HL Deb 14 May 1806 vol 7 cc146-58
Lord Holland

the order of the day for their lordships going into a committee of the whole house on this bill. On the order being read,

Lord Ellenborough

rose and said, that, consistently with his own conviction of the mischievous consequences of such acts, he could not suffer the present bill to go into a committee, without suggesting some observations by the way of objection to the measure. It was with reluctance that he opposed any measure, apparently founded on principles of humanity; but, in considering the general interests of society, and particularly in this commercial country, and viewing impartially the claims of creditor as well as debtor, a sense of duty operated, in this instance, in a superior degree upon his mind. It was incredible how injurious the frequent repetition of Insolvent acts was to the course of fair trade. The professed principle upon which the bill, in the first instance, proceeded, was highly objectionable, namely, that the gaols were overloaded with prisoners. It was his opinion, that persons threw themselves into prison in order to take the benefit of an insolvent act; and, therefore, that such an act, in relieving such a description of persons, produced great injustice. With a view of accurately ascertaining this, he had, some time since, moved for an account of such persons as had been committed to prison previous to and since the first day of Michaelmas term last. From the returns which had been made, in pursuance of his motion, and, which were now lying upon their lordships' table, it appeared; that, out of 204 persons confined in Newgate, 127 had been committed since the first day of Michaelmas term: in the prison of Ludgate, out of 23 persons, 16 had been committed during the same period: in the Poultry Compter were 31, of whom 20 were in the same predicament: in Giltspur-street Compter, out of 42, 25 had been committed since that time: in the Fleet, where the residence was more convenient and where many may he said to be domiciliated, there were 286, out of which 133 had gone in since Michaelmas term; and, in the King's Bench, ware 608, out of whom 267 had thrown themselves in since the period he had mentioned. He must again impress upon their lordships the increased frequency of such acts in late years. In the reign of queen Anne, there were only two Insolvent acts passed; and the condition was, that the persons who were discharged by them should enter into her majesty's service. In the general view of the case, their lordships would have seriously to consider the situation of the creditors. The injurious result which must ensue to them from such a measure as the present, would have the effect of placing many of them in the situation of their present debtors. It was not only the creditor who was injured, but even the debtor himself, by the natural consequences of frequent enactments of this kind, as leading him into a habit of contracting debts which otherwise he would avoid. While he thus expressed his sentiments, he must beg leave to assure the house, that he was convinced that the noble lord who proposed the present bill was actuated by the most honourable and humane motives.

The Duke of Norfolk

said that he was equally an enemy to the whole code of laws relative to imprisonment for debts, and to the frequency of these acts; but, he still contended for the propriety of the bill going into a committee. There were many creditors who gave credit with such a degree of facility, as to deserve suffering, rather than commiseration. That numbers of those who had petitioned might have thrown themselves into prison, may be true; but then it was as certain, that many of them had been thrown in by their creditors: their situation should, therefore, be discriminated from that of the fraudulent debtors. At all events, he would recommend to the house to go into a committee, where provisions might be added to satisfy the objections of the lords, and where a clause might be introduced, if their lordships thought necessary, making the condition of the discharge an entrance into his majesty's land or sea forces.

