The Sun.
London, England, 1831-09-21 00:00:00

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'was done in the Vice-Chancellor's Coast WAs to be done
by the Court of ReView. which was to be stiiktuted for
Cie Vice-Chancelor's Court. This was no improvenient,
hut the plan was inferior to the present system. Sir Sa-
muel Rotuilly had often said that the best Judge to try
questions, both of law and fact, was that Judge most con-
versant with law and the rules of evidence, and most fre-
quently employed in considering and deciding upon them.
Now, in this view, the Vice-Chancellor was the preferable
-Wee, for what was it that was to be substituted for his
tribunal ? It was a Court of Review, consisting of three
Judges, who were to it, not constantly, but pi-o cc note.
Was there any necessity for the appoitithient of this new
Court ? There was no arrear in the bankruptcy cases,
The Vice-Chancel'or kept them all down, and there was
no occasion for an inferior tribunal to do the business
which he would do so much better. The ViceaChancel-
lor sat for thirty-five days in the year in bankruptcy,
and in that time completely disposed of the bankrupt peti-
tions. This Court was appointed for the whole year, and
three Judges were to be employed throughout the year in
doing that which the Vice-Chancellor did in thirty-five
days. For a great part of the year, therefore, they would
be altogether idle. There was smother point Which
(night not to be omitted. The great evil of the present
system existed in the country, and the Bill put the country
Commissioners in a great measure on the same footing as
those on which tote London Commissioners stool at pre-
•yeet. Now why did his Noble and Learned Friend do away
with the least part of the system before he corrected that
which was confessedly imperfect ? It was beginning at the
wrong end. The advantage of the system was as three to two
in favour of London as compared with the country, and
therefore, the system in the country really required amend-
ment ; and it was one good provision in the new plati,
that it raised the country Commissioners to tile level cf
those of London. Finally,' this was a subj-ct of great
importance; and he candidly and sincerely recommended
to his Noble Friend to refer the Bill and the whole of
the sulneet to a Special Commission of this House. In
this Committee his Nable, and Learned Friend might him-
self he included, and the most competent of their. Lord-
ships might be appointed, with powers to avail th-in of
the assistance of all those whom they should judge most
capable of throwing light on the subject. He himself
would give the matter all the time and attention in his I
power, and, upon the whole, a measure would then be
prix:uced which would rive general satisfaction.
The LORD CHANCELLOR—He rose thus early to
make some observations in answer to the arguments of his
Noble and Learned Friend, and to explain the general na-
ture of his system ; and the reason was, that the speech
of his Noble and Learned Friend probably embodied all
the objections to the Bill, and it was much easier to re-
collect them and deal with them than if he bad to apply
himself to the speeches of a great number of speakers.
Nothing could be more candid than the spirit and tem-
per with which his Noble and Learned Friend hail spoken.
His Noble and Learned Friend had well said that this was
not a party question, for it was one in which they were
all equally concerned. The great question was, in what
manner could the existing evle be b.st remedied, if evils
there were. He fully admitted to his Noble and
Learned Friend, that the first question was, whether any
evils did exist; and then they bad to consider whe-
ther the proposed remedy was good and efficient for the
purpose. He fully admitted that no change ought to
be attempted without good reason and really substantial
cause. if evils did not exist at all, or if they existed only in
a small degree, then you ought to let well alone, or modify
the existing system, and to do nothing more. his Male
and Learned Friend had 'commented on the charges con-
tained in two petitions, and the language in which they
were conveyed. One of the petitions was from the Com-
mon Council of the City of London, and the other from
the merchants, traders, and bankers assembled at the Man-
sion House. The latter of these petitions he himself had
the honour to present to that House, and it had affixed to
it the names of most of the distinguished bankers, mer-
chants, and traders in London ; and as to the complaints
made by them, lie might say that they might be exceed-
ingly good judges of the existing evils of the present system,
which was nothing more than saying that they were ex-
ceedingly good judges of their own sufferings under the
system. They were the best witnesses of the fact of the
existence of the evils, since they were the parties who suf-
fered by them ; but it was possible that they might not be
able to judge clearly and learnedly of the immediate causes
of these evils, and still less of the proper remedy lie did
not trust to them, therefore, as authority in regard to the
remedy to be proposed, but he did consider them as
good judges on the question, whether the existing sys-
tem was a good one, and whether it wrought well.
