§ The Attorney-General
, in rising to move for leave to bring in a Bill to abolish Imprisonment for Debt except incases of fraud, said, that he did not propose to enter at large into the subject. It had been frequently discussed in that House, and the House had frequently expressed a strong opinion as to the propriety of abolishing imprisonment for debt, except in cases of fraud. He would explain, as briefly as possible, the points in which the Bill which he now asked leave to bring in, differed from the Bill which he had formerly presented to the House. One difference was, that the present Bill was much shorter than the former Bill. He therefore trusted that some of those hon. Members who had offered opposition to his former Bill would not offer any to the present. Indeed, he entertained some hopes that his hon. Friend, the Member for Knaresborough, would second his present motion; for he had discarded that part of his old Bill to which his hon. Friend had objected so strenuously—he meant that part of it which related to speedy judgment and execution upon bills of exchange. He considered that that part of his former Bill might be spared now, on account of the great improvement which had recently been introduced into that department of the law by the judges. The progress of causes had been so much accelerated, the means of procuring justice were now so much more economical than formerly, that he thought he might safely omit that part of his Bill altogether. Another part of his former Bill related to a cessio bonorum. That he had also omitted, because he thought it ought to form a separate measure of itself. He had also discarded a third portion of his former Bill—he alluded to the penal portion of it, by which several new misdemeanours were created, which, if they existed at all, he thought they ought to form part of the new Bill for the consolidation of the criminal law, which he hoped would be introduced during the present Session of Parliament. The main objects of his Bill were to give the creditor an immediate remedy against the property, and to take away from him his 147 remedy against the person of his debtor. To those two objects his present Bill would be confined. It had been stated by the late Sir Samuel Romilly, and indeed by every person who had considered this subject, that the law of England was in a lamentable state as to the remedy of a creditor for any debt adjudged to be due to him. He had, in fact, no direct remedy against a great part of the property of his debtor. He could not seize the money, the bills, the book-debts, the bonds, or indeed any security of his debtor. All the freehold property of his debtor was exempt. His copyhold property could not be touched. Half of his funded property might be taken, but that only under peculiar circumstances. Was it not much better that the creditor should have a remedy against the money, the funds, the bock-debts, the bonds, the bills of exchange, and the landed property of his debtor, than that he should seize his person, incarcerate him, when he could set all his creditors at defiance by living in prison on the proceeds of his property? The first great object of his Bill would be to enable the sheriff to seize on the money, the bills, the book-debts, the bonds, the funded property, the copyhold and freehold lands of the debtor. He proposed that a judgment should be a charge on the real estate, so that if, after twelve months, the debt should not be discharged the party holding that judgment should have the same remedy against the land as if he held a mortgage upon it. Giving this advantage to the creditor, he proposed to enact that he should no longer have any power over the person of his debtor. At present the creditor had power to seize the person of his debtor in order to get at his property; but if the Legislature gave the creditor power to get at the property of his debtor, it ought not to place the person of the debtor at the mercy of his creditor. He proposed, therefore, that except in cases of fraud, the creditor should not have the power of seizing on the person of the debtor. The number of persons confined in gaol for debt was between 13,000 and 14,000 and three-fourths of them were living on the gaol allowance, and had no property to dispose of. He thought it right that those persons should be discharged out of custody, and that they should be allowed an opportunity of maintaining themselves and their families by honest industry. He by no means pro- 148 posed to take away the power of imprisoning for debt in all cases; on the contrary, it would be provided by his Bill, that whenever fraud was discovered it should be punished; and consequently the judge would, in every such case, be allowed a discretion, to be exercised according to circumstances, of ordering that the debtor should be imprisoned. Moreover, whenever a creditor should swear that he had reasonable cause to believe that his debtor was about to abscond from the country, with the view of defrauding his creditors, the power of securing the person of the debtor, which at present existed, would still remain. He proposed that, after judgment had been obtained, the debtor should be required either to pay his debt within a certain time, or to give an account of his property. If that account should be considered unsatisfactory, the debtor should have an opportunity of offering explanations relative to it before the commissioner; but should it be found that he did not honestly disclose the amount of his property, or refused to surrender it for the benefit of his creditors, he would then be liable to a strict imprisonment—not, as was often the case at present, to a mock imprisonment, which did not prevent the debtor from keeping a handsome house, and living in a style of the greatest luxury. He would, in fact, be kept in salvâ et arctâ custodiâ. Such was the principle of the Bill, which he believed would prove mutually beneficial for the creditor and the debtor. There was another point, with respect to which the present Bill differed from the one which had been formerly introduced. It was urged, as a strong objection, that the Government, while endeavouring to amend the law, proposed to create a great number of new judges; and it was said that the patronage of the Crown would be increased in an alarming manner. Now, he would declare most sincerely, that he always found that in introducing new Bills the creation of new offices was, so far from being desirable, to be if possible avoided, because it always threw serious obstacles in the way of any improvement of the law. It was difficult to determine how the patronage thus created should be disposed of. If it was given to the Crown, it was immediately said that the patronage of the Crown was improperly increased. If it was given to the Lords-lieutenant, to the custodes rotulorum, or to the Quarter Sessions, there 149 would then always exist a great danger that improper appointments would be made, and that much more jobbing would take place than could be apprehended if the patronage were placed at the disposal of a responsible Minister of the Crown. Under these circumstances, he was happy to inform the House, that he had so framed the present Bill as to render new appointments unnecessary. He hoped that the new system might be worked by means of the machinery already in existence. As that part of the Bill relating to the cessio bonorum had been got rid of, the provisions of the Bill might be carried into effect within a radius of forty miles round London by the Bankruptcy Commissioners; and in other cases the Court of Review would be empowered to appoint a special commissioner, to examine the debtor and to do justice between him and his creditors. There would, consequently, be no permanent addition to the judicial establishment of the country, and the proposed system would be less expensive than the existing one; for the House would remember that it appeared by the Report of the Commissioners on this subject, that the expense of giving bail alone, which would be rendered unnecessary by the provisions of his Bill amounted to the annual sum of 300,000l. The hon. and learned Gentleman concluded by moving for leave to bring in a Bill "to extend the remedy of creditors against the property of debtors, and to abolish imprisonment for debt, except in cases of fraud."
