§ Bill considered in Committee.
§ (In the Committee.)
§ Clause 4 (Abolition of imprisonment for debt, with exceptions).
§ Question proposed, "That the words 'default in payment of sums in respect of the payment of which orders are in this Act authorized to be made,' stand part of the Clause."
THE ATTORNEY GENERALsaid, it would be convenient that he should now state the reasons which had induced him to make a change of some importance in the Bill. The principle of this Bill was the abolition of imprisonment for debt. By imprisonment for debt he meant the power which a creditor had to imprison a debtor for an unlimited time until the debt was paid, without reference to the question whether the debt was contracted by fraud, whether the debtor was or was not able to pay, or whether non-payment arose from misconduct or unavoidable circumstances. That power of imprisonment for debt he proposed to abolish; but, if so, it was only fair to give the creditor every reasonable facility for obtaining the property of his debtor, and for that purpose the Government believed they had made the Bankruptcy Law simpler, cheaper, and more stringent. But that law applied only to debtors of a certain amount. It would be obviously absurd to make a day-labourer a bankrupt; there must be some limit, and the limit which the House had adopted was that of £50; so that, where a man owed above £50, the Bankruptcy Law could be enforced against him, and he could be examined, under some circumstances, arrested, and his property taken from him and divided amongst his creditors. But then came the 422 question, what were they to do with the debtors below £50, and who were not subject to the Bankruptcy Law? Were they to be allowed to escape from the payment of their debts altogether? This raised the very difficult question of the County Court jurisdiction. The County Courts had not the power of imprisoning a debtor merely for non-payment of debt, but they could commit a debtor to prison, under two sets of circumstances which it was desirable to keep distinct. The first was where the debt was originally contracted by fraud, or incurred by the debtor knowing that he had not the means of payment; and, secondly, where the debtor could pay the debt, but wilfully refused to do so. The desirability of abolishing the power of imprisonment in County Courts had been pressed upon him in many quarters; but he did not feel himself justified in acceding to the request, although he had acceded to it so far as imprisonment under one set of provisions was concerned; and he did propose to abolish the County Court power where the debt had been originally contracted by fraud, believing that the acts of such debtors would be better dealt with by the general criminal law. Therefore, instead of leaving a fraudulent debtor subject to the County Court jurisdiction, he proposed to transfer him to the Criminal Courts, where the rich and poor would be dealt with on the same footing, and punished accordingly. But then came the other question of County Court imprisonment, where a man was able to pay his debt, but would not do so. He did not regard that imprisonment as a mere punishment for a past offence; but it was a process of imprisonment for the purpose of compelling the payment of a debt, and it was a process very analogous to the principle of the Bankruptcy Law. He had had conferences on the point with the County Court Judges, and he found that they were almost unanimous in favour of maintaining the power of imprisonment in the latter case, as they thought that the Courts could not be worked without it. The power, however, was exercised in comparatively few cases. He found, by a Return showing the proportion of debtors imprisoned to the number of plaints issued in the years 1864, 1865, 1866, and 1867 in all the County Courts of England, that the average for the 423 our years was 834,088 plaints entered, 93,383 judgment summonses, 26,833 warrants issued, and 7,202 debtors imprisoned, or one imprisonment to 104 plaints entered. Many men would not pay their debts until the order of committal was made out; and he had received representations not only from County Court Judges and the trading classes, setting forth that these debts would not be paid if this power were not continued, but also on behalf of the working classes themselves, stating that if it were abolished their credit would be gone, and credit to a poor man, let it be remembered, was almost a necessity of his existence. For these reasons he had come to the conclusion that this power of imprisonment in the one case he had mentioned must be maintained. Then came the question, if maintained in the County Courts, why should not the same power be extended to the Superior Courts in cases where the debt exceeded £50? And as the general feeling of the House appeared to be in favour of such extension, he was ready to amend the Bill in that sense. He therefore proposed that the Superior Judges should have the same power of committal as the County Court Judges—namely, for six weeks. He trusted that this proposition would meet with the approbation of the Committee, and he now moved to omit at the end of Clause 4 the words ''in the County Courts and other inferior Courts."
