§ The Lord Chancellor
rose to move the second reading of the Bill for abolishing imprisonment for debt. He said that, he should not occupy much time in calling the at- 551 tention of noble Lords to the very important subject of the Bill which he had formerly presented to the House. The object of the Bill was, to make a very great alteration in the law, and in a branch of it which, perhaps more than any other, involved the interests of commerce. He did not believe that there were many persons who were not in the situation of either creditor or debtor, unless those in the lowest classes of society; therefore, any proposition affecting such a large proportion of the community demanded the serious attention of the Legislature. He admitted that if the proposed alteration of the law were carried into effect, it would materially alter the relative situation of persons engaged in commerce and manufactures, or on whose dealings with respect to each other the prosperity of the community might be considered, in a great measure, to depend. It was a subject which had for a long time been before the public and under the consideration of Parliament. It had occupied the attention of the other House for several Sessions, and two Bills had been sent up from the other House, having for their object the same purpose as that proposed by the Bill on the table. It was true, however, that these Bills differed in many respects from that he had introduced; they differed as to the extent to which those Bills proposed to carry the measure rather than in the provisions which would be found to form the subject matter of the present Bill. In the Bill which he had had the honour of introducing in 1836 there was a part which he had thought it expedient to omit in the present Bill. It made provision not only for altering the situation of creditor and debtor, as related to the remedies one had against the other, and to the relief to which the debtor was considered entitled; but it also contained provisions which he thought of a very salutary nature, but which it was thought so far encumbered the present Bill that those who prepared it found it far better to leave that part of the subject entirely out of it. He meant that part of former Bills which framed a machinery which enabled parties to make what was called a cessio bonorum, that was to make a division of their property equally among their creditors; in short it was to a considerable extent to extend the provisions of the bankrupt laws, at the option of the debtor for the benefit of his creditors. In omit- 552 ting, therefore, parts of the measure of 1834, 1835, and 1836, he by no means wished to express any opinion against leaving out those provisions from the present Bill; on the contrary, he thought that it was a matter which should be reserved for another and separate measure, and therefore the House would have to consider this measure alone, without its being prejudiced, as the former Bills were, by any additions which did not necessarily belong to it. The object of the present Bill was strictly confined to improving the mode of process and the remedies which the creditor had against a debtor, and of relieving a debtor from some of those hardships to which, as the law now stood, he often was exposed at the suit of his creditor. If the measure he proposed would not, in his opinion, leave the creditor in as good a situation as he now stood, and if he did not entertain the firm conviction that it would improve that situation, he should have hesitated before he took upon himself the task of proposing the Bill. He was convinced, that the remedy the creditor now had was wholly inadequate to that which he was entitled to, and in a state of society in which of necessity credit must be given to a great extent, that the law did not afford to the creditor adequate means of obtaining payment of his just debt. It was, nevertheless, perfectly true that, at the same time, although the creditor had not the means of enforcing or obtaining payment of his just debt, yet that he had the means of oppressing a debtor, and of keeping him in prison when there was no just reason or ground for his exercising this power; in short, the creditor had that power against the person of his debtor which he ought not to have, while he had not that remedy against the property of a debtor which he should have. If the House would listen to him for a short period, he would give a brief outline of the course of proceeding which the law allowed' to a creditor for the purpose of compelling payment of a debt due to him, and he thought that they could not fail to see that the law was greatly defective. At present, any person might be arrested and deprived of his liberty, if any other person would make an affidavit that he owed him £20. The other parts of the laws of this country were extremely careful in guarding personal liberty, and every possible precaution was taken to 553 prevent the unnecessary imprisonment of a person. But any person was enabled to arrest another on the mere affidavit of debt, and this power was given him on the assumption that it was necessary to enable the creditor to get his debt paid. He was satisfied that the House would agree with him that all the legitimate objects of the creditor could be obtained without this process. He was sure that the House would not think that a law which put it in the power of one individual to deprive another, whom he chose to call his debtor, of his liberty, at least for a time, was a just and expedient law. It was true, the debtor had the power of obtaining his liberation on putting in bail, a proceeding which was not a matter of great difficulty, if a party had friends ready to come forward and subject themselves to that responsibility: if, however, the debtor was poor, he must go into the market and hire bail. Upon this point their Lordships would find it stated in the report on the subject, that when the debtor went into the market and hired bail, it was found that great inconvenience, expense, and sacrifice of moral feeling resulted from his being compelled to go amongst those who made it their business to procure bail. So far, therefore, it appeared that the power of the creditor was much larger than the House would feel disposed to continue. After the arrest the action proceeded, and, either with or without trial, the creditor obtained his judgment. He was previously armed with the power to arrest upon affidavit of debt, and he had two remedies when judgment was obtained. If he proceeded against the defendant's property he had a very inadequate remedy. If the debtor were possessed of land he had the power of obtaining possession of one half his income. The goods or chattels of the debtor might be obtained towards the payment of his debts through the instrumentality of the sheriff. But, either from the debtor's suspicions being excited, or from his being in a state of insolvency, he might feel it expedient to arrange his property and means of living so as to defeat the object of his creditor. He might have horses, carriages, and other means of living luxuriously, and yet the creditor have no power to take his property. He might be possessed of large funded property, and yet the creditor had no means of touching it. Persons might be indebted in large sums to the debtor, but the creditor had 554 no means of enforcing the payment of them to himself. In short, the creditor might find his debtor to be a rich man, fully able but unwilling to pay, and he had no means of enforcing payment by the seizure of the property, and thus was without adequate means of obtaining redress. The creditor, however, might take another course—he might take the person of the debtor, but if he took the chance of enforcing payment of his debt by the pressure of the person of the debtor he discharged the property. If the debtor preferred suffering imprisonment to paying his debts the law afforded the creditor no other remedy. There were now individuals in prison—in one instance, the debtor had been imprisoned for twenty-three years—who were quite able to pay their debts, but were content to remain confined rather than do so. They lived within the rules of the prison, and spent their property in luxury, rather than pay their debts. A creditor might see all this, but he could only say—"I have no remedy against this man's property—I cannot touch it—I can only hold his person." He was only calling the attention of the House to old and acknowledged grievances. The state of the law was formerly such that it induced Parliament to pass Acts from time to lime, and ultimately a permanent law, which defeated the remedy against the imprisonment of the person of the debtor—he meant the Insolvent Debtors' Act. After the creditor had gone through an expensive process of law, and had obtained his suit, and had succeeded in getting the person of his debtor, the latter took the benefit of the Insolvent Act. If the debtor should have any estate, and that was very seldom the case, that creditor, instead of deriving advantages from his exertions, found that it was divided among all the creditors, without distinction; and the result of long experience proved that the dividends paid in this court were not very large—that, in short, they were a mere mockery. The creditor, in most instances, actually got nothing. Before they proceeded to apply a remedy it was necessary, in the first place, to see what the disease was, and he was confident that that House, when it knew what the state of the law really was, would not wish to continue it. The grievance on the part of the creditor was the inefficient remedy which the law gave him to obtain payment out of the property of the debtor, and the grievance on 555 the part of the debtor was the harsh, cruel, and vindictive power which the law gave the creditor the liberty of exercising towards the debtor. The present remedy, as he had said before, was execution against the debtor's property, or arrest of his person upon mesne process. In reference to execution after judgment, though the Insolvent Debtors' Act was passed from feelings of compassion; yet it was deemed necessary to give unfortunate debtors relief who were lying in prison without the means of paying their creditors, and who otherwise would probably have to continue there for the remainder of their lives. It appeared to Parliament in consequence of the cruelty that might be thus exercised, that it was absolutely necessary that some alteration should be made in the law. Execution, therefore, to a certain extent in this respect ceased in a great measure to be operative at all. As the law now stood, however, the debtor could not take the benefit of the Insolvent Debtors' Act without being imprisoned upon an average for eight weeks. He, therefore, could not get relief under this Act without being taken from his trade or occupation for this period, giving up any situation that he might hold, and sustaining all the loss of credit and character which belonged to a person who was to be found in prison for the non-payment of his debts. Then, again, although the law provided a remedy for the creditor, yet it gave that remedy only in terms that were extremely hard, and in many cases absolutely useless. What benefit could result from imprisoning a debtor, provided the latter gave up his property to his creditors? If he was of any occupation he was obliged to abandon it, and by being kept in prison he was deprived of the means of supporting himself or family. Even the very means that he might have of paying his creditors might thus be taken from him. Undoubtedly at the end of two months' imprisonment he would be much less able to pay his creditors than when he was first arrested. In what situation would a party stand against whom a writ of execution was obtained in regard to his debts? He might not have the means of paying all his creditors, but he might have means of paying a portion of his debts. If this party had property, the Legislature could, without the intervention of the Insolvent Debtors' Act, devise means whereby a direct remedy could be obtained; for what 556 possible reason could they give to the creditor the right of taking in execution the person of his debtor, the object only being, by pressure, to compel the debtor to give up the property he possessed? On the other hand, if the unfortunate debtor was possessed of no property, and had no means of paying, what could be more harsh, more cruel, or more unnecessary than to allow the creditor to send such a person to prison? A middle case, however, might arise—a debtor might have no property, but he might have some friends or relatives who, in order to prevent him undergoing imprisonment, or passing through the ordeal of the Insolvent Court, would afford him the means of paying his creditor. Did the House think that that was a course of law that they ought to encourage? What reason could there be for allowing a creditor, by pressure upon a debtor, to induce the friends of the debtor to come forward to pay a sum of money into the pocket of the