§ Earl Stanhoperose, pursuant to notice, to call the attention of the House to this subject; and he expressed his persuasion, that what he had to state with regard to the violation of civil liberty and common humanity, under the law as it at present existed, particularly in consequence of the arrest upon mesne process, was such as must excite the astonishment, and interest the feelings of every one who heard him. Before he proceeded to this statement, he thought it proper to advert to the Act of last sessions for the relief of paupers confined in the King's-bench, the Fleet, and the Marshalsea. According to this Act, a magistrate was authorised to order an imprisoned pauper an allowance of 6d. per diem; which allowance their lordships would readily feel to be miserably scanty, especially where a prisoner should have a wife and family to support. But before even such an allowance was granted, a prisoner must swear that he is not worth ten pounds in the world. Still, after that oath, the prisoner was condemned to remain in a situation of wretchedness, and starving, unless, as it appeared from a 608 Petition which he held in his hand respecting the Fleet prison, the prisoner consented to pay illegal fees to the gaoler or his agent. Thus was this petitioner treated, left without the means of even keeping body and soul together, with a view to extort illegal fees. Was it then, he would ask their lordships, to be endured, in this boasted country of liberty, justice, and humanity, that while felons—that while the most atrocious criminals were by law allowed bedding, clothing, fuel, and food, unfortunate debtors should be refused common sustenance? Was it possible that the House and the country could acquiesce in the longer continuance of such gross injustice and cruelty?—For himself, he had no difficulty in stating his full belief, that cases of greater oppression, than had occurred under the system of imprisonment for debt in England, had never been witnessed in any nation on earth. The humanity of that House and the country had revolted, and at length succeeded in abolishing the African Slave Trade, and that abolition was a glorious act. But this system of imprisonment for debt was aptly called, and justly to be considered, the English Slave Trade, for the abolition of which humanity and wisdom loudly called. Yes, the wisest and the most humane had long and unanswerably enforced the propriety of the abolition of that system, which had no precedent or parallel in any civilized country upon earth. The opinion and argument of Dr. Johnson upon this subject must be familiar to the recollection of their lordships; and in addition to various other high authorities, a distinguished writer had justly characterized this system as "a miserable mistaken invention of artificial science; operating to change a civil into a criminal judgment; and to scourge misfortune, or indiscretion, with a punishment which the law does not visit on the greatest crime."
§
The noble lord then briefly described the Petition to which he had referred at the outset, and which he moved to have read. It was accordingly read as follows:
To the Lords Spiritual and Temporal of the United Kingdom of Great Britain and Ireland, in Parliament assembled, The Petition of William Wright;
§ "Sheweth; That your lordships' petitioner was arrested, on the 16th of June last, on mesne process, for the sum of only 14l. 12s., and he subsequently surrendered 609 to the Fleet prison, to save his bail from being charged with the debt.
§ "That near half of the said debt, for which your petitioner was arrested, had been owing under a statute of bankruptcy near two years before, and was consequently in no way recoverable by law, as petitioner had obtained his certificate; but, from a principle of integrity, he was induced to include it in the said sum of 14l. 12s.
§ "That your petitioner, soon after being committed to prison, was obliged, for subsistence, to sell his shop fixtures for 5l., which shortly before cost upwards of 50l.; his household furniture having been previously seized for rent.
§ "That soon afterwards petitioner, together with his wife and child, two years old, was actually starving; being at times for whole days without a morsel of food; and having disposed of all their wearing apparel, without a change left, or even a bed to lie on, was obliged to apply for the allowance of 3s. 6d. a week, under an Act passed in the 53rd of the King, c. 113, intituled, 'An Act for providing relief for poor prisoners confined in the King's bench, Fleet, and Marshalsea prisons,' which passed on the 10th of July, 1813; and on the 4th of August last, your petitioner made affidavit before a commissioner for obtaining said allowance, as directed by the Act.
§ "That your petitioner, immediately on making said affidavit, lodged it with Mr. Woodroffe, clerk of the said Fleet prison; but yet petitioner could not obtain the relief the law allowed; as illegal fees, not authorised by the act of parliament, were demanded of him; at first 6s. 8d. were demanded, and afterwards 4s. 6d.; but it was not in your petitioner's power to comply with either.
§ "That in consequence of your petitioner's not being able to pay either of said demands, his affidavit was not laid before the magistrate for nearly six weeks—namely, until the 15th of September following; during which time petitioner and his family were in the most deplorable state of misery, and would, in all probability, have fallen victims to absolute starvation, had it not been for your petitioner's having got a little credit from some of his fellow-prisoners, on the ground of his expectancy of said allowance.