As to that remedy, he bad not depended merely on his
own experience or his own reflections, but had hail re-
course to quarters the most distinguished for wisdom
enn learning anti sung anti extetnove calm-mace. ne
had had many interviews and consultations on the sub-
ject with those who were much wiser and more experi-
enced than he was himself, and took their suggestions
into account along with his own experience and know-
ledge. He had also availed himself of the assistance of six
or seven of the most experienced of the existing Commis-
sioners of Bankrupts, not certainly showing any indispo-
sition to consult that class of men against whom his Noble
and Learned Friend appeared to think that his system was
levelled. He had shown no distrust of them, but had con-
sulted the most sagacious and experienced of them, and
laid his plan before them, and explained to them its gene-
ral principles. By them his system had been examined
and sifted, and, he might say, unsparingly scrutinized. In
some points be bad yielded to them, and in others, where
he thought be had himself greater experience, pertinent to
the subject in hand in a department of the law, he bad not
yielded to them. In this manner they had gone on, alter-
nately yielding and resisting ; and the result was, the for-
mation of the first plan. That was not the plan now
proposed to their Lordships. The plan now proposed had
been the result of still further communication and consul-
tation with others the most expel ienced in bankruptcy
eases in the Courts of Law and Equity. Ili.; he had
done before lee had teen entrusted with the Great Seal,
and bad continued the cot respendence afterwards. Added
to this, he had consulted with some cf the most eminent
attorneys and solicitors, the most extensively experience d
in matters of this nature, and from them had obtained in-
formation as valuable as any that he had obtained from any
quarter, especially in regard to the appointment of the
official assignees, and as to the disposition of some assig-
nets under the existing system to give preferences to cre-
ditors, and in other respects to act contrary to their duty.
From them also he had obtained the most explicit and dis-
tinct information as to the frauds of ass:gm es and solicitors.
He also consulted many of those who had signed the pe-
titions at the Common Council and the Mansion-house, and
many other persans who had been the greatest sufferers
from the present system, and upon the whole he lead been
enabled to frame a much more perfect system than lee had
at first formed, and that more perfect system was now
tinder the consideration of their Lordships. He had made
several changes in the details of the Bit, and had in every
way endeavoured to make it better than it was at first;
and the Commissioners appointed under the former Bill

bad carefully investigated every part of it, and made alte-
• , 'awns, wherever, upon the fullest etnsideration, they ap-
-1 • peered to be necessary; and the tesuli was, the improved
Bill now before their Lordships, not diffet ing in any re-
si:ect, however, front the pCinciples of the other. The
7... P. I\oble and Learned Lord would therefore, perceive that
, the- had not been inconsiderately introduced. The
first of his Noble Friend's ohjectjuns rela•e:l to the
attack which It,‘ said had been made upon the. C. to
. ' .
ss. '
intioners of Bankruptcy. Now he (the Lord Chau-
. 14 cella) quite ceneurtod in all that his Noble Friend
bad said in favour of those learned and respectable
persons. In every thing that he himself had said
respecting the necessity for that Bill, he had endeavoured
to guard himself from the suspicion of making an attack
upon them. What he objected to was the system, of
which the effects were, in the first place, to give less able
Judges, and to render those less able Judges still less effi-
cient for their duties. It was obviously difficult to find
at any bar seventy men fit to perform the duties of those
Commissioners. It was also quite obvious that the num-
ber being limited to ten, there could be little difficulty in
securing high capability in each of them. Those Judges
being so numerous, their appointment became almost in-
evitably a matter of patronage; the perfect competency of
one individual out of 70, being considered nn every nets
appointment as not a watt, r of very weighty importance.
