IMPRISONMENT FOR DEBT. (Hansard, 1 March 1837)

§ Sir W. Follett
had a question to put to his hon. and learned Friend, the Attorney-General, arising out of a petition which he then held in his hand. The petitioner was the keeper of the Sheriff's Gaol, in the city of Exeter. If his hon. and learned Friend's 1177 Bill were passed into law, the petitioner would be deprived of his office, and of all the emoluments attached to it. Now, he wished to know whether his hon. and learned Friend intended to introduce any clause into the Bill giving compensation to individuals in the situation of the petitioner?

§ The Attorney-General
said, that although there was no such clause at present in the Bill, it was only fair that a clause should be introduced into it giving compensation to parties who would be deprived of emoluments under its operation. He had found it, however, very difficult to draw the line between the cases in which compensation ought to be granted, and those in which it ought not. If a general compensation clause was introduced, every sheriff's officer who now obtained a living by placing his claws upon unhappy debtors would claim compensation for the loss which he sustained by the destruction of his occupation; at the same time, individuals in the situation of the Marshal of the King's Bench and of the Warden of the Fleet, ought to receive compensation. He should be glad of the assistance of his hon. and learned Friend, the Member for Exeter, to draw the line, which all must allow to be necessary. The hon. and learned Gentleman moved the Order of the Day for the Committee on this Bill.

§ Mr. M. Philips
had, on a former occasion, applied to his hon. and learned Friend, the Attorney-General, to postpone the second reading of this Bill; but he had been unsuccessful. He now, at this stage of the Bill, repeated his application, in order that the trading part of the community might have an opportunity, which they had not yet had, to consider the Bill.

§ The Attorney-General
replied, that the Bill was substantially the same as that which had been introduced three Sessions ago, and successively in each Session since then. The Bill had now been three years before Parliament; and doubtless, if, in the present year, there existed any objection to it on the part of the Chamber of Commerce of Manchester, the hon. Member who spoke last must have heard of such objection. The Bill had been very generally circulated during the period that had elapsed since its first introduction, and in the present year there had been no petitions against it. He hoped that it 1178 would not have to encounter any further opposition.

