HL Deb 06 March 1832 vol 10 cc1158-61
The Lord Chancellor

moved, that an humble Address be presented to his Majesty, praying that his Majesty would be graciously pleased to order to be laid upon their Lordships' Table a copy of the last Report of the Commissioners for inquiring into the proceedings in suits in the superior Courts of Common Law. It was not his intention, at present, to enter into any detailed exposition of the contents of that Report, or into any discussion of the merits of the alterations and improvements in law proceedings which it recommended. But he might state, that a more important document had seldom been printed, or laid before Parliament. The Commissioners had conducted the inquiry with the most exemplary industry and impartiality, and with the most consummate intelligence, and had collected a mass of evidence of the highest importance, in regard to the topics to which their attention had been directed; and, moreover, had given opinions upon these topics, and upon the effect of the evidence, which were worthy of the most serious consideration of both Houses of Parliament. He might mention one important topic to which they had paid particular attention, and as to which they had collected a great deal of most valuable evidence—he meant, the process of law as between debtor and creditor. On this point, also, they had given their opinions, founded, as their opinions generally were, upon true and solid principles of improvement; and the majority were of opinion, that imprisonment for debt, both on mesne process and in execution might be entirely abolished, except under very particular circumstances. That creditors should have every means of getting payment of their debts from debtors who could pay if they chose—that all means should be taken from debtors of fraudulently defeating the just claims of their creditors—that all those anomalies should be expunged from the law, by which unfair debtors were enabled to set their creditors at defiance—that those rules of practice should be abolished, by which creditors were hampered in their attempts to recover their debts, and by which fraudulent and unfair debtors were enabled to escape from the payment of their just debts—were principles founded on the soundest and most solid reason; and there was hope that those inconsistencies in law proceedings, which stood in the way of these desirable results, might be gradually and temperately, but effectually, removed, if this Report should receive the sanction of this and the other House of Parliament. When he spoke of the abolition of imprisonment for debt on mesne process and after judgment, that must of course be understood as coupled with the putting of means into the hands of creditors for the recovery of their debts, of which, by the law, as it at present stood, they were deprived, and of which they had for a very long time, if not for nearly timeout of mind, been deprived, by the alteration of circumstances, with reference to common law proceedings. The principle of the law, no doubt, originally was, and must have been, that the whole of the property of a debtor should be liable to the claims of the just and bona fide creditor. It never could have been meant, that, while what was technically called the goods of a debtor should be liable to the claims of a creditor, that more important part of his property, which did not come under that technical denomination, should be exempted. In the earliest state of the common law, these goods and chattels were generally all the property that a man possessed, and to these the common law process was confined. But, in progress of time, circumstances were altered, and a most important and large mass of property arose, founded on credit; and this property the creditor found it impossible to attach by the common law process. The great bulk of the property of a debtor might consist of credits. He might have property in the public funds, for instance, to a hundred times a greater amount than the goods and chattels, or personal property, in his possession; and yet there was no provision in the common law by which the creditor could directly attach that species of property. A man might have the great bulk of his property in the funds, and there it was exempt from the common law process. The great bulk of a man's property might consist of debts due to him; but this property the creditor could not reach by the common law process. Nay, the debtor might have gold and silver on his table—the very gold and silver borrowed from the creditor himself—and yet the creditor could not touch the money, not even his own gold and silver, by the common law process; and the oracular reason of the law was, that money did not come under the technical denomination of goods, and that it would be removing landmarks and essential distinctions, if money could be taken even in a process in execution against goods. He mentioned this merely as an instance of defect in the law which called loudly for amendment, without at all meaning to go at length into a discussion of the subject of the Report. He mentioned it to show that the adoption of the improvements in this particular recommended in the Report were not, properly speaking, innovations or alterations in the principle and foundation of the law, but only applications of the original principle and reason of the law to the change of circumstances which had taken place since the common law process was first framed and established. What was proposed was, to give its full effect to the principle of the common law, by adapting its process to the new state of circumstances, by bringing within the reach of that process the property founded on credit, which, when the process was originally formed, had scarcely any existence. The Commissioners had also investigated with great pains, calmness, judiciousness, and ability, the subject of imprisonment for debt on Mesne Process and the majority of them were of opinion that imprisonment of the person on Mesne Process might under certain circumstances, be dispensed with, as well as imprisonment in execution. But this, of course, must be accompanied by putting increased powers into the hands of the creditors to get at the effects of the debtors; and even imprisonment might still be retained, as a means of compelling a debtor to give up his property, and also as a punishment for fraud or criminal conduct, either in a legal or a moral sense—for acts which should be either legally criminal, or quasi criminal, as being crimes in a moral point of view. If a debtor fraudulently refused to surrender his property, he would have no just reason to complain that he was imprisoned until he did surrender for the payment of his just debts, nor would he have any just reason to complain if he should be imprisoned as a punishment for having endeavoured to defeat his just creditor by fraud, or any other act legally or morally criminal. People might, by an extravagant expenditure, as compared with their incomes, contract debts which they must themselves be well assured they could not possibly pay; and this might be considered as a fraud, and might properly be punished as such. Where a debtor refused to surrender his property, or when he had fraudulently contracted debts, in either case imprisonment might still be retained—in the one case to compel payment, and in the other as a punishment. This appeared to be very sound doctrine, and one which well deserved to be sanctioned by the Legislature. There was another instance in which imprisonment on Mesne Process might be properly retained, and that was, when there were reasonable grounds to apprehend an escape, and in one or two other cases with which he would not then trouble the House. He had thus stated very generally the nature and amount of this Report on the subject of law process as between debtor and creditor. The Commissioners had collected a great mass of most valuable evidence, on which a considerable difference of opinions would be found, and it was his duty to state, that as to the total abolition of imprisonment for debt under the modifications which he had mentioned, there was some difference of opinion among the Commissioners themselves. But this only proved the complete fairness and unbiassed impartiality with which the Commissioners had performed the task which they had undertaken. The fact, however, was as he had stated it, and he considered the Report, therefore, as to the particulars in which the difference had existed, only as the Report of the majority. There was another topic to which the attention of Parliament had been called by himself and others at a former period—and that was, the providing of a more cheap and expeditious process for the recovery of debts under 50l. or 60l. In the improvements recommended in this Report, the majority of the Commissioners had already the concurrence of many in this and the other House, and it was probable that its perusal would gain over some who before differed from them, while those who had before entertained similar opinions would have these opinions confirmed. The noble and learned Lord concluded by putting his Motion, which was agreed to nem. diss.