LEAVE. (Hansard, 5 July 1859)

§ MR. COLLIER
said, he rose to move for leave to bring in a Bill to limit the power of imprisonment for small debts exercised by the County Court Judges. Having been one of those who had assisted in the formation of County Courts, and who had frequently advocated the 669 extension of their jurisdiction, especially in regard to the interests of the poor, he hoped that it would not be supposed that he was actuated by a feeling of hostility, either to those Courts or to the Judges who presided over them with so much learning and ability. He thought that, on the whole, the County Courts had worked extremely well, and with one exception had given general satisfaction. The power of imprisonment for small debts had been the subject of many newspaper articles in the provincial press. It had been presented by grand juries, and had been alluded to in the charges of Her Majesty's Judges. The Society for the Amendment of the Law, under the presidency of Lord Brougham, had given its attention to the matter, and a Committee of that body had made a Report. Under these circumstances, he trusted he should be pardoned if he detained the House by a brief statement of the facts. The power of imprisonment under process of the superior Courts was very different from that exercised by the County Court Judges. In the superior Courts imprisonment operated as a discharge of the debt, but not so in the County Courts. In the superior Courts a creditor had two courses before him. He might take either the goods of the debtor or the debtor's body. If he chose to take the body of the debtor, the law said his debt was satisfied; but not so in the County Courts. In the County Courts the power of imprisonment was a mere punishment which did not operate as a satisfaction of the debt. It was clear from the wording of the Act of Parliament that this was not the intention of the Legislature. The Act enacted— That if the party so summoned shall not attend as required by such summons, and shall not allege a sufficient excuse for not attending, or shall, if attending, refuse to be sworn, or to disclose any of the things aforesaid, or if he shall not make answer touching the same to the satisfaction of such Judge, or if he shall appear to such Judge, either by the examination of the party or by any other evidence, that such party, if a defendant, in incurring the debt or liability which is the subject of the action in which judgment has been obtained, has obtained credit from the plaintiff under false pretences, or by means of fraud or breach of trust, or has wilfully contracted such debt or liability without having had at the same time a reasonable expectation of being able to pay or discharge the same, or shall have made or caused to be made any gift, delivery, or transfer of any property, or shall have charged, removed, or concealed the same, with intent to defraud his creditors or any of them,…. it shall be lawful for such Judge, if he shall think fit, to order that any such party may be com- 670 mitted to the common gaol or House of Correction of the county, district, or place in which the party summoned is resident, or to any prison which shall be provided as the prison of the Court, for any period not exceeding forty days. A subsequent proviso enacted that imprisonment might be awarded for new fraud or subsequent default. The Legislature appeared to intend, in accordance with the reasonable interpretation of the clause, that, if the debtor did not appear, the Judge should institute some inquiry in his absence as to whether he was able to pay or not, and whether he had contracted the debt by fraud; and if he were able to pay, or if he had contracted the debt by fraud, then, and then only, was he to be punished, on his refusal to pay, by imprisonment. This was the interpretation adopted by most of the County Court Judges. But the House would be surprised to hear that some of them had put a totally different construction upon the Act, and had interpreted it as enabling them to commit a defendant merely for not appearing, and without satisfying themselves that he had contracted the debt by fraud, or that he was able to pay and would not. The consequence was, that sometimes a poor man who was unable to pay his debts, and was prevented from appearing before the Judge either by illness or by poverty—for the loss of one or two days' labour might involve starvation to him—was committed, without inquiry, and without proof that he was able to pay or had contracted the debt by fraud. The process was this—John Smith's name was called. The officer said he did not appear. The Judge thereupon said, "Summons served?" "Yes." "Forty days."—"John Noakes. Does he appear?" "No." "Summons served?" "No." "Thirty days." Many persons were sent to prison exactly in this way. The imprisonment was ordered without inquiry, and it was a mode of administering justice, which he was satisfied the House never intended to establish. From a Return moved for by the late Attorney General, it appeared that in the year 1858 the number of persons committed to prison for not appearing pursuant to summons, or alleging a sufficient excuse for not so appearing, without proof of fraud, was no less than 8,361. This had attracted a good deal of attention. The grand jury of the county of Bedford made a presentment on this subject, and the Chief Baron, than whom a more humane Judge could not be found on the bench, in charging thorn, said— 671 But the point to which special attention is called is the fact that, although there is such a pleasing decrease in the number of criminal offences, there is a very large number of committals on orders from the County Court. The consequence is, that the expenses of the county, and he might add of the country generally, are largely increased. A man who