BANKRUPTCY.
ONE of our tasks, proper to the "long vacation," lies before ns in the Report from the Select Committee of the House of Lords, to whom was referred the bill intituled " an Act to Consolidate and Amend the Bankrupt Law of England," together with -the Mi nutes of Evidence and an Appendix. The Appendix contains only an abstract of the alterations and amendments proposed by the Metropolitan Committee of Merchants and Traders in the Lord Chancellor's bill of last session.
This Committee, of which Lord Brougham was chairman, sat fourteen days, between the 17th of July and the 3d of August last; a very short space of time to devote to so important an in- quiry, but their Lordships do not consider the investigation as closed. They recommend that it should be further prosecuted in the -ensuing session. 'We must say, however, that they have done their work laboriously and skilfully, as the members of the Upper House generally do in Select Committee. We have twice as much information as would have been elicited by the Com- mons in the same space of time. Whether it be that the higher authority of •the tribunal, with the solemnity of the examination upon oath, awes the witnesses ; or that their Lordships, being well-bred and well-educated men, know how to ask questions—a rare faculty—as well as when to leave the inquisition to 'the most competent person ; or whether it be that the merit is due to the "great Law Lords," whose experience peculiarly fits them for the task, we do 'not pretend to say. But the fact is certain, that the most valuable reports do proceed from their Lordships' House ; and we reckon this among them. One excellence of it is, that the whole of the evidence, 'though taken with extreme fairness and presenting contradictory statements and opinions, has all been given with immediate reference to the questions re- ferred to the Committee. It proceeds in the orderly and logical manner of a judicial inquiry. There are no frivolous questions, and very few rhodomontade answers. So that we have a very readable and useful blue book ; and it will be the fault of the public if it do not lead to a more scientific legislation on the sub- ject of Bankruptcy than exists in England or any other country.
Much of 'the credit of all this is due to Lord Brougham, the chairman, who has done more for the improvement of this branch of the law than any other -man ; much, likewise, to the eminent qualifications of the witnesses, and the frequent discussion the subject has undergone. The report, in fact, may be regarded as the official record of evidence long considered and thoroughly digested by persons the most competent to form an opinion.
As the groundwork, and, pro forma, the subject-matter of the inquiry, we have Lord Brougham's Bill for the Consolidation and Amendment of the Law of Bankruptcy. This bill is framed in the spirit of those consolidation acts with which the name of Sir Robert Peel is so favourably connected ; but it has a much more scientific character than any of those acts,—presenting to the eye, as well as to the mind, a clear and satisfactory because-ex- haustive analysis of the whole subject. Some of our more ancient statutes, framed by the Judges before the Commons began to meddle much with legislation, and when a multiplication of laws was regarded with horror as re- pugnant to liberty, are admirable specimens of the synthetic method ; and we can sympathize with a late ancient conveyancer who contemplated a well-drawn deed or record with the same kind of approbation that a connoisseur bestows upon a picture, statue, or other work of art. But a modern act of Parliament is too often a mere collection of words, some used in a technical and some in a popular sense ; fruitful in litigation, and therefore as unsatisfactory to the public as it is contemptible to the philoso- phical lawyer. But here is the draught of a statute so intelligible that it may be read and understood by a merchant or tradesman as a treatise on the subject ; so complete that a practising lawyer will require to use no other text-book ; and so scientific that it will only need a proper title to retain its place in any codification that may hereafter be made of our laws. The preamble of the bill is very brief, and very much to the point.* We only wish that it were acted upon through the whole of our jurisprudence. We might then venture to compare our- selves, in all points, with the Romans, as a civilized people; which it would be presumption to do now. Our laws might become as prevalent and as durable as our race and language. But it is not a little remarkable, that our Colonies, when they throw off our dominion, holding fast by the common law, as a thing of almost divine sanctity,—the law not so much of our country as of our race, the expression of the normal condition of our being as
a people,—invariably reject the whole mass of our Parliamentary law, as a thing of local, transient, and sectional interest, but chiefly on account of the impossibility of understanding or apply- ing it, without an expense, a delay, and an amount a learning, unattainable in a new country. Here, however, is a sample of a code which a Transatlantic judge might carry in his portmanteau to the wilds of Oregon, or a newly-fledged barrister expound to the savages of New Zealand; as, in ancient times,
"Gallia causidicos docuit fecund& Britannos."
In speaking of codification, we may be pardoned for digressing so far as to remind our readers that Ulpian, the Chief Commis- sioner, as we might term him, employed by the Emperor Justi- nian in framing that code which, after so many ages, is the model of legislation, was recalled for the purpose from York, where he had been performing the duties of a kind of colonial judge among our ancestors.