Lord Holland

called the attention of their lordships to the conversation which had taken place on the introduction of some petitions by him: he had then considered it as the opinion of their lordships, at least of some of the most distinguished members of the house, that some bill of temporary relief should be immediately introduced; the public exigencies preventing a revision of the whole code between debtor and creditor. His noble friend below him (lord Moira), who, much to his honour, had so frequently come forward on occasions of the kind, had stated that, from the pressure of his official avocations, he could not, with propriety, undertake to bring forward, this session, any specific measure tending to an amelioration of those laws, the severity of which were, by the most eminent characters, almost universally admitted; but, that as he conceived that the sufferings of the unfortunate, imprisoned debtors should not be prolonged, he would give his support to any act of temporary relief introduced in the interval. Under these impressions, he had the honour of submitting the present bill to their lordships' consideration. This bill he had framed in the most guarded manner, for the specific purpose of precluding the slightest opposition. It was drawn up according to preceding bills generally; but care was taken that no novel proposition should obtain in it, especially in favour of the debtor. Indeed, he was free to confess, that it was far from answering all those purposes which might be expected even from a limited measure of this kind, and was, by no means, as comprehensive as the indulgence of his own feelings and opinions on the subject would have induced him to have brought forward. He was, therefore, not a little surprised, to find petitions presented to their lordships to prevent its adoption. It was his wish, as well as that of the learned and noble lord (Ellenborough), to look to the interest of the creditor as well as to the interest of the debtor. In cases of this kind it was the duty of their lordships to consider the situation of both. In his mind every consideration of humanity demanded some such measure as the present. Relative to the increased frequency of such acts, he must affirm, that the noble and learned lord (Ellenborough) had assumed, as a fact, what the journals of the house would prove to be incorrect. There, he would find that, in the early part of the present reign they were much more frequent than they had been of later years. In the years 1764, 66, 68, 1772, 74, 76, 78, 1781, acts were passed for the relief of insolvent debtors; they were then not only more frequent, but more extensive in their general provisions, and embraced a much greater sum; and not until the last act, was the clause (a clause, if he recollected right, proposed by the noble and learned lord opposite (Eldon), making the future property of the debtor liable) ever introduced. Much stress had been laid upon the fraudulency of many persons, who perhaps may be released by the provisions of this act; but the debtor who was not fraudulent, but unfortunate, appeared to have been wholly left out of sight. The house should consider, that this person was placed in a situation suffering innumerable hardships, without the possibility of exerting himself to provide for the liquidation of his lawful debts. In answer to the alledged increased frequency of these acts, he had to impress on their lordships' recollection, that for debtors of a different description, there was a code of laws, of a very different nature, not only perpetual, but much more extensive in their operation than any temporary act of this kind ever professed to be: he meant that code applying to the case of merchants, traders, &c. commonly called the Bankrupt Laws. Those laws afforded to a man the means of declaring himself in solvent; by which, upon paying a certain poundage upon his debts, he was relieved from all further molestation, and his future property rendered clearly and exclusively his own. In this point of view, it was far from his intention to censure the code of laws to which he had alluded; he most sincerely believed, that they contributed more effectually to preserve credit, as having a directly contrary tendency to those laws which regarded the concerns of inferior debtors. All that this bill claimed for the unfortunate debtors, for whose relief it was intended, was to place them upon the same level as bankrupts; but with this material difference, that where the future industry of bankrupts was not fettered, the future property of the insolvent was expressly made liable. Thus, under every view of the case, the condition of the creditor was ameliorated, as in place of the imprisonment of the person, which trial had proved nugatory, every fair, just, and legitimate security was granted him by the provisions of the bill he had introduced. With respect to the idea that the operation of this bill would drive the creditor into the prison which the debtor now occupied, he must contend, that such an argument, if worth anything, cut both ways, and must eventually prove more favourable to the bill than it possibly could operate against it. But how stood the case as to the creditor? The continuance of the body of his debtor in prison will neither pay the debt nor satisfy the demand. It will not increase the resources of the creditor to meet any impending embarrassment. No notion of benefit can possibly arise from the detention. The bill takes nothing from the creditor which he before possessed, but, on the contrary, surrenders to him all the property of every sort and kind whatever, which the debtor may now possess, as well as all that he shall ever possess hereafter. With respect to the observation made by the noble and learned lord near him (Ellenborough) as to the number of persons who had been committed to prison, since the first day of Michaelmas term last, he thought it calculated rather for the committee, than as an objection militating against the principle of the measure now proposed. Upon that conception, he had, in the bill before their lordships, inserted no specific date for its operation. But, at the same time, he would never admit, that it was fair to suppose, that all persons who were committed to prison, since the first day of Michaelmas term last, or even any part of them, had thrown themselves into prison, for the purpose of availing themselves of the benefits of this act. No; he thought the noble and learned lord should not have attributed to the petitioners any intention of availing themselves of this measure previous to the necessity of this measure being first admitted in this house. Nor could he conceive, that a reference to the state of the prisons in the metropolis alone, was a fair criterion of judging in those respects. It might perhaps be true, that many improper persons frequently threw themselves into prison, with the hope of being comprehended under the provisions of Insolvent acts. But it should be recollected, that there were many others, victims of unforeseen distress, who had entered into engagements with the purest intentions, and whom the malignity of revengeful creditors have detained in prison, solely for the purpose of gratifying their feelings of spleen and malice. Was, there- fore, any noble lord prepared to say, that innocence was to be punished, because fraud was confounded with it? Were the miseries of the unfortunate to be aggravated, even to excessive cruelty, because there might be an equal, or possibly a greater, number of guilty among them? He was sure that their lordships would not consent to that; and he also called upon them to recollect, that the greater the number of the persons immured, whether guilty or not, the greater must be the hardships, the sufferings, and the miseries, of those who were innocent. Thus he trusted, that this measure would appear, not as proceeding upon any such limited view of the subject, or any such contracted principle, as had been referred to, but one which he could as safely submit to the cool dispassionate judgment of their lordships, as in any appeal to the sympathetic feelings of the noble members of that house. He sincerely hoped, that their lordships would be induced to allow the bill to go into a committee; when any noble lord, who might conceive any particular provision as bearing hard upon the creditor, might argue for its modification and amendment; and in a discussion of this kind he should cheerfully contribute every assistance in his power

