§ The Lord Chancellor
rose to move the second reading of the Imprisonment for Debt Bill. He would state in the outset that he did not participate in that excessive sympathy so enthusiastically professed by some persons for those who were suffering imprison- 61 ment for debt. Whenever he had considered the question how far it might be possible consistently with the interests of the country at large to abolish imprisonment for debt, one of the most important elements of consideration always appeared to him to be, how the creditor could best be secured from loss and facilitated in obtaining the payment of what was justly due to him. Any measure, therefore, which proposed to do away with imprisonment for debt without enabling the creditor by a wiser, better, and more expeditious process to obtain payment of what was due to him would never receive his sanction; and the ground on which he called for the approbation of their Lordships to this Bill was that it aimed, and he hoped successfully, a the attainment of both objects, presenting a better and more available security to the creditor, while it afforded relief to those who by misfortune became involved in debt from the severe pressure which in man) cases the law, as at present existing, un-justly imposed upon them. This subject had to some considerable extent engaged the attention of both Houses of Parliament; and the Report of the Commissioners on which this Bill was founded had been on their Lordships table since 1832. He called their Lordships' attention to the date of that Report, because from what passed on a former evening he was led to suppose that objection would now be made more to the time at which the question was brought forward than to any principle on which the Bill itself was founded. Since 1832 the whole of the facts had been before the public; the Report had been in the hands of Members of both Houses; public attention had for a considerable time been occupied with the subject, and it was therefore to be presumed that noble Lords had made themselves fully acquainted with all the circumstances' of the case. In the last Session of Parliament a measure containing provisions very much of the same nature as those of the present Bill passed the House of Commons, but did not reach their Lordships' House until the l6th of August, when, in his opinion naturally enough, although it had been made a matter of complaint out of doors, their Lordships had decided it was too late to entertain a Bill on so important a subject. He should have been glad had he been able to bring the present Bill under discussion at an earlier period of the Session; but upon that point he had nothing to reproach himself with. It was kid on their Lordships table on June 30th. A noble and. learned. Lord (Brougham) whose 62 absence had this Session been frequently lamented, undertook to bring forward a Bill on the subject, and he (the Lord Chancellor) was unwilling to take the matter out of that noble Lord's hands until no hope was entertained of that noble and learned Lord's return to the business of that House before the close of this Session. With his other engagements it was impossible for him to introduce it before the 30th of June. He hoped, if no objections were entertained to the principle of the Bill, it would not be opposed on the ground that it was too late in the Session now to proceed with it. The Report to which he had alluded rendered it unnecessary for him to detail at any length the objections which existed to the present system, or the remedies which it was proposed to apply. The question divided itself naturally into two parts, according to the two periods at which the arrest might take place. It applied as well to arrest on mesne process at the commencement of the suit, for the purpose of securing the person of the defendant, as the arrest in execution which followed the judgment; and the object of the Bill was to get rid of both. He should first address himself to the latter; because if it could be shown that arrest in execution after judgment was not beneficial to the creditor, it would follow that a great alteration would be required in the state of the law at the commencement of the suit. Nothing could be more objectionable than the present state of the law of arrest after judgment. Judgment having been obtained, the law as it now stood gave the plaintiff the option of proceeding against the goods of the debtor, or of taking his person. If he took his person, he must be satisfied with that; but of what avail was it? It could clearly avail nothing whatever if the debtor had no property; but then it was said, if he possessed property, the pressure of imprisonment would compel him to surrender it. But, strange as it might seem, the law did not enable the plaintiff, except in a very limited number of cases, to take the debtor's property at all. He could take only half the income of the debtors' land—he could take his goods and chattels, but he could not touch his property in the funds. The debtor might be an extensive proprietor in the various public companies—he might possess shares and securities of every kind but the creditor could only take what came under the description of goods and chattels; and cases were frequent of debtors living under the restrictions, or within the rules, of a prison, in positive affluence, and set- 63 ting their creditors completely at defiance. Should such a state