Commons Sitting of 18 February 1824

SMALL DEBTS—COUNTY COURTS REGULATION BILL.
Lord Althorp,in moving for leave to bring in a bill for the

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cheaper and more speedy recovery of Small Debts, said, he did not deem it necessary to make any long observations on the proposed measure, as the bill had been brought into the House last session, and had been printed and circulated widely through the country. There were in the bill which he should now, with the leave of the House, introduce, a few trifling alterations only, which had been adopted at the suggestion of the persons to whom the bill had been submitted. As there might be some gentlemen present who had not read that bill, he might state briefly its object and enactments. All the tradesmen who were examined before the committee of the House on the recovery of small debts, agreed in saying, that as to all debts under 10 l. it was not now worth any tradesman's while to prosecute. In many kinds of business the majority of book debts was under 10 l.; so that to all those persons there was an absolute denial of justice, and the creditors depended entirely on the honour and honesty of their debtors. That this was a state of things that ought to be remedied, there was, he supposed, no question; the only question would be, whether the means he proposed for removing it were the proper ones. To put an end to the evil arising from such a defective system of law, he would propose that in every county in England an assessor should be appointed to the sheriff, who should make a circuit through the different towns of the county, holding a species of assize at such of them as the justices in quarter sessions assembled should appoint. He likewise intended that the cases should be decided by the intervention of a jury. The noble lord then moved, for leave to bring in a bill to prevent delay and expenses in the proceedings of county courts, and for the more easy and speedy Recovery of Small Debts in England and Wales."
Mr. J. Smithseconded the motion. The hon. member said, he had witnessed the evils resulting from the expenses attending the present system of recovering small debts; indeed, if he were called on to state the greatest oppression which the poor endured, he should mention the vexation and expense suffered in the recovery of small debts. He had known an instance of the effects of it in his own family. A servant of his had been arrested for a debt of 17 l. 6s. The debt had been originally 3l. 8s. and the man being entirely ignorant of law, and having made
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no defence, the mere costs of proceeding to judgment and execution had amounted to 14 l. Now, he would leave the house to judge whether any thing could be more oppressive than such a system. Individuals were, under its operation, forced into gaol, as was the case ultimately with the individual to whom he had alluded, who was arrested for 17 l. 8s. The solicitor who enforced the process, and who was a very respectable man, had declared, that not a day passed in which he had not a similar duty to perform; namely, that of arresting individuals for debts which were raised to an enormous magnitude on account of the costs. Many persons sued for small debts made no defence to the action, because they knew that if they did, they would involve themselves in still greater difficulties. The noble lord could not, he thought, do a greater benefit to the lower class of tradesmen than by persevering in this measure, to which he sincerely hoped no opposition would be offered.
Leave was given to faring in the bill.

RECOVERY OF PENALTIES BEFORE MAGISTRATES.
Mr. Davies Gilbertrose to move for leave to bring in a bill for the more effectual Recovery of Penalties before Magistrates, and for facilitating the execution of warrants. The hon. gentleman said, that in cases of conviction before a magistrate for certain offences, without entering into the large question, whether it was fit to extend or narrow the summary jurisdiction of magistrates, the bill which he proposed would be confined to the remedying of two defects, which every one, he imagined, would be desirous of seeing removed. The first was, as to those fines which were directed by law to be levied by distress on the goods of the offender. As the law stood, when such a fine was imposed by the magistrate, he had no power to detain the offender till it was seen whether or no he had any goods on which distress might be made; so that in the case of vagrants and others who could remove themselves meanwhile out of the jurisdiction of the magistrate, it was sometimes impracticable to inflict any punishment in the cases which most deserved it. He proposed, therefore, to enable the magistrate, when oath was made that it was believed the offender had no goods and chattels, to detain him until inquiry was made. The second defect was one that had been recently discovered. It had been decided, however, by the courts

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of law, that when a warrant was directed to a constable, A. B. by name, he might execute it any where within the jurisdiction of the magistrate, but that if it was directed, as most warrants were, to the constable of such a parish or township, not naming him, if, in the execution, he overstepped the boundary of his parish or township but an inch, he was liable to an action of false imprisonment. He proposed, therefore, to amend the law, so as to make it lawful to the constable of a parish described in a warrant, to execute it any where within the jurisdiction of the magistrate issuing it, as if he were named in the warrant.
Leave was given to bring in the bill.

