Lords Sitting of 18 May 1814

CIVIL LIBERTY.
Earl Stanhoperose to
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move the second reading of the Bill to abolish Mesne Process. In order to prevent any misinterpretation of his sentiments respecting lawyers, he observed, that in the profession of the law, as in all other professions, there were good, bad, and indifferent individuals; but there was this marked distinction between that and other professions, that those who belonged to the legal profession, and who possessed, integrity and ability, and a desire to do, right, had more power to do good, and were more valuable members of society than any other persons; while on the other hand, if they were guided by different motives, and were instigated to do wrong, it was in their power to do more mischief than could be done by any other class of men. The preamble of the Bill which he had, introduced to their lordships, after reciting Magna Charta, went on to declare that mesne process was contrary to the ancient law of the land. On this point the lord chief justice of the court of King's Bench had thought proper to contradict him, and, in order to establish his proposition, had quoted three acts of parliament which he (lord Stanhope) knew were actually not in existence having all been repealed shortly after they had been passed. This fact he pretty well knew at the time of the Lord Chief Justice's statement; but he thought that it would not be respectful to their lordships, or the person who had made such a confident assertion, to contradict it without due examination. After having closely examined the statute book, he would now distinctly declare, that it did not contain one single Act in support of mesne process. With respect to the first statute, that of Henry 3, it did not go on the principle of mesne process, but only to attach the bodies of those not possessing lands or tenements, who might withdraw themselves, to compel them to render an account, and not to pay. But even if it were not so, still this statute afforded no contradiction to the preamble in his Bill, that mesne process was contrary to the law of the land; for it had been repealed. The Lord Chief Justice had quoted two other statutes, which had both been also repealed. There was knowledge in a lord chief justice! The Act of Edward I, which was the next, extended the attachment to all receivers, and they were to be imprisoned in irons! There was a beautiful act for a friend of liberty to quote!. Would the chief justice, venture at this day to put that Act in execution?

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One of his own (earl Stanhope's) receivers was a professional man. Suppose that at the time when he ought to account, one of his clients came to him, and insisted on having his will made without delay; or suppose a client wanted to have a marriage settlement prepared, and would not consent to a moment's delay; was he (earl Stanhope) to put him in irons because he did not immediately make up his accounts? Another of his receivers was a justice of peace. Was he to imprison a justice of peace and pot him in irons? Then, there was another Act of Edward 3, but all these were gone. The spirit of the ancient law then, was, that none should be imprisoned but after trial by his peers. Magna Charta was in our old statutes called the great Charter of our liberties. It was less respected now. It was stated to be a declaration of the old common law. Why then, it might be asked, had it been passed? For the same reason that the Bill of Rights was passed after the violations of the law by James 2. By the 25th, 37th, 38th, and 42d of Edward 3, no one was to be imprisoned till he was put upon his defence. The next Act that bore on the subject was that passed in the reign of Henry 4, for the regulation of attornies, the number of which it stated to be very mischievous to the community. It called them "contentious;" and if their lordships preferred that phrase to "pettifoggers," he should have no objection to substitute it in his Bill. It went on to limit the number of attornies, "to prevent them from being vexatious to the people," and fixed the number at six in Norfolk, six in Suffolk, and two in Norwich. He would to God their lordships would now count the attornies, and reduce them to that number! On this subject, there had been continual battles, between the enemies of liberty, on the one hand, and those who supported liberty, justice, and common sense, on the other. Perpetual encroachments were made, and as perpetual efforts to put them down. Adverting to the preamble of the 8th of Elizabeth he expressed his readiness, if required, to substitute that for his own. It reprobated, as his did, the arrest or attachment of persons, against whom, when they were brought to answer, do declaration was made, and who were thereby exposed to great hardship and expence; and the Bill enacted, that a declaration should be put in, in three days from the arrest,—and not delayed, as it now might be, for seven months; which was a most horrible injustice,
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and contrary to reason and common sense. A great legal man had once told him, that he could not reconcile mesne process to any principle of reason or common sense. Many instances had come to his knowledge of the shameful hardships consequent upon it. A naval officer whom he knew, after an absence of four years, returned home, not owing a single shilling; but, by direction of some harpies of attornies, he was arrested in ten minutes after his landing at Chatham, and must have gone to gaol, had it not been for a noble admiral, and a tradesman of the town, who became bail for him. The whole originated in a mistake. The naval officer went to consult a lawyer on the occasion. The lawyer told him, that the event of a law-suit must inevitably be in his favour. When asked, however, how much the suit would cost, he replied, not above 100 l.! Now as the sum for which he had been unjustly arrested was but 30 l. the naval officer begged the lawyer's pardon, and said he should prefer paying the money demanded. He had seen, within the last fortnight, another officer who had returned home after spending 17 years in his Majesty's service. He owed a person 20 l. which he had never paid, because he had received a letter from his creditor desiring him to suit his own convenience. He was, however, pounced upon by mesne process. And to how much did their lordships imagine a conscientious attorney contrived to run up the costs in two months? To 150 l.! Was not this scandalous? Was the authority for such a nefarious practice to be permitted to remain on the statute book? Another person, a respectable merchant of the name of Maule (his were not sham, cases), having gained a law-suit, gave his attorney power to receive the proceeds. To his great surprise, however, the attorney, without asking leave, reserved out of these proceeds 30 l. for himself. Mr. Maule, on this, applied to an honest attorney (a plant of rare growth), who scratched out most of the charges, and signed his name at the bottom of the bill. On Mr. Maule's expostulating with the first man on his exorbitance, the insolent answer was, "if the money is an object to you, it is none to me; take it back" The more he investigated these subjects, the more he was persuaded, that as the mystery of special pleaders was to annul common-sense (an opinion which he had before advanced in that House), so the