THE CHAIRMANintimated that a previous Amendment had been given notice of by the hon. Member for Glasgow (Mr. Anderson).
§ MR. ANDERSONsaid, he had given notice of an Amendment to leave out paragraph 6—
Default in payment of sums, in respect of the payment of which orders are in this Act authorized to be made in the County Courts and other inferior Courts.Having alluded to the expense incurred by the country in consequence of the present system of imprisonment for small sums ordered to be paid by the County Court, he remarked that the fear the working classes would be unable to get credit if the power of imprisonment were abolished was groundless, because they would continue to get credit on the only proper basis—that of good character; and the abolition would have the good effect of putting a stop to the tally system. But as the Attorney General had 424 consented to adopt the proposal of the hon. Member for Hull (Mr. Norwood), he would not move his Amendment.
§ MR. BRODRICKsaid, his experience had shown him that a very strong objection existed among the working classes against the abolition of imprisonment for debt, because the present state of the law was the only security a large proportion of the community was able to offer for credit. The position of the large and the small debtor was essentially different. The man who owed a large sum was almost always able to give security. The man who owed a small sum had nothing but his person to pledge. By taking away the power of imprisonment for debt a large portion of the community would be prevented from obtaining any advances at all. He hoped the Committee would pause before taking a step which, in the supposed interests of the working men, would inflict a considerable evil on that large class of the community.
§ MR. WESTstated that his position in Manchester obliged him to deal very largely with small-debt summonses, and his experience had led him to conclude that the sooner they were put an end to the better. In the first place, the cost to the public of maintaining prisoners and their families was very considerable; but besides that, the sacrifices which the law forced the working classes to make, in order to avoid committal, amounted to a very serious burden. It had been often stated that the County Court Judges were opposed to abolition of imprisonment for small debts, but the weight to be given to their objection was diminished by the consideration that they seemed to think that society only existed in order to maintain some work for them to do. Now, if the small-debt summonses were abolished there would be hardly any work for the County Court Judges, because as it was now they only sat on an average two days and a fraction of a day a week. He thought the argument with respect to credit had been put rather too strongly. It was said that these small debts ought to be regarded as debts of honour. He believed that to be the right view, and was fortified in that view by the opinion of Lord Abinger, who said a man of good character could always get credit; if his character was bad he did not deserve to have any, and it was better he should 425 not be trusted at all. He had great experience in these matters, and he could say that there was no part of the duty of the Judge in the Small Debts Court so painful or unsatisfactory as the decisions which he had to give in these cases. How could a County Court Judge give an opinion as to whether a working man would be able to pay or not? He admitted that there was a strong feeling throughout the country on the question, and that probably the country was not ripe for the abolition of imprisonment for debt altogether. He was glad that the Attorney General proposed to apply the same law to the rich and to the poor. The proposal of the hon. and learned Gentleman was, perhaps, the most satisfactory that could be made in the present state of public opinion, and under the circumstances he should give it his support, reserving to himself, on a future occasion, to move the total abolition of imprisonment for debt, when he should find the country in favour of it.