BANKRUPT LAWS.
Mr. W. Courtenayrose, in pursuance of the notice he had given yesterday, to move for leave to bring in a bill "to consolidate and amend the Laws relating to Bankrupts." As the House must be aware of the nature of those laws, and of the necessity of revising them, he would not enter into any general view of the subject. It would, however, be proper to make one or two observations on the nature of the proposed measure. One of the main objects of the bill would be, the consolidation of the various acts relating to this subject, in order to present, at one view, the whole state of the law—to point out clearly who were the persons liable to be subjected to its operations; what were the acts which brought them under its controul; and what the power granted by the different statutes. In addition to this, he meant to propose for consideration, some alterations in the existing law. He would not state the whole of the alterations he contemplated, but he would briefly advert to one or two of them. In the first place, he would propose a clause on a very important point; namely, the allowing persons, under certain restrictions and limitations, to declare themselves bankrupt, which, on account of the criminal character attached to the act of bankruptcy, as the law now stood, they were disqualified from doing. He admitted there were circumstances under which this could not be allowed; but, under particular restrictions and limitations, it might be carried into effect. He should also propose some alteration with respect to the manner in which certificates were to be obtained and granted. He felt very great difficulty in legislating on
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this point. It would be wrong towards the creditor, if the certificate were too easily obtained, and it would be a great hardship if the bankrupt were deprived of it by the obstinate conduct of a single individual. He hoped, however, that means might be devised to meet the difficulties of the case. At all events, he should propose a clause on that point. The learned gentleman then moved for leave to bring in the bill.
Mr. J. Smiththought the country was under great obligations to the learned gentleman for the measure which he was about to introduce, and of which he entirely approved. But, considering the situation in which he was formerly placed, as chairman of the committee on the bankrupt laws, and in justice to those with whom he then laboured, he must say, that the measure which the learned gentleman now proposed was identically the same in principle with that which he (Mr. S.) had brought forward some time ago. He had given up much time to the consideration of this subject; but, however well he might understand it, he did not pretend to possess that legal knowledge which would enable him to form a bill of such a description as would meet all objections. The main object of this bill was one which a clever and intelligent solicitor of the city had long been endeavouring to carry into effect. He alluded to Mr. Freshfield, who had for two years given his advice and assistance, almost gratuitously, on this complicated subject. He, therefore, should be sorry, if a question of this kind were taken out of his hands altogether, without stating how much benefit had been derived from Mr. Freshfield's exertions. The learned gentleman had alluded to one or two clauses which he meant to introduce. One of these he was afraid would meet with considerable opposition. He alluded to that which related to the obtaining of certificates; and which would prevent the withholding of that necessary document from the bankrupt at the pleasure of a single creditor. No clause could deserve more serious consideration than this; because, to his own knowledge, some most grievous hardships, he would say most abominable acts of injustice, had been suffered by bankrupts, in consequence of the conduct of individual creditors who had large demands on them; and who had kept their certificates from well-meaning bankrupts, and condemned them to want and misery for

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the remainder of their lives. He could instance many cases of that sort; and he hoped that an end would be put to so oppressive a practice.
Mr. Serjeant Onslowapproved of the consolidation of the bankrupt laws into one system. The decisions under the various acts had rendered a very complicated system of law necessary. He joined most cordially in the tribute which his hon. friend had paid to a gentleman, not a member of that House. He knew that individual well, and was aware how much his valuable time had been devoted to this subject. The measure which that gentleman's industry had so great a share in producing, was, he conceived, the foundation of the present.
Mr. Abercrombysaid, that if the intention of his hon. and learned friend was, to make an alteration in the existing acts by leaving out certain parts of them, and thus altering, in many respects, the law, he had, undoubtedly, imposed on himself a duty of extreme difficulty; because there was nothing so difficult, after all the decisions under those laws, as to say, that he would embody all that was necessary in his consolidated act, and at the same time preserve untouched those decisions. It was an arduous task, and he hoped the public would have no cause to complain of his hon. and learned friend's labours. He entirely approved of the alteration which the learned gentleman meant to introduce. It was an approximation to the Scotch cession bonorum, and tended to remove that absurd doctrine which prevailed under the existing law; namely, that committing an act of bankruptcy was to be treated as a criminal act. As he had gone so far, the learned gentleman, in his opinion, ought to alter the whole shape of the bankrupt laws, and give to them a character more adapted to the present state of society, and better suited to the great extension of the commercial affairs of the country.
Leave was given to bring in the bill.