creditor? Supposing a man had property enough to pay 10s. in the pound, and a creditor obtained execution against him, and threw him into prison, and kept him there either till the Insolvent Debtors' Court discharged him, or until he paid that particular debt, that creditor would be paid by a sum which should be divided among all the creditors. It appeared to him that the only three cases that could exist of a debtor being taken into execution were productive of unmixed evil. Then, again, if their Lordships should be of opinion that there ought to be no imprisonment for debt, it was to be apprehended that they had made up their minds there ought to be no arrest for debt. It had been said there ought to be arrest for debt at a certain amount, but no execution for debt, and he (the Lord Chancellor) had heard persons say, that it was extremely expedient in many cases to arrest for debt, because, upon arresting, they very often got paid. He did not believe this was an uncommon opinion among tradesmen who did not look to the legal effect of the proceedings, but only for their own purposes. But if their Lordships should think there ought to be no execution on the arrest, was it possible they could be prepared to sanction this arrest? For what purpose was the arrest? It was only that the individual might thereby be made subject to the law by having execution go against him upon the 557 arrest. Their Lordships could not possibly maintain the law of arrest on mesne process, if, immediately upon a man being arrested, he was to be again discharged. From the result of all the inquiries upon the subject it appeared that the greater proportion of arrests were made for debts under 50l. This necessarily produced the greatest possible injustice. The power of arresting did not exist in a court of equity unless under one form of process. He had practised all his life in a court of equity, and therefore could speak with confidence on the subject. In the courts of equity the amount of money involved was most enormous: indeed more property was adjudicated upon in a court of equity in one month than in a year in a court of common law. As he had said before, there was no arrest in equity unless in one case and the writ empowering it was granted at the discretion of the judge. It was the writ of ne exeat regno, In this case affidavits were made and filed, and, provided after examination the case was made out to the satisfaction of the judge, the writ was issued, and the person against whom it was directed could not leave the country. No judge that ever sat in a court of equity had not felt that this power should be exercised with the greatest caution. It was said by Lord Eldon, who so long presided in the Court of Chancery, that there was no part of the duty of a judge which he exercised with more fear and trembling than issuing this writ. In a court of justice, however, any man who made an affidavit to the amount of 20l., could stop a person who was engaged in the most important business, and when his absence in the country or abroad might be of essential consequence. On one side, therefore, a person might by a simple affidavit of debt to the amount of 20l. arrest a person, while, on the other, care was taken that imprisonment for debt should not take place without the exercise of the greatest caution. Why was it that such laxity should exist as regarded the liberty of the person in suits for debt in a court of common law, while it was necessary to use such caution in a court of equity? When he recollected the enormous amount of property involved in proceedings of equity, he should have thought that it would be more essential that this power should exist than in a court of common law. If any man came down to that House and asked for a 558 Bill for this purpose he was sure, that the application would not be attended to. He would now proceed to state the remedies now proposed to be applied. In the first place, the question was, in what manner was the creditor to obtain payment of his debt? The debtor might be possessed of real estate. The law said, that the creditor might take a moiety of the income of that estate. But why only a half? Why was the creditor only to get the moiety when he was entitled to the whole for the payment of his debt? He thought that it would be difficult to show why such remedy should be confined to goods and chattels, and not be extended to every description of property. In the first Bill which came up on this subject it had been proposed that there should be a forced sale of the land by the sheriff; but as that would be found to produce very little for the creditor, the present measure provided that, after judgment, the creditor should have an equitable lien on the land, which he might work out, as if he had obtained it by the act of the debtor, so that the interest of the debtor might be ascertained, and the estate be fairly brought to sale. Again, with regard to the stock of a debtor; it might be his own or not, or it might be standing in the names of trustees for the debtor; then if it were the property of the debtor it was of course desirable that it should be made available for the payment of his debts, and the alteration proposed in that respect was, not to make the creditor the owner of the stock, for the purpose of selling it, but to give him a lien on the stock until a sale could be properly worked out. The same observation did not apply to such securities as promissory notes or bills of exchange, because on the face of them little doubt could exist as to the person in whom the property was vested, and because no danger could result from a Judge putting a sheriff in possession of such securities. The object of these provisions was to prevent the effects of forced sales by the sheriff. There was still another description of property—goods in the hands of an agent for sale. The old Bill proposed to give the Judge a power to impose a lien upon this kind of property. It was apprehended that this provision would give rise to much inconvenience, and that it would never do for a merchant to be withheld from selling a hogshead of sugar until he had proceeded for judgment against the owners of 559 it. There was another part of the measure to which he would direct their Lordships' attention, though it would not alter the rights of parties in any respect—he meant the clause which provided that goods of which a debtor was the reputed owner, supposing him to be subject to the bankruptcy laws, should be subject to the debts of the so reputed owner. A man might appear to be possessed of goods, and yet, when it was sought to attach to them any liability for a debt, he might say that they were not his, and thus avoid the payment. He confessed he could see upon principle no reason why reputed property ought not to be liable to execution creditors. There was another provision in the Bill which would become necessary in the event of the abolition of the imprisonment for debt. Their Lordships were aware that the fact of a man remaining in prison a certain length of time was considered to be an act of bankruptcy. If they took away this proof of insolvency they must make some equally good proof of the inability of the trader to pay. This Act therefore provided that after a demand had been made and no security given for the payment of the debt, that must be considered an act of bankruptcy. Of course, the fact of a refusal to give security must be on oath. These provisions would give material assistance to the execution creditors, and for all legitimate purposes creditors would be in a better condition to work out the payment of their debts than they now were. On the other hand, the debtor would be protected from the pressure which was improperly used towards him heretofore, and from the operation of those motives of revenge which frequently influenced the creditor under the existing law. If a debtor were about to leave the country, to abscond from his creditors, it would then become essentially necessary that the creditor should have the power of arresting the property. If at present the creditor could arrest the person he would give bail, and his friends would be responsible for his appearance; but when the creditor learnt that the debtor was about to abscond he would, if he lived at a distance from London, have to send up to town for a writ, and to wait the return, by which time his debtor might have vanished, while, on the other hand, if he did not arrest at the commencement of the suit, he would have no opportunity of 560 doing so afterwards. Again, the occasion might not arise till the middle of the suit; for the debtor might remain in his usual place of residence so long as he deemed it safe—he might not even form the intention of absconding until the matter became pressing. To meet cases of that nature, therefore, it was proposed by the present measure that the creditor, upon making affidavit of the debt, and also of the intention of the debtor to abscond before a justice of the peace, should have the power to arrest the person of such debtor; and he submitted that that was a much better and much more expeditious process than even the writ of ne exeat in the Court of Chancery. Thus the Bill provided a remedy in the only case in which it could be at all requisite, viz., that of the intended escape of the debtor. If, then, the double purpose were answered—that of giving security to the creditor and of preventing the exercise of powers which might be injurious to the debtor without serving the interests of the creditor—he thought the measure was entitled to the approbation of their Lordships; but there was also a further provision, which he considered was a salutary one, and to which he did not apprehend their Lordships would hesitate to give their assent. After judgment—(and this machinery was established to meet various cases in which, after all the care that might be taken, the creditor, although he knew the debtor possessed property, found it still impossible to reach it)—this provided that the debtor might be called on to produce a schedule of his property, and be examined before an officer in London, or before commissioners in the country, as to the amount of the property he possessed; in short, such an examination would take place as would put the creditor in possession of information as to the property of the debtor, so that it could be produced to meet the debt. No doubt it would be useless to make such a provision without at the same time investing the proper officers with power to enforce it, and to compel answers by commitment. Thus could the property of a fraudulent debtor be in many instances reached. The House, he presumed, would recollect that this was no new provision; that under the Lords' Act a similar provision existed, but then it was limited to debts under 300l., while he proposed to make it unlimited, for he saw no reason why a man 561 who owed 3,000l. should enjoy immunities which were denied to the smaller debtor for 300l. As regarded this part of the Bill, debtors and creditors were the only parties concerned; it would clearly be a benefit to creditors; debtors had no right to object, and for this simple reason, that they ought not to refuse submitting themselves to an examination; that they ought not to refuse to furnish a description and statement of their property; they were not entitled to set their creditors at defiance, and refuse information, as the law at present allowed them to do. He was not aware that it was necessary he should enter into any further particulars. The general scheme of the Bill was to render property available for the benefit of creditors. He was aware it had been said of this measure that it was not popular. He was sure that it would be unpopular with those creditors only who did not understand its provisions. It was quite necessary that creditors should be deprived of the power of making an unjust use of the law, and it was equally necessary that the debtor should be protected. There remained but one topic which it was requisite that he should notice, and that was, privilege of Parliament. With respect to it, he should say, that he saw no reason why those enjoying that privilege should be placed in a worse situation than before. They had the privilege, not for their own advantage, but for that of the public; and certainly he did not propose to make any change that should deprive them of it. He was sure it would not be thought that he addressed these observations to their Lordships from supposing that their individual feelings would be affected by it; but he repeated, that a privilege which they possessed for the purpose of enabling them to attend to their public duties should remain unchanged. Besides the alterations which he mentioned, he had others to propose, with which he should not then trouble the House, but which he should take the liberty of submitting, if they allowed the Bill to go into Committee; he trusted that they would, and that the Bill would pass into a law, for he believed it calculated to produce the most beneficial results.
