INSOLVENT DEBTORS. (Hansard, 23 November 1813)

§ Lord Ellenborough
rose to propose his promised Bill for the more speedy liberation of insolvent debtors. He adverted to the great numbers who were at present in confinement, and in earnest expectation of a speedy relief under the existing Bill; which hopes, it appeared practically, were in no small degree disappointed. In such a situation many must much longer continue, if some remedial measure were not speedily produced. After adverting to what he had mentioned on a former day, he observed, that the measure which he was about to submit to their lordships, in consequence, would go to the repeal of the existing Act, and would in other respects proceed upon a principle of a former Insolvent Act passed in the reign of his Majesty, which provided for the discharge of all persons in confinement, without limitation to the sum; and to give all those who had al- 182 ready given notices under the existing Bill, the benefits of the Act which he now proposed. It would, perhaps, be unseemly to dwell upon the difficulties which peculiarly belonged to the present Act. But it was evidently found defective in many points of view, and impracticable as to speedy execution. The Bill now proposed would go in a great measure to obviate these defects; but it differed from many recent Insolvent Bills, with respect to the limitation of sum. Two Acts could not properly be in execution for the same legislative purpose; it would, however, be for the consideration of their lordships to decide which of the two measures were preferable. In this view, he should propose that the Bill he now presented be read a first time, and printed for the use of the House. The Bill was accordingly read a first time, and purported to be for the relief of insolvent debtors in England, &c.

§ Lord Redesdale
said, it was but very recently that he had received information of what had passed in the House respecting the Act of last session, which he had the honour to propose. With respect to that measure, it would, in his opinion, be preferable to suggest amendments applying to its particular difficulties; as he thought the Act was of considerable importance, and, so amended, would be fully capable of execution.—Such also was the opinion of the learned and respectable person who was appointed to superintend and direct its execution. The several cases which were already disposed of, fully proved its practicability. He understood there were upwards of 800 orders made upon different petitions, which had been considered. That there were cases upon which no common degree of difficulty occurred, he believed; but he was convinced those difficulties were capable of removal, though some would require a great deal of consideration. In former Acts, from the mode in which they were executed, great facilities were suffered to obtain, and which may account for the speedy disposal of cases. The strict investigation which the existing Act called for, precluded such practices. The principal difficulty which seemed to obtain in the present Act, respected the notices; and the principle on which these were provided for, was borrowed from the long established law of Scotland; and also of Holland, both of which were founded on the principle of the Roman law. All 183 these required notices to be given; and any permanent general system, founded on such a principle, must be accompanied by a process of the kind. The number of debtors now in confinement appeared to him very extraordinary, especially when he considered the great numbers discharged under preceding Insolvent Acts. There must be some commensurate consideration to produce it at the moment. Their lordships may conceive the situation of the creditors of persons who contract debts to an immense amount, and are thrown into prisons under the expectation of a speedy liberation through an Insolvent Act. The debts of such persons he understood amounted to several millions. There were notoriously great numbers who contrived to live without any visible means of support, save upon the plunder of those who unwarily afforded them credit. From those whom he had conversed with on the subject, he learned that hundreds of notices were brought by persons who were employed under former Acts for the like purpose, so very informal and inadequate, that they could not be proceeded upon. As long as the practice of temporary Insolvent Acts was suffered, the gaols would be full of persons clamorous for speedy liberation; one cause of which was, the facile manner in which discharges were procured under many former Insolvent Acts. The existing Act proceeded upon a very different principle, and was proposed to be executed in a very different manner. From what he had observed, the measure was, in his mind, good in itself, and in its principle; whether all its machinery was the best adapted for its purpose, was another consideration. The principle of the cessio bonorum, on which the Act chiefly proceeded, was in other countries executed by the supreme courts of justice; and such was the original idea with himself; but he was well aware of the great pressure of business upon the present courts in this country, which rendered the measure of a separate jurisdiction necessary. After some further remarks upon the nature and tendency of the existing Act, he submitted to his noble and learned friend, whether it would not be preferable to proceed to the amendment of the present Act, and to apply a separate remedy so as to meet the immediate pressure from the immense, number of applicants, and to afford them such benefit as was afforded by this last Insolvent Debtors Bill; at the same time 184 leaving it open to individuals to take the benefit of the existing Act if they should choose it; who, he had pretty good grounds for saying, would be no small number. His lordship expressed his disapprobation of the frequent recurrence to temporary Insolvent Acts, as highly prejudicial in their general effects; and insisted on the superior advantages, in every point of view, of establishing a permanent general system upon the subject. He was confident that the defects of the existing Bill might be effectually amended. It was a topic upon which much difference of opinion certainly existed; and he must observe, that of the numerous suggestions which were offered to him, many appeared to be for the purpose of defeating the measure, and throwing difficulties and perplexities in the way of its legitimate object. Their care, should be, to guard against the machinations and practices of fraudulent debtors; at the same time, with this principle in view, to keep, the gaols as clear as they could Numerous were the individuals who, under the late system, expected and endeavoured; to be free from all demands upon them, by entering into a gaol. It was incumbent on the legislature to counteract such a great, acknowledged, and increasing evil; to prevent the practices so frequently adopted, for the purpose of getting what was vulgarly termed "whitewashed!" He hoped the measure of his noble and learned friend would be so framed, as to admit the execution of the existing Act, as far as the same could be done; and also to give the principle of that Act a fair and adequate trial, as to its operation and effects.