§ "That one of your petitioner's fellow-prisoners had made a complaint to a member of your lordships' House on the sub- 610 ject of the fees, which had been illegally extorted from a great number of the prisoners; and the said peer transmitted the said complaint to the principal Secretary of State for the home department, who properly transmitted the same to the said Fleet prison; upon which the said illegal fees were refunded.
§ "That your petitioner applied to Mr. Woodroffe for his affidavit in order to send the same to a magistrate; but it was refused him; so that the officers of the prison neither sent said affidavit to the magistrate till as above stated, nor did they enable petitioner, by putting the affidavit into his hands, to send it to a magistrate himself.
§ "That, after your petitioner had regularly received the said allowance, the same was suddenly stopped for six weeks, previous to his discharge under the general Insolvent Act; though he still continued in the extreme of poverty and distress, and was not supersedable, nor entitled by law to be discharged under any Insolvent Act.
§ "That in consequence of your petitioner having been so reduced from absolute want and confinement, he was on the point of death, and would, as he verily believes, and has been informed by a medical gentleman who attended him, have perished daring his confinement, had not the keeper of the prison, Mr. Nixon, permitted him to walk out into the rules; and that neither he nor his wife have ever since recovered their former health.
§ "That during his said miserable confinement, petitioner has witnessed several instances of persons who were nearly perishing from want; and that he was acquainted with a brother prisoner of the name of Teal, who lived for three whole days on six potatoes; and also that he knew several deaths in consequence of the effects of imprisonment, some in the prison, and some soon after the individuals departed from it.
§ "Wherefore your petitioner most earnestly beseeches your lordships to take such measures, as your wisdom shall deem advisable, to prevent such illegal oppressions as your petitioner has experienced; as well as to abolish by law the abominable practice of imprisonment for debt on mesne process; the dreadful consequences of which may not be fully known to your lordships' House, but are too woefully experienced, not only by the ruined debtor, but generally by the creditor himself.—And petitioner will pray,
§ "WILLIAM WRIGHT."
611§ This Petition being ordered to lie on the table, the noble lord thought proper to advert to the Petitions which he had presented to their lordships on a former day. One of these petitioners, Mr. Baldwyn, had, it appeared, been eleven months in prison; although, at the close of that period, the court decided that he owed nothing. Yet, after that decision, Mr. Baldwyn was detained a fortnight before he could obtain his liberation. In another case, Mr. Manie was in custody for two months; although, upon reference to Mr. Justice Le Blanc, that judge declared that the affidavit upon which the prisoner had been arrested was defective. But many similar cases of injustice and oppression could be adduced, notwithstanding the prescriptions of Magna Charta and the Bill of Rights. The exactions practised in the prisons were, he understood, most severely oppressive upon unfortunate debtors; and in order to put the House in possession of the necessary information upon this subject, he should move for a return of the fees demanded or paid in the several prisons, since the 10th of July, 1811; stating the grounds upon which such fees were claimed; and also for copies of tables of fees, if any, posted up in the different prisons. By the Act of the 32nd of Geo. 2, c. 28, s. 5, it was directed, that the chief judges of the courts of King's-bench, the Common-pleas, and the Exchequer, together with three magistrates of Surrey and Middlesex, should arrange a table of the fees to be paid at the several prisons of the King's-bench, the Fleet, and the Marshalsea; and that similar tables should be settled at the several quarter sessions, for the different county prisons. It was also prescribed by the same Act, that such table of fees should be hung or posted up in the several prisons, so as to become fully known to the prisoners; and that no gaoler should, directly or indirectly, demand or accept any fees but such as were specifically allowed by such tables. Through his motion he proposed to ascertain, whether the direction of this statute was complied with at the Fleet, and also at the several other prisons. Here the noble lord referred to the legal and general information which he had obtained upon this important subject; especially to that contained in a letter with which he had been favoured by one of the most able lawyers in the country, respecting arrests upon mesne process; and also to the report of the committee of which 612 that excellent man the present chief governor of India was president. Every one, indeed, who admired the genuine principles of our constitution, must view with regret and surprise the various infractions of it which characterized this system of arrest—a system which in fact gave birth to numerous glaring abuses, which, were not only not authorised by law, but in most cases in direct violation of its spirit and character. Was it, for instance, consistent with the constitution of this country, that upon the mere asseveration of an individual, any British subject should be condemned to imprisonment without a trial—without the verdict of a jury? It was obviously the interest, as well as the duty, of every man in the country to consider this question; for it established a precedent incompatible with the character and dangerous to the existence of civil liberty. It was notorious, that any man arrested upon mesne process must, if he could not find bail, submit to imprisonment, and, thus creditor was enabled to gratify his revenge.