of the appointment of a Chief Judge it expressed no opinion whatever. On that point he believed that opinions in Liverpool, Manchester, and Birmingham were very much divided. Had he himself felt any doubt on the subject, the speech of the hon. and learned Member for Guildford would have satisfied him that the appointment of a Chief Judge would be neither more nor less than a waste of the public money.
§ MR. HADFIELD
said, he believed that the trading classes in Manchester were not opposed to a Chief Judge, though there was, no doubt, great division of opinion upon the matter. He had been urged on various occasions by his constituents to support the Bill, and he had acted in accordance with their wish. Still, he thought that no one section of the community ought to decide the question, but the great and disproportionate cost of the distribution of bankrupts' assets under the existing system was an unanswerable argument in favour of the Bill. Of all the plans proposed for the distribution of bankrupts' estates the plan embodied in the Bill was the best. If they were to go on spending 50 per cent of a bankrupt's estate for distributing it, they had better, like the Americans, have no bankruptcy law at all, but let the creditors scramble for it.
§ MR. TURNER
said, he had felt for some little time, owing to the number of questions which had been addressed to him, as if he were upon the hustings in the face of his constituents. It certainly was not very flattering to the ability of hon. and learned Gentlemen at the other side to hear them all referring to a petition from forty-eight individuals, as if it contained rules which ought to guide the conduct of the House. The forty-eight firms which had signed the petition in question were all of the highest respectability, and doubtless represented, as they stated, £14,000,000 of credit given, though he hoped for their own sake they would never be obliged to collect them in the Bankrupt Court. But he must be excused for saying that such an amount, large as it undoubtedly was, by no means represented the entire wealth of Manchester. In common with the hon. Member for Liverpool he could state that great diversity of opinion existed on the subject among his constitu- 1119 ents. For a long time serious complaints had been made of the delay and expense of proceedings in the present Courts of Bankruptcy, and the attention of the Chambers of Commerce had frequently been directed to the fact that but a small percentage of the sums collected under that system found their way into the pockets of the creditors. One of the forty-eight gentlemen to whom reference had been so freely made told him that his objections to the appointment of the Chief Judge would be greatly lessened if that dignitary were really efficient, and if arrangements could be made by which he would go circuit through the different provinces, like the other Judges. He should give his vote in favour of the Bill in its original shape.
said, the debate rendered it evident that diversity of opinion did not merely exist out of doors on the question, for arguments more conflicting and contradictory he had never listened to. He certainly had been surprised at the speech of his hon. Friend the Member for the City of London (Mr. Crawford), for, not content with putting forward his own views, he set to work to dissect the opinions of others. That did not show a very great confidence in his own arguments; and, moreover, when central bodies met in London and petitions were presented nearly in the same words, those who were acquainted with the way such things were managed did not attach as much weight to their decision as if the petitions had been the result of spontaneous action. The hon. and learned Member for Plymouth (Mr. Collier) said it was most important for the non-traders that there should be an efficient Chief Judge. But the question immediately presented itself who was that Chief Judge to be? Were the judgments of any barrister of twelve years' standing likely to be received with more confidence than those of the Lords Justices? Such a Judge would be an unknown quantity against two good ones; and, as far he was concerned, he should be very willing to trust any interest he might have in the hands of the Lords Justices, who, he believed, formed a very safe tribunal. Then the hon. and learned Member for Wallingford (Mr. Malins) thought the Bill entirely wrong, but it was not possible to understand the force of his reasoning. The hon. and learned Member said that five years ago he had declared that the Commissioners, who had little to do, and did that little badly, ought to be abolished. But now he declared his wil- 1120 lingness, not only to retain those Commissioners, but to employ a Chief Judge to assist them. The hon. and learned Member contended that those who had not before opposed the clause were now precluded from doing so. But he maintained that on a subject where such great diversity of opinion existed, both in and out of the House, and where the measure had come down from "another place," supported by such a weight of authority, those hon. Members who previously had no very strong opinion on the subject, but were now forced to look at all the arguments on both sides, might not unreasonably exercise an independent judgment. The strongest argument, however, in favour of the appointment was that of the hon. and learned Attorney General—that he would have plenty to do; and he (Mr. Henley) wished to call the attention of the Attorney General and the hon. Member for Manchester to this point. The Attorney General had argued that it was a mistake to suppose the Chief Judge would have nothing to do, and, referring to the jurisdiction which was to be given to the County Courts, had calculated that if there was one appeal from every place at which a County Court Judge held his sittings they would amount in number to not less than 500 per annum. That must be a great consolation to the country districts, but if there was to be no delay in disposing of these cases they would want more than one Judge. The real question at issue was, had they now sufficient judicial power to dispose of the appellate jurisdiction in bankruptcy? If it was sufficient, all parties were agreed that the existing tribunal was a good one. Until it was tried we could not tell whether it was sufficient or not. If it was found to be insufficient it would be easy to add a Judge, but if a Judge was once appointed he could not be got rid of without a superannuation allowance. That process had been gone through once within thirty years, and those who recollected that occurrence were naturally rather shy of appointing a high judicial officer until it was clear that his services were required. As far as his information went he believed that the existing judicial power was sufficient, and before appointing another Judge he should like to see it tried. The hon. and learned Member for Plymouth (Mr. Collier) had referred to the jury trials for the various misdemeanours which were created by the Bill. As the measure left that House the Judge who was to direct the 1121 prosecution of the bankrupt was also to preside at his trial. For his own part he approved the change which had been made by the House of Lords, and thought that it was more consistent with justice that a man charged with a crime should be sent to be tried by a perfectly independent tribunal. For these reasons he thought that the alteration which had been made in the Bill was a good one, and should vote in favour of the Amendment of the Lords.
