Lord Broughammoved, that the Report of the Amendment be now received. The object of the Bill now before their Lordships was to amend the Act passed two years ago for amending the Law with respect to Insolvent Debtors. By his noble 1175 and learned Friend's Bill, passed seven years ago, 1 and 2 Vict. c. 110, arrest on mesne process was abolished, except where the party was immediately going abroad, and even then he could only be arrested on a Judge's warrant. The only question consequently which remained to be dealt with was, how most safely and efficiently to get rid of arrest in execution, with due reference at once to the just claims of the creditor and the interests of the well-intentioned but unfortunate debtor. With a view, therefore, to the interests both of debtor and creditor, it was advisable they should, as far as possible, comply with the recommendation of the learned Commissioners, made ten years ago, and get rid of imprisonment on arrest in execution, still, however, keeping in view those five classes of misconduct on the part of a debtor, viz., when he contumaciously refused to disclose his property; when he refused to be examined as to his property; when, his property being known, he refused to give it up; when he fraudulently made away with it; and when he had been guilty of gross and scandalous extravagance —running in debt, for instance, to the extent of 15,000l., when his income was not more than 150l. The question was, how was this object to be best effected? There were two ways proposed; one of these was what he had introduced in 1842, and which passed into law in the month of August in that year. Since that period, indeed, it might be said that Imprisonment for Debt had practically ceased, since every debtor who thought proper to petition the Court of Bankruptcy, or giving due notice to his creditors, was entitled to the protection of the court from arrest. This placed him in a different position from the man who went before the Insolvent Commissioners, because their jurisdiction was grounded upon the presumption of previous imprisonment. The Act of 1842, the present law, enabled him, without going to prison, or even through the form of an arrest, to present his petition, and obtain his protection. It was an interim protection at first, but on obtaining the final order it became an absolute protection, which was a complete protection for his person against all creditors and all debts contracted before the date of his petition; but there were cases in which the interim protection ceased without his obtaining the absolute protection; and those were the five cases he had already enumerated. He could mention the case of a person who, with an estate of 1176 10,000l. a-year in the West Indies, refused to give up a farthing of it, and lived in the Queen's Prison for ten years. The creditor, no doubt, got little by incarcerating him; but no one would say that such a man had a right to claim his liberty, or that in such cases the party ought to obtain the benefit of his (Lord Brougham's) Act of 1842. What was the principle of that Act? One which it was most important should characterise every great measure,—a self-executing principle, acting thus:—the Commissioners, perceiving that a fraud had been committed, would say, "Go about your business, we shall leave you to the mercy of your creditors; a writ of capias ad satisfaciendum may exist against you, because you do not deserve to be freed from imprisonment." In other words, the Act of 1842 abolished Imprisonment for Debt in favour of the innocent, but not in favour of the fraudulent or contumacious insolvent; and the present Bill amended that Act, by giving a discretionary power to the Judge to examine into the whole case of the insolvent, and in the event of his being found guilty of any of the five acts of misconduct already enumerated, to limit the amount of imprisonment according to the circumstances of the case; the insolvent, at the end of the imprisonment, being entitled to claim the benefit of the Act, so that the creditor would have no further power over him. Thus the law of imprisonment was retained only when crime had been committed. Nobody said that for such crimes the parties ought to be transported, scourged, or pilloried, the only remedy was to resort to imprisonment for a certain period. The difference between this Bill and the Bill of his noble and learned Friend was great. His noble and learned Friend's Bill began by abolishing imprisonment for debt absolutely and in all cases, guilty as well as innocent; but then it said that when a debtor underwent an examination, and that crime was found to have been committed, the creditor or the court might prosecute him—that was to say, for, amongst other crimes which the Bill enumerated, "raising money under false pretences." That was a crime in the eye of the law already; so was pretending to be a trader, and getting goods with the intention of defrauding; so also was "making fraudulent conveyances." But, supposing they were not crimes as the law at present stood, still there was to be a prosecution; an indictment, counsel engaged to find flaws in it; a trial, judgment, 1177 and sentence, just as if the debtor had committed a crime totally unconnected with fraudulent dealing. He (Lord Brougham) objected to that principle, because it was not self-executing, while it gave every advantage to the fraudulent and contumacious debtor. But here was a case the most frequent of all, for which no provision was made in his noble and learned Friend's Bill, he meant the case of gross and culpable extravagance; a man not worth 20l. borrowing 20,000l., or getting goods from a jeweller which he did not want, had not the means to pay for, and obtained merely perhaps for the purpose of squandering them on some worthless person, such as came within the operation of the Bill of the right rev. Prelate opposite. The Bill of his noble and learned Friend did not make that an offence, although it was one which demanded the severest punishment, because attended with the greatest injury to the creditor, while he who committed an offence of perhaps not one-tenth part, the magnitude was liable to the punishment of transportation. The man who got credit from an honest tradesman to the extent of 1,000l., without any means of payment, morally speaking defrauded him; but his noble and learned Friend made no provision for preventing or punishing the fraud, although such a person not only defrauded the tradesman but he inflicted an injury on those who really did pay, for the tradesman was obliged to charge so much more as an insurance against bad debts. This had all the consequences of swindling, but yet it was no offence as the law stood, nor was it made one by his noble and learned Friend's Bill. Then, in the cases his noble and learned Friend's Bill did reach, it left the execution of the law to the creditor or the court. If, however, in such a case, imprisonment were enjoined, there would be a chance of getting a surrender of some property, or the friends of the party would come forward and enter into a compromise with the creditor. This was the advantage of his proposed arrangement by which the law would execute itself, and facilitate the chances of the creditors, getting their farthing in the pound, which was the average amount paid out of the Insolvent Court, while they had nothing to get by prosecuting; on the contrary, that it would cost them 3l. or 4l., together with much loss of time. They might depend upon it that the creditor would not put himself to the trouble or expense of prosecuting his debtor by indictment; but his noble and 1178 learned Friend proposed that the Court should be allowed to prosecute; but it was a matter of absolute certainty that the Court never would prosecute, for if they did they would send so many cases to other courts as to occupy all the time of the latter. He had been asked to give up his own Bill, and to support that of his noble and learned Friend, but he had refused to do so, because he had previously been in possession of the field; for his measure on this subject had become law, and been in operation two years. Under the operation of his Bill the bankruptcy law had been applied in cases of insolvency, and the debtors of the persons applying to the Courts had to pay all their debts to the official assignee, and the debtor had also to surrender all his property, bills, mortgages, and everything else to the same officer of the Court. Therefore, he said that the whole machinery of bankruptcy was made applicable in all such cases. To show the beneficial working of the Bankruptcy Act of 1831, he would mention that not less than 2,000,000l. of money had been found out and paid as dividends, and which had been allowed to accumulate in various