But if the Judges were limited to 10, the person havin,
the appointment would he careful to select the most effi-
cient he could find, lie had known instances of the
grossest incapability on the part of the London Commis-
sioners, and, when he inquired into
r one of those cases he
found that the two Contrnissionaertsow.l4 saatnuTotinletheettn:ecr aca-
sion, were—one of them an t
young gentleman who had not been yet cared to the bar..
The other two Commissioners (who were competent men)
were not present. Still the majority of those Judges were
much superior to what was to be expected from the natural
tendency of the system under which they were appointed.
Ills Nub': Friend thought that fourteen lists were expe-
dient, because they left room for the contraction or expan-
sion of the number of attending Commissioners, according
to the state of the business. But what else did this con-
traction and expansion mean, than that the number was
much greater than was wanted ? It meant that there were
seventy Commissioners, and that there was no occasion for
seventy,—(Hear,) Under the hurricane of bankruptcy,

' and in the dead calm of stagnation of trade, the number of
'Commissioners was the same. In reply to the objection
that the present Court was too expensive, his Noble Friend
had stated that sixty commissions bad been worked at an
expense not exceeding one farthing in the pound sterling.
But the person on whose authority this statement was
made, admitted, in his examination by the Commissioners,
that it was founded in error, and was wholly inaccurate.
In the different Nets there were different rules. A person
going into one room bad oetanner of justice dealt nut
to him, end going into the next found quite another. It
was well known, perhaps not to their Lordships, but to
every attorney, merchant, and tradesman in London, and
also to the House of Commons, that the chances of a
fraudulent bankrupt's committal were very different in the
different lists; and that one list committed more than all
the others together. He did not mean to charge the Com-
mssioners of that list with exceeding their duty ; on the
contrary, he thought that it might be better if there were
more instances of committal in the other lists:—( Hear.)
In fact, those gentlemen were not protected in the exercise
of their judgments like all other Judges. They were liable
to an action of damages for fal-e imprisonment, in the same
way as common bliliffs were. The consequence was, that
in some lists the Commissioners shrunk from the respon-
sibility of committal, and allowed the bankrupt to a ass
unpunished rather than risk an action for damages.—
(Hear.) One other important duty of those Judges was,
to find the property of the bankrupt, to detect the fictitious
creditor, and to defeat those whoendeavour to make the com-
mission the mean, of defrauding the real creditor. The
system under which those Courts were at present consti-
tuted preventing their being fit for that duty. It is well
known to be one of the most difficult duties of the Judge
or the lawyer to search, and sift, and analyse the testimony
of a dishonest witness. But he could name a score of
these Commissioners who were wholly incap :tele of per-
forming such a duty. He did not blame those gentlemen.
The fault was not in them, but in the appointing of them.
Many of them were boys, taken from Westminster-hall
almost the first day they entered it. The Bill before their
Lordships would secure the appointment of barristers of
standing, experience, and character ; who, being pro-
tected as Judges, would be competent to their duties, and
would perform them efficiently. He no more blamd the
present CoMmissioners for their inability to discharge their
functions of Judges, than he would blame his Noble and
Learned Friend (Lord Lyndhurst) for his inability to play
upon the fiddle, because he bad not practised that art.
