HC Deb 29 June 1869 vol 197 cc760-7

Bill, as amended, considered.

THE ATTORNEY GENERAL moved to insert, after Clause 17, new clauses.

(Application of Vexatious Indictments Act to offences under this Act.)

(Justice of the peace becoming bankrupt or arranging with creditors.)

Clauses ordered to be added to the Bill.

Clause 5 (Saving of power of committal for small debts).


moved to omit the first paragraph— Subject to the provisions hereinafter mentioned 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. It provided that the proof of the means of the person making default may be given in such manner as the Court thinks just. Now, that was a new paragraph, and was not in the Bill when it was originally drawn. His attention was called to it for the first time in the reprinted Bill last night. He submitted that this was a power which ought not to be given to any Judge, who might declare an affidavit sufficient, and such affidavit might be cooked up behind the back of the party immediately concerned. It was a power which was not conferred upon the Judge of any court of law, and, in his opinion, one that deeply affected the liberty of individuals. He begged to move that the paragraph be expunged.

Amendment proposed, in page 2, line 15, to leave out from the word "Subject," to the word "court," in line 18, both inclusive.—(Mr. Serjeant Simon.)


said, he had some reason to complain of the course pursued by the hon. and learned Serjeant. This proviso had not been introduced at the last moment into the Bill, but it had been discussed three several times when the measure was in Committee. Upon the first occasion when the House went into Committee it was fully discussed, and it was in deference to what he understood to be the general feeling of the Committee that he introduced this clause, which had been very carefully prepared. On the second day the Committee met the matter was also discussed, and the words to which the learned Serjeant took exception were adopted without objection. A third time the whole question was re-opened by the hon. and learned Member for New Ross (Mr. M'Mahon), the learned Serjeant was in the House, and had, or ought to have had, the words of the clause before him, and yet it was passed. The effect of the clause was to maintain to the County Court Judges the jurisdiction they at present possessed, so far as related to the imprisonment of a man who could pay his debts and would not; and it was provided that this jurisdiction should be extended to the Superior Courts. But, so far from a County Court Judge being enabled to exercise this jurisdiction as he pleased, the learned Serjeant would see, if he read the clause, that rules and regulations for the purpose of exercising this jurisdiction of the County Courts would be framed by three County Court Judges, to be selected by the Lord Chancellor, and the rules were to be approved by him; and as regarded the Superior Courts they were to be framed by the Lord Chancellor, assisted by the Judges of those Courts. The hon. and learned Serjeant, therefore, was wrong, not only in the whole of his facts, but also in his law.


strongly objected to the clause. It would be better for the country, as a matter of pecuniary arrangement, to pay every debt for which those poor creatures would be sent to prison, than to keep them there and incur all the cost of their maintenance. He should like to hear from the Attorney General how often a man might be imprisoned for a debt of 10s.


wished to ask if the rules were to apply to persons tried for the fraudulent contraction of debts for large amounts as well as to small sums incurred probably for temporary subsistence. If the rules were not to be analogous in the case of men who contracted debts to the amount of thousands and hundreds of thousands with those for them who contracted debts of a few shillings, great discontent would prevail. He was strongly in favour of the clause, but it ought to apply equally.


desired some information with reference to the manner in which those who had contracted debts by fraud were to be dealt with when they were imprisoned. There were no less than ninety-one debtors of this class at present in Lancaster Castle, and they were confined in a large yard, with nothing in the world to do. So heavily did the time hang on their hands that they were glad to do some trifling work by which they earned 1d. a day, while they were being maintained at an enormous expense by the country. He did not think that this was an advantageous state of things for either the coun- try, the creditors, or the debtors. If a man had committed fraud, he ought to be properly punished, and. not merely shut up with a number of others to pass his time in idleness.