Mr. Richards
I am sorry, in the discharge of my duty as a Member of this House, to be obliged to oppose the further progress of this Bill. The learned Attorney-General, doubtless, from a sense of duty, and not from any desire to obtain a bad popularity, has thought fit to bring forward a Bill similar to the Bill of 1835, for extending the remedies of creditors against the property of debtors, and for abolishing imprisonment for debt, except in certain cases of fraud. The present Bill does not propose to create the same immense amount of Ministerial patronage as the former Bill, nor does it go to erect, as the former Bill did, an irresponsible inquisition in every district of the kingdom. But, under the pretence of improving the law of debtor and creditor, and from those feelings of mistaken but benevolent kindness, and unbounded philanthropy for which he is conspicuous, the learned Attorney-General will by this Bill, if it pass into a law, inflict the most serious injuries both on creditors and debtors. The House will see that the question at issue is not whether arrest and imprisonment for debt, or for offences of any kind, be, abstractedly considered, an evil. I admit, that punishment of any kind or in any degree abstracted from all consideration of its object, is an evil. It is an evil in the case of a person convicted of forgery, to tear away the offender from his family and friends, to deprive him of liberty, and to carry him, at a great expense, 10,000 miles distant to another country. It is an evil to deprive a felon convicted of murder of his life. These are evils; but you consent to inflict them for the sake of preventing evils immeasurably greater—viz., those that would arise from insecurity of person and property. You inflict the punishments I have named in order to prevent forgery and murder. But it is alleged, that the power of arrest and imprisonment for debt is sometimes abused; and that persons have, in some instances, been arrested and imprisoned for fictitious debts. Now, I am quite ready to make any such arrest and imprisonment highly penal. But I contend, that an occasional abuse of the power of arrest and imprisonment is no valid reason for the abolition of this power. The real question before the House is this —not whether arrest and imprisonment 1179 for debt are, in the abstract, evils, but whether to abolish them would not lead to much greater evils; and particularly, whether the Bill now brought forward by the learned Attorney-General would be any improvement on the law as it now stands. As the law now stands, a creditor may either serve his debtor with a copy of a writ, which is merely commencing an action, or he may arrest the person of the debtor and hold him to bail. If the action proceed, and the creditor obtain judgment, he may then take out execution either against the goods or the person of his debtor. Now, I believe, that creditors are almost always extremely lenient; I believe, also, that the fear of arrest and imprisonment is productive of the greatest good: it operates as a check to idleness, improvidence, and fraud. But for this wholesome fear, the industrious would frequently become idle; the provident, thoughtless and negligent; and the honest, cunning and fraudulent. To remove this fear would alike injure the debtor and the creditor. The mere diminution of this fear, by constituting the Insolvent Debtor's Court, has created a gigantic and fearful mass of immorality, injustice, perjury, and fraud. But, supposing that an unfortunate debtor meet with, what is exceedingly rare, a hard-hearted creditor—why, in this case, such debtor may, as the law now is, either become a bankrupt or take the benefit of the Insolvent Act. Why, under this Act, unless fraud be proved against a debtor, he can get discharged on an average of time in about two months. What then becomes of the loud complaints and eloquent harangues of hon. Gentlemen against the hardship and cruelty of imprisonment for debt? But the learned Attorney-General proposes, by this Bill, to take away from creditors the power of arrest and imprisonment; and I will, therefore, proceed, with the leave of the House, to consider what it is that he offers instead of it. This Bill is an attempt to provide for the creditor remedies equivalent to arrest, as a consideration precedent to the abolition of arrest; and is, in that respect, specious but delusive. No such equivalent can, in the nature of things, ever be provided. Our present law proceeds upon this principle:—Secure the person of the debtor, and you will then have him co-operating with the creditor to take an account of his own property, and to make it available in discharge of the 1180 debt. If this be done, it becomes superfluous to give the creditor a direct recourse, as this Bill proposes to do, upon the funded property, debts, &c. The indirect recourse by imprisoning the debtor himself is incomparably more effectual. It is true, in some instances, that debtors are found to remain in prison rather than discover their properly; but this evil has been grossly exaggerated. Such cases are very rare, and are almost always connected with insanity, or some peculiarity of temperament bordering on insanity, against which no legal provisions can effectually guard the public. Such being the present state of things, this Bill in effect proposes to take from the creditor that indirect but most stringent remedy he now possesses, and to bestow upon him in lieu of it a direct one of little value. It gives him the power of resorting to money in the funds, debts, copyhold land, and other property, which he cannot now seize; but to what good purpose, if; the discovery of these is withheld by the debtor? When this occurs, as undoubtedly it often will, the learned Attorney General's recipe is,—first, to make the debtor deliver a schedule of his effects; that schedule will, of course, always be imperfect and delusive. It is not even required to be on oath, and I think it ought not, for that would be an irresistible temptation to perjury. Creditors dissatisfied with this, are then to obtain from the Court of Review (if they can show sufficient cause) an order for examination on oath before Commissioners. But we know by the experience of the Insolvent Debtors' Court how baffling such examinations invariably are, and how easily they may be evaded by a dexterous or unscrupulous defendant. It is enough to say, that the assets realised to creditors in this court do not amount to three farthings in the pound. Besides, who is to pay the costs of this proceeding, and of those previous investigations into the state of property, without which the examination would be a farce? Who is to pay the attorney and counsel, without whose assistance nothing could be done? Why, the creditor himself