His Noble Friend objected to the appointment of the official
assignees, on the ground of their high salaries. But he
(the Lord Chancellor) looked upon that part of the Bill
as the most valuable. There were at present some hun-
dreds of ti ousands of pounds in the hands of assignees,
of which not one shilling could be recovered, because
the assignees had become bankrupts themselves, or had
left the country. _ To remedy suck evils it was pro-
posed to appoint assignees, responsible to the Court, who
should take possession of the funds of the bankrupt:, not
excluding his choice or that of his creditors from the ap-
peintinent of assignees, as usual, for the administration of
his estate. As matters were managed at present, assignees
were known frequent.), to put off as long as possible the
Winding up of the bankrupt's affairs, that the money might
remain so long in their own hands. Therefore, when l e
(Lord Brougham) inquired into the sources of the clamour
which had been raised against that Bill, he found that it
carne from the trading assignees, one or two attorneys con-
nected with the Bankruptcy Court, and one or two public
accountants, for all those persons were immediately inte-
rested in upholding the present system. His-Noble Friend
spoke of the expensiveness of the system proposed by the
new Bill. But the expense of that system would be no
more than 49,000/., whereas the present cost was between
seventy and eighty thousand pounds. As to the patronage
also, his Noble Friend knew that the Chancellor had the
appointment of the present seventy Commissioners. Now
this Bill would reduce the patron ige considerably, for, in-
stead of seventy, he would have the appointment only of
eleven Judges. The chances of new appointments were
diminished much more then in proportion to that di-
minution of number. The present Commissioners had
many openings for promotion, but the new ones would
have promotion before them, but only to become one of
the fifteen Judges of the Superior Courts. The vacan-
cies that would be occasioned by such promotions
were averaged too highly at one a year. They could
not be more than one in two years. Besides, the Chan-
cellor being obliged to make his choice from so small a
circle, inasmuch as he must necessarily select a well-
qualified barrister, could not in truth be said to have any
patronage at all in the appointment. He would trouble
their Lordships with a very few words, respecting the
charge made against him by his Noble Friend, that he
was increasiug, by the Bill before their Lordship., the pa-
tronage of the Chancellor—indeed his own personal pa-
Lrorrage.—e near.) ...toe, $ 6 %V ca . a • ~. s.• • . i5..15—.1 ~.... .I.
retiring pension of the Lord Chancellor was taken very
low, when it was made the same as that of the Chief Jr.'s.
tire of the King's Bench—the expenses of the latter Judge
being very little compared to those of the Chancellor, who
was obliged to take an active part in the business of the
State. Those expenses were especially heavy on a man
who, like him (Lord Brougham) never saved anything.
Perhaps it was in consideration of those expenses, and the
uncertain duration of the offiee, whereby the man holding
was rendered less able to provide for his family, leaving
him at the same time a title to support—that the Lord
Chancellor had always in his gift several places with high
a aeries, which were mere sinecur,s, and by which he was
enabled to provide for hie family. One of those sinecures,
worth about 9,000/. a year, had been given by the
Chancellor, Lord Thurlow, to a member of his own family,
and one of the family still held it. That it was a sinecure
would be readily acknowledged, when it had actually
been held by no less celebrated a person than Nell
Gwynne.—(Hear.) There were, besPes, the office of
Clerk of the Hanaper, and several others, absolute sinecures,
which were always given to rehttions of the persons hold-
ing the Great Seal. Amongst those were the twenty-four
Cursitors, some of whom received .2,0001. a year, and the
others from. 1501. to 5001. a year. There, then, was the
di-posal of upwards of 20,000/. a year, which he (Lord
Brougham) had cut eff for ever from the Great Seal.—
(Much cheering.) The Bill which he proposed might
be a bad one. The present system for carrying the Bank-
ruptcy Laws into effect might be excellent. The mer
chants, bankers, and traders of London might all be mis-
taken respecting their own interest. He might have
introduced the Bill without subnOfirg it to any compe-
tent persons to give an opinion on the subject, to suggest
an improvement, or to detect a fault ; and the whole
measure might be an example of imbecility and presump-
tion. All that might be very true; but it could not be
true that he had introduced the measure for the sake 'of
increasing his own patronage, at the very moment that he
was cutting from his family the rich provision which they
might have found in those sinecures—(Cheers)—when he
was depriving himself of all means of providing for them,
with a tit'e to support, except the retiring pension, which
was less than half the emoluments of the profession, which
he had exchanged fur the Great Seal. He would frankly
confess, that whatever other faults lie might have supposed
his Noble Friend could attribute to him, he was not pre-
pared for the charge of designing to increase the patronage
of his office and of himselt personally. Not having been
prepared for such an accusation, lie trusted that their
Lordships would make some allowance if lie had not
sufficiently repelled the charge.—(Herr, hear.) His Noble
Friend approved of the present system, because it gave
an appeal to the Vice-Chancellor. But it was to be con-
sidered that in the G•urt cf lteview, to which the Bill
would give the appeal, there would be a trial by Jury.
