HL Deb 11 March 1808 vol 10 cc1069-71
The Earl of Moira ,

on moving the second reading of this bill, urged the necessity of resorting to some measure for the amendment of the law of debtor and creditor, and for the prevention of that misery, and those numerous ill effects, which resulted from long continued imprisonment for debt. The noble earl explained the objects of his bill, as relating to arrest on mesne process, and imprisonment in execution, in both of which the intention was to shorten the duration of imprisonment; in the former, by compelling the plaintiff, where the writ was issued in one term and returnable in the next, to declare in the term of the return, and to proceed to trial in the succeeding term; and in the latter, by releasing the debtors at certain specified times, at the quarter sessions, on assigning over their property in possession and reversion, and also rendering their future property liable. The latter mode was the principle of the cessio bonorum introduced into the Roman law by Cæsar, and subsequently, after a long experience, adopted- by Justinian. A similar law had long prevailed in Holland and in Denmark, where it had been found equally efficacious. His lordship stated a variety of instances, in which persons imprisoned for small debts had experienced a great aggravation of their imprisonment by the costs with which they were charged; and instanced many cases where prisoners were unable to raise the money necessary to obtain that relief to which they were entitled by law. Thus, out of 700 annually released by the Thatched-house society, there were, on the average, about 130 who were unable to pay the expences of suing for the allowance under the lords act; and about 50 who, though supersedable, were unable to raise the money necessary to sue for their supersedeas. He condemned generally the principle of placing a debtor to the mercy of a creditor, who might indefinitely imprison him; and trusted their lordships would agree to the proposed alteration in the law.

Lord Ellenborough

condemned any attempt to innovate upon a long established law, without taking a clear and comprehensive view of the whole of the bearings of the question. This had not been done in the present bill, which had been drawn up (not, of course, by the noble earl) with a great ignorance of the law, and with provisions which could not be carried into effect without great injustice and injury. His lordship went through the different clauses of the bill, for the purpose of shewing that they were wholly inadequate to their proposed object. A plaintiff was at present obliged to declare within two terms; and as to arrest, it was, generally speaking, the best means of producing a payment or a composition of the debt, and did produce that effect in five cases out of six. The creditor was more frequently an object of compassion than the debtor, from the frauds practised on him. He was decidedly hostile to the bill, and thought it ought riot to go to a committee.

Lord Holland

combated the objection of innovation. To hold that every thing which fell from judge Hale must be correct, was rather paying too high a respect to the doctrines and opinion of that learned judge. If his lordship recollected well, judge Hale had been hostile to the repeal of the laws against witchcraft; and indeed, the doctrine of the noble and learned lord went to this, that no alteration whatever, in our law or practice, ought to take place; in fact, that their lordships and the other house ought not to meet for the purposes of legislation. He hoped as opinions of celebrated men were to be quoted, he might be allowed to notice the opinion of a justly celebrated man, and who in the latter years of his life, at least, could hardly be suspected of favouring innovations. That able and enlightened man was well known to have been peculiarly partial to the general principle of the measure now proposed by his-noble friend. Another great man, Dr. Johnson, had also expressed himself decidedly on this subject, and declared that imprisonment for debt ought not to be suffered, unless for the purpose of compelling a surrender of the debtor's effects. As to the evils resulting from the present system, they were so numerous, and at the same time so apparent, that it was hardly necessary for him even to allude to them. One striking proof of the absurdity of the present law was to be found in the frequency of insolvent acts. If the legislature were not aware that there was something peculiarly offensive in continued imprisonment for debt, why should it pass these acts of insolvency? All suspensions of any established law were to be reprobated, and it was infinitely preferable that the law should be at once repealed, than that it should be repeatedly violated. Surely, it would not be said that these insolvent acts were passed merely as a matter of convenience, and that-one set of persons were liberated solely for the purpose of making room for another. The number of persons at present confined for debt in the metropolis, was, stated as being by no means compa- ratively great. He begged it to be remarked, however, that the Thatched House society was not a national institution; of course, any relief granted by them did not proceed from the benignity of our laws, which had thus provided a partial remedy for a great evil. It was calculated that this society liberated 700 persons annually, who, but for this institution, must have formed an addition to those at present confined for debt, and from the best computation his lordship could make, would increase that number to about 10,500. His lordship did not pretend to be, by any means, so well qualified as his noble and learned friend, to judge what would be the best mode of giving effect to the measure now proposed; he could not, however, abstain from expressing his surprise and concern that those noble and learned persons, whose peculiar province it was to endeavour to render the law of the land as unexceptionable as possible, should shew so great reluctance to bring forward a bill which might meet their own ideas on the subject.

Earl Moira

replied generally to the arguments of lord Ellenborough, when the house divided on the question for the second reading: Contents 5: Non contents 9: Majority 4.—The bill was accordingly thrown out.