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last night, said of the Commissioners, be justified, except by the exigency of the “A breath can make them as a breath has made.” case. The statute handed over the merYet they were told by others, that this chant to the order and direction of the body, consisting of seventy persons, were Lord Chancellor, or Lord Keeper, the sufficient satisfactorily to decide all the Treasurer, the Chief Justices of the King's various complicated questions that arose Bench or Common Pleas, and another upon this branch of jurisprudence. To do Minister. One of these parties was always this Bill justice, hon. Gentlemen must to form part of the tribunal which was to understand the whole of that system upon take charge of him. No forms of pleading which it was intended to operate. At that were prescribed, no rules of Court drawn late hour of the night he would not trouble up; no orders, no directions were given; the House with what at no time was in short, no limitation was placed to the pleasurable, a technical legal argument; power possessed by these parties over a and indeed he was relieved from all diffi- bankrupt. The law continued in that culty upon that point; for the Bill did state for thirty years, and then came the not in the slightest degree touch the pre- 13th of Elizabeth, which, perhaps, might be sent system of law, except in one par- more truly said to have laid the foundation ticular, which all eulogized. In that of our present bankruptcy system. That particular, it would remedy an evil pointed statute introduced Commissioners as conout by the hon. member for Buckingham- venient persons to whom the Great Seal was shire. He alluded to that clause in the to delegate the order and administration of Bill which was to give validity to concerted the bankrupt's affairs. By a construction Commissions. The hon. member for of that statute, which would now be conBuckinghamshire stated the difficulties of sidered questionable, if not too late, this the mercantile world in winding up the ordering and direction, instead of being affairs of an insolvent trader by means of shared among the other officers of the a deed of trust. Now, concerted Commis- State named in the statute of Henry 8th sions would have the effect of deeds of was assumed by all Lord Chancellors, trust, and this Bill would rescue trustees from the reign of Elizabeth downwards. under such circumstances from the perilous Eighteen statutes were afterwards passed responsibility which now rested upon them. upon the subject of bankruptcy, most of His hon. and learned friend had told them, them of the kind he had described, till the among other reasons for not altering this great statute of George 2nd. They all system, that it was founded in enlightened treated the bankrupt as an offender; and times. He was happy to state, for the although they contained clauses for the satisfaction of the House, that it formed security of creditors, their provisions in no part of that ancient jurisprudence which other respects must make them be looked they were told ought not to be touched; upon as penal statutes; and, what was a that it was in truth modern, but as to great singularity, one of them contained whether it was founded in enlightened an express declaration, that, although times, he would presently give the House highly penal, they were to be construed reason to judge. The Bankrupt-law owed against the bankrupt in the most liberal its origin to the reign of Henry 8th. way. The last Act repealed them all, as Before then there was no such thing as a also fifteen general orders that had been Bankrupt-law, or any law approaching to incorporated with them. The Bankruptit in character, except those which related law was said not only to be very perfect to our dealings with the Lombard mer- account of the number of statutes chants. He should say, therefore, that in that had been passed upon it, but from the statute of the 34th and 35th of Henry the great care and attention that had been 8th originated the present system. At bestowed upon it by different Lord Chanthat time our mercantile speculations were cellors, particularly by Lord Hardwicke beginning to enlarge, and there being, as and Lord Eldon. With respect to the the preamble of the Act stated, great latter, he had been under great obligations frauds committed by persons becoming to him in the early part of his life-obligabankrupt, the statute was passed. In tions which he should never forget, and he what manner did it treat bankrupts? It would join in every eulogy that could be treated them as offenders, and handed them passed upon him. As a Judge, he was as over to a jurisdiction which could not now great and eminent as it was possible to be. be justified ; nor was it then attempted to But the present Bill was not founded upon