hands under fiats of bankruptcy. His late respected friend, Mr. John Smith, the banker, had stated on one occasion, when somebody observed that that provision of the law would be inoperative, that he knew of a case of 100,000l. being in the hands of a banker, and which amount had accumulated from unclaimed dividends on bankrupts' estates, or from sums which had been lost sight of. He happened to know where large sums, under such circumstances, had accumulated from bankruptcies which had taken place thirty-five years ago, and that some of them, in consequence of the money so discovered, had paid 20s. in the pound, and had left a surplus to the bankrupt or his representatives, and this had been effected by the joint agency of the learned Commissioners and of the official assignees. He felt some little confidence in his Bill, and thought it rather hard if, after so many years' labour and experience in connexion with this subject he should be called upon to abandon it. He said, abandon imprisonment for debt in every case in which it could be shown that the debtor was an innocent debtor, and not a culpable contumacious defrauder. His noble and learned Friend said, abandon imprisonment for debt, and force the proof upon the claimant—upon the creditor. His learned Friend said, "Don't continue the debtor in prison, but send him to the Old 1179 Bailey or the Court of Queen's Bench, that he may be indicted, and punished with one year's imprisonment for one offence, with two years for another, and three years for another." But his (Lord Brougham's) Bill gave a summary power which would have the effect of punishing those who were really guilty: whereas, under the Bill of his noble Friend, 99 out of 100 would escape; and for those, the most numerous class of offenders — persons who, being possessed of 100l. borrowed 1,000l., no provision was made. His noble and learned Friend had provided no remedy for such cases. Another thing — he had originally framed this Bill with an addition of compulsory process, so that if a man chose to petition, he would be brought into the position of a quasi debtor. He was anxious to enable a creditor to compel a person to petition and undergo examination, and to give up his property; because, unfortunately, as he said before, persons generally waited until their property was gone, because they sought the benefit of the Insolvent Act; but only insolvents who were not traders could voluntarily take the benefit of the Act. Unfortunately, ever since bankrupt laws were established, from the time of Henry VIII. downwards, a broad distinction had been made between persons in trade, and those who were not in trade; and though in later Acts greater restrictions were applied to the distinction, still there was an exception in favour of all persons not really and substantially gaining their livelihood by trading. That was the reason why he felt great difficulty in approaching this subject; for this distinction had grown up, and assumed its present form, and men were divided into classes, and they thought they enjoyed or were entitled to certain immunities. Had a Bill been made retrospective, and so framed that every one of their Lordships, all the Members of both Houses of Parliament, lawyers, judges, physicians, the clergy, and country gentlemen, whether in Parliament or not, could be liable to be summoned before a Commissioner of the Bankruptcy Court, and directed to deliver up their property in fourteen days, such a Bill would never have passed through the House of Commons. For past debts had been contracted upon the strength of the distinction between traders and non-traders; and a man might say—"If I had known that, I should have been more prudent, and not have contracted such debts." But this Act would not affect any debts 1180 before the 1st of January, 1845, nor any mortgage, bill of security, any liability of trust, or any money payable as administrator or executor on any mortgage contracted after that time to pay off a former mortgage; because, otherwise, the mortgagee might say, "If you do not pay me my 5, or 4, or 3½ per cent., I'll make you a bankrupt." The operation of the Clause would, therefore, only be with regard to debts prospectively contracted, and when the debtor would have a full knowledge of the consequences that might attend his contracting debts. He had felt it expedient to consult several learned Friends of his, on whose judgment he placed great reliance, and he found that there existed the strongest feeling against breaking down the distinctions drawn by the law between traders and non-traders. He, therefore, would not proceed further at present with this part of the subject. He had taken a broad step for the benefit of debtors in 1842, and having got a footing, and being able to step firmly, he felt disposed to do something towards drawing a distinction between the two classes of debtors; but after the best consideration that he could give to the subject, he had arrived at the conclusion that it was better that the whole question of the consolidation of the bankruptcy and insolvent laws should be postponed to another Session, as it required more attention than could be given to it at that late period of the Session. It should be recollected that the distinction between the classes of debtors had always been drawn by the law of England; and although the whole of the law conferred some advantages on the trader, it also extended advantages to the non-trader. The trader who became a bankrupt, on receiving his certificate, obtained a protection against all past debts, whereas this was not the case with the non-trader; and the reason of this was, that the presumption was that the debts of the non-trader, as was the fact in 99 cases out of 100, were contracted without necessity; and the inference was, that the trader was almost invariably obliged to contract debts to carry on the speculations which were essential to traffic, This was one reason for the distinction, but another was, that if you made the future gains of the trader who had been a bankrupt, liable for past debts, that you never would afford him the means of getting credit, for no person would let him have goods which might be swept away at any moment by the officer of the Court of 1181 Bankruptcy. No reason of this nature could operate in the case of a non-trader. For instance, a man might have contracted several large debts, and being imprisoned in execution for them, he takes the benefit of the Insolvent Debtors' Act, and comes out of prison whitewashed, as it is termed. Now, supposing some years afterwards, this man came into possession of 10,000l. a year, was there any impropriety in the law making him pay his former debt? He had known cases of this kind, and he thought that it was only fair to the creditor that the future property of the insolvent should be liable. There was one general observation which he wished to make relative to the two Bills for Abolition of Imprisonment for Debt. He thought that in all cases the presumption was in favour of the creditor rather than the debtor, for the latter was obviously a man unable to pay debts which he had contracted, and which the creditor was entitled to. For this reason, he held that in the case of an insolvent the presumption was that a mere trader should not go without imprisonment, until he showed that there was no culpability on his part in contracting these debts. He thought, therefore, that his noble and learned Friend's Bill put the saddle on the wrong horse. It had been said, that if they abolished imprisonment for debt, that tradesmen would not give credit. Now, he was fully aware of the evils of an extensive system of credit, which ruined many creditors as well as debtors. He believed, however, that it was impossible to carry on trade as a merchant or broker, or even as a tradesman, without credit. He was fully alive to the evil of tradesmen entering into competition, not as to the goodness of the articles they sold, but as to the extent of credit which they gave. As long as this race of competition continued amongst tradesmen, there must be a long system of credit. He did not believe, as they had been told at the time would be the case, that the abolition of imprisonment on mesne process had diminished the extent of credit given by tradesmen. All that he asked, then, was the House to consent to take further steps to improve the measure of 1842; and, if they found by experience that it did not abolish imprisonment for debt in consequence of an imperfect machinery, still that there was plenty of time to go on, and he urged them not to adopt a new system which was very different from the one which they adopted two years ago. The noble and learned Lord concluded with 1182 moving that the Report of the Bill be then received.