was taken into custody once, was supposed to satisfy the debt he had incurred; and it was seldom the case that he could get out without some liquidation or satisfaction of the debt; but under this statute that is not the case, and the number of committals for debt has very largely increased. The expense of these debtors in this county averaged, he understood, 10s. 6d. per week. The Judge of the County Court has no power to commit beyond a certain number of days; but he has this power, that when the debtor comes out and does not pay the debt, he can again commit him; and there is one example of a debtor who was first committed in November, 1856, and he has been committed no less than eight times for the same debt. Five times he was committed for periods of thirty days, and three times he has been committed for periods of forty days. During the whole time of his imprisonment the county has paid 10s. 6d. a week for his support, and every time he has been taken up the Treasury has had to pay for his apprehension. He (the Chief Baron) believed that the county had better have paid this man's debt ten times over, and the Treasury had better have paid it twice over than that such a process of imprisoning and paying out of the public funds should have gone on. It really is impossible to contemplate such a state of things with any degree of satisfaction. The debtor referred to is upwards of 60 years of ago, it appears, and he has been altogether thirty weeks in prison for this debt. A man might have committed a felony and had a much smaller imprisonment. The debt and costs originally amounted to £2 5s.; the amount has gradually increased from that sum in November, 1856, to £4 14s. 6d. in January, 1859, when he was committed, one would hope for the last time, for forty days. But he may be committed again, and there seems no end to it. He found that there were many others who had been committed over and over again. The number of persons committed from the County Court on these small debts had increased considerably; and he found that in the year ending last Michaelmas there were no fewer than eighty-six males and thirty-one females. Above 100 persons were so committed for debts and costs which amounted altogether to £274 9s. 9d., the average of that being little more than £2 for each person's debt. If this man, whose debt had been originally only £2 5s., had committed a felony he would have been sentenced to a much shorter term of imprisonment. He might add, however, that the Judge of the County Court thus referred to by the Lord Chief Baron had taken the opportunity of replying, and giving him a Roland for an Oliver, saying that the Chief Baron could have had very little to do when he made so many irrelevant remarks; and to show his independence, when the old man came out, he recommitted him for the ninth time 672 for forty days. But the learned Lord Chief Baron was not fully informed of the magnitude of the evil, for he (Mr. Collier) found that one County Court Judge in 1857 committed 546 persons, and another no less than 749 persons in the same year. These committals were increasing in number, so that it was confidently expected the committals for the present year would exceed by 2,000 those of the year before. He found also that there was a great discrepancy in the practice of the Judges. While one Judge had committed no less than 749 defendants in a year for non-appearance, another had committed only 183, although the latter had a greater number of plaints by no less than 3,004. Again, another Judge who had no less than 14,293 plaints before him had only committed 85 persons in the course of the year. It seemed to him (Mr. Collier), then, that as the Chief Baron remarked, this was a state of things which could not be contemplated with any degree of satisfaction. He did not desire to abolish this power of imprisonment, because he thought that in many cases it would have a wholesome operation. He was desirous that the County Court Judges should have power to make men pay their debts; and that to this end the power of imprisonment might be necessary. But what he wished was leave to introduce a Bill to confine their imprisonment jurisdiction to the cases which he thought were originally contemplated by the Legislature; that no Judge should imprison a man merely for non-appearance, or without being satisfied that he had contracted his debt by fraud, or that he had the means of paying. He contended that the proper explanation of the clause was, that in the defendant's absence the Judge should satisfy himself on these points by other means; and this was the interpretation put upon it by some of the most learned of the Judges. One other point which he wanted to secure was this. There should be some limited period of imprisonment. If a man committed a felony he was imprisoned for a determined number of months; but the law, as interpreted by some of the County Court Judges, gave no limit to imprisonment for debt. If the old man mentioned by the Chief Baron had picked his neighbour's pocket of property to the value of £2, he would probably have been imprisoned for two or three months; but because he did not pay a debt of that amount he had been imprisoned for four times that period. The limit which he 673 would propose was this—that no defendant should be committed for more than twice forty days. [Mr. MALINS: Too long.] He was glad to hear that observation of his hon. and learned Friend as his own opinion inclined the same way, but still this would not be a quarter of the time this poor old man had already been imprisoned. He should propose that term—subject, of course, to such modifications as the House approved. In conclusion, he had to thank the House for the patience with which they had listened to him, and to move for leave to bring in the Bill.

