We have

Courts into some more rational and convenient order. noted this point the more particularly, as we find in the Chancery Report a proposition, unquestionably right in the abstract; but which (under the existing system) would have no other effect than to destroy this incipient class of bankruptcy lawyers. It is of great use to the commercial world that they should know at once on what opinions they may rely for their guidance, and on what persons they can depend for certain and immediate assistance when subjected either as parties or witnesses to the summary jurisdiction of bankruptcy; this they can do if there be a known class devoted to that particular branch of study and practice; they are deprived of the advantage, if on an emergency they are obliged to search the whole ranks of the profession for assistance.

Within the last ten or twelve years more than usual attention has been paid to this branch of law; partly from its increased importance as respecting the extended scale and more complicated nature of our trade; and partly from the spirit of inquiry, which, though repressed for a time, then began to exercise itself on our legal institutions. Several attempts accordingly were from time to time made to reform the law, but it was not till about 1823-4 when the subject was undertaken by Mr. Eden, under the auspices (as it is said) of the Lord Chancellor (f), that any important progress was made.

(f) Mr. Cullen in commenting on the first attempt at consolidation, says, "The above bill was recently introduced into the House of Lords by the Lord Chancellor ; but although so graced in its introduction, it is by no means to be considered as a bill proceeding from himself, or as the result of his own opinions or views with respect to the existing system of the bankrupt law. Had his other engagements permitted him to apply his great understanding, with his vast knowledge and experience, to such a subject, we should certainly have seen a bill of a very different kind;-a bill founded upon a large and comprehensive view of the policy or impolicy of the system generally, with such alterations proposed as would meet the evils of the present system in their causes; instead of a bill such as the one now under consideration, which appears to me to consist very much of a number of small points, a string of clauses having little or no general connecting

"But if we are to proceed thus only by detail, and to have a bill for each particular inconvenience or mischief that any witness may be able to point out, with the most convincing particularity of narrative of how it occurred to himself in his own individual experience, we may go on to have an endless succession of occasional and partial bills; instead of some general measure founded upon a comprehensive view of the origin and cause of all such mischiefs together; and which might put an end at once, not only to those mischiefs themselves, but to a not much less mischief in matters so deeply affecting all persons connected with trade; namely, that of a constant mending and altering of particular parts, so that it becomes almost impossible to know either what the

It was then for the first time that the previously abused theory of consolidation was applied to bankruptcy; with so little success, however, in the first instance, that the act of the 5th G. 4, was repealed in the middle of the day on which the principal part of its enactments came into operation (g) by the stat. 6 G. 4, c. 16, which is now in force.

As the first section of this act repeals no less than twenty-one previously existing statutes, a very important advantage has been gained; commercial men may now find within a moderate compass the enactments which principally concern them, and as far as common sense can be a guide to an act of parliament, they may learn something of the state of the law by which their daily transactions are, or ought to be, regulated; they may, if they are so inclined, ascertain the defects of the system, and suggest the amendments necessary to its improvement: we say, if they are so inclined: a doubt on this point may seem extraordinary; inclination and interest are generally found in conjunction, and it is only by very urgent reason that they can be separated; and yet it is evident that the trading classes have been most peculiarly supine on the subject of the Bankrupt Laws; they have submitted for ages, and almost in silence, to an inconvenient, absurd, and expensive system. Individuals, indeed, may from time to time have complained of hardships, or suggested amendment; but, as a body, the merchants of England have done nothing towards drawing the atten

law would be at, or what the law is."A Short Review of a Bill," &c. &c.)

Mr. Éden about the same time published a pamphlet in vindication of his bill, Mr. Montagu another, containing many doubts upon its policy, and Mr J.Fonblanque another, suggesting many alterations in the construction and practice of the Court of Commissioners. It is probable that each of these works had its merit; we shall take the shorter course of pointing out their general defects. Mr. Eden, with a parental affection, is too partial to his own work. Mr. Montagu, continually repeating his own opinions, and the opinions of others, as to the defects of the system, seldom if ever ventures to propose a remedy of his own, though his practical experience might be expected to have suggested His younger colleague falls into the opposite error, and is lavish

one.

of suggestion without fully appreciating the difficulty of change.

(g) It is a singular fact that the favourite clauses of this act (those relating to certificates), which were brought into immediate operation, while the bulk of the statute was only to have effect on a distant day, were the principal causes of its premature dissolution. The most obnoxious enactment, that of sect. 116, was well known to have been intended. to meet the hardship, or supposed hardship, of an individual case; but it was no sooner attempted to put the clause in operation, than it was discovered that no judge could apply the principle upon which it was supposed to have been founded. This bill, therefore, furnished an excellent example of the evil pointed out by Mr. Cullen in the too prevalent practice of legislating for particular grievances, without reference to general principles.

tion of the legislature or the public to the defective state of the law. There are not wanting persons who will urge this passive acquiescence as an argument against reform, and not without some semblance of reason; but they do not remember that submission to an abuse arises as often from despair of a remedy as from insensibility to the evil. What reasonable hope could any body of men entertain of a reform of the law while so many predominant interests and so many long existing prejudices were arrayed against them, when reform and disaffection, amendment and revolution were used as synonimes by all whose pockets, passions, or politics, ranked them as the champions of an antiquated system? The time, however, is fortunately arrived when prejudice is beginning to give way before the force of public opinion, and when even selfinterest begins to examine the ground on which it stands, and inquires, whether a prudent change of positition may not prevent a final overthrow; ministers of state admit the defects of our legislation, and even lawyers are found ready to assist in its amend

ment.