said, the existing system had been weighed in the balance during the last twenty years, and had been found essentially wanting. It was said that insolvency in the country had decreased, but he asserted, without fear of contradiction, that it had enormously increased, and chiefly in consequence of the defective state of the law on the subject. In almost every case of insolvency the party called his creditors together, and offered a larger sum in the pound than they knew they could get through the Court of Bankruptcy; and although they might consider in many instances that it was less than it ought to be, it generally happened that they accepted the offer. Every creditor knew that the moment an estate got into bankruptcy he lost all practical control over the assets of the insolvent. The Commissioners were excellent and worthy men, but the public had not faith in their surveillance and control over the official assignees, and the result was that a very small proportion of the cases of insolvency went into the Bankruptcy Court. Under the Bill as it passed that House he believed there would be a general resort by creditors to the Bankruptcy Court; and for himself, he thought that if they did not introduce a Chief Judge who would obtain the confidence of the mercantile community they had better abandon the Bill altogether.
§ MR. WALPOLE
I think it is a great misfortune that the debate on this subject should not have been taken in Committee. It is a still greater misfortune that we should now have to argue the question on an Amendment which has been introduced in a Select Committee of the House of Lords, and which has never been fully discussed in either House, instead of considering it in Committee with a view to ascertain whether we have made the best provisions for carrying into effect a new law of great importance. The consequence has been that neither the mind of this nor the other House, nor the mind of the country, has been called to the matter. The ques- 1122 tion, therefore, is one of first impression, and has never been discussed. Treating it as such, I am bound to look at it without regard to anything which has passed before, since nothing has passed in parliament before, and to consider whether we really require a new Judge, with a salary for £5,000, to superintend the adminstration of this law when it is first set on foot. From all I have heard in the course of the debate this appears to be clear, that to introduce the great alterations which you are attempting with regard to the assimilation of Insolvency and Bankruptcy and the practical abolition of imprisonment for debt without a superintending Judge would be very disadvantageous. To that extent, therefore, I am in favour of the measure as originally sent up to the House of Lords. I am bound, however, to ask myself the question which my right hon. Friend has so forcibly put to the House—whether, this measure being purely tentative and experimental, and not a final settlement of this great and difficult question, is it right to saddle the country with the expense of a new Judge, unless we are absolutely certain that a new Judge will be required? My own opinion, unquestionably, is that the necessary superintendence may be obtained in the same way which was once adopted before, of grafting the Judgeship in Bankruptcy on one of the Vice Chancellors for the time being. I think we had better do that in the meantime, and thus secure all the advantages of an able superintending Judge to keep the law uniform, without committing ourselves to a new appointment, which we might afterwards have to recall. Whatever may happen with regard to this particular Motion, the course I shall think it right to take will be clear. If the question should be negatived I shall be content to leave the matter for one year under the superintendence of two of the ablest Judges on the Bench, the Lords Justices of Appeal, trusting that after that experiment you will see whether it is necessary to appoint an independent Judge for the future. If, on the other hand, the Motion of my hon. and learned Friend the Attorney General should be carried, I think it will be very questionable whether, when we come to Clause 3, we ought not to amend it by omitting the words creating a new Judgeship, and inserting words to the effect that one of the Vice Chancellors for the time being shall be the Chief Judge in the Court of Bankruptcy. I am aware 1123 that some doubt has been entertained whether an Amendment of that kind can be proposed after the Lords have rejected the clause; but I believe that precedents have been discovered which show that it is in the power of the House to adopt it.
THE SOLICITOR GENERAL
Sir, I entirely agree with my right hon. and learned Friend who has just spoken in thinking that it is very much to be regretted that this subject was not discussed in this House on a former stage by those who are the opponents of the proposition made by the Government. But I cannot admit that the mind either of Parliament or of the country has not been addressed to the principle. All was done which it was possible to do no the part of the Government to impress on the mind of the House that this was an important part of the Bill. Its policy and object were clearly explained by my noble Friend the present Lord Chancellor. Nor was it introduced suddenly. It was contained in several former propositions on the subject, it has been years under discussion, and not a single voice has been seriously raised against it. The mind of the House has been as far addressed to the subject as is possible without opposition from hon. Gentlemen on the other side of the House. Still further from the truth is it that the mind of the country has not been called to the question. For years the country has been knocking at the door of the House, proclaiming the failure of the old system, and demanding a reform. The whole mercantile community were urgent in their demand for a change, and insisted that no time was to be lost. Nay, so urgent were they that they even complained of the unavoidable delay which occurred in giving the measure proper consideration. That demand was not an idle one. It was supported by the remarkable fact that for a series of years the business in bankruptcy had been declining, and that by the side of the system was growing up, in enormous proportions, a substituted system of private arrangements, which withdrew the liquidation of insolvent estates altogether form the cognizance of the law. Such a state of things spoke volumes as to the absolute necessity of reorganization and reform. What was the cause of the state of things? I will appeal to the most unfavourable witnesses we can discover—to those forty-eight Manchester firms whose single voice in the whole mercantile community of the kingdom is now raised in 1124 favour of the Lords' Amendments. These firms tell us now that the Lords Justices do the business perfectly, and that no other Judge is required. But on a previous occasion, when these petitioners had to unfold the tale of their grievances and describe the remedy they sought, they complained of the uncertainty of decisions, and submitted that among the great desiderata of a just reform were uniformity of decision and standing, character, and dignity of the Courts. What did that mean? What could it mean, except that there should be a Judge to preside over the administration of this branch of Justice, in order to reduce incoherence and inconsistency to order and uniformity? The rest of the mercantile community have taken that view of the matter, and to no point has the attention of the country been more fully directed.