of things be allowed to remain? If the debtor had no property, the creditor had the right to imprison him for life, except as the debtor might be released by the operation of the Insolvent Debtors' Act, which had been a considerable time in operation, but which would expire with this Session. Formerly the state of the law in this particular was considered so enormous that periodical Insolvent Acts were passed, up to the year 1813, to clear the gaols of these unfortunate persons; but now, by the present Insolvent Act, a man who could not pay, as well as the man willing to pay, was compelled to remain in prison two months before he could take the benefit of the Act. A comparison of the mode in which the Act for the Relief of Insolvent Debtors operated to the disadvantage as well of the creditor as of the debtor, would convince their Lordships of the anomaly which existed in this law, as compared with the bankrupt laws, whereby a man in trade, who owed a hundred pounds or more, was enabled at once to call his creditors together, and divide his property amongst them; whereas, by the Insolvent Act, all persons who were not traders, were compelled to undergo imprisonment for two months before they could derive any benefit from that process. Such was the state of the law of debtor and creditor with respect to the power of imprisonment after judgement, and what was the feeling exhibited upon this power by the creditor portion of the community? He might state from his own knowledge and experience what were the feelings and opinions of a very great number of persons so situated, who were resident in the city of London. A deputation had lately waited upon him composed of persons engaged in trade and commerce in the metropolis, and it was distinctly stated by them that they would very willingly forego the right of imprisoning a judgment debtor, if on the other hand they were furnished with power to seize his property, for the expense of arresting a person in that situation was oftentimes greater than the trouble was worth. If such was a faithful representation of the effects of arrest and imprisonment after judgment, and if in the opinion of those persons that power was worthless, and moreover not right to be exercised, what circumstance could render an arrest right or proper which should be enforced before judgment was pronounced? Their Lordships were aware that an arrest before judgment was only for the purpose of securing the person of 64 the debtor to answer to the action, and that the bail was discharged the moment the person of the debtor was produced in Court to answer to the action. Why was this done unless to secure the defendant to answer the plaintiff's demand? But surely it must be allowed, if it were improper and inexpedient to exert this power after judgment, it was still less expedient and proper to suffer it to be exercised before judgment was pronounced, or before even the debt alleged was proved to be due. Let him call their Lordships' attention to the mode of arrest in mesne process, and to its operation. Let him ask wherein consisted the justice of that power as exercised against the defendant, and also how it operated to secure the rights of the plaintiff? In the first place it gave the power to one man as against another, and a strange power it was; for all that could be done against a person accused of a misdemeanour, or perhaps a graver offence, was to examine the charges before a magistrate, and either have him held to bail, or sent to prison, or else discharged if innocent; but in the case of a civil suit, any one who might be able to swear that another person owed him a sum amounting to 20l. or more, could compel that person to put in bail for his appearance, or else send him to prison, and it had been found by experience that the expenses of putting in bail were so great that it was not worth while to dispute the amount of a small debt, but that it had better be paid than bailed, and even many cases had shown that if a man owed 20l. and was arrested for 25l., such a person had often rather pay the larger sum than be put to the expense of proving that he owed 20l. and not 25l. In addition to its inherent injustice, the law of arrest on mesne process was often made the means of the greatest possible oppression by the extortions practised on debtors by the officers who executed the writs under pretence of fees and purchased indulgences. The Report stated on this head that great advantage had been taken by Sheriff's officers employed in executing writs by the extortions practised on debtors who were taken into custody by them under the plea of fees for extra indulgences, and who under that denomination were most shamefully plundered. One witness on the creditor side of the question, who was a large trader, stated before the Committee that the inconvenience, the disgrace, and the expenses of the existing system were so great that he would very willingly consent to forego the power of arrest provided he were furnished with any other adequate 65 means for enforcing his debtor to pay to the extent in his power. Now the object of the law of arrest was not to suffer these extortions, inconveniences, or acts of injustice to be practised. Its object was to secure the amount of a debt, and not to compel the payment of a demand under the threat of enforcing an arrest. In fact, experience as well as theory showed, that the power of arrest