Mr. James L. Knight rose reluctantly of making general observations, tending to address the House on a subject of such to the depreciation of that important great importance at so late an hour of the Court, of which bankruptcy was a separate night; but he was obliged to do so in jurisdiction. He did not wish to allude consequence of the determination of his more particularly to those observations Majesty's Ministers to submit a measure because they were foreign to the matter of this importance to the consideration of then in hand. But whenever the question the House at that period of the Session, should arise to which those observations and at so late an hour. Before he pro- should be relevant, he should be quite ceeded to make the observations with ready to meet that hon. and learned Genwhich he should have to trouble the tleman, if possible, to concur with him; House on the present occasion, he wished and, if differing, to state the reasons on to guard himself against being misunder- which his opinions were founded. The stood upon two points. In the first place, hon. and learned member for Newark he desired anxiously not to be understood went, if possible, a great deal further, as considering or treating this as a party because he thought himself warranted in question. It was a question of great im- saying, that the present system of the portance as affecting the general admi- Bankrupt Laws was one which received nistration of justice, and he should be the general execration of the public. How ashamed of himself if he could be actuated his hon. and learned friend, speaking from by any other motives than those which the very heart of the House-speaking, ought to influence a man in the considera- to a certain extent, as the organ of Gotion of such a question. He would take vernment, could bring himself so to chathis opportunity of saying, that if he con-racterize the whole system of commercial sidered the present measure as one calcu- law, which it was very possible might related to advance the interests of the com- main unaltered, in its present state-how munity, with reference to the subject to he could bring himself to make such a which it related, it should have his hum- declaration, he was at a loss to conceive. ble support from whatsoever quarter it It might be very well to make such statemight come. He was also anxious not to ments when something like proof could be be understood as contending, that the brought forward to support them; it might present state of the bankrupt law was one be very well to state facts of any kind; that might not usefully receive some but to speak thus of a system which had alteration. He agreed with all, or almost grown up and gradually improved under all, of those who had considered the sub- the superintendence of the first and best ject, that there were several points in which men that had ever sat on the bench in this branch of the law, as well as most this country-to speak of such a system branches of it, might usefully receive some as a subject of general execration, was alteration. Admitting, therefore, that something far beyond what he ever exthere might be points in which the bank-pected to hear in that House, and cerrupt-law of the country might receive useful alterations, the question was, whether the Bill now before the House, would produce that alteration which was called for, and whether legislation, to the extent proposed by this Bill, could be usefully adopted for the general benefit of the community. He certainly felt some regret at the manner in which this subject was treated by his hon. and learned friend, the member for Winchelsea, and by the hon. and learned member for Newark, neither of whom, treated the subject in that tone of moderation and temperance which the nature of the question required. The hon. and learned member for Winchelsea, during the observation which he addressed to the House on this subject, repeatedly diverged from his course, for the purpose

tainly far beyond any observation he ever anticipated hearing from the hon. and learned Gentleman himself. The bankrupt-law of this country was not a law introduced in dark and barbarous times, or in times when institutions were totally foreign to those under which we now lived: it was introduced in the reign of Elizabeth, was amended in the reign of James, and received its grand improvement, under which it continued to be administered for so many years, from one of the greatest and best Judges that ever sat in this country, Lord Hardwicke, under whose auspices that great statute which amended the Bankrupt Laws was introduced. The principle of that statute was, to put the administration of the affairs of bankruptcy under a species of Chamber tribunal, much