—thus a man was, contrary to the first principles of justice, made a judge in his own case. He was aware, that in actions of trover the amount of bail is at the discretion of a judge; and the rule upon this case arose out of an extraordinary event which occurred about five years ago. A swindler, who came to this country, personated the heir of an opulent family in the West Indies, and thus obtained credit. But having committed forgery he was arrested; and in order to embarrass his prosecutor, he (the swindler) had him arrested in trover for 20,000l. which he swore to be the value of a deed withheld from him by the prosecutor. The whole, however, turned out to be a trick, and the swindler was executed for the forgery. But from this case their lordships might form an opinion of the latitude which the law of arrest upon mesne process in this country afforded to vindictive and unprincipled individuals to oppress the innocent. In actions, in particular, for assault and battery, or slander, the operation of resentment and rancour was naturally to be calculated upon, and this law allowed but too large a scope for the gratification of these feelings. From the report already referred to, it appeared, that a plaintiff was not bound to deliver his declaration until the end of the next term after the writ is returnable; so that seven months might elapse before the plaintiff 613 need apprise the defendant of the ground of action, and he might delay the trial of that action for five months afterwards. Thus an individual might be imprisoned for twelve months upon the mere oath of a plaintiff, without any trial or verdict, and if upon trial the verdict should be in favour of the defendant, he could have no recompence from the plaintiff but his taxed costs. In fact, the defendant in such a case had no remedy whatever, unless he could prove that the plaintiff, in arresting him, was actuated by malice, which in most cases would be impossible. But if a plaintiff should leave the country, if he should emigrate to America or elsewhere, and before his departure determine to wreak his vengeance upon any man or number of men, he might by his oath deprive such man or men of liberty,—and, if friendless, and unable to obtain bail, condemn him or them to several months' imprisonment, without any refuge or means of remedy whatever. Such were the cases which might occur—such the injustice and oppression to which people were exposed in this country, which boasted the honour of Magna Charta; and in this country, too, people were liable to be so imprisoned without clothing or bedding, or even medical assistance, except in some few prisons; while felons committed for crimes marked by the most cool and deliberate rancour, while the most atrocious offenders are supplied with all these accommodations; thus confounding the distinction which ought ever to prevail between misfortune and crime, between the casualty of distress and the turpitude of guilt.
§ The report before alluded to, the noble lord observed, had recommended, and very properly recommended, that where the defendant confessed a debt, further expence should be prevented; and what could be at once more absurd and unjust, than that proceedings should go on after such confession; that the expence of trial should be incurred where there was nothing to try; yet any rascally attorney, by the law as it now stood, was at liberty, after a defendant was committed to prison for 15l., to load him with the expence of trial, &c. with costs, in fact, exceeding far the original amount of the debt. Were such proceedings, he would ask, reconcilable in any degree with humanity and consistency? Such proceedings were, indeed, incompatible with the interests of both plaintiffs and defendants; and this 614 was evident from the deposition of Mr. Nixon before the committee he had referred to. For Mr. Nixon deposed, that "the plaintiff and the defendant were often to be found in the same prison, the one for the debt, and the other for the costs"—some rascally attorney being the main cause of the oppression of both, after possessing himself of whatever property they possessed. Thus too often did these base lawyers exemplify the fable of La Fontaine respecting the oyster, where the lawyer is described as opening the oyster, swallowing the fish, and giving the shells to the plaintiff and defendant. In the same Report, the Treasurer of the Society for the Relief of Persons confined for Small Debts, deposed, that, to his knowledge, out of 520 prisoners confined for debt, 458 never paid either debt or costs; so that this abominable system, instead of serving, really injured those for whose advantage it was professedly maintained; the creditor ultimately becoming a debtor through the deficiency of the law and the knavery of the lawyers. But he had not yet finished the detail of a debtor's misfortune. In fact, exaction and oppression were his fate from the moment of his arrest. At the lock-up-house, to which he was first led, he could not subsist for less than eight or ten shillings a-day; and to this expenditure a poor debtor was compelled to submit, independent of all legal costs. Was it then too much to call such a system the English Slave Trade? Was not such a description fully justifiable? He hoped the noble and learned Chief Justice of the King's-bench would state what he could in justification of the attornies; for he was sure the noble and learned lord on the woolsack would not say one word in their favour. He also quoted that part of the Report which states two cases of poor persons, who, for bread and cheese and butter, to the amount of a few shillings, had been proceeded against; and by running up the costs above 