Imagini ale paginilor
PDF
ePub

and he certainly was not disposed to im- man, but he would say, that the head of pute either the motives he had heard as- that man must be very thick, and his unsigned to Lord Brougham, or to interpret derstanding very groggy, who could supthe conduct of the noble and learned Lord pose that when he (Sir Charles Wetherell) in the way it had been, as a difference alluded to political patronage, he was inin political sentiments was not, in his sinuating, that in the framing of this Bill opinion, a sufficient excuse to attack the any individual was actuated by the dirty character of a man. Lord Brougham motive of putting emolument into his own was a man of great talent; and supposing pocket. He thus thought that he had rethat he were not actuated by a desire to moved himself out of the unjust and undo good and serve his country, yet his high candid atmosphere of the hon. member for ambition would preserve him from the in- Preston--an atmosphere which he did not fluence of such considerations as he was wish to breathe. He had thus fairly met sorry to hear imputed to that noble Lord. the hon. member for Preston, and hurled He certainly did not agree in the political back his dirty insinuations. As to the reopinions of the noble and learned Lord in tiring pension to the Chief Justice, he did question, for he had had a chief part in not object to it; but would the House give framing a measure which, in his opinion, retiring pensions to the Puisne Judges? was an organ which would lead to other Assuming, then, that a pension should be steps ending in the destruction of the given to the Chief Justice, though not to Constitution of the country. He did not the subordinate Judges, nor to the officers think that any man, under the circum- of the Court, he would beg leave to notice stances in which Lord Brougham was what had fallen from the hon. member for placed, would be actuated by such motives, Colchester, who told the House that he and still less did he entertain such an was a fortnight waiting for an opportunity opinion of that noble and learned Lord. to deliver his sentiments upon this Bill,

The House went into Committee--Mr. and now that it had been given, it did not Bernal in the Chair.

enable the House to arrive at any very On the clause being read, enacting, distinct or satisfactory result; for he " that the said Judges, or any three of had not touched any one of the conthem, shall and may form a Court of Re- siderations which were of importance view, &c,”

in the decision of a question of this nature. Sir Charles Wetherell rose to defend the matter in dispute between the Memhimself from the attack which had been bers on this side of the House and the made on him by the hon. and learned hon. Gentlemen opposite was, not the exmember for Preston (Mr. John Wood). istence of the evils complained of, but the The hon. Member had thought proper to best mode of remedying those evils. The criticise his (Sir Clrarles Wetherell's) vo