§ Lord Cottenhamsaid, that he did not expect that towards the end of June, he should be called upon to discuss a subject which that House had unanimously disposed of on the 30th of April. On that day he moved the second reading of the Bill for the Abolition of Imprisonment on Execution, and he knew that he should receive the support of several noble Lords, and he thought amongst others the support of his noble and learned Friend. He stated that he should be happy to postpone his measure until his noble and learned Friend came back, because he thought him to be favourable to it, and he was anxious to have his assistance; he therefore, postponed it. His noble and learned Friend, after his return, not finding it convenient to be in the House on a particular day, asked him again to postpone it, and he did so. The day at last arrived when his (Lord Cottenham's) Bill was to be read a second time, and when he had entered fully into its details, it was approved by his noble and learned Friend on the Woolsack, which gave him the greatest pleasure, and such approval afforded great satisfaction to the House and to the country; it also informed every unfortunate man in gaol for debt that the time would soon come when he was likely to be liberated from his incarceration without going through the tedious, expensive, and useless process of the Insolvent Debtors Court. From the day of that debate there had not existed in the mind of any unfortunate person in prison for debt any doubt that before the close of the Session the law would be altered, and he would be released—there were a great number of persons in that situation, who were anxiously waiting in anticipation of his (Lord Cottenham's) Bill becoming law. He had received letters from many of them on the subject. He found now that his noble and learned Friend (Lord Brougham) objected to the Abolition of Imprisonment for Debt; he was willing, it appeared, to mitigate it in certain cases, but he preserved it in principle. He said, he objected to destroying the distinction which had hitherto existed between insolvency and bankruptcy, and above all things, he objected to any proposition that had for its object the protection of the insolvent in the enjoyment of his future property, his debts remaining unpaid. He (Lord Cottenham) had hoped, when he saw his noble and learned Friend on the Woolsack rise, that instead of putting the question, he was 1183 about to repeat the cogent arguments which he used on the 30th of April last in opposition to every one of the principles of the noble and learned Lord, and in favour of his (Lord Cottenham's) Bill. He would not ask their Lordships to recollect what passed on that occasion, for he had furnished himself with one of these authorities which the noble and learned Lord on the Woolsack would, no doubt, recognise as containing an accurate report of what he (the Lord Chancellor) said on that occasion:✶—
The Lord Chancellor did not rise to oppose the Bill of his noble and learned Friend; on the contrary, he begged to say, that he fully approved of its object and provisions for carrying that object into effect. His noble and learned Friend was perfectly correct in saying, that the subject had been maturely considered by the learned Commissioners to whom he had referred, and they had reported distinctly in favour of such a measure; and his noble and learned Friend, when he introduced the law for amending the Bankrupt Law, had provided for such an alteration in the law as this Bill proposed as part of his general measure. Unfortunately, however, his noble and learned Friend had not the opportunity of carrying his intentions in this respect into effect; for, while the Bill was upon their Lordships' Table, his noble and learned Friend ceased to hold the Great Seal. Nothing could be more inconsistent than the law as it at present stood that there should be two separate and distinct laws in the country with respect to the two different descriptions of insolvency —the Bankrupt Law and the Insolvent Law— which were distinctly opposed to each other as to the principles upon which they were respectively administered, especially in that one particular to which his noble and learned Friend had last alluded—the important particular which rendered the insolvent debtor, after all his property had been taken from him —when he had to commence the world again —liable to the payment of those debts for which he was supposed to be discharged by the Insolvent Debtors Court. It was, surely, sufficiently hard for a man to have to commence business, and as it were life again, without capital or property of any kind after his discharge by the Insolvent Debtors' Court; but if, in addition to this, they imposed upon him the liability to pay all the debts he had previously incurred, it would require more energy than most men were possessed of to bear up against it, and to endeavour, under such circumstances, by industry to acquire property. He (the Lord Chancellor) had always looked upon this as a most unwise provision in the Insolvent Debtors Law, and one that ought to be repealed. Another great absurdity was, that the two laws should be administered by two different description of Judges—the Bankrupt Commissioners in✶Hansard (Third Series), Vol. lxxiv. p. 457.1184the one case, and the Commissioners for the relief of insolvent debtors in the other. It was for these reasons—it being represented that the Bill of his noble and learned Friend had for its object to assimilate those two branches of the law, and that it had also for its object that the law so assimilated should be administered by one set of Judges—that he supported it, reserving to himself, of course, the consideration of its details by the Committee. And he begged leave to say further, that he had himself carefully considered the subject when he brought forward the Bankrupt Law Amendment Bill, which was now the law of the land; and the only reason why he had not imitated the example of his noble and learned Friend, by including such a measure as a part of that Bill was, that feeling most anxious for the success of that Bill, he had avoided encumbering it with the provisions necessary for accomplishing his noble Friend's object, knowing too that the object might be effected by a separate Bill which might afterwards be introduced. He most heartily approved of these provisions of his noble and learned Friend's measure, and he would suggest that it should now be read a second time, and should then stand over for a short period before going into Committee, because he understood his other noble and learned Friend (Lord Brougham) had a measure in contemplation, which had been alluded to, and which, being in some degree connected with the same subject, ought to be before the House at the same time; and he thought his noble Friend (Lord Brougham) and their Lordships would concur with him that it might lead to some inconvenience to pass the one before they had the other before them, in order that they might have an opportunity of judging how far the machinery and objects of the one Bill bore upon the machinery and objects of the other.His noble and learned Friend (Lord Brougham) had followed the Lord Chancellor, and stated that a learned person, a Sergeant at Law (Mr. Sergeant Manning), had been engaged in investigating the codes of many countries on the subject of the laws of Bankruptcy and Insolvency; and the statement which that learned person was preparing would shortly be put into his hands. A copy of this document had been sent to his house—he did not know what name to give it unless he called it a Report—it was addressed to the Lord Chancellor; but it had no beginning, or rather it began like a narrative, and it concluded, "all which is respectfully submitted to your Lordship," and was signed, "James Manning, Serjeant-at-law." He thought he had a sufficient knowledge of printing-office matters to say, that this document had been printed by direction of the Government, or of some Member of 1185 it. That document had assumed the form of a Bill which his noble and learned Friend (Lord Brougham) had introduced, of a most gigantic character, for it repealed all the Bankrupt Laws as they existed in this country, and enacted an entirely new code, which took away from the Court of Chancery the most important parts of its jurisdiction, and gave to the Insolvent Debtors' Court jurisdiction in accounts between parties, and the control over estates and other matters of account which now formed a great part of the jurisdiction of the Courts of Equity. [Lord Brougham: It is not compulsory.] It was in some cases; but, it appeared, his noble and learned Friend meant to postpone it. When, however, he found that this was the Bill which it was suggested in the debate of the 30th of April was proper to be considered with his (Lord Cottenham's) Bill—
Lord Broughamsaid, that finding that Bill had such a variety of objects, he had singled out portions from it. The present Bill contained such parts of it as no one entertained any doubt about—namely, the improvement of the jurisdiction given by the Bill of 1842.