CRIMINAL JUDICATURE OF THE ISLE OF MAN.
Mr. Curwenrose, pursuant to notice, to move for documents relative to certain alterations which had been made by the duke of Athol in the Criminal Law of the Isle of Man. The question was of vital importance, not to that island alone, but to all the islands appertaining to Great Britain; for, if a change of this kind were allowed to be arbitrarily made
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in the Isle of Man, similar changes might be made elsewhere. He would, in the first instance, state what was the constitution of that Island. There was, first, a governor appointed by the Crown; there were also an attorney-general,-three dempsters who were law officers, a clerk of the rolls, a high bailiff, a bishop, and a vicar-general. These were the council of the governor. There was next the House of Keys, composed of 24 members. These formed a body, by the consent of which laws were altered, changed, and amended; and, having received the approbation of the Crown, those laws had full force and authority. The Keys were a Court of appeal from the decision of the dempsters, who were common-law judges: and for the purpose of deciding appeals from the inferior judges, had been accustomed for centuries to assemble in what was called the Tinwald Court. The duke of Athol had, however, entered the Tinwald Court some time since, and stated, that he was instructed, by his majesty's government, not to summon the Keys in future to attend the general gaol-delivery in the Tinwald Court. He informed them, that he would discontinue summoning them to act as a criminal court, by the order of the Secretary of State for the Home Department; and, in the same breath in which the communication was made, the Court was dissolved. Application was made, as it was a subject of such importance to the parties, that they might be allowed to discuss it; in order that they might remonstrate with the government, or appeal to this House. This was refused. Application was next made for a copy of the speech, which was promised: but, up to this day, he believed no copy of the speech had been granted. In this way he (Mr. C.) accounted for his not having introduced this subject by a petition, or a representation of the facts by the parties aggrieved. Now, a Court of Keys would soon be held; but in what situation would the judges be placed? The first step would be to demur to the Court's competence to try. The judges had, on the one hand, three or four centuries of precedent for proceeding as they had been accustomed to do; and there was opposed to them the ipse dixit of the governor; for they had neither the opinion of the secretary of state, nor of the law-officers of the Crown. Under these circumstances, the judges would be called on, contrary to the established