more competent to investigate matters of | ceed, as shortly as he could, to notice some account than an open Court not invested of the inconveniences of this system which with the whole administrative care of the had been pointed out-inconveniences estate, which tribunal was assisted by to which the learned and eminent persons trustees chosen by the creditors at large to whom he had alluded, were not blind, for the use and benefit of the estate, and but against which they endeavoured to from the decisions of that tribunal appeals guard carefully and sufficiently without were given to the first Judge in the country unnecessary expense. One inconvenience -namely, the Lord Chancellor. Had it was the want of judicial power to enforce ever occurred to any of the eminent Judges that respect which ought to be paid to who had held the Great Seal in this every tribunal. It was discovered that, as country, to change such a system-had the law stood for a considerable time, the it ever occurred to my Lord Hardwicke, Commissioners, sitting to dispense justice, that the system was in its nature a proper might be treated with insult and consubject of execration, and that it was a tumely, and yet might not be able to system of law under which a commercial protect their jurisdiction by a proceeding country could not exist, the case might in the nature of contempt-that lack of have been different. But did it ever occur power which had been, if he correctly to any of them? Did it ever occur to a understood those hon. Gentlemen who great man since that time not unfriendly had spoken on the other side, one of the to Reform, not indisposed to change-he causes of the objections which existed to meant Sir Samuel Romilly, than whom no this tribunal. Why, this objection had man ever existed more desirous to improve been already removed; by the existing the administration of justice. Among law, the Commissioners had the same other improvements which that great and power of enforcing respect as any other public-spirited man introduced into the Court had. There could be no fair reason House, there were certain measures which for supposing, that since the passing of were considered by it with the greatest enactments which had produced that effect, degree of attention, and which were intro- the Commissioners' Court should not be duced after the greatest deliberation, for attended with as much decorum and rethe purpose of improving the Bankrupt spect as any in existence. Then, it was Law of the country. These alterations did said, that the lists of Commissioners were improve it most materially; but were they composed of improper names; but whose of a nature to strike at the whole system? fault was that? It was the fault of the were they of a nature to level with the Lord Chancellor for the time being: it ground all that Lord Hardwicke had was not the fault of any past Lord Chanraised on the foundation of his eminent cellor, but of the Lord Chancellor for the predecessors? Were those alterations of time being, who had the power of remova nature to affect the whole administration ing them at his will and pleasureof the commercial laws of the country, or "A breath unmakes them as a breath has made." to introduce a new system of law, which The Commissioner's was no patent place; he would undertake to say, in point of he did not hold by warrant of the detail, would require at least a twelvemonth Crown. The Lord Chancellor handed to to learn, even if then it could be correctly his secretary a list of names to whom a understood? What would be the conse-commission should be directed, and he, at quence of launching this new system upon the community, with all its great and extensive alterations, in lieu of an old system with which the commercial world had been familiar for so many years, he, for one, was at a loss to conjecture. This, however, he could see, that it must pro-period he administered justice in the Court duce confusion, to a degree almost indescribable, until the various and extensive new provisions of this Bill, in detail as much as principle, should come to be correctly understood and applied. Having taken the liberty of shortly alluding to the general nature of this Bill, he would now pro

his own will and pleasure, at any one moment, could direct that no commission should be issued to any one particular individual, and that another name should be inserted. If the Lord Chancellor on coming to the Great Seal, or during the

of Chancery, should find that in this jurisdiction there was an incompetent or improper person, it was not only in his power, but his absolute duty, to decide that no more commissions should be issued to that person. It was said, however, that some of these Commissioners were unfit.

believed they were; but generally speaking, points by the hon. and learned member the Commissioners were men eminently for Newark, in his publication, entitled, fitted to discharge some at least of the "Letters to Sir Robert Peel on the Chanduties of their situation alone, and without cery Commission," gave this information. advice, and certainly qualified, with the At a certain period, his honour the Viceassistance they received from those more Chancellor, now Master of the Rolls, experienced Commissioners who were adopted a plan of classifying the petitions always joined in the same list, to perform in bankruptcy, that was, taking them under all the duties of the office in a satisfactory different heads, and taking the different manner, in which manner, according to his heads in rotation, as he judged most conjudgment, and according to the proofs venient: this afforded an excellent opporthey had upon the subject, they had dis- tunity of ascertaining what these petitions charged them. But probably some proof were. Now, the number of petitions set upon this point, some result of experience down for hearing before the Vice-Chancellor, might be applied, as a mode of ascertain- Sir John Leach, under that arrangement in ing the manner in which these Commis- June 1826, amounted to 190-of these the sioners had exercised their functions. He number of appeals from the Commissionwas, of course, now arguing the case only ers amounted only to twenty-three, includwith reference to the London Commission- ing appeals from the decisions of the country ers, because one of the peculiarities of this Commissioners. In the following month of Bill was, that it made a wide distinction July 1826, the number of petitions set down between London and country Commis- for hearing was 253, and of these only sioners; on which latter point he should twenty-seven were appeals from the Comhave a word or two to say presently. missioners. The proportion, therefore, of From the returns which had been made appeals was astonishingly small; and it of the number of appeals prosecuted from should be recollected, that according to the decisions of the Commissioners, it the present system-a system which he appeared that the average number of bank- wished to see altered as much as any man, rupt petitions set down for hearing in the and which he would lend his humble aid course of the year was, in round numbers, to alter, if necessary, in any reasonable about 600. It must not be supposed that manner that could be suggested these were all appeal petitions: how many case was not heard before the Court of of them did the House suppose were appeal Chancery in the same state as it was petitions? He had been furnished, from heard before the Commissioners, but it an authentic source on which he could was heard on additional evidence. This, rely, with an account of the number of however, was a mischievous practice, which petitions in bankruptcy in a given half- might easily be corrected without the asyear, the half-year from October 1828 sistance of any Act of Parliament, and to March 1829, both inclusive. The which he hoped to see corrected before he number of petitions in bankruptcy pre- was six months older. When it was sented in that half-year were 318. Of recollected that the number of appeals these 318 petitions, only fourteen were was so exceedingly small, though many of upon questions that had been before the them were heard on additional evidence, Commissioners; these fourteen, including he would ask, how could it be fairly inappeals from the country, as well as from ferred that the Commissioners so exercising the town Commissioners; and yet this their jurisdiction, were an incompetent was the jurisdiction that had been branded tribunal? He might be told, that the as incompetent, which had been branded expense and delay of proceeding prevents in the face of the country as execrable, the parties from appealing in many cases. and which had been boldly stated as unfit He utterly denied that, if that course and improper to discharge the duties con- operated at all, it could by possibility fided to it. This, however, was not all operate to any thing like the extent that the information they possessed upon the would produce this proportion. It was subject. His learned friend, Mr. Montagu, perfectly absurd to suppose that it could an authority eminently competent to judge be so. He certainly could bring no other on this subject, as both sides of the House warrant for what he stated-no other must admit, than whom a more strenuous qualification for this discussion than that opponent of this Bill did not live, and of having been for some years practically who was very properly quoted upon certain conversant with these matters, having