quite concurred in the propriety of making a broad distinction between the fraudulent and the honest debtor; but, in his opinion, it was a more difficult task to draw the line than the hon. and learned Gentleman seemed to think. The hon. and learned Gentleman had not shown the House how that difficulty was to be overcome. He hoped, however, that especial care would be taken to make the provisions of the present Bill answer the expectations which its title gave rise to. The last Bill brought forward on the subject would have created immense patronage for the Government, and, instead of being of benefit to creditors, would have been a mere Bill of pains and penalties. The individual to whom the drawing up of that Bill had been intrusted seemed to have the same opinion as the hon. Member for Bath of his Majesty's Ministers. The Bill had been drawn up knavishly for 150 the purpose of increasing the patronage of the Ministers, and of bringing down the landed aristocracy. He did not accuse the Ministers of having read that Bill. He was sure, from an expression which he heard fall from the hon. and learned Gentleman (Sir J. Campbell), that the Bill had not been read by him until after the second reading. As for the noble Lord, the Secretary for the Home Department, he doubtless was too much engaged in writing learned disquisitions on the constitution, or too much attracted by the charms of the drama, to pay any attention to the subject. Nor was it to be expected that the noble Lord, the Secretary for Foreign Affairs, or the Chancellor of the Exchequer, could have devoted any time to the consideration of the subject—for the former had been trying to give a practical lesson of non-intervention to the Spaniards; and the latter had been endeavouring to sustain the value of his Exchequer-Bills. The hon. Member for Oxford (Mr. Maclean) had frequently put questions to the Government respecting the re-introduction of that Bill, but he suspected that even that hon. Gentleman had not read the Bill about which he appeared to be so anxious. It was undoubtedly true that the Bill passed that House, but, to quote the words of the late Mr. Cobbett, "he thanked God that we had a House of Lords." That House plainly saw that the professed object of the Bill, viz., the improvement of the law, was all a pretence. Their Lordships were not long in discovering that it proceeded from the same shop as the Irish Corporations' Bill and the Irish Church Bill came from, and that its object really was, to increase the patronage of the Ministers. He did not say it was directly the Bill of Ministers; it might have been drawn up by some of the understrappers of Government, and he had denounced it, as he did the present, as a knavish Bill and calculated to undermine the landed aristocracy of the country. He hoped such a Bill would never pass that House, and that ample time would be afforded for its discussion, at an earlier hour than two in the morning, and that it would not be allowed to go forth to the country deserving the character which he had felt bound to attribute to it. He trusted that ample opportunity would be given for the consideration of the new Bill, and he hoped that if it should be found at all similar to the former Bill, the 151 House would not hesitate to throw it out.
§ Mr. Maclean
assured the hon. Gentleman who had just sat down, that he had read the former Bill; and that his object in questioning the Government about the introduction of a new Bill, was to ascertain whether or not an opportunity would be allowed for fully considering its provisions. It appeared to him, from the great many alterations proposed to be made in the new Bill, that the hon. and learned Gentleman opposite (the Attorney-General) admitted, that the House of Lords had acted perfectly right in not agreeing to the former measure. There were parts of the present Bill, which he thought the House ought to watch with extreme jealousy. The power which it was proposed to give to any creditor who should be prepared to swear that he suspected his debtor was about to abscond, of causing the latter to be incarcerated, was one extremely liable to abuse. The old Bill contained a provision which he considered highly dangerous, and to which he should be disposed to object, if it was comprehended in the present Bill; he alluded to the power given to the creditor of breaking into the house of a third party, in order to obtain possession of goods belonging to his debtor.
§ Mr. Potter
felt sure, that the introduction of the Bill with the proposed alterations would give great satisfaction to the country, and particularly to the trading community.