Another and most important cause of this apparent supineness of the trading interests, arises from the curious fact that the commercial class in this most commercial country, has no recognised organ (h) of communication with the legislature. Individuals, or individual corporations may petition; classes, as ship-owners, stockbrokers, silk-manufacturers, or sugar-bakers, when they find their several interests endangered, may represent their grievances to the ministry, or to the parliament; but there is no recognised officer who has a right to say in petition or remonstrance," I represent the trading interests of Great Britain." Even the Corporation of the City of London, which may fairly be supposed to approach nearest to the nature of such a representative, has been recently accused of an officious, if not impertinent, interference with the legal authorities, for having appointed a committee to inquire into the state and execution of the Bankrupt Laws; and it is more than probable that the city petition, founded on the report of that committee, may be received with some coldness.

It happens, however, very fortunately for the object of these petitioners that the subject is one which cannot be avoided. The Chancery Report cannot be discussed without entering very largely into the subject of bankruptcy; for, although we are inclined to be of opinion, that the supposed pressure of bankrupt petitions upon the Court has been greatly exaggerated; yet, as the Chancery

(h) The Board of Trade might be supposed to exercise this function, if it were not obvious that its labours, however useful in other respects,

have seldom, if ever, been directed to the reform of mere legal abuses or inconveniences, where they have not affected the revenue.

Commissioners themselves have adopted and acted upon that popular opinion, those who are to support the report cannot well contradict it.

Greatly as we advocate frequent discussion on the subject of all our judicial establishments, and especially of those in which the greatest abuses and inconveniences prevail, as we fear is the case in the practical administration of the Bankrupt Law; yet, we cannot but deprecate one of the forms in which this question is likely to be discussed, (and probably will have been discussed before this paper meets the public eye). We allude to the motion of which Mr. Michael Angelo Taylor has given notice. "That the jurisdiction of bankruptcy should be entirely taken from the Lord Chancellor." We object to this form, first, because by mixing something of personality, or, at any rate, by exciting the suspicion of personality in the discussion, the general question is likely to be prejudiced; and, secondly, because we very sincerely believe, and in this belief we find ourselves confirmed by the concurrent opinions of all who are most conversant with the subject, that the control of the proceedings in bankruptcy, and the final appeal on subjects growing out of them, ought to remain with the highest judicial authority. We do not mean to assert that the interposition of the Lord Chancellor is absolutely necessary in one-third of the interlocutory matters in which it is now exercised; these might be safely confided, in the first instance at least, to the Commissioners even as now constituted in London; but it is most material that the Commissioners, or any new tribunal which may be substituted for them, should feel that they are acting under the control of the highest legal power: it is equally important that the suitor should feel a confidence in the superiority of the judgment to which his interests are ultimately to be submitted. The jurisdiction of bankruptcy is not, and cannot be, in ordinary cases subject to appeal in the House of Lords;-being deprived of this last resort, it is certainly both just and expedient, that the suitor should have the next best remedy against error, the revision of the Lord Chancellor.

But though the wording of Mr. M. A. Taylor's motion, as we have understood it, goes to the jurisdiction of the Chancellor in bankruptcy, another object is most probably contained in it, the separation of the ministerial office of issuing commissions of bankruptcy from the judicial office of deciding on bankrupt petitions. On this point we should agree with the mover. The present form of a separate commission for each bankruptcy is utterly useless, except to the patentee (Lord Thurlow), and other officers who derive fees from it; for it must be quite obvious to every mind unfettered by self-interest, that it would be as easy to adjudicate in all bankruptcies under one commission, as it is to adjudicate in

all insolvencies under a single authority. Time (i) and expense may both be saved by the abolition of this form; a petitioning creditor should be empowered to go immediately before the Court which is to adjudicate the bankruptcy of his debtor; instead of being danced, by himself or his attorney, from office to office, to obtain that which might be granted him at once by a single well

constituted tribunal.

Many obstacles would no doubt be thrown in the way of this reform; the treasury might shrink from the amount of compensations necessary to remunerate the persons who would be directly injured by the change; and those who, in the ordinary course of succession, might have fairly hoped for similar employment would naturally oppose an alteration which so materially affected their prospects. We cannot deny the justice of these claims, and are convinced, that the first and most necessary step towards legal reform is to quiet the apprehensions of those who must be injured by it. It is not just to obtain even a public benefit by the unnecessary infliction of private injury; it is not expedient to array self-interest against reform, when you can purchase its co-operation. Therefore while we assert the right of the working officers to compensation, we are, unwillingly indeed, compelled to admit the sinecurist to a participation of its benefits. Bad as all useless offices, burthening the administration of justice, must be, that of the patentee of commissions of bankrupt is the very worst:-we can scarcely conceive any thing more nefarious than the invention of a sinecure to be paid out of the wreck of an insolvent estate; and if Lord Thurlow, or Lord Thurlow's uncle, had been the inventor of the office, we should never have advocated compensation for its abolition; but as the evil is of no new creation, we are willing to conciliate even this interest, by showing that, by a temporary continuance of the sacrifice, the public may ultimately, and indeed at no very distant period, be exonerated from its burthen.

(i) During the long vacation, the loss of time is most material, as every commission must be taken into the country to have the Great Seal affixed to it; the extra expense of this journey is about two guineas; but if a petitioning creditor requires his commission in great haste (as may often be the case), and cannot wait till the ordinary journey of the officer, he must pay the whole travelling expenses or lose his remedy. The present Chancellor's country residence is in Dorsetshire, a future Chancellor may reside in

Northumberland; the present Chancellor has felt the importance of this branch of jurisdiction, and by the abolition of holidays, and other regulations has, at his own expense, given every facility, consistent with the existing system, to the speedy issuing of commissions; a future Chancellor may not be equally considerate or equally accessable. It is, therefore, expedient to render the execution of the law in this respect independent of all possible changes of Judges.