Lord Broughammoved that the Report on this Bill be received. It had been agreed on a former occasion that the Debate should be taken on the next stage, but he was absent, and instead of the Report being taken on that night, it was put off till this night, when they ought to have had the third reading. He hoped their Lordships would allow the Bill to pass through both stages that night, as it was important that a measure which went to release so many unhappy persons from prison should pass that Session.
§ Lord Cottenhamsaid, it was immaterial to him which course was taken; but, at the same time, as this was only Thursday, and there was another day this week, he saw no necessity for deviating from the Orders of the House. It would be necessary for him to occupy a little of their Lordships' time, and it should be as little as would enable him to perform a duty which he felt incumbent upon him before this measure passed another stage. On the 30th of April, in this year, he had laid on their Lordships' Table, a Bill, having for its object the abolition of imprisonment for debt, and containing other provisions necessary to that object. That Bill met with the unanimous approbation of that House, and the warm approval of his noble and learned Friend upon the Woolsack; but notwithstanding that approbation, a Select Committee had since reported that that Bill ought not to be proceeded with. It was natural that the House and the public should expect that some explanation should be given of the present extraordinary state of the subject, and he wished now to put their Lordships in possession of the history of those transactions, and to direct their attention to the state in which the Bill now before them, as amended by the Committee, would leave the law. In 1838, he introduced a Bill, which afterwards became a law, for abolishing Imprisonment for Debt in all cases. Their Lordships adopted that Bill so far as it related to imprisonment on mesne process, but rejected that part which related to final process. That law having taken away the power of arrest, and compensated the creditor for the loss of that power by making various descriptions of property liable to the payment of debt which had not been so before, and improved generally the remedy of the creditor against the property 1388 of the debtor. Much had been said against that proposition; many evils were anticipated from it as destructive to credit; but the result occasioned no complaints. Credit, he believed, went on as freely as before or, if checked, it was only in instances in which it ought never to have existed. The Bill which was now stopped in its progress by the Report of the Committee had for its object to carry into effect the recommendations of a Commission appointed in 1839, and which reported in 1840. He had no claim to any of the merits which that Bill might possess beyond his being the organ of bringing the recommendations of the Commissioners before the House, and endeavouring to prevail upon Parliament to pass them into a law. He laid the Bill on the Table in 1841. Nothing was done upon it then. He laid on the Table in 1842, a Report which recommended an alteration of the Bankrupt Law, the abolition of Imprisonment for Debt, and the substitution of various provisions by which a creditor would obtain a better remedy against the property of the debtor: it also recommended the consolidation of the systems of Insolvency and Bankruptcy, and the uniting the Courts, so that one judicial establishment should carry the whole law into effect. A Bill was introduced in 1842 which provided for the adoption of the alterations in the Bankrupt Law itself, and then contained arrangements by which a debtor could be compelled to yield up his property on the application of a creditor or it might be surrendered by the voluntary act of the debtor himself. It also provided that, in certain cases of fraud, the debtor could be punished for it as any other offender; and having thus provided means for the punishment of fraudulent debtors, it proposed altogether to abolish Imprisonment for Debt. It also contained, in addition to that, a provision for uniting the jurisdiction of bankruptcy and insolvency; and provided that bankrupts and insolvents should not, after obtaining the benefit of the law, be liable at a future period for the debts with respect to which they were to receive that protection. A Bill was also brought in by his noble and learned Friend upon the Woolsack, in which he adopted one half of those recommendations, viz., that part which proposed the alterations of the Bankrupt Law which he brought in but he left the rest untouched. It so happened that his Bill, contained those provisions which he had described, and the Bill of the noble and learned Lord on the 1389 Woolsack, containing half of those provisions, were appointed for a second reading on the same day. It is true they were not antagonist Bills; but it so happened that the Bill of his noble and learned Friend on the Woolsack was agreed to, and his was rejected. [The Lord Chancellor: It was not your Bill.] He said it was true that it was not his Bill, but it was a matter in which the public had an equal interest; but at all events the Bill of his noble and learned Friend on the Woolsack was adopted, and the other rejected. He (Lord Cottenham) complained that the whole measure had not been adopted and as he looked upon the subject as one of great importance, he was desirous that it should not be left in that state; and he therefore renewed, in the Session of 1843, his previous Bill, leaving out that portion of the former Bill which was adapted by his noble and learned Friend; but when he brought it forward he was told by his noble Friend that it would be inexpedient to press the Bill at that time, because something of the same kind was in the contemplation of the Government. He thought from that intimation that the other portion of the Bill was likely to receive the same support as the former part had received from the Government, and of course he was gratified at the expectation that it would become the law of the land. But the Session passed through its infancy, its manhood, and, in fact, its old age, without anything being done by the Government with respect to the introduction of such a Bill, and it became too late for him to introduce his Bill at the time when it had become apparent that no Bill would be introduced by the Government during the Session. Thus the Session of 1843 passed away; but the Session of 1844 was more eventful, and during that Session he introduced it again, and he laid it upon the Table at an early period of the Session, in order that he might fairly test whether the House was or was not disposed to adopt the recommendation of the Commissioners embodied in that Bill. The subject of the Bill had been a long time before the public; it was the subject of two detailed Reports, and had been inquired into before Committees of this and the other House of Parliament. He laid the Bill on the Table of the House at an early period, and he stated that he would move the second reading on the first opportunity which presented itself after the Easter recess. The first day on which he could 1390 have an opportunity of moving the second reading of the Bill was the 16th of April—and now he came to the history of the proceedings relating to the Bill, and he hoped that their Lordships would favour him by attending to the statement which he was about to make.