§ Mr. Ewart
said, that the former Bill, which had been described by the hon. Member for Knaresborough, as tending to undermine the landed aristocracy, only went to make them liable for their just debts; and if the hon. Member dared to maintain that that was an improper object of legislation, he should like to know what sort of constituency it was that sent that hon. Member to that House? He was astonished to hear the hon. Member charge the party who had drawn up the former Bill with having knavish purposes in view.
rose to order. The hon. Member for Liverpool had attributed words to him which he had never used. He never charged the party who drew up the Bill with having knavish purposes in view. What he said was, that the Bill had been knavishly drawn up; and that the drawer of it seemed to entertain the 152 same opinion of his Majesty's Ministers as the hon. Member for Bath had of them.
§ Mr. Ewart
continued. He was glad of the introduction of a measure so calculated to benefit the people as that of which the hon. and learned Gentleman (the Attorney-General) had explained the nature. It had been said by Lord Chancellor Eldon, that the law in its present state was barbarous, and he thought, that no one would be found to object to the introduction of a Bill for its amendment.
said, that when the former Bill was under the consideration of the House, he inquired whether it was to be extended to Ireland, and was told in reply, that the machinery which was requisite for its operation was inapplicable to that country. He then resolved, after the English Bill should have passed, to ask for the introduction of one of a similar nature, adapted to the circumstances of Ireland. It now appeared, if he properly understood the statement of the hon. and learned Gentleman (the Attorney-General), that there existed no reason why the proposed measure should not be extended to Ireland, as all intention of erecting new tribunals was disclaimed. Under these circumstances, he thought it would be wise, as the proposed provisions were in his opinion highly salutary, to legislate for both countries in one and the same Bill.
§ Mr. Hawes
said, that with regard to the opinions of the Common Law Commissioners upon the question, he would mention, for the information of the hon. Member for Knaresborough, that they, if not unanimous, were nearly so, as to the policy of abolishing imprisonment for debt, and those few who differed from the rest had published the reasons for their dissent. They had founded their opinions upon the evidence of tradesmen and other persons, capable of forming a correct judgment on the question, the majority of whom had stated, that the credit of the country could not be in the least degree affected by the abolition of imprisonment for debt. Under the existing system there was the greatest 153 facility for getting at the person of a debtor, but none whatever for getting at his property. Many hon. Members thought, that securing the body of a debtor was a step towards getting hold of his property; but they were much mistaken. Debtors were discharged from prison without examination, and the greater part of those who remained in prison were extremely poor, and that at once ought to do away with any objection to their being set at liberty. He should give the Bill his best support.
did not rise to prolong the discussion relative to the Bill of the hon. and learned Gentleman opposite, but to inquire of the Government, whether it was their intention to submit to that or to the other House of Parliament, any measure for the improvement of the administration in the Courts of Chancery. During the last Session of Parliament a measure was introduced by the Lord Chancellor, but it was considered so inadequate for its purpose, both by lawyers and all other persons, that no great regret was felt, that the measure was not proceeded with. The evils which then existed had since increased to a degree of which the hon. and learned Gentleman opposite might not perhaps be aware. Two years and a-half ago the arrears in the Court of Chancery were between 300 and 400, and they had now increased to between 800 and 900. In the House of Lords, too, the duties of the Lord Chancellor had greatly increased, so that the sittings in his own Court were frequently interrupted. Added to this, the Court of Privy Council had occasioned extreme inconvenience by totally altering its arrangements. It formerly used to hold its sittings during the holidays, when no other Court was open; but it now sat at times when business was being transacted in other Courts. Still its sittings were so unfrequent, that it could not acquire a bar for itself; and consequently the gentlemen of the profession were obliged to neglect the interests of their clients, either at the Privy Council or at another Court. The hon. and learned Gentleman proposed by the provisions of the Bill he had asked leave to introduce, to throw some duty on the judges of the Court of Review. He was very glad to hear of such an arrangement, for there certainly was no body of men in the country so much in want of employment as those learned individuals. It was not his in- 154 tention to comment on that matter; all he wished to know was whether the Government intended to bring the whole subject to which he had alluded under the consideration of Parliament? He could not help thinking, that it might be desirable to have it first discussed in that House. There were, undoubtedly, in the other House, persons of high eminence, but they filled or had filled judicial situations; and persons at the bar might be able, on account of their peculiar position, to throw some light on the subject, which perhaps could not be afforded by individuals in a superior station.
§ The Attorney-General
admitted the existence of the evils to which the hon. and learned Gentleman had drawn the attention of the House. He believed there could be no doubt, that, in consequence of the increased population, and the increased wealth of this country, the present judicial establishment was inadequate. That judicial establishment continued, in point of fact, in almost the same state as it was at a period when the kingdom was six times less populous, and twenty times less wealthy. He could assure the hon. and learned Gentleman, that the subject to which he had alluded was under the serious consideration of the Government, and he had no doubt, that during the present Session, and at an early periods it would be brought under the consideration of that House, care being taken to give time for the fullest and most mature discussion.
§ Leave was given. The Bill was brought in and read a first time.