HC Deb 11 February 1830 vol 22 cc369-81
The Solicitor General

moved for leave to bring in a Bill, the object of which was, to amend the Law relating to Process of Contempt, and Commitments for Contempt, by Courts of Equity. The House would be aware that Courts of Equity acted ad personam, and not ad rem, and in all cases an appearance was necessary; and that a violation of its rules or orders were necessarily punishable by confinement of the person, instead of a levy on the property. In no case, but one provided by a special Act of Parliament, when the party must be brought to the bar, could that appearance be entered without the consent of the defendant. Much had been said of the conduct of Lord Eldon upon this subject; but he could assert that no man could be more tender of the personal liberty of the subject, and he never committed an individual for contempt without the most anxious consideration and most earnest desire to avoid that painful extremity. In consequence of steps taken by that noble Lord, persons confined merely for non-payment of a sum of money, as for costs of suit, could he discharged under the Insolvent Act; but he (the Solicitor-General) was convinced that the time had arrived in which relief should be carried much farther, and he thought he could establish, without difficulty, the justice and expediency of altering the existing law. The Commissioners upon the Court of Chancery had suggested the fitness of shortening the process, and he proposed to render it much shorter than they had considered necessary. In the bill he had framed, he made use of some portions of the measure which had been founded upon the report of the Commissioners, and which had been brought in by the present occupant of the Woolsack (Lord Lyndhurst) when Master of the Rolls. He could not think, and never had thought it right, that men should be confined, perhaps for life, within the walls of a prison, because they had not the means, even if they had the inclination, to put in answers to bills filed against them; he, therefore, proposed to relax the system, and to afford a remedy, to which, he believed, no objection could be raised. As it stood, the law was not to be endured; and against poor men, in some cases, it operated with unmixed bitterness; but let the cases be ever so rare, if they could exist, it was highly proper that the evil should be met and redressed. When once a man was lodged in a gaol for contempt, there was no obligation upon the party lodging him there to take the slightest notice of the prisoner for the rest of his life. He believed that there was but one existing instance of the kind, and there the man merited what he suffered, for he remained in the county gaol for the purpose of evading an act, which he ought in justice to perform. A poor man, a tailor, in Coventry gaol, after he had been there for seven years, had written to him (the Solicitor-General); with very few exceptions, he found the parties who occasioned the imprisonment disposed to aid him in the task of setting free those who were confined; and the poor tailor, having been released from prison, had been put in possession of his estate, which had been mortgaged, and had since written a grateful letter, in which he stated that he had never known a state of such comparative affluence and happiness. The evil arising out of the non-entry of appearances was capable of an easy and an immediate remedy, and it was this:—to enable a party to enter an appearance for a person who would not enter it for himself; if it were not done within a reasonable time by the defendant himself, it should be done for him, and the gaoler authorized to release the individual in contempt. The object of imprisonment was to get a certain act performed, and as soon as it was performed, either by the defendant or by others, the object was answered. At the same time he wished the change to be accompanied by this provision; that where justice could not be done unless the defendant himself put in the answer, the Court should have the power, upon application, to prolong the confinement. He begged hon. Members to observe that there was a great difference between this amendment and the present state of the law. Now a man might be left in gaol year after year to the end of his life without the slightest notice of his being still in existence; by the change he proposed, the imprisonment of no man could be prolonged without special application to the Court, and that with due notice to the party. The principle of the law of this country, he was proud to say, made no distinction between rich and poor; laws must necessarily operate in different ways upon the rich and upon the poor; the rich man suffered in his purse, perhaps, while the poor man was obliged to suffer in his person; but all must be made to be obedient to the law, however high or however low their rank. When he came to investigate the state of the Fleet Prison, he saw clearly that some alteration was necessary; but it was a mistake to assert that the parties there confined for contempt were victims of the Court of Chancery—they were victims of the law, which law it was expedient to amend. The