The Solicitor General
moved the order of the day for the third reading of the bill for rendering the Freehold Estates of persons who die insolvent, assets for the payment of their simple contract debts.
said, that he did not doubt the present bill would operate in a considerable degree to enlarge the credit of freehold proprietors, and facilitate the raising of large sums of money, which, to many, would be a considerable source of prosperity; but, at the same time, it must obviously be productive of considerable inconvenience, and in many cases of much mischief to the creditor, who having no means to come at any precise knowledge of the debts already due by the freehold proprietor, or the settlements made upon his estate, would feel himself much disappointed, upon the demise of his debtor, to find debts to a much larger amount than he expected charged upon that property to which he looked for his security. This would necessarily give rise to litigations without end, and set the new creditor upon endeavouring to find out flaws in the settlements which preceded his claims, with a view to set them aside for his own advantage; and thus, in many instances, the creditors, for whose security this bill was avowedly designed, would have just reason to complain that their property was injured rather than served, through a measure which would teach them to advance large sums, and to rely often upon a hollow security. He thought too, that it was unfair to place the freehold property of the country on such a footing, while the copyhold was exempt; and peculiarly severe to involve the whole of the former, merely for the faults of a few men. He was convinced the learned gent. who introduced this bill, was amply competent to devise means for his purpose much more eligible. He concluded by expressing a hope that the bill would be re 160 committed, and that further time would be given for the better consideration of a subject of such importance.
§ The Speaker
observed, that in the present stage of the bill, it was too late after it had been engrossed, to have it recommitted.
§ Mr. Simeon
defended the bill. He stated that the present bill was not a new idea of the hon. and learned gentleman's who brought it in, but that a bill similar to the present, and still more extensive, as including copyhold property, was brought in, in the year 1772, by a most learned lawyer, Mr. Ambler, and had passed through that house at a time when there were a great many very eminent lawyers who had seats there. It was lost afterwards in the lords, in a very thin house, when 7 voted against it and but 5 for it. He could easily state many cases of the most severe injustice which could be practised under the present law. Country bankers might purchase landed estates with the money of other people, and these estates would descend to their heirs free from all their debts as bankers. As a master in chancery, many cases came before him, where creditors for considerable sums stated that they did not think it worth their while to prove their debts, as they had no specialties, and the property of the deceased was principally in landed estates. He considered this property of freehold estates not being liable to those debts, as a mere remnant of antiquity, that had been kept up long after the reason of it had ceased.
The Master of the Rolls ,
upon such a proposition as that which was then before the house, a proposition which, if it was carried into effect, would make a most material change in the law of the land, felt it to be his duty to state his sentiments most fully and explicitly on the subject. In so doing, it was necessary, first, that he should, endeavour to bring to the recollection of the house, that it was only under the feudal laws that freehold property was first established; and it was impossible for any man to tell what further change the present innovation might lead to. By the old law of France, the moment a man was married, one half of his property was secured for the benefit of his children; by the present law of Scotland in certain cases, the whole property was secured by law to their heirs: but did any man ever say that these laws were unjust? They might be deemed impolitic in many instances, but they certainly were not unjust. It had been said that it would be unjust that the heir to an estate 161 should be living in affluence, whilst the creditors of his predecessor were left to starve; but would it not be also an injustice if the heir to an estate were to be deprived of his birth-right through the improvidence of his predecessor, and be left in the greatest possible distress, perhaps, in some cases, whilst he was paying the debts of another person's contracting? If this new principle was to get footing once amongst the laws of England, almost every marriage contract in the kingdom might possibly be annulled. Allowance should be made for the necessary fictions and peculiarities which were adopted in law proceedings; it might be reckoned absurd, for instance, that in the case of specialty or simple contract debts, the addition of a bit of wax in the one case, whilst in the other there was nothing but the name subscribed, should give the one such superiority over the other, that the one would be for the most part paid, whilst the other would, in many instances, be left unpaid. But such were the established distinctions which were sanctioned by the laws of the realm, and no evil was found to result there-from. With respect to the cases which were stated to have occurred before the masters in chancery, a bill might be brought in to remedy those particular cases without making any general alteration in the principle of our laws. This he conceived to be a most important consideration, and it brought into his mind the observation, that no country in the world was so jealous of its political liberty as this was—and yet he maintained that our political was nothing in comparison with our civil liberty. In this point of view he considered the bill as one that might be productive of the most serious consequences to the country. It might have been necessary at the time of Edward I but it was not suited to the state of England under George III. when commercial speculations had increased to an extent that our ancestors could not have thought possible ever to have been brought about. If this measure was to be now adopted, a man who was disposed to commit a fraud would only be led to vest his money in copyhold instead of freehold property; the commercial man, if he possessed the most extensive funded property, would have only to get into that house and he might defy his creditors. At the time of the introduction of the statute of Frauds, the statute of Limitations, and at the time of the enactment of a law to regulate cases of Debtor and Creditor in our colonies, it must have come to the 162 recollection of the legislature that there was this peculiarity in the law which it was now proposed to alter; but still it was never, at these times, thought of changing the law with respect to England; a plantation was only considered as an instrument of commerce, whilst the attachment to the soil of England was cherished by the legislature. There had, since that, been two attempts to graft a measure, of the nature now before the house, upon the English code, the one by the late lord Kenyon, and the other by another most eminent lawyer, but both these luminaries of the law, upon mature deliberation, abandoned the measure, as being unsuited to the genius and manners of the people.