chief difference between them was, respectcabulary, and had found particular fault ing the intermediate Court, or rather the with him because he had said, that the pa-construction of that Court; and upon that tronage granted by this Bill“ stunk in his subject the worthy Alderman, who had nostrils.” Now when he used that phrase already taken a part in these discussions, he had distinctly stated, that he would not had said, that there were many defects have used so 'strong an expression, if which ought to be remedied; and so there Lord Brougham, when a Member of that were in this Act many defects which must House, had not given utterance to it. He be remedied before it could be rendered still objected to the extent of patron- useful to the community, or in any respect age provided by this Bill. Not with respect promotive of the ends of justice. In the to any pecuniary advantage that might whole course of these discussions there accrue from it-nothing he had said had was not one hon. Member who had not the most distant approximation to such a thought proper to make him a subject of dirty, paltry, miserable idea ; but because animadversion-some had found fault with that patronage might be made the source his arguments, others with his languageof political influence. A more unfounded one objected to his vocabulary as vulgar, charge than that levelled at him by the and others complained of his statements hon. member for Preston never was ad- as exaggerated; but he consoled himself vanced against any one. He wondered by the reflection, that he endured this in how such an idea could enter into, he common with all those who had ever would not say, the muddy head of any maintained the opinions of the minority, It was not long since, owing to an accident | Notwithstanding all this, they proceeded which left him in that place almost alone, -notwithstanding all this, they gained he had as many as six or seven speakers ground every day. The hon. member for to reply to, supported as those speakers Buckinghamshire admitted that a good were by a host of cheerers. He was some- many alterations ought to be made, and what in the situation of his poor friend the hon. member for London made a siLord Londonderry, who was pelted by milar admission. If the principle of giving half-a-dozen at a time. Being now in the retiring Judge a pension were confined Committee, he was in a situation to meet to the Chief Justice, he should not object his adversaries-adversaries upon whom to it, but even in this case a matter so he never turned his back, if they were purely experimental ought not to be allowever so formidable, and the Ministerialed to accumulate upon the public so enorcheers by which they were supported ever mous an expense. He had an amendment so loud. The importance he and his party to propose to that clause under which the attached to the creation of patronage Court of Review was to be appointed; but which would take place under this Bill, he should, of course, postpone submitting had been made a subject of ridicule, in the that mendment to the consideration of the House and elsewhere ; but let it be recol Committee, until they had arrived at that lected, that their objection to that patron- I particular clause. age did not rest upon any probable use to Clause agreed to. be made of it by the present Lord Chan- The next clause enacted, “That all cellor, and, therefore, the answer that had such matters to be heard and determined been given to this argument met no one of in the said Court of Review shall be their objections. The answer which their brought on by way of petition, motion, adversaries gave was, that Lord Brougham or special case, according to the rules and had said, “ With respect to the patronage, regulations to be established, as hereindo not let that be any obstacle; I am per- after provided, subject to an appeal to the fectly willing to give it up.” But there Lord Chancellor on matters of law and were far other grounds upon which they equity, or on the refusal or admission of opposed this Bill, and far other exceptions evidence only, &c.” which they took to it, though the organs Sir Charles Wetherell said, that this of Ministerial opinion were pleased to say clause spoke of rules and regulations to that they urged these objections, not from be "hereafter established," by which matconviction, or a sense of public duty, but ters to be heard and determined in this from a desire to gain time till circum- new Court should be brought on. He stances should prove more favourable to should be glad to know something of their views. They were, in fact, accused these rules and regulations. Here was a by the Press of speaking against time. Bill going through the House in October, Such was the miserable organ to which 1831, which was to come into effect in their opponents were compelled to have January, 1832, and yet the rules and rerecourse-an organ that would, whenever gulations by which its proceeding were to permitted, issue ukases as violent and as be governed in certain cases were to be tyrannical as those which were obeyed “ hereafter established.” Now, if he were upon the banks of the Volga or the Don; to divide the Committee on this point, he and for disregard of these ukases, they should, no doubt, be assailed by the gipsey(the Opposition) were proscribed—they jargon of the day, and told that he was were told by this organ that they wereguilty taking a factious part. The present Bill, of a waste of time. The more this Bill was he must say, was the most crude heap of examined, and the more frequent and re- non-existent legislation that he had ever peated the attempts were to expose its seen. faults and imperfections, the more evident Sir John Newport contended, that the must it be to the independent Members Bill did contain that provision which the of that House, that the present was not a hon. and learned Gentleman complained factious opposition—notwithstanding his of as having been omitted. If individuals hon. and learned friend, the Attorney-Ge- would look carefully to the clauses of the neral, seemed to say as much--and al- Bill, they would not fall into such errors, though he did so in the quaint and polite and much time would, in consequence, be manner peculiar to him, still the accusa- saved. In page 4, there was a clause tion amounted to something of that sort. which completely met the hon, and learned

for

Gentleman's objection. It was there their laws together into a code, and all the enacted, " That the Judges of the said arguments respecting uniformity of deciCourt of Review, with the consent of the sions would fall to the ground. Lord Chancellor, shall have power from The Solicitor General said, that he had time to time to make general rules and never given any general opinion upon orders for regulating the practice of the bankruptcy. He was asked to go before said Court of Bankruptcy, the sitting of the Chancery Commissioners, and he the Judges and Commissioners thereof, went. The Commissioners put questions and the conduct of the practitioners there in a set form of words, and he was obliged in.” What could be more plain than this? to frame his answers to that form. Surely The enactment proceeded on the principle those answers could not be taken as his acted upon in every Court in this country, opinion upon bankruptcy. If the Comeach of which had a right to frame rules missioners had asked him for his opinion and regulations for its government. respecting the bankruptcy jurisdiction, he

Sir Charles Wethereli said, his objection should have stated what he thought the was, that the present measure went to best plan of ameliorating it, and not have overturn an old system of practice, with contented himself with an opinion, with out giving them any insight as to what reasons, or with the exposure of faults, the new practice was to be.

without the suggestion of what he conThe Solicitor General said, that the sidered remedies for those faults. object of the clause was, to allow parties Mr. Godson said, it was evident that the to proceed by motion and by special case, hon. member for Bridport (Mr. Warburas well as by petition. He was surprised ton) did not understand the appellate at the objection of his hon, and learned jurisdiction created by the Bill. The friend, because no one knew better than general objections to appeals did not his hon. and learned friend the inconve- apply to the appeal given by this Bill, niences which resulted from the present it would be accompanied neither by the jurisdiction.

