§ LORD DENMANhaving presented several petitions for the abolition of judicial oaths,
LORD BROUGHAMsaid, he wished to call the attention of their Lordships to the grievances to which foreigners were now exposed by the state of the law, and the manner in which oaths were allowed to be taken in this country. He would simply state the facts of the case to which he was about to refer, and then beg their Lordships to provide some remedy for the necessity. A gentleman of great respectability, a foreigner, Mr. Ouvrard, with whom he had the honour of being intimate, and who was also an intimate friend of his noble Friend the gallant Duke who now generally sat on the cross benches, and also of his noble Friend Lord Ashburton, and of his noble Friend the Earl of Lonsdale, on his journey from Strathfieldsaye, where he 646 had been on a visit to the noble Duke, to the seat of his noble Friend the Earl of Lonsdale, was arrested a few days ago by a person in the situation of a pewterer, a maker of pewter pots; but who pretended that he was a civil engineer. Now Mr. Ouvrard had been, as many noble Lords were aware, connected with transactions to the amount of between 30,000,000l. and 40,000,000l., and without his aid we could not have effected the subsidies with France, nor completed the last peace in the years 1817 and 1818; but the person who arrested him stated that he (Mr. Ouvrard) owed him 1,000 guineas—a round sum of 1,000 guineas—for work and labour as an engineer; and that he had sworn that he was about to quit the country. The fact, however, was that Mr. Ouvrard had taken the lease of a house for six or eight months, and part of the work and labour charged against him was for surveying those same premises. The pewterer had the audacity to swear that Mr. Ouvrard owed him 1,000 guineas for the work he had surveyed. The affidavit was laid before the Lord Chief Baron, who thought fit, without any further inquiry, to issue an authority for a warrant, under which Mr. Ouvrard was, on Wednesday week, arrested and taken to a lock-up house in Chancery-lane, where he (Lord Brougham) saw him. The Lord Chief Baron endorsed the writ for the full amount of 1,000 guineas, without the least inquiry, beyond the affidavit, as to that sum being due, and it might as well have been endorsed for 10,000l. Indeed, a capias was once issued against his friend Mr. Mondizabel for 150,000l., and as bail would have been required for three times that amount, he must have gone to prison had he not avoided the writ by flight. Mr. Ouvrard remained in custody at the sponging-house from the Wednesday to the next Monday, when he filed an affidavit peremptorily denying that he was going abroad, or that his niece had so stated, and declaring that he was going to Westmoreland. Application was made to the Judge at chambers; and he (Lord Brougham) would have thought that, as a matter of course, Mr. Ouvrard would have been discharged from custody at once; but the Chief Baron declared that the other side ought to have an opportunity of filing affidavits in reply. Of that he especially complained, because if that were allowed them, of course Mr. Ouvrard would be permitted to file affidavits by way of rejoinder, and so the matter might go on for a year, whilst 647 the party was still in custody. He complained, then, of the law which enabled a Judge to allow such a proceeding. The result was, that this gentleman was remanded from the Monday till Wednesday, having been for seven days and eight nights locked up in a sponging-house, when the moment the Judge applied his mind to the case he was dismissed as a matter of course; and yet the learned Chief Baron did not give him his costs. He (Lord Brougham) had a direct interest in this case in common with their Lordships; for, as they were aware, the French law, whether right or wrong, declared that whatever law was applied to French subjects in other countries, should be applied in France towards the subjects of those other countries, as a kind of reciprocity; so that if he happened to have a dispute with an agent, he might, the moment he got to the French territory, be arrested, not for any certain debt, but for any sum any agent might fancy; and, as he had no privilege of Parliament there, he would be forced into prison. He knew the manner in which other Judges acted with respect to the noble and learned Lord's Bill (Lord Campbell's); they inquired before they endorsed the writ, to see that there was some show of probability in the intended going abroad; and Mr. Justice Wightman, when a man swore that another was going abroad, asked, "Have you searched the Passport Office?" and that not having been done, he would not give the writ as a matter of course. Now his noble Friend (the Marquess of Norman-by) was in the eye of the law in meditatione fugœ, as he was about to go as ambassador in Paris; and if he had not the privilege of Parliament, he might be arrested for any amount any one chose to swear owing by the noble Marquess to him. If this were the state of the law, it was absolutely necessary that it should receive some explanation.
LORD CAMPBELL, having had a considerable hand in the framing of the law, sincerely lamented the misfortune that had befallen Mr. Ouvrard, who was a gentleman of great respectability and wealth; but he believed that the law had been placed on a just, equitable, and satisfactory basis. Formerly any person could arrest another on swearing that a debt was due: he regarded that law as a reproach; but it would be wrong if it had been left in the power of a debtor fraudulently to escape from the country to avoid his debts. This was done in imitation of the Scotch 648 law; but the Judge must be satisfied that the party was about to fly the country to avoid his creditors: till he was about to do that he was not liable to arrest. It was absolutely necessary that such a power to prevent fraud should exist somewhere; and he knew no hands in which it could be so safely lodged as those of the Judges. No doubt the Chief Baron had been misled by the affidavits of the person claiming the money, because it must be clearly proved to the Judge that there were reasons for the belief that a party intended to leave the country before he would endorse the writ.
§ LORD DENMANapprehended that there was no alteration made by the late law as to the form of application for an arrest. He apprehended that if any one swore that another was indebted to him in the sum of 500l. for work and labour, it would be difficult or impossible for the Judge to make any preliminary inquiry whether the affidavit was right as to the amount. As to the circumstances from which the Judge was to infer that the party was about to leave the country, they must be set out fully in the affidavit; and he did not think the Judges allowed any party to file affidavits in reply, in the manner stated; and, in justice to the Lord Chief Baron, he must say he believed that in this case he appeared to have acted according to the usual practice in allowing the writ to issue.
LORD BROUGHAMsaid, that allowing affidavits in reply was the grievance of his charge; but here there was no inquiry as to the amount claimed being really due.
The LORD CHANCELLORsaid, that a party claiming a debt went before a Judge, swearing to the amount. What opportunity was there from this ex parte statement for the Judge to see whether the amount was really due?
LORD BROUGHAMsaid, that every one knew that the parties never got the full amount of the damages laid in the declaration.