—Before the 16th of April his noble and learned Friend on the Woolsack applied to him to postpone the second reading of the Bill in consequence of the absence of another noble and learned Friend (Lord Brougham), who was not then in this country, and who had taken a lively interest in the question. To that request he readily agreed, and he was extremely gratified by the prospect which he then thought was held out of having the noble and learned Lord's support. His noble and learned Friend returned to this country, but there was another application made to him to postpone the Bill, and to that he also agreed. He acquiesced at first in the request to postpone it from the 16th to the 22nd, and afterwards from the 22nd to the 30th of April. He should now, before proceeding further with the history of these proceedings, draw the attention of their Lordships to a speech made by the noble and learned Lord on the Woolsack—a speech of very great importance, and which was, in his opinion, one of the best speeches he ever heard the noble and learned Lord deliver. He should read to their Lordships a few passages from that speech; he hoped they would be remembered in all time to come, and that when at some future period a collection of the noble and learned Lord's speeches should be published, he was confident that it would be read with the greatest attention. The extract to which he wished to direct their Lordships' attention he should now read:
He (the Lord Chancellor) did not rise to oppose the Bill of his noble and learned Friend; on the contrary, he begged to say that he fully approved of its object and provisions. His noble and learned Friend was perfectly correct in saying that the subject had been fully approved of by the learned Commissioners to whom he had referred, and that they had reported distinctly in favour of such a measure; and his noble and learned Friend, when he introduced the law for amending the bankrupt law, had provided for such an alteration in the law as this Bill proposed as part of his general measure. Unfortunately, however, his noble and learned Friend had not the opportunity of carrying his intentions in this respect into effect, for while the Bill was on their Lordships' Table his noble and 1391 learned Friend ceased to hold the Great Seal. Nothing could be more inconsistent than that there should be two separate and distinct laws in the country with respect to the two different descriptions of insolvency—the bankrupt law and the insolvent law—which were as directly opposed to each other as the principles on which they were respectively administered, especially in that one particular to which his noble and learned Friend had last alluded—the important particular which left an insolvent debtor, after all his property had been taken from him, when he had to commence the world again, liable to the payment of those debts from which he was supposed to be discharged by the insolvent law. It was surely sufficiently hard for a man to have to commence business, and, as it were, life again, without capital or property of any kind after his discharge by the Insolvent Debtors' Court; but if, in addition to this, they imposed upon him the liability to pay all the debts he had previously incurred, it would require more energy than most men were possessed of to bear up against it, and to endeavour, under such circumstances, by industry, to acquire property. He (the Lord Chancellor) had always looked upon this as a most unwise provision in the Insolvent Debtors' Law, and one that ought to be repealed. Another great absurdity was, that the two laws should be administered by two different descriptions of judges—the Bankrupt Commissioners in one case, and the Commissioners for the relief of Insolvent Debtors in the other. It was for these reasons—it being represented that the Bill of his noble and learned Friend was to assimilate those two branches of the law, and that it had also for its object, that the law so assimilated should be administered by one set of judges—that he supported it, and he begged leave to say further that he had himself maturely considered the subject when he brought forward the Bankrupt Law Amendment Bill, which was now the law of the land, and the only reason why he had not imitated the example of his noble and learned Friend by including such a measure as a part of that Bill was, that feeling most anxious for the success of that Bill, he had avoided encumbering it with the provisions necessary for carrying out his noble Friend's object, knowing, too, that the object might be effected by a separate Bill, which might afterwards be introduced.After he had heard the speech of the noble and learned Lord he felt exceedingly gratified, believing that a measure so strongly recommended by those most competent to form an opinion on the subject, would speedily become the law of the land. He had, however, since learned that the expectations which that speech had raised in his mind were of little value, and that the expectations of another description of 1392 persons who were very much interested in the subject, were of equally little value. A great number of unfortunate persons who were in prison at the time, and who had the means of applying to the Insolvent Debtors' Court for relief, on seeing that the organ of the Government in matters of law had expresssed his approbation of the provisions of the Bill, one of those provisions being, that all persons imprisoned for debt should be discharged without those burthens which in many cases prevented persons from taking the benefit of the Insolvent Act—these persons abstained from incurring expense, thinking it better to wait until the passing of the Bill. They had been kept in a state of suspense from the 16th of April to the present time, and now they could not take the benefit of the Insolvent Act until Michaelmas next. There was a degree of hardship, if not of cruelty, in this; and it showed what difficulties arose from the Government announcing their intention in so unqualified a manner, and afterwards, from some reason, entirely altering their course, and depriving these persons of the benefit to which they were looking forward. Circumstances occurred soon after the delivery of that speech which induced him to doubt whether the promise it held forth would be fulfilled. The noble and learned Lord who sat alongside the Woolsack (Lord Brougham) took a part in the debate, but he did not express the unqualified approbation of the Bill, which he had expected to receive from him—perhaps because he intended to propose one of his own. His noble and learned Friend alluded to what might be an extremely important matter, and stated, that under the authority of the Government, or under the sanction of his noble and learned Friend on the Woolsack, and, with the aid of the Foreign Office, which had facilitated the inquiries into what had taken place in foreign countries, there had been collected by a very learned individual a variety of facts and a system of law which deserved the greatest consideration; and for that reason his noble and learned Friend