was very often used to compel the payment of a debt which was not due, as well as one which was justly due? He must, however, be permitted to state that he had not forgotten the interests of the creditor in the proposed alterations; because he was of opinion that the person who stood in that relation was at present put to unnecessary trouble for the recovery of his just claims, as well as the debtor to great hardship. The creditor had a distinct right to have the power of enforcing payment of his debt, and in no less a degree than he now possessed it. He must now turn his attention to an examination of the evils which the Bill was intended to correct. In the first place there was an evident infirmity in the law; in the second place there was an evident evil in exposing the debtor to the hardship of arrest; and, lastly, the law absolutely forbid that the man who might be willing to give up the whole of his property to his creditor, should do so without first undergoing two months' previous imprisonment; and, moreover, if even a debtor was ever so well disposed towards his creditors, and was most anxious to divide his property amongst them, he could not effect such an arrangement unless he had the consent of the whole, without rendering himself liable to the claims of the outstanding creditors. The object of the Bill was, to overcome all these difficulties, hardships, and inconveniences. The first fifteen clauses proposed means by which a more effectual execution might be obtained against the property of a debtor. Instead of being limited to one-half, the creditor should be put in possession of the whole income of the debtor's estate; landed property was also to a much greater extent than under the former Bill rendered liable to the payment of debts under the summary and compulsory process now proposed to be adopted. The greatest difference between the Bill as it now stood and that of last year was in the alterations which it proposed to make in the law of the compulsory enforcement of debts upon landed property. The peculiarity of the law of real property, and 66 the difficulties which existed in the way of making out a title, often rendered it impossible to bring such property within the limits of the law as regarded debtor and creditor; for the sheriff, in cases of seizing real property, could not offer to purchasers anything like so good a title as he was enabled to do in cases of personal or moveable property. The Bill, therefore, gave the creditor the whole produce of the rents of landed property in satisfaction for the space of one year, and before that year had expired, or within that period, the debtor was to be at liberty to seek out other adequate means of satisfying the debt and of releasing his landed property; but if he failed to produce such means within the space of a year, then the creditor was to be considered as having an equitable lien upon the land in satisfaction of his debt. This case could not happen very often, as persons possessed of landed property were seldom if ever unprovided with other means which might be taken in satisfaction of debts, but if not, the creditor was thus provided with means for satisfying them, nor would the debtor complain, inasmuch as he had a whole year to turn himself round in. The Bill dealt with other property in the same way as the former Bill, providing also that in cases where there was a surplus of property, only so much should be taken as would satisfy the debt. It also provided that a refractory or dishonest debtor should be subjected to an examination before Commissioners, in the same way that a bankrupt was now examined, in order to compel a disclosure as to where his property was concealed. It was also deemed right to make it a provision of the Bill, that all judgment debts should bear interest from the date of judgment being pronounced, and in order to compensate for the deprivation of the power of arrest, the creditor should have the power, if his debt were not satisfied within twenty-one days from the day on which judgment was dated, to consider the non-payment as an act of bankruptcy, and to proceed accordingly. The mode in which the Bill would apply to persons not in trade was exactly similar in effect, because the very act of cessio bonorum would entitle him to its benefits. But while the Bill contained these clauses for the advantage of the debtor, it did not altogether lose sight of the power of punishment in cases of fraud or dishonest concealment of property, or where debt had been wantonly incurred. In all cases where substantive offences of this nature 67 were proved against insolvent debtors, the creditor was armed with the power of arrest and detention, and, in this instance, the Bill proceeded in principle upon the same law of arrest as was now in force, punishing, by that process, the fraudulent debtor, but relieving all others from the fear of being taken to prison. If a creditor had reason to believe that his debtor was likely to abscond to another country to defraud him of his debt, it was only proper that he should have some means of getting at his debtor's person in order to prevent him. The Bill, therefore, provided, that in such cases the power of arrest should remain, and even extended it further than the law allowed at present. Under the existing law the creditor could only arrest his debtor at the commencement of the suit; and yet in the progress of