In approaching this subject with a view of repairing the evils of which the petitioners complain, we should endeavour to prune away all the abuses we could discern, and to meet the reasonable wishes of the mercantile community as far as possible. At all events, we should aim at removing any impediments which prevent the whole business of bankruptcy and insolvency from being brought within the scope of one law, and at giving unity, consistency, and authority to the administration of this department of justice. To effect this it is necessary to have a head, a centre, a presidency, a ruling genius to control the operation of the system, and such a head the Government propose in the person of the Chief Judge. To strike him out of the scheme is to reduce it to the same disorder and confusion which you find in the existing arrangements, and which it is your object to put an end to. The way in which this House—I will not say has proceeded, but is asked to proceed, by those who support the Lords' Amendment, is most singular. Last year a Bill was introduced which proposed to abolish the Commissioners, and to put them on pensions, and have a Judge. No one objected to that abolition, or to the Judge, only you would not pension the Commissioners. This year the Government is not departing from that principle, but, deferring to the views of the House, by an arrangement which after all is only of a temporary character, they propose a transition of a more gradual character in lieu of the more abrupt transition provided by the Bill of last year. They do not depart from the principle of authority—from the 1125 principle of unanimity; but they say, "Since the House does not like pensions we will retain the Commissioners, and make use of them as long as they will give their services to the public. The transition shall be gradual, but the Commissioners shall no longer be independent units, each revolving in his own orbit, and all utterly ignoring each other. All shall be subordinate under one chief, who shall reduce to order that system of which he is the head." The Bill provides for the reduction of the number of Commissioners as vacancies may happen. Power in taken in the Bill to retain a maximum number of three Commissioners, but the Bill does not stop there, for Clause 23 gives an elastic discretion to reduce the number below that maximum, if it be shown by practice that the business can be conveniently discharged by less then the three; and in order to facilitate the reduction, and to pave the way, if it may be fond convenient, to the ultimate abolition of the Commissioners altogether, there is a machinery for employing the registrars in all ministerial, and not properly judicial, business which can be discharged by them. The Bill, therefore, contains within itself the elements of a self-regulated system, which will, in the course of nature and necessary events, bring you to the point to which you would have been brought by the Bill of last year. Last year the House would not have a Judge with the Commissioners pensioned off. Now some hon. Gentlemen will not have a Judge with the Commissioners working till they die off, or until they are by other means gradually reduced. Is that because they like Commissioners? I have not heard that stated. Of course, as regards the Commissioners themselves there is no voice raised against them. The faults with which we are endeavouring to deal are faults of the system. and those learned gentlemen are not to be held responsible for them; but no one has held that it is desirable to maintain the present system of Commissioners. I have not heard a word which would indicate that. I must express my concurrence with my right hon. and learned Friend the Member for the University of Cambridge, that it is a misfortune that we do not know on what principle the Lords proceeded. I cannot help thinking that this part of the case did not receive the consideration to which it was entitled; and to this we may, in a great measure, attribute the alteration which we now ask the House to remove, 1126 and which I venture to think was hastily and unadvisedly introduced. But my right hon. and learned Friend who last addressed the House said that this was an experimental measure, and was accordingly to be treated in an experimental way. I deny it. This is not an experimental measure in any sense but that in which every measure of reform is experimental. In the working every reform may be found to have weak points and strong points; and in that sense every measure of reform is experimental; but in no other sense is the scheme now before the House experimental. It is the result of long and matured consideration. I entirely protest against the notion of dealing with this, the cardinal point in the system, as if we were merely throwing it loose on the world to see how it would work, and then, in the next Session of Parliament introducing another and a different plan. It was not with that view the Government introduced this measure. I believe it was not with that view the mercantile community in general approved it, and I venture to state that it was not with that view it was passed through this House. I have been greatly puzzled by some things which have fallen from those speakers who have upheld this Amendment. They have not said expressly, "We agree with the Lords. We do not like the Judge. We wish for another system." Not at all, There is hardly one of them who, if in a year or two he found himself an occupant of the bench on which I have now the honour to sit, might not say, "I thought all along that the Judge was the right thing, but at the same time I considered it more prudent to wait till some experience had been had under the new Bill." Those hon. Gentlemen seem to bear in mind the maxim of an ancient master of politics as well as of rhetoric, who recommends us always to hate as if we knew that some day we would have occasion to love. Those hon. Gentlemen, if in a few years they find themselves in the position in which we now are, and if they find the country knocking at their doors and saying, "This system won't work without the head which you cut off from it." may reply, "We never seriously doubted that from the beginning, and now that experience has proved that we were right we are willing to appoint a Judge." I venture to say that the present is the time, that the necessity is now as clear as it will be then. We are now dealing with the subject, and I think the 1127 country will have a right to cry shame if we do not deal with it in a manner that will give our new system the best chance of success.