the

which had been cited afforded nothing like a fair representation of the general nature of cases in the Court of Chancery. Having been concerned in most of the petitions in bankruptcy before the ViceChancellor, he had had the means of acquiring information on this subject, and he considered that they were generally far from being voluminous or encumbered with affidavits, and those which were always the most voluminous and contradictory, cases of concerted commissions, would be materially improved by one part of this Bill, ofwhich he very much approved. It was proposed by this Bill to put an end in future to all objections to Commissioners on that ground, and the consequence was, that these voluminous petitions would be done away with. So much, therefore, with regard to the conduct of these Commissioners. The appeals had been wonderfully few. According to all his experience, the parties had not been prevented from appealing by the expense of the proceedings; because, the majority of the cases were those in which the bulk of the affidavits and the expense were not considerable, because the proceeding by which a petition in bankruptcy was prepared was short and simple. It might, perhaps, be stated, that, the parties were prevented from appealing from the decisions of the Commissioners by reason of the delay which took place. No delay with regard to bankrupt petitions ever existed in the Vice-Chancellor's Court; there was at one period a consi

been employed in them, and the other business of the Court to which he belonged from morning to night. He was enabled to state, that the cases cited by the learned Attorney General, the hon. and learned member for Newark, and the hon. and learned member for Winchelsea, were but a few out of a very great number, and therefore they gave anything but a fair and correct idea of the general state of bankruptcy. The cases which had been cited were those in which very great and complicated accounts had given rise to questions and disputes, which were by no means cases of ordinary occurrence. Now the House should recollect, that these hon. and learned persons had spread their inquiries in picking up these cases over a very long space of time. The case of Martin Thomas was in progress at the time when he (Mr. Knight) was first called to the Bar, a good many years ago: the case of Bartholomew Thomas was nearly as old. In a period, therefore, now spreading over a good many years-his learned friends had been able to select only a very few cases of this description. Apply this period as a criterion to any other branch of the laws of this country--for risks and vexation are not confined to any one branch of it-and see whether similar cases had not occurred in other Courts; were there no litigiously contested suits, no expensive actions in the other Courts of this country? Were there no other instances in which the spirit of litigation could be shewn to have succeeded in causing delay and expense? Were there no other cases in which peculiar circum-derable number of very bulky petitions, of stances had given rise to waste of time and expensive proceedings? He used the expression courteously, but really this was hardly a fair or proper mode of argument. It was not a proper way of bringing before the House the whole state of this branch of the law, to select three, four, or five instances of litigation extending over a period of something more than fourteen years. It might be urged that the cases which his hon. and learned friends had selected were fair samples of the whole. He denied that, from his own personal knowledge: but he did not ask the House to believe the fact because he stated it. He was sure his hon. and learned friend opposite would do him the credit to allow that he believed what he said, or, at least, that he had some knowledge upon the subject, and some experience, and he would assert, that the cases

