IMPRISONMENT FOR DEBT. (Hansard, 12 June 1834)

The Attorney General

rose, in pursuance of the notice he had given, to move for leave to bring in a Bill to abolish Imprisonment for Debt, except in cases of fraud, and to amend the Law of Debtor and Creditor. As he, however, did not anticipate any serious objection in that preliminary stage of the proceeding, he should not find it necessary to occupy much time in explaining the outlines of the measure, which, with the permission of the House, he should have the honour of introducing. He was anxious, in the first place, to justify himself from the imputation of any delay in bringing the subject forward. There was nothing nearer his heart than that imprisonment for debt should be abolished, except in cases of fraud; and, on the first day of the Session, he had accordingly given notice of a Motion for leave to bring in a Bill, in order to accomplish that object; but he ceased to be a Member of that House on the very evening for which his notice stood. The very day, however, on which he was restored to that House, he renewed the notice; and he now rose to make the Motion as expeditiously as possible. He would not go into the general merits of the question, whether there should be the power of arresting for debt or not,—that was a subject which had been very copiously discussed; and those who wished to see the arguments stated at length on one side or on the other, would find them in the fourth Report of the Common Law Commissioners; but there was one authority in which he was disposed to place great reliance, and which had not been generally adverted to—he meant the authority of Edmund Burke, a name illustrious in general philosophical jurisprudence as well as in politics, and which he would shortly refer to on the present occasion. In 1780, a Bill had been introduced into that House for the abolition of Imprisonment for Debt on Mesne Process; it received the support of Mr. Burke; and when he went to Bristol, he was reproached for having given it his 413 support. Mr. Burke defended himself; and he begged leave to read to the House an extract from the reply which that great man made upon that occasion. It was not the fate of many busting speeches to live in the history of the country, but that from which he was about to quote, would be read and referred to with pleasure and profit as long as the English language remained. Mr. Burke said—'Lord Beauchamp's Bill was a law of justice and policy, as far as it went; I say, as far as it went, for its fault was, its being, in the remedial part, miserably defective. There are two capital faults in our law with relation to civil debts. One is, that every man is presumed solvent—a presumption, in innumerable cases, directly against truth. Therefore, the debtor is ordered, on a supposition of ability and fraud, to be coerced his liberty until he makes payment. By this means, in all cases of civil insolvency, without a pardon from his creditor, he is to be imprisoned for life; and thus a miserable mistaken invention of artificial science operates to change a civil into a criminal judgment, and to scourge misfortune or indiscretion with a punishment which the law does not inflict on the greatest crimes. The next fault is, that the inflicting of that punishment is not on the opinion of an equal and public judge; but is referred to the arbitrary discretion of a private, nay interested and irritated, individual. He, who formally is, and substantially ought to be, the judge, is in reality no more than ministerial, a mere executive instrument of a private man, who is at once judge and party. Every idea of judicial order is subverted by this procedure. If the insolvency be no crime, why is it punished with arbitrary imprisonment? If it be a crime, why is it delivered into private hands to pardon without discretion, or to punish without mercy and without measure? I know that credit must be preserved, but equity must be preserved too; and it is impossible that anything should be necessary to commerce which is inconsistent with justice.' Upon that authority, and on general reasoning, he submitted, that the time had now arrived when imprisonment for debt, both on mesne process and on execution, should, except in cases of fraud, be abolished. It was monstrous, that in a free country, a man might be deprived of his liberty 414 without the judgment of any competent tribunal, at the instance and merely on the oath of a vindictive party; and that, too, it might be, on fraudulent pretences. The expense of giving bail was a great detriment to the debtor, as also to the creditor; because its effect was to take away from the funds with which the just debts of the individual ought to be satisfied. The only object of imprisonment for debt in this country was, to get at the property of the debtor; he should not, therefore, propose abolishing imprisonment, unless he could offer some equivalent to the creditor, and introduce a general amendment in the Law of Debtor and Creditor. There were several improvements to be now proposed which he thought would operate most beneficially, and to which he would very briefly refer. He proposed, first of all, that there should be a power of instant execution upon all bills of exchange, promissory notes, and bonds. When a man put his hand solemnly to instruments of that sort, it was monstrous to allow him, without any shadow of pretence, to have a trial to put in sham pleas; and thus, perhaps, to cause greater expense to the creditor than the original amount of the debt. There was nothing like this in Scotland, in France, or in any other country of Europe; and why should it be continued in England? Another equivalent proposed to be given to the creditor would be found to consist in the clauses of the Bill to compel the debtor to yield and surrender up his property to his creditors, to be fairly distributed amongst them, reserving to his own use any surplus that might remain after the sale or disposal of such property, whether houses, land, or goods. For want of such a provision in our laws, the debtor destitute of principle set his creditor at defiance—squandered away the little he had in gaol in riot or drunkenness; whilst the unprincipled rich man obtained the rules of the prison, indulged in every luxury, and experienced hardly any of the inconveniences of confinement. It was singular, that by the Act called the Lords' Act, a person detained in custody for debts amounting to 300l., might, at any time, be brought up on an allegation