§ Lord Lyndhurst
said, that he agreed with his noble and learned Friend in the greater part of those observations which he made at the outset of his address, especially those remarks of his which went 562 to show the great importance of the proposed measure, the great difficulty which attended any egislation on the subject, and therefore the careful and anxious attention which it demanded at their Lordships' hands. It was so considered by the Common Law Commissioners, for in their report they pointedly noticed the various sources of embarrassment by which the subject was surrounded. Without, therefore, detaining their Lordships with any attempt further to impress upon their minds either the arduous nature of the undertaking in which they were engaged, or the scrupulous examination respecting it which they were bound to institute, he should enter at once upon the question itself: but before he proceeded to its details he should make a remark or two on the principle and progress of the measure both in that and the other House of Parliament. When his noble and learned Friend opposite (Lord Brougham) held the great seal, he directed the attention of the Common Law Commissioners to the question, and those Commissioners, as their Lordships were aware, had made a report, whence it appeared that on the question of imprisonment for debt they were not agreed; certainly the majority were for the abolition of that practice; but a very learned member of that commission (Mr. Serjeant Stephen) differed from his brother commissioners, and stated very fully and very ably the grounds of that difference. Now, he earnestly exhorted their Lordships, before they came to any final decision on the question, carefully and deliberately to consider the arguments urged by that learned Gentleman on the proposed abolition of imprisonment for debt. It was necessary now that he should call the attention of the House to some of the facts connected with the introduction of the bill. It was in the Session of 1835 that his Majesty's Attorney-General obtained leave to bring in his first bill. As late in that Session as the 17th of August the bill passed the House of Commons, and was sent up to their Lordships. When it came before them, every one agreed that they could not then enter with any advantage into the consideration of the measure; even his noble and learned Friend opposite himself did not say that the question could then be satisfactorily disposed of by the House of Lords, but on the contrary, that the course which the House then took with regard to 563 that bill was the only course open to them. In the following Session nothing was done till some questions were put on the subject to Lord John Russell, and when that noble Lord was distinctly required to inform the House what was intended to be done, the reply was, that his noble and learned Friend on the woolsack had been anxiously directing his attention to the subject, and that very speedily a bill was to be introduced for the purpose of abolishing imprisonment for debt. It was introduced, but the second reading of that bill did not take place until the 11th of July. Their Lordships would probably recollect, that the measure, when it then came to be considered, underwent material change, and he was bound to say, that of some of the alterations then made he fully approved; and he begged to add, that what took place on that occasion very strikingly showed the advantage of deliberation and consideration. On the 1st of July the bill came before them; his noble and learned Friend was then absent in consequence of indisposition; several noble Lords had left town; his noble and learned Friend the Chief Baron of the Court of Exchequer, and another noble and learned Friend of his, the Chief Justice of the Court of Queen's Bench, were both on circuit. A noble Duke, then near him, together with a large proportion of their Lordships, were of opinion that the House could not, with any advantage to the public, consider such a question, and it was therefore postponed. The next bill was brought in by the Attorney-General, and it was not a little remarkable that the learned Gentleman abandoned as many as 150 clauses of the original measure. On the 6th of February this new bill was introduced into the House of Commons; the stages of it were postponed from day to day, and it did not get into Committee till the 6th of April. A bill so important—a bill in the support of which so much eloquence was expended—had been allowed to slumber till the close of the month of June, a period of three months, when just on the eve of a prorogation, the Attorney-General moved the recommittal, and it was with the utmost haste read a third time, and sent up to the House of Lords. Such a proceeding could not be regarded otherwise than as a mockery. Their Lordships felt that the bill could not then be fairly or fully considered, and it was, as a matter of necessity, 564 postponed. From the dates to which he had called their attention, and from the circumstances which it had become his duty to state, every one must see that the most beneficial results had followed from the course which the House of Lords had adopted. His noble and learned Friend on the woolsack had told the House that the present was not a very popular measure. In that statement he might be perfectly right. For his part, he did not profess to say that he possessed any extraordinary means of judging whether the bill was popular or otherwise. Present and temporary popularity on a question of that nature was a consideration which should not in the least influence him. The measure, if wise and proper under the circumstances, could not fail ultimately to become popular; but he would on the present occasion take the liberty of suggesting, that the opinions and feelings of the people ought to have some weight on a question that from its peculiar nature must be one with which they had a practical familiarity, and of which they must therefore possess a much clearer and more exact knowledge than of the great mass of subjects which engaged the attention of Parliament. He did not say that he had any means of knowing what might be the degree of popularity which the bill enjoyed; but, judging from the petitions, he should agree with his noble and learned Friend on the woolsack that the bill was very unpopular. In the first place, the number of petitions against it greatly exceeded those in its favour, but that was not enough; the number of persons by whom those petitions in favour of the bill were signed vastly fell short of those who were against it. If strictly reckoned, there would be found ten to one against the bill. Let it also be recollected that no trifling portion of those petitions originated at public meetings where the chairman signed on behalf of the meeting, so that if the signatures of chairmen were only taken as expressing the opinion of individuals, it would be an estimate much more favourable to the bill than it was entitled to, yet still, counting those who presided at public meetings only as individuals, the number of petitions in favour of the bill were only as one to ten compared with those who had petitioned against it. He could not help observing, that with respect to the present bill there had been no little 565 mystification. They were told that the purpose and effect' of the measure would not be to abolish imprisonment for debt, and its main object was represented to be that of giving additional security to creditors. Ex concessis, imprisonment for debt was not to cease unless the creditor received additional security—at least that that class of creditors who were mainly interested in the question of imprisonment for debt should by the bill be put in a better situation than they were before, He had been in communication with several of those individuals who felt anxious on the subject—men quite alive to their own interest, exceedingly astute, full of intelligence and of practical knowledge. Most certainly their view of the bill was, that the machinery for giving additional security to creditors was mere rubbish; they did not care for any one of the advantages which the bill professed to confer—it was not what they wanted. In the first place, the advocates of the bill told the House and the parties interested, that it would give increased power to the creditor over the lands of the debtor. To that he should feel no objection, but it was for their Lordships to consider whether the class of creditors affected by the abolition of imprisonment were those who could derive any advantage from increased power over the whole of a debtor's lands. His noble and learned Friend on the woolsack had correctly stated that the great majority of those debtors sent to prison were men who owed sums under 50l. Now he desired to ask, if persons who went to gaol for such sums were likely to be possessed of interest in land that came within the description of freehold, copyhold, or customary tenures? The persons arrested were generally men who owed very small sums; what could such a provision as the bill contained have to do with them? A debtor might most truly say that the effect of the bill would be to enable him to defeat some of his creditors, and to favour others, and that by its means he could alienate his lands. His noble and learned Friend would, perhaps, tell them that the bill would prevent that. He believed it would be no difficult matter to show that the bill would have the effect of cheapening the exercise of the power to which he now referred. The debtor, if he found his creditor proceeding against him, could say, "I will create charges upon my estate; I will alienate, 566 and though you should issue a writ of capias ad satisfaciendum, I can still defeat you, and I give you notice that I will." The fact was, that the bill did not apply to the subject matter, and that it professed or attempted to deal with things which it could not reach. It professed, or seemed to undertake to give the creditor power over the money, bills, and bonds, of the debtor. What could be more moveable than the money, bills, or bonds in the possession of a fraudulent debtor? It was perfectly ludicrous to suppose that an Act of Parliament could reach property of that nature. Surely, there were no assets of that description which a creditor could not endorse the day before judgment was entered up against him. Then came stock in funds. Under the existing law, a man possessing property of this nature, who did not wish to pay his debts, might go to prison and live upon the income of his stock. His learned Friend had said he would put an end to all that by making stock seizable. There was one of the additional securities. Now, in the first place, debtors to the amount of 30l. being that class of debtors who, as allowed by the noble and learned Lord, was the most liable to arrest, were not very often stockholders. So much for the security on that part of the subject. But what might debtors holding property of this kind do under this bill? Why, if it should pass into law in its present form, all they would have to do in case they chose to act fraudulently would be to sell out their stock, and invest it in foreign securities. They could quit the capital of London, live on the income of their securities in a princely manner on the continent, and set their creditors at defiance. Thus, instead of, under the present law, exchanging the comforts of a mansion in Grosvenor or some other square, and the luxury of a carriage and horses, for the dull confinement of the King's Bench Prison, the debtor by this bill, had only to change the nature of his stock, and transfer his establishment to the other side of the Channel. He really did not understand the provisions of this bill; it appeared to him a mere mockery. There was another point to which the noble and learned Lord had alluded. A plaintiff in an action might become a substitute for the defendant, and act as if he were the real plaintiff, by suing in his own name for debts due to the defendant. According to the seventh 567 clause, debts due to judgment debtors were to be vested in the creditor by order of the judge. But suppose the original plaintiff averse from that course of proceeding, and that the defendant in the action succeeded; the defendant would undoubtedly look to the substitute plaintiff for his costs. What creditor would become substitute plaintiff in suits for the recovery of debts due to the defendant, if he were liable to be saddled with the costs? He asked their Lordships, was it not absurd to suppose that the plaintiff would undertake to conduct suits without knowing whether they were likely to lead to a prosperous issue, and in case they failed be called on to pay the costs? These were the principal benefits to be produced by the bill, upon which his noble and learned Friend relied to induce their Lordships to agree to it, if in the operation of this bill the interests, as was proposed, in the personal property of the judgment debtor should be charged, by order of the judge, with the payment of the amount for which judgment should be obtained, no one in London would venture to purchase a bale of goods without first searching every judge's chamber to see whether there might exist against it any such charge or order. Were they then to be called on to pass a bill of this kind, a bill containing so many imperfections and defects that he should only wear out their Lordships' patience in attempting to go through them all? Every part of it seemed defective. There was, however, another singular feature in it which he could not pass by without noticing. It would seem as if the persons who had framed this bill were not aware that defendants sometimes obtained judgments against plaintiffs. According to the present law, if the defendant succeeded in an action, he could put the plaintiff in prison for his costs; and in such a case how was he to be liberated? The remedies contained in this bill did not apply to him. He was left out of the second, out of the sixth, the seventh, eighth, and nine clauses, as if the defendant never in any instance obtained judgment. How it happened that a bill drawn by the Attorney-General, and introduced by his noble and learned Friend on the woolsack, could contain so many and such imperfections he could not conceive. Whether this one might have occurred through a slip, or been made upon the presumption that plaintiffs were 568 always right, and defendants always wrong, he could not say, but there it was on the face of the bill. His noble and learned Friend had alluded to the power of seizing securities. Suppose a judgment creditor lucky enough to get hold of those securities and recover money on them, how was he to act according to the provisions of this bill? He was to pay himself first, and then hand the difference to the defendant in the original