HC Deb 29 March 1882 vol 268 cc241-56

Order for Second Beading read.


, in moving that the Bill be now read a second time, said, he had introduced in 1880 a Bill, which was passed in that year, and which abolished imprisonment in Scotland in cases of ordinary debts. He had the honour of presiding over the Select Committee which sat to consider the subject at that time. In the course of their investigations, the Committee received a considerable amount of evidence regarding civil imprisonment on other grounds than for ordinary debt; but they passed a Resolution declaring it to be inexpedient in that particular Bill to deal with those other matters. Since the passing of that Act he had had his attention drawn to the operation of the law in the excepted cases; and he would lay before the House what he thought was a case, if not for the passing of this Bill exactly as it stood, at least for a Select Committee to consider the matter with a view to reform. In the evidence which came before the Committee over which he presided, it transpired that very long periods of civil imprisonment were liable to be in- curred; and in order to provide against such cruel prolongation of imprisonment in the excepted cases, a clause was inserted in the Bill, requiring all prisoners for debt to have their cases brought before the Sheriff once a month, and limiting the amount of imprisonment to one year. These provisions had turned out a dead letter. Although on one warrant there could not be more than one year's imprisonment, another warrant could be issued for another instalment due, which involved further imprisonment. That was a point which he hoped the House would carefully consider. In order to show the difference between the old and new systems, he last Session moved for a Return of the number of civil prisoners in the various prisons in Scotland, and various particulars concerning them. He found by that Return that the Act of 1880 had had the effect of reducing the number of civil prisoners in Scotch gaols, in round numbers, by two-thirds; and that the large majority of prisoners still remaining were cases of alimentary debts—that was, orders upon putative fathers for the maintenance of illegitimate children. So much was that the case, that out of a total of 47 prisoners in Scotch prisons on the 30th of March and of June last, no fewer than 38 were alimentary cases, where persons had been imprisoned for the support of illegitimate children, two for the support of wives, and four as being in meditatione fœgu, two for nonpayment of rates, and one ad factam prestandam. He knew that the question of doing anything for the prisoners in gaol for the non-payment of alimentary debts was unsavoury; and he should certainly not have taken it in hand had it not been for the manner in which he was connected with the Scotch Act of 1880. His connection with that Act, however, had brought under his attention a state of things which placed him in this position—that, however unpleasant and however unsavoury it might be, he could not conscientiously sit still without doing something on his part to remedy a state of things which urgently required reform. Previous reforms had been effected in the Scotch law regarding the treatment of civil prisoners; but in these reforms the persons imprisoned for alimentary debts had been overlooked. In 1875, imprisonment for debt in Scotland was abolished for all debts under £8 6s. 8d; but an exception was made against alimentary debts. A few years ago, his hon. Colleague (Mr. Anderson) passed a Bill, the effect of which was to abolish the arrestment of wages when they did not exceed £1 per week. Again, in that Bill, an exception was made against alimentary debts; and, lastly, the Debtors Act of 1880 made a similar exception. On the other hand, during this whole period, Scotch Judges had been pushing legal presumptions against the unfortunate alimentary debtor with more and more severity, until now they had arrived at such a position as he did not hesitate to say was a disgrace to the Scotch law. Now, he had not the slightest desire to deprive the mothers in any such case of any legitimate remedy which could be placed in their hands; but for