that he continued in prison with property sufficient to pay his debts, and have him subjected to examination in open Court, where, if he refused to give up his property, he did so at the risk of being sent 415 to Botany Bay for his default; but, strange to say, if the amount of his debts exceeded that sum of 300l. he might defy the creditor, continue in the rules, live in a palace if he could find one there, and spend his money before his creditors' face, in every luxurious or extravagant excess. The Bill he now moved for, would contain a provision, that, in case the debtor refused to yield up to the receiver appointed under the Bill his property for the benefit of creditors, whatever it might be, he should be kept in close confinement within the actual walls of the prison, and be treated as a criminal. The operation of the Bill would be similar to that of the Bankrupt Acts, which permitted the debtor, although he owed 100,000l. to go at liberty, and be freed from all his present liabilities, upon a full surrender of his property. Another compensatory clause of the Bill would be, one making all manner of property, whether real or personal property, bonds, bills, or securities, liable as assets for payment of a man's debts, and subject to be taken in execution under this Bill. By our present law the creditor could not touch copyhold property, bills or notes in the possession of the debtor, or money in the Funds. The debtor might have 100,000l. in Consols, and resist the payment of the most trifling demands; that property was inviolable, and he could not be forced to surrender any part of it for the payment of his debts. The creditor now had, in such a case, the power of keeping the debtor in confinement; but would it not be far better to give him the right to compel the debtor to make over and assign his property for the use of his creditors? In this spirit, then, it was intended to make all the debtor's property, whether real or personal, liable to his debts, and, in default of his surrendering up both, he was to be compelled to do so by duress and close imprisonment. A part of the plan of improvement in our law was, to introduce the cessio bonorum conformably to the practice of other countries, without rendering it necessary that the debtor should pass the ordeal of confinement. It was found by experience, that the confinement of the debtor under any circumstances was prejudicial to the moral character of the man, whilst the practice was attended with expense to the creditor. He would ask what object was obtained by the mediation of a Sheriff's officer, 416 the indignity of arrests, or the prolonged incarceration of the debtor? The incentives to industry, and the proper feeling of honourable independence too often were sacrificed to the creditor's security, without even effecting that object. To preserve these valuable attributes of the man where they existed, it was proposed, that when the debtor had made the surrender of his all, and it was so certified by a majority of his creditors, he should be released from all debts and liabilities, and be to all intents and purposes a new man. He felt that many very arbitrary distinctions had been introduced in our laws between the cases of insolvents and bankrupts which ought not to exist. To protect the creditor still further, there was, however, a clause in the Bill, providing, that if the contract had been made, or debt incurred under false pretences, or if the debtor did not fairly disclose his property, he should, upon conviction of such offence, be adjudged guilty of a misdemeanour, and be subject to punishment for the offence. He believed the change in our law would be most salutary, and anticipated, that the fraudulent would be hereafter punished, and the innocent and unfortunate protected from the vindictive creditor. It must naturally be expected that in substituting this state of the Law of Debtor and Creditor for the present, some expense must be entailed on the country. A Court consisting of competent Commissioners must be created, and provisional assignees must be appointed, to whom the property of debtors might be handed over in trust for the general body of creditors. But the expense of this system would be, he fondly expected, trivial, compared with the benefits procured. Already the constitution and maintenance of the Insolvent Debtor system cost 300,000l. a-year, a great portion of which ought to go into the fund for the payment of the insolvents' creditors. He felt very confident, that the many beneficial results which must flow from this alteration in the law, would, even to the creditor, more than compensate the injury he sustained, if injury it were, by using his power over the person of his debtor, by arresting him for the debt in the first instance, or finally taking his body in execution. He was encouraged to hope that, under these circumstances, the Motion he was about to make would not be met by any serious objection. The sub- 417 ject of imprisonment for debt was one on which men of great name and influence had, it was true, differed in opinion. It was one which required serious and ample investigation. That the attention would be paid to it by the House which so grave a subject of investigation demanded he had no doubt; but from their assenting to the first reading of the Bill he now proposed, guarded, as it would be found to be, by limitations and securities, amply sufficient to protect the creditor from the effect of fraud, concealment of property, or wilful delay, in making the assignment of the property for the benefit of creditors, he anticipated the most favourable results, not only as to the two classes more immediately concerned, but as to the moral influence which that improvement of our laws would produce on the state of society at large. The hon. and learned Gentleman concluded by making his Motion. Before he sat down, the hon. and learned Gentleman stated, in reply to questions, that to include Ireland within similar provisions, it would be the better way to bring in a separate Bill, which should have all the aid he could give it. The functions of the present Insolvent Debtors' Commissioners would be at an end, as soon as arrest for debt were abolished; yet, though such a result would follow, he had no doubt their services could be obtained to enable the Government to carry into effect the beneficial provisions of the Bill. It was in contemplation, that there should be a Court of Review, to which, in particular cases, an appeal should lie.