HL Deb 30 June 1831 vol 4 cc483-93
Lord Wynford

rose for the purpose of laying on the Table a Bill similar to a Bill which he had submitted to their Lordships in the last Session; and which, after having passed this House, had been stopped in the Commons by the dissolution of Parliament taking place before it could be carried through. The object of the Bill was, to enable creditors to avail themselves of the property of persons who remained in prison after a certain period, and also to get hold of the property of those persons who went beyond the seas for the purpose of avoiding the payment of their just debts. Since the close of the last Session he had diligently reconsidered the subject, and his opinions had been considerably strengthened by his inquiries, and particularly by one or two cases which had but recently occurred. They had satisfied him that the Lords' Acts which he had before proposed to extend to such cases, would not answer the object he had in view. He had intended to introduce into the present measure, the compulsory clause of the Insolvent Debtors' Act, with reference to individuals who were abroad, and therefore not in custody; but, on consideration, he deemed it better to proceed on the principle of the bankrupt law. The system of outlawry, as it was now administered, was not practicable for its object; and a recent circumstance had more than ever shown the inadequacy of the existing legislation. The process of outlawry was tedious, expensive, and troublesome; and it gave the creditor but a slow relief against the property of the person who became liable to it. What he proposed to do was, to bring the two classes of persons, both those who went beyond the seas, and those who remained in prison for a cer- tain time, within the operation of the bankrupt law. The whole purpose of his Bill was limited to those persons who lay in prison, rioting on the property of the creditors, and to those who went to foreign countries to enjoy luxuries, while those to whom they were indebted were deprived of comforts at home. To this he did not anticipate any objection, for surely nobody would contend, that a person who disgracefully sought the means of avoiding an act of justice should not be subjected to the same law as the honest tradesman who had been simply the victim of misfortune. Neither had he much consideration for the feelings of those persons who voluntarily disgraced themselves by lying in prison, and consuming the property of others, and would not care for the further degradation which this Bill might inflict on them. But, in reality, the Bill would be attended with some beneficial results to those whose unhappy fate it was, to be brought within its operation; and instead of, as at present, all their effects being swept away by the Insolvent Act, to which they were now amenable, they would be entitled to a percentage, as all bankrupts were, on the amount of the sum which their estates divided, and they would also be entitled to the protection from future arrest or legal proceedings, by the certificate which honest bankrupts invariably received from their creditors and the Lord Chancellor. If their Lordships took the trouble of considering the subject fully they would find, that it was necessary that something should be done; and if they took a survey of the prisons of London alone, without speaking of the country, they would find more than 100 persons livens luxuriously in them, while their creditors were starving. If they looked to the different parts of the Continent where the English were assembled, they would there see a number of persons living abroad in extravagance on the produce of that properly which in justice belonged to their creditors at home. It was evident, that means should be instituted for the purpose of getting hold of the property of those persons, and by his Bill he proposed, that any person who remained in execution and laid in prison for three months should be considered as having committed an act of bankruptcy. By that he only followed up the principle which was already well known to the law, of considering the lying in prison for a certain period as an act of bankruptcy. He also proposed, that those persons who went abroad with intent to defraud their creditors, and who continued absent after the service of a bailable writ at their last place of abode, and after a certain number of advertisements in the Gazette and in the public newspapers, should also be declared to have committed an act of bankruptcy, unless they made an appearance to the action within three months after the service of the writ, or paid or compounded the action. He had taken care to except persons who were employed in the public service, and he had also made some other exceptions, which their Lordships would become acquainted with in the progress of the Bill. He would not at present occupy the time of the House; and he hoped that their Lordships would show the same indulgence to that Bill which they had done to the bill of last Session.