Now it is well known that the Court of Chancery was
wholly unfit to deal with a question of disputed facts. He
himself had found the diffidulty of wading to the truth
through a mass of affidavits; for in that Court there was
no end to swearing. The encouragement to perjury was
unlimited. His Noble and Learned Friend bad spoken of
the appeal to the Vice-Chancellor, and of the manner in
which it would be affected by this Bill—contending that
the system ought not to be disturbed :.it was to be recol-
lected, however, that the office of Vice-Chancellor had only
been created for a temporary purpose—that of getting rid
of the =ear of business before the Lord Chancellor ; but
it might so happen (he did not mean of course to say abso-
lutely that it would happen) that the appointment of a
Vice-Chancellor might not be longer necessary, and in that
case, what would become of the appeal ? Of course it could
no longer exist, and in that ease the benefit of the change
of the system would be fully experienced. Complaint had
also been made with reference to county commissions, and
it was unquestionably a most objectionable part of the
present system ; but it was easily capable of some im-
provement, and the improvement now contemplettd,
would at least give to the country the advantages at
present enjoyed by the commercial interest in London.
The purpose now was merely to apply the Bill upon the
table to the metropolis, and a district of twenty miles
round it, and hereafter, as it was found to answer, it
might be extended further ; but the machinery was too
pre-
vailing founddeiec t,. that
on it e
was
of the complicated to spread over a wider surface until it was
c
well
consequencesadapted
of
t remedyot
the
changepre-
vlae
would, perhaps, lie, to lessen the number of bankruptcies,
inasmuch as it would put an end to fraudulent anti
some-
times to friendly cotnniiesions; if such were notfoundbe the result, it would be ()Wing to the i
c.rcumstance that
not not a few who now were discharged under the Insolvent
Mt), with all its future liabilities, would then give a pre-

ferenee to the new Bankrupt Law, by which they would
he freed from farther responsibility to their creditors. At
least such would, probably, be the effect with honest debt-
ors who were only anxious to give tip the whole of their
property to those to whom it justly belonged. Having
troubled their Lordships with these remarks in explana-
tion and vindication of the 13111, he would not occupy
their attention longer.
The Earl of ELDON said that he would have no wish
but that the law on this subject would he put under the
hest possible system of regulation ; and after having long
practised in Courts of Equity, before he held the Great
Seal, and having occupied the Woolsack fur five-and-
twenty years, he would not accept the apology the Noble
and Learned Lord had made for him for not introducing
some of the reforms now contemplated. His opinion was,
that the abuses professed to be remedied did not exist, and
that belief would fully account for, and excuse any sup-
posed supineness on his parr. He did not doubt that the
Noble and Learned Lord bad taken great pains with his
Bill, and had made it as perfect as circumstances would
allow, hut the great point to he decided in the first instance
was, whether it was necessary, and that question the House
ought not to leave to the determination of any individual,
however well qualified, but should institute a grave and
patient inquiry into all the facts before a Committee of its
own. The change was extensive and violent, and the least
that could be expected was that no means of information had
been neglected. A great deal of misconception had gene
abroad with regard to the expences of the present system,
and the. exaggerations might be judged of from tie mis.
statements that from time to time had gone abroad respecting
the emoluments of the Keeper of the Great Seal. While
he was in that situation it had at various times been stated
that the income of the Lord Chancellor was 30,0001. a
year ; nay, some had gone so far as to assert that it was
not less than 35 WO/. a year. The fact, however, was, as
he had repeatedly stated, and shown by documents, that
the average income of the Lord Chancellor, while he (Lord
Eldon) was in office, little coceeded 15 0001. a year.
Difficulties and doubts had arisen out of the fact that part
of the emoluments of the occupant of the Woolsack were
derived from the payment of fees—an arrangement, he
admitted, highly onjectionabie. It led to the suspicion
that business was delayed or increased for the s the of the
fees, and it would be far better that this part of his income
should be put upon tl c same footing as that of the Chief
Justices of the King's L'encli and Common Pleas. Objec-
tions had-also been taken to the amount of patronage pos-
sessed by the Lord Chancellor ; but in this point he in
some degree coincided with the Noble and Learned Lord,
recollecting the very uncertain tenure of the efface. The
Noble and Learned Lord, in a low tone of voice, then
made some remarks upon the manner in which Lord
Thurlow had proceeded in the abolition of the sinecure
of the individual who formerly had enjoyed the great
pecuniary advantages of recommending persons to
fill the offices of Registrars; and he afterwards referred
to the recent appointment of additional Judges in the
Courts of Law, contending, as we understood, that the only
new Judge necessary was for the Court of King's Bench.