The hon. and learned Member for Guildford (Mr. Bovill) says, "What are you doing? You are appointing over again the old Judge in Bankruptcy whom you appointed in 1831, and who worked so ill that you had to abolish him a few years afterwards. You are giving him the same functions." Now, is that a fact? For the argument is good for nothing if it is not the fact. It is not a fact. The functions are as different as any functions can be. I will enumerate very shortly the more important duties of this Judge. The right hon. Gentleman the Member for Oxfordshire (Mr. Henley) seemed to forget some of them. He spoke as if this functionary would have nothing to dispose of but appeals; but this Bill provides for a very large amount of original jurisdiction of a most important character which is to be discharged by this Chief Judge. I will take first what is, perhaps, the most important point—the clause with reference to the discharge of bankrupts, who will hereafter include nontraders and insolvents as well as traders. Every case of a contested discharge falling within the London district will be of necessity referred to and tried by the Chief Judge, and also if the Commissioner who shall have the administration of the case shall find that there are any special circumstances which, though there may be no opposition, appear to form a well-founded objection to an immediate discharge, it will be his duty to report those circumstances, and reserve the question for the determination of the Chief Judge. What is the existing system with respect to certificates? There are five Commissioners, and there may be, and practically there are five different rules as to the principle upon which certificates shall be given. If there is any question more difficult than another it is the question of conduct which arises on granting a certificate. One Commissioner will give a first class certificate in thirteen cases out of which another would give such a certificate in only one. Such is the want of method, unanimity, and uniformity which now prevails. And yet the branch of the administration of justice with which we are now dealing is one on which it is not too much to say commercial morality depends in a very high degree. The object of the 1128 bankruptcy law is to give a free and full discharge to any honest bankrupt; and, in order to prevent the operation of that law being a premium on dishonesty, it is necessary that its administration should be very carefully and ably conducted. What more important function can be imagined than that which occupies so considerably the time of the Commissioners at present? And I know that very many of the cases of Bankruptcy which come before the Lords Justices are questions of certificate, which are singularly ill-adapted for appeal, on account of their peculiar nature. This original jurisdiction of a most important character, affecting the reputation of every one brought under it, and the whole commercial morality of the kingdom, is by this Bill brought primarily in contested cases, and in uncontested cases, by the report of the Commissioners to the Chief Judge. The effect of the Lords' Amendment is to throw it back on the five Commissioners, not sitting as a Court, but each applying one-fifty of a principle or one-fifth of a rule, or five different principles and five different rules; so that it will be a toss up, a game of chance, of haphazard, whether a man who has conducted himself in a questionable manner shall get off free, or be punished leniently or severely, if punished at all. If upon any one point it is necessary to concentrate the power of a single mind of high ability, and possessing the confidence of the public, it is upon this point; and this seems to have been entirely lost sight of in the Lords. It seems to have been lost sight of in the debates which have taken place here; and, if anything could add weight to this consideration, it is that you not merely abolish by the present Bill the classification of certificates, but substitute for it a system of penal process. Not only is there a clause which provides for the trial of a bankrupt if he stands accused of any offence against the law as it at present stands, but there is an independent particular enactment against new offences, for which, with his consent, he may be tried by the Chief Judge, according to the proposal of the Government; or by the Commissioners, according to the proposal of the Lords; and, if he do not consent, for which he may be sent to be tried in other courts of the realm. Rules and principles are for the first time embodied, so to say, in the penal laws, by which the conduct of a trader is to be tried and deter- 1129 mined in this court: not offences for which he may be tried anywhere else, but mercantile offences, for which he may be tried there, and for which he may be punished expressly on a penal principle, not by qualifying the certificate or for a time suspending protection. The Lords have sent back that clause, leaving that also to each and every one of the five independent Commissioners. But I think the House of Commons will be of opinion that this is a jurisdiction which ought to be intrusted to the hands of a Judge of the highest standing, of the highest character, and of the highest authority, who shall administer justice in manner calculated to give satisfaction to the people at large.