on the Woolsack suggested that as it was not then forthcoming, some time should elapse between the second reading and the Committee, in order that that information should become accessible to their Lordships. The Committee was postponed until the 14th of May, and again to the 23rd, when some Amendments were made, and the Report was directed to be bronght up on the 3rd of June. It 1393 was then postponed until the 6th, and again until the 13th, on the application of either one or the other of his noble and learned Friends, and on one occasion on the application of the noble Lord the President of the Council. These were ominous postponements of a measure which had been so loudly applauded by his noble and learned Friend on the Woolsack. On the 13th June a transaction took place which relieved his mind from the doubts which he had felt. On the Report, the noble and learned Lord on the Woolsack introduced several Clauses upon the Bill, which he should not call his (Lord Cotttham's) Bill again. [Lord Campbell: The applauded Bill.] After all these postponements he made up his mind, and introduced his own Amendments on the applauded Bill. On the 18th of June, for the first time, a suggestion was made to him that it was possible the applauded Bill might not pass. That was on the Monday, and on the Thursday the death-blow was given to the applauded Bill. When the noble and learned Lord on the Woolsack, without retracting one single word of the approbation he had before expressed, proposed to refer this Bill, and another Bill which was before their Lordships, to a Committee composed of twenty-one Members, named by himself, seventeen of whom uniformly took their legal opinions from his noble and learned Friend, and only four of whom had not acquired that habit of forming their opinion upon legal matters; but of those four there were three whose other duties were sufficient to prevent them from attending, so that his noble Friend near him (Lord Campbell) and himself, with seventeen who relied altogether on the opinion of his noble and learned Friend on the Woolsack, were to sit in judgment on the applauded Bill and the other Bill. The other Bill was brought in by a noble and learned Friend of his, and of course he had a perfect right to do so. On the 6th of May the Bill was introduced. It was entitled, "A Bill for facilitating Arrangements between Debtors and Creditors." It was read a second time on the 7th of May, and the Committee upon it was appointed for the 14th of May, the same day which had been appointed for the Committee on the applauded Bill. If that Bill were intended as an antagonist to, or a rival of, his Bill, it had been unsuccessful, for it was soon after abandoned. On the 13th of May, however, another Bill was brought in, it was a Bill relating to Bankruptcy and 1394 Insolvency, and certain matters of Accounts. That Bill was founded on the Report of Mr. Serjeant Manning, and if sanctioned, would not only supersede his (Lord Cottenham's) Bill, but would do away with all the measures that had passed on the subject since the days of Elizabeth. He thought it would require a good deal of persuasion to induce Parliament to think it advisable to repeal all our laws as useless, and to establish a new Code, but as it might yet be brought under their Lordships' consideration at a future period, he should not go into it on that occasion. That Bill was also abandoned; so that there were two Bills fired off against his Bill, but neither came in contact with it, and they were both abandoned. On the 21st of May, however, being two days before the day appointed for the Committee on his Bill, another Bill was introduced—namely, "An Act for Amending the Act 5th and 6th Victoria, entitled 'An Act for the Relief of Insolvent Debtors," and was laid on the Table by his noble and learned Friend (Lord Brougham.) He (Lord Cottenham) saw that this latter measure could not be a rival of his however. He should here mention that on the 16th of August, 1842, when the Royal Assent was given to the Bill which embraced half of his original measure, the Royal Assent was also given to a Bill of his noble and learned Friend for doing away with an objection to the Insolvent Debtors Law, namely, that imprisonment was a necessary preliminary condition to obtain the benefit of the Insolvent Debtors' Act. His noble and learned Friend was satisfied that this was a hardship which ought to be remedied, and in 1842 he brought in a Bill, which rendered imprisonment an unnecessary condition to obtain the benefit of that Act, and by which a person, without going to prison, might obtain a protecting order; but that Bill had an imperfection — its object was to divide property amongst the creditors, but it effect was, to take the property out of the hands of the debtor and place it in the Insolvent Court, where it remained without any power on the part of the creditor to take it out—and so the law stood down to the present time—he believed that in practice the defect was of very little consequence, because, although thousands had taken advantage of its provisions, very little, if any, property had come under the cognizance of the Court; because when a man found himsfelf inolvent and unable to pay his debts, he would naturally go on as long as he could, spending whatever 1395 money he had at his command, knowing, if he put himself before the Court, it would be all lost. He must have something to enable him to live; the creditors might suspect he was swindling, and threaten proceedings, and then, and not until then, he applied for protection: the moment he obtained which, the creditors were defeated, being unable to pursue either his person or property. But even supposing they had the power of compelling a division of his property, it was not likely, exhausted as such a debtor would be, and after paying the expences of the Court, that it would be worth dividing. Many thousand persons had taken the benefit of that Act whose creditors were consequently baffled. Now, to return to the history of those Bills which had been introduced during this Session. The introduction of so many measures from time to time, and the requests for the postponement of his own measure, might have, perhaps, alarmed him for its success, if he had not had entire confidence in the approbation of the Bill which had been expressed by his noble and learned Friend, not a word had yet been said to him about it being opposed. Could he possibly have thought that his noble and learned Friend would have altered his view after allowing two months to pass without any such intimation? Could he, under such circumstances, entertain any doubt whatever that it would pass without any expression of disapprobation? He had been told on some occasions that his noble and learned Friend on the Woolsack had threatened that the whole weight of the Government should be brought to bear against parts of the Bill; but there must be some misapprehension on the part of those who told him so, for it was impossible that his noble and learned Friend who had, at an earlier period of the Session, applauded it so highly, could so soon resolve on defeating it, and therefore he treated that as an idle report.
§ Lord Cottenhamhad no objection to read it all, if his noble and learned Friend wished.