delays nor the expenses' which usually Mr. Warburton had already stated, that attended appeals. The facts would be if he were compelled to choose between settled by the Court below, and the appeal the present system and this Bill, he should would only be made on a matter of law. prefer the Bill, defective as it was. He The Chancellor, therefore, would have, could not, however, help perceiving, that in fact, merely to perform the part of a there was flowing a tide of improvement, Court of Error. which would carry away all the defects of Mr. Serjeant Wilde was convinced, that the existing system, and he must therefore if the hon. Member (Mr. Warburton) object to so defective a measure as the opposite would give his attention to the present. He could not understand the nature of this appellate jurisdiction, the necessity for this series of appeals—this hon. Member would see that his objections cascade of appeals--which came so rapidly to it had no foundation whatsoever. There upon each other, that if the frail bark was no other way of guarding against the should escape one or two, and ride for a mischiefs of conflicting decisions than to time in smooth water, yet still it must promote such an appeal as would ensure perish before it cleared the last. Why uniformity of decision. The hon. Member was not one man of pre-eminent abilities, (Mr. Warburton) had said, that he valued and with a good salary, placed at the head uniformity of decision but as dust, for he of the Court, and ihe ultimate appeal wanted a code. This was a very extraormade to him? The hon. Member then dinary position. Take an Act of Parliaread several extracts from evidence of Sir ment-there was the hon. Member's code Samuel Romilly, Mr Horne (the present for him at once. But how did the hon. Solicitor General), and Mr. Cooke; all of Member become the better off by means which, the hon. Member said, justified of a code, since Courts would act upon him in contending, that there would be no the construction of the Act of Parliament necessity for an appeal to the Chancellor, -upon the construction of the code and ifa Judge of the first abilities were selected upon nothing else? Now the advantage to preside over the Court. He valued but of this appellate jurisdiction was this--it as dust the uniformity of decisions which would lessen the expense and the delay of had been so much lauded. Let them re- the present system. At present, ninetyduce their laws to writing ; let them bring nine out of every hundred appeals, were appeals as to the facts, and not as to law, introduced to each other for the first time and the enormous delay and expense of upon taking their seats in the Court, when such appeals were notorious. Appeals as to they would have to enter upon the immefacts were positively ruinous, but as to law diate discharge of their duties, without they were not attended with much expense, having had an opportunity of consulting and were decided speedily. The author- with each other and settling the rules by ities which the hon. Member (Mr. War- which the proceedings of that Court were burton) had quoted related to appeals as to be regulated. to facts. Sir Samuel Romilly was neither Mr. Burge could only account for the so unlearned nor so inexperienced as to speech of his hon. and learned friend, on be unaware of the distinction between the supposition that he presumed hon. these two classes of appeals; and it was Members on that side of the House were to appeals as to facts, and to those appeals blind to the evils of the present system of only, that Sir Samuel Romilly and the Bankrupt Laws, and therefore conceived other authorities cited, referred. But the no remedy to be necessary. If his hon. appeal given by this Bill was an appeal friend thought so, he misconceived their upon the law, not upon the facts of the opinions. They felt and admitted, that case. No disputed fact was ever placed there were evils in the present system, but in a special case; special cases were they did not consider the present Bill the usually contained in three brief-sheets : proper remedy for those evils

. He decithey involved matters of law only, and in dedly thought, that a part of the expenthe Courts in which he practised, not sive system of the new Court was not more than one counsel was usually heard required. With respect to the additional on each side. Such would be the nature patronage that would accrue to the Lord of the appeal to the Lord Chancellor under Chancellor, he saw nothing whatever obthis Bill: whereas the appeals under the jectionable in it, provided it could be existing system, stated all the facts and shown, that the Courts and officers in the disputes upon them, and not upfre which it would originate were essential quently occupied upwards of 1,000 brief- or necessary to the public interests. In sheets. He would venture to say, that answer to what his learned friend had the appeal given by this Bill was given in stated as to the beneficial result of vivú à more economical, a more speedy, and voce examinations, he begged to refer to more efficient manner than the ingenuity the Bill itself; the latter part of which of man had ever before devised. Among left open the power of calling for affidavits all the objections which had been urged as much as for oral testimony. In addition against this Bill, that which had surprised to these and other objections, he also him most was, 'the objection of his hon. thought, that the Judges' salaries were and learned friend (Sir Charles Wetherell), insufficient to lead eminent men to give up that the Judges to be appointed under it their practice and the prospect of advancewere to be appointed forthwith. Now if ment to other judicial appointments. a Court were appointed for new purposes, Mr. Paget said, that while he admired there would be no great inconvenience, the able speech of the hon. and learned perhaps, in naming the Judges the very Member (Mr. Serjeant Wilde) he must, day before they were to enter upon the at the same time, say, that the terror felt discharge of their duties, because business by commercial men at the ruinous delay in would come but slowly to such a Court, the proceeding in bankruptcy would not and the Judges would have time to make be lessened by the present measure. Such their rules as occasions for those rules would be the result of the additional presented themselves. The Bankruptcy appeals. For his part he could see no Court, however, would take up every utility in appealing to the Chancellor, and Commission in existence, and would be much less to the House of Lords. As the not only full, but more than full of busi- source of fear to commercial men, next to ness by the 11th of January, the day the delay and expense of the law, came from which the Act was to take effect. its uncertainty, and this would be augWhen, he would ask, if the Judges were mented by the number of Judges.. If a not to be appointed forthwith, were the single Judge had been appointed in the rules for the Court to be made ? If his new Court as the ultimate Judge of Appeal, hon. and learned friend's suggestion were he should have deemed the measure a to be attended to, the Judges would be great benefit to the country.