The other duties are very important, though not so important as this, and I only pause to advert to them for the purpose of correcting the notion that the Lords Justices will do whatever the Chief Judge would have done, and which is left now unprovided for by the Amendments. My hon. and learned Friend the Attorney General has pointed out the different special matters upon which the attention of the Chief Judge would be employed otherwise than by way of appeal. Under the 61st Clause he was to have particular points of law upon the administration of the estate referred to him. That is not to be done by the Lords Justices. It is now to be done by each of the five Commissioners, who may certify five different ways, and bring the law into greater confusion than at present, instead of giving it greater clearness. The trial of issues is left otherwise. That is to take place before the Lords Justices. But I have not heard by hon. and learned Friends who are acquainted with the administration of justice in the Court of Chancery express an opinion that the Lords Justices are likely to devote much time to the trial of issues of fact with juries. They have shown no disposition, at all events, to avail themselves in other cases of the power to summon juries which they possess, and I do not think that without great interference with their business they could do so. Special cases are also to go to the Commissioners, if there is no Chief Judge. With regard to appeal business, you enlarge the number of courts from which those appeals will come; and I will here make a few observations to bring clearly under the view of the House the various sources of increased business which seem to be left entirely out of sight when it is supposed that there will be 1130 only the same business to discharge as formerly, and that it is sufficient to rely on the same staff. There is the transfer of insolvency in the first place, in which there is no appeal at present. Some hon. Gentlemen seem to think that it works very well. Perhaps they think that you may very well abolish appeals. No doubt if there are no appeals you will not have the trouble of providing for them. But I cannot help thinking that, now you let in the non-traders, and include the whole property of the country, from the highest Peer to the lowest peasant, it will be a startling thing if you contend that no appeal is necessary, or that no appeals may be expected. You must bear in mind that the effect of the non-trader clauses is entirely new, and that previous experience in matters of insolvency cannot be applied either to the number of cases, or the importance of the question, or the amount of the property. Then there are all the composition deeds, amounting, upon an average of ten years, to 10,000 a year. These, in addition to the 1,000 or 1,100 cases of bankruptcy, are all to be swept in and made subject to the jurisdiction of the Court. In every deed you may deal with matter for a whole Lost of Chancery suits; and can it be supposed that this will not be a source of important business, for which provision must be made, and with respect to which the appointment of a Chief Judge is essential? Take into account besides the increase of bankruptcy business in general which must arise from the beneficial effect of these improvements, and the facilities which will be given to the public to come into bankruptcy in one shape or another, and who can possibly doubt that the machinery of the Bill will and must bring under cognizance all the business of insolvency throughout the kingdom? When these things are considered, surely the policy of having a Chief Judge, as originally proposed, is more than amply justified. Surely I have shown that in striking out the Chief Judge you strike out the regulator of the whole system. The argument against it assumes the failure of the Bill. But why it should fail I do not know. It is a Bill the substantive provisions of which have passed both Houses. If anything causes it to fail it will, undoubtedly, be striking out the regulator. But, unless you assume that the Bill will fail to bring business and to satisfy the wants of the community, it is clear you are strangling it, crippling it, destroying its chance of 1131 success, by leaving out those means which are provided to secure a consistent, uniform, dignified, and authoritative administration. I wish the Lords Justices were here to speak for themselves. I am very sure that their Lordships would be surprised to hear that they are to do all which you call on the Chief Judge to do. Not a word which can be said of the manner in which their Lordships have discharged these duties hitherto can exceed their deserts. But their bankruptcy business is of a different character, and has reference to matters of far less importance and magnitude than those which you throw upon the Chief Judge. They have discharged no part of the original jurisdiction in bankruptcy, nor is it proposed to give it to them. But I venture to say, if the increase of business takes place, which it is impossible to doubt will take place, unless the Bill is a total failure, and if there is a proportionate increase of appeals, those appeals will absorb the whole time of the Lords Justices, and turn them into a Court of Bankruptcy. They were not established by Act of Parliament to be a Court of Bankruptcy. They were established to assist the Lord Chancellor, and any attempt to overload them with bankruptcy business will, in truth, be simply destroying the valuable machinery which the Legislature has created for a different purpose, and throwing the business of the Court of Chancery into confusion, merely to avoid giving a head to the Court of Bankruptcy. And I take the liberty of saying one thing, which is consistent with the most profound respect for the Lords Justices personally, and for the manner in which they have discharged their dutied:—You never can expect from a Court which has other functions the same efficiency in the particular duty of superintending the general administration of such a system as bankruptcy, as you may expect, and doubtless will find, from a Judge whose office makes it his duty to attend exclusively to that particular thing. Bankruptcy before the Lords Justices is a secondary object, and so must be. When it comes before them in the way of appeals, doubtless they give precisely the same attention to it as they give to other business; but the duty of general superintendence, the duty of being the head of a system, cannot with any prospect of beneficial results be appended to another system entirely alien form bankruptcy. The other proposal made by my right hon. and learned Friend the Member for the 1132 University of Cambridge is, I take the liberty of saying it, even more objectionable than to rely on the Lords Justices. His proposal is that one Vice Chancellor or the Master of the Rolls shall have united to his present jurisdiction the duty of discharging all the functions which this Bill proposes to throw on the Chief Judge in Bankruptcy.
§ MR. WALPOLE:
I did not propose all the functions as proposed by the original Bill, but as amended by the Lords, which is a totally different thing.
THE SOLICITOR GENERAL:
I understand my right hon. Friend to mean exclusively the appellate functions. To give the appeal business to one Judge in the Court of Chancery would not in the least degree promote either the speedy or efficient administration of the business, while it would most materially interfere with the proper business of the Court of Chancery. So far from adding to the bankruptcy jurisdiction of the Court of Chancery, it would rather be convenient to remove from it a class of business akin to bankruptcy—namely, the winding-up of insolvent joint-stock companies—a species of business which would be better discharged by the Court of Bankruptcy. It is a great mistake to imagine that because in any given year some particular Court for a short time may not be fully occupied, that, therefore, the Court of Chancery has too much strength for its business. It is true that in the early part of this year business was slack in the Rolls' Court; but that was not owing to any permanent cause. The Judge of that Court, a man worthy of the name he bears, who for a long period has discharged his duties in a manner combining perhaps in a degree not exceeded by any other Judge, despatch, accuracy, and safety of decision, transacted the business with such despatch and efficiency, that the incoming business did not equal the outgoing. But such a state of things in a short time tends to alter itself. Nature abhors a vacuum, and this vacuum soon filled itself up. The suitors soon find out where their business will be rapidly transacted; and this state of things very shortly ceased to exist. Nor is it at all consistent with experience that the permanent feeders of the business of the Court of Chancery will so far fall off as to make it probable that one of the Judges who for the last ten years has been fully occupied will hereafter be found to be insufficiently occupied.