§ MR. MALINS
said, he rose to second the Motion. He considered the House was very much indebted to the hon. and learned Member for Plymouth for the manne in which he had brought the subject forward. For himself, the practice of the County Courts being out of his beat, unless he had heard the hon. and learned Gentleman's statement he could not have believed that such things were going on in this country. It was ore of the misfortunes of the County Courts that the business was carried on without the controlling check of a bar. It was carried on in the country, and it was therefore desirable that the proceedings should be most vigilantly watched. It did excite his astonishment that upwards of 700 persons should have been committed by one Judge in one year for non-appearance, caused generally by poverty or ignorance. If the proposed Bill passed into law it would be a great public advantage, although for his part he wont even farther, and said that the whole power of imprisonment ought to be most carefully guarded. In 1838 he rejoiced at the measures by which the abolition of arrest on mesne process was effected. Up to that time a creditor, merely on an affidavit of a £20 debt, could seize the body of the debtor; and he remembered hearing Gentlemen, many of them still living, argue that if this power were abolished, England's commercial greatness would be at an end. Now, no man would venture to point out a single mischief that had arisen from that abolition of arrest on mesne process. He contended that the abolition had been productive of signal benefit; and he desired to see the day when imprisonment for debt should be abolished altogether. Two courses were now open to a judgment creditor in the superior courts. Either he could issue a fi. fa. against the goods of his debtor, or a writ of capias by which to take his per- 674 son. If he took the goods he could not also seize the person, and if he seized the person, and afterwards let him out of custody, the debt was discharged. There was no previous arrest, unless the creditor swore that the debtor was about to leave the country. And this principle he would like to see extended to all cases. A debtor should not be seized by a creditor as a matter of right; he should only be imprisoned on special application to a Judge. To give a creditor power to seize all the property the debtor had was quite sufficient. His hon. and learned Friend (Mr. Collier) proposed to give to the County Court Judge power of awarding eighty days' imprisonment. That was not a power that he (Mr. Malins) was disposed to give. He would much rather restrict this power of imprisonment, and with regard to the power of imprisonment for non-appearance, take it away altogether.

CAPTAIN STUART
said, he also thanked the hon. and learned Member for Plymouth for introducing the Bill, as he could bear testimony to the hardships which were inflicted under the present system. In his own county many poor girls and women were induced to incur debts with travelling dealers, and some time after were summoned, and failing to appear were at once committed to prison. As a magistrate he could say that great expense was thrown upon counties by the present system.

§ MR. B. COCHRANE
said, his only fear was that this Bill would be totally inadequate to meet the fearful tyranny which had just been disclosed to the House. He could scarcely believe that 8,000 persons had been committed to prison in one year for non-appearance. It was true that in those cases the Judge ostensibly committed for contempt of Court, but then everything was construed into a contempt. If a debtor did not appear, it was contempt of Court; if he could not pay the instalments which the Judge had fixed, that also was contempt of Court. Years ago he brought before that House the case of a man committed from a County Court, who was treated as a felon, and had his head shaved, in which condition he had to return to society on his liberation, after an imprisonment of three weeks. Of all tyrannies a legalized tyranny was the worst. It appeared to him that it would be better to introduce a Bill which would convey more strongly than the measure of the hon. and learned Gentleman the disapprobation which they must all feel of 675 such oppression as that which he had denounced.