action. Here again the bill proceeded on a presumption similar to the last—viz; that the plaintiff was always rich and right, and the defendant always poor and wrong. The bill empowered the plaintiff to seize securities, and bring actions for the recovery of the sums due on some, and in case he succeeded, to pay himself, and then if there were a surplus, to hand it to the unfortunate creditor; but suppose this man, the judgment creditor, to be in need of money for his own purposes, to be pressed perhaps by some of his own creditors, and to allocate that surplus or part of it to his own use, what remedy had the defendant in the original suit? So very unjust and unequal was the bill in this respect, that it appeared extraordinary to him how these things could have escaped the observation of the learned persons who had framed and introduced it. So much for its defects. Then as to the mode of getting evidence. If a person obtained judgment against another, and the defendant did not satisfy such judgment within ten days after it had been entered up, the attorney might call on him to deliver up within fourteen days a schedule containing a full and perfect account of all his property, whatever its description. If he happened to be a man of large estate, involved in his affairs, whether on these estates there were charges and incumbrances, whether his effects were in possession, reversion, remainder, or expectancy i whether his property were personal or real, the particulars of all, together with the names and residences of his debtors, and those of the witnesses who were to prove the debts, were to be formed into a schedule and delivered up. If moreover the defendant did not do so to the satisfaction of the attorney, he might be summoned before the commissioners, and if the commissioners were not satisfied with his answers they might send him to prison. If one of their Lordships should have the misfortune to be sum- 569 moned before the commissioners under such circumstances, and those commissioners did not like the noble Lord's answers, or the mode of giving them, they could immediately send him to prison. But mark the dates: judgment might be obtained at the commencement of the long vacation. The time for making those disclosures was not to be extended beyond six weeks. In case the party were consigned to a prison, a considerable time might elapse before an application for a new trial could be made, and supposing at the ensuing term a new trial to be obtained, and the opinion of the jury to be that the original verdict was a most scandalous one, they had in the mean time a disclosure of the affairs of this unhappy person. He must say there had been little caution observed in framing this clause. But similar powers were given to the commissioners of bankruptcy. He had had some experience in that respect, and could bear testimony to the great and heavy expense attending examinations in cases of bankruptcy. Who were to pay the expenses of them under this bill? There was no provision made for them in it. There was a similar power in the Insolvent Debtors' Court, by means of which a creditor got into his possession the whole property of the debtor, and his noble and learned Friend had said that the result was also similar. The average return from these examinations before the commissioners of bankruptcy was only 1½d. in the pound. That was another oversight. By the Insolvent Debtors' Act, if the party seeking the benefit of it committed a fraud, or had done that which was not consistent with justice, the commissioners could remand him; and persons were remanded for three, six, nine, and sometimes twelve months, on account of frauds proved against them. By the operation of this bill, all those persons were to be immediately liberated. Was that the intention of the framers of the bill? Whether it were or no, such would be undoubtedly the operation of the bill. His noble and learned Friend had directed their attention to another power in the bill, meant to be given for the arrest of debtors about to abscond, which he said was analogous to a power at present existing in courts of equity. Now, Lord Eldon had stated, and he thought with great correctness, that it was very difficult to exercise that power with proper care 570 and discretion. Certainly no person had been more careful or vigilant in the exercise of it than that noble Lord; but here inquiry was necessary. By this bill, however, the party had only to make an affidavit that the defendant was about to leave the kingdom; he was not even bound to state his reasons for thinking so. There was no inquiry by the Court of Chancery, or by any court, judge, or other tribunal. It depended entirely upon the assertion of the party. He had gone through these details, painful as it had been to him, for the purpose of leading their Lordships to this conclusion—that the opinion entered into by the great body of this metropolis was, that these "additional securities", as far as they were concerned, were of no value. They did not care about them; and if the argument was, that by reason of those additional securities arrests for debt were rendered unnecessary, and if at the same time those things called additional securities should turn out not to be additional securities, the whole case fell to the ground. He was not at all disposed to say he was of opinion that the true way to consider the subject was by going through the classes. The question was, should arrest for debt continue or not? Without expressing his opinion one way or the other on that point at present, he would say he had no objection to the second reading of the Bill. When he spoke of his opinion, he did not mean to say he had formed a decided opinion on the subject. What struck his mind was, that there should be further inquiry and investigation. He felt that further inquiry was absolutely necessary with reference particularly to the complicate clauses to which he had alluded. It was not there they could be discussed with advantage, but in another place, and in another form. He was anxious, without committing himself to any opinion, to express himself respecting that part of the subject upon which all seemed desirous of doing justice—namely, of giving greater security to the creditor on the one hand, without, on the other, being unnecessarily harsh or severe towards the debtor. His noble and learned Friend had divided this subject into two parts—arrest before, and arrest after judgment. They were certainly open to different considerations. Arrest before judgment was entirely an ex parte proceeding. The plaintiff", without being obliged to go before any tribunal, or pro- 571 cure the authority of a judge, could, upon the affidavit of his clerk that he (the clerk) believed the defendant to be indebted to his master in a certain amount, have the defendant arrested and sent to prison. Nothing could be more harsh than that: but what made it peculiarly harsh was, that although the defendant should have the clearest case possible, he was not permitted to show it for the purpose of preventing the arrest or of procuring his discharge from custody. The plaintiff, consequently, had the game entirely in his own hands, and certainly nothing could be more harsh than that, at least at the first view of it. But then it was said that this power was justifiable. He did not assent to that doctrine. They should not confer a power capable of being, or liable to be, abused, unless in cases of extreme necessity. The question was, whether such necessity existed in this case, and, how did it appear that this power had been abused? He did not mean to say that it had been abused by respectable tradesmen or solicitors, but still it had been abused. The common law commissioners had stated in their report instances of abuse of the most grievous and oppressive kind which had occurred in the inferior walks of life; and when they found persons of that class possessing such a power over those who were at their mercy, he would ask whether it were not and would not be made use of for the purpose of extorting more than was due, for the purposes sometimes of vexation and sometimes of vengeance? A multitude of instances might occur, and no doubt had occurred, without being made public; and unless it could be shown that these powers were absolutely necessary, they ought not to be granted. There was not a commercial country in Europe in which this power existed except in England It did not exist in Scotland—at least not to the same extent. It did not exist in the low Countries, in the commercial towns of Holland. It did not exist in Prance, except under peculiar circumstances, and even then modified to a certain extent. It did not appear to him, then, that there was any great necessity for it. Still he was ready to admit, that when the business of a country had been for a long period carried on under one particular system, and when creditors had built and acted upon that system, the question whether or not the powers should be suddenly abrogated deserved and demanded their utmost attention and consideration. He 572 did not. mean to say, that they should not be abrogated, but that the question required great consideration. Many persons had given credit upon the foundation of this power, to whom, if it were removed without substituting an equivalent, they would be doing an injustice. On the other hand, he should state the advantages arising from the existence of this power. There was no doubt that it had an advantageous effect in rendering persons cautious of incurring debts. He did not mean to say it had that effect upon men of all characters and turns of mind, but with the public at large it certainly acted as a restraint, and rendered them more cautious than they otherwise would be of running in debt. Again, let them see how it operated beneficially as regarded the tradesman. If a man could pay his debts or had it in his power to procure the payment of them, but delayed doing so, this power could be made available, but still without this power they might be paid. It was useful then to accelerate payment; it was a convenient and easy mode of compelling prompt payment from those who had the means of payment, and would avoid or postpone it. But with respect to those who had not the means of payment or could not procure payment, it was altogether useless, for the moment a process was issued against a debtor so circumstanced he either absconded or took the benefit of the Insolvent Act. This power, then, formed a security, a beneficial security to the tradesman, inasmuch as it enabled him to obtain payment without going through all the details of a court of justice, from those persons who were either capable of paying, or of procuring means to pay. His present impression was, that this power required some way or other to be modified. But they should give to it the deepest consideration, the most minute inquiry, and ought not by any means suddenly to alter or abrogate it. Arrest after judgment had been obtained was different. In that case the question had been heard and decided, and the amount ascertained by a competent tribunal. As he had referred to the law of foreign countries in the first case, he would say respecting this, that there was not a country in Europe in which the power of arrest for debt after judgment did not exist; but then let them see how it worked, and whether there was any great objection to it. If a party had visible property, a writ was never issued and for most obvious reasons. After taking the person 573 of the debtor you cannot take his goods, and therefore wherever there was tangible property it was seized in preference to the person. But in cases where there was property not visible, then this power of arrest was of great consequence, because it compelled the defendant to disclose it, or remain in prison; but if this Bill passed into a law, stating, as it did, that a debtor should not be arrested after judgment, what would happen? Why, the defendant would be quite at his ease. He might say to the creditor, "Find my property if you can; I shall not assist you; on the contrary, I shall throw every obstacle lean in your way to prevent your arriving at a knowledge of its nature or locality." Therefore, he said it was of the greatest importance that the exercise of this power after judgment should be retained. What he proposed to do was, and those whom he had consulted were of the same opinion, to allow the Bill to be read a second time; and, with a view to give every possible consideration to a measure so important in principle, so extensive in its operation, and of so much interest to the trading community at large, to let it go before a Select Committee of their Lordships' House. Those complicated clauses which his noble and learned Friend had referred to, would there receive that consideration which he was sure their Lordships would at once acknowledge to be necessary. The difference of opinions amongst the Commissioners upon the general principle of the Bill was another reason for their referring it to a Committee; and here he would request such of their Lordships as might not have perused the opinions of that able and discreet lawyer, Mr. Serjeant Stephen, to do so, if only in justice to that Gentleman. There had been as yet no Committee of that House on this Bill. A Committee of the House of Commons had sat upon it; and, considering the nature and importance of the subject, ought not their Lordships to inquire for themselves? If it went to a Select Committee of the other House, why not go to one of that House, particularly as they had means of inquiry much superior to those possessed by the House of Commons? He begged their Lordships' pardon for having trespassed so long upon their attention. In conclusion he would say, that he did not at all consider this a party question. He was desirous simply of adopting what, should appear to him, 574 according to the best of his judgment, and after bestowing on the subject his most careful attention, the wisest course. He wished to get rid of every thing arbitrary. Certainly if they could do that, they were bound to do it. If, at the same time, in providing security for the creditor, they found that the law should be slightly tinctured with severity, why they must only submit to that necessity. If they could make an adequate substitute for the power of arrest, let them do so and abolish it. That, however, was a point requiring more time for consideration than that House could bestow on it. It was not clause by clause alone they should consider, but after having considered them separately, to consider them in reference one to another, and then again with reference to the general principle of the Bill, and the evils of arrest. He would move, that after the Bill were read a second time, it should be referred to a Select Committee.