The Earl of Fife

said, that when this and another bill of the same nature were before the House last Session, he alone, of all their Lordships, had ventured to oppose them, and to show how unjust and unequal their operation would be. The noble and learned Lord had declared, that his sole object was, to extend equal justice to all men; but in his (the Earl of Fife's) opinion these Bills rendered any thing" but justice, and he considered them a subversion of the established rights of a part of the community. Instead of correcting the law as it now stood, the Bills added to the severe evils already inflicted on society by the arrest for debt, and the power of imprisonment where there was the inability to pay. The noble and learned Lord last Session accompanied these Bills by another, which he was surprised not to see him now bring forward, and he apprehended there was something rotten in the state of Denmark by his withholding it. He saw from the gesture of the noble and learned Lord that he was wrong, and that the noble Lord would persevere in also producing that Bill. He was sorry for it, as the effect of all these Bills was, to extend the cruelties arising from the system of arrest for debt and imprisonment; and he was sure, that any person who inquired into the operation of that system would see, that it had only the effect of throwing money into the hands of the worst part of legal practitioners; and it was a system which ought to be abolished instead of extended. By the law, as it now stood, the honest and the just debtor was thrown into prison, and all his property was taken from him—not to be divided among his creditors, but to be portioned out by a nest of hornets. The low agents of the law squeezed every thing that they could from the creditor as wall as the debtor, and then the latter was thrown into prison, to answer in person the sin of poverty and of ruin. The law, as it now stood, was harsh enough; and surely the Bills of the noble and learned Lord were not necessary to add to its infliction. The Bill, if it passed the Legislature, would be one of the most unjust and severe that ever received the sanction of the Legislature. He had that impression concerning it as it was in progress through the House during the last Session, and he regretted to say, that every inquiry he had made since, confirmed that opinion, and he felt, even more strongly than he did before, how cruel and oppressive it would be. The noble and learned Lord said, he had brought it forward on the score of humanity, but the direct contrary would be its effect; and, instead of its having any of the attributes of mercy, it was only calculated to enlarge the profits of low attorneys, and to hand over to them the property of unfortunate individuals. It was a Bill to give costs to attorneys, and not to find payment for the just claims of their clients. The noble and learned Lord said, he was anxious to get hold of the property of those persons who laid in prison, living luxuriously on the money which belonged of right to others. If there were any such persons, they were, he believed, very few in number, and their vices or their crimes should not give rise to a law which would compromise a great many innocent individuals. The noble and learned Lord might rest assured that his Bill would never reach those persons who had the wickedness to remain in prison consuming the property of their creditors; for they had ingenuity enough to defeat all the operations of the law, and he would find that they would in the end defeat him and all his coadjutors in legislation. Do what he might, they would take care that their property should not be got at; therefore all the humanity of the noble Lord would be turned to injustice. The noble and learned Lord, in introducing the Bill that day, had adopted a different tone from that used by him on a former occa- sion. The noble and learned Lord had described this measure as an act of humanity to the great mass of individuals confined for debt; but what was their own opinion upon the subject? With their Lordships' permission he would read a document to them, in which the confined debtors expressed their feelings. It was prefaced by three mottos; the first of which was an extract from a speech delivered by Lord Eldon! which was this. "The law of arrest for debt is a permission to commit acts of greater oppression and inhumanity than are to be met with in slavery itself; a permission to tear the father from his weeping children, the husband from the distracted wife, and to hurry him to a dungeon, to linger out a life of pain and misery." The opinion of the confined debtors, whom the noble Lord formerly pretended to relieve, was as follows:—"Among the rubbish which the late dissolution of Parliament swept away, was that Bill which Lord Wynford had been induced (the Lord knows how) to put forward, under the title of—a Bill to prevent frauds upon creditors by debtors; but which, if passed, would have operated much more to hand over both debtors and creditors to the fraudulent and extortionate contrivances of one branch of his Lordship's profession. Among other merits of the measure of the late dissolution of Parliament, it was not the least deserving of gratitude, that it stopped the stealing progress of one of the most unjust and disgraceful Bills ever attempted to be palmed on a legislative assembly." The pretence of this, as of all similarly cruel Acts, was, to get at the property of the debtor, for the benefit of the creditor; but their operation was defective; and if there was property, they took it from the one, not to give it to the other, but to divide among the harpies of the law. The impotency of the law of arrest was proved by the records of the Insolvent Court, where, out of 50,000 different instances, not one farthing in the pound was divided among the creditors. The whole estate of the insolvent was swallowed up by lawyers in putting him in prison, and in getting him out again. That fact was stated at a meeting of bankers and merchants, and he believed there was no doubt of its truth; and the person who asserted it attributed the smallness of the dividend to the operation of the wicked artifices of attorneys on the minds of inordinate and severe creditors. He hoped if the objections he had raised against the Bill, though he, unfortunately, stood single in his opposition to the Bill of