1133 Let me ask, in conclusion, whether the House wishes to deal in a merely experimental spirit with this important matter? If a Chief Judge be necessary this is undoubtedly the time to appoint him. When you are launching a new and important reform, which must increase the business, and which must require concentrated administration, that is the time to apply this remedy. No course that I can imagine would be more unwise than to wait till the success of the measure has been imperilled by leaving out the condition under which alone it is likely to have eminent success, and when the public are discontented and the whole matter is at sea again, then to say we will consider whether we cannot patch the system up by appointing this Chief Judge. I find no reason or principle, nor do I find any authority in favour of such a course. But one single mereantile body has said a word in favour of such a proposal, and that body testified against it before it became a matter of political controversy in the House of Lords. The other mercantile bodies are against it. It is clear that the London district is most interested in the matter, and one is not surprised, therefore, to find the London merchants confident in favour of a Chief Judge. I am justified, therefore, in saying that there is no trace of an adverse opinion existing in any part of the country. You have no single reason against the proposal except the authority of those eminent names which in the House of Lords appear to have given their sanction to this Amendment. For those learned persons I entertain so profound a respect that I am not inclined in any way to under-estimate the weight due to them. But when we have their opinions without their reasons, when we are not aware how far the subject was considered by them, or how far they were led to suppose that the opinion of Manchester and Lancashire was adverse to the Government proposal, I cannot think that the mere authority of those eminent names ought to overrule the weight of experience, of principle, and of necessity, and of the long and deliberate consideration which the subject received before the Bill was sent up to the other House of Parliament. This House, at all events, having sanctioned the proposal for reasons which have not yet been answered, would, I think, do very far from well if it were not now to express its adherence to its original decision.
§ SIR HUGH CAIRNS
Sir, I will begin the very few observations I have to address 1134 to the House by welcoming back to our councils the hon. and learned Gentleman who had just sat down, the advantage of whose advice we have enjoyed before, and may now congratulate ourselves on again possessing. In order to narrow the discussion as much as possible it will be desirable to consider what the precise question before us is, for I have observed in the debate a tendency to go wide of the point—though certainly not on the part of the hon. and learned Gentleman who has just addressed us—and to travel into a general disquisition on the imperfections of the bankruptcy laws. The only question before us on this Motion I take to be this—whether, having already in the London district five Commissioners of bankruptcy with salaries of £2,000 a year, it is wise and expedient, by was of experiment, to add a Chief Judge whose jurisdiction for by far the greater part of the time will be co-ordinate with that of the five Commissioners, and who will, in fact, simply be, so far as the greater part of his duties are concerned, a sixth Commissioner for the London district? The view of the mercantile bodies on this question of a Chief Judge is, of course, of great importance, and I am free to confess that the greatest attention ought to be paid to their opinion on the matter in which, after all, they are the most deeply interested. But most of those who have observed on those expressions of opinion of the mercantile community have fallen into a great error. Take, for instance, the petition from the City of London. They ask that the Lord's Amendment as to a Chief Judge may be disagreed with; but for what reason? They say that there are already five different Commissioners, coming constantly to conflicting decisions, and, therefore, they want a Chief Judge. But did these petitioners know the real state of the case? Were they informed that the very thing to which they object is the very thing which will exist a week after this Bill passes? Were they informed that if this Bill passes without the Lords' Amendment there will be not only five Commissioners, but a Chief Judge in addition—six Commissioners in all, with co-ordinate jurisdiction within the London district, who may, if they please, come to six different descisions—with this addition, that the Chief Judge, when he is tired of sitting a co-ordinate Commissioner, may sit to rectify by way of appeal those things which have hitherto been rectified by a tribunal which at least has 1135 given as much satisfaction as the new Judge can expect to give? The petitioners evidently conceive that if they get a Chief Judge they will get rid of the Commissioners. But that is by no means the case. The Commissioners will be like the old man of the mountain, in the story, sticking fast to their shoulders. My hon. and learned Friend the Solicitor General went too far in suggesting that this Bill was a transition Bill, gradually getting rid of the Commissioners, for it gives power, when the Commissioners have sunk down to three in number, to make new appointments to keep them up to that number. Therefore, when that time arrives the merchants of the City of London will have three Commissioners coming to different decisions instead of five. The hon. Member for the City of London (Mr. Crawford) says he finds a great want of dignity in these Courts at present; but the same objection will apply to them when this Bill passes. This Bill gives them increased jurisdiction, and, if that increased jurisdiction does not increase their dignity, the hon. Member's objection will remain all the same. The hon. and learned Solicitor General says that the petition of the forty-eight Manchester firms is the only voice that has been raised on the part of the mercantile community in favour of the Lord's Amendment. The hon. Member for the City of London, too, surprised me when he spoke of the Associated Chambers of Commerce coinciding with the trades of the City of London. I hold in my hand a petition agreed to at a special meeting of the Standing Committees of Associated Chambers of Commerce. The first of these bodies is the Chamber of Commerce of Belfast, not on account of its importance, but as a matter of alphabetical arrangement. Then comes the Chambers of Birmingham, Bristol, Glasgow, Hull, Leeds, Liverpool, Sheffield, Southampton, Wolverhampton, and a number of other places. What does this petition of the Associated Chambers of Commerce say? It takes up all the Amendments of the House of Lords, and objects to some of them, but does not say one word against the Amendment striking out the clause relative to the Chief Judge, leaving it to be assumed—and it must be assumed—that they are quite satisfied with the Amendment of the other House, and that they have not one word to say against it. But the matter does not rest there. The hon. Member for Liverpool (Mr. Horsfall) says that the town of 1136 Liverpool and the traders of Liverpool are very much divided on this subject. Nor is there a clear and unequivocal voice from Manchester, for that town also is divided on this question. Inasmuch, then, as the petition of the traders of London is founded on a misconception, as the petition of the Associated Chambers of Commerce indicates no objection to the Amendment, and as the towns of Manchester and Liverpool are divided in opinion, we must conclude that either a large portion of the mercantile community look with satisfaction on the rejection of the Chief Judge clause, or else that they are entirely indifferent on the subject.