on

imputations cast upon Lords Eldon and that system by which 600 petitions had Hardwicke. It was, indeed, the object of been drawn from the Commissioners by the hon. Gentlemen on the other side of the Court of Chancery, although no statute House to deal with this case personally. had delegated the power of hearing them He would introduce no personal observa- to the Great Seal ? All matters ought tions, except of a complimentary nature. first to go before the Commissioners, and But what was the conclusion he drew from only to come before the Lord Chancellor these labours of Lord Eldon and Lord by appeal. These petitions to the ChanHardwicke? It was, that so monstrously cellor were statements upon paper, condefective was the system, as far as the fined by no rule of pleading, but containstatutes were concerned, that to make out ing pretty much what the petitioner chose anything like equity it was necessary to re- to put in them. This statement had to be sort to great and eminentJudges, who, under verified by affidavits, which were again authorities questionable in point of law, answered by contrary affidavits. But as had given a perfection to the system for the history of these interminable affidavits which he should look in vain in the sta- had been given by some of his learned tutes which enacted it. The first ques- friends, he should not pursue it further. tion which any man would ask in looking | He had known many cases in his experiat this law of statutes, of orders, and ence, in which the only limit set to this judgments of successive Chancellors, must mischievous species of litigation (if conbe—how can such a system have been sidered with reference to expense) had tolerated ? The fact was, that it had been the utter exhaustion of all funds. been only the great exertions of eminent Another matter, perhaps even more imJudges, acting on doubtful judicial author- portant, he must mention to the House : it ity, which had given solidity to the system. was almost impossible to conceive the But just in the same proportion that the horrid perjuries to which this system led; Judges were complimented, the system but the House might form some notion itself was proved to be defective. Perhaps of it, when he stated, that most of the the House would allow him shortly to cases which gave rise to these petitions, state the actual operation of the whole were cases in which fraud was charged on system. The Statute of 1 Elizabeth ap- both sides, and in which there were attacks pointed individuals to exercise the important upon personal character. What was the functions of Commissioners. These gentle situation of a Judge who had to decide on men, the present Commissioners, were a case so brought before him? It was comparatively young and inexperienced; matter of daily complaint and lamentation, but, whatever might be their errors on that both by lawyers and Judges, that it was account, they were as honest, as conscien- impossible in such a mass of contradictory tious, and as enlightened a body as could evidence to get at the truth. This arose be brought together under such a vicious not only from the infirmity of all written system. Gentlemen of eminence, expe- testimony, and from the statement of the rience, and standing at the Bar, could not parties being voluntary, and from nobody be induced to take upon themselves these cross-examining them, but because crimcomparatively humble functions. What ination and recrimination took place till would the House think when he told them, there was a mass of affidavits containing that in all the reports there was not one contradictions which made the barrister report of a case decided before the Com- throw them down in a species of moral missioners---no report of any argument disgust. The Judge dared not decide held before them? In short, they were never upon such evidence, and at last sent the considered to form a Court for the purposes case to an issue, to be tried in a Court unof law, all matters of law in bankruptcy connected with the Court of Chancery, going, directly or indirectly to the other where all the affidavits were good for noCourts. The hon. member for Bridport thing, and the case was tried as between last night admitted that the average num-plaintiff and defendant, with due forms ber of petitions before the Lord Chancellor of pleading, and all the advantages of oral was 600, and he thought he made an im- evidence. A new trial after this might be portant distinction when he stated, that wanted; instead of moving for it before fourteen of them only were appeal petitions, the Court which tried the issue, the partand that the others were original. But ies came again to the Lord Chancellor. what would the people of England say of| If they were pleased with the manner in

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VOL. VIII. { Series}

Third

which their case had been conducted in the by filing a bill in Chancery, compelled Court of common-law, they brought the the others to go through all the forms, and same counsel, at a great expense, to argue bear all the expenses of a long proceeding the motion for a new trial, into the Court in equity. That being the case, could of Chancery. He had known cases-- any man doubt the necessity of making an both where new trials were granted and alteration in the existing law, and of estarefused--ultimately decided upon grounds, blishing some such jurisdiction in bankwhich, if taken originally, would have pre- ruptcy as should prevent a repetition or a vented all the expense of going to a Court continuance of the evils of the present of common-law. Considering this as an system? One of the great objects which experimental Bill, the hon. and learned any law upon matters of this kind should member for Boroughbridgehad, most likely, have in view, should be a speedy distribunot thought himself bound to read it so tion of assets among the creditors. He attentively as if it were an established law, had stated enough to shew that that was and had, therefore, fallen into a mistake not and could not be the case under the with respect to the appeals to the Lord existing mode of administering the BankChancellor. The appeals under the pre- rupt-laws. Then, was it not the duty of sent system were such as he had stated Parliament to interfere, and to pass such them to be. But there was another evil measures as should place the creditor on a to complain of. When a case had run fairer footing? What was the object of the gauntlet of the Commissioners, of this Bill? It was not to alter the law, the Vice-chancellor's Court, and the but to improve its machinery, and the Court of King's Bench, where the facts means of administering it. For he agreed were decided upon, if some ingenious with his bon. friends, that although he counsel could persuade the Great Seal did not admire the means by which our that the matter in dispute was equity, and Bankrupt-law was obtained, yet that, in not to be dealt with in a Court of com- point of fact-by what means it now matmon-law-what, then, did the House tered not-there was built up and consothink was the course pursued? Under lidated as perfect a system of law upon the existing system it frequently happened, the subject of bankruptcy as could well that before a party could receive a single be imagined. That being the case, but shilling out of the estate to be divided, he abuses still existing-it was obvious, if the must file a bill in Chancery, and thus law was perfect, that the means of admincommence de novo. The Lord Chan- istering it must be imperfect. Then it becellor sitting in Bankruptcy, was not the came the duty of the Legislature to corLord Chancellor sitting in Chancery. rect those means. That could only be Therefore, when a bill in Chancery was done by establishing a new Court. To filed, the party, in point of fact, coin- establish a new Court was the object of menced the whole of his proceedings de this Bill. To accept this Bill, then, was