alimentary debts, from all he could learn, civil prosecution was no remedy. As the law at present stood, if a man had any means, by the process known as cessio he could be deprived of his means by his creditor. Amongst the witnesses examined by the Select Committee was a local Judge of great experience—Sheriff Clark of Glasgow—and he said that he never knew a case of alimentary debt in which imprisonment was resorted to in which it was effectual, except so far as it had been the means of inducing the friends of the prisoner to advance the funds required to obtain his liberation. He (Dr. Cameron) knew it had been argued that imprisonment for such debt was a fitting punishment for immorality. Now, it was no punishment for immorality. The rich seducer, who was by far the most immoral, was not punished at all, but, of course, paid the aliment, and took good care that the case never came before the Sheriff Court. The present law afforded no protection to the poor, because a woman could not imprison a man for alimentary debt unless she was in a position to afford him aliment. For, as a matter of fact, if a woman was awarded aliment of 2s. 6d. a week, unless she could pay 3s. 6d. to 6s. a week she could not keep her debtor in prison. The absurdity of such a law was apparent. The process of cession put into the hands of the creditor any means of which the debtor was possessed; and the creditor in alimentary cases was, as he had explained, entitled to arrest all the wages. But as long as the debtor was imprisoned his goods could not be taken to be applied to the payment of debts. During his incarceration the man could earn no wages, so that the woman was not only obliged to pay this 3s. 6d. or 6s. a week; but if he had effects they could not be seized, and though he was capable of earning wages no wages could be earned. If he were asked what substitute he proposed to provide for what he took away, he would answer that none was necessary. The Act of 1880 placed very summary powers in the hands of the creditors where there were effects; and where there were no effects, imprisonment could not enforce payment. If a prisoner were to attempt to fly he could be seized and imprisoned on a fœgu warrant; and if he allowed his child to come upon the parish the parochial authorities would be entitled to proceed against him criminally as a rogue and vagabond. It must not be forgotten that there was another side of the question. The state of the affiliation law in Scotland was such that if a young man of the working classes courting a girl of the working classes discovered that she had been unfaithful to him and broke off the engagement, if that girl chose to swear that that man was the father of her child, hardly anything in the world—so he was informed—could save him from having the parentage established upon him. Under the English law an investigation took place in the absence of the putative father; but in Scotland a decree might be given in absence for inlying expenses and the first quarter's aliment, which brought the total up to £12 or £13, and unless the debtor paid that he might be imprisoned. If he chose to contest the case the expenses would be £20 or £30, and if he appealed they might amount to twice as much. He (Dr. Cameron) contended that though his friends through his imprisonment might be induced to pay the debt, that was not a healthy thing. There was no reason why the struggling mother of a man who had lived loosely should be compelled to pay his debts, and in many cases the power of imprisonment was used as a compulsion to induce the reputed father to marry the girl. If a man had no effects it was formerly held that it was absurd to detain him at the cost of the woman, who in that case must aliment him. This rule had been abolished, and a rule adopted in its place that the debtor should not be released from prison, and should not have the benefit of cessio, until he had given security for the debt. Civil prisoners were formerly careless, good-natured fellows. They clubbed together, and if one had no money he got assistance from his fellow-prisoners. But now a man might find himself in prison alone, absolutely without funds, in a very unpleasant position.