One Judge, in his opinion, would be preferable to four | of long and complicated accounts; some - would have given more uniformity to regulation and provision for the due exthe law, and better satisfied suitors. After amination and settlement of such ought, thirty years' experience in business he had undoubtedly, to be made. found the expenses incidental to the pre- The Solicitor General observed in reply sent system so enormous, that he believed to the hon. Gentleman, that it was a part even this Bill, bad as it was, would be a of the duty of the official assignees to great relief to the community. In these take such , matters under their superindays, however, of improvement, he trusted tendence, and if he would refer to the that they would see a little more of the Bill, he would find the case he put was philosophy of law introduced into practical specially provided for. legislation.

Mr. Warburton said, it was perfectly Mr. Freshfield said, that three appeals notorious, that by the existing system one would be unnecessary on the grounds upon set of creditors endeavoured to prevent which the hon. and learned Serjeant another from proving their debts, for the founded his argument, for he was inac-purpose of excluding them from voting for curate in his data. This was also the assignees. This frequently gave rise to case with the hon. and learned member great disputes and very considerable infor St. Alban's (Mr. Godson), in saying convenience and expense among the crethat there were two appeals in every case, ditors with respect to the appointment of and that, therefore, they must be conti- assignees, and this made it positively nenued. He had stated, that an appeal cessary that a special provision should be would be first to the Exchequer, and then made for the examination of long complito the House of Lords. In this instance, cated, and perhaps disputed accounts. the hon, and learned Member was in error; Sir Charles Wetherell quite agreed with he, therefore wished the House not to seek the principle laid down by the hon. Gentlefor imaginary reasons to support the ap- man, that accounts should be investigated peals on this Bill.

without reference to strict and technical Mr. Warburton moved pro forma, as rules. The great fault of the Bill was, that he stated it was not his intention to divide it proposed to remove existing abuses, but the Comınittee, to leave out all the words provided no specific remedy for them. He of the clause after the word “provided,” apprehended the mode of proceeding with in the fourth line of the clause.

long and complicated accounts would be, Sir Charles Wetherell expressed his that the single Commissioner would refer satisfaction, that the factious part of the them to the three Commissioners, and they House had received such a useful rein- would refer them to the Assignees or someforcement in the two hon. members for body else for revision and settlement, and Bridport and Leicestershire. He con- this would be the result of this economical tended, that the prevailing evils in the and, as it was called, save-all Bill, even Bankruptcy Courts would not be removed in the first stage of its progress. by the Bill. It was an experimental Bill : The Attorney General said, there would there had been no inquiry, no Committee, be a special arbitrator appointed to decide as there ought to have been. The Bill upon all disputed accounts, and, therefore, laid down no rules, established no practice, he thought such an officer, who, he had no and would be inefficacious. He agreed doubt, would do his duty, would fully meet with the two hon. Members alluded to, in the objection taken by the hon. member thinking that there ought to be a superior for Bridport. Such accounts would be Judge of Appeal; but he thought that settled by the strict and technical rule of Judge should be the Lord Chancellor or evidence. the Vice-chancellor, while those hon. Mr. John Campbell thought the Bill Members thought he should be a separate contained a sufficient provision for the Judge.

due investigation of the most complicated Amendment negatived without a divi- accounts. The Commissioners would wholly sion—the Clause agreed to.

neglect their duty if they held that matters On the question, that the clause relating of account were to be decided by a Jury. to costs in the Court of Review stand The only questions really for a Jury to part of the Bill,

decide in bankruptcy cases would be Mr. Warburton said, he saw no provi- simple matters of fact, such as whether an sion in the Bill for the due investigation act of bankruptcy had been committed,

« ÎnapoiContinuați »