spoke as follows:* Whatever diversity of sentiment may prevail among us on the merits of this question, there can be but one opinion; and that a most favourable one, of the fairness and candour with which my noble and learned Friend (Lord Lyndhurst) has entered upon the discussion of the whole subject. I sincerely hope, and I feel assured your Lordships will join me in this hope, that so important a measure may in all the stages through which it is fated to pass, both here and elsewhere, both within the walls of Parliament and without, be treated with the same calmness, the same absence of party and personal feeling which has marked the speech of the noble Baron. I differ with him certainly respecting the course we ought to take in considering this Bill. It is not correct to represent the House or the country as taken by surprise. The measure is not now for the first or even the second time offered to your Lordships; nor will the community be subjected by its adoption to a change all of a sudden brought about, as my noble Friend would describe it, in the laws upon the faith of which they had been conducting their most important concerns. The question has been before the country, and indeed before Parliament, for the last five or six years. It is nearly ten years since the general principles upon which the Bill has been framed were discussed by me in the other* From a corrected Edition published by Ridgeway.575 House of Parliament. It is near seven years since the Common Law Commissioners thoroughly investigated the subject, and examined some hundreds of witnesses, taken both from the trading part of the community and from the legal profession. It is between five and six years since their elaborate Report was laid before both Houses; and upon that Report a Bill was framed with their assistance, which passed the Commons two several times, after full discussion in a Select Committee, and was in a third Session introduced here, but postponed as having been presented too late to be fully considered. In these circumstances I do not see any necessity for the further delay attending so tedious a proceeding as a reference to a Committee above stairs. But even if I agreed with my noble Friend, and had arrived with him at the conclusion that we are not in a condition to legislate upon the question without further inquiry, I should still be disposed to offer a few observations upon his arguments; because, although in some of his views I entirely coincide, yet differing upon others, I do not think it would be just towards the merits of this important measure that the impression which his remarks upon it are calculated to make, should remain unaltered before the Committee finished its labours. First, I will avow that I entirely agree with my noble Friend in holding the popularity or unpopularity of any proposed legislative change to be nothing like a criterion whereby we may safely judge of its claims to support. That it is most fit to consider and respectfully to weigh the opinions of the country upon any measure touching its interests; that the estimate ought to be taken into account which is formed by any portion of the community respecting a plan affecting its particular relations with the rest of society, no one can doubt. But we should be oftentimes greatly misled were we to be guided entirely by the impressions generally prevailing among bodies of men respecting the probable bearing of an untried measure, even upon their own particular interests. It may be safe enough to trust them upon the effects of any policy already tried; or upon the tendency of any plan proposed, where the merits of the case are simple, he within a narrow compass, and the question 'is neither calculated to excite alarm nor obscured by opposing considerations. But when my noble Friend asserts that the trading part of the community are generally ad- 576 verse to the abolition of arrest for debt, and apprehensive of injury from it to their concerns, I would recal to his recollection a recent and memorable instance of an important body of men, engaged in a very extensive business, and as acute and well-informed as any portion of the community, I mean the owners of newspaper property, being, with very few exceptions, so greatly mistaken regarding the tendency of reducing the stamp, that they strenuously opposed it for a long time, as they had an undeniable right to do if they thought it prejudicial to their interests; and jet they now have all found themselves materially benefitted by the alteration. Their opposition, however, produced a most unhappy effect, for it made the Government, agree to a compromise, the result of which has been levying a stamp duty sufficient to check the diffusion of knowledge, general as well as political; to put many hundreds a-year of profit into the pockets of the proprietors; to save a few pounds a-year to the rich, who hardly feel the benefit, as they never could have suffered by the burthen; and to deprive the poorer classes of cheap papers, which it is the true interest of all classes that they should possess. I have not the least, doubt that such of the traders as now apprehend any mischief may arise to them from abolishing the right of arrest, will find themselves as entirely mistaken; and that we should commit an error equal to the mistake of the lamentable compromise I have just mentioned, were we to mould the present measure according to their unfounded apprehensions. The more it is considered the more clearly will it appear, that while all parts of the community must gain by the proposed change, no part will lose any advantage to which they are justly entitled; nay, no part will incur any loss at all, for which ample compensation is not provided in some advantage conferred by it.
In many of my noble' Friend's observations upon the details of the measure, I agree. But he has greatly undervalued the securities which it is calculated to give creditors. He is quite right in all he has said of the present remedy by elegit. The creditor hardly ever can derive any benefit from it. Indeed, it is absurd to talk of this as a substitute for the remedy by arrest, which is hardly ever used against those who have any lands to be seized. So the enabling cash or bank notes to be taken in execution is certainly no substantial increase of the creditor's remedy; 577 nor is it intended, I presume, as such—but rather to remove a glaring absurdity in the law, which, upon a ridiculous fiction will not allow money to be seized in payment of a man's debts. But I am far from considering the other additions to the creditor's recourse as unimportant. I think the power of seizing the debts due to his debtor may be of material benefit; I am sure that provision which gives him the power of seizing | money in the funds, and other annuities, will remove one of the most vexatious and gulling abuses which now exist. Can any thing be more mortifying to an honest tradesman than to see his debtor living within the rules of a prison, and squandering away the income of his stock, or his money lent on other securities, only taking care to have no chattels which can be made available to satisfy the just demands against him?
But the principal omission of my noble and learned Friend, owing, perhaps, to a similar one by the noble and learned mover of the Bill (the Lord Chancellor) has been, leaving out of his view the most important argument in favour of the measure, regarded as a benefit to creditors. I mean the argument deduced from the use now actually made of the odious process in question. To begin with arrest on mesne process, or before judgment. There are now half as many more instances of creditors using serviceable process, as bailable process, that is to say, for every two thousand cases in which the plaintiff begins by arresting, or holding his debtor to bail, there are three thousand in which he merely issues the serviceable process, that which dots not attach the person. Which of the two kinds of proceeding best effects its object—the obtaining payment or settlement without the cost, and risk, and delay of a law suit? That is the test of the advantages of arrest; and that test we have the means of accurately and easily applying. One half the cases where serviceable process has been used are settled before even an appearance is entered, that is, before a single step is taken, or can be taken in court. How many do your Lordships think are settled where the body has been seized in the first instance, or has been saved from prison by finding bail? Just one-sixth. Surely this is a striking illustration of the view which the friends of the present measure, take, that the efficacy of arrest on mesne process has been overrated; and that it has not the 578 tendency to produce payment of debts really due, which had been urged as the principal reason for its continuance. That many opinions in its favour upon this ground have been advanced by tradesmen, and recorded in the Report of the Com. missioners, is certain. But I will set against them all the facts stated by one of those respectable persons, and the rather that it makes against his opinion. A grocer, in very extensive business, whose dealings amounted to no less than 200,000l. in the year, had formed a judgment favourable to the process of arrest, which he held to be beneficial to the creditor. But see what was his own experience of its benefits, and you may then say what really ought to have been given as its result. It appeared that if he set off all the expense attendant upon the use of the process in cases where it availed him nothing, against all the sums recovered in cases where it proved effectual, there was no balance left, the money fruitlessly spent being just equal to the whole gain. A fact like this is worth a thousand opinions, and lets in the broad day-light of actual experience to dissipate apprehensions and imaginations, from which so many inferences have been drawn. The Commissioners paid regard to the facts adduced as well as the opinions given before them: and though I entirely agree with my noble and learned Friend in his praise of Mr. Sergeant Stephen's able and learned paper, and join in recommending it to your Lordships' perusal, yet I must also request your attention to the equally able, equally learned paper against which it is a protest,—the Report itself, the mature judgment of all his four colleagues, men in no respect the inferiors of my hon. and learned Friend, and some of them, in practical acquaintance with the subject, necessarily his superiors. That judgment had been deliberately formed, and is supported by irresistible arguments, drawn quite as much from a regard to the right of the creditor, as to the interests of the debtor.
But my noble Friend has argued that the fear of imprisonment operates beneficially to both parties, by deterring men from imprudently contracting debts. Granting the apprehension of being arrested to have this influence over the customer, will my noble Friend only look to the influence which the power of arresting has over the tradesman? If it makes the one somewhat less willing to borrow, it makes the other much more ready to lend. He knows that 579 he can in an instant pounce upon his debtor and obtain payment for himself, even if all other demands should go unsatisfied; payment, too, made under a pressure that prevents any narrow scrutiny of its amount or its justice. Every one knows that the practical effect of this is an increase of the disposition to give credit; every one, be he lawyer or no lawyer, every one living in this town, knows that credit is thus imprudently given, to the real injury of the customer, who is induced to buy what he cannot pay for, and to the injury also of those who do pay what they owe, but pay the dearer, in proportion to the bad debts which the tradesman is led to let others contract with him. Even if we allow then that the fear of being imprisoned has a tendency to prevent the one party from running in debt, we must remember that the power of imprisoning him leads the other party to give him credit too easily; and the increased facility of obtaining credit, is far more than a match for the supposed repugnance to take it; so that instead of preventing, the process encourages, bad debts, and stimulates by facilitating imprudent expences. Nor is this all. The law of arrest lends itself not merely to the encouragement of improvident dealing both of tradesmen and customers, but to proceedings which have all the moral guilt, and all the practical effects of fraud. The tradesman who has carelessly suffered an insolvent person to contract debts with him, is enabled to clothe him with an appearance of credit, by lending him more goods, which serve as a bait or decoy to others that have not yet trusted him: and when the net is full of their property, he can at once rush in upon the insolvent with his mesne process, draw the net full of other men's property, and extort from him enough to satisfy all his own demands, while all whom he has helped to deceive in vain cry out for either a return of their goods or a. payment of the price.
The expense to which the community, that is to say the trading part of it, are put by the present state of the law on this subject, has not yet been adverted to either by my noble and learned Friend (the Lord Chancellor, who moved the Bill, or by my noble Friend opposite (Lord Lyndhurst) The Commissioners have formed an unhesitating opinion upon this part of the case, in which I entirely concur. They pursued this branch of their inquiry through all its details, and arrived at the conclusion that the cost entailed upon the community by 580 the process of arrest, probably much exceeds, but is certainly not less than, 300,000l. a-year. Now, almost the whole of this sum must be either charged as dead loss to the creditors, or at the very least, as so much taken out of the fund from which their debts and those of other creditors were to have been paid; for a very small portion only of the expense is borne by debtors, who have enough to pay all their debts, and all the charges too. It is therefore a dead loss, for which no compensation whatever is received by any party, except the practitioners and officers of the law.
That the caption of the person may produce payment of what is due, no one ever thought of denying. It may, and often docs enable a creditor to wring property from the hands of his reluctant debtor. But how often does it enable him to wring more than his due? How often to give a doubtful or other security for what is not due, or at least most doubtful, to purchase escape from a first imprisonment, or rather postpone it to a more distant day? How often to obtain that security, or some other settlement from friends, by working on their feelings of compassion, or of shame that one of their family should go to gaol? And how can the power be continued at all without being of necessity liable to such abuse, and being made the instrument of such cruel, iniquitous oppression to the one party, while it does not render in anything like an equal number of instances, justice to the other.