Message to attend the Lords Commissioners;—

The House went;—and being returned;—

Mr. Speaker reported the Royal Assent to three Bills.


said, that when interrupted he was directing attention to the case of the civil debtors in Scotland, whose condition had been growing worse and worse in recent years. He had mentioned that they were deprived of the rights they formerly possessed of obtaining liberation in cases where they had evidently no goods like other debtors; and he had mentioned that in consequence of the general abolition of imprisonment considerable hardship had been entailed upon them. The prisoners had been compelled by circumstances to club together in numbers in order to live cheaply; and when one of their number was without funds he received assistance from the others. Recently they had another grievance to complain of. Since the passing of the Prisons Act, a few years ago, it had seemed good to the Prisons Commissioners to charge these unfortunate prisoners 1d. a-day for the use of fire. Now, as the prisoners' allowances, in certain cases, did not exceed 4d. per day, and in the great majority of cases did not exceed 6d. per day, this docking off 1d. per day left them in such a position that they were certainly not likely to get fat. Perhaps the best way of showing the House the state of the law in Scotland would be to submit a few practical examples of cases which had absolutely occurred. The first case was that of a man named Walker, imprisoned in Ayr—and he might mention, in passing, that for some reason the county of Ayr seemed to be the great centre of these eases. Perhaps the magistrates in Ayrshire had some peculiar ideas on the subject; but, at any rate, there were more cases of imprisonment for alimentary debts in Ayrshire than in any other county. One of the men imprisoned there for 19 months was named William Walker. Now, he did not want to say a word in Mr. Walker's defence; he knew little about him, and, from anything he could learn, he was not a man whose habits and peculiarities were calculated to excite their sympathy. But his case spoke for itself. He was arrested on Saturday, August 21, 1880, and when apprehended he had a farthing in his pocket. On the same day he applied to the town clerk for aliment, as he had nothing to support himself. On the Sunday, Monday, and Tuesday following, he tasted nothing. On Wednesday an acquaintance called at the prison, and when going away left him 4s. The town clerk called on him towards the end of the week with a petition to the magistrate for aliment. The petition was signed by Walker. The town clerk informed Walker he would require to pay 7s. fees before any aliment could be granted. He was not able to pay the fees, and, consequently, he received no aliment until the beginning of October; and he would not have got it even then had he not authorized the gaoler to keep the fees off the first of the aliment out of his allowance. The allowance was 7d. with 1d. deducted for the use of the fire. Before receiving the aliment he managed to live on a pittance received from a poor sister, who was the only support of his aged mother, and whose wages in the winter amounted to only 5s. a-week. Although fees had been twice abolished by Act of Parliament the practice still existed. Mr. Walker had anticipated that, under the Debtors Act of 1880, he would be entitled to release in the year 1881; but just as he was expecting to be released he was served with another warrant, and laid by the heels for another 12 months. He wrote to the Lord President of the Court of Session, who directed the case to be taken up by the law agent of the poor; and, in the Outer House, Lord M'Laren, who was Lord Advocate when the Bill passed, held that the clear intention of the Legislature was that imprisonment in such cases were to be limited to one year, and that that intention would be defeated by the issue of new warrants, under which, as he pointed out, a debtor might be kept in gaol, when the payments were to he made annually, for 10 years, and in cases where the money was to be paid in quarterly instalments, for 40 years. The case was carried to the Inner House—a somewhat expensive luxury, as an appeal costs money—and it was there held that Lord M'Laren was mistaken. They admitted that a man imprisoned in this manner might be detained for life; but in that case they said the remedy for a prisoner, if he was an honest debtor, was to sue out for cession—that was to say, to apply for liberation on making a declaration that he had handed over all his goods. This case was brought to his notice, and he (Dr. Cameron) instructed his agent to take up Walker's case, and to take what the Lord President of the Court of Session said was the true way to obtain liberation. Walker, accordingly, applied to the Sheriff Court in Ayr for cession. His agent cited the old law on the subject, under which debtors were entitled to liberation on giving up all their goods; but the Sheriff intimated that that was not the law nowadays. Walker's aliment was 4s. 1d. per week, and his agent pointed out the folly on the part of the mother of the child of paying this allowance, while the aliment she was entitled to for her child was only 3s. 1d. The Sheriff refused the cessio, and said he had no sympathy with the prisoner, even should he be kept in prison all his life for not attempting to pay his debts. Walker offered to pay one-sixth of his wages, but he was asked for security; and as he failed to find security his offer was not accepted. An appeal was made to the Sheriff Principal, who confirmed the decision, and said he could not understand why the man's relatives would not become security. It might be a very inexplicable thing to a Judge; but the man's relatives knew that if, through sickness, Walker was unable to fulfil his obligations they might be called upon themselves to pay, or be sent to prison in default. At any rate, the Sheriff allowed Walker a fortnight to look for security; but he could not get any, and was liable to be sent back to prison whenever his creditor thought tit. He (Dr. Cameron) wanted to test if that was the law, and he instructed his agent to try the point in a second case. In May last another man, a travelling draper, was imprisoned in Ayr on a decree of aliment on the 12th of that month. He received a subsistence allowance of 6d. per day. He had a debt of £100 with a merchant. The merchant joined the prisoner in applying