§ Lord CottenhamNow, after a lapse of two months, when the abolition of imprisonment for debt was a matter believed to be decided upon by the country at large, and more particularly by the unfortunate persons now confined, he hoped he should be able to convince their Lordships that they ought to adhere to the vote which they had given on the 30th of April, and not rescind it. There appeared then not to be two opinions on the subject. If ever Parliament gave its sanction to a measure before it was formally passed, they had done it by the course adopted on that occasion—he alluded more particularly to the speech of the noble and learned Lord on the Woolsack, which had the sanction of the noble Duke opposite, and he believed he was not going too far if he assumed that it was approved by Her Majesty's Government. It certainly also had the approval of their Lordships: for, in fact, he had not heard an opinion expressed against the principle of the Bill; and were their Lordships now going to say that imprisonment for debt should remain part of the law of the land? Were their Lordships now about to say that an insolvent discharged under the Insolvent Act should not have the enjoyment of his future property. Was the noble and learned Lord on the Woolsack now going to unsay all that he had then said? 1186 He did not, neither would he, believe it. Had any new light been discovered? Why did not his noble and learned Friend (Lord Brougham) state then what he had stated now? his opinion then appeared to be the very contrary of what he stated it to be now. After, however, the course which the noble and learned Lord had taken, he must ask for the indulgence of the House, whilst he refreshed their recollection of the grounds upon which he asked them to come to the decision which they had come to on the 30th of April. His noble and learned Friend had referred to a Report of Commissioners appointed to inquire into the subject in 1832. One of the individuals (Mr. Stephen) dissented, but the other four joined in the Report; and he trusted their Lordships, before they consented to undo now what they had done on the 30th of April, would look back to what those Commissioners had said. They came to the conclusion that imprisonment for debt in execution ought to be abolished; that it ought not to continue to he the law of the land. They examined many witnesses, and the result of all their inquiry was, that they came to that conclusion. Did his noble and learned Friend object to the conclusion to which they had come? When he (Lord Cottenham) had the honour of holding the Great Seal he found this Report, and found, also, that nothing had been done upon it. He concurred in the opinion of those learned persons, but he knew that he had great interests to contend with, and wishing to arm himself with all the authority he could before he introduced any measure into that House, in the year 1840 he advised the appointment of a Commission again on the subject; he did not confine that Commission to lawyers—they knew well how the matter worked; but there was another class of persons who were also well acquainted with the subject, and he therefore also appointed merchants and traders in the city of London, who were best able from their knowledge and experience to form an opinion as to how this law operated on their interests. The lawyers on that Commission were, the present Mr. Justice Erskine, Mr. Joshua Evans, Mr. Fonblanque, and Mr. Holroyd—two of the most distinguished Commissioners of the Bankruptcy Court now exercising their duties in London—and he thought when he mentioned the names of the merchants he had selected, it would be admitted that they were also well qualified for the performance of the duty which they had un- 1187 dertaken; they were—Mr. Wynne Ellis, Mr. Benjamin Hawes, Mr. George Glynn, and Mr. Horseley Palmer, to whom he added Mr. Law, one of the Commissioners of the Insolvent Debtors Court. From this Report—as from the former—one individual dissented—not a merchant—Mr. Commissioner Law, who was one of the Commissioners of the Insolvent Debtors Court. He thought it was infinitely for the advantage of this inquiry, as it was for the previous one, that there was one dissentient. Both of the Gentlemen in each case—Mr. Stephen and Mr. Commissioner Law—made a long and elaborate Report, so that their Lordships and the public knew upon what ground it was they differed. All these authorities, with the exceptions he had named, gave it as their most unqualified opinion that imprisonment for debt ought to be abolished, and that it had been found to be totally inoperative. Accordingly, armed with this Report, in the Session of 1841 he had a Bill prepared, and as the Commission of 1840 had carried their inquiries into an improvement of the laws both of bankruptcy and insolvency, and had recommended that they should be united, his Bill was framed to carry into effect all their recommendations—the principal object of the Bill being to abolish imprisonment for debt, and give greater facilities to creditors for obtaining the property of their debtors. The events of 1841 prevented his carrying on this measure before their Lordships, but he stated, before he went out of office that he would renew the Bill in 1842; but in that year a Bill was brought in under the authority of his noble and learned Friend on the Woolsack which adopted half of his Bill of 1841, viz. all that part relating to the improvement of the Bankrupt Law; and the noble and learned Lord gave the reasons which he (Lord Cottenham) had just read why he had not adopted the whole of his Bill. The Bill which their Lordships read a second time on the 30th of April had for its object the carrying out of the recommendations contained in the Report of the Commissioners he had appointed in 1840. The noble and learned Lord on the Woolsack supported the Bill, as he had before stated; —and after what had taken place, would their Lordships rescind their former vote, and support the Bill now brought forward by his noble and learned Friend, framed upon exactly opposite antagonist principles? The noble and learned Lord's elaborate Bill was not then before the House, but he had 1188 gone into his (Lord Cottenham's) Bill for the purpose of showing how much better his (Lord Brougham's) Bill was than the Bill which he (Lord Cottenham) had proposed. The object of the noble and learned Lord's Bill was, to amend a former Bill; it certainly went a great way as a Bill to amend; but still it was founded on that former measure—which was simply this: it provided that any person, not a trader, and any trader owing debts under 300l., might apply to the Court of Bankruptcy, and upon a representation of the state of his property and debts, he might get an ad interim protection, and if nothing was found to militate against his claim for protection, he was ultimately to have a final order of protection. Now, their Lordships would observe, that this assumed that imprisonment for debt was to continue. It only affected a certain class of persons, and it also possessed this fault—it provided for the protection of the debtor, but it totally omitted to provide any remedy for the creditor. When the debtor obtained his protection, his estate, became vested in an assignee, it applied only to the lowest description of persons who were traders, and, after they had obtained their protection, it was generally found that the value of their effects would not warrant any further proceedings with a view to distribute them amongst the creditors, and the consequence was, that nothing further was done. The creditor had no means of enforcing payment of his debt after protection was given. The noble and learned Lord had stated that hundreds and thousands of persons had taken the benefit of that Act, but in very few cases had the creditor received any benefit, because there was no machinery in the Bill for dividing the property among the creditors. That was a measure, in fact, in his opinion, to encourage fraud, and he believed that it had been a source of great evil throughout the country. There was a Bill on this subject in the other House of Parliament which had not been proceeded with in consequence of his (Lord Cottenham's) Bill. They might, when his Bill came before the other House, consider which they would adopt, but after a lapse of two months, he did not for a moment suppose that the Government would throw out a measure of which they had then approved. He could not believe it. After the second reading, on the 30th of April, he found great difficulty in getting his Bill into Committee, in which he did not succeed until the 23rd of 1189 May. On the 6th of May, he found a Bill brought in by his noble and learned Friend (Lord Brougham), who had expressed no disapprobation of his (Lord Cottenham's) Bill, entituled "A Bill for Facilitating Arrangements between Debtors and Creditors." Of that Bill, however, they had heard no more. On the 13th of May, his noble