But let us come at once to the gist of the whole question. There is not one argument that can be urged in defence of arrest before judgment, which does not apply with ten-fold force to imprisonment after judgment; when the claim is no longer matter of contest, when the justice of the demand is ascertained, and when the seizure of the person is authorised by the sentence of the law, not directed by the mere desire, it may be the caprice, of the party. A man has been served with process for a debt of twenty-five or thirty pounds (nearly four-fiths of all the arrests on mesne process are for debts under 80l., and the great majority for debts under 40l..) Bail has been found, at an expense of half the debt—appearance has been made—the suit brought, the pleadings perfected, and the cause tried in Court—an operation, one may be permitted to say, not unattended with expense, nor unaccompanied by large draughts on the pa- 581 tience, the temper, and the comfort of all concerned—judgment has been entered up and execution sued out—the defendant has run the whole gauntlet of the law from the arresting officer to the presiding judge, and the cause is ripe for his body being at length taken upon the execution.—I ask in how many instances the creditor takes it? I ask further in how many of the few instances in which he takes it at all, does he think it worth his while to keep hold of it? Here and there we find a case of revenge or spleen making a man detain his debtor in execution; but that must be gratified at a certain additional and useless expence. Now and then we see a debtor detained in the hope of some friend coining to his relief and appeasing the creditor. But it is rare indeed, that any one finds his account in casting his debtor into prison or keeping him there, after all his estates have been parted with, all his money squandered, the little that remained been absorbed by the process of the law, and nothing is left for either party but mutual disappointment and heart-burning. Indeed in most cases, the hopelessness of redress to the creditor is made manifest at a much earlier period of the proceedings. When it is found that the debtor intends to defend the suit and not to settle it, that is when he enters an appearance, the creditor has little prospect of benefiting by legal remedy against the person, in any case where the property is known to be gone. This is the proper line of demarcation between the two kinds of process, the arrest before and the arrest after judgment. Up to this time little expense is incurred, and there is a chance of payment by the debtor or his friends. Once let. the line be passed, once let it appear that the action is to be defended, and the creditor knows that he must drag his debtor, now become his adversary, into court at his own expense, that he must at any rate advance all his own costs, and that in the vast majority of instances, he never can be repaid even that outlay, much less receive his debt, the funds for paying which will be carefully and effectually exhausted by the proceedings. He knows that beside all this, he runs the risk of being defeated and having to pay his adversary's costs, and that even when all is done, and he has succeeded, his remedy is the power of imprisoning a man utterly ruined, coupled with the obligation of contributing to his support under confinement. Thus when his claim is established, and it is for the first time ascertained that he has a right 582 to seize the debtor's person; it is a right which he has no interest in exercising, and the use of which can avail him nothing; the only real benefit he could ever receive from the process being before, the line was passed by the debtor appearing and defending, that is before the force of the arrest upon mesne process was spent. But what shall I say of that summary power, the efficacy of which is not denied, that most hateful, most oppressive power—a power so open to every kind of abuse, so often foully abused, that no man can contemplate its existence without abhorrence, its continued existence without astonishment,—that frightful power fitted by its very nature for being perverted to the working of the worst injustice, and valued for that very capability—enabling any one without check or control, except from his own conscience, to arm himself with the whole force of the law to accomplish purposes of sordid injustice, which no law ever sanctioned, or gratify feelings which no breast deserving the name of human ever could entertain—a power in refusing which to such remorseless hands, the Law is utterly impotent, lending itself unresisting to the work of oppression, but resistless in those hands to perform that work? Let the wrong-doer but screw up his conscience to swear a twenty pound debt, and it is not in the power of man to stay his hand, or withstand the force which it then wields—the whole force of the law. His victim is instantly hurried to a prison.
.—Aye, provided he has the money to lodge, or the Friends to bail him, or the sum that the bailing costs. But it is quite possible that he may be thus oppressed, because, he has neither the one of these things nor the other. Let him find the money, or pay it into Court! It is easily said. The question whether money shall be so paid while a suit is pending, and to abide its event, is in all Courts of Equity, a matter of the most serious contest, and after obstinate resistance is only ended by a solemn decision. But the party at law claiming a sum is to have the power of at once calling for the deposit, and throwing into prison his adversary, who denies the claim altogether. Even if he must pay, he is forced to be in gaol while he finds the money; and he then goes free, but goes also marked and stigmatised for life as having once been 583 the inmate of a gaol. Let him find bail! says my noble Friend. For a debt of 20l. or 30l. this may be easy enough, at least to those who have friends, or can pay the expense of procuring it. But I should like to see the man, out of this and the other House of course, who could find bail if a debt of 30,000l. or 40,000lwere sworn against him? Show me the man who could find two householders to swear themselves worth 60 or 80,000l. each to bail him! To gaol that man must go. I am not putting an imaginary case for the enforcement of an argument. I am not taxing my fancy for a tale to illustrate the question. The very thing has happened in this neighbourhood, in very recent times, and in well known Courts—as certainly as there has been a common pleas fixed at Westminster since Magna Charta—happened too in the case of no obscure individual, but of a person distinguished throughout Europe, of ample resources, of great capacity, and who rose to be first minister of an ancient monarchy. Threatened with an arrest for near 100,000l, to find bail was impossible, and he was driven from the country until he could procure the sum to be paid into Court. It was afterwards returned to him after the result of the trial proved favourable; but if he had not effected his escape he must have languished in prison until either the money could be raised or the cause be tried.
But, if some are, by the abuse of this dreadful power, driven from the country, others are oppressed by being detained forcibly within it. I will suppose a trader who has fitted out his vessel at Liverpool or Bristol for the Spanish main—and here, again, I am putting no imaginary case, except as to the port of outfit—a rival trader is minded to frequent the same market, but his preparations are not so far advanced, and he is unable to sail for a week or ten days after his competitor. The law steps in to his assistance and enables him whose cargo is still ashore to place himself on a level with the captain who has his anchor a-peak and his sails loose. While indulging in the prospect of having a long start of his rival, he is arrested on the point of sailing, and, unable to find bail, lies in prison until the other has proceeded on his voyage. But all these things are done, we are told, at the risk of an action for malicious arrest. They are, it is true; but no less true is it that an action more hard to maintain is not known in the law. Not only must proof be made 584 of actual malice, but what is infinitely more difficult, and what I have rarely seen successful, the injured party must give proof of the negative, that there was no probable cause for the arrest. But then if the whole was a fiction this action may possibly succeed, or, at any rate, the wrongdoer many be indicted for perjury. Aye—but suppose he is a foreigner, who will not again visit this country, or even a native trader, who has only to take care not to be found in the same country where the offence was committed, at any time that a grand jury is sitting there, and his adversary is near at hand—in either case he is quite safe; the injured man goes without redress, and the guilty has been enabled by the process of the law to gratify the vile purpose of his sordid or malignant desires, without a single accomplice, and with perfect impunity. No one then, who reflects ever so little upon the subject, can doubt that the only kind of arrest which creditors practically regard as of any value, that before judgment, is liable to so many objections is so contrary to all principle, and so capable of being perverted to the worst of purposes, that it must at length be abandoned, and no longer suffered to bring discredit on the English law—to which it is as peculiar as it is repugnant to common humanity, to sound policy, and to every thing like justice.
But though the main object of this Bill is deserving of the entire assent of your Lordships, I agree with my noble and learned Friend on the woolsack, that some of its provisions require to be altered. I concur in what he said respecting trusts, and powers of disposition. In several of the remarks on the details made by my noble and learned Friend opposite (Lord Lyndhurst) I also agree. The extension of the provisions of the Bankrupt Laws respecting order and disposition, to the case of all persons within those laws, I entirely disapprove of. That part of our jurisprudence is contrary to all sound principle; it is indeed a remnant of the darker ages of which it was the growth; and if I were called upon to say whether I would rather see it expunged from the law altogether, I mean in cases of actual bankruptcy, or extended to all process against solvent traders, I should at once prefer its total extinction. This part of the Bill must certainly be altered, and there are other material changes which must be made.
585 But in some other objections of my noble and learned Friend to the details of the Bill I cannot agree. Nor do I think that he dealt with those details as fairly as he did with the principle, particularly, when he ridiculed the provision requiring a debtor, on the demand of any judgment creditor, to produce a specification of all his property; particulars, said my noble Friend, of his lands, an inventory of his chattels, a list of his debts, and so forth. Is this a new contrivance, peculiar to the present measure? No such thing—it is a part of the Lords' Act—which provides, by the 16th section, that any creditor, if his debt do not exceed a certain amount (100l. by that Act, 'afterwards raised to 300) may compel his debtor (having first taken his person in execution) to file a schedule of all his lands and all his chattels. But that Act has not only the unjust and partial restriction on the amount of the debt, which confines this compulsory process to debts of inferior condition, while it lets those of a higher order go free; it also contains an enactment of extreme rigour; for it enforces the filing of the schedule by the punishment of seven years' transportation.
My Lords, I rejoice to see the prospect of this measure at length receiving the sanction of the Legislature, and of by far the foulest stain being wiped from our civil code. It is now many years—.nearly ten—since I urged the serious consideration of it upon the attention of the other House of Parliament, when I brought forward the motion upon the reform of the law which led to the issuing of the Commission. The great principle which I then stated, and afterwards recommended to your Lordships, has been fixed and rooted deeper and deeper in my mind by whatever experience I have since had, either at the bar or on the bench; all I have heard both of argument and of authority has increased my confidence in its soundness and in the safety as well as efficacy of the remedy to which it points. What is that principle? Simply this—That mere debts should never be treated as a crime; and still less as a crime to be punished at the sole will and pleasure of the creditor; that the line should be drawn broad and deep between misfortune and guilt; that the latter only should be visited with punishment; and that the judge, not the party, should award it. When a man owes money, let his property be made available of all kinds, whether in possession 586 or owing to him, and by all means, to satisfy the debt, for it belongs to his creditor, not to himself; but when he has committed no offence, let his person go free. But it is in nowise repugnant to this principle—on the contrary, it is by manifest implication parcel of it, and so I always distinctly stated,—that if he has offended either in the manner of contracting the debt, or in defying the law by refusal to give up his property, or in any fraudulent practice to his creditor's damage, then he is no longer an unfortunate man, but a guilty one; and his person may be justly imprisoned, either for the purpose of compelling him to obey the commands of the law, against which his contumacy is indeed also an offence—or in order to visit with condign punishment the fraud which he has committed. Thus if any one shall obtain the money or the goods of another, knowing that he cannot have the means of making payment—or if a man not worth, fifty pounds in the world shall buy a thousand pounds worth of goods and conceal them, or borrow a thousand pounds and squander it away—that is a criminal and not a debtor. Or if one who had fairly contracted debts shall withhold the money which he has, and refuse payment, he too is guilty of an offence; or if he shall make a fraudulent conveyance of his property, to screen it from the process which the law has appointed for its distribution among his creditors—again he is an offender; and all these cases may most justly be visited with adequate punishment, in the form of imprisonment. The distinction between the cases is merely that which separates the innocent from the guilty; and, sparing him whom misfortune alone, or a degree of improvidence falling short of gross and reckless extravagance, disables from satisfying the demands against him, exacts the penalty of imprisonment from him only whose conduct has been profligate, or contumacious, or fraudulent—but never suffers his adversary either to decide upon his guilt or to mete out the punishment. Founded upon this principle, recognising throughout this distinction, the Bill before us comes strongly recommended to the approval of your Lordships, although its details require to be revised and amended; and for such alterations my noble and learned Friend (the Lord Chancellor) professes himself ready.