MR. HENLEY
said, he was prepared heartily to thank the hon. and learned Gentleman for having brought that subject under the consideration of the House. He wished, however, to draw his attention to a fact which seemed to have escaped, not only his notice, but also that of the other hon. Member who had spoken. The hon. and learned Gentleman had talked of "penal imprisonment;" but he had not informed the House that those parties were not really treated as debtors, but subjected to certain strict regulations issued by the Secretary of State, and that although they were not put to hard labour, they were exposed to special hardships in their diet and in other details of their treatment. The fact was, that these people were considered as fraudulent debtors. But there was every reason to doubt whether their cases were investigated at sufficient length to enable a Judge to decide whether or not their liabilities had been fraudulently contracted. In many cases the families of the unfortunate persons who suffered under this state of the law were maintained by the parish, while the prisoners themselves were maintained out of the county rates during their imprisonment; so that the punishment was merely vindictive. Whenever they should get into Committee, they would have an opportunity of considering all the details involved in the measure.

§ MR. GEORGE CLIVE
said, that the Government had no objection to the introduction of the Bill. On the contrary, they were of opinion that it was the duty of the Legislature to attempt to devise some remedy for the evils to which his hon. and learned Friend had directed their attention. But at the same time he must add that he did not believe that the House and those learned Gentlemen who were in the habit of commenting on the merits of the County Court Judges generally possessed that practical acquaintance with their proceedings which would entitle them to speak authoritatively upon such a subject. He agreed with his hon. and learned Friend the Member for Wallingford (Mr. Malins), that it was very much a question whether or not they should ever subject parties to imprisonment for debt. That was a point which was fairly open for consideration. But he rose principally for the purpose of explaining what was the mode of proceeding adopted by the County Court Judges 676 in matters of that description; and he could state that he spoke upon the subject from a personal experience as one of those Judges, in one of the most populous districts in London, during a period of several years. His practice, and that of all the gentlemen who acted as County Court Judges in the London district, was very much of the nature of that to which the hon. and learned Gentlemen had awarded some praise; but he must say that it would be perfectly impossible to send an officer to search for a man in a district of twelve or fourteen miles, or to pursue a person in the metropolis, who perhaps had gone out of the way purposely to avoid the payment of his debt. As to the rapidity of the trials, it must be recollected that in nine cases out of ten the defendant admitted the debt; there was, consequently, no time required for that. Then, generally speaking, they had their own time for paying; the creditors were almost invariably very mild, both as to time and the amount of the instalments. If the debtor failed to pay, the usual thing was to take out a summons to show cause why he did not. Very often the debtor did not attend, because he did not wish to be cross-examined as to his means of paying. When that was the case, the creditor, whether he was hard, or dishonest, or otherwise, said that the debtor could pay; and further inquiry was impossible on the part of the Judge, for there was no one present of whom he could inquire. It might, however, be desirable to take away from the Judges this power of imprisonment altogether. In speaking of the number of imprisonments, it ought not to be assumed that all who were committed had been in prison, for the number was immense, in which payment was made rather than go to prison. Indeed, he had known frequent instances of debtors waiting outside the Court, unknown to the officer, until they had heard that they were committed, and then they would of their own accord come in and pay the debt. It must be admitted, that if there was no power of imprisonment, the debtor might set the Court at defiance.

§ MR. BRISCOE
said, it appeared from the Returns that the number of persons committed for non-appearance was 8,361, while the number of those committed for fraud, alleged and proved, was only sixty-nine.

§ MR. COLLIER
said, he had to thank the House for the reception given to his 677 measure. The only objection made to it was that it did not go far enough, but that was a defect which might easily be remedied in Committee.