and learned Friend brought forward his voluminous "Bill for Amending the Laws of Bankruptcy and Insolvency, and for Facilitating the Settlement of certain Matters of Account;" and this was the Bill which his noble and learned Friend had stated his intention not to proceed with at present. The Bill of his noble and learned Friend now under discussion was not introduced until the 21st of May; so that in the interval between the second reading of his (Lord Cottenham's) Bill and the Committee on his Bill, these three measures had been produced. Neither of these three Bills interfered with the Bill which their Lordships read a second time on the 30th of April, excepting the extensive Bill, which was not now brought forward, His noble and learned Friend said, that this Bill and his (Lord Cottenham's) were dissimilar—and so they were—in this: The Bill of his noble and learned Friend did not abolish imprisonment for debt except in certain cases, at the option of a judge; but his (Lord Cottenham's) object was to abolish it by destroying it altogether. His noble and learned Friend said, "Do not abolish imprisonment for debt, mitigate it, but maintain it for certain acts of dishonesty at the discretion of the individual judge." He, however, thought that was not right—it was not just—it was not consistent with the spirit of the English law. [Lord Brougham: It is consistent with the Insolvent Debtor's Act.] He said it was his object, and he had thought before that it was also the object of his noble and learned Friend, to get rid of the Insolvent Debtors' Act altogether. Let acts of dishonesty be tried by a jury, and if a party was convicted let him be punished; but to give to any individual the power of continuing imprisonment, abolishing it, or mitigating it at pleasure, and according to his own discretion or caprice—a power which would be administered by one man in one way, and by another in a different way—was contrary to the principles of British law. By the noble and learned Lord's Bill, any two execution creditors could set the law in motion, but any one creditor of 20l. 1190 could equally do it. Surely this required some further consideration. The machinery was very defective; and why was a debtor, who owed 300l., to be subjected to imprisonment before he could procure his protection? Imprisonment appeared to him to be the great evil of the Insolvent Debtors' Act, and yet the Bill of his noble and learned Friend went to perpetuate the evil. It was futile to talk about "protection," because a person might be sent to prison— his business might be broken up, and his affairs become irremediably deranged before he could obtain the protection. If the debtor knew that the creditor were on the look out for him to place him in prison, he might apply for and obtain protection, but if the creditor was too quick for him, and come upon him suddenly, he might be taken to prison before he could apply for protection, and there was nothing in the Bill of his noble and learned Friend to prevent such a man from being arrested. He might indeed be released after arrest, but there was no provision against the arrest in the first place. Upon this ground he (Lord Cottenham) considered that the Bill before their Lordships was open to all the objections of the Insolvent Debtors' Bill. [Lord Brougham: He can be released next morning.] That might be; but still there was nothing to prevent the arrest. He trusted that their Lordships, having already allowed his own Bill to go through certain stages, would not now consent to a Bill which was based upon antagonistic principles. It might be available, if his own Bill failed in another place; and therefore he made no opposition to the progress of his noble and learned Friend's Bill—but he hoped that they would at least send his Bill to the other House.
§ Lord Ashburtonsaid, that as he had for many years past paid considerable attention to the subject then under discussion, he trusted he might be excused if he ventured to say a few words in reference to it. He was not going to say anything with reference to reversing former expressions of opinion, but he must say that he thought it was too much the practice of their Lordships' House to postpone the discussion upon. Bills from one stage to another, until at last the Bill seemed to come before them with some claims for approval before any discussion had been taken upon it. He would now state to their Lordships what appeared to him to be the two leading distinctions between the Bill of the noble Lord (Lord 1191 Cottenham) and that of his noble and learned Friend (Lord Brougham) who had opened the debate. In the first place, there was a difference as to the distinction of Insolvency from Bankruptcy; and secondly, there was a difference with regard to imprisonment; not, however, as he understood it, very material with respect to the question of the propriety of imprisonment or non-imprisonment, but rather as to the manner in which imprisonment might possibly be applied. It seemed to be admitted on all hands that the principle of Imprisonment for Debt, regarded as a punishment for having incurred a debt, was not to be justified; for though in many cases the debtor might deserve imprisonment, yet its general application would involve the punishment of the innocent with the guilty, which was a practice wholly indefensible. It was also admitted that there was no other mode of obtaining from the debtor a fair and proper disclosure of his property but some kind of restraint upon the person; nor did the noble and learned Lord who spoke last recommend any other mode of coercion as necessary, in order to ensure a full disclosure of the debtor's effects; the measure of the noble and learned Lord being quite as stringent on the point of punishment as that of his noble and learned Friend (Lord Brougham). The principle of punishing a person for contracting a debt was in his opinion indefensible; but it had always struck him that the sensitiveness and apprehension of the public, lest the liberty of the subject should be infringed in the imprisonment of debtors for the purpose of forcing them to surrender the whole of their property, and of deterring others from recklessly incurring debts, was very much misplaced; and that much of the compassion lavished on the debtors more properly belonged to the unfortunate creditor. He entertained no doubt, that if an accurate inquiry into the matter could be made, it would be found that the great mass of debts had been incurred under some circumstances which would make it no very great hardship that the law should hold out something as it were in terrorem against parties recklessly incurring debts. If a person took the property of another having no right so to do, he was liable to punishment of a severe nature, but the man was in his (Lord Ashburton's) opinion no less guilty who took the property of another under a promise to pay, knowing at the time that he had no means of paying. He thought, therefore, that it 1192 was a false principle in legislation to be too sensitive upon this point. Now, the two plans of employing imprisonment were, as it appeared to him, the following:—His noble and learned Friend proposed that the Commissioner should have the power of determining whether the conduct of the debtor were satisfactory or not, and if he should decide that his conduct was unsatisfactory, then he had the power of remanding or of suspending the discharge of the debtor. If the means of obtaining a knowledge of the effects, and getting at a proper settlement, made the remedy of a restraint upon the personal liberty necessary, it was no more than was at once a wholesome and proper restraint. The noble and learned Lord (Lord Cottenham) said that many unfortunate persons now in prison for debt were anxiously looking forward to the day when the law should release them from their thraldom; while he (Lord Ashburton) believed that no person, who was ready to give a fair and honest account of his affairs, and to surrender the whole of his property need remain in prison an hour under the present Bill. As he said before, it was an acknowledged principle on all hands that imprisonment was not to be allowed for debt, but only as a wholesome restraint, and as a means of obtaining a knowledge of the property of the bankrupt, so that the creditor might not be fraudulently deprived of that which was his due. The noble and learned Lord did not propose to leave to the Court the conduct of the debtor as the case went on, but meant the debtor to be entirely free in his person.
§ Lord CottenhamNo, no.
§ Lord CottenhamMy Bill gives power to the creditor to summon the debtor before the Court, and to examine him as to what property he has, and if the Court think that he honestly discloses all his affairs, then he is not to be imprisoned; but if he refuse to answer, or if the Court be of opinion that he has property of which he has made no disclosure, then he is to be imprisoned.