THE SOLICTTOR GENERAL, in reply to the observations of the hon. Member for South-west Lancashire, stated that the debtors who were confined for wilfully neglecting to pay their debts were imprisoned as first-class misdemeanants. It was not quite correct to say that they were sent to prison for a punishment—they were sent there to compel them to pay debts which they were supposed to have it in their power to discharge. With regard to cases of commitment from the Superior Courts, the law in that respect remained unaltered. He entirely sympathized with the remarks of the hon. Members for North Warwickshire and for Sheffield (Mr. Newdegate and Mr. Hadfield) to the effect that persons who had contracted debts, whether large or small, by fraud, should be treated upon an equal footing; but they were inapplicable in the present instance, because all provisions relating to debts contracted by fraud had been struck out of the Bill. In reply to the question of the hon. Member for Sheffield, he had to state that the County Courts could, at present, commit only upon being satisfied that a person was contumaciously refusing to pay a debt which it was in his power to discharge. If the Government could have seen their way to carry this measure without this provision they would willingly have omitted it; but they had been informed upon sufficient authority that the County Court system as at present constituted could not be carried on without it.


objected to the power of imprisonment contained in the clause. A man was committed, and then re-committed, when the first committal had been the means of preventing him from earning any money.


was opposed to the clause. It was possible that a man who had not the means of paying might be committed under it.


said, that several defaults might be made in respect of the same debt, and in that case the County Court Judge had the power to commit for each default. A debtor was liable to imprisonment as often as it was sup- posed he had the means to pay, but refused to do so.

Question, "That the words proposed to be left out stand part of the Bill," put, and agreed to.


moved, to omit paragraph 4 of Clause 5— Any jurisdiction by this section given to the Superior Courts may be exercised by a Judge sitting in Chambers, or otherwise, in the prescribed manner, the effect of which, he said, would be that the Judge, on the hearing of a case, and as soon as he had given judgment, would be competent to commit a defendant at once to prison if he believed he had the means of payment.

Amendment proposed, in page 2, line 34, to leave out from the word "Any," to the word "manner," in line 36, both inclusive.—(Mr. Serjeant Simon.)


said, that the paragraph only retained a power to the County Court Judges which they already possessed.


said, he thought the clause as drawn turned on the question whether default had been made in pursuance of the order and judgment; but the paragraph to which objection was taken would give the Judge power then and there, at the time of hearing to imprison the party. That could not be intended, because it would be contrary to the first part of the clause.


said, he did not understand the paragraph in the same sense as the hon. and learned Serjeant. If, at the hearing of the cause, it should be shown to the satisfaction of the Judge that the party was able to pay the Judge would make an order for payment on a day to be named, and if he disregarded that order then he might be committed to prison.

Question, "That the words proposed to be left out stand part of the Bill," put, and agreed to.


said, that the object of the Amendment he was about to move was to spare the rate-payers the expense of maintaining these prisoners in gaol. He observed that they were not put to hard labour, and had very little inducement to exert themselves to get their term of imprisonment di- minished. Many of them who were poor men were as well off in prison as at home. He thought that when the creditor was able to do so he ought to bear the expense of putting his debtor in prison. On the other hand he was willing to let the expense fall on the rate-payer when the creditor was unable to bear it himself. He had drawn the clause with great care to avoid the infliction of hardship on the necessitous creditor. He thought his clause would meet the views of the County Court Judges, who, though anxious to preserve the power of imprisonment, wished to have their hands strengthened against the tallymen. The power of imprisonment was now reserved in one case only —that of a debtor who could pay and would not. 80 restricted it amounted simply to a mode of collecting debts from reluctant debtors. Now he put it to the Committee, as a proposition in political economy altogether beyond dispute, that it could not be for the benefit of the community that a trade should be carried on which could not bear its own expenses, and one of these was the collection of debts. If the tallyman had to bear the expense of imprisoning his debtors, he would alter his mode of dealing if he found the expense was eating up his profits. He would be more cautious in giving credit. He would be less ardent in pushing his trade. He would act in conformity with the public interest, because his private interest would be in conformity with the public interest. But as the law now stood he was enabled to throw the expense of collecting his debts on the public, and so carry on with profit to himself a trade which might in reality be a losing trade. He forced the rate-payers into an unnatural partnership with him, the conditions of which were that they should get none of the gains, but bear the larger share of the losses. It might be urged that the Attorney General merely left the law as it was. But this was not so—he had taken the law and re-modelled it. He had extended it to debts above £50, and he had taken it away where the debtor was unable to pay, although the debt had been fraudulently contracted. They must, therefore, consider it as a new law, which they were enacting for the first time, and should not send it forth with such an imperfection in it.