§ Lord Cottenhamthought it would not be deemed necessary by the noble Lord. The fact was, that his noble and learned Friend on the Woolsack had been running 1396 counter to his other noble and learned Friend (Lord Brougham). That was a serious difficulty, and must be provided against. There was also another difficulty, in the fact that his noble and learned Friend was running counter to one of his own Colleagues, who, previously to the speech alluded to, had brought into the House of Commons a Bill directly at variance with his (Lord Cottenham's) Bill, which his noble and learned Friend had so applauded, namely, the County Courts Bill. That Bill contained a Clause empowering the imprisonment of persons owing small debts, at the rate of one day for every shilling. The jurisdiction extended to 15l., so that an unfortunate man was liable to be imprisoned for 300 days if he owed that amount! By his noble Friend's Bill the protecting order could be had, but by this other Bill a man might be imprisoned one day for every shilling he owed. It was awkward, undoubtedly; but how much that circumstance had to do with the throwing out of his (Lord Cottenham's) Bill he did not know. He felt anxious to go into all that statement, in order that hereafter it might be seen that his Bill had not been thrown out upon its merits. Well, his own Bill, and that of his noble and learned Friend, were referred to a Select Committee; but that of his noble and learned Friend related to traders whose property or debts was under 300l.—all who owed above that sum were still left liable to arrest. Both were referred to the Committee, and some important alterations were made. All the Clauses giving compulsory cession of property to the creditor were struck out, so that a man might still live in luxury in prison and set his creditors at defiance, at least so far as that Bill was concerned. No imprisonment for debt was to be allowed on debts under 20l., and persons in execution for debts would be entitled to their discharge if the Bill became law. He entirely approved of that Clause, because nothing could be more cruel than locking a man up under such circumstances, and leaving his family to starve outside. The third alteration was not of much importance, but it was amusing—it was the transfer of all the Clauses proposed by and introduced into his Bill by the noble and learned Lord on the Woolsack from his Bill into that of his noble and learned Friend near him. His noble and learned Friend's Bill, so far from abolishing imprisonment for debt, provided for the indefinite confinement of 1397 debtors. [Lord Brougham: In cases of fraud.] No; the case was left to the opinion of a Judge. A man contracting debts without the means of paying them, even though it should amount to the crime of raising money under false pretences, was liable to be imprisoned for life. That, surely, was too severe a punishment, particularly as it was inflicted, not after a trial or conviction, but upon the impression of the individual Judge before whom the case of the insolvent was brought. His noble and learned Friend's Bill contained a Clause giving to Members of Parliament an immunity from arrest; but he hoped that Parliament would never approve of preserving imprisonment for debt simply for the purpose of covering that privilege. If such privileges were to exist, let them be provided for in a distinct and separate Act. But, in fact, if they passed this Bill, they would be adding to the existing incongruity and confusion, and to the oilier evils which already subsisted, for if it passed into law, there would be three systems of insolvency in operation instead of two. He trusted, however, that his plan would still be adopted by Parliament, and he hoped this, not because the plan was his own, but because he conscientiously regarded it as the most calculated to effect the great object, the principle of which had been sanctioned over and over again by every noble and learned Member of that House, and by no one more warmly than by his noble and learned Friend (Lord Brougham). Provided that principle were adopted by Parliament, he cared very little whose name was at the back of the Bill embodying it; but by whomsoever introduced, such a Bill should have his cordial support; but whether introduced by himself or by another, he should do his best to induce their Lordships to carry out to the full extent the principle which he advocated.
Lord Broughamdid not at all complain of the length of his noble and learned Friend's speech, though he must confess that the far larger portion of it, both speech and extracts, were so familiarly known to him, from having heard it over and over again, that had his noble and learned Friend's physical powers failed him at any part of it, he thought he could have carried it on for him. The case lay in an extremely narrow compass. He had, indeed, himself often stated the case enlarged upon by his noble and learned Friend. Both the measures advocated 1398 the abolition of Imprisonment for Debt; the main difference between them was, that they begau at different ends. He wished to throw the onus upon the debtor of showing that he was an innocent debtor, while his noble and learned Friend desired to throw all the onus of the matter upon the unfortunate creditor. There was this difference between his Bill and that of his noble and learned Friend. His (Lord Brougham's) Bill was in conformity with the law as it now existed, while his noble and learned Friend's Bill proposed the introduction of an entirely new principle. His noble and learned Friend (Lord Cottenham) had dwelt on the applause with which his Bill had been received by his noble and learned Friend on the Woolsack; but his noble and learned Friend explained at the time that his adoption of the measure was so far as it assimilated the systems of insolvency and bankruptcy. His noble and learned Friend (Lord Cottenham) said that his Bill abolished Imprisonment for Debt, but that his (Lord Brougham's) did not, except in certain cases and under certain conditions, and that the principle of his Bill was to continue Imprisonment for Debt, while the principle of his (Lord Cottenham's) was to abolish it. Now, how his noble and learned Friend could assert that his Bill abolished Imprisonment for Debt altogether, was to him most unintelligible. Did not his noble and learned Friend's Bill allow persons to be arrested and imprisoned—aye, indefinitely imprisoned—if they refuse to answer all questions put to them, if they do not give up the whole of their property, and explain satisfactorily the circumstances of their insolvency? Oh, but said his noble and learned Friend, that is not Imprisonment for Debt, but imprisonment for contumacy! Contumacy for debt! Was that a crime known to the law? No; the contumacy was because the man was a debtor; it was the contumacy of a debtor to his creditor; and he was to be imprisoned because he did not pay his debts. That was what he (Lord Brougham) called Imprisonment for Debt. If then, a debtor refused to surrender his property, or give a true account of his affairs, they found he would be imprisoned by the Bill of his noble and learned Friend as well as by his, and for the same reason, because