§ Mr. Lockhart, conceiving this Bill to have a natural reference to the principle of the Act of last session, which principle had not then, in his judgment, undergone an adequate discussion, took this opportunity to make a few observations upon it. It was impossible, indeed, as it appeared to his mind, to consider this Bill without adverting to the Act of last session, the difficulties in the execution of which this Bill proposed to remove; and so doubt these difficulties were likely to be obviated by it, the noble author of the original Act having evidently applied great industry and ingenuity to the consideration of the measure. This Act, however, proposing to make a very material alteration in the common law of the country, it was peculiarly the duty of the House to consider the effect of that alteration. The common law had given to a creditor the body of his debtor as a security for payment, and that security this Act proposed in a great measure to take away. As to the crowded state of our gaols which was emphatically dwelt upon as an argument for this extraordinary measure, he could, not believe that that circumstance was owing so much to the obduracy of English creditors, as to the extravagance of debtors. In adverting to the principles of the common law with respect to debtor and creditor, he did not mean to contend that creditors should, possess an uncontrolled discretion over the custody of debtors. On the contrary, he approved of the interposition of the legislature to modify the principle of the common law. But the question was, how that modification should be regulated. If too strict, opportunity would be af- 233 forded to creditor to gratify vindictive passions, to injure humanity; and if too lax, idleness, thoughtlessness, and profligacy would be encouraged. The Act, in prescribing that a debtor must be imprisoned three months before he could obtain liberation upon surrendering his properly, might be very injurious to the interests of both debtor and creditor; for that period would too probably pass in spending the property which ought to belong to the creditor, and in deteriorating the moral habits of the debtor. But as a punishment it was obvious, that three months afforded an insufficient protection to creditors, by not holding out any adequate terror to prevent the thoughtless or idle, and still less those of bad principles, from contracting debts. Therefore, he submitted, that upon so great a departure from the principle of our common law, as the Act under consideration involved, this circumstance was a serious defect. But there was another defect in the Act, which appeared to him much more exceptionable; namely, that no debtor was compelled to give up his property at the expiration of three months; but might remain in prison if he thought proper, to squander the property of his creditors. He was aware, that if a debtor could be proved to have improperly disposed of his property in prison, he was deprived of the benefit of the Act; but why not assimilate the Act entirely to the Scotch law of the cessio bonorum, which was quoted as a precedent for it by compelling the debtor to surrender his property to his creditors? and such a provision would diminish the objections entertained with respect to the short period of three months imprisonment. From a deliberate review of this law, the hon. member conceived that one of two consequences must result from its existence; either that persons would become more extravagant, or that much less credit would be given. It might be urged, that creditors ought to be more circumspect; that the people of this country were much more ready to give credit than those of other nations; and that hence the prodigal were improperly afforded facilities for the indulgence of their habits; but then by the rigid observance of this rule of circumspection, the honest and industrious, to whom credit was indispensably necessary, and whose success was desirable for the public interest, might very materially suffer. For there was what was called a "useful 234 credit," which was essential in this country; and any measure at all likely to affect that credit, should be weighed with the utmost caution.
There was one class of creditors not at all noticed in this Act; namely, those who suffered from frivolous and vexatious actions, and sought in vain the recovery of their costs. The debtor for such costs had the same relief under this Act as any ordinary debtor. Thus no adequate restraint was provided to prevent the vindictive or the profligate from wantonly bringing actions against honest men. Surely such cases required some special attention, as well as those of crim. Con. or malicious injuries. For the principle which rendered punishment justifiable in the latter, applied also to the former. But while this Act released a man after three months imprisonment, however he might have trespassed upon property, or even were he guilty of assault and battery, unless a particular averment appeared in the declaration, it also gave liberation to a vexatious or malicious prosecutor, such as he had described. All such were released at the end of three months. Thus the poor might be vicious with comparative impunity; for no one could pretend that three months imprisonment furnished any material terror to such depraved persons as he had alluded to. It was the boast of the law of this country, that it afforded redress for every wrong, and that there were none above the law; but really, by the operation of this Act, many would be forced below the law. For instance, how often might revengeful malicious persons be forward to bring an action perhaps of the most injurious kind, against the objects of their revenge and malice, if the only hazard of the experiment were to be three months imprisonment. He could not help pronouncing this case a most serious omission in the Act. But there was also another serious omission; for the Act made no distinction between the debtor who availed himself of every legal expedient to increase his plaintiff's costs upon a debt clearly and indisputably due, and the debtor who promptly, and without litigation, acknowledged the justice of the claim upon him. That two such debtors should have the same facility of release was evidently a defect. In his opinion, provision should be made in this new code to allow debtors, if they thought it just, to acknowledge their debts at once, and thus save 235 creditors from costs; and a distinction should exist between such a debtor and one who wantonly subjected his creditor to costs. The hon. member concluded with stating, that he would not oppose the farther progress of this Bill; although he felt it his duty to express his opinion upon the measure to which it referred, and the merits of which would, he hoped, be more fully discussed in a future session.
§ Sir S. Romillythought the hon. member's observations inapplicable to the Bill before the House, and rather referring to the Act of last session; the principle of which was simply, that a debtor should obtain his freedom upon giving up his property. To this Bill, which merely had in view the carrying that principle into effect, and the execution of the Act of last session, he hoped that no obstruction would be given.—As to the hon. member's observations, there was no doubt, that, notwithstanding the present Bill, we must wait to see the operation of the original Act before every defect could be provided against; and probably the hon. member, by turning his attention to the subject, might be able to suggest some useful improvements. The hon. member had stated, that no distinction was made in the Act alluded to, with respect to such debtors as availed themselves of certain legal expedients to increase the costs of their creditors; but the way to cure that evil was not, in his opinion, to make any distinction in this Act, but to do away these expedients themselves. For instance, he could not see the justice of allowing writs of error where there was no substantial error, and where the proceeding only served to produce delay and costs. He thought, therefore, that no writs of error should be allowed, unless such error were certified by two counsel. This change would, in his judgment, prove a very material improvement. He was anxious to attend in all cases to the interest of the creditor as well as that of the debtor; and the state of our law between debtor and creditor appeared to him to be such as to require many serious amendments. It was too harsh towards the person, and too relaxed towards the property of the debtor. He could not; for instance, imagine any reason why freehold and copyhold property, and property in the funds, should not be rendered responsible for the payment of a man's debts. So strongly indeed was he impressed with, this opinion, that it was his 236 intention to bring forward, after the recess, when there would be a full opportunity for discussion, a measure similar to that which he some years ago felt it his duty to submit to the House, for making freehold property subject to the payment of debts after the debtor's decease.
§ The Bill was read a second time.