We have stated that the bill is one not merely for consoli- dation, but likewise for amendment. It appears to embody the whole of the alterations and improvements recommended in the report of the Commissioners for inquiring into these matters in 1840; and which report is signed by the Right Honourable T. Erskine, late one of the Judges of the Common Pleas, Com- missioners Evans, Fonblanque, and Holroyd, Messrs. Wynn El- lis, B. Hawes junior, George Carr Glyn, and J. Horsley Palmer. Mr. Commissioner Holroyd pointed out very distinctly the
great importance of one amendment contained in the bill—name- ly, " the new mode of procedure to obtain adjudication of bank- ruptcy and the abolition of thejiat." Many of our non-profession- al readers may be at a loss to know what is the meaning of the word " fiat" as applied to bankruptcy, connected as it is in popu- lar language with the Divine majesty and creative power. It is, however, precisely the same in law ; except that the fees are very heavy, the part performed by the Chancellor merely nominal, and utterly useless—nec dignus vindice nodes—and the delay some- times productive of fatal consequences to the estate. This im- provement flows naturally from raising and extending the au- thority and jurisdiction of the Court. Abs this belongs to a larger view of the subject, and is connected with every other amend- ment in the law or the administration of it, and is made techni- cally the foundation of the bill, we shall dwell a little on the pro- posed alterations in the constitution of the Court ; essential as we conceive them to be, and only not carried far enough and boldly enough in the present scheme.
We beg particularly to call the attention of our readers to the
anomalous condition of the Court of Bankruptcy, as to its juris- diction, its judicial staff, its administrative machinery, and the relation in which it stands to the other courts of the realm. The comparison between Basinghall Street and Westminster Hall will aptly illustrate the relation in which commerce stands to the feu- dal institutions of the country, and the estimate severally formed of them by our legislators. In the one, you will see men sitting in the ordinary garb of junior counsel, without so much as a silk gown in virtue of their office at salaries of 1,5001. to 2,000/. a year, and under the name of! Commissioners—that of Judges being denied them; and you will find them in the course of the year trying the most delicate and weighty issues, and adjudi- cating upon an amount of property far exceeding that which comes into question in the three great Common Law Courts put together. You will find among them men of great learning and acuteness, qualified for the highest walks of jurisprudence, and whose opinion (not to speak too generally) on a point of bank- ruptcy law would certainly be preferred by the profession, as an opinion, to that of any living judge whether of law or of equity. But even these Commissioners are subject to an appeal to a junior Judge in Chancery ; and the suitors must either put up with the decision in Basinghall Street, or go willingly—perhaps unwil- lingly—to Sir James Knight Bruce ; from Sir James to the Lord Chancellor ; from the Chancellor to the House of Lords; and from the Lords to whatever place awaits those who have passed all these great circles in the Inferno of litigation. Go to West- minster Hall, and you will see at once, from the very aspect of the place you are in and of the people there, that you have got within the pale of the constitution, and that here is a something " Whereas it is expedient to amend the laws now in force relating to bank- rupts, and to simplify the language thereof; and that the same, so amended and simplified, should be arranged and consolidated in one statute, to the end that the said laws may be the better understood by the subjects of the realm, and the more completely enforced: Be it therefore enacted," &c. prodigiously well paid and most sedulously guarded by the Bri- tish lion. If you go there in term-time, when their Lordships (for they are all Lords ex officio) are sitting in banco, or aslEschy- lus has it, crEXAa CfEtWOV ;WIMP, you will see rows of elderly gentlemen, all in fancy dresses, a little incongruous perhaps,—the bag-wig of Charles the Second's time being retained when abandoned by everybody else, instead of resuming the ancient square cap of their Norman predecessors. So tenacious are they of rank and precedence, that you will see stuck upon their wigs, like the ornaments of a savage in the Pacific, a black patch indicative of their having attained to the awful dignity of Sergeant, and reminiscent to the initiated of the ineffable mysteries of the "ring " and the " colt." If you go day after day, you will see them change their habiliments, not as the vulgar, on account of the weather, but with reference to the saints in the calendar ; and if you are an antiquary, you will soon find out that this is the ancient costume of a dignitary of the Romish Church. You will be impressed with reverence, of course, and still more so when you find that each of these learned and venerable persons—the more learned and venerable for that rea- son—receives not less than 4,5001. to 10,0001. a year. You left the humble Commissioner in Basinghall Street adjudicating upon an estate of 10,0001. or 50,0001., or it may be half a million ster- ling; and on coming into Westminster Hall, you find all the fifteen Judges, or a quorum of them, sitting in conclave on some conundrum in the criminal law invented by a provincial barrister, or two-thirds of them in the Exchequer Chamber, splitting hairs upon the subtilties of special pleading ; the subject matter in dis- pute in either case not being perhaps worth so much as the parchment on which the record is written. We are not, however, finding fault with these things. If it would give a learned judge weight with the public to wear a ring through his nose, in addition to the other barbaric ornaments he now displays, we should have no objection. But we think it unwise and unfair to keep the Court of Bankruptcy in subor- dination to a recent and not very popular appendage to the Court of Chancery, and to deprive the suitors of the great advantage— because both speedy and economical—of an appeal from the indi- vidual Commissioner to the whole of the Commissioners sitting in banco as the Judges at Westminster.
We attach great importance to this alteration. It is, in fact, proposed in the bill, that the Commissioners should henceforth be styled "Judges"; that they should be a " court of record," taking rank and precedence next after the Judges of the Common Law Courts ; the salaries of the Judges to be slightly raised, the chief receiving 2,5001.; but all appeals to be abolished except to the Lord Chancellor, and, with his permission, to the House of Lords.
The great object, however, is the efficiency of the Court ; and we propose next week to examine the bill more critically, in order to ascertain how the new jurisdiction is likely to work for the benefit of the public—how far the law itself should be altered to make it correspond with the improved machinery—and what effect these changes ought to have on other branches of our juris- prudence.
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