the noble and learned Lord last Session, were not sufficiently strong to induce the House now to reject it, that their Lordships would investigate and examine it closely in detail before they gave it their sanction and sent it to the other House. He knew, that many persons thought that the law as it now stood did not afford sufficient protection to the rights of creditors; but he could not be induced to think, that their interests would be advanced by extending the principle of arrest and imprisonment. That law was unjust as well as foolish, and it only encouraged bad men to attempt to cheat each other, and to tyrannise over each other, for the benefit and profit of lawyers. If the people of England were fond of law, they had a fulness of it, even to a surfeit; but they perhaps would find, that no better system could be devised for the advantage of those crafty Normans, who would, by it, be enabled to divide amongst them the property of the country, instead of resorting to arms, as they had formerly done, for that purpose, and availing themselves of all the assistance which castles, dungeons, and strong places afforded. In his opinion, the principle of the law as it now stood should be narrowed, and not extended, and every true friend to humanity would gladly see the evils of arrest and imprisonment for debt alleviated instead of increased. Thousands of people were kept in prison for debt, whose children, perhaps uneducated, were thus made the associates of felons, and taught those habits which afterwards made them fit company for felons, and subject to felon punishment. Under the present law it was easy enough to punish a man as fraudulent, and by the present Bill, facilities would be given to inflict penalties on the innocent. A proof of the evils already inflicted by the law might be found in the fact, that a Committee, appointed some years before to visit the prisons, found an unfortunate debtor, Sir William Neeck, in irons, and though the goaler was discharged, prisoners afterwards fared no better. The commencement of imprisonment for debt might be traced to the reign of Richard 2nd, when riots were occasioned by bills similar to those then under discussion. He would beg leave to quote an extract from a work to illustrate what was then the consequence. "The next year another Parliament was called, when the privileges of the sanctuary at Westminster were regulated; for whereas before, great numbers of persons, when they were got in debt, would shelter themselves, and waste in revelling and debauchery their revenues, which could not be touched for their just debts, to the grievous prejudice of their creditors: it was ordained, that if, upon proclamation made, they should not surrender themselves, then their goods should be sold, and their lands extended, wherever found, till their debts were satisfied. Afterwards a poll-tax was imposed on all above sixteen, and this was so mismanaged, that when it came into the Exchequer it amounted not to half so much as some former taxes; and a commission issued to review the levy, where great oppressions were committed. Hence, in the spring following, arose one of the most formidable and mischievous insurrections that had been heard of almost in any age. But, whatever were the provocations, dismal were the effects, and it might have proved fatal—to the utter ruin of the kingdom. Some say in Essex, some in Kent, the uproar began; the most received opinion is, that Wat Tyler, of Deptford, was the ringleader: one of the collectors, coming to his house, and offering an insult to his daughter, with his staff he beat out the collector's brains. He, drawing together great multitudes, broke open the gaol at Maidstone; and growing still more numerous—some say an hundred thousand strong—they beheaded all lawyers they could catch, saying, till they were rooted out, the land would never enjoy free liberty." Again, under Henry 8th, similar tumults took place in consequence of the introduction of the Bankrupt Laws, and Lord Herbert of Cherbury, then said, that this monarch had many-very clever lawyers about him, but yet none learned in the Common Law. He must remark, that it was very strange the noble and learned Lord who had presided over that which had been called by Sir Edward Coke, the key of the Common Law, should be anxious to introduce the practice of the Court of Chancery; while the noble and learned Lord, who had now become familiar with the practice of the Court of Chancery, was, on the contrary, desirous of assimilating it to the Common Law. Returning to the tumults in the reign of Henry 8th, he stated, that 300 people had been deputed by the rioters in Yorkshire to lay their grievances before the King; and amongst their grievances was one to the effect that persons were compelled to attend as witnesses at the Courts of London, and they prayed that this might not be so in future, because they were harassed by the lawyers. It happened, therefore, that the complaint of people being harassed by the lawyers was no new invention of his. The system of arrest and imprisonment for debt was condemned by all the great constitutional writers. De Lolme said, that arrest for debt was practised in England because there the science of legislation was in its infancy. "In England, likewise," said he, "some changes we may observe have been wrought in the law and practice concerning the arrests of sued persons, though as slowly and late as those effected in the Roman republic or empire, if not more so, which evinces the great impediments of various kinds that obstruct the improvement of laws in every nation. So late as the reign of King George 1st, an Act was passed to prohibit the practice of previous personal arrest, in cases of demands under 10l.; and Courts of Conscience were afterwards created. A bill afterwards, in 1779, enacted on the motion of Lord Beauchamp—whose name deserves to be recorded—by which the prohibition of arrest was extended to all cases of debt under 10l. sterling—a bill, the passing of which was of twenty, or even a hundred times more real importance, than the rise or fall of a favourite, or a Minister, though it has, perhaps, been honoured with a less degree of attention by the public." The same author said, that in this country the debtor was treated like a slave. And he (the Earl of Fife) hoped that the noble and learned Lord on the Woolsack, who was