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mystery of attornies was annul common honesty. Hudibras had very justly and very finely apostrophized them:—
"you pettifoggers! dame your souls!
"Who share with knaves in cheating fools!"
The mesne process was peculiarly injurious to commerce. A merchant could not always command his capital; and if suddenly attacked, he must frequently stop payment and be ruined; for bail was not always to be obtained. The other day a merchant, so arrested by mistake, was ruined in consequence, the circumstance having completely thrown him on his back. And in one of the ablest and best reasoned letters that he had ever read, it was observed by the writer, that he would rather trust a man with a smaller capital if there were no mesne process in existence, than a man with a large capital if the mesne process were in force; because the mense process might bankrupt the one, from which evil the other might be exempt. On that subject much useful information would be found in an admirable pamphlet, written by a barrister well known in Westminster and at the Westminster elections, Mr. Jennings, entitled, "A Free Enquiry into the merits of lord Redesdale's Bill." There was another class of persons to whom mesne process was very injurious. He appealed to the bishops, some of whom had once been poor themselves, in behalf of their poor brethren. A reverend clergyman, with a large family, oppressed by illness and other evils, might be suddenly taken by mesne process and dragged to gaol, there to lie, exposed, perhaps, to the severest rigours of winter, for seven months, without knowing why, and for 12 or 15 months without a trial of his case. This English slave trade was worse than the African slave trade. The African slave trade affected only individual negroes; bat in this not only the individual immediately affected was in all probability ruined; but when he fell, others fell in succession, like a set of nine-pins. As, therefore, their lordships, in their justice, humanity, and policy, had abolished the African slave trade, he trusted they would assist him in abolishing this English slave trade which was more cruel because applicable to a greater number of persons.
Lord Ellenboroughrepeated his assertion on a former evening, that the recital in the preamble of the Bill introduced by the noble lord—namely, that mesne process was contrary to the ancient law of the
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land—was unfounded; and added, that no difference was made in the Question, even were the three statutes to which he had referred repealed, which he did not believe they were. But if he had only quoted the 53d of Henry 3, (enacted so soon after Magna Charta), it would appear by that statute, that persons were then liable to be held to bail on mesne process The preamble of the Bill stated, that attachments, of the nature to which the Bill referred, were against Magna Charta. That he positively denied. They were as old as the law. Arrest for contempt was essential to the protection of all the courts of justice, and was coeval with the establishment of those courts. It was a perverted view of Magna Charta to say, that mesne process was in contradiction to it. But if it had been so, was not a subsequent legislative proceeding—that of the 53d of Henry 3, equally potent? At all events the Act of Henry 6, in 1444, defined the mode in which persons arrested on mesne process should be delivered on putting in bail to the sheriff; so that the practice which the noble lord had pronounced contrary to the ancient law of the land, had unquestionably existed 370 years. Since that period, certainly, every thing had been done to mitigate the evils and inconveniencies of arrests. By the statute of the 13th Charles 2, the material alteration was introduced, that unless a party stated the true cause of action, he could not hold to bail for a larger sum than 40 l. That Act also, let it be observed, referred in its preamble to the antiquity of mesne process; for the preamble commenced thus: "Whereas by the ancient and fundamental law of the land, &c." Still, however, it was not provided, that the party should swear to the cause of action until the 12th of Geo. 1, which enacted, that unless a party made affidavit of the cause of action, he should not hold to bail for a sum less than 10 l. in the superior, and 40 s. in the inferior courts. By a recent Bill the sum of 10 l. had been increased to 15 l. at which it stood. In actions of trover, in which the value was very uncertain, the judges had interfered, and had declared that no person should in future be held to bail in trover, but under an especial order of the court. And it had so happened, that few instances had occurred in which parties in trover were allowed to hold to bail at all. In cases in which parties sought their remedy by action, if it proved to be a malicious