it he might learn that his debtor was about to abscond—and then where was the power to prevent him? There was also opportunity given to debtors to abscond from their creditors, especially if they happened to be in the country, owing to the delays with which the suing out of bailable writs was attended. This evil would also be remedied by this Bill, for it provided, that at any stage of an action, upon making affidavit of the intention of the debtor to abscond, the creditor should have power to obtain from any justice of the peace in the neighbourhood a warrant to arrest the person of the debtor. To prevent, however, this provision from being converted into an engine of oppression against the debtor, it was also provided that this warrant should be liable to the supervision of the Judges at Westminster, and that if the party were arrested without due cause, should be dismissed with costs against the creditor who had applied for it. He thought that these provisions would be found a great improvement on the present state of the law, and would prove to be remedies highly beneficial to the creditor. If their Lordships should be of opinion that the Bill did not give the creditor sufficient means to secure his debt, another plan might be devised by which, without inflicting greater hardship on the debtor, greater security might be perhaps given to the creditor. That plan would not form part of his Bill, but he would state it to their Lordships, as it might meet their approbation in case they did not like that which he had already proposed. When there was a declaration verified upon oath of the defendant's intention to escape, an arrest of his person might 68 take place. He would therefore suggest, that the creditor should have the right to arrest his debtor under certain limitations. But as soon as the debtor should have put in bail, the creditor should be bound to bring him before the Commissioner in the country, who should forthwith examine him as to the state of his property. If the Commissioner should, upon that examination, find that he had no property, he would of course order him to be discharged; if, on the other hand, he should find that he had property, he would, without adjudicating on the circumstances, order him to be discharged on giving security to the creditor for the amount of his debt, provided that debt were subsequently proved by the verdict of a jury. This would mitigate, to a certain extent, the hardships of the law. It would anticipate nothing, for the suit would go on as before; and it would have this additional advantage, that it would bring both debtor and creditor together before an impartial person, and would thus stop nine out of every ten actions that were brought. It would bring to the knowledge of the creditor what he had to expect, and to the knowledge of the debtor what he had to perform. This would generally terminate the suit altogether, and obtain for the creditor all that he had a right to demand from his debtor. The Bill, it was clear, could not be carried into effect without the appointment of Commissioners in the different counties of England and Wales. In London, the machinery for carrying the Bill into effect would be found in the existing Court of Review and its Commissioners. Their Lordships had frequently heard of late, that the Court of Review had not sufficient employment. If this bill should pass, they would soon have business enough upon their hands. It was clear, however, that there must also be a number of Commissioners dispersed throughout the country for the purpose of carrying it into effect there. It was admitted on all hands, that great benefit had arisen to bankrupt estates under the recent alterations of the bankrupt laws, and it was likewise admitted that that benefit had arisen owing to the working the bankrupt's estate in the metropolis under official commissioners and assignees. There was a wish to extend the same plan to the country; but there was some difficulty as to the mode in which it was to be done. In the country there were no official assignees, no standing commissioners; and if the system which now prevailed in London 69 were extended to the country, it would require the establishment in each district both of standing commissioners and of official assignees. Now this Bill provided for the establishment of such officers in the various districts of the country, who would perform the business in bankruptcy and also in insolvency, which this Bill would transfer to them. Important as this subject was, not only to those who were now imprisoned for debt, but also to those who sought to recover their debts by means of that imprisonment, it would still be carried into execution without any extensive or complicated machinery. He could not but think that the adoption of the principles of this Bill would be a great blessing to the country—that it would be a great improvement to those who were in the situation of creditors, and to those who were in debt, and who from their inability to pay their debts were now in prison. He trusted that their Lordships, notwithstanding the late period of the session, would turn their consideration to this important question, and that both the debtors and creditors of the country would reap the advantages of their Lordships turning their deliberations to this measure. The noble and learned Lord concluded by moving, that the Bill be now read a second time.