present times, and the present state of men's minds, were favourable to that alteration; and without assuming the slightest credit to himself for taking advantage of this disposition, which did. not before exist, at least to the same extent, and anxious to shun all comparison in every other respect with his able predecessors in office, he had undertaken to draw the attention of the Legislature to the subject. When he first visited the Fleet, he found, he believed, thirty-seven prisoners there for contempt of the Court of Chancery: one had been there for nineteen years, another for sixteen, a third for twelve, a fourth for ten years; and so on with others for shorter periods. He found also, to his great astonishment, that the persons sent there by, and thus considered victims of, the Court of Chancery, all held the most lucrative situations in the prison. The cook had been confined in contempt for six years, although he need not have remained there for six days, had he chosen to give up his flourishing office. The hotel keeper had been ten years in prison, without the slightest necessity for stopping there; and his place, he was informed, was worth from 200l. to 300l. a year. The individual who occupied the tap—a situation producing from 150l. to 200l. a year—had been committed for contempt, and had already remained there for six years. Another person was a solicitor, he had been in the Fleet three years, and need not have been there as many days; but he was now domiciled, and practised his profession with much success. He had, however, found in similar confinement one gentleman, who had for thirteen years been in a state of imbecility, and who was therefore utterly incapable of putting in any answer to a bill in Chancery. Had he died, he would indeed have been lamented over as one of the victims of the Court; but what was the fact? He had been kept in prison for the convenience of others; and he had made no hesitation in telling those others, that if they did not set him at liberty, he would issue a commission of lunacy against the imbecile gentleman, and have a guardian appointed. What was the result? In December 1829, an order for his discharge was produced by his friends, dated in August, 1827, which for their own purposes they had till then kept in their pockets, and would have allowed him to die a victim to the Court of Chancery. Besides this gentleman, there were two wretched individuals both out of their minds: although one was sane enough to do wrong, though he would not do right; the other was merely a silly idiot, who did not know right from wrong. For the cases of such persons it was obvious that a provision should be made; and he proposed that the Court should be empowered to assign to them counsel and solicitors, even though no commission of lunacy had been issued against them. Both these persons had been discharged, and were now under the care of their families. The hotel-keeper, the tapster, the cook, the solicitor, and others were now all discharged from the contempt, and were no longer liable to be detained. In every case in which a poor man made affidavit that he was unable to discharge the expenses of a suit, he would be immediately brought to the bar; and if upon inquiry that allegation were not controverted, or, being controverted, was shown to be true, relief would be given to the suffering party.—[At this moment the noise in the House, which had prevailed to a considerable extent during the whole of the hon. and learned Gentleman's speech, increased beyond what it had previously done].—He said he had undertaken the duty of bringing before the House the motions then submitted to its consideration from an imperious sense of duty; he was anxious to proceed with them in the manner most consonant with the wishes of the House; [cheers, and cries of order, order, order] and, for his part, he could not conceive any object better worthy the attention of Parliament than the consideration of measures for giving freedom to those who might otherwise be condemned to pass their lives in prison, without hope of relief; and who, if Parliament did not interfere, might in vain ask for assistance. He could not conceive how a House of Commons could be better employed than in vindicating its own character, and in giving relief to persons by whom relief was so much needed. Before the recent interruption he was about to state, that one of the objects of his measure would be to give relief at once to any man who made out a case of poverty. Of the gratifying effects of that species of relief, administered under very touching circumstances, he had recently an opportunity of witnessing a remarkable instance. A poor Welchman was brought up to the court for the purpose of being discharged, on the ground already mentioned. The poor Welchman could not speak a word of English; an interpreter was procured, and the moment the objects and intentions of the Court were explained to him, his countenance lightened up with joy and gratitude, and thus he received the assurance that he would be released from that prison in which he might, but for that humane interference, have been doomed to end his days.

