The Sun.
London, England, 1861-07-19 00:00:00

(Cheers.) But if this experiment were tried, they would
some day find the country knocking at the door of the
House of Commons and saying, " This system won't work
without a head." Well, he (the Solicitor-General) ventured
to say that the present was the best time. The necessity
was as clear then as it would be thereafter. The hon. and
learned member for Guildford asked what it was they were
doing. He said they were appointing over again the old
judge in bankruptcy whom they had got rid of some years
ago. But was that the fact ? For the argument was no-
thing unless it was a fact. The functions of the two were
as different as possible. He would just enumerate shortly
some of the brief points affecting the duties of the new judge
as compared with the old. The right hon. member for
Oxfordshire seemed to have forgotten that he had any duty
except to preside in appeals. He had entirely forgotten that
this bill provided for a large amount of original jurisdiction
of an important character to be discharged by the chief
judge, He would take one of the most important single
points. By the clauses on the subject of the discharge of
bankrupts, which, as the house was aware, included
non-traders and insolvents as well as traders, every case of
a contested discharge falling within the jurisdiction of
bankruptcy would of necessity be referred to and enter-
tained by the chief judge. Also if the commissioner who
had the management of the case should find particular cir-
cumstances in the case which required particular attention,
he was to consider the circumstances, and the question of
discharge was to come before the chief judge. What was
the existing principle with regard to certificates ? There
were five commissioners, and if there were any rule, there
were five different rules for determining .the principle on
which certificates were to be granted. If there was anything
more difficult than another, it was a question of conduct
which arose upon a certificate. There were some commis-
sioners who, in thirteen cases, would give one first-class
certificate. There were others who would give twelve.
Such was the want of method, of uniformity, of principle,
and system of this branch of the administration of the law,
of which it was not too much to say that upon it commer-
cial morality in a high degree depended. The object of the
system was to give a full and free discharge to every honest
bankrupt. But it was absolutely necessary to guard against
fraud in granting the discharge. Nothing could be more
important than this branch of the system. A large portion
of the time of the commissioners was consumed in this part
of the business in bankruptcy, and a large number of ap-
peals were founded upon it. This original jurisdiction, af-
fecting the character of all under it in morality and con-
duct, was brought primarily before the chief judge. What
would be the effect of the Lords' amendments ? It would
throw back this jurisdiction to the five commissioners.
There would thus continue to be one-fifth of a principle,
one-fifth of a rule, or five different principles or rules, so as
to leave the whole question to haphazard. If there were any
point on which it was necessary to concentrate the power of
all authority, it was this. It seemed to have been entirely
lost sight of in the debate which had taken place in the
house, and if anything were needed to give weight to it, it
was this—that the bill not only abolished the certificate
which existed before, but it subjected the bankrupt to a set
of penal clauses. They were creating by this bill rules and
principles embodied, so to speak, in the penal law, so that a
man was to be tried in that court for mercantile offences, and
punished expressly on the penal principle, and no longer on
the old system of a suspension of certificate. The Lords had
left this new jurisdiction to each and every one of the
five commissioners. To the appeal business sufficient refe-
rence had been made ; but he would offer a few observations
as to the various sources of increase of business generally
which had been overlooked. There seemed to be some who
were willing to abolish the appeal altogether. But when it
was remembered that any person in the kingdom, from the
highest peer to the lowest peasant, was subject to this law,
it was an exceedingly shocking thing to say either that no
appeal was necessary, or that it ought to be expunged. That
was entirely new. Then besides the non-trader clauses there
were the ten thousand deeds a year, taking the average of
the last ten years, all these were to be made subject to the
jurisdiction of the court. There was also to be taken into
account the increase which might be expected to arise from
the beneficial operation of the measure, and the necessity
which was laid upon the public to come into bankruptcy.
There was ne possibility of any by paths here. The ma-
chinery of this bill was framed so as to bear upon the whole
bankrupt and insolvent property of the country. Surely,
then, there ought to be a chief judge, as a regulator of the
whole system. The arguments against it assumed the
failure of the whole bill, and in taking this provision out
they would be strangling, crippling, destroying its chances
of life, and all means of obtaining a consistent, uniform,
dignified, and authoritative administration. If the Lords'
Justices themselves could speak they would not, he was
sure, be anxious to receive the new duties which it was
proposed to thrust upon them. Not one word could be said
of the way in which they had exercised their bankruptcy
jurisdiction that could exceed their deserts, but he would
suggest that the duties they had hitherto discharged
were far less in magnitude and extent than those which it
was proposed to confer on them, and that, moreover, they
had hitherto exercised no original jurisdiction in bankruptcy.