My hon. and learned Friend says that some of those who objected to this Bill did so on grounds inconsistent with the course taken by them last year on the Attorney General's Bill. I beg to correct my hon. and learned Friend on this point. What seemed to me an undoubted benefit was that the Bill of last year swept away these Commissioners, and gave one uniform and unvarying tribunal for the London district. By this means the co-ordinate jurisdiction was got rid of, and on this ground expressly I and others approved this Bill. But in the Bill of this year several hon. Members on this side of the House disapproved that part of the Bill which combined the Chief Judge with the five continuing Commissioners. As to the appellate authority of the Chief Judge we have evidence that proves almost to demonstration the amount of his duties. I will take, for example, the appellate jurisdiction of the Lords Justices, and ask—can anything be more of a mockery than to appoint a Chief Judge for the sort of appellate jurisidiction I am going to describe? The Appellate Court in Bankruptcy sat last year fifteen days and heard forty-two cases. That was the whole of the appellate business. The hon. and learned Attorney General says that the number is probably few, either because the cost is great, or the delay is considerable. I challenge both statements. I do not know the cost of an appeal in bankruptcy, but will the hon. and learned Attorney General point out one sentence in the present Bill that lessens the cost of appeal? There is not one word that deals with the question of cost, or that makes an appeal a shilling cheaper than before the present appellate tribunal. If such a clause were introduced, the only result would be that if appeals could be made less expensive before the Chief Judge 1137 they could be made less expensive also before the Lords Justices; and if the hon. and learned Attorney General should apply such a clause to the reduction of the cost of an appeal to the Lords Justices, he would be taking a step in the right direction. The hon. and learned Gentleman is also under an error when he speaks of the delay in the Appellate Court of the Lords Justices. The fact is that whether an appeal be put down on Monday, Tuesday, or any other day, if the parties are ready to have it heard it will be heard on the following Friday. There is, therefore, no delay before the Lord Justices. All the Judges that might be created could not expedite matters more, for the state of business is such that when an appeal is ready to be heard, it is heard at once and disposed of. But the hon. and learned Attorney General suggests that there is going ot be a great increase of business, and it is, therefore, assumed that there will be more appeals. The hon. and learned Gentleman reminds us that the Chief Judge will have jurisdiction over appeals from sixty County Courts. I hope that by increasing the tribunals we are not about to increase the number of appeals, because that would be an ill compliment to your tribunals. I will assume, with the hon. and learned will increase so as to be double what it is at present—that there will be eighty cases instead of forty, occupying thirty days instead of fifteen. But is not the Court of the Lords Justices perfectly able to give thirty days and dispose of eighty cases with the same satisfaction as forty cases? [The ATTORNEY GENERAL: I did not say there will be double the amount of business merely. but that there will be a very largely increased amount of business.] I took down the hon. and learned Gentleman's words, and I understood him to say that the "business might be taken as at least double." But if the matter is thrown loose again I am at liberty to speculate that the business will be double, and that the appeals will be double in number; and I say that if that is all the appellate tribunal will have to do you do not want a Chief Judge with £5,000 a year, and all the costs of a new Judge to do it. The hon. and learned Solicitor General says it is an evil to have five different Commissioners, because they have five different standards as to the conditions on which certificates ought to be 1138 granted. The certificates are of different classes, and each of the Commissioners took a different view of the merits of the bankrupt, one Commissioner giving one class of certificates and another Commissioner another class for similar cases. But that clause of the former Bankruptcy Bill is abolished by this Bill, and that removes the difficulty about the Commissioners granting certificates of various classes. But the matter does not rest there. The hon. and learned Solicitor General says that uniformity will be attained by the one Judge, and that general system of discharge for bankrupts will prevail. But by the Bill the original jurisdiction of the Chief Judge in granting certificates is confined to the London district. What, then, is the bankrupt to do at Liverpool, Manchester, and other towns; and what uniformity do you secure with regard to certificates in all those towns? It is a delusion, and we are asked to pay £5000 a year for that which does not exist. There may, indeed, be some uniformity with respect to four or five Commissioners in London, but with respect to the sixty County Court Judges, and the six or seven country Commissioners, the Chief Judge will not have the slightest original jurisdiction over the grant of these certificates. It is said that, as any one will be at liberty to consult the Judge on a point of law, the result will be that great uniformity will be produced, as there will not exist the varying opinions at present given by a number of different Commissioners. But is the House aware that the meaning of this consultation is simply this, that any person during the proceedings is to be at