Lord BroughamBut not for any extravagancies, mind. He may have spent 20,000l. upon extravagance—that doesn't signify.
§ Lord Ashburtoncontinued.—It really appeared to him, then, after all, that the noble and learned Lord (Lord Cottenham) did not abolish Imprisonment for Debt. If 1193 imprisonment, then, were to be held in terrorem, over the debtor, if he were to be remanded and kept in prison till his conduct was quite satisfactory, then he did not see much difference upon that point between one Bill and the other. He submitted that there might be many cases in which the evidence might be quite clear during the examination between the parties, yet might not be clear as it could be got up to send it for trial. A great deal of the evidence on which the Court would have power to send the debtor to another Court of Justice would be his own evidence, but then that evidence could not be used against him. The noble and learned Lord's provisions seemed to proceed from what was no doubt a very amiable motive—viz, a degree of solicitude with respect to the personal liberty of individuals; but which was not in his (Lord Ashburton's) opinion consistent with justice to the creditor. With regard to the separation of Insolvency from Bankruptcy, the noble and learned Lord seemed to treat them as identical, but he (Lord Ashburton) must say, that it appeared to him that for all purposes, whether moral or commercial, they were totally and essentially distinct. In the case of Bankruptcy, it might so happen that the debtor had got into difficulties from unforeseen misfortunes whilst engaged in a laudable desire to promote his own business pursuits; his debts were the honest and fair liabilities of the trader, whose very name imports speculation; who makes purchases or ventures in the way of honourable commerce. But the case of an ordinary insolvent was very different. In this case, the man was generally one who incurred debts in the purchase of things for his own consumption and enjoyment, perhaps without the means or even the intention of meeting those engagements. That man's moral liability was in his (Lord Ashburton's) opinion much greater, and totally distinct from that of a Bankrupt. Great distinctions always had been recognised between the two by the laws of the country, and he trusted that a distinction would still continue to be drawn between them. There could be no objection, that a person, not a trader, incurring debt, should be freed as to his person, but he could see no reason why, if he should again become prosperous, he should not then be answerable for his liabilities previously incurred. Not so, however, in the case of the trader, who, upon obtaining his certificate, was released from all previously 1194 contracted liabilities. He trusted that nothing might be done injurious to the system of credit, for credit there must always be; and it had hitherto been to the praise of this country that her credit was unimpeachable. That same system was extended from the greatest merchant down to the smallest trader, and any Bill which should be injurious to their interests could not fail of being detrimental to the interests of the country.
The Lord Chancellorsaid, as his noble and learned Friend had alluded to the course which he had taken and the observations he had made on the second reading of his (Lord Cottenham's) Bill, he felt called on to make a few observations on the present position of the question. Their Lordships were placed in a situation of very considerable difficulty. The one noble and learned Lord (Lord Brougham) had introduced a Bill for the Abolition of Imprisonment for Debt, and which he declared to be a very good Bill, and much better than that which the other noble and learned Lord had introduced. Again, the other noble and learned Lord (Lord Cottenham) had also introduced a Bill respecting Debtors and Creditors, which he said, possessed all the advantages of the Bill of the other noble and learned Lord, besides some improvements; and therefore, although the noble and learned Lord's was a very good Bill, he (Lord Cottenham) would recommend their Lordships to give the preference to his Bill. They were thus called upon to decide respecting the merits of those two measures. Now, how were their Lordships to decide between these two Bills? If they were able to say at once which of those measures ought to be preferred, he must give them credit for the possession of faculties much more acute than he conceived them to possess. The question submitted for their Lordships' decision was a question which every one must admit to be one of great importance, great nicety, and great difficulty; and it appeared to him, that considering the circumstances under which it came before them, the course to be pursued was, to refer the Bill to a Select Committee. If such a Committee recommended one of the Bills, then they might safely proceed to consider that, or on the recommendation of the Committee, they might adopt the other measure; or if the Committee so advised them, and that they found the two Bills, reconcilable, they might amalgamate the two Bills by adopting all that was good in both, He thought 1195 that by no other course could they come to a safe conclusion on these subjects. Then, with respect to what had been said about the course he had pursued on a former occasion, it was quite true, that he had approved of the principle of his noble and learned Friend's (Lord Cottenham's) Bill. The question was, what was the principle of that Bill? His noble and learned Friend had ingeniously converted into the principle of the Bill, what he had never considered to be its principle, while he had departed from that which he (the Lord Chancellor) had considered to be its principle, and to which every observation he had made was directed. But what was the principle he had contended for, and which he had omitted from the Bankruptcy Bill, solely because he did not wish to clog that measure? As he understood it, it was to assimilate the Law of Insolvency to that of Bankruptcy. All his observations were made with reference to that subject. He had then said, as he said still, that it was absurd to have one law for Insolvency and another for Bankruptcy; that it was absurd also that the one law should be administered by one set of judges, and the other by another set of judges; and further, that it was impolitic that when an individual had been discharged under the Insolvent Debtors Act, he should be considered liable for the payment of those debts for which he had been so discharged. He thought they should get rid of this incumbrance, and assimilate Insolvency to Bankruptcy. To those principles he still adhered, but he went no further. He would remind their Lordships also that he stated his other noble and learned Friend had a measure in contemplation on the same subject, and that he counselled their Lordships to wait until that measure was submitted to their consideration. He had, moreover, always intended, in the progress of the Bill, to call their Lordships' attention to the nature of the measure. Their Lordships were not, perhaps, in the habit of reading, in detail, the various clauses of the Law Bills which passed through their House; and he had, therefore, felt it his duty to call their attention to some of its provisions. There was one especially, though not at all essential to the principle of the Bill, to which he begged to call attention. It was, that if any individual had a judgment for debt entered against him, and had not the means of immediately satisfying it, whatever might be his rank or station in society, whether he were a Peer 1196 of Parliament, or a Prince of the Blood —in short every individual in this realm, except the Sovereign—he might be cited before one of the Commissioners of Bankruptcy in town or country to be interrogated, and have his answers taken down in writing, and if they were not perfectly satisfactory the Commissioners might immediately commit him to prison, there to remain, without bail, until he had given answers to the entire satisfaction of the Commissioners before whom he was called for the purpose of examination. Now he did not say that this would not be right, but it was a great innovation, introduced for the first time by the Bill of his noble and learned Friend; and, as he had stated, no one would be exempt from it. It might be said that the exalted personages he had referred to were not likely to be placed in such a situation, but he had lived long enough in the world to know that, in point of fact, such things might have happened. He had in the course of his professional career known many persons of the highest rank, who might have been placed in this unfortunate