§ The Duke of Wellington
felt, that he owed an apology to their Lordships for rising to address them immediately after the noble and learned Lord on the woolsack; but as this was a subject to which great public attention had been drawn, as there were a vast number of persons deeply interested in the adoption of some measure of this description, and as this measure, by proposing a new system of law, involved in itself very large and extensive interests, he deemed it to be his duty to come forward and to propose to them not to consider it at the present advanced period of the session. The noble and learned Lord had stated accurately to their Lordships the dates of the different periods at which this measure had been previously produced to their Lordships. The noble and learned Lord had stated, that it was brought up to their Lordships' House last year on the l6th of August, and that it was laid on their table this year on the 30th of June; and had compared the period of the 16th of August, 1835, with the period of the 30th of June, 1836, as if there were no other circumstances existing in Parliament to be taken into consideration on this subject, except the dates at which the 70 measure had been introduced. If he was not much mistaken, there was then upon the table of their Lordships a greater quantity of business to be transacted than was ever before known at so late a period of the session. Their Lordships had heard reports, and he hoped that they were well founded, that Parliament would be prorogued at the end of this month or at the beginning of the next. Their Lordships knew of measures of far greater importance which were about to be sent up to them, and on which it would be necessary for their Lordships to decide; and under these circumstances, considering that some of the noble and learned Lords had already set out upon their circuits, and that others of them must soon leave for their circuits, he humbly submitted that, if it was expedient, on the 16th of August, 1835, to postpone the consideration of this measure to a distant period; it was also expedient to adopt a similar course on this 11th of July, 1836, on which day the noble and learned Lord on the woolsack had submitted the second reading of it again to their Lordships' notice. He entirely acquitted the noble and learned Lord who brought forward this Bill last year, and whose absence from his Parliamentary duties he lamented as much as any of their Lordships could do,—he entirely acquitted, he said, that noble and learned Lord, and also the noble and learned Lord on the woolsack, of any neglect of duty in not bringing this Bill forward at an earlier period. What he contended for was, that as they now found themselves at that late period of the session with so much business before them, it was impossible to enter into the discussion of the second reading of this Bill. He did not admit, because he desired to postpone this measure for future consideration, that he therefore approved of its principle; nor did he mean to state at present any opinion upon its principle. But this he would say of this Bill—that there were some parts of it which made an important alteration in the law of England and in the tenure of landed property, and he therefore called on their Lordships not to go on with such a measure at a time when they could not give it ample consideration, or come to a decision which would be satisfactory either to themselves or to the public. He must also observe, that the noble and learned Lord on the woolsack had stated some circumstances which induced him to be of opinion that it would be desirable to postpone the further con- 71 sideration of this measure to a future time. The noble and learned Lord had stated, that in the early parts of the Bill—that is, in the first sixteen clauses—some very important alterations had been made since it was before the House last session. He had likewise to state, that in the concluding parts of the Bill, which related to the power of arresting the person, he should have some alterations to propose at a future time. It appeared to him likewise, that in respect to that part of the Bill which referred more particularly to the creation of patronage, and which formed no inconsiderable portion of it in the consideration of their Lordships, the plan was exceedingly incomplete, and there must be, in his opinion, many more enactments to render the employment of the vast body of Commissioners appointed under this Bill, desirable or even beneficial to the public. He confessed that in the view which he took of this Bill, and he would not enter into many of its details, nor indeed would he follow the noble and learned Lord on the woolsack through those details into which he had entered, he should say of it, that instead of being one Bill, it should be divided into four Bills. There was one part of it quite distinct from all others—namely, that which related to judgment debtors. There was another subject also quite distinct—namely, that which related to what was called the cessio bonorum. There was a third subject, which was also distinct from the others, and that related to the punishment of fraudulent debtors. The fourth and last part was also distinct, and related to the power of arresting the person. In respect to the first of these subjects he must observe, that it made a most remarkable change in the whole system of the tenure of property in this country—a change which might be necessary to adopt to give creditors a fair hold on the property of their debtors, which was a claim that must be attended to, and of which, if it were necessary, he would say at once, "let it be made." He had, however, examined some of the Returns on their Table, and it appeared to him from that examination that the number of judgment debtors in proportion to the number of persons against whom affidavits of debts were filed was really quite trifling. He saw in one of the Returns, that the number of judgment debtors against whom affidavits had been sworn in all the Courts of Law in this metropolis in the last two years and a half, amounted only to 800, though there 72 had been 123,000 affidavits of debt sworn within that time. Now when it was proposed to overturn all