10l. had been arrested, and had suffered long and severe imprisonment. The mode of drawing declarations, he considered as an invention to make money for lawyers. "My lords," said earl Stanhope, "I recollect a declaration about a tailor's bill; the charge was 100l. and how is the declaration framed? Why, my lords, there were eight counts, each of them stating a separate 100l. though the man owed only 100l. The first count is for work and labour, as a tailor; the second count is for the worth 615 of certain other work and labour; the third count is for goods sold and delivered; the fourth count is for what certain goods sold and delivered were worth; the fifth count is for money lent and advanced (why there was no money advanced); the sixth count is for money had and received; the seventh count is for money paid, laid out, and expended, by plaintiff, for defendant's interest, (why my lords, in this case, there was no such thing, it is all false); and the eighth count is for the balance upon an account stated. Now, my lords, there was no balance due; nor was there any account between the parties. The whole of this declaration is idle and unnecessary, excepting the first count. The same mode is pursued in indictments upon penal actions. I recollect a limb of the law going from London into the country, and he shewed wonderful ability for getting money into his pocket. I did not know much then of indictments, declarations, or counts, but I know enough of them now—and I could sometimes give information to lawyers on the subject. My lords, down in Kent there is a little country village, called Chevening, and in that village there is a little collage which belongs to myself; and a circumstance happened there about 30 years ago, which led me first to know something about counts. There was one of those strolling characters that go about the country, who came to this cottage; and putting his head within the door, staring round the place, and not perceiving any body, he thought proper to lay hold of a pair of leather breeches which were hanging up, and walked away with them.—(A laugh.)—This circumstance was soon known; and it made a great noise, as it was likely to do in a country village, and at length it attracted the notice of this man of ability in the law, who was there at the time, and who seemed determined to convince these villagers of his great sagacity: perhaps, he had a further object, that of getting some money from me upon the occasion. Presently, my lords, he set about drawing a declaration, with which he waited upon me to shew how well he could do it. Having stated the circumstances, he gave me this declaration to read; and I accordingly began to read with this same lawyer standing at my elbow: and then, for the first time, I acquired a knowledge, of this wonderful science of declaration making. There were no less than twelve counts in this 616 declaration about taking away the leather breeches. There was no force—no vi et arms in the business; for there was nobody belonging to the cottage at home when the breeches were taken away; I was therefore somewhat surprized to find it charged that the defendant had with guns, pikes, halberts, pistols, and a variety of other deadly weapons, broken open this cottage and taken away the leather breeches. This was the first count. On looking at the second, I found, that the defendant, not content with small arms, had attacked this cottage with cannons, cannon-balls, bombs, howitzers, and other similar arms, and taken away the leather breeches. In the third count, 100 horses, and 100 horsemen upon these 100 horses, had been brought into this village to storm the unfortunate cottage, and carry away the leather breeches: in short, out of the 12 counts, 11 were pure fictions, there being only one that bore the least resemblance to the truth. I naturally asked the lawyer, what was the meaning of these guns, pikes, pistols, &c. The lawyer, smiling at my ignorance, answered, "Oh, I see your lordship don't understand these matters; that is what we lawyers call a nullity." What do you mean by these cannons, bombs, &c.? That is likewise what we lawyers call a nullity. What do you mean by this troop of horse coming to carry away the leather breeches? That is what we lawyers call a nullity. In short, my lords, all were nullities except one; the stroller having quietly stolen away the breeches. But the system of fiction was most comprehensive in the practice of the lawyers. Their lordships must be surprised to learn, that the arrest upon mesne process arose entirely out of fiction; for the court from which the writ issued charged the defendant with being guilty of contempt in not appearing; and then upon the defendant denying the contempt, he is imprisoned for the denial; that is, he is punished for denying a falsehood. But the system of fiction was extended still farther. Originally, all civil actions were tried in the court of Common Pleas; but the court of King's Bench, in order to have a share of the good things belonging to such actions, contrived to bring them under its cognizance, by the fiction of charging the defendant with a breach of the peace, although the peace had not at all been violated; and the court of Exchequer, in order also to participate of the spoil, contrived 617 to extend its jurisdiction to civil actions, by the fiction of charging the defendant with being a debtor to the king; assuming that by the debt the creditor was rendered unable to pay a debt to the king, although no such debt existed. But thus the fiction was extended, to extend the scandalous profit of lawyers, and with it the oppression of the people. Fiction, however, did not stop here; by an ancient statute, it was prescribed, that two housekeepers should become pledged to prosecute a civil action, with a view to give some security to the defendants. But how did the lawyers contrive to evade this provision?