he was a fraudulent debtor. He did not complain of his noble and learned Friend's Bill on that ground; for that was 1399 the principle for which he himself contended. He said, do not confine people in prison because they are in debt merely; but if they, being in debt, refused to give up their property to their creditors; if they refused to give any explanation of their affairs, and of the disposal of their property; if they had committed fraud, or, last of all, if they had been grossly extravagant, and having, perhaps, an income of not more than 100l. a-year, had incurred debts amounting to 10,000l. or 20,000l.; or, being entirely without property, or any means of paying, had gone into the shop of some poor tradesman, and bought goods or borrowed money of him (which they might as well rob him of at once, and be sent to Botany Bay—for in the moral guilt there was no difference)—then, and in such cases, his (Lord Brougham's) Bill would keep them in prison, not because they were debtors, but because they were fraudulent or quasi- fraudulent debtors. His noble and learned Friend had talked of the harshness of creditors, but he should remember that there were cruel debtors as well as harsh creditors, and that the creditor required protection as well as the debtor. But his noble and learned Friend would abolish Imprisonment for Debt in such cases, and leave the creditor to prosecute the debtor if fraud had been committed, leaving him subject to all the chances of flaws in indictments, bills of exception, and writs of error, by which justice might be evaded, and expenses increased, and the poor creditor, who had lost 19s. 6d. or perhaps 20s. in the pound, was to be saddled with this expense in addition, for the purpose of furthering the ends of public justice, and to afford an example to the community. [Lord Cottenham: At the expense of the estate.] Suppose the estate did not amount to 1s. in the pound? Why, in one of the very few cases of prosecution for fraud, under the Act of 1842, the cost to the creditor had been no less than 250l. But this was not the usual class of insolvent cases. The common cases were not those which were characterised by indubitable fraud; but cases in which there was gross and culpable extravagance, and in those cases his noble and learned Friend's Bill gave no remedy as against the debtor, while his (Lord Brougham's) Bill did. His Bill, unlike his noble and learned Friend's, in this respect also, vested in the Commissioners 1400 who examined the debtor—who heard his statement and the creditors also, and who investigated the whole case—the discretionary power of imprisoning the debtor, but not in the creditor, as did the Bill of his noble and learned Friend. They objected to Imprisonment for Debt for two reasons—first, because it enabled the grasping and harsh creditor to imprison the innocent debtor, and because it made the creditor the sole judge, without appeal, of the length of the imprisonment. That was Imprisonment for Debt, and that his (Lord Brougham's) Bill abolished altogether; while, on the other hand, it provided for the protection of the creditor, by causing a distribution of the property of the debtor fairly amongst those to whom he was indebted. These were the two principles of the two measures, and he would leave their Lordships to judge whether his (Lord Brougham's) did not abolish Imprisonment for Debt to the full extent it ought to be abolished—leaving it, for the future, as the punishment for crime, and not for misfortune. Then his noble and learned Friend extended the Bankrupt Laws to all and every class of persons—not to traders merely, but to lords, to princes, to private persons, to women and persons under age. Such were the principles of the Bill, the loss of which his noble and learned Friend had so plaintively lamented that night. Then it was retrospective in its operation, not prospective merely. Suppose the case of a Prince of Wales being told, that instead of going to a review in Hyde Park, he must go before Mr. Commissioner Fane at the Bankruptcy Court. They had heard of noblemen owing 200,000l., and a prince of the blood 800,000l., and if the Bill of his noble and learned Friend had been the law at that time, and that 800,000l. were not paid within fifteen days, that prince might have been advertised in the Gazette as an adjudicated debtor, which was the same as being a bankrupt. This was the nature of the Bill to which his noble and learned Friend asked their Lordships' assent. Surely his noble and learned Friend never could have expected to find ten men in their Lordships' House to agree to such a measure. Well, suppose this Prince of the Blood so advertised; the creditor proceeds to take possession of Carlton House. He clears away all the pictures; and when the Prince asks for some explanation, tells him that he is an adjudicated debtor. 1401 "What is that?" asks the Prince, "I am not much of a lawyer, and don't know what you mean." "Oh," would be the reply, "an adjudicated debtor means a bankrupt." "But I am no trader. I was never within the bankrupt laws," rejoins the Prince. "That signifies nothing," the man would reply, "to Lord Cottenham, who has passed the law which makes you a bankrupt, for he extends that law to all persons, princes as well as traders, and Lord Cottenham was Lord Chancellor for four years." "But I did not incur these debts under that law," would be the suggestion. "Oh, no matter; Lord Cottenham has thought it right to make the law retrospective." "That cannot be," the Prince would say, "for I know the Legislature does not pass retrospective laws." "I beg your Royal Highness's pardon," would be the answer; "but though unusual, it is nevertheless true." "Surely I ought to have had notice of this law, for had I known I should be brought within the operation of the Bankrupt Laws, I should not have incurred a debt of 20,000l. for Maréchal hair powder, and other still larger for jewellery, plate, and other things. Why did you not give me notice of this before?" "I cannot answer that question, your Royal Highness—perhaps my Lord Cottenham may. This was the gross and grievous injustice, the scandalous and intolerable injustice, that his noble and learned Friend's Bill would inflict; it would, by its ex post facto operation, make people liable for their past debts to the Bankrupt Laws, though when they have incurred them there was no such liability. When be brought in the retrospective Clause he (Lord Brougham) saw the objection, and proposed that the law should affect only those debts incurred after January, 1845, for he found that the feelings of society were opposed to such a sweeping change. With regard to the Clause affecting the privilege of Members of Parliament, that stray Clause, upon which his noble and learned Friend had said so much, ad invidiam. Would their Lordships believe from whence that Clause had been obtained? If his memory failed him not, the Clause which had been brought forward that night—he would not say to create a clamour, but having a tendency to do so, for there was nothing of which the people were so jealous as the privileges of Parliament—if he was not in error, the Clause 1402 was copied from a Bill which his noble and learned Friend