He justified the list of Commissioners to which the Noble
and Learned Lord (Brougham) bad referred in the (eon-
mittnents they had made, and expressed his regret that
other lists had not to a certain extent followed the same
course. He then adverted to the subject of the retiring
pension of the Lord Chancellor, and noticed what had
been done upon the subject in the time of Lord Thurlow ;
but we could not catch the particulars which the Noble
and Learned Lord detailed to the House. We understood
him to say that the patent office which Lord Thurlow
enjoyed had been given him to make up for the smallness of
his retiring pension. The truth was that the services of
such a Judge could not be adequately compensated,' espe-
cially by mere wages; and it was not fit that after
they quitted the Woolsack the Keepers of the Great
Seal should he left in a state of eb stitution. Upon
this point the Noble and Learner' Lord referred to the opi-
nions of Lord Soniets and Mr. Burke. He again enforced
the necessity of patient inquiry by a Committee before such a
Bill as the present was adopted or even entertained. It pro-
fessed to prevent uncertainty, expence, and delay, in the
proceedings in bankruptcy, but from his experience he
was satisfied that it would increase uncertainty, ac-
cumulate expence, and augment delay: He contended
(if we heard correctly) that two of the Judges in
Westminster Hall, recently appointed, and who already bad
not suffisient business to occupy them, might be appointed
to try issues from the Courts of Equity, which would
render unnecessary part of the machinery of the Bill on
the table, and would lead to results more satisfactory to
the litigating parties. He felt convinced that the change
was needless, or even a change were:required that now re-
commended from the Woolsack was not likely to be bene-
ficial. He repeated his conviction that if this Bill were
carried into effect, the delay and the expence would both
os to.. oessa 0000 ea looonotssai—ood w le/emending who,
the Noble and Learned Lord had said about patronage, he
could not but think that the patronage of the Chancellor
would be increased—at least it would be increased at
the present moment to a very great extent. There was
another objection to the Bill. The persons to be appointed
to these judicial offices in bankruptcy would all be barris-
ters. Now he thought that the distinction at present ex-
isting among the Commissioners ought to be maintained.
and while be was in office he had always maintained it.
He had always supplied the vacancy created in consequence
of tl.e death or resignation of an attorney, by the appoint-
ment of an attorney ; and the death or resignation of a barris-
ter, by the appointment of a barrister. His reason fur doing
so was this, that though a portion of the.office of Commis-
sioner of Bankrupt was judicial, yet a portion of it also
was Ministerial, and required, therefore, the peculiar
knowledge and practice of an attorney for i s proper dis-
charge. This Bill gave a preference to common lawyers,
which he thought both unwise and improper. For the
disharge of the duties of a Judge in bankruptcy, the equity
barristers were fitted by the peculiar nature of their practice.
The chief discussions in bankruptcy turned on matters of,
equity, and of course those whose whole professional life had
been directed to the consideration of such subjects were the
more most fitted to decide upon them. Feeling as he did
upon this subject, he thought that before their Lordships
adapted any decisive measure, they ought to be well assured
of the existence of the evil, and of the nature of the pro-
poved remedy ; and he, therefore, besought them not be in
a hurry to pass this Bill.
The LORD CHANCELLOR said, that he thought the
Noble and Learned Lord was somewhat mistaken on the
question of qualification for the office of a Judge in bank-
ruptcy. The Bill gave no preference to common lawyers
over equity lawyers--and he must be a bad common law-
yer who was not fit to sit as a Judge in bankruptcy, for
the common law was directly connected with nine-tenths
of the matters that occurred in bankruptcy.
The report was brought up, and the Bill was ordered
to be recommitted on Thursday next.