Amendment proposed, In page 2, line 43, after the word "person," to add the words "That, in every case in which such jurisdiction is exercised, the Court shall make an order on the creditor at whose suit any person is committed to prison, for payment into Court of such sum as it shall deem sufficient to pay the costs of committal and the maintenance of the person imprisoned during the terra of his imprisonment, unless it shall be of opinion that the creditor is not of sufficient ability, on account of poverty, to pay the whole or any part of such expenses, in which case it shall make an order for payment into Court of part of such expenses, or shall certify the inability of the creditor to pay any part of such expenses as the circumstances of the case may be; and such officer as the Court may designate shall inform himself, and his evidence shall be sufficient as to the proper amount of such expenses; and the treasurer of the Court shall be accountable to the clerk of the peace or town clerk, as the case may be, of the county or borough in which such person is imprisoned for such expenses when ordered to be paid into Court to the amount so ordered, and shall be accountable to the creditor for any sum which may remain after such accounting as aforesaid; and no order of committal shall be executed until payment into Court shall have been made of any money so ordered to be paid into Court." —(Mr. Stapleton.)


said, he could hardly suppose that the hon. Gentleman was serious in proposing that the creditor should keep the debtor in prison at his own expense. The object of imprisonment was to enable poor creditors to recover their debts. If a labourer earning 15s. a week imprisoned his master for refusing to pay the wages when he had the means to do so, then the labourer was to be called on to allot a certain portion of his weekly earnings for the maintenance of his master in prison. It would be fining a poor man for no fault of his own. It was impossible for him to entertain such an Amendment.

Question, "That those words be there added," put, and negatived.


, adverting to Clause 11, said, that the effect of that provision was that if a person did not do certain stated things he should be deemed guilty of misdemeanour, and be liable to two years' imprisonment with hard labour, unless the jury were satisfied that he did not abstain from doing those things with intent to defraud. This introduced a new principle in criminal law, for it had hitherto been held that the accused was to be deemed innocent until found guilty, and that where doubt existed the benefit of that doubt was to be given in his favour. It might be said the objection was a lawyer's objection; but the phraseology of the clause involved a substantial question, and reversed the ordinary rule of our criminal jurisprudence—that the accused should have the benefit of a doubt. He moved the omission of certain words and the addition of others.

Amendment proposed, in page 4, line 23, after the word "If," to insert the word "with intent to defraud."—(Mr. Serjeant Simon.)


observed that the string of Amendments of which his hon. and learned Friend had given notice were Amendments of alterations introduced by him, and if the words proposed to be inserted by the hon. and learned Sergeant should be preferred by the Attorney General, he should of course have no objection to his phraseology being corrected. It was, however, rather a lawyer's than a merchant's question.


denied that the clause threw the onus probandi on the wrong party. The language of the clause was not the best, but the words of the Amendment were less suitable for the purpose for which they were intended. The criticism of the hon. and learned Serjeant was only a verbal one.


said, he hoped the hon. and learned Serjeant's Amendment would not be adopted.


said, the words which had been inserted were rather in favour of the accused. He thought it would be better to retain them.

Question, "That those words be there inserted," put, and negatived.

An Amendment made.

Bill to be read the third time upon Thursday.