had brought in while he was Lord Chancellor, but which Bill passed ultimately without that Clause. By the Bill he (Lord Brougham) proposed, all persons might petition without the expense of advertising (which had been found to be a great evil), and the moment the petition was lodged, that instant a stop was put to all transactions in respect to the property. The debtor could not then part with his property, nor make any conveyance of it, but it was vested in the hands of the court for the benefit of the creditors. Further, it provided that any person, whether in custody or not, might take the benefit of the Act. The creditor would no longer be in a condition to eke out the imprisonment of the debtor, but the whole matter would be left with the Judge, who would inquire into the whole facts of the case, and deal with it accordingly. Last of all came that which was the great mercy and improvement in the law, that brought in by his noble and learned Friend on the Woolsack—viz., the abolition altogether of Imprisonment for Debt in all cases where the debt did not exceed 20l. If their Lordships knew, as he did, the dreadful state of the small debt prisons—and there were no less than 280 Small Debt Courts in this country, most of which posssesed the power of imprisonment, some for longer and others for shorter terms—if they had seen the truly horrible accounts which he had seen of cases in which eighteen or twenty unhappy persons were confined in a dismal apartment ten feet square, compelled to lie on filthy straw, without any change of clothes, living upon bread and water, the food for felons—and all this for no crime, but simply because they were unfortunate—if their Lordships had seen these things—if they had heard of them, they would know the great benefit they would confer upon the poorer classes, who were the sufferers under this system, and to the law, by at once abolishing it. That would be done by this Bill. The Bill, he contended, remedied the plain and obvious defects of the present law, and would effect a most righteous and merciful change in that law; and he trusted when the Bill should go down to another place, that no haste, no plea of the advanced period of the Session, and the want of time to consider its details, or any such argument as measures were often met 1403 with, that there were parts of it which some Members approved of, and parts which were disapproved of, some saying it did not go far enough, and others that it went too far—he trusted that no argument of this kind would prevent the completion of that great and righteous act of justice which this Bill proposed to effect in this respect. What he maintained was, that this Bill, together with the law of 1842, would in substance abolish Imprisonment for Debt; for it would now lie with the debtor himself whether he should be kept in prison or not. He had heard much of the great expense which debtors were subjected to by those attorneys who practised in the Insolvent Courts. He had been informed that the cost to the poor debtor of getting out of prison under the Act was frequently 20l.; but now the expense of the advertisements, which amounted to 5l., was taken off; he would say that any man who should demand 15l. for getting an insolvent debtor out of prison, would deserve to take his place in the gaol, for it was quite impossible that he could be entitled to any such sum. He would take that opportunity of warning these persons that they would have a steady and watchful eye kept on them for the next six months; and if any debtor who should be charged any such sum would write to him (Lord Brougham), informing him of the particulars of the charge and the name of the attorney, that attorney might depend upon it that he would hear further from some Committee of their Lordships' House in the course of the next Session of Parliament. It was not the first time the benevolent intentions of the Legislature had been thwarted by the malpractices in the law, but he could assure them that he would do his best to prevent it in that instance.
§ Lord Cottenhamexplained: With regard to the Clause to which his noble and learned Friend had referred, he (Lord Cottenham) remembered introducing such a Clause into the Bill he had brought in, but as he afterwards considered that it would facilitate the passing of the Bill if it did not remain in it, he was glad when his noble and learned Friend objected to the Clause, and proposed that it should be withdrawn.
Lord Campbellwas much surprised that his noble and learned Friend on the Wool- 1404 sack, as Speaker of that House, had put the question to their Lordships, whether the Report should be received; without as Lord Chancellor and the representative of the Government in that House in respect to its legal department, and as an individual charged in very courteous but at the same time in very emphatic terms, with gross inconsistency as to the manner in which he had conducted himself in respect to this Bill, having taken some notice of the charge. Two speeches had been addressed to their Lordships, both by noble and learned Lords on that (the Opposition) side of the House, and his noble and learned Friend was content to rest his case on the speech of the other noble and learned Lord who had last addressed their Lordships; and though he was himself the organ of the Government, and the Counsel, as it were, of the noble and learned Lord on the Woolsack, yet his noble and learned Friend still remained as a Member of the Liberal party, and continued to sit on that side of the House, amongst those who were opposed to the Government. The noble and learned Lord (Lord Brougham) seemed indignant at being supposed to be one of those seventeen Members of the Committee who his other noble and learned Friend (Lord Cottenham) had supposed to be too much disposed to side with the Government. His noble and learned Friend on the Woolsack was entirely silent—although his noble and learned Friend (Lord Brougham) had not said one single word in support of his noble and learned Friend's (the Lord Chancellor's) consistency. The cause he thought must be looked upon as desperate; his noble and learned Friend felt that the topic was one he could not adorn, and therefore he had perhaps wisely passed it over. Now what was the charge which had been brought against his noble and learned Friend on the Woolsack—a charge which had as yet received no answer or explanation whatever? Certain Commissioners had been appointed to examine the subject of Bankruptcy and Insolvency—Commissioners, amongst whom were members of the legal profession, and members of the mercantile profession—men of the highest eminence in both. That Commission made a Report, in which they recommended that the distinction between Bankruptcy and Insolvency should be done away with—and they stated further, that Imprisonment 1405 for Debt on execution should be abolished, just as much as it was abolished on mesne process, and that unless fraud could be proved, there should be no power to deprive the debtor of his liberty. That Report having been made, a Bill was brought in to carry the recommendations of the Committee into effect. The noble and learned Lord on the Woolsack stated on that occasion that he