The object, amongst others, of the bills which he sought to introduce, was to give all cases requiring it the species of relief conceded in that just mentioned. For this purpose he should propose that four times in the year a King's Counsel and a Master in Chancery be appointed to visit the prison, to report upon its slate, and make a representation of the persons whose cases required relief, upon which a solicitor and counsel should be assigned to them, and the questions on which they were at issue with other parties brought to as speedy a decision as possible. From his knowledge of the Chancery bar, he could state, whenever a poor man came before it, the question amongst his learned brethren was, not who would, but who should be the counsel of the pauper.

There was another reform he meant to introduce, which was this, that whenever any man was ordered to execute a deed, and that he did not immediately comply, the Court, instead of imprisoning him, should execute the deed for him; and whenever it was proper for any man to do any act, it should not be necessary to confine him for the remainder of his life, but the Court should proceed at once as if the thing were done. He would even carry that principle further—he would apply it to the case of fines and recoveries. Levying a fine, and suffering a recovery, was nothing more than a circuitous mode of conveyance; and whenever it was directed by a Court, he would have the Court act for the refractory party. Whatever was the nature of the act to be done, whenever it was decided that it should be done, then let it be the business of the Court to see its own commands carried into effect. By the returns made in the year 1821, out of thirty-one persons then in custody, there was one who had been confined for a period of nineteen years, and he declined to accept his liberty on the proposed terms. There was another who had been confined fifteen years, and who was at that time in a state of imbecility. The return of 1827 gave the name of one man who had been confined twenty-five years; but he, so far from wishing to be liberated, procured an affidavit of debt to be made against him, for the purpose of his further detention, in order that he might preserve to himself the enjoyment of confinement, in despite of the Court by which he was originally committed—so remaining voluntarily in prison. Of the number in prison in 1827, he had now the satisfaction of stating, that the cases of the greater part were in a fair train of being satisfactorily disposed of; and an effect of the measures he proposed, would be, to bring that object to its immediate accomplishment; then the system which he proposed to introduce would have fair play, and the means of acting upon a clear prison. The hon. and learned Gentleman concluded by moving for leave to bring in a Bill accordingly.

Mr. Hume

said, he was far from undervaluing the labours of the hon. and learned Gentleman who had just sat down, on the contrary, he appreciated them highly; but he must be allowed to say that many of the returns upon which the hon. and learned Gentleman had founded his observations were laid upon the table of that House at his (Mr. H.'s) instance. Neither could he concur with that hon. and learned Gentleman in the eulogium he had pronounced upon the late Lord Chancellor.—In the year 1821 he visited the prison, and, after having obtained some information on the condition of the persons confined there, he felt it his duty to address a letter to the Lord Chancellor, upon the then existing state of the law, and upon the unjust sufferings to which those individuals were exposed. The fact was, that cases of those persons could not be brought before the House with effect, unless by a public officer of the Crown; for such an individual alone possessed the facilities, and stood upon the 'vantage ground, which enabled him to do what the case really required—to wrest from confinement the victims of the Court of Chancery. The statements which he (Mr. H.) made upon the occasions when those returns were ordered, were fully assented to by the present Lord Chancellor, when a Member of this House, and to the authority of that noble person as decisively supporting the alterations of which he had always been the advocate. What he complained of, and what he thought the House and the country had a right to complain of, was, that Attorneys and Solicitors-General, instead of amusing them with fine language, had not before that time introduced some measures of reform and amelioration in the state of the law. Never before the motion of the hon. and learned Gentleman made that night, had they brought forward a single proposition for the improvement of the legal institutions of the country, upon which so much of the well-being and happiness of the people depended. The improvements in the law, then before the House, would do the hon. and learned Gentleman by whom they had been proposed infinite honour, and could not but prove to him a source of satisfaction and honest pride the longest day he had to live—yet other Attorneys and Solicitors-General had enjoyed their large incomes, and all the rank and patronage and advantages of other offices, without ever bestowing a thought upon the many whom a single act of theirs might have set at liberty. Yet nothing could be further from the thoughts of those great officers than discharging that solemn and important duty. They, so far as he could perceive, had neglected every thing but their own private interests, leaving hundreds of unfortunate individuals to pine in prison and in suffering. The censure upon those functionaries was the highest praise of the hon. and learned Gentleman opposite, as were his praises their condemnation, for the shameful neglect of duty of which they had been guilty. It was with the utmost difficulty he could imagine how the late Lord Chancellor could have reconciled it to his conscience, of which he had so often spoken, to remain five and twenty years in office without once making a proposition for the amelioration of that Court over which he presided. What was there for him at any time to do, but to say to the Attorney or Solicitor-General—do what is necessary—and immediately it would have been done; had but he spoken the word, the old and intolerable system would have been abolished at an instant's notice. There was one case in the year 1821 which had in an especial degree attracted his notice; it was that of an old woman who had been one and twenty years in prison, and who was allowed to remain there up to the time of her death. The people of England had claims for the remedy of those abuses of which they were not aware, and yet they went on from day to day sanctioning abuses for which the law officers ought to be held responsible, but which up to the present moment they had never held out their hands to correct. In support of the truth of that assertion he need only refer to the evidence supplied by the hon. and learned Gentleman who had just sat down; a speech which reflected upon him the highest honour; though he (Mr. Hume) could never be brought to join in the eulogium which it contained upon the merits and conduct of the late Lord Chancellor Eldon; for with the fullest powers to see his own orders executed, it was acknowledged that he did not see that necessary work performed; and that where he wanted power for the purpose, he did not take measures for coming to Parliament to supply him with the requisite means of accomplishing the ends of justice. Why, then, was that need of praise to be conceded to him, which was due alone to those who had exerted the powers intrusted to them for the public good?