for a sequestration; but the man was still kept in prison. Lord Fraser refused to let him out. He offered to pay £1 a month towards aliment; but he could not find security, and that offer was refused. He was a bankrupt; every farthing was in the hands of his trustees. He (Dr. Cameron) accordingly instructed his agent to apply for a cessio for him. The Sheriff Substitute dismissed the application. If the man could not give security he must stay in prison. The Sheriff Principal, to whom the case was appealed by him (Dr. Cameron), confirmed the decision, and in a manner which was rather amusing. He was under the impression that the prisoner himself was paying the expenses of the application, instead of giving his money to the mother of the child of which he was the putative father, and this roused the indignation of the Sheriff Principal. Again, a married man in Glasgow had an action brought against him by the mother of twins. He protested he was innocent, and would not pay the aliment awarded, and was sent to prison. It was alleged that he was the proprietor of a shop and able to aliment himself, and the result was that he was refused aliment. On the other hand, his wife, naturally annoyed, refused to aliment him; and as the man was without support altogether, the gaoler had ultimately to aliment him, for fear of being held responsible for his death. Frank Cosgrove, now in prison at Edinburgh, was alleged to be the father of a child born in May, 1880. He went to Spain on the 15th of November, 1880. An action was raised against him in his absence, and when he returned he was put into prison. He received an allowance of 6s. per week. The aliment he should have paid for the child was 2s. 9d.; so that, for the sake of receiving this 2s. 9d. a week, the mother of the child was actually contributing 6s. per week. When the case was brought into Court, the amount due, including expenses, was put down at £12. He had not £ 12, and could not get security; so still remained in prison. Another man was imprisoned in respect of a child born when he was 15 years old. He got out of work, became unable to continue paying aliment, and was put in prison. He contended that if a debtor was in prison he could not be reached by cessio. If the woman was poor she could not aliment him and keep him in prison; and therefore the law, as it presently stood, was no remedy for the poor woman. If the woman had friends who were rich enough to pay 3s. 6d. a week for the purpose of keeping a man in prison, and the prisoner had no friends to become security for him, he might be kept in prison his whole life, and be kept there, not because of any immoral act, not because he was unwilling to pay, but simply because he had no friends and could not find security. Now, it had been said if he took away, as he proposed, the power of imprisonment in such cases, he would strike a blow at Parochial Boards. He denied that altogether. As he had said, parochial authorities could prosecute a father as a rogue and a vagabond for neglecting his child, and punish him with a definite amount of hard labour as a criminal. He had nothing to say against such a punishment as that. What he objected to was the indefinite imprisonment at the hands of an irresponsible party actuated by vindictive motives, whose character, by the very fact of her position, was not of the best. He wished to abolish this sort of imprisonment altogether. The details could be considered by a Select Committee. The next question dealt with in the Bill was that of rates. He proposed to limit the imprisonment to one month. It might be necessary to have a compulsitor; but that compulsitor should be reasonably equivalent for any rates that could be left unpaid by persons whose effects were not more than sufficient to cover the hypothec. The Act of 1880 modified the law as to fugœ but these warrants were of little or no use now for their purpose. He proposed to modify it, so at once to mitigate its security and restore its usefulness. He also proposed to abolish the Law of Lawburrows, which was an utterly effete process of Scotch law, which was not needed nowadays, but which had been grossly abused, and which consisted in allowing any person who had a grudge against any other person, and who chose to go before a magistrate and swear that he was in fear of the action of another person, to obtain a warrant against that person, who, if he did not within 48 hours produce security against any breach of the peace, would be sent to prison. In such a case a person might be kept in prison for years. Sheriff Barclay was the greatest authority in Scotland on this subject; and in a paper which he read at the Social Science Congress at Aberdeen he expressed a decided opinion that something must be done by legislation to prevent the iniquitous effects of this system. He mentioned the case of a woman who had been kept in prison for five years under Lawburrows until she became insane. No proof was required of reasonable grounds for the fear entertained. The only means of checkmating the operation of the law was for the accused to make a similar complaint against the accuser. In Sheriff Barclay's opinion the law was a blot on the Statute Book, and the sooner it was wiped out the better. He (Dr. Cameron) proposed no substitute, because by the law of Scotland it was a crime to threaten, and he did not think any additional powers were required by the authorities. Another change which his Bill contemplated related to the law of imprisonment ad factam prestandam. If a man was ordered to produce or sign a certain document, and refused to do so, he was committed to prison for contempt as it was called in England—ad factam prestandam, as it was called in Scotland. He proposed that where a man refused to sign a document, the Court should have power to order the Clerk of Court to sign it, and that the signature should be held valid for all legal purposes. These were the details of his Bill; but as it dealt with complicated and technical matters, he was not wedded to them. He thought he had shown to the House that there was need for reform, and that he had made out a distinct case for reading the Bill a second time. If that were done, he should propose the reference of the measure to a Select Committee. In conclusion, he had to thank the House for the patient and attentive hearing which it had so kindly given him.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Dr. Cameron.)