Lord Eldon

declared, that if any person conceived him hostile to the prayer of the petition of the unfortunate debtor, he was much Mistaken in the individual who then had the honour to address their lordships. On the contrary, he had sometimes supported, and sometimes opposed measures of this kind, according to circumstances, in both houses of parliament. On one occasion he had introduced a bill of a similar nature, whilst a member of the other house; but acquired experience had convinced him of their injurious tendency and effects. He agreed in the necessity of some permanent measure on the subject, and thought the remaining time of some professional man, who had retired from the active duties of the profession, could not be better employed, than in studying the principles and the present regulations respecting debtor and creditor; and devising some certain and permanent system of procedure. One great consideration was, that some general rule should be adopted, in order that the creditor may know what, in his dealings, with respect to giving credit, he had really to depend upon. When he looked at the situation of the unfortunate debtor, no man could feel more compassion than he did; and sorry should he be, were he instrumental in gratifying any feeling of revenge. But, when he considered the general interest of the empire, and its commercial relation, he must avowedly declare his hostility to such frequent acts of relief: they sapped the very principle of credit, and, too often, forced the creditors of those very debtors, so released, into those prisons which they had left. For what did the preamble set forth.? That this very bill, so introduced, was in direct opposition to the interests of trade and credit, and solely referring for its support to the crowded state of the prisons; a false principle in any point of view, especially so in a commercial country; to him it appeared monstrous. In his opinion, the question amounted exactly to this: Was that legislature, which had pointed out to the creditor the means of enforcing the payment of his claims, to say to that creditor, Now that you have pursued the steps, and adopted the measures recommended by us, (after having acted under the protection, and under the confidence of those laws which tended to secure to him the payment of what was due to him,) without your consent, we will oblige you to liberate your debtor, without the least liquidation of your demand. It would cost their lordships no money to free such debtor from his debts; and the consequence of such a measure might be, that against the next Insolvent act the former creditor would endeavour to take the benefit of it himself. With respect to the effect of the Bankrupt laws, alluded to by the noble, lord who spoke last, there were some considerations as comparative of these laws of creditor and debtor referred to by the bill, which seemed to be overlooked. The merchant, or opulent trader, or even the petty trader, cannot experience the protection of these laws without the consent of a certain number of his creditors; and, in the mean time, he might be kept in prison at the suit of any one of them, till a dividend was made of his property: indeed, though one creditor may select the estate, another may detain the person of the debtor as a satisfaction for his demand. In saying this, he did not mean to speak in approbation of that part of the code alluded to. It should further be recollected, that the whole property of the bankrupt in prison, was taken possession of by a process issued for that purpose; whilst in the case of a debtor, not subject to the bankrupt laws, he might go to prison, if he chose, with 100,000l. in the funds, which his creditors could not touch. He believed, and he appealed to the recollection of the noble and learned lord opposite (Ellenborough), that, on the rejection of a similar-bill to the present, some time ago, many debts then deemed hopeless were at length, paid. He agreed the noble lord (Holland), that some amendment of the law was necessary but, whether by an extension of the bankrupt laws to, those debtors who were not now subject to them, or by any other mode. he could not now attempt to determine. He thought, however, that, in such cases, a general principle should predominate; but that the house never should proceed upon such a false principle as that held forth by the present bill. Were the property of such debtors to be vested in the hands of assignees, with full power to treat for the general interests of the creditors, proceeding on a general principle, he might be inclined to agree to it. But even this should be prospective in its operation, and should be undertaken with the utmost caution. If any general regulation, founded upon such principles, could be suggested, he would willingly give the best of his humble assistance in digesting and maturing it. He thought, however, that one hardship might be immediately removed. As the law now stood, the discharge of the person of a debtor, when charged in execution, was an effectual surrender of the claim of the creditor. This, of itself, reduced the creditor to the necessity of keeping his debtor in prison, or renouncing his demand. This, in his opinion, might be remedied, by reviving an act which has, some time since, been expired; and by introducing into it some amendments, which, he thought, he himself should be able to suggest, allowing the contract between debtor and creditor to remain untouched, notwithstanding the release of the latter, if the consider it. However painful, and however liable to misapprehension, such conduct might be, he still felt it his duty to join his noble and learned friend (Ellenborough) in opposing the bill; and he thought that, if it were now rejected, many debtors now in prison would find the means of discharging many demands which their creditors now considered as hopeless.