—Why, by introducing the two fictitious names of John Doe and Richard Roe. The whole system, however, relative to civil actions was defective—was fraudulent, affording a scope for the plundering practice of lawyers. The practice and conduct of many, indeed, were such as to render them objects of just and general apprehension; as strikingly appeared in the instance of the late alderman sir Brook Watson, who lost his leg while swimming in one of the American ports many years ago. The alderman was violently exclaiming one day against lawyers; a person, who heard him, asked the late alderman Wilkes the reason; when the latter said, "Don't you know that he has lost one of his legs already by a shark?" He trusted their lordships would bear feelingly in mind, what he regarded with pleasure and admiration, the excellent observation of Alexander, the present emperor of Russia, when he was told that strong institutions were necessary, he said, "strong but liberal institutions, conformable to the knowledge and improvement of the times." Such was what he (lord S.) wanted, and which he thought should be the ruling principle in actual legislation; and as to the grand consideration of reform, he trusted they would all remember what was admirably said by a noble member of that House (the earl of Moira), then absent; the saying was replete with wisdom and sagacity—"Better, my lords, that reform should begin at the head, than that it should begin at the tail!" He trusted their lordships would commence the work of reform in this the most improved nation of Europe. Their lordships had seen the consequence of a reform beginning with the tail. They had seen that it at first led to anarchy, and then to military despotism; and he hoped that 618 they would learn a useful lesson from that impressive example. In that hope, he should move for leave to bring in a Bill to abolish for ever the present unjust and oppressive system of arrest upon mesne process. Here the noble lord read the Bill he proposed to bring forward; the main object of which was to prevent the actual committal of any defendant until judgment he had—until by the verdict of a jury the existence of a debt is pronounced—the noble lord disclaiming any intention to shield fraudulent debtors, or to interfere with the rights of bonâ fide creditors.
§ The Bill was then presented, read a first time, and ordered to be printed.
§ His lordship then presented another Bill relative to the same subject. By an Act of the 51st of his present Majesty, provision was made against arrestments for debts which did not amount to 15l. independent of costs. He had consulted three lawyers on this Act. One said, it was so obscure that he could give no opinion as to what it meant. Another said, that the Act extended generally to all debts; and a third thought it was confined to arrestments for debts on mesne process, and such was his (lord Stanhope's) opinion. But as there was no reason why this should not be extended to other debts, his Bill had for its object to remedy this defect. Many of the persons exposed to these evils were among the most respectable in society, reduced to distress by mere misfortune. Many of them were clergymen; and he called on the bench of bishops to assist their brethren. Many of them were officers of the army and navy; and he called upon such of their lordships as were officers of the army and navy to assist their brethren. And lastly, he called upon their lordships, generally, to attend to the public interest in this essential particular. He proposed to enact, that no person should be imprisoned for any sum under 15l.; and that costs accruing in any legal proceedings should not be included in such sum.
§ This Bill was also read a first time; and before moving that it should be printed, his lordship made some further observations upon the subject, and suggested that it would be expedient for the House to have three assessors; one conversant with the practice in Chancery; one a good common lawyer, and acquainted with all the technicalities of the common law; and the other well acquainted with 619 the law merchant. These gentlemen might be employed during the recess in reducing into a system the various enactments on the statute-book, on any given subject. The bankrupt laws, for instance, might be thus compressed into a practicable system; and the confusion in the statute-book might be in time wholly remedied. It ought also to be done with respect to many others. He would rather pay 500l. a year himself than that it should not be done; and others, who were richer, would be ashamed at not coming forward. But it was not the business of individuals; it was that of the public. He had on a former occasion stated, that a certain sort of credit was mischievous. To persons in fixed situations it might be beneficial to give credit sometimes; but with respect to birds of passage, this was not the case; and in truth, they only got credit from the circumstance, that a trader knew that if they did not pay, he could lay them by the heels. These Bills would, therefore, check the practice of swindling. There was a fellow now going about, stating that he was his (lord Stanhope's) nephew, whereas he had no nephew. "I," said the noble earl, "never had a brother but one, and he died without issue; and I never had a sister; and therefore, could have no nephew. I suppose some fine females may next go about and say they are my nieces; but I hope the milliners and mantua-makers will not trust them." In concluding, his observations, the noble earl said, "If these Bills pass, I have no doubt that all the swindlers and rogues will meet in one of the larger squares, and hang up the effigy of your humble servant."
§ Ordered, that the Bills be printed.