the old system of landed property, he implored their Lordships to look at this question from another point of view. From the same Return to which he had just adverted, it appeared that out of the number of persons against whom affidavits had been lodged, there were only 300 and odd whose debts exceeded 1,000l., and not above 100 persons whose debts exceeded 2,000l. And to lay hold of these persons their Lordships were called upon to overthrow all the existing system of real and personal property in England. If it were true that the great landowners of England, and the great merchants of England, were persons who sought to evade the just payment of their debts to their creditors, their Lordships ought to pass this Bill. But if it were not true, then he said, that the first fifteen clauses of this Bill were unnecessary; and he therefore again recommended their Lordships to postpone this Bill for a longer period before they adopted a clause so disgraceful to the gentry and merchants of England as that clause of it which compelled them to give up their property to the payment of those debts which of themselves they were not reluctant to pay. There was another part of this Bill which he did not exactly understand, and which he should wish to have time given to their Lordships in order that they might fully consider it. The noble and learned Lord on the Woolsack had stated what was perfectly true, that the first sixteen clauses of the Bill referred entirely to judgment creditors. The other clauses, down to the 111th or 112th Clause, referred to the cases of debtors against whom no judgments had been obtained. What was the object of these clauses? The object was, to bring those debtors against whom no judgment had been obtained, under the operation of the Bankrupt-laws. But how were they to be brought under the operation of the Bankrupt-laws? They were to volunteer to petition the Commissioners; they could not be arrested; their persons could not be touched; but they were of their own accord to petition the Commissioners to be brought under the operation of the Bankrupt-laws. This was a mockery—nothing more. Could this give any security to the creditor? If the man were arrested, he could then understand how he would be induced to petition to be brought under the operation of the Bankrupt-laws. But under this Bill there was to be no such 73 thing as arrest, and the debtor was, of his own accord, to petition to be made an object for the Bankrupt-laws! In one word he would say, that it appeared to him that it was quite impossible that such a system could ever answer. The noble Duke, whose exhaustion rendered him very inaudible during the remainder of his speech, then proceeded to observe, that the noble and learned Lord on the Woolsack bad spoken of the Court for the Relief of Insolvent Debtors in a way in which it appeared to him that that Court did not deserve. He thought, that that had been a most efficient Court. He saw from the Returns on their Lordships' Table, that in one year 4,509 persons had been in the prisons of the metropolis, some in execution, and others upon mesne process. Of this number, 2,500 had been discharged by order of the Court for the Relief of Insolvent Debtors. At the end of the year 1,500 still remained in prison—and therefore the remainder must have satisfied the claims of their creditors, and liberated themselves. He could not call that Court inefficient which had produced such an effect. That was in London; but that Court had also discharged within the same time not less than 800 persons in different parts of the country. If the period before which the Court for the Relief of Insolvent Debtors will not discharge prisoners in confinement for debt be too long, why does not the noble and learned Lord introduce a Bill to shorten the period? He believed that the period of imprisonment had been fixed at two months, to avoid the commission of those frauds which would be the consequence of that Court's having power to liberate prisoners at the expiration of a shorter period. If the noble and learned Lord on the Woolsack was of a different opinion, why should he not bring in a Bill to continue for a longer period the existence of the Court for the Relief of Insolvent Debtors, and to shorten the period at which they were to be liberated from confinement? With regard to the third part of the Bill, which related to the confinement and punishment of the fraudulent Debtor, he had not seen any sufficiently stringent remedy in it. As the law stood now, the Judge of the Court for the Relief of Insolvent Debtors, had power to refuse to liberate any debtor whom he found in a state of fraud against his creditors or other persons. That was a species of confinement of which he understood the noble and learned Lord on the Woolsack to complain. Under this Bill, however, the fraudulent debtor 74 must be regularly indicted before the ordinary Courts of Law. Their Lordships all knew the difficulties which stood in the way of getting such proofs as would support such an indictment; and the getting of such proofs was not at all facilitated by the clauses contained in this Bill. He now came to what he said ought to be the fourth part of this Bill—he meant the clauses which prevented the arrest of the debtor's person, except in cases where the creditor had good reason to believe that it was the intention of the debtor to abscond to evade the payment of his debt. He believed that the mercantile classes of the country, and more particularly the shopkeepers and traders, were deeply interested in having some power over the persons of their debtors; but their interest in having such power was not greater than that of the lower classes of the people. If the lower classes of the people should have to power to recover their debts, they must often be left in circumstances of great difficulty, especially in times and seasons like the present. Under all these circumstances, he asked their Lordships not to pass a vote which should condemn this Bill, but to pass such a vote as was necessary to postpone the consideration of it; and with that object in view he moved their Lordships to put off the second reading of this Bill from tonight to this night three weeks.