MR. HENLEYsaid, he was sorry to think that the Government were taking in this matter a decidedly retrograde step. In what was entitled a Bill for the Total Abolition of Imprisonment for Debt they were giving to the Judge an arbitrary power of imprisonment if he thought the debtors were able to pay. It was rather a fine distinction for the Attorney General to say that this was not imprisonment for debt. The injustice which had been going on for some years was never made more clear than by what was now attempted to be done. They could not justify a state of things by which a man who owed a debt below £50 was liable to imprisonment, while one who owed a large sum went free, and therefore it was now proposed to extend penal imprisonment—for penal imprisonment it was—to all persons. The Attorney General did not state in what condition in the prisons the new class of prisoners would be — whether they were to come into the same category as those whom the County Court Judges made prisoners. The Attorney General had justified his proposal by the opinions of the County Court Judges; but those who had lived some time in the world must remember when a man might be hanged for stealing a shilling's worth, and plenty of learned Judges gave it as their opinion that it would be impossible to say what might happen if 426 this penalty were taken away. And so also, when imprisonment on mesne process was taken away an injustice was got rid of, but now they were taking a backward step. It appeared from the last Return of judicial statistics that there were more than 8,000 cases of imprisonment under the County Court Acts, and he should like to ask how many there would be under the proposed new process. He had hoped that when they spoke of a Bill for the Abolition of Imprisonment for Debt that it would have been fairly carried out, and that the humble would have been exempted as well as the great; but, as he had said, they were retrograding—giving to the higher a power of appeal which was not secured to the humbler debtor. As to stopping credit, he did not believe that the abolition of imprisonment would have any such effect.
§ MR. D. DALRYMPLEsaid, that if imprisonment for small debts were abolished they would inevitably do away with the system of credit, without which, the poor man in periods of scarcity and distress would not be able to get on. He had experience of a working population which earned large wages for nine or ten months of the year, and were out of work for two or three; and were it not for the credit given to these poor people when out of employment their homes would inevitably be broken up and they would have to go to the workhouse. Instead, therefore, of having to maintain a certain number of debtors who would not pay, the country would be saddled with the expense of keeping a great number of people in the workhouses. On behalf of a considerable number of small shopkeepers in the city which he represented (Bath), he could state that they were adverse to the abolition of imprisonment for debt.
§ MR. G. GREGORYsaid, he thought that grave consequences had followed from the extent to which we had already gone in the abolition of imprisonment for debt. That could not be altered, but still graver consequences might follow if we were to go further in the same direction. He would therefore support the proposal of the Attorney General.
§ MR. JAMESsaid, if he understood the proposition of the Attorney General, it was this—to confine imprisonment for debt to the case of debtors who, having means to pay, refused to do so. Of late 427 years the current of our legislation had taken one direction—that of gradually depriving the honest creditor of his right and remedy. He had placed an Amendment on the Paper, by which he proposed that a man incurring a debt with the knowledge that he would be unable to meet it should be liable to imprisonment, and in support of this principle he could refer to the Bill now under discussion, because one of its clauses made this a criminal offence, with imprisonment for a term not exceeding one year. By adopting this course, however, you would take away from the creditor every opportunity of recovering his money, because he would have to incur all the expense of a criminal prosecution, and, if he abstained from going on with it in consideration of the payment of his debt, would lay himself open to a prosecution for compounding a misdemeanour; while if he failed in substantiating the charge, as he probably would, because the knowledge of a man's financial position could not well be obtained from anyone but the man himself, he would expose himself to an action for malicious prosecution.
§ MR. PEEKsaid, that a good deal had been said as to the poor man in reference to the question before them. He believed there was no real hardship in the law as it at present existed, and in support of this view referred to a Petition which he presented to the House some three weeks ago, in which 107 clerks, artizans, and others living at Reigate and in the neighbourhood objected to the Bill on the ground that the powers intrusted to the County Court Judges were not harsh towards the working classes, while their removal would prevent the working classes from obtaining credit when out of employment. He had ascertained that at Reigate, during three years, there had been only nine persons imprisoned by committal from the County Court; while at Dorking, from January, 1866, to December, 1868, out of 690 plaints there had been only twenty-three committals, and of these only six were actually imprisoned. He was glad that the Attorney General proposed to keep the law in its present state.