But, my Lords, there is one alteration in this measure, this just, humane, and in 587 my conscience I believe most politic measure, which the noble Lord has announced, that I confess fills me with astonishment and dismay. I mean that provision which he is to introduce for the purpose of drawing a line of distinction and protection around both Houses of Parliament, and screening their members, iniquitously, invidiously, and, to the community at large, insultingly screening ourselves from the operation of the law, and proclaiming that against us alone of all the people it shall be powerless. Are we indeed prepared to clothe ourselves with the proud prerogative of being law-makers and, therefore, law-breakers? of having the power to frame the law, and, by the possession of that power, contriving an enactment by which we retain in our own hands the other power of violating it with impunity—arming ourselves alone of all our fellow-subjects, with the privilege which both my noble and learned Friends have so justly described as the privilege not to do what every man ought to do, and what every honest man does? What, I ask my noble Friend on the woolsack, is the avowed object of the compulsory clauses in his Bill? He has already answered me—he has said that their object is to compel all to do what all honest men do already without compulsion. See then in what an odious position he is about to plant you—and that too by way of saving your privileges, of exalting you in the eyes of men, of enabling you to command the respect and win the affections of the people! You of all mankind are not to do, at least are not to be required to do, what those who propose this ill-advised alteration, in the same breath tell you every honest man does, and requires no compulsion to make him do. My Lords, this appears to me ominous of the fate of the measure. I think I sec its destruction in this most inauspicious change which the Government have resolved to make upon its frame. So much upon its utter repugnance to the grounds of the Bill as stated by the authors of the proposed change. But what shall I say when, reminding your Lordships of the general principles of the whole measure, as I have already sketched them out, and as I presented them ten years ago to the Commons, I recall to your recollection, that upon those principles the address was presented to the Crown, and the Commission was issued, of which the first and most precious fruit was this measure? Mark well, I beseech 588 you, the leading position winch formed the ground-work of all these proceedings. It was the distinction drawn and persisted in throughout, between misfortune and crime—between honest poverty and fraud—between contumacious resistance of a just demand, and innocent, because unavoidable, inability to satisfy it—between, the want of power and the want of will to do what my noble and learned Friend says, every honest man does freely of his own accord. That was the view which presided over this amendment of the law—that, the origin of the Commission—that, the object of the report—that, the basis of this whole measure, which is built upon that principle, that impregnable position alone. If that be not its foundation, then has it not an inch of ground where on to rest. Then how are you following up this principle—in what manner are you applying it? The rule being, that every man who does a wrongful act—every man who is guilty of a fraud—every man who fraudulently conceals his property or fraudulently makes it away, or any how fraudulently traffics with it to cheat his creditor—all, in a word, who knowingly and wilfully cheat their creditors,—shall be dealt with not as unfortunate debtors, fit objects of compassion, hut as offenders, as criminals, just subjects of punishment—such being the whole pervading principle of the Bill, what is the course announced by the noble and learned Lord on the woolsack, as about to be pursued with regard to your Lordships? That you, the Peers of this realm—the Aristocracy of England—the head and ornament of the State—whose honour is more esteemed than other men's oaths—who decide upon honour higher matters than others upon oath—you, who are not only the Peers of England, the counsellors of the Monarch, the Aristocracy, the head and ornament of society, but the hereditary lawgivers of the empire,—and are desired to abuse your right as such, for the purpose, they tell you, of raising and aggrandizing yourselves, but I tell you, in order to lower, to debase, to stigmatize yourselves—you who are beside all this the judges of the land in the last resort, exercising the highest functions of the judicial office; supremely and without control, in all cases, administering both civil and criminal justice—what is it that you, clothed with these various powers, wielding all these lofty prerogatives, holding 589 the whole law in your hands as legislators and judges, are about to do, with the purpose of protecting your privileges——of exalting yourselves yet higher in the world—of amplifying your title to respect,—and of recommending yourselves to the love of your unprivileged fellow-subjects? Why, you are required to adopt a provision for enabling you to do that which I will not repeat in such near juxta-position to your names; enabling you to do that by your honest creditors, which, if any other men were to do, you would, as administering the criminal law, be bound to visit them with punishment, as knaves, rogues, cheats, swindlers!
Now, let me see the man who will propound this clause! Let me see this alteration brought forward to cripple the Bill! But if it shall be brought forward, I pledge myself to give every one of your Lordships an opportunity, by your vote, of redeeming yourselves from the shame of such an act, by guarding yourselves against the stain—the foul and revolting stain—attempted to be fixed upon your names!
§ Lord Wynford
said, that the clause referred to by his noble and learned Friend who had just sat down would be in his opinion most injurious to the character of their Lordships' House, and to that of the other House of Parliament. The law ought to be equal to all. There might certainly be reasons why the persons of Members of the Legislature should be free, but there was no conceivable ground for exempting the property of a Member of Parliament from the payment of his debts. With respect to the other points raised, there was very little difference between his noble and learned Friends and himself. It had however been stated, that according to the present law of arrest, a man might be put to an expense of 20l., when the debt for which he was arrested was perhaps only 30l. Now, he would say that this could not be. He was himself the judge of the Common Pleas to whom his noble and learned Friend (Lord Brougham) had referred, when alluding to the case of M. Mendizabal. In that, case he introduced a rule which had since, he believed, been passed into a law, that any party who had been arrested on mesne process might, instead of applying for bail, pay the money down in lieu of bail. This was not like a payment of money into Court in ordinary cases, as it did not admit the debt. The grievance, then, of which his noble and learned Friend complained was an imagin- 590 ary one, for the man who had 30l. to pay had nothing to do but to pay the money, and if he allowed himself to be put to 20l. expense for costs, he was fit for a very different kind of custody from that to which he was consigned. In fact, the man must be a candidate for Bedlam. He did not differ very materially from his noble and learned Friends with respect to the objects of the Bill, but he differed entirely as to the mode of carrying them into execution. He considered this Bill to be a most inefficient one, notwithstanding all the consideration which it had undergone, He believed, and he would state his belief broadly, that the measure was so defective, that he was much mistaken if a single clause passed as it stood. The principle on which he went was this—he would not allow any man to be deprived of his liberty, if possible, on mesne process. He admitted that arrests on mesne process were frequently the result of passion; an angry man did not look so much to the security of his property, as to the gratification of his wrath, and the exercise of the power given him by the law very frequently defeated its own object. He agreed, then, that arrest on mesne process ought to be avoided, except in cases when it was absolutely necessary. He would not allow a man to be a judge in his own cause, and arrest another in a fit of passion, but let him lay affidavits before a competent judge, upon which the judge might decide whether he thought the facts disclosed were sufficient to warrant an arrest. His noble and learned Friend near him (Lord Lyndhurst) said, that the debtor Mould in the mean time be off, but the defendant would not know that such affidavits were made, and he would be in custody before he thought of absconding. He thought also that this power should be extended to the plaintiff in an action commenced by serviceable process, when he; had good cause to believe that the defendant was going abroad, although he had not arrested him in the first instance. He was quite of the opinion expressed by his noble and learned Friends, that all property belonging to the debtor ought to be subject to execution in some way or other. But to effect this object the Bill took a new course, and in his opinion a very wild course. The application of a very simple remedy would remove the necessity for all these clauses in the Bill. They had only to extend the Lords' Act to all descriptions of debts, and every purpose of these 591 parts of the Bill would be answered. That was an old remedy, and one which had been recommended by every one of the five commissioners. He had on a former occasion attempted to carry such a measure into effect but he was then defeated, though he hoped that would not be his fortune now. He had stated that he was quite ready to abolish in all cases, except where absolutely necessary, arrest on mesne process; but he thought that after judgment, execution against the person should still be enforced. If a man were at large, there would be no inducement to him to give up his property, and he would frequently be tempted to conceal it; but if the creditor had the power of giving him into custody, he would be willing to give up his goods to procure his liberation. He must say, that the clauses in this Bill were the most unintelligible that he had ever read. He considered that they would not be justified in pressing forward this Bill without a full and careful consideration. The authority which the measure had received by passing the House of Commons was much weakened by the fact that many important alterations had been since made in the Bill by his noble and learned Friend on the woolsack. When that enlightened body had made so many mistakes as his noble and learned Friend admitted they had, their Lordships had but a weak motive for pressing the measure. With respect to the change introduced by the Bill into the law of execution by elegit, he must observe that under the old law the tenant by elegit took half the profits of the land, but it was now proposed that he should have the whole. Under the old law the tenant by elegit might take the land to be extended, so that the profits went immediately in satisfaction of his debt, and he continued in possession till the debt was paid. Now, however, he was to have the rents and profits of the whole, and was to be placed in the agreeable situation (the most agreeable in which a man could be) of accounting to the Court of Queen's Bench for all he received till the estate could be sold. Now, with such a state of things, a man who had a judgment for 1,000l. might seize upon the estates of any noble Lord in that House, though the rents and profits might amount to perhaps 40,000l. a-year. The tenant by elegit would soon change places with his former debtor, and might, if he felt so disposed, soon cross the Channel with the proceeds of the estate, of which he had in this man- 592 ner come into possession. It did appear to him that a more wild scheme than this, for making compensation to creditors, never was devised. He strongly recommended their Lordships rather to have recourse to the wise old plan of calling on the debtor to deliver up all his property to be applied to the benefit of the creditor, and then these clauses would in all cases be rendered unnecessary. Another part of the Bill which he did not like was that which related to the functions to be exercised by the Commissioners of Bankruptcy. Those gentlemen were to be taken from their own court, in which important business was always pending, and all round London, at least, they were to be the examiners under this Bill. He had no doubt that the business of this court was done extremely well, but the business was equally well done in another court, the Insolvent Debtors' Court, and this examination would be much better done by the Commissioners of Insolvents than by the Commissioners of Bankruptcy. With respect to the Commissioners of Bankrupts in the country, by whom the examination was to be conducted, he must say, although there were many learned and respectable men among them, that if there were any part of the administration of justice which was disgraceful, that was it. He was therefore extremely sorry to find that the Bill extended their powers. He had thus adverted to the alterations which he should wish to make in the Bill. He thought that some time or other it might be converted into a proper and practicable measure, but it would require much consideration, and hurrying it through at this time without such consideration would be highly inexpedient and unwise.