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proceeding—if, for instance, in a case in which 100 l. was sought only 20 l. was recovered, the parties so proceeding not only did not obtain their own costs, but were compelled by the court to pay the costs of the defendant. Soon after he had the honour to fill the judicial situation which he held, a noble lord brought into the House a Bill similar to the one now proposed. On that occasion, the late lord Kenyon, an individual of unimpeached justice and humanity, having inquired how many persons arrested on mesne process paid at once, and having found that in a great majority of cases that was done, opposed the Bill, and argued as he (lord Ellenborough) did, that however painful the usage might be in some cases, yet that in a great multitude of instances nothing could be more beneficial or more humane to the parties arrested. The noble lord had treated the subject as if it had become peculiarly vexatious at the present moment. He would distinctly deny the inference, that the laws were strained for the oppression of the subject. Every possible care was taken to qualify and mitigate them by the superintending vigilance of the courts of justice. If any abuse existed in the courts of Westminster-Hall, if any act of oppressive severity had taken place in them, he called on the noble lord to adduce it. Situated as he was, it might not be seemly in him to speak highly of the profession of the law; and yet there were occasions, (and this appeared to be one) in which a member, however unworthy, of a profession was called upon, in justice to that profession, to disclaim the imputations which had been thrown upon it. He had sufficiently proved, that the usage in question was in conformity to the ancient law, and was not a vexatious innovation. If the noble lord continued to attack it, therefore, he must attack it on another principle. On this subject he would trouble the House no longer. He had been induced to smile at some of the noble lord's observations; but that was the only compliment he could pay him.
Lord Hollandcould not permit this subject to pass without saying a few words, in consequence of what had fallen from the noble and learned lord. He must say, that, with respect to the antiquity of imprisonment under mesne process, it was better known to the noble and learned lord and to his noble friend (earl Stanhope) than to himself; but there was nothing
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stated on the other side which convinced him that it was not contrary to the antient law of the land. When he mentioned the law of the land, he did not mean any statute since the reign of Richard 2, but what was before that reign considered the common law. But whether it were of more ancient or modern existence, he concurred in giving his vote for the present measure, because he was convinced the law of arrest was liable to great abuse; and it had rarely answered the purpose for which it was intended, to compel the payment of the debt. Upon a former examination it was found, that in the majority of cases of imprisonment the debt was never paid. He was not prepared to say but many words might be altered in the Bill, and many alterations introduced into it in the committee; but even then it might be found, from other difficulties, in-expedient to pass such a measure; yet he considered it his duty to support the principle; for it had always been his opinion, and remained so to the present day, that imprisonment of the debtor was not the intention of the law itself, and that it completely failed in accomplishing its true object, which was the recovery of the debt. The noble and learned lord had not treated his noble friend's Bill with the candour that usually belonged to him; but if the expressions were not technical, he liked them the better; for he was anxious that acts of parliament should be so framed as to meet not only the understanding of their lordships, and men learned in the law, but also that of the people in general. The noble lord concluded by expressing very strongly his concurrence in the principle of the measure.
The Lord Chancellorput the question from the woolsack; when a division was called for, and strangers were ordered to withdraw.
The House having divided, the numbers were—

Contents

10

Not Contents

43

Majority against the second reading

33

Earl Stanhope next moved the second reading of the Bill for the protection of poor debtors; when the question was put, and negatived without a division.