The Solicitor-General

said, he could not but feel the praises of the hon. Member for Montrose as most painful, seeing that they were only given to him in the form of censures pronounced upon the conduct of his predecessors. It was by no means, correct to argue that they had done wrong in not anticipating his measures. He stood in a different situation from what they did; especially as respected time and circumstances. What might have been extremely proper for him to propose to Parliament, various causes might have prevented them from bringing forward; but this, he submitted, formed no ground of censure against them; and greatly did any censures pronounced upon them detract from the value of the praises with which he had just been honoured by the hon. Member for Montrose—indeed nothing was more calculated to damp the ardour of a public officer, than thus to sound his praises at the expense of his predecessors.

Mr. Hume

said, he should be extremely sorry to damp the laudable efforts of any public functionary, but he would put it to him whether the conduct of his predecessors, if like his, would not have led to similar results?

Lord Althorp

said, that when in former Sessions his hon. friend the Member for Montrose had addressed the House upon the abuses of the Court of Chancery, he had naturally and justly expressed his disapprobation of the conduct of those by whom the abuses in that Court were allowed to exist; and it was perfectly natural and just that when complaints of that nature were at length rendered groundless by the conduct of public officers, that the same hon. Gentleman, the Member for Montrose, should contrast the conduct of the present law officers of the Crown with that of their predecessors.