situation. He did not say it was wrong to frame a Bill in the manner in which the present measure had been drawn up; it might be perfectly right to establish all that equality which it would be the effect of this Bill to create; but the question was one of a very grave and important nature; and he said, before they adopted it, they ought to consider, inquire, and examine whether it were necessary, to what extent they would go, or what limitation could be made, if it could be made with propriety. It was the same with respect to insolvency. Every person, whatever might be his rank or station, might be summoned before a Commissioner. All that would be required was the question, "Do you own this debt? "Yes." "Now, why don't you pay it?" and if the answer were not satisfactory, perhaps fifteen days would be given to pay it in, after which all the debtor's property would be liable to be seized and vested in an official assignee, for distribution among his creditors. Now, this he repeated, might be right, but it was a great and extensive alteration, and they ought, therefore to proceed cautiously and see whether it was proper and necessary. All he would suggest, therefore, was, that as they had two measures presented for consideration by two of the highest legal authorities in the House, they should refer them to a Select Committee for the purpose he had mentioned. With respect to 1197 the present measure, it was stated that he had said imprisonment for debt ought to be abolished without reserve; but he had never considered that the principle of the Bill, and had never said a word about it. He did not say that imprisonment for debt ought not to be abolished, but it certainly-deserved the most serious and attentive consideration, before they decided on abolishing it without reserve or qualification. This very question had been before referred to a Committee above-stairs. His noble and learned Friend was at that time on the Woolsack, and his object was to abolish imprisonment for debt. But what was the decision of the Committee? Why, that it was wise and expedient to abolish arrest for debt in mesne process, but that it was not wise to abolish imprisonment in execution. That was the deliberate opinion given by a Committee of this House on the Bill of his noble and learned Friend. True it was, that subsequent experience might possibly have thrown more light upon the subject, but when once already decided by a Committee of their Lordships' House, he (the Lord Chancellor) thought it became a matter that deserved full, serious, and anxious consideration. There were various classes of persons in this country, against whom, if imprisonment for debt were abolished in the manner in which it was now proposed, there would be no remedy whatever. Let their Lordships suppose an individual who went fashionably attired, who was in the receipt of an allowance from his father, and lived in furnished lodgings, incurring debts to a very large amount. Now, if this Bill were to pass, what remedy would there be against him? Creditors could not seize his goods, for goods he had none. He could not be arrested, because imprisonment for debt was entirely abolished. But it might be said, "What was the use of imprisoning a person who had no property?" The answer he would give was, that it was not to make that individual pay his debts; but it was the fear of that imprisonment which operated to restrain such persons from involving themselves in debts that they themselves knew they had no means of discharging. It operated in terrorem, and in that respect was a very useful check. But was there not also a question of great importance depending upon this subject which rendered it still more material to institute inquiry? If they abolished imprisonment for debt in ordinary cases, they must abolish it in all cases. If they were to do so in cases of 1198 100l.. and 150l. with what show of justice or consistency could they retain it in cases of 10s. or 15s.? Then what was the course which would be pursued? Would they sweep away all the Small Debts Courts; not that many persons were sent to prison under the authority of those Courts, but that the fact of their possessing such authority produced caution and exertion amongst the class of debtors. If they abolished imprisonment for debt in larger cases, they could not retain it in smaller. If they abolishad it in the Small Debts Courts and the Courts of Requests, these Courts, it was said, would no longer be able to exercise jurisdiction; and if there were no remedy for the recovery of debts— no means of enforcing payment, how, he asked, was the poor man, who happened to be thrown out of work by sickness or other cause —how was he to maintain his family? How was he to procure credit in such circumstances, when there would be no mode of compelling payment? He (the Lord Chancellor) therefore advised their Lordships to be cautious in their proceedings, and to inquire into and consider the subject well, before they legislated on the subject, or before they preferred one of these Bills to the other. He did not say what the result of an inquiry was likely to be. Possibly it might be in conformity with the opinion of his noble and learned Friend (Lord Brougham), or with that of his other noble and learned Friend (Lord Cottenham). But at least inquire into a matter of such great importance before proceeding to legislate. His noble and learned Friend saw the difficulty to which the attention of their Lordships had just been called, and in order to guard against it introduced a clause, whereby an employer might be called upon to retain the wages of an operative in his service, and if he did not owe the wages at the time, to be held responsible for the debt when the wages became due. Their Lordships could not fail to see how that must operate; for no one would think of retaining a servant who involved him in such confusion and complexity as must necessarily arise from having to pay fractions of his wages to he knew not how many creditors, the more especially as it would affect not only such wages as might be due to the servant, but those which he might afterwards earn. This was copied from the law of Scotland, or perhaps it was not exactly copied, for it went much beyond that law, the Scottish law applying only to existing wages, and 1199 not anticipating future wages, which his noble and learned Friend's provision did. It was rather extraordinary that a very few years ago a Commission of lawyers, merchants, and others were appointed in Scotland for the purpose of considering the question of arrest of wages, and the decision of that Commission was, that it was a principle that could not be enforced; that it was a very mischievous one, and they therefore advised its utter abolition. Yet such was the measure his noble and learned Friend introduced to get rid of the difficulty in the case of debts contracted by working men. Unless their Lordships, after the discussion of to-night, were in a condition to pronounce between the respective measures of his two noble and learned Friends, the only wise and proper course that could be pursued, considering the difficulty and the delicacy of the question —the only wise, sober, and discreet course was to recommend the whole subject to the consideration of a Committee above-stairs, by which means they would have an opportunity of considering the subject in detail and deciding on its merits. If, on the contrary, their Lordships thought they were in a condition to decide at once on the merits of the two Bills, and were of opinion that the Bill of either of his noble and learned Friends ought to pass into a law, he should subscribe to their opinion; but if they thought that the measure was deserving of further consideration they would adopt his recommendation and refer it to a Select Committee.
Lord Brougham ,for his part, readily acceded to his noble and learned Friend's proposal, that the Bill should be referred to a Select Committee. He would, however, set his noble and learned Friend (Lord Cottenham) right in one or two particulars. He had said that he considered that bankruptcy should be equivalent to insolvency. His noble and learned Friend (the Lord Chancellor) approved of that, and said that noble Lords, the Earl of A—, or Duke of B—, would be dealt with the same as traders. If the noble and learned Lord said, that a distinction ought to be made between them, he was not prepared to pronounce any opinion upon that point; he had not made up his mind. Let them, however, take one step at a time. If they determined to abolish imprisonment for debt, let it be done gradually. If his Bill passed, there was not a single insolvent who might not obtain his certificate.