so great a friend to the emancipation of slaves, would not sanction this Bill, which treated British subjects not only as slaves but as felons. The noble Lord next proceeded to illustrate his subject by allusion to the tumults in ancient Rome, where the people were enslaved on account of their debts till they arose in rebellion, and arrest for debt was done away. Livy described this scene. "The same year the commons of Rome obtained as it were another beginning of liberty, by being discharged of that thraldom which they called Nexus, an obligation when debtors were bound to be slaves and work till the debts were paid. The law on this point being altered by reason of the filthy lust and no less detestable cruelty of a particular usurer, L. Papirius— to whom C. Publius, having a debt of his father's, bound himself after that fashion —he endeavoured to treat him in an infamous manner, and, not succeeding;, the savage usurer caused the youth to be whipped, who ran forth into the open street, torn and mangled, and set up a cry against his inhuman creditor. The crowd commiserating the young man, and viewing with indignation and abhorrence the circumstance, and sympathising in respect of what might befal themselves or children, they crowded to the Forum, and shewed the young man's mangled and bloody back. Thus, for the outrageous injury to one person was that mighty public bond cancelled and for ever annulled, the consuls being ordered to prepare a law, to be passed by the people, that from that time forward no person be kept in irons or cords; and that only the estate and poods, and not the body, of any debtor, should, for the future, be chargeable for monies owing. Thus, all who were enslaved on that account were discharged, and provision made that none should be liable to the like thraldom for the time to come." When he had thus connected various tumults, from the days of Rome, through the period of Wat Tyler, to the present time, with the law of arrest, it would be prudent in their Lordships to be cautious in their proceedings. It was said, indeed, that without the power of arrest, commerce would decay, but the imprisonment of the body was not necessary to the maintenance of public credit; and in his opinion those persons who imagined that commerce was supported by the arrest for debt were as infatuated as the adherents of Joanna Southcote. It was, probably, known to most of their Lordships, that the Marquis of Beccaria, who had written so ably on crimes and punishments, was, at one time, favourable to arrest for debt. He had subsequently altered his opinion, and left the following testimony, the fruit of his ripened judgment, upon record. "But the bankrupt who, after a strict examination, has proved before proper Judges, that fraud, or losses, or misfortunes, have stripped him of his substance, upon what barbarous pretence is he thrown into prison, and deprived of the only remaining good—the melancholy enjoyment of his liberty? Why is he ranked among animals, and, in despair, compelled to repent of his honesty, conscious of his innocence? He lived easily and happily under protection of these laws, which, it is true, he violated, but not intentionally—laws dictated by the avarice of the rich, and accepted by the poor, seduced by that universal flattering hope which induces men to believe that all unlucky accidents are the lot of others, and the most fortunate only their share. Mankind, when influenced by the first impressions, love cruel laws; although, being subject to them themselves, it is the interest of every person that they should be as mild as possible; but the fear of being injured is always more prevalent than the intention of injuring others. If perfectly honest, let the bankrupt choose for himself the method of re-establishing himself, and of satisfying his creditors. If he is not strictly honest, let that be determined by his creditors, but not left to the arbitrary and dangerous prudence of Judges. It may be alleged, that the interest of commerce and property should be secured, but commerce and property are not the end of the social compact, but the means of obtaining that end, and to oppose all the members of society to cruel laws—to preserve from evils necessarily occasioned by the infinite combinations which result from the actual state of political societies— would be to make the end subservient to the means—a paralogism in all sciences, and particularly in politics. In the former editions of this work I myself fell into this error, when I said, that the honest bankrupt should be kept in custody as a pledge for his debt, or employed as a slave to work for his creditors. I am ashamed of having adopted so cruel an opinion. I have been accused of impiety—I did not deserve it. I have been accused of sedition—I deserved it as little. But I insulted all the rights of humanity, and was never reproached." Such was the opinion of Beccaria, and he would call on their Lordships not to run the risk of insulting the rights of humanity by passing this Bill. He would only further remark, that it would be exceedingly strange, that this Bill, which went in itself to form a new Constitution, as far as poor creditors were concerned, should be suffered to pass almost without a comment, as a similar measure had in the last Session, when the Reform Bill, which also tended to the creation of a new Constitution, was about to be so fiercely disputed. It was true, the noble and learned Lord in his Bill did not dare to call the people slaves, though he was most willing to treat them as such. He trusted their Lordships would not give their sanction to a Bill which would only enable one individual to prosecute another without benefit to himself, and bogged to inform them, that a similar measure had been recently rejected by the American Congress, who declared they would not render such a mass of the people liable to be reduced to bankruptcy, observing, at the same time, that they inherited many good things from England, but that they had inherited too much of her law. He wished that the British Legislature would show a similar discretion, and endeavour gradually to lessen the extent of that system which, according to the poet, Entangled Justice in a web of Law.

Bill read a first time.

On the Motion of Lord Wynford, a Bill to prevent delay in the proceedings of the Courts of Law was also read a first time.