§ Lord Abinger
was understood to observe, that the proposition to abolish imprisonment for debt, after judgment obtained, was a proposition which required the deepest consideration. Imprisonment for debt after judgment had been the law of England from the earliest periods of our history, and was now the law of every other country in Europe. If the Bill contained no other proposition but that, he would require their Lordships to give it the longest consideration that was consistent with the forms of their Lordships' House. But unfortunately this Bill went further; and when he stated the lengths to which it went, and the principles on which it was founded, he thought that their Lordships would see that it was impossible that they could adopt it without further consideration. The most moderate part of this Bill was that which proposed to bring persons who were not traders under the operation of the bankrupt laws. But the powers and machinery provided by this Bill were not required for that purpose. Any person who was a trader 75 might now make a voluntary declaration of insolvency, and so bring all his property under the control of the bankrupt law. The great object of the present Bill was to extend this permission to persons who were not traders. Why could not this be done by a short clause, stating that the same declaration which was now made by persons who were traders should be made by those who were not, and that afterwards the bankrupt laws should be carried into effect? Again, there was the Court for the Relief of Insolvent Debtors. A Bill had been introduced into the other House of Parliament for the continuance of that court for another year. If their Lordships did not wish to extend the operation of the bankrupt laws to persons who were not traders, but were desirous to give parties who meant honestly by their creditors, the power of dividing their property pro rata among them, they would give those parties without imprisonment the same advantages which they now gave to the applicants to the Insolvent Debtor's Court, after an imprisonment of two months. There was another objectional provision contained in the Bill. There were fifty-two counties in England and Wales. In Yorkshire there were three ridings, and in Lincolnshire three divisions, making a total of fifty-six districts. This Bill contained a provision to appoint fifty-six Commissioners, who were to be sergeants-at-law, or barristers of seven years' standing, at a salary of 800l. a-year each; fifty-six registrars, at a salary of 300l.; and fifty-six ushers, at a salary of 60l. a-year each; making, if his calculation was right, a total expense of 76,000l. a-year. In fact, the true principle of the Bill was, to increase the patronage of the Government, and to place all England under the operation of the bankrupt laws. There were a great many alterations in the law which would affect all the property in the country, and which would also affect that system of credit which was the foundation of trade, made in this Bill. He would not say that some of the clauses were not well adapted to the objects which the Bill contemplated, but it was a question of great importance, on which their Lordships ought to proceed with great caution. With respect to that part of the Bill which proposed to give greater security to the judgment creditor, he saw no objection to it. Some years ago, when he had the honour to be At- 76 torney-General, he had introduced into the other House of Parliament a Bill to accomplish that object, but his successor had not taken it up. He had wished to limit the power of arrest to debts above 100l., and to give the judgment creditor greater power over the debtor's property. He had the satisfaction of knowing that his propositions met the approbation of the Chambers of Commerce in London and Westminster; but he found so violent an appetite for extensive reform in the House of Commons, that he could not carry his propositions at all without assenting to the entire abolition of imprisonment for debt. On a subject like the present their Lordships ought to proceed by degrees. He did not object to any gradual constitutional and reasonable reform of the law of debtor and creditor, but he did object to this violent, hasty, and unreasonable alteration of it, and he should, therefore, support the amendment of the noble Duke.