, after expressing regret for the absence of Scottish Members who sat on his (the Conservative) side of the House, admitted that the hon. Member for Glasgow had shown considerable grounds for an alteration of the law—perhaps not to the extent he proposed; but, at all events, for a modification of the existing law. It was his intention on reading the Bill to have moved its rejection; because, while it proposed to remedy certain existing abuses, it did not seem to him to afford any adequate safeguard against other abuses. He was a Member of the Committee two years ago, presided over by the hon. Member for Glasgow, and the question of imprisonment for alimentary debts was considered. That Committee, by 8 votes to 3, resolved to retain the power of imprisonment for such debts.


The Committee resolved that it was not expedient to abolish the power of imprisonment in the Bill which was then before them.


said, that that was no doubt so; but, at the same time, his recollection of what took place was that the sense of the Committee was decidedly against any alteration of the power of imprisonment for alimentary debts. He quite admitted, however, that the hon. Member for Glasgow had made out a very strong case; and he would be able to agree to the second reading of the Bill on the condition, which he understood would be accepted by the Government, that it would be referred to a Select Committee. He therefore withdrew his opposition to the Bill.


said, he was glad to find that there was no opposition to the second reading, on the understanding that the Bill was to be referred to a Select Committee. He confessed that but for that assurance, he should have found some difficulty in agreeing to the second reading. It was true that almost all the questions—there was scarcely an exception—brought forward in the present Bill were before a Select Committee only two years ago. That Committee deliberately considered every point but one that was embraced in the present Bill. Still, there were differences of opinion in that Committee, and especially upon the point of aliment for the affiliation of natural children, and he thought a strong case had been stated by his hon. Friend the Member for Glasgow on that point. In the appointment of a Committee to consider abuses in the law of Scotland imprisonment for aliment must deserve consideration. It would not have escaped the observation of the House that almost the whole statements and arguments of his hon. Friend were confined to arguments for the affiliation of illegitimate children. He proposed, however, to make the Bill go further than that. Ho proposed to repeal the imprisonment for aliment in all cases, which included also cases of aliment for which judgment was passed, against husbands for aliment to their wives and to their lawful children. That would deserve consideration. He did not know either that the hon. Member had made out a sufficient case with regard to other cases and matters included in the Bill. Full time and full opportunity would, no doubt, be afforded to the trading, commercial, and legal bodies in Scotland to consider the Bill, which was one in which he knew they felt considerable interest. It also deserved consideration on the part of the hon. Member, whether some information should not be obtained by the Committee in regard to the system of imprisonment for debt in England. That question was attracting a good deal of interest, and he saw there was set down for to-day a Bill dealing with the subject. It would deserve consideration by this Committee whether the practice of the law in England was not a matter which might require attention when considering civil imprisonment in Scotland. With these remarks he agreed to the second reading, on the understanding that the Bill was referred to a Select Committee.


said, he should have had considerable hesitation in consenting to the second reading unless the Bill were to be referred to a Select Committee. The hon. Member for Glasgow had made out a strong case in favour of considerable changes in the law. At the same time, the questions with which this Bill dealt were numerous and important. Important legal questions were dealt with, and it was necessary that they should be thoroughly considered. He agreed with the hon. Member for Aberdeen (Dr. Webster) that it was to be hoped that time would be given to hear the opinion of traders and legal gentlemen in Scot- land who were in a position to judge of the necessities of the case. His objection to proceeding with the Bill now would have been that it was only distributed on Thursday last, so that there had been no opportunity afforded those in Scotland who were competent to do so to give an opinion on its merits. He had every confidence that, with the aid of a Select Committee, considerable improvements would be introduced in the law of imprisonment, and on that ground he agreed to the second reading.