The House would no doubt recol- the duty of this House. They were asked, lect the bankruptcy of Marsh, Stracy and why establish a new Court? For this reaCo., with whom the unfortunate man, son-that hereafter, as far as bankruptcy Fauntleroy, had been connected. In that was concerned, law and equity might be case every species of litigation was resort-administered in the same Court—that one

In the Court of Chancery there single tribunal might be erected to deterwas petition after petition. The best opin- mine that which hitherto had been subions, the soundest judgments, were given ject to the various, the conflicting, the upon every disputed point, yet, from the expensive and unsatisfactory decisions of defective state of the system upon which different persons in different capacities, the bankrupt business was disposed of, from the Commissioners to the Lord Chanthe parties were still enabled to prevent a cellor—from a jury of the Court of comfinal settlement, and to multiply legal pro- mon-law to the House of Lords. The ceedings and legal expenses to an extent hon. and learned member for Boroughquite unprecedented either in bis recollec- bridge, among other objections to the tion, or in that of any other practitioner at Bill, said, that by the Subdivision Court it The Bar. As the law at present stood, let was proposed to vest in a single Conimisthe question in bankruptcy be ever so im- sioner powers which had hitherto only portant, ever so proper for the considera- been intrusted to three. In his opinion, tion of a Court of law, any of the parties, there was no reasonable ground of ob

novo.

ed to.

jection upon that point. The one Com- pointment. Was there any foundation for missioner would have a power which he the hon. and learned Member's argument had not hitherto possessed. That, how- against this Bill upon the grounds of ever, only increased his responsibility, and patronage and expense ? The Bill was to a if he had any difficulty upon a point, and certain extent an experimental Bill; but desired to have the opinion of other re- doubtless would be found to answer. sponsible persons upon it, he would be There was one other point, and one only, able to obtain that opinion at once, and to which he would allude before resumwithout any delay; he would only have ing his seat. A sense of justice to the to walk into another room, meet his bro- noble and eminent person who now prether Commissioners, and thus at once de- sided in the Court of Chancery, deterred termine the doubtful point. Then there him from attempting to defend him from was the Court of Review, to which the the attacks which had been made upon first appeal might be made from the de- him in the House, in consequence of his cision of the Commissioners. The general introduction of this Bill to the consideraadvantage of this Court would be, to pre- tion of Parliament. His character as a vent appeals from being carried either to public man stood too high to demand the Court of Chancery or the House of eulogy from any one; he, therefore, should Lords. The Judges who would preside leave that character where he found it. in it were to be eminent lawyers, and from Any thing he could say would fall short of their decisions it could not be expected his merit; and there was not one of his that many appeals would be made. The labours which more entitled him to the Court of Review, too, would be not only gratitude of his country than this attempt a Court of Record, but a Court of law and to amend the administration of the Bankequity. It would try issues of fact, as rupt-laws. And if the House passed the well as determine points of equity. If the Bill into a law, among the many monusuitor, however, was dissatisfied, he would ments to his fame this would be one of the not lose his right of appeal to the highest most celebrated-one of the most lasting. tribunal of the country, any more than Mr. Arthur Trevor moved, that the Deunder the existing law; but it was hoped bate be adjourned. that, by the establishment of the Court of Lord Althorp said, if there were any Review, the evils of ruinous expense and Gentlemen who wished to speak on the vexatious delay would, in almost every case, principle of the Bill, he, of course, could be effectually guarded against. The hon. not expect them to go on at that late hour, and learned member for Boroughbridge but any main objections which hon. and had brought forward a most formidable learned Members might have to propose statement with respect to the expenses to would be equally available to their purpose which this Bill would give rise, as well as in the Committee. the patronage which it would create. The Mr. Pemberton stated, that it was his patronage to the Lord Chancellor must intention to offer certain arguments which be—would be boundless, illimitable—the applied to the principle of the Bill. expense enormous-certainly not less than The Debate adjourned. 26,4001. a-year.

How the hon. and learned Gentleman could have arrived at

HOUSE OF LORDS, those conclusions he knew not.