fully approved of the Report, and also of the Bill which had been founded upon it: but he thought at the same time that it would be more discreet to proceed gradually, and to confine the measure in the first instance to the subject of Bankruptcy. His (Lord Campbell's) noble and learned Friend who sat near him, being last Session more zealous and indefatigable, brought in a Bill to carry into complete effect the recommendations of the Commissioners, and that Bill was the one which had been complimented and applauded by the noble and learned Lord (the Lord Chancellor). The noble Lord had had the whole of last Session to consider the Bill, and was no doubt master of all its details. He made no objection, but the Session went over and the Bill could not be passed. That same Bill had been laid on the Table during the first week of the present Session. On the second reading of the Bill, the noble and learned Lord on the Woolsack expressed his entire approval of the Report, and admitted that the Bill was founded on that Report. The Bills were referred to a Select Committee, chosen by his noble and learned Friend on the Woolsack, and he looked upon the Report of that Committee as the Report of his noble and learned Friend. All the good enactments of the Bill which his noble and learned Friend now recommended to the House were taken from the Bill brought in by his noble and learned Friend near him (Lord Cottenham) in 1842. He was convinced that Imprisonment for Debt, except in cases of fraud, was as prejudicial on execution as in mesne process. With reference to the Bill now before the House, however, he (Lord Campbell) should, as its effect was to abolish Imprisonment for Debt, give it his support (as we understood), and he trusted that his noble and learned Friend who it was well known had made some of his best speeches upon both sides of a question would repeat, if it were necessary, the admirable speech in 1845 which he made in 1406 1844, and that he would not be induced, for the sake of pleasing any person or of conciliating any party, to swerve from those principles in which he had just expressed his concurrence.
The Lord Chancellorsaid, that he would not occupy many minutes of their Lordships' time on the present occasion. The noble and learned Lord who spoke last had reproached him for rising to put the question without addressing their Lordships in answer to what fell from his hon. and learned Friend. He had done so because he was desirous of hearing what the noble and learned Lord had to say in support of his noble and learned Friend; but he might have saved himself the trouble, for the noble and learned Lord had done little else than repeat longo intervallo the arguments of his noble and learned Friend. The noble and learned Lord seemed to feel sore because they had not adopted the whole of his measure. They had, however, adopted the principle of his measure, and had engrafted it upon the other measure now before them. The two Bills were submitted to the consideration of the Committee in order that they might determine what course it was best to pursue. And he had never departed from the principle which he adopted on the second reading of the Bill of the noble and learned Lord. The principle of that Bill was to introduce into the law of England from the law of Scotland the principle of cessio bonorum. To that principle he still adhered. The principle of that Bill was also to abolish imprisonment for debt. He had never departed from that principle, and he still adhered to it, so far as it was wise and prudent to act upon it. Another principle of that Bill was, that they should adopt the administration of the bankrupt law as applicable to the law of cessio bonorum. He agreed in that principle also, and therefore he adhered to the principles which he laid down on the second reading. But was it to be understood, that if he consented to the principle of a Bill on the second reading, that he was to be precluded in Committee, and on inquiry, from making alterations in the character and nature of its provisions? If so, it was the first time he had ever heard such a doctrine laid down, either in this or in the other House of Parliament. There was, however, a principle connected with that Bill which he was determined to oppose, as he considered it a novelty in this country. On the Motion for going into Committee, he 1407 stated that they were introducing a novelty into the law of this country, in subjecting every Member of the Royal Family, however high their rank, and every Peer of the realm, to the law of bankruptcy. Every Member of the Committee must be aware that he had stated that he would oppose the Bill on that ground, and on that ground alone, and that he would never consent to its being proceeded with unless an alteration was made to obviate the objection to which he had alluded. He could not consent to subject the members of the Royal Family to the law of bankruptcy, and nothing would ever induce him to make that concession. His noble and learned Friend took no steps to obviate that objection, and had, therefore, no right to complain of the course which had been pursued. He still, therefore, adhered to the principles which he had stated on the second reading of the Bill of the noble Lord (Lord Cottenham), and he would oppose it on the grounds stated. With respect to the selection of the Committee, he begged to observe that he had nothing to do with it; nor, indeed, until he saw them in the room, did he know who the noble Lords who were to be on that Committee, were, except that he knew that, according to usage, all the law Lords would be of the number. With regard to the other Bill, he thought that the state of the law on the passing of that Bill would be that which every prudent man would applaud and support. Every relief would be given to the honest debtor, and they would not be called upon to extend that relief to those who did not come under that character. The man who was willing to surrender his property would not be put in prison, and any one who might be in prison would, if he surrendered his property, be immediately released from confinement. These were prudent and satisfactory provisions, and he thought nobody desired more. The hon. and learned Lord asked why they had not abolished arrest altogether? For this reason, that the party, knowing he might be arrested and thrown into prison, might be more expeditious and active in doing that which justice demanded than if he knew he was not liable to be imprisoned. For that reason the power of imprisonment had been retained; and that effect it would, no doubt, inevitably have. The party apprehensive of being imprisoned, as well as the party imprisoned, had only to file a petition in order to be released. True, the imprisoning creditor could not take the pro- 1408 perty of the debtor, for that would be divided among the creditors at large, according to the principle of the Bill. With regard to the details of the Bill, he would not follow his noble and learned Friend through all the observations which he had made; but he would merely observe that he thought the provisions of the Bill were well adapted to carry out the object which it had in view. His noble and learned Friend