The Earl of Moira

said, it must be in the recollection of their lordships, that he had, on all occasions, uniformly exerted his humble talents to procure some general legislative provision which would obviate the necessity of recurring, as a temporary or partial remedy, to those measures, of the effects of which the noble and learned lords so much complained. He felt all their objections to acts of insolvency; but, at the same time, he was of opinion, that justice and humanity required the adoption of the one now proposed. His noble friend behind him (Holland) had correctly stated the circumstances which gave rise to the present measure; but, at that period, he was not aware that his official avocations would have allowed so much leisure as he had found they did, otherwise he would, most certainly, have brought forward his promised measure; which the advanced state of the session alone prevented him from immediately submitting to the attention of their lordships. He declared his perfect acquiescence in what had fallen from the noble and learned lord (Eldon) as to the hardship of the unfortunate bankrupt, who, having literally subscribed to the provisions of that code, and fully surrendered the whole of his effects, was still rendered subject to the malignity of an irritated and vindictive creditor. But, if there was one argument stronger than another in support of the measure introduced by his noble friend (Holland), it was the case so stated by that learned lord (Eldon). Many unfortunate men, so circumstanced, were to be found in the various prisons of the united kingdom; and, therefore, the necessity existed of immediately relieving them by the direct interference of the legislature. There was also another observation of that noble and learned lord (Eldon), which immediately applied to and bore on the bill before their lordships. That learned lord had asserted, that, by the frequent operation of such acts, the distresses and embarrassments of creditors was so augmented, that, in many cases, they were unfortunately forced to succeed to those very prisons so lately vacated by their debtors. Here, then, was another undeniable proof of the necessity of a temporary measure of relief. Men, admitted to be unfortunate, were actually suffering. Ought, then, the means of relief to be postponed for another session? Such delay would, in his opinion, be an act re- pugnant to every principle, of justice, equity, and law. The principle and object on which he wished and recommended this measure to proceed, was that of full enquiry, and just discrimination, as his sole motive and desire was to relieve those whose distressing situation precluded the capacity of liquidating their debts, from absolute inability. Did the insolvency arise from causes founded in unprincipled dissipation, or a. wanton profusions of means, it would. be an act of false humanity, nay even of dishonesty, to endeavour to relieve it. But his noble and learned colleague (Ellenborough), and the noble and learned lord opposite (Eldon), in asserting, that the debtors who had signed the petitions on their lordships' table, had entered into engagements with fraudulent intentions, had assumed as a fact what they had by no means attempted to prove. On them rested the task of proof; and, until they had substantiated it, it was perfectly justifiable for him to assert, that they were not only free from the imputation of fraud, but that they were unfortunate; and that they had been peculiarly distressed, and hardly dealt with. He maintained, that every prisoner who had signed the petition on their lordships' table, was innocent. This assertion might be considered as extravagant; and it was so; it might be considered as the effect of inveterate prejudice, and, perhaps, it was so. But it was a position he had a right to assume, equally on the principles of Christian charity, as on those which had uniformly governed the proceedings of their lordships, and which were so well understood, and so strictly adhered to, in that court in which the noble and learned lord (Ellenborough) so honourably presided, where every man was supposed to be innocent until his guilt was proved. In such a case, how then was truth to be elucidated, or the fact to be ascertained? Only by the operation of a bill which gave to the creditor, the power of proving the fraud, and to the imprisoned debtor the power of rebutting the accusation. To the fictions of law he had no objection, so long as they operated in the furtherance of justice; but he should ever deem it incompatible with British jurisprudence to punish any subject for a fraud until the charge was substantiated by a full and accurate investigation. Those who were confined for debts, were composed of two classes,—the un- fortunate and the fraudulent. To continue the imprisonment of the first for his inability to pay, was an act, not of false humanity, but of complete and flagrant injustice: how to proportionate the punishment of the other was the next object of consideration. In the commission of crimes, the smallest circumstances often were found to create the nicest shade of distinction between the degrees of criminality; and the moat minute change in the quality of the guilt, led to a punishment extremely different. In two cases which had lately met his view in the newspapers, he had found the principle of this observation fully illustrated. The first was, where a man, by frequently kicking his servant-maid, had caused her death; the other was that of a serjeant, who had wounded a