in the first instance, and often without reimbursement; for though the Bill provides that the costs shall be added to the debt, this would generally be throwing good money after bad. Besides, the costs here referred to are the costs of the mere examination, and which 1181 would be a very small part of the expense. But observe, that this remedy (ineffective as it is), and indeed the whole system of remedy newly provided by the Bill, is intended for the judgment creditor only. A man is first to obtain his judgment, and then he may go to work by the methods proposed to render his judgment available, if he can. But where is the equivalent for the power he now possesses of preliminary arrest, which everybody acquainted with the subject knows to be infinitely more important than that even of arrest in execution? The Bill does not even pretend to offer any equivalent here; for the power proposed of arresting a debtor about to abscond, cannot be intended, of course, as an equivalent, but only as a means of redress in particular cases. It is, however, utterly futile. If not connected with the provision of throwing the burthen of proving the intention to abscond on the creditor, it would be highly objectionable in another way; for as it does not require creditors to specify the grounds of belief, it would be a snare for the conscience of the party swearing, and the oath would be taken almost as a matter of course, whether there was really any ground of suspicion or not. But as connected with the provision I have referred to, the remedy is worth nothing. Every professional man knows perfectly well (and nobody better than the learned Attorney-General) that if the creditor is to be at the peril of an action for false imprisonment, unless he can prove probable cause to the satisfaction of a jury, he will never be advised or allowed by his legal advisers to arrest an absconding defendant, except under circumstances of avowed or demonstrable intention to leave the realm. It follows, then, that the invaluable privilege of arrest before judgment, is, in effect, rescinded without any equivalent; and it would certainly be quite as well not to make a show of giving one; for no equivalent can exist while human nature remains as it is. Let any hon. Gentleman read the copious and convincing evidence subjoined to the Common Law Report, as to the preventive effect of arrest before judgment, and the practical efficacy which in that, as well as in other ways, is found to belong to it, and decide for himself, whether the learned Attorney-General is not meditating great mischief to the public? And why is all this to be? What is the necessity for it? Have the manufacturers, 1182 the traders, the merchants, and the bankers, petitioned this House for such a Bill? I will not suppose that the learned Attorney-General is inched by a vain desire for popular applause, or that he has given a pledge to the needy writers of paragraphs, which he thinks, he must redeem. He is, doubtless, actuated by higher and better motives. But the only real evils that attend the present system, may easily be prevented at less cost. They do not require that you should pull down the whole edifice. It was not left for the Attorney-General, or for these times, to discover that arrest is an evil; but our forefathers thought it a necessary evil, or one more than repaid by its numerous and great advantages. This is not one of those subjects on which our ancestors thought superficially, or were placed at disadvantage from their ignorance of any modern discoveries, as they are supposed to have been on certain points of political economy. The whole case was before them, and frequently and elaborately discussed; and they decided to retain arrest and imprisonment for debt. It is remark able, that in ancient Rome, freedom from arrest was a favourite object with the Radicals of that day, but was always opposed by the Senate, who would no more consent to it, than they would to an agrarian law for the equal division of property. But where the legislators of other days found so much to embarrass them, the Attorney-General rushes in, without even a suspicion, apparently, that there is any difficulty to be surmounted. I ask the House whether the evidence taken by the Common Law Commissioners, will warrant the passing of this Bill? What are the facts? Of 445 bankers, merchants, barristers, attorneys, and traders, only sixty-one expressed any opinion favourable to the abandonment of arrest in execution, and few of these sixty-one spoke positively. Again, it appears that in every state in Europe, except Portugal, arrest in execution is allowed. Further, eighteen out of twenty-three foreign jurists have expressed opinions against the abolition of arrest in execution. The weight of evidence, therefore, is decidedly against this Bill. Nor do the sentiments expressed by the four Commissioners who signed the report, go to the length of recommending such a Bill as this. Far from it; and the supplementary paper published by Mr. Sergeant Stephen, dissents in the strongest 1183 manner from the rash and unadvised conclusions on which this Bill is founded. It is true that the hon. Member for Lambeth, as the fidus Achates of the learned Attorney-General, has stood forth prominently to defend this Bill. But, with great deference to his talents, his authority, I think, will hardly outweigh that of the host of persons I have spoken of. Upon minor and subordinate points, the Bill is full of objections. For example, it throws upon judges at chambers an enormous load of collateral business, in addition to their present duties there, which are already arduous enough to encroach materially on their proper province in court. Indeed, I expect that there will be no more anxious opponents of this Bill, than the judges themselves, when their attention is called to its enactments. The learned Attorney-General no doubt means well, but I would respectfully entreat him to lay aside his rash and unadvised endeavours to improve the law of debtor and creditor. He must be aware, that change for the sake of change is seldom good—that the experience of ages ought not rashly to be despised; and that a man may have a competent knowledge of law, and be well skilled in its administration, without possessing that rare sagacity, and that sound and comprehensive wisdom, which are necessary for the business of safe and good legislation. Sir, believing as I do, that this Bill is totally uncalled for, that its object by such means cannot be attained, and that its provisions are in the highest degree fraught with injustice and danger. I protest against it, both on the part of debtors and creditors, to whom it would be alike injurious; and I move that, as regards this Bill, the House go into a Committee this day six months.