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form of law, to try prisoners. If they refused, they would be immediately placed in opposition to the governor, and might be dismissed without ceremony. There was no court in which they could be impeached—no place in which their cause could be argued. They might at once be dismissed for doing an act which they conscientiously thought right. One of them had already been removed, without any form of trial; and there was no court to which he could appeal. But, suppose the judges did not demur, and that any man was convicted criminally before them, and the sentence was carried into execution. Then he would say, looking to the decision of lord Mansfield, in the case of the imposition of the 4½ per cent duties, after a constitution had been given to the island where they were levied, that they ought to be indicted for a legal murder. He knew this had been described as an act of vengeance against the Keys, because they were not as subservient as they ought to be; but this was an erroneous view of the case. The Keys were no more than any other four-and twenty persons. It was, in fact, an attack on the rights of the whole people of the island. When the island was in the hands of one individual, who might appoint the law officers and turn them off as he thought proper—who also had the nomination of jurors, persons probably selected from his own under-tenants, over whom he had perfect control—was not the existence of such an establishment, to which there was an opportunity of appealing, of very great importance for the preservation of the rights of the people? Was it not, besides, a very salutary check on the ignorance of juries? He hoped government would suspend the assembling of the next Tinwald Court, until the law was clearly settled on this subject. The hon. gentleman concluded by moving, "That an humble Address be presented to His Majesty, that he will be graciously pleased to give directions, that there be laid before this House, Copy of the Instructions to his Grace the Duke of Athol, Governor in Chief of the Isle of Man, directing him to exclude the Keys from further attendance at Courts of Tinwald, for the purposes of General Gaol Delivery, agreeably to the ancient custom and constitution of the Island, which requires the concurrence of a majority of the Keys to confirm and sanction the verdict of the Jury.
Mr. Secretary Peelsaid, he felt some difficulty in meeting this motion, because he had not only to contend with the hon. gentleman opposite as a member of that House, but he had also to contend with him as a key, and consequently under all the disadvantages necessarily arising from a want of the hon. gentleman's local information and experience. The hon. gentleman had dealt with this question both as a member of that House, and as a member of the insular legislature; and though he might feel satisfied that he should be able to answer the call of the hon. member in his more general capacity, he certainly did not feel himself equally prepared to contend with him in his capacity of Key. He had to observe, in the first place, that the form of the hon. member's notice was somewhat inaccurate. He had given notice that he meant to move for a copy of the Insinuations to the duke of Athol to make alterations in the Criminal Law of the Isle of Man. Now, who would not suppose from this notice, that he (Mr. P.) had given some arbitrary instructions to make an alteration in the criminal law of that island? He would shortly explain to the House the question upon which he was called upon to decide: it was a question of law, namely, whether the House of Keys, which was the popular branch of the legislature, was entitled to be called upon to act upon every jury trial that took place in the island. If, a the hon. member contended, the popular branch of the legislature was also, by the local constitution of the island, a branch of a criminal court, he (Mr. P.) would certainly give him an opportunity of discussing the policy of allowing a court to be so constituted; for he should, without delay, move for an act of parliament to deprive them of the right, and clear all doubts upon the subject. That the popular branch of the legislature should sit upon every jury trial, and control the decision of the jury, was so monstrous an anomaly, that it ought at once to be put an end to. The question of law, however, having arisen, as to whether the House of Keys did form a part of the Court of Gaol Delivery, he (Mr. P.) had referred the case to the Recorder of Liverpool, who was attorney-general of the island. That gentleman took the subject into his consideration, and gave a derided opinion, that there was no ground for such a claim of jurisdiction on the part of

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the House of Keys; and that a verdict delivered by a jury in the Court of Gaol Delivery, would be binding in point of law, without any reference to the Keys. The governor of the Isle of Man, however, wished to receive distinct instructions from the government on this subject; accordingly he (Mr. P.) had laid all the documents connected with the case, which were extremely voluminous, before the attorney and solicitor-general; who had confirmed the opinion which had been previously given by the attorney-general of the island. So far from having issued any arbitrary instructions, to make any alteration in the criminal law of the Isle of Man, he had merely transmitted the opinions of the law officers of the Crown to the governor-general. He had acted upon the best authority to which he could refer upon a point; and he had certainly no doubt himself, that the House of Keys did not form a part of the Court of Gaol Delivery. It was, undoubtedly, possible, that that opinion might be erroneous; but the proper course, by which that question could be tried, would be, to bring it, by way of appeal, before a higher court. Upon these grounds he should resist the motion of the hon. gentleman.—The second point of the hon. member's complaint would be disposed of in a moment. It was said, that one of the judges of this court in the Isle of Man had been removed from his office. The fact was, that the individual had been accused of corrupt conduct; and, on an inquiry, conducted before the council of the island, it had appeared that there was, at least, sufficient grounds for causing him to vacate his situation.—With respect to the third point dwelt upon by the hon. member—the residency of the Isle of Man attorney-general, he thought that it was dehors the question before the House, and ought to come on in the shape of a specific motion; at the same time he feared that the House of Keys would scarcely get a very eminent British lawyer (and with no other, for an attorney-general, as he understood, would they be content) to reside constantly in the Isle of Man for a salary of 500 l. per annum. On the whole, it seemed to him that he had made out a full parliamentary ground for refusing the papers moved for by the hon. member.
Mr. Abercrombysaid, that the argument on which his hon. friend relied, namely, the length of time during
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which the House of Keys had assisted in the administration of criminal justice in the Isle of Man, had received no answer from the right hon. gentleman. It had not been denied that their claim was founded in a long-continued usage.
Mr. Secretary Peelobserved, in explanation, that it was the opinion of the attorney-general, that the House of Keys formed no part of the court of gaol delivery, though it had been occasionally referred to in cases of corrupt finding.
Mr. Abercrombysaid, that the point to which he was anxious to call the attention of the House, was the practice. This was stated by his hon. friend to have been a long and uninterrupted usage, and to this statement he had heard no contradiction from the right hon. gentleman. All that he could collect from his statement was this—that a doubt having arisen on the subject, and application having been made to him on the subject, he had called in to his assistance the opinions of the law officers of the Crown, and that the result of those opinions was, that the attendance of the House of Keys was an usurpation arising from an alleged necessity, and founded upon a supposition of corruption in the judges of the criminal court. But, this single fact alone showed most strongly the vast importance of the subject. On the one hand, we had a very narrow assemblage of people, who contended they had a clear and undisturbed right; and, on the other hand, a practice of some extent was admitted, the origin of which practice was founded upon the necessity of some control over a supposed corruption. Supposing, then, this to be the case, there arose the very material question, who were to be the substitutes? According to the statement of the secretary of state, the substitutes were to be the very judges who were considered so corrupt. This showed most strongly the strange administration of justice in that Island, for the purity of which, according to the existing practice, there seemed to be no security. But his next objection to the course which had been adopted, was a very strong one. Admitting that the opinion of the attorney-general for the Island, and the law officers of the Crown were correct, which he did not mean to doubt, still he should say, that in fairness these people had a right to be heard, before the decision of the secretary of state had been pronounced. The correct course would