soldier so severely with a halbert, as eventually to deprive him of life. In both these cases, the charge was murder; and the prisoners, by-some peculiar nicety of discrimination, escaped conviction; but the jury, in each case, returned a verdict of manslaughter; and the prisoners were sentenced to a year's imprisonment. Viewing the intentions of the respective parties, he believed the decisions, in both instances, just. Now, admitting that the persons whom the noble and learned lords suspected of fraud, were-really guilty of fraud, he would ask them, were they willing to assent to the proposition that such a term of confinement, adjudged as the proper punishment for a crime, approaching nearest to the extreme of human turpitude, was also a sufficient punishment for the fraudulent contraction of a debt? The noble and learned lords had arraigned the increased frequency of those acts, and he had expected to hear from them what interval ought to take place between acts of Insolvency. He regretted that they had not favoured the house with their opinions of what confinement a debtor should suffer, and what determinate principle should operate in fixing the punishment in such cases. Against fraudulent debtors it was his wish, and he knew it to be the wish of all the friends of the present bill, that its provisions should be made as severe as possible. A principle of enquiry and discrimination ought, above all things, to obtain in a measure of this kind. The nature of the debt should be fully and accurately considered;—whether contracted with the probable means of liquidation; and whether such means were want only expended with a profuse and criminal extravagance. If fraud should be detected, that fraud ought to be punished; but let it be punished as a crime, and not under the pretext of imprisonment for debt. But, if the inability of the debtor proceeded from unavoidable misfortune, or unforeseen embarrassments, to keep such a debtor in prison, merely from his incapacity to pay was, in his mind, nothing less than an insult to and a mockery of, every principle of justice. It was insisted by the noble and learned lords, and on that assertion much stress was laid by them, that a majority of the persons confined had thrown themselves into prison for the purpose of participating in the benefits of the Act now before this house. The truth of this fact he knew not; but, with his noble friend (Holland), he thought there was every reason for doubting it. But, even if they had done so, he contended that they not only did that, which was natural, but that which, was just. They had appealed to the wisdom and humanity of the legislature to interfere between them and their rigorous creditors; and, being ready, fairly and honestly, to render up every species and sort of their property, they were, by every consideration of justice and equity, entitled to the benefits of the compromise. The noble and learned lord, opposite, (Eldon) when he presented some petitions hostile to this measure of relief, had said, that they merited the particular attention of the house. In that remark he fully coincided. They did indeed merit the attention of their lordships; but it was as objects of curiosity: and he could not help expressing his surprise, that that noble and learned lord should have presented petitions so incompatible with the principles and maxims of every regular and constitutional policy in all free states. These petitioners had inveighed against the provisions of a bill of which they were totally ignorant, and which was not known even to their lordships. Without proving to their lordships any immediate concern that they had in the express object of the bill, they had assumed the right, not of petitioning, but of delivering their conclusive opinion on the principle which was likely to occupy the attention of the legislature. One strong inducement with him why the bill should no longer be deferred was, that the, greater the delay, the greater would be the injury to the creditors, from the additional num ber of debtors? which such delay would enable to take the advantage of it. Taking this measure in every point of view, of policy, justice, and humanity, he felt the legislature imperiously called on to sanction this act of relief, for so large a portion of their unfortunate, distressed, and suffering countrymen

Lord Ellenborough ,

in explanation, said, that one reason why he objected to the bill was, because it contained no such principle of discrimination as had been alluded to by the noble lord (Moira); but that it went to set all at liberty, to, discharge the whole in the gross. He was convinced, from the acknowledged liberality of British traders, that they would be found, on all occasions, ready to indulge their debtors in the most liberal manner possible; and he would take upon him to say, that, there, was scarcely an instance where, if they perceived any inclination on the part of the debtor to act justly, to the extent of his ability, they were not always anxious to release him. He must impress upon their lordships' mind that if this bill; should pass into a law, the prisoners would be for ever discharged, as to their persons, without any satisfaction to their injured creditors. This was a hardship which tended to the destruction of all trade and credit, as was fully admitted by the preamble of the bill itself.—The question was then put, and the house divided; For the commitment 10; Against it 5; Majority: 5. The house accordingly resolved itself into a committee, proformâ