§ Viscount Melbourne
said, that a noble and learned Lord, not now in his place, and whom he did not expect to see in his place before the end of the present Session, had informed him that he did not expect to be present at the commencement of this Session, and it had been agreed between them, that he (Lord Melbourne) should take the noble and learned Lord's place, and bring forward his measures. If any delay, therefore, had occurred with the present measure, it was entirely attributable to those who had undertaken the charge of it, and was in no respect to be ascribed to him. The noble Duke opposite had indulged in very sanguine hopes with respect to the prorogation of Parliament. That event was generally reported as likely to take place at the end of this month or the beginning of the next. That, however, their Lordships well knew, must necessarily depend on the state of public business, and the motion which the noble Duke had made to defer the second reading of this Bill for three weeks, would bring them to the 1st of August. He was afraid, that whatever industry they might exert, and whatever efforts they might make, that day would find them still sitting, and that they would then have to proceed to consider the subject. If it was to come under discussion at all, surely they had better apply to it now, instead of putting it off for three weeks, when it would undoubtedly come again to be con- 77 sidered. The question, as the noble Duke had said, was one of great importance, and of great public interest. Neither the noble Duke, nor his noble Friend who last addressed the House, had declared themselves hostile to the principle or objects of the measure, or unfriendly to the means by which they were to be carried into effect. He could not, then, see why they should not at least go into Committee on this Bill, consider whether the objections made to it by the noble Duke and his noble Friend might not be overcome, and endeavour to attain an object earnestly desired by the country and the House of Commons, and which there was no reason to think was unattainable. He would not enter into the reasoning of the noble Duke, or into the view which he had taken of the measure, but he did not see in the arguments urged by him any solid grounds for postponing this Bill, or for refusing now to enter into the consideration of it. He perfectly agreed with the noble Duke, that the weight of business pressing on this House was matter for serious consideration, but he saw nothing in it which should deter them from proceeding with the present measure. This period of the Session was extremely early, compared with the time to which they had been of late accustomed to sit. It was very rarely that the House had risen of late years before the middle of August, and sometimes its sittings had been protracted till several days of September had passed; and he thought they had little reason to consider themselves now as approaching the termination of the Session. Having so much spare time before them, he thought that the business, though important, would not be so extremely pressing and overwhelming as was represented. He could not at least see why they should not enter on the consideration of this subject.
§ Lord Abinger
remarked, that the last clause of the Bill deferred the operation of it till the 1st of January, 1838, so that no very great loss of time would result from its postponement at present.
§ Lord Wynford
objected to originating a measure of this importance at such an advanced period of the Session, when it was vain to expect that its provisions could be considered as fully as was requisite. He contended that the Insolvent Debtor's Act contained all the power necessary to get at every penny of a debtor's property, and must object to the powers given to judgment creditors by this Bill. He entertained the greatest objections 78 to the appointment of the host of new Commissioners proposed to be created under the Bill, and thought it would lead to a very dangerous and unnecessary increase of patronage. He should vote for the amendment of the noble Duke, because he considered it a gentle way, not of getting rid of the Bill entirely, but at least of getting rid of it till they could find time to consider it.
§ The Lord Chancellor
said, that he would take occasion to repeat what he had before stated, that the great object of the Bill was to prevent debtors from defrauding their creditors, and from lying in prison and wasting their creditor's property. His noble and learned Friend (Lord Abinger) had suggested that the object of the Bill might be attained by a short Bill, enacting that persons not traders shall be subject to the same laws as traders, or another short Bill to perpetuate the Insolvent Court. Such a Bill might save a little expense in paper and printing, but would certainly be inefficient and defective, since it would reconstruct the whole of the old bankruptcy system. His noble and learned Friend seemed to suppose that if the Bill were short, the number of persons necessary to carry it into effect must be small, as if where the quantity of business to be transacted was the same in either case, the number of persons to carry the Bill into effect must not be the same, whether it consisted of one clause or of twenty. Did his noble and learned Friend mean that the seven Commissioners of Bankruptcy in London were to perform the functions to be discharged by the Commissioners under this Bill? If they were not to do so, then surely there must be Country Commissioners. Formerly there were seventy Commissioners of Bankruptcy in London, but the Bill introduced by Lord Brougham, confined the number to six, and the business was much better done than before. Whether this Bill passed or not, it was essential that the law should be carried into effect in the great commercial towns, as far as possible, on the same principle as in London. If its machinery was too complicated, if the Commissioners whom it proposed to appoint were too numerous, it would be in their power, after the measure became law, to reduce them to the smallest possible number, and to make their remuneration the smallest possible. There was not, he believed, more machinery provided for carrying this Bill into effect than was absolutely neces- 79 sary, and certainly it was not proposed to appoint it with a view to the creation of patronage.
§ The House divided on the original motion—Contents 22; Not-Contents 46—Majority 24.
|List of the CONTENTS.|
|The Lord Chancellor||Bristol|
|DUKE.||Litchfield and Coventry|