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have been to have said, "This is our opinion; but if you wish, you shall have an opportunity of being heard." And even still he could wish the secretary of state would stop the proceeding, and give them an opportunity of being heard before the council. Only one side of the question had been heard, namely, that on the part of the Governor; and he therefore thought no further step should be taken, until the other had also obtained a hearing. The privy council, no doubt, would be the proper place.
The Attorney-Generalsaid, that the case had been laid before himself and his learned colleague, and, upon a full inspection of the documents, they were clearly of opinion, that at no period in the history of that Island did the Court of Keys form a part, by right, of the court of gaol delivery; at no period did they form, of right, a constituent part of that tribunal. But the House of Keys, not at a very remote period, but about a hundred years ago, had usurped the right of arraigning the conduct, and summoning before them, and fining the court of gaol delivery, for whatever they considered improper. The hon. member asked, whether they did not attend the court? He answered "Yes;" but they had no power to do so. They were never members of that court, and the power which they exercised was an usurpation. He apprehended that the right hon. secretary of state, had never given any instructions on the subject. The opinion of the attorney-general of the Island was first taken; then it was considered advisable to ascertain whether the law officers of the Crown concurred with him; and, when their opinion had been taken, it was forwarded to the governor of the Island. His hon. and learned friend opposite had said, that these parties had a right to be heard; but the House must consider that this opinion to which he had adverted was given twelve months ago, and since that time an ample opportunity had been afforded them of making their appeal. But the hon. mover seemed to think that House a fitter tribunal to appeal to, than that which had been constituted by the law of the land. His opinion, and that of his learned colleague was, that the claim of the House of Keys was not founded in law; but, if others were of a different opinion, there was an obvious course by which that right might be fully ascertained.
Sir James Mackintoshsaid, be had listened with great attention to the statement of his hon. friend, the mover, and to the explanations which had been given by the right hon. the secretary of state, and his learned friend the attorney-general, and he was reduced to the necessity of stating, that he was by no means satisfied with the explanations that had been given. He should leave out of the argument altogether the question as to whether the practice, contended for on the one hand, and opposed on the other, were or were not inconvenient or inexpedient. He did not object to the reformation of the practice, but to the mode in which it was attempted to be introduced. He and his friends objected to the measure, because there did not seem to be a sufficient degree of feeling for the claims of a respectable provincial legislature, which, although subordinate to parliament, had a right to substantial justice at their hands. He considered that his hon. friend was entitled to the gratitude of the country, as well as of that particular island, for bringing the question before the House; nor could he agree in the justice of the charge which had been made against him, of departing from the original notice of his motion; for surely so important an alteration in the only criminal court in that island was to all intents and purposes, a change in the criminal law of the land; and he thought the terms of the motion were perfectly applicable to such a change. His learned friend, the attorney-general, had said, that they had had ample time to appeal, as the opinion of the law officers of the Crown had been given twelve months ago; but his learned friend had not told the House at what time that opinion had been forwarded, or when the first step was taken by government. The formal notification which was given on the 9th of this month was what they had to deal with. His hon. friend, the mover, himself a member of the House of Keys, who was peculiarly bound to contend for their claims in parliament, and who might justly be supposed acquainted with the usage and practice of the island, had stood up in his place in the House, and stated that the usage had always been, that a majority of the House of Keys had been always essential to a decision of the court of gaol delivery. Their presence was always considered essential to the execution of the sentence of the supreme court. He only re-stated the opinion of