Sir Charles Wetherell

complained of the sweeping anathema which the Member for Montrose had pronounced against all who had filled legal offices under the Crown. The hon. Member had taken them severely to task, and he (Sir Charles Wetherell) would take him to task. He would ask that hon. Member where he was all the time the Chancery Commission was sitting? It was well known to all who sat upon that Commission that the noble Lord whose conduct had been so severely censured, uniformly attended that Commission; and though a lawyer of the highest eminence, and a magistrate of the highest order, yet he attended that Commission, and communicated with the youngest tyro of the law amongst its members upon the most perfect terms of equality. The other members of that Commission, consisting as it did of great equity authorities, of barristers, and of men of business, experienced from his Lordship the courtesy in which he never failed towards any man, and that respect for their sentiments which was worthy of his own high character. Lord Eldon went to that Commission, and he said that whenever his presence could aid their deliberations, or afford the smallest light or assistance, then would he be present; and that whenever his absence would conduce to the objects for which they had been formed, then would he be absent. In saying that, he was only stating a fact which was known to every member of the Commission, and in which he should be fully borne out by an eminent and learned civilian (Dr. Lushington) whom he did not then see in his place, but who was a member of that Commission, and who had heard those sentiments from the lips of the noble Lord himself. If that hon. and learned civilian were then in the House, he had no doubt that he would bear testimony to the accuracy of the statement then made, and to the expression of sentiment which he (Sir Charles Wetherell) attributed to the noble Lord. Now he would once again beg leave to break a lance with the honourable Member for Montrose: why did he not come down to the Chancery Commission? Why did he not come down to that Commission with his information in his pocket and enlighten them all? He was a legal reformer, and an ecclesiastical reformer—a reformer of the church, and of the finances—an omnigenous reformer—an encyclopedical reformer—why did he not then come down and lay before them the stores of his learning in matters regarding the Court of Chancery? Why did he not there meet that noble Lord who said, that when any thing in which experience could be of service came before them, he should be sure to attend if required, and who, when any thing that might, from consideration of delicacy or any other cause, be better discussed in his absence, then would he, with as equal certainty, make it a point not to be present. But no; the honourable Member for Montrose did not think proper to come forward upon that occasion; he kept his complaints in petto till the noble Lord went out of office, and then he stood forward to pronounce against him a sweeping anathema, all the while taking a special care not to mention any one of the services which that noble Lord did to the substan- tial improvement of the administration of justice. He said nothing of the expenses in fines and recoveries which that noble Lord abolished. He did not tell what every man of property in the country was interested in knowing, that no improvement of an estate could, under certain circumstances, be effected, until that noble Lord had completed such amendments in the law as rendered it unnecessary in some cases for a man to sell, and then re-purchase, before he could raise money for the most obvious improvement upon it. There was not a man in the country, learned or unlearned, who must not have felt indebted to the noble Lord for that useful alteration. Again, they heard nothing from the honourable Member for Montrose respecting the improvements which Lord Eldon effected in the state of the law relating to executors. Before that alteration, an executor might have 100,000l. of the testator's estate in his pocket, and when sued at law for the payment of the debts of the testator, might apply to a Court of Equity, and obtain an injunction to restrain proceedings at law, and all the while proceedings were pending he might keep the 100,000l. in his pocket, as the honourable Member had kept the boasted returns about Contempts in his pocket. The noble Lord put an end to that practice—he made the money be paid into court, and put a complete bar to all the evils of the ancient practice. But it would be vain that he should attempt to do justice to the public services of that noble and learned person. He was not prepared—it would take much more time than circumstances allowed, to enumerate even a portion of the great services Lord Eldon performed, both as a Minister and a Judge. He was not prepared at a short notice to give so good a syllabus of his merits as the hon. Member for Montrose had given of his demerits; he could not do injustice to those merits by then entering into them at length, unfitted for the task as he was by no trifling degree of indisposition. Those two orders of Lord Eldon which he had already adverted to were of the highest importance, as every professional man well knew, and as many men of property could not but occasionally feel; to these he might add many more did time allow; but he must say, that when that noble Lord had now retired from the vortex of public life—from that political collision in which he had been engaged for so many years, it was rather hard to deal out to him such a measure of injustice; he would say egregious injustice; to endeavour to lay upon his back such stripes and lashes as those which the honourable Member for Montrose sought to inflict. Lord Eldon, one of the most amiable and excellent of men, was at the same time one of the greatest and most learned of lawyers. There never existed that man who laboured more assiduously in the exercise of his profession, or manifested in the whole tenour of his life juster sentiments of morals and of religion—no man who more happily united in himself great general talents with the science of a lawyer, the learning of a scholar, and the courtesy and principles which distinguish a gentleman. Combined as all these qualities were, in an almost equal degree, it was difficult to say in which he most excelled. It was rather hard, then, that after five-and-twenty years of public service, the honourable Member for Montrose should now come forward, at the end of two years, against the noble Lord, with what might well be called his posthumous complaints. As he was on his legs, he would advert briefly to the charges of the honourable Member against the various individuals who had filled the offices of Attorney and Solicitor-General. Many of them had come from the honourable Member's own side of the House—the late Sir Samuel Romilly for example; he of course meant to include that learned and eminent person in the sweeping condemnation which he had pronounced upon the class of official delinquents whose conduct failed to meet with his approbation. To his mind nothing could appear more ungracious than for the honourable Member for Montrose to enlarge, with such extraordinary severity upon the conduct of legal functionaries, when his own side of the House was at all times ready to furnish the state with a quiver of law officers. It should be remembered, that the present Attorney-General came from that side of the House, and had not, up to the present moment, proposed any legal reforms; but it was hardly fair to say any thing of him, he was too fresh and green in his office to be made the subject of much animadversion. As to the general principles of the bill, he entirely approved of them, as he should think that any gentleman at the bar must do. It had often happened to himself to walk down to Doctors' Commons, to look at a will, in order that he might save some unfortunate suitor the fee; he did not mention this with a view of taking credit to himself, but rather to show that every member of the profession was ready, if a person could but show that, he had a likely case, to put forth his best energies and efforts to assist him.

Mr. O'Connell

said, he thought the several Bills which the Solicitor-General proposed to introduce gave every promise of being highly useful, and as such they claimed his support. It seemed to him that his honourable friend (Mr. Hume) had not been quite fairly dealt with; he had been attacked because he had not previously joined in the complaints which had been preferred against Lord Eldon; but after ail, on the showing of his own eulogists, what had that learned Lord done for the country? He had received more than half a million of its money, and in return, introduced two measures into Parliament. In his opinion, his hon. friend (Mr. Hume) had just grounds for blaming the learned Lord, from the fact of his having been so many years in power, and not having, during all that period, found time to do what the Solicitor-General had done in one year.—Leave was given to bring in the Bill.

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