Thursday, October 13, 1831. plained of not having had sufficient time to make himself acquainted with the pro

MINUTES.] Bills. Brought up from the House of Commons

and read a first time; the Relief and Employment of the visions of the Bill. How could he find Poor; and the Barbadoes Importation Bill. Committed ; out then that the patronage would be so

Arms (Ireland); Consolidated Fund Appropriation. Read

a third time; White Boy Offences (Ireland.) boundless—the expenses so enorinous ? Petitions presented. In favour of Reform. By the Earl of The fact was, that the Bill would not cost MULGRAVE, from the Inhabitants of Kinsale :-By Lord the country ll. per annum, because the

KING, from Inhabitants of Great Wigston, for the Elect

ive Franchise in Galway to be extended to Catholics. By whole of its expenses would be more than

the same NOBLE LORD, from the Catholic Inhabitants of paid out of the fees derived from the suit- Merchants Quay, Galway. By the Marquis of LANSDOWN, ors in the new Court. As for patronage,

from the Inhabitants of Rosern. By LORD KING, from

Inhabitant Householders of St. Giles's in the Fields, the hon, and learned Gentleman seemed

and St. George's Bloomsbury, in favour of the Vestries to forget that the Lord Chancellor abolished Bill. By the Earl of MULGRAVE, from the Inhabitants of

Lismore for the Abolition of Slavery. by this Bill, the seventy Commissionerships, to which he had always had the ap- IRISH YEOMANRY.] Lord King pre

He com

sented a Petition from the Landed Pro- to the efficiency of the Yeomanry of Ireprietors, Householders, and Inhabitants of land. The noble Baron, who professed to the county of Carlow, praying that the know so little of the country, was misinYeomanry force of Ireland should be formed by interested persons, and he had disbanded, and another force substituted also to be told, that he was not correct in to preserve the peace. The petitioners his observations, with respect to what he stated, that the Yeomanry of the county said of the system pursued during the goof Carlow were men of the lowest ranks, vernment of the Marquis Cornwallis. and the employing such men to preserve The Marquis of Westmeath was himself the peace was itself a cause of much vio- an Officer of the Yeomanry, and could lence and disturbance, and therefore on speak to their general good conduct. that account they were anxious that their Some unhappy occurrences had lately Lordships should adopt some measure to taken place, to which the attention of dispense with the Yeomanry force. It Government had been directed; Ministers might, perhaps, be difficult to dispense had done everything to repress and restrain with that force at present, but he agreed such occurrences, with the petitioners, that another force Petition to lie on the Table. would answer the purpose better. During the Administration of Lord Cornwallis, the GALWAY FRANCHISE BILL.) On the Yeomanry were kept in the back ground, Motion of the Marquis of Clanricarde, the and it was improper to employ them at all, House went into a Committee on the Galexcept in times of great difficulty and way Franchise Bill. danger. They could not be employed in The Duke of Wellington said, that he ordinary times, without perpetuating the was surprised the noble Marquis had not evils of animosity and dissension, which moved the repeal of the Act of the 4th of were too prevalent in Ireland. He took George Ist, instead of bringing in a Bill this occasion to present the petition, as he partially to repeal it, and admit Catholics saw several noble Lords connected with to the rights of freemen of that Corporation. Ireland on the opposite bench.

When he had taken up the subject he had The Earl of Roden thanked the noble sought to do away with the Bill altogether, Lord for presenting the petition when they as it was inconsistent with the spirit of the were in attendance, and could give an law now adopted towards the Roman Caanswer as to the charges against the Yeo-tholics of the United Kingdom; and it manry. The noble Lord was totally mis- was only by inadvertence, when he brought taken when he stated that the Irish Yeo- in the Catholic Relief Bill, that he omitted manry were men of the lowest rank. They to propose to repeal this among the multiwere a body of substantial men, and re- tude of other obnoxious Statutes which markably well adapted for effectually that measure got rid of. He wished to putting down disturbances, and they draw their Lordships' attention to the were men attached to the best interests preamble of the 4th of George Ist, with a of Ireland. As to their being men of the view to show the true meaning of that Act, lowest order, he could answer that by a and how inconsistent it was to allow any direct negative. He was himself a Captain part of it to remain in force: the preamble of one of these corps, and could answer for stated the great importance of the loyalty their general good conduct.

and fidelity of the garrison of the town of Lord King said, that he himself knew Galway to the Protestant interest; it also little of Ireland, and had, therefore, only set forth the disposition of the majority of expressed the opinion of the petitioners, the Corporation to favour Popery, and when he stated, that the Yeomanry of the to create freemen favourable to that recounty of Carlow were of the lowest de- ligion. Among the various enactments scription. He did not dispute the devotion there was the very important one, that four of the Yeomanry to their country, but he Magistrates of the county of Galway, being was of opinion, that they ought to be em- Protestants, should have jurisdiction as ployed only in times of difficulty and Justices of the Peace within the county of danger, and at present they might well be the town, and that from the 40s.freeholders, dispensed with.

being Protestants, should be selected the Viscount Lorton begged to confirm in Juries to try offences committed within the strongest manner what had been so the town. And further, that any Protestant well said by the noble Earl, with respect | artizanortradesman residentwithin the town

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