said, he was glad Her Majesty's Government intended to agree to the second reading of this Bill. No doubt some details of the Bill would require to be looked carefully into, and perhaps altered; but in Committee any changes for the better that were desirable would be made. The principal reform which the Bill proposed to deal with was the abolition of imprisonment for debts in alimentary eases. He was one of the Members of the Select Committee which, two years ago, sat on the abolition of debt in Scotland. He remembered very well the question of imprisonment in alimentary eases being before them, and the hon. Member for Wigtonshire (Sir Herbert Maxwell) had called attention to the fact that the Committee, by a majority, decided to introduce into their Report a recommendation that imprisonment for alimentary debts should not be exempted from the Bill. He (Mr. Grant) happened to have been one of the minority who objected to that; and his reasons were that he thought ample evidence had been placed before the Committee to the effect that no good whatever was done by imprisonment for neglect to pay aliment, especially in the case of illegitimate children. It was shown to them very clearly by the hon. Member for Glasgow that no good was done by such imprisonment. In the first place, no doubt the majority of the cases were due to the vindictiveness of the woman, and not to any real desire on her part to recover the money due as aliment. In many other cases, the imprisonment was resorted to in order to force the friends of the imprisoned person to pay the money; and that, of course, was not a legitimate object of imprisonment, and ought not to be encouraged. Then they had to consider that the men so imprisoned had usually no estate or property out of which they could pay the aliment, or, if they had, it might be taken from them by the ordinary diligence of the law. Imprisonment did not oblige them to give up their property; and, on the other hand, it deprived them of the means of earning wages or a salary out of which they might otherwise be able to pay the aliment demanded of them. On these grounds, he thought, in the case of alimentary debts, a very good case had been made out for the abolition of imprisonment. The Select Committee decided on the general principle that it was desirable to abolish imprisonment for debt. And now he thought that the feeling of the House would be in favour of the principle being extended to those few remaining cases which were exempted in the Bill two years ago.


wished to suggest, on the part of the Government, that the Bill should be read a second time, upon the understanding that by agreeing to that course the House was not assenting to the principle of total abolition of imprisonment for alimentary debts; but, on the contrary, that the Bill should be sent before a Select Committee, and that it should be entirely open to that Committee, or to the House upon its Report, to consider that matter. There were various points in the Bill as to which he should suppose there would be a very general assent—various improvements upon some obscure and technical legal proceedings, which would be quite inappropriate for being discussed in the House, but which were well deserving of consideration in the Committee. But the main principle of the Bill was that imprisonment for alimentary debts should be abolished. While he was perfectly alive to the importance of much that had been urged on that point, and had, like his hon. Friend the Member for Glasgow, had occasion to become acquainted with cases of great hardship in the administration of the existing law, he should not, as at present advised, feel disposed to assent to the total abolition of imprisonment in cases of that particular kind. He thought one matter well deserving of the consideration of the Committee would be, whether somewhat of a middle course between indefinite imprisonment—imprisonment that might practically become perpetual—and total abolition might not be adopted. He found an ex- ample of such a course in the clause of the present Bill providing for imprisonment for four weeks for nonpayment of rates, and it might very well be considered whether some similar provision might not be made for the case of alimentary debts. He was afraid it was true there were persons who incurred the liability for the aliment of illegitimate children who had not, perhaps, much property, but who, from some source or another, found means to pay their other debts, and whom they could not reach, to make them fulfil their obligations without some such compulsitor as imprisonment. But it might very well be that by an imprisonment, either limited in duration, proceeding upon the order of a Judge, not upon the option of the pursuer in the action, they might get rid of the evils of almost perpetual imprisonment, and, at the same time, preserve the compulsitor, which might be useful, and almost necessary. He did not propose to argue out the question now; but merely indicated that in assenting to the course of the Bill being read a second time he desired that all these questions should be kept perfectly open; and they were very much more appropriate for being discussed in the Committee than in the House.


said, he was very glad to hear the hon. and learned Lord Advocate put in his caution; because if they were to assent to the principle that imprisonment was to be absolutely abolished, he thought the poor women, who were the chief sufferers in the cases alluded to, might very often not get the remedy they were entitled to, and some screw was necessary in order to protect their interests. He asked the Home Secretary whether he had looked at the Bill carefully, so as to see whether it affected the law of England?


said, he was assured by his hon. and learned Friend the Lord Advocate that the Bill was entirely confined to Scotland—not that he himself desired to express any opinion adversely to the diminution, to a great extent, of imprisonment for debts in England.


said, that what he wished to be assured upon was, that if they passed this Bill for Scotland it would not be looked upon as an argument in any way for a similar measure for England.


said, that a measure for a particular country did not advance argument in respect of applying it to another country.


assured the right hon. Gentleman that the law of Scotland was perfectly different in respect of this subject from that of England; and the proposed reform of the law of Scotland would not in any way affect the law of England.

Question put, and agreed to.

Bill read a second time, and committed to a Select Committee.