§ Lord Denman
would take the liberty of mentioning one or two circumstances which seemed to him to show that the Bill ought to be passed without any material delay. This was necessary if it were only to set the question at rest, and to quiet the minds of a large body of the people. As a further proof of the necessity of passing the measure with as little delay as possible, he would mention a case similar to that which had been alluded to by his noble and learned Friend opposite, and which occurred about fourteen years ago. It was the case of a gentleman who came to this country as the government counsel of one of the South American states. He gave orders, as one of the cabinet council of that 593 country, for a certain quantity of goods; and in his public capacity, and whilst residing in this country, he was actually arrested as one of the partnership for whom the goods were ordered. Of course he was thrown into prison, where, though a person of high rank and station, he was confined for many months. Upon his release he brought an action of malicious arrest, and recovered very great damages. He forgot whether those damages were ever paid or not; but he asked their Lordships for a moment to make the case of this distinguished foreigner their own. Suppose any one of their Lordships were residing in another country, and were to be arrested upon such a pretext as that which he had stated, and confined many months in prison, what sort of opinion would they form of the code of a country in which they had met with such treatment? Since he had held his present station upon the bench another instance of a somewhat similar kind had occurred. A Portuguese nobleman (the Duke de Cadaval, he believed,) on landing at Fal-mouth, or while he was residing at Plymouth, was arrested on a pretended debt, thrown into prison, and obliged to pay a large sum of money to procure his release. He also brought an action for malicious arrest, and recovered large damages against the person who had imprisoned him, not one farthing of which, however, had ever been paid. But what compensation could any amount of damages be to a person who was so outraged by the abuse of a law which was always in operation in this country? It was impossible to suppose that either of the two distinguished individuals to whose cases he had referred, however wealthy they might be, could be provided with sufficient money at the moment to purchase their release. But let it be considered how many persons there were continually exposed to the operation of the cruel law, who had it not in their power to command the very smallest sums; and let it be remembered how much that difficulty was increased when they were suddenly thrown into prison, and every means of gaining money, either by their trade or labour, closed against them. It was idle to say that an action for malicious arrest could afford the slightest degree of compensation in cases of this kind. The parties who had been confined became injured, perhaps utterly ruined for life. It 594 was, therefore, to prevent the possibility of actions like these, and the possibility of the ruin of numbers, that he was in hopes that the arrest upon mesne process would have been at once declared a practice that ought not to be continued in this free and enlightened community. It was dreadful to think how many persons had been imprisoned for long periods for very small sums. It was found upon inquiry that a very large proportion of the persons imprisoned for debts were for sums under 30l., and it was a fact, that four-fifths of the whole number were imprisoned for various sums under 80l. There was one consideration connected with this subject which had not yet been pressed at all upon their Lordships' consideration, but which he was sure no one at all conversant with the history of the courts of justice would be insensible to. It was this, that the less the means of the debtor to pay the expenses and costs of his arrest, the more completely was he placed at the mercy not only of his creditors, but of the low practitioners of the law, men who were in the habit of pushing the abuses of the law to the very uttermost to secure their own gain, and without the smallest regard to the feelings or interests of the unfortunate beings who fell within their power. He found that their Lordships were all agreed that the Bill should be read a second time, and referred to a Committee up stairs. He trusted that the only object of that Committee would be to discover, and that without any unnecessary loss of time, the best substitute for the existing law, and that they might now venture to consider that the principle of the present Bill was adopted and sanctioned by their Lordships. His noble and learned Friend opposite had put the question very fairly, "is it, or is it not, right that the power of arrest should continue?" but he confessed he was sorry to hear from that noble and learned Lord so much pleasantry upon the details of the Bill. He was sorry also to hear his noble and learned Friend (Lord Wynford), who spoke last characterise the measure as one that was perfectly inefficient and absurd. He thought that it carried with it the recommendation of an extremely simple and intelligible code. It might not be strong enough to effect all its purposes, but he confessed he looked with great jealousy on any kind of arrest, especially if it were grounded only upon ex parte statements, 595 He did not like to see the liberty of any one of his fellow subjects restrained or put an end to without a formal and regular trial in a court of justice. He would not say one word about the views of the question which had been introduced by other noble Lords; but he must observe, that considering that the principle of the Bill was now adopted by their Lordships, and was to be sent to a Select Committee, he thought it would have been much more desirable that it should have gone to the Committee without that degree of disparagement which the many objections made to its clauses, must necessarily throw upon it. He must take the opportunity of adding that he hoped, in common with his noble and learned Friends who last addressed the House, that the particular clause to which his noble and learned Friend upon the woolsack expressed himself not hostile would never find its way into the Bill, because he thought that the great principle of relief from arrest, which would apply to every one in the kingdom, would take from the members of Parliament all claim for a peculiar exemption from liabilities to which the rest of the community were subject. He trusted, therefore, that a clause of that kind would never be allowed to find its way into the Bill. Going into the Committee without any unnecessary delay, and with a real desire to find an effectual substitute to spare the liberty of the subject and at the same time to provide all the security that the creditor could receive, he trusted that their Lordships would in a very short time see the law of England relieved from that foul stigma which must ever attach to it as long as the law of arrest was allowed to remain.
§ Lord Abinger
did not propose to go through the details into which his noble and learned Friends had entered. He, however, thought that this Bill was erroneously entitled. It was called a Bill to abolish imprisonment for debt in certain cases; but he thought it might be much more properly called a Bill to add to the duties of the Commissioners of Bankrupts, to increase their emoluments, and to raise a fund for that purpose. He was, however, ready to lend his best assistance in carrying out a Bill for the abolition of imprisonment for debt, and to make such a measure perfect; but he must say, that the Bill as it now stood did not contain a single clause which met his approbation.
said, his noble and learned Friend dealt most unjustly with the Bill. He had not looked at the returns upon the table or he would have seen that the funds in the court of bankruptcy were already overflowing.
§ Lord Abinger
remarked, that under the Bill now before their Lordships, proceedings were to be pursued in certain cases before a Commissioner of Bankrupts, who would be entitled to fees every lime he moved. Now there were also other proceedings which this Bill would throw before one or other of the judges in chambers, and upon the judges, if this Bill were to pass, great additional labour would be imposed, while no additional remuneration was provided by the Bill.
§ Lord Abinger
repeated that the Commissioner of Bankrupts would get a fee for every step he took under this Bill, and the fees so acquired were to form a fund, out of which the Chancellor was empowered to provide additional salaries for those Commissioners.
§ The Lord Chancellor
remarked, that the Bill had not been very accurately examined by some of his noble and learned Friends who had gone into the details at some length. He (the Lord Chancellor) had no objection to go into a Select Committee if the object was merely to endeavour to improve the provisions of the Bill, but he trusted that, by seeking a reference to a select Committee it was not intended to go into evidence, especially after such a mass of evidence had already been secured, and thus to defeat the Bill. With regard to the exemption from arrest of Members of that and of the other House of Parliament, he should not be one to struggle in favour of a privilege of that kind.
reminded the House that even under this Bill there were a whole class of cases in which defendants would still be liable to arrest. Those cases were all actions of tort, such as for criminal conversation, seduction, slander, libel, and false imprisonment.
§ The Duke of Wellington
said, that he should not trouble their lordships with more than one observation upon the present occasion. He begged to say that he consented to go to a select Committee with this Bill in the hope that some security would be afforded to the creditors of this 597 country for the recovery of their debts other than by personal arrest. He repeated that he hoped this Bill would come out of the Committee affording some satisfactory security to the country in that respect. If it did so come out of the Committee, he would consent to go through the other stages of the Bill; but, if it did not give that security, he should certainly oppose all further proceeding with the measure. He agreed in many of the arguments advanced by the noble and learned Lord opposite. He entirely agreed with him that one of the causes of debts being incurred in the country was, in a great degree, the power which creditors at present possessed to arrest their debtors upon mesne process; and he still further believed that it was the facility which was thus given of obtaining credit which had been the cause of the great mercantile prosperity of the country. The enormous transactions upon credit in this country were such, that both individuals and the public generally required further means of recovering debts than existed in other countries. Under these circumstances he entreated their Lordships not to suppose that he gave way in this matter from his feelings, and on that account to put an end to a system which he admitted, in some instances, had been abused; but he gave way with a view seriously to look into the subject, and see whether, instead of arrest, some efficient substitute could not be found which would afford good security to the commercial interests of the country.
§ The Marquess of Lansdowne
had every reason to hope that the Bill, particularly as it might be expected to come out of Committee, would give increased security to the creditor. He quite concurred with the noble Duke, that this was a most necessary object to effect; but he certainly could not agree with him that it was desirable that every species of credit, as it now existed in this country, should be maintained as hitherto. He was convinced that much of the credit which had prevailed in this country had been prejudicial to its prosperity, and noxious to society at large, and that it was at the root of many of the evils which existed in the country; and it was his opinion that this Bill would not produce all the good which he expected from it, if it did not in that sense diminish the amount of credit which was now given; for while he looked upon 598 the powerful sanction of the law as necessary for the purpose of enabling the creditor to recover his just debt, he considered that the chief object against which the power of the law should be exerted, was that foul and perverted species of credit by which, under the law as it now stood, a numerous class of persons were induced—though with the certain know, ledge that the parties they trusted had not the means themselves for paying them—were induced on a mere gambling speculation, which it was contrary to the duty of a Legislature to encourage, to give credit, in the hope that, exercising the power of the law with which they were armed for their own private and selfish purposes, they might so work upon the feelings of the friends of their debtors, by calling into action all the best sympathies of society and human nature, as to succeed in throwing the burden on parties on whom it ought not to be thrown, and thus give increased encouragement to the contraction of debts, which both the person paying, and the person giving credit, knew perfectly well the debtor was entirely unable to repay himself. The whole class of transactions of this nature, and it was an extensive one, was quite unconnected with the prosperity of the country, was indeed prejudicial to it—it was a class of transactions which the House, so far from protecting, were bound to discourage; and though there might be cases in which the creditor might advantageously be put in possession of power with reference to persons of a different character, yet, if the noble Duke looked to the returns, if he looked at the state of these transactions in other countries, be would find that this description of credit, which was connected with that commercial prosperity which he so justly regarded as entitled to their Lordships' best protection and support, was precisely that species of credit which did not rely for its security on the power of arrest. In France, the power of arrest prevailed to a certain degree; and it was well known, that in the great commercial cities of that country, Marseilles, Bordeaux, Rouen, Havre, &c., the power of arrest was very seldom exercised. It was only among the shopkeepers of Paris, among the class of gambling and fraudulent transactions such as he had described, and which prevailed to an enormous extent in Paris—it was only there that the power of arrest was put in force to any extent. 599 He should go into the Committee with as great an anxiety as the noble Duke, to protect and give the support of the laws to the honest creditor, but at the same time with an anxious desire that there should in future be less credit given in this country than hitherto. He was convinced that this would operate greatly to the benefit of society, and effect a great diminution of the misery and destitution to which the law of arrest; in this country, had given rise.
§ The Bill was read a second time, and ordered to be committed to a Select Committee, which was appointed accordingly.