objected to the two jurisdictions of the Insolvency and Bankruptcy Courts remaining, and asked why he did not propose to abolish the former altogether. To this he answered, that a great deal of the business of the Insolvency Court had gone before the Commissioners of Bankruptcy, and that he thought it would be better to let the change work gradually, and see how it operated, before the Court was totally done away with. His noble and learned Friend in his Bill proposed to abolish imprisonment for debt altogether, without any power of remanding in vexatious cases, and cases where persons had contracted debts without any probability of being able to pay them. The Insolvent Debtors Court at present had this power of demand within a limited period, and he (the Lord Chancellor) thought that it would be very dangerous and unwise to abolish such a power altogether. As to the indictment for fraud, which his noble and learned Friend proposed as the only remedy against the dishonest debtor, he must say that he thought it a most inadequate one. His noble and learned Friend had alluded to some supposed disagreement which had existed between him (the Lord Chancellor) and the Secretary of State, in respect to the power of imprisonment vested in the Small Debt Courts. He certainly was not aware of the provisions in the Bill referred to at the time his noble and learned Friend directed his attention to the subject, but upon inquiry he found that there was such a Clause, which allowed imprisonment of not more than one day for a shilling. But he recollected that his noble and learned Friend himself introduced a Bill some years ago, which gave the power of imprisonment without any limit whatever. [Lord Cottenham: What Bill was that?] The County Courts Bill. For his own part, he had always objected to the practice of imprisoning persons for small debts, and for this reason, that they were generally labouring men; and that to deprive them of their liberty and time, was to deprive them of the means of paying their 1409 debts and supporting their families. To imprison a poor man for a debt he owed, was to deprive him of the means of paying what he owed. It was as unwise as it was unjust. It also appeared to him extraordinary in this respect, that it was not a means for compelling payment, for after a certain term of imprisonment the debt was discharged, and the prisoner was set free—the imprisonment paid the debt. The practice was almost as barbarous, and it was more unreasonable, as that which prevailed in the old times, when the creditor sold the body of his debtor as a slave—there the cruel creditor at least got value; but here there was the cruelty inflicted, and without any advantageous results. In the County Courts there was not the power of imprisonment. There was one argument dwelt upon, with respect to this subject. It was, if they took away the power of imprisonment they would take away the means for a poor man obtaining credit, if he chanced to be turned out of his employment, or any accident deprived him of the means for the time of earning money. The question now to be asked was this—was there any foundation for such an assertion. Witnesses had been examined before the Committee, which brought this to a close test. In the Tower Hamlets the power of imprisonment for debt was put an end to since 1832, by mere accident. The prisoners for debt from that district used to be sent to the Middlesex prison. The magistrates, however, determined not to allow that any longer, and in consequence imprisonment for debt had practically ceased in that district. How then did that operate? It reduced the number of summonses by one half—they had been reduced from 25,000 to 13,000. But what was the effect on credit? Mr. Otter, who had been a Commissioner for many years, had told them that it did not diminish credit in any material degree. That there was still more credit given than was good for the poor—that there was no industrious poor man thrown out of employment, who could not obtain as much credit as he pleased. There was another case; and if possible it was still more striking. Mr. Dampier, a son of the late Judge, was Judge of a small debt court in Cornwall, for which he drew up a Bill for the regulation of that court; and, in doing so, he never thought of introducing his power to issue a capias, and yet he said that no man was prevented by it from obtaining credit—he declared that 1410 he considered that the abolition of imprisonment for debt would be a wise, salutary, and expedient measure. He (the Lord Chancellor) had himself, therefore, come to the conclusion, that the only objection that could have been urged had been removed, and that this power ought to be taken from all Small Debt Courts. He did, then, sincerely hope that their Lordships would approve of this part of the Bill. He could assure their Lordships that no words could convey the horrors of those prisons in which persons were confined for small debts. Mr. Perry gave a description of the prison of Kidderminster, and it would show that some means must be devised for removing those horrid and atrocious abuses. The prison at Kidderminster was a room on the ground-floor, measuring 12 feet by 12, entirely destitute of bed, bedding, or seat, or any description of furniture; without a stove, or the means of having a fire in cold weather. There was a large heap of straw, on which the prisoners slept in their clothes. The yard attached to the prison measured 13 feet by 12, and the water lay on it to such a degree as often to confine the prisoners to their solitary room. The walls of the yard, too, were very high. The prisoners were very dirty. They did not take off their clothes, and only two small jugs of water, for drinking and washing, were brought for the day. There was no gaoler. The prisoners were only visited by the deputy-gaoler, who brought them bread and water each day. In case of sudden illness, there was no means of procuring assistance, unless the neighbours summoned the deputy-beadle, who lived in a distant part of the town. Then, as to the room for the female debtors, there were no means for their taking exercise. These, then, were the additional reasons afforded to him for making the proposed alterations in the law, and of supporting the Bill introduced by his noble and learned Friend. He had now stated as shortly as he could his reasons for supporting this measure, and he was particularly induced to do so from the observations made by the noble and learned Lord.
§ Lord Cottenhamobserved, that an objection was made to his Bill upon the question of privilege. He put to the test the accuracy of his noble Friend, for a Clause such as was objected to in his Bill was also to be found in the present.
The Lord Chancellorsaid, it was most true that by some accident such had happened. 1411 He had stated in precise terms to his noble and learned Friend his objection. His noble and learned Friend said that his course was right, and insisted on it. His noble and learned Friend did not like the means of obviating the objection.
§ Lord Cottenhamsaid, that he knew that his course was right, but he did not insist upon it.
§ After a few words from Lord Brougham the Report was received.
§ House adjourned.