§ MR. JESSELsaid, that though he should vote for the proposition of the hon. and learned Gentleman, yet he confessed that for a long time his own opi- 428 nion had been in favour of abolishing imprisonment for debt; and, as a question of general policy, he believed that the majority of the people were prepared to support total abolition. He believed it was a mistake for people to imagine that with the removal of the power of commitment for debt the practice of giving credit would also cease. The same thing was said when imprisonment for mesne process was abolished, and he believed the objection now urged to be as much without foundation as it was then. As the Government, however, were very much better able to judge of the opinion of the country than he was, and as they did not feel themselves justified in entirely abolishing imprisonment for debt, he did not feel warranted in dividing the House on this point. The Bill proposed to punish a man because his friends could not, or would not, pay his debts, and to imprison him for an indefinite time. Perhaps, until it was possible to get the public mind to advance as far as to say that in no case should a man suffer penal imprisonment because he failed to pay a certain sum of money under a private contract with which the public had nothing to do, the proposition of the Attorney General was the best that could be adopted, and therefore he should not divide against it. He trusted, however, that at some not long distant period public opinion would be in favour of the abolition of imprisonment for debt altogether.
§ MR. GREENEsaid, that every one would be glad to see imprisonment for debt put an end to; but he thought that the Attorney General's Amendment was a proper one under the circumstances.
§ Amendment agreed to.
THE ATTORNEY GENERALmoved, at the end of clause to add—
Provided, That no person shall be imprisoned in any case excepted from the operation of this section for a longer period than one year.
§ Amendment agreed to.
§ MR. JAMESmoved, in page 2, after Clause 4, insert (Actions for debts of £50 in Superior Courts)—
Provided, That in any action brought in any of the Superior Courts at Westminster, where the sum recovered amounts to £50 or upwards in respect of any debt or liability incurred for or on account of any loan or advance of money, or for the price of goods sold and delivered, it shall be lawful for the plaintiff in such action to obtain and issue a summons from the Court in which the said 429 action shall be brought, calling upon the defendant to appear before a Judge of the said Superior Court, and to show cause why a writ of capias ad satisfaciendum should not issue against him; and if on the hearing of such summons it shall appear to such Judge, by examination on oath of the defendant or other oral or documentary evidence, that the defendant has the means of discharging that said debt or liability, and neglects so to do, or that the defendant has wilfully contracted the said debt or liability without having had at the time of so contracting it a reasonable expectation of being able to discharge the same, or that the defendant is wilfully evading service of the said summons, it shall be lawful for the said Judge to direct a writ or writs of capias ad satisfaciendum to issue against the said defendant; Provided always, That if the said defendant be dissatisfied with the decision of the said Judge, he may appeal against the same to the Court in which the said action was brought.He merely submitted the clause to the Committee to be dealt with as they should think fit.
THE ATTORNEY GENERALsaid, that the proposed clause would give a penal jurisdiction to the Superior Courts, and would be reviving in an important degree the principle of imprisonment for debt. Under these circumstances he trusted that the hon. and learned Member for Taunton would not press his Amendment.
§ MR. NORWOOD, though he agreed with the principle of the Amendment, hoped that, as the Attorney General had yielded several important points during the progress of the Bill, the hon. and learned Member would not press his Amendment.
§ MR. RUSSELL GURNEYsaid, that in the face of the concession that had been already made, it would be scarcely right to press the Amendment to a division, though, for his own part, he much sympathized with the view embodied in it.
§ Amendment, by leave, withdrawn.
§ Clause, as amended, agreed to.
§ Clause 5 (Saving of power of committal for small debts).
§
THE ATTORNEY GENERAL moved, in line 12, to leave out from "mentioned" to "provided," in line 25, and insert—
Any Court may commit to prison for a term not exceeding six weeks any person who makes default in payment of any sum due from him in pursuance of any order or judgment of that or any other competent Court.
§ MR. HENLEY, as a visiting justice, hoped that, at a future stage, the Attorney General would make it clear upon what conditions the persons to be committed under that new power would be in their prisons. The County Court debtors, when in prison, were placed under very stringent regulations, framed by the Secretary of State.
§ On Question, "That the Clause, as amended, stand part of the Bill,"
§ MR. M'MAHONmoved an Amendment by which a Judge of a County Court was prohibited from sending any debtor to prison in respect of any sum not exceeding 20s. exclusive of costs.
§ But it being now Seven of the clock—
§ House resumed.
§ Committee report Progress; to sit again upon Friday, at Two of the clock.