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his hon. friend, for he himself pretended to no information on the subject; but his learned friend had not contradicted that statement; for all he had said was, not that the practice did not exist, but that it was an usurpation. His learned friend had stated, that they were not members of the court; but the House had not now to determine whether, technically speaking, they were members of the court, but whether their concurrence had been considered necessary to the establishment of a verdict. And he should here take leave to say, that an usurpation exercised for a century was a matter not lightly to be dealt with, in considering a court of criminal judicature, and the privileges of a subordinate legislative assembly. It appeared to him, that the proper course would have been, for his majesty's privy council to have given them due notice, before they had pronounced their definite opinion upon the act, and have afforded them an opportunity of discussing the subject fully, and explaining their rights. The experience of the right hon. secretary must have convinced him how different a case it would have been if these parties had had a right of appeal before a judgment had been pronounced, instead of sending them before the privy council with a prejudice against them. He thought it a little too much to call upon the House to repose implicit confidence in the opinion of the attorney-general of the Island, or the law officers of the Crown, and particularly when all information on the subject was refused. He thought that in a case of so much importance, affecting the privileges of a legislative assembly, it would have been more becoming to have laid the information before the House. However, he did not mean to say that he might not hereafter be of opinion that the whole proceeding was right; but, as yet, he certainly felt that no satisfactory explanation had been given; and, if his hon. Friend should persevere in taking the opinion of the House, he should certainly give him the assistance of his vote.
The Attorney Generalsaid, in explanation, that he thought he had given a full contradiction to the statement of the hon. mover, that the presence of the House of Keys, or a majority of them, Was at any time essential to the validity of any verdict. Such was not the case. On an inspection of the documents submitted to him, he was of opinion, that they had no such, right as that which they claimed.
Mr. W. Courtenaysaid, it appeared to him, that the real question which the House had to determine was, whether his right hon. friend, the secretary of state, had acted properly in the course which he had pursued [cries of "no, no"]. He contended that it was; for all those who had spoken on the other side of the House, had put the question in that shape. What the secretary of state had to do was this: to declare how practically the judicature of the island was to be administered; and he had very properly, exercising a sound caution, intrenched himself under those wise guards which his situation afforded him. What was to be done? How was the governor to act? Was the administration of justice to stand still, or was the secretary of state to hesitate in giving him the best advice he could procure? It appeared to him, that he had no other alternative but the course he had pursued. The question was, whether the governor was bound to summon these parties or not? He should not discuss the question as to the propriety of the House of Keys forming a part of the criminal court. The only point was, whether they had exercised this usage rightfully, or whether they should be now deprived of it.
The House divided. Ayes 28: Noes 96.—Majority for the motion, 2.

List of the Majority.

Abercromby, hon. J.

Lamb, hon. G.

Althorp, lord

Monck, J. B.

Baring, A.

Mackintosh, sir J.

Bright, H.

Robarts, A. W.

Brown, D.

Robarts, col.

Bury, lord

Rumbold, C. E.

Calcraft, J.

Tierney, right hon. G.

Duncannon, vis.

Sefton, lord

Ellice, E.

Wood, alderman

Grattan, J.

Wrottesley, sir J.

Guise, sir W,

Warre, J.

Gurney, Hudson

Williams, John

Hamilton, lord A.

TELLERS.

James, W.

Curwen, J. C.

Kennedy, T. F.

Hume, J.

Kemp, T. P.