§ Mr. Jervis
considered that this amendment would indirectly sanction, the con- ^* The amendment was pressed to a division against Mr. Richards's wish, who actually voted with the majority against his own motion. 1184 tinuance of a principle which he deemed highly objectionable, and should therefore think it his duty to divide the House against it.

§ The Solicitor-General
said, it appeared to him absurd that they should introduce into a Bill abolishing imprisonment for debt, any provision which might have the effect of abolishing the privilege of Parliament.

§ The Attorney-General
observed, that the law, as it at present stood, required a property qualification for Members of Parliament, and guaranteed to them freedom from arrest. If the hon. Member disapproved of this part of the law, he might introduce a measure, having direct reference to it, but the object of the amendment was to assimilate the Bill as much as possible to the existing law.

Mr. Richards
maintained, that so far from allowing Members of Parliament to plead privilege for non-payment of their debts, they should, of all others, be most amenable to the law of the land in that respect.

§ Mr. Sergeant Wilde
opposed the amendment. If the object were merely to preserve the privilege of Parliament, the words proposed to be inserted were unnecessary, and might be dangerous. They would, he contended, raise a collateral argument in many cases against privilege of Parliament.

§ The Attorney-General
said, the question was assuming privilege of Parliament to continue, whether or not the words were necessary. If they were not introduced, the person of a Member would be subject under the provisions of the clause to a capias ad satisfaciendum.

§ Viscount Sandon
was not inclined to push privilege of Parliament as far as the Attorney-General. Privilege of Parliament should not apply where fraud or crime had been committed, and the provisions of the clause contemplated such cases exclusively. It had been said, that the power of arrest might be used for political purposes, on the eve, for example, of an important division. But a series of steps had to be taken, which must necessarily occupy some time, before a Member 1185 could be deprived of the power of attending his duty in Parliament. He could not be taken by surprise; the power, therefore, was not likely to be employed to impede the deliberations of that House.

§ Mr. Tooke
thought it would be unworthy of Members to avail themselves of the protection of the amendment proposed by the Attorney-General, for the purpose of cheating their creditors. The power could only apply where fraud was intended, the debtor having refused to deliver his schedule, and answer the questions put by the Commissioners.

§ The Solicitor-General
hoped the hon. and learned Member for Chester would not persevere in his opposition, and endeavour by a side wind to effect a most material alteration in the law of the land with respect to privilege of Parliament.

§ Mr. Jervis
objected to qualification and to privilege of Parliament altogether, and must therefore persist in his opposition.

§ Mr. M. Philips
thought the hon. and learned Member for Chester had taken the common sense and just view of this question, and he hoped, if he were unsuccessful on the present occasion, he would not be deterred from bringing in a Bill to abolish privilege of Parliament altogether.

§ Mr. Aglionby
did not think the amendment would extend privilege of Parliament further than it existed at present, but, objecting as he did, to its principle, he should vote with the hon. Member for Chester.

Mr. Fresh field
understood the leading object of this Bill; was, to give the utmost facilities for following the property of debtors; and the person of Members of Parliament not being subject to arrest, why should their property not be made equally chargeable with that of every other class of his Majesty's subjects?