Besides, if the amount of bankruptcy business increased as
was' expected, and the appellant jurisdiction grew in like
proportion, it would absorb the whole c.f their time, and
turn their court into a court of bankruptcy. But they had
been appointed to assist the Lord Chancellor in his court of
appeal, and he would ask the house if they were prepared
to destroy a valuable portion of the machinery of Chancery,
and throw the equity business of the country into confusion,
merely for the purpose of avoiding the creation of a head
to the Court of Bankruptcy ? Besides, they could not ex •
pect a court which had other functions to perform to super-
intend the system of bankruptcy with the same efficiency as
a judge whose attention was exclusively confined to that
particular subject. (Hear, hear.) The other proposition,
that which had been made by his right hon. friend (Mr.
Walpole), was even more objectionable, viz., that one of the
17 ice-Chancellors or the Master of the Rolls should have
handed over to him the functions proposed to be given to
the chief judge by the bill.
Mr. WALPOLE explained that he meant those functions
as amended by the Lords.
The SOLICITOR-GENERAL—Then he would have
almost exclusively an appellate jurisdiction; and the bill
would sweep away all the important functions originally
'proposed. He (the Solicitor-General) did not think that
the suggestion would in the least tend to the speedy or
efficient administration of justice as far as bankruptcy was
concerned, while it would most materially interfere with
the proper functions of the Court of Chancery. So far from
adding to the bankruptcy jurisdiction of the Court of Chan-
cery, it would rather be convenient to remove from it a class
of business akin to bankruptcy, namely, the winding up of
insolvent joint-stock corayrnies—a species of business which
would be better discharged by the Court of Bankruptcy. It
was a mistake to suppose that the Court of Chancery had
more than a sufficient judicial staff. It was quite true that
for a short period at the commencement of the year business
was slack in the Rolls Court ; but what was the result ?
The rapidity and accuracy with which the able judge who
presided over that court transacted its business soon pro-
vided a remedy. Nature abhorred a vacuum; and suitors
when they knew where their causes might be quickly dis-
posed of pressed into the court, and the slackness of busi-
ness no longer existed. (Hear.) In conclusion, he would ask
the house if it were disposed to deal with this great subject
in a mere experimental spirit—whether they would imperil
the efficiency of the measure by withholding that condition.
which could alone ensure it eminent success, and then, when
the public were dissatisfied and discontented, seek to patch
up their work as best they might by appointing a chief
judge who ought to have been provided in the first instance ?
He could find neither principle nor authority to support the
amendment of the Lords. Even the Liverpool firms who
had petitioned in favour of that amendment had testified
against it until it had become a subject of controversy in
Parliament, and all other bodies were at least silent. The
merchants of London were,'as might naturally have
been expected, most clear in their approval of
the original proposition ; and there was no trace of
an adverse opinion amongst the other commercial bodies of
the country. He had so much respect for the eminent names
which appeared in the House of Lords to have given their
sanction to the change, that he was inclined to attach weight
to their opinion even on this subject; but not knowing how
far those noble and learned lords were infofmed of the real
opinion of Liverpool and Lancashire he ventured to think
that their authority was not entitled to overrule the experi •
ence of the House of Commons, and the long careful delibe-
ration which it had bestowed upon the bill. He begged,
therefore, to submit that the house ought to adhere to its
original proposition. (Cheers.)
Sir H. CAIRNS congratulated his hon. and learned friend
the Solicitor-General and the house at seeing him once more
among them, taking part in their debates with his usual
ability. With respect to the bill itself, if the amendments of
the Herne of Lords were rejected, there would be five diffe-
rent commissioners coming into collision. But not only
would that be the case, but those five, with the Chief Judge,
all having a co-ordinate jurisdiction, would probably be
found giving different decisions, and then the Chief Judge,
sitting in a court of appeal, may reverse them altogether.
His hon. and learned friend the Solicitor-General said the
bill was a transition bill, and that in the course of time the
number ofjudges would be gradually reduced; but the bill
did not say so. It certainly proposed to reduce the number
from five to three, and the Government were empowered to
keep the number at all times up to three. The hon. and
learned gentleman said the only commercial bodies in
country that petitioned in favour of the Lords' Amends
ments were about 40 or 50 firms in Liverpool, but lie
forgot altogether those great coratnercial fiuns
Thea
r billmong
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ie sup_
port were the leading merchants in Belfast.
introduced last year by the Goverittetroenee
tra
co-ordinateb receivedrs on thh
his
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port and the support of many
the other
at
was a very different
arrangement fromablished one uniform
th
of the house, because it swept away f
sdyicsttieomn ooff tihaericsodmiomtioisnsi.oners
But
and e
machinery contemplated by the
measure: before it was sent up to the other House of Parlia-
ment. He denied that the bill would diminish the expenses
appellate interpretation.
business,
heTheft
contended with
gard
that no delay occurred in the present appellatejurisdiction,
of appeals, as the Attorney-General endeavoured to con-
vince the house. There was not one word in any of the
clauses
t o
Ntvhhei
behillexpediting
boresuch a n
and
certainly none to justify the appointment of a Chief
Judge with a salary of £5,000
barn, i a-year. As, •
rerw awl rirklXed that t should be
Anglictim 9f tln chiefjudg•