great weight and importance, in the Lord Chancellor's paper, but in the Vice-Chancellor's paper-his Honour's being the Court in which they were originally heard

there never was any considerable delay, and there was now none at all. A petition might be heard as soon as it was presented. The number of petitions which stood in the paper of the present Vice Chancellor when the Court rose for the vacation, was very trifling. None had been presented more than two months, and every one would be heard before November was over. But when a bankrupt petition was pressing in its nature, the Court invariably advanced it on the paper. Those who talked of the interminable delay and expense of this proceeding, ought to know, that if any counsel could state to the Court that a bankrupt petition was in its nature pressing to be heard, the Court instantly ad

vanced it he himself had been repeatedly the most useful modes of investigating engaged in cases where there had been a decision of the Commissioners on one day -say Monday-it had been pressing in its nature, the Vice-Chancellor or the Lord Chancellor had been applied to, to advance it; he had done so; it had been in the paper on the following Wednesday morning, and sometimes heard on that morning; or, if time had been required to answer affidavits, it had been heard before the week was out. It was, therefore, the fault, either of the party himself or of the agent, if a case of pressing importance was not heard directly, because the Court was always open. One word more on the subject of affidavits. Nothing tended so much to increase the bulk of affidavit evidence as delay, because the parties often thought that they never could sufficiently add to that description of evidence. Some fact, or some admission, occurred to the recollection or imagination of the individual, which it was supposed might be of importance, and accordingly, it was embodied in an affidavit: this was met by another, and so they went on with affidavits in the shape of assertion and contradiction from time to time, until the bulk of the evidence had, in some few cases, become enormous; but, under the present system, this was prevented, because the petition was set down in its turn to be heard, and those affidavits only were required which might be thought material to the decision of the case, and a vast multitude of facts which were subsequently remembered or imagined, and which were, more or less, material to the issue between the parties, were not given in evidence, accordingly the bulk of affidavits in bankruptcy became less and less every day. He had been induced, in the observations he had made on the Commissioners, to remark on the subject of the jurisdiction by affidavit, to which he must presently again refer, but this would prevent his enlarging much upon that topic, and he had shewn that the affidavits in the Court of Chancery need not be very bulky or expensive. Objections had been urged to a jurisdiction by affidavit generally, and he was quite ready and willing to admit that, there were objections to that mode of investigating questions; but it should be recollected that the proceeding by affidavit had one material advantage-namely, that it enabled them to have the statements of the parties themselves upon oath; and one of

the truth was, to observe narrowly how far a party shrunk from asserting a fact, or from repudiating an assertion-this was an advantage belonging to such a jurisdiction which was not easily redeemed. But the question had been argued as if bankruptcy were the only jurisdiction. which decided upon affidavit. Every Court in the country decided upon affidavit to a greater or less extent. Were there not important cases in which the King's Bench decided on affidavit? He had himself seen cases in the Court of King's Bench decided on affidavits which had exceeded in bulk anything he ever saw in the Court of Chancery; and on questions relating to a new trial, where, in general, the case was discussed wholly on the evidence given in the Court below. In support of this assertion he could mention many cases, and cite one in particular which occurred on the western circuit some years ago. His hon. and learned friends opposite were perfectly aware of the multitude of cases in which both the King's Bench and Common Pleas daily decided on affidavit. This was the case, too, in all matters of lunacy in the Court of Chancery; in cases affecting the guardianship of infants, in questions by which the most important rights in this country were litigated and decided; and, therefore, the House would not here enter into any observations, affecting the general nature of the propriety of the jurisdiction by affidavit without impairing the whole jurisdiction of the country; and if the jurisdiction of bankruptcy was to be objected to on this ground, they must go round to all the Courts in Westminster Hall, and remodel and reform every one of them. They must not be told, then, that the general impropriety of the jurisdiction by affidavit was a reason for introducing an Act of Parliament with respect to bankruptcy; it had nothing whatever to do with it. There were two cases in which the jurisdiction must be by affidavit, must continue to be by affidavit, and in which there were objections to all other modes of proceeding. But why need there be any affidavits at all? If the jurisdiction by affidavit, generally, be so objectionable if his hon. and learned friends were prepared to bring in their separate measure for destroying the King's Bench jurisdiction by affidavit-and to be consistent with argument they must go