liberty to take the opinion either of the Judge or of a Commissioner? Will that arrangement produce uniformity or that identity of decision which the hon. and learned Solicitor General says is likely to arise from it? The next point dwelt on by the hon. and learned Solicitor General has reference to the trial by jury; and the House has been told that a new system is about to be introduced, analogous to the system in the Divorce and Probate Court, by which a great deal of business is to be done by trials by jury. It is contended that for the satisfactory despatch of this branch of the business it is necessary to have a Judge at the head of the Court. Now, is the House aware of the whole extent to which trials by jury were applied in bankruptcy? The Court of Bankruptcy has no jurisdiction a 1139 all except over the bankrupt, the bankrupt's assignees, and any persons who choose to come in and submit to its jurisdiction; and it is the rarest possible thing for people voluntarily to submit to the jurisdiction. The facts in dispute in bankruptcy generally relate to fraudulent preference or the real ownership of certain property, and these questions are never tried in the Bankruptcy Court, but are tried by actions at law. It is not in the nature of bankruptcy that there should be once in a month, I may almost say once in a year, any question of fact relating to the bankrupt which can be susceptible of being tried by a jury. So much for this point about the trial by jury, which is almost a delusion, but the greatest delusion of all is involved in the proposition respecting the punishment of bankrupts for misdemeanour. I admit that if the facts warrant the statement which had been made there would be a case for a Chief Judge, because it is said that a new principle is to be introduced into the system of bankruptcy—namely, that the bankrupt is to be punishable for offences for which he was not punishable before, and the Court of Bankruptcy is to have a criminal jurisdiction it never before possessed. The hon. and learned Solicitor General says that the House will not trust these extensive powers to any one but a Judge of the first standing. How stands the fact? Is the House aware that all over the country, excepting only in that one spot characterized as the London district, these great powers so pompously paraded as a reason for a Chief Judge are given by the Bill, as prepared by the Government, to the sixty County Court Judges and the country Commissioners, without any original jurisdiction in the Chief Judge to control any one of them? Therefore, the idea that, as great powers are handed over to the tribunal for the first time, the tribunal must be a first-class one is altogether fallacious, as may be seen by reference to the end of the 164th Clause. In these cases there can be no appeal to the Chief Judge, for the Government surely do not mean to say that they intend to introduce appeals in criminal cases, after a decision by a jury. It is idle, therefore, to say that a Chief Judge is wanted for which the Chief Judge is required? The House has been told that there are to be a great number of deeds of arrangement; that the parties to those deeds will require 1140 to consult the Judge from time to time; that questions will arise which will have to be decided; and that it is highly desirable, for the sake of uniformity, that the Chief Judge should have original jurisdiction over them. But the Bill does not affect this. The sixty County Court Judges and the Country Commissioners have exactly the same power in this respect as the Chief Judge, and not one iota of uniformity is secured by the appointment of the Chief Judge, as far as regards original jurisdiction. As to the appellate jurisdiction, uniformity can be secured through any appellate jurisdiction, and I think I have satisfied the House that the present appellate tribunal is able to do its business efficiently. Therefore, I charge the Government with being experimentary. I do not desire to appeal to great names; but, I ask, what was the course pursued in the other House with respect to the Amendment under consideration? It is said that this has been made a political question; who has made it so? Who proposed the Amendment in the other House? It was a noble and learned Lord of great learning and experience in bankruptcy jurisdiction, whose eminent judicial talents and abilities will always cause him to be regarded with the greatest possible respect. That noble and learned Lord, acting in political concert, not with those who sit on the Opposition side of the House, but with the Government, proposed the Amendment, which was supported by the most eminent legal authorities who adorn the Senate, sitting in the other House. There was no division on it, and with the exception of the late Lord Chancellor, who, if he had had the opportunity of expressing his opinion by a vote, would probably have voted in favour of the Government Bill, all the members of their Lordships' Committee appear to be unanimous in supporting the Amendment. Therefore, if authority and freedom from political motive can commend any change, this change comes down to the House of Commons with the full weight of such recommendation. We are now at the end of the Session. Next year a consolidation of the law of bankruptcy is promised. If the Government then bring in a Bill abolishing the power of the Commissioners they shall have my hearty support; but I do protest against throwing the whole administration of the bankrupt law into confusion by creating a sort of unmeaning, undefined, co-ordinate jurisdiction, which 1141 will be the result if the present proposal be carried.
§ Question put; the House divided:—Ayes 173; Noes 129: Majority 44.
§ Further Consideration of Lords' Amendments deferred till Monday next.