Mr. C. Wynne
observed, that the frequent passing of acts of insolvency was a proof of the defect of our laws with relation to debtor and creditor. As the law now stood, a man who advanced a sum of money to another would take care to have the best security possible for the recovery of the amount of that debt, whilst the honest and industrious tradesman would for the most part suffer for the want of a similar security.
declared, that he had conversed with several persons upon this subject, but he never heard of such frauds as had been alluded to this night. The men of landed property he now heard represented as being the rich and the oppressors, and the commercial part of the community were spoken of as a poor and distressed set of people. The very reverse of this he believed to be the fact. The landed property men were the sheep, whom the minister, whoever he was, could easily lay hold of and sheer at pleasure; when, if a minister attempted to lay his hands on any particular branch of commerce, there were meetings in every coffee-house in London, and in many cases they escaped from his grasp.
The Lord Advocate
of Scotland observed, that it was a peculiarity in the English law, which was unknown to the ancient Greeks or Romans, or to any modern state in Europe, that the death of a man should put an end to all the moral obligations which he owed the world. He was himself, in the proper sense of the word, a strong aristocrat; but he did not think it right to support the aristocracy by such means as the law now sanctioned. In Scotland and in Germany a most high and honourable sentiment of the antiquity and greatness of families prevailed; but still they did not allow a man to roll in the wealth which had been 163 left him by his ancestors, whilst at the same time he would stare the creditor of that man in the face, and say he would not pay him. He asked any man in that house, would it not give him an additional pang upon his death-bed, if he knew that he was to die without being able to do justice to his fair creditors? He asked any man, could he bear to think of going in grandeur to the funeral of a relation who had left him a considerable estate, without at the same time some qualms of conscience disturbing his breast, if he knew that the debts of that relation were left unsatisfied and that he did not mean to discharge them? A man must have a mind incapable of distinguishing right from wrong, or else he must design wilfully to deceive, if he did not answer these questions in the affirmative. It was but two days since the house passed a law on the grounds of humanity and justice, against every argument of expediency which could be urged, and could they, then, refuse their sanction to a measure so founded on justice as the present? The idea of innovation was held out as a bugbear; but was every science, art, and manufacture to improve by innovation, whilst the law alone should be deprived of its claim to pursue a similar course of amendment?
compared the present to a law which had formerly been introduced for the regulation of country banker, by making their estates liable to their debts. Lord Kenyon observed upon that measure, that it would be necessary that every banker should have a map of his estate and catalogue of the incumbrances on it hung up in his house. A measure of that sort had been adopted in Ireland, and the only result was, that it increased commercial property, and rendered the estates unsaleable. Such, he contended, would be the result of the present measure, if it was to be adopted by the house.
The Solicitor General rose
to reply. He had listened with the most patient attention to the objections that had been urged against the measure, both in and out of that house, not with a view technically to advocate it more effectually, but with the determination wholly to abandon it, should those objections appear to him to possess any weight. The result, however, was, that the sentiments with which he sat out on the subject, remained unaltered. He was decidedly of opinion, that to exempt an estate from the payment of debts contracted by its late possessor, was a most flagrant act of injustice. He was 164 surprised that there were those who maintained that such an exemption was just, and he was somewhat concerned that among them was the only member of that house who was invested with the robes of magistracy. He had not proposed this alteration in the law hastily. Before his introduction of it into the house he had consulted the highest legal authorities in the kingdom upon it, and, with the exception of his honourable and learned friend (and even he had not expressed any direct dissent), it had received their unanimous and perfect approbation. A rt. hon. gent. had accused him of attacking the aristocracy of the country. He had a high respect for the aristocracy, as forming a part of our mixed constitution; he had indeed shewn a higher respect for it than that which had been displayed by the opposers of the bill; for he wished to rescue the aristocracy from the imputation of being unwilling to pay their debts: he wished to shew, that they did not owe their weight in the country to an unjust law, by which their just creditors might be defra[...]ded. (Hear! hear!) The hon. and learned gent. asserted that this bill had the approbation of the three presiding judges of three of the highest tribunals of the country; and, that it was a bill for the relief of the poor creditor against his rich debtor. He described and argued upon the situation in which poor servants and inferior tradesmen were placed, with regard to their rich debtors, as the law now stood; for not having in general any bonds, theirs being merely simple contract debts, they could not recover against the heir of their debtor. After dwelling for some time on the injustice resulting from this deficiency in the law, repeating the words of sir John Strange, that "a man who dies, without making provision for the payment of his debts, sins in his grave," the learned gent. concluded with expressing his hope, that the house would not suffer a bill to be lost, which had for its object the removal of that deficiency, and which proposed to remedy an evil, that was in fact a reproach to the justice of the country.
§ The Master of the Rolls explained, and assured his hon. and learned friend, that he never intended to throw an imputation on the bill before the house, or on the fair intention of its learned mover.
The Solicitor General
was sorry to have misunderstood his rt. hon. friend, and assured him that nothing was farther from his mind than to give a moment's pain to his right hon. friend.—The question was now loudly 165 called for, and the house divided. For the bill, 47; Against it, 69; Majority, 22. The bill was of course lost.