Lord Campbellhad heard the speech of his noble and learned Friend on the Woolsack with very deep regret and disappointment. The inference to be drawn from it was that nothing could be done during the present Session for the mitigation of imprisonment for debt. They bad now reached the third reading of the Bill of his noble and learned Friend (Lord Cottenham), and it was only at that stage at the end of June, that his noble and learned Friend discovered its defects, and made as excellent a speech against it as he made in its favour when it was read a second time on the 30th of April. On the second reading, his noble and learned Friend (the Lord Chancellor) pledged himself to give the measure his support throughout its details. The se-second reading was carried nemine contradicente—their Lordships were quite unanimous, and there was not a word about qualification, or censure, or suspicion that the Bill was exceptionable in any part. Then it went into Committee, which was the proper time for his noble and learned Friend to bring forward any amendments to clauses of which he disapproved. But the Bill passed through Committee also, and the Report was brought up and agreed to, and yet no objection was raised. Now, however, on the third reading, the Bill was to be rejected, because the referring it to a Select Committee at this period of the Session was a pretence that did not deserve the least weight. Why, the subject was referred to a Commission in 1830, and again to another Commission in 1835, which Commission sat days, weeks, months, and years. He (Lord Campbell) was altogether at a loss to discover the reasons of his noble and learned Friend for taking such a course. Was it that he was afraid to give offence to his other noble and learned Friend (Lord Brougham), and interrupt that harmony which had hitherto prevailed between them; his noble and learned Friend (Lord Brougham) having previously introduced a Bill on the same subject. Why should the noble and learned Lord have altered his views now? In his (Lord Campbell's) opinion, his noble and learned Friend's conduct would not reflect much credit on Her Majesty's Government, or give much satisfaction to the public. The Bill was agreed to on its second reading, not by a majority of twenty, but with unanimity, and yet their Lordships were 1201 now called upon to reject it. For this change in his noble and learned Friend's conduct, he was totally at a loss to conceive any reason. The security of Her Majesty's present Government did not depend upon the measure—there was no threat of a resignation if it were carried. The Exchequer would not suffer by its enactment. Where then was the reason? That might be a reason why, in another place, a particular vote which had been come to should be reversed, but now, at this stage of the Bill, to call upon their Lordships to reject that which they had before unanimously approved of two months ago, seemed to him a wanton insult to this House.
§ The Duke of WellingtonTheir Lordships were not called upon to reject the Bill of the noble and learned Lord. The fact was, that there were two Bills before their Lordships, and what his noble and learned Friend on the Woolsack recommended was that both the measures should be referred to a Committee. The Bill of his noble and learned Friend being approved of in a great measure by the noble and learned Lord opposite, alt they were now called on to do was to refer the two Bills to a Committee, which should adopt the course which might seem most expedient. That was the simple proposition, and he begged their Lordships to recollect that it was not that either measure be rejected.
§ Lord Cottenhamreplied. The noble Duke said this was not a proposition for the rejection of the Bill. It certainly was not in point of form, but it was in substance. His noble and learned Friend (Lord Brougham) had proposed a reference to a Committee up stairs.
The Lord Chancellorwished to correct the mistake into which the noble and learned Lord had fallen. He (the Lord Chancellor) it was who moved that the Bills be referred to a Select Committee, in order that their relative merits might be better decided on.
§ Lord Cottenhamsaid, in that case his noble and learned Friend on the Woolsack had shown more candour than he had given him credit for. This measure was of two years standing, and his noble and learned Friend had had ample knowledge of the measure. In 1842 he not only had knowledge, but expressed his approbation, of the Bill; in 1843 the same thing occurred,—not a word of dis- 1202 approbation fell from his noble and learned Friend. In the present Session, and in the first two or three days of it, he (Lord Cottenham) had again produced the measure, stating that it was the same measure as before, and he had fixed the second reading at such a time (viz. the first day after the Easter recess) as would give noble Lords an ample opportunity for making themselves acquainted with the details of the Bill. His noble and learned Friend knew of both of the measures in ample time, and had expressed no disapprobation; yet now he told the House that he never meant to express approbation of the details of his (Lord Cottenham's) measure. On the second reading, the noble and learned Lord, as appeared by the Report, which he (Lord Cottenham) could testify was accurate in other respects, and which he believed the noble and learned Lord would not contradict, stated that "he fully approved of the objects and of the provisions of the Bill." What could be the reason of the change, he would not say in his noble and learned Friend's opinion, but in his decision? He had reason to think that it was but within a few days that his noble and learned Friend had come to that decision. It had once been said, that there was a power behind the Throne stronger than the Throne itself; perhaps in this case there was room to say that there was a power behind the Woolsack stronger than the Woolsack itself. What could it be? He could say, but he would not. Did the noble and learned Lord think that the credit of Her Majesty's Government would be impaired by passing this measure? Would the public think that justice had been done? As to inquiry, there was nothing to inquire into. The two measures were quite incompatible; one proceeded on the principle of maintaining imprisonment for debt, the other on the principle of abolishing imprisonment for debt. What was the Select Committee to inquire into, when they had already volumes of reports on the subject to such an amount that no Select Committee could go through them in a year? They had the fullest evidence of lawyers, and bankers, and others taken before the Commission in 1833; they had a voluminous inquiry again in 1840; so that, in fact, nothing remained to inquire into. He utterly repudiated the distinction between referring the Bill to a Select Committee and reject- 1203 ing it. To have rejected it at once would have been the more manly course.
The Lord Chancellorwas understood to say, that his noble and learned Friend (Lord Cottenham) had complained that no intimation had been given to him of the course he (the Lord Chancellor) intended to pursue with regard to this measure. He had, however, communicated to his noble and learned Friend some days since that he intended to oppose the Bill.
The Earl of Winchilseasaid, that the Bill of the noble and learned Lord (Lord Brougham), who had quitted the House, proposed to abolish imprisonment for debt to as great an extent as he was prepared to go. He did not think it advisable to abolish entirely, and in all cases, imprisonment for debt.
The Lord Chancellorwould state the origin and history of this Bill. A Commission was appointed to inquire into the law relating to Bankruptcy and Insolvency; that Commission reported in favour of the principle of cessio bonorum as a substitute for the present system of insolvency; and when he stated that he intended to adopt that principle as a part of his Bankruptcy Bill, he meant it as being adopted on the recommendation of the Commissioners. The Bill was drawn by one of the Commissioners themselves, and the Report was intended to be embodied in that Bill. And when so adopting that principle of cessio bonorum, he meant to confine himself to that alone—he never intended the total abolition of imprisonment for debt. It never crossed his imagination at that time. His noble and learned Friend (Lord Cottenham) complained that this was an endeavour to defeat the Bill which he himself had brought in, called the Debtor and Creditor Bill. Now, the fact was, that he (the Lord Chancellor) communicated to his noble and learned Friend some days since that it was his intention to oppose his Bill.
The Earl of Winchilseaconsidered the course which the noble and learned Lord on the Woolsack proposed to take to be a most proper one. He certainly did not object to the principle of cessio bonorum, but he was entirely opposed to a total abolition of imprisonment for debt.
The Lord Chancellor, in accordance with his views, moved as an Amendment, that the Order for receiving the Report of the Amendment be discharged, and that 1204 the Bill be referred to a Select Committee.
§ Amendment agreed to; Order discharged; Bill referred to a Select Committee.