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134 THE EXAMINER.-----
to his fame and estimation with the public; but inferior officers were less
likely to be influenced by such motives. It was said that these officers
would earn their salaries as easily as they could, and be less active if their
remuneration did not depend on fees. He should draw this distinction.
Officers might be paid by fees, when the multiplication of fees did not
depend on their own discretion. But by having fees on the successive steps
of a procedure, it becomes his interest to multiply the steps before the
conclusion, in order to multiply his fees. Thereby creating both delay and
expense. But if the fees were made to depend on the conclusion of the
procedure, then the officer would have no power to increase their amount,
except by dispatch. He then adverted to the jurisdiction in cases of
lunacy, which had been annexed by the Crown to the Court of Chancery.
The Lord Chancellor had the care of persons who were found lunatic,
upon an inquisition which he alone has power to order. Great inconvenience
arose from the present state of this jurisdiction. The amount of
the fortunes of the 400 lunatics at present under the care of the Lord
Chancellor, was not less than from six to eight millions sterling—probably
more nearly eight millions. He objected both to the mode of finding a person
lunatic, and to the mode in which that person was afterwards taken
care of. Three Chancery lawyers were appointed commissioners, and
called upon to decide on the effect of evidence in the most delicate cases,
although they might, perhaps, never before have had occasion to examine
a witness. He proposed, that in cases of contested lunacy, the Lord
Chancellor should be empowered to call upon one of the judges to preside
at the inquisitions, which would add to the solemnity, and give them the
advantage of great legal learning, and judicial experience. It is important
that the Keeper of the Great Seal should have power to take care that
the lunatic was in proper custody, and not in the custody of persons more
anxious to retard or prevent the recovery of the patient than to promote
it, when they knew that by the recovery, they would lose their share of the
160,000l. which is annually distributed among the keepers of Chancery
lunatics. He was morally certain that, in this respect, things were not in
the situation in which they ought to be. He proposed to constitute a board,
whose business it should be to take care both of the person and
property of the lunatic. The members of the board should be paid by a
commission of one-half per cent. out of the property of the lunatics. In reference
to the bankrupt law, he said the commissioners were seventy in number,
and they were certainly not the best judges that could be chosen for
the purpose. He could not say that they were always appointed for their
fitness, and not because they were personal friends or connections of
personal friends of the Lord Chancellor for the time being. "If," said he,
"I were to say that I had appointed the persons most proper for the execution
of the duties of the situation, or that my predecessors had always done
so, I should be justly chargeable with the most overweening self-seeking
on my own account—and guilty of the grossest flattery to my predecessors."
He imputed blame to nobody—the system alone was to blame, and
therefore the system ought, as soon as possible, to be destroyed. It
sometimes happened that counsel of great experience had to plead before these
commissioners. Mr. Sergeant Wilde, Mr. Pollock, and Mr. Montague had
practiced before them. Leading members of the profession went to plead
before young men of twenty-one, or old men of 86, and they really decided
the cases, and not the commissioners. "I have," said the noble lord,
"been derided and taunted as a timid reformer, and I glory in the
charge; for what those heated reformists call timidity, I call wisdom. I
prefer to sail with the lead in my hand when steering among unknown dangers,
with breakers a-head and a rocky shore under my lee, upon which I
might but for this caution, be dashed to pieces. But at the same time, I
am no friend to half measures, and I propose, that the system should be
entirely abolished—that the whole should be swept away by one short and
simple operation. The commissioners have no vested rights, Their
interest depends on a letter sent from the Lord Chancellor, informing them that
they are to proceed upon such a commission, but I may refuse to send
any such letter, and confine myself to only one list, and then the bankrupt
jurisdiction is at an end. I propose, however, to allow the gentlemen who
have hitherto filled the situation of commissioners a fair and liberal
compensation, although they have put forward no claim." The noble lord
proposed to appoint ten judges on commissions, instead of the seventy
commissioners of bankrupts. And considering the multitude of cases to be
heard, and the prospect of a diminution in the business of the Insolvent
Debtors' Court, which business would be gradually transferred to the new
judges, and the three judges of that court entirely got rid of, he thought
ten the least number of judges he could venture to propose. These ten
he would divide into three classes. The first judge should be the chief
over the whole administration of the bankrupt laws of the country In the
second class would be three senior judges, chosen from the higher walks of
the profession. In the third, six junior judges—who should rise to the
higher rank in proportion as the learning and talent they might exhibit
should entitle them to such promotion. To a single commission—a judge
taken from the third class, he would give power to adjudicate all cases
where there was no dispute respecting the choice of assignees, or the proof
of debt, or any but the ordinary business; with power, in case of such
dispute, to call to his aid two others of the same rank as himself, or one of
the senior judges, and they were then to have power to proceed in the same
manner as the ordinary courts of law. If the dispute could not then be
settled, and both parties agreed to go to trial on an issue, they might do so
before one of the senior judges, assisted by a jury. If both the parties
should not agree to an issue, they should have power to go before the chief
judge, and the three senior judges setting as the judges of the court of
King's Bench do now in Banco, in order to determine the question of law.
He intended to extend to the country the principles of the act he now
proposed; but at present, he should only require the judges of assize to select
a list of such barristers residing in the county as they may think competent,
together with a few respectable solicitors, and return their names to the
Lord Chancellor, that he may select from them three persons to put on the
commission which the cases of bankruptcy might from time to time require.
He then adverted at great length to the mode of taking evidence, and the
fees of office in the Court of Chancery; and proposed that the Masters
should no longer receive any advantage from the taking of fees. One of
the fees was called gratuity money, The public called it bribery. These
gratuities had been denounced and exposed, as long back as the time of Sir
S. Romilly, when it was proved that as much as 50l. was frequently
received in the shape of a gratuity. The noble lord declared, in the most
energetic manner, his determination, with the assistance of parliament and
the country, to put an end to such crying abuses. The clerk who received
this gratuity or expedition money had to tax the very bill of costs of the attorney
who paid him the money. So that having received the sum of 50l., he
had an opportunity of repaying this sum with interest to the worthy man,
by passing lightly over some 100l. of his bill, which he might not otherwise
be disposed to tax with so much lenity. The proposition for having
recourse to viva voce examinations was fully admitted and approved of. He
could have wished to leave certain matters to be decided by juries before
the Masters, but found so many deep-rooted prejudices and plausible
reasons against the plan, that he was disposed to stop here for the present,
looking forward to the introduction at some future period of other, and, as
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the examiner / sunday, february 27, 1831 / no. 1204 |
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[[notes_public::"john fonblanques eulogium on brougham" [note in bentham's hand]]] |
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