Lord Holland
took the opportunity to observe, that in his mind, the passing of such a Bill in the way proposed by his noble and learned friend, would have the appearance of completely stultifying the legislature. After what he had heard from the noble lord opposite (lord R.), who, to his credit and honour, had taken so much pains upon the subject; after the legislature had deliberately sanctioned the principle; it would be acknowledgement that the two Houses of parliament, having a clear object in view, which had long been accomplished by countries both agricultural and commercial; one House especially, which could command the assistance of the twelve judges, was in capable of carrying such object into excu- 185 tion. Their lordships should "not lay the flattering unction to their minds," that they obviated the evils by a recurrence to a mode of legislature which proceeded upon a principle of injustice; he meant that of temporary Insolvent Acts; nay, if a temporary Bill passed, it might be soon regarded as a virtual repeal of the general Act. He trusted the noble and learned lord opposite would persevere in his laudable endeavours, which hitherto reflected so much credit on him, and attempt to remedy the defects in the existing Act, and to give the country the benefits of its full execution—an Act, against which, in his mind, he had heard nothing that might not be remedied by a Bill of amendment and explanation.

§ Lord Ellenborough
said, he was not moved, by any argument of his noble friend, to think that the House, by receding from a former error, would do any thing to stultify itself. They were not yet so far advanced, that these errors might not be consistently removed. That there were defects in the Act, was generally agreed; and it was Admitted by his noble friend; that the sooner these were amended the better. The only difficulty was, as to the mode. That which he proposed, appeared to him to be the most commodious form. He was far from friendly to Insolvent Bills; but under the present circumstances, where so strong expectations were excited, it became the legislature, which had so pledged itself, to devise some means by which those could be properly satisfied. There was one point which, he had to observe to his noble and learned friend, constituted a great difficulty in the Act; namely, what respected the Court of Appeal. After some remarks on this part of the Act, the noble chief justice said, it would be better to leave the matter to the discretion of the commissioner, than to render it the subject of an appeal as provided by the Act. Another point was, that the court should have a power of ubiquity, and an authority to extend its jurisdiction into different counties, for, as it stood, those of 52 were crowded into one court. He greatly wished the noble and learned lord could reduce the Bill into such a shape as to be capable of speedy execution. His object was, to remove those difficulties, and remedy those evils, which were so much complained of; and if that were done, he was the less solicitous as to the particular mode.