Sitting of 19 April 1809

IRISH COMMISSIONERS' FEES BILL.
Mr. Fostermoved the Order of the day for the second reading of this bill.
Mr. Parnellsaid, that he did not intend to oppose this motion; but he wished
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to take this opportunity of expressing his opinion upon the reports already made by these Commisioners. He said, that he did not think the report upon the assessed taxes was such a one as the great defects in the manner of collecting them called for. That the Commissioners had not brought to light the abuses that notoriously prevailed, nor given any advice by which the system might be amended. He wished that they would review the subject of collecting these taxes, and suggest what might appear to them necessary for rendering them more productive. The other reports contained a large portion of very important information, and did credit to the zeal of the Commissioners. He wished, however, to know, whether the abuses they exposed had been put down, and whether the recommendations of reform contained in them had been acted upon. In the Custom departments they shewed great irregularities to have existed in the conduct of the officers employed to superintend the coasting trade, and to take care of goods landed on bills of view—a sum of 200,000 l. having been lost to the public by goods taken away from the Custom-house, without payment of duty.—They likewise found great fault with the system in which the collector's accounts were ordered to be kept, and with the jurisdiction of the Sub-Commissioners. In the Excise department, they fully proved that where a revenue of 700,000 l. had been collected on spirits, one of 2,200,000 l. ought to have been levied. This was a matter of great importance, because it proved beyond a doubt that, if this duty was properly collected, no necessity would exist of any such tax as that proposed this year on malt. The Commissioners, as a remedy for illicit distillation, had proposed the adoption of small stills, as used in Scotland, a remedy that appeared to be the only effectual one that could be adopted. The hon. member said, it was absolutely necessary that something should be done immediately to meet the evil, for that one county had been fined at the last assizes 5,000 l. He said that the existing laws were very defective, inasmuch as they imposed very heavy fines on illicit distillation, at the same time they obstructed legal distillation, by giving great encouragement to large stills, which requiring very great capital, could not be set to work in the counties where the illicit distilling was carried on, for want of sufficient capital. He next adverted to the

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Auction duty, which appeared to give no produce whatever. But the most important matters in the reports of these Commissioners, was a recommendation that all revenue officers should be promoted in succession, and acccording to merit, for without adhering to such a system, it was impossible to collect the revenue; the greater part of the abuses arose from the improper manner in which appointments took place, and therefore he hoped that this advice would be strictly adopted. He thought it extremely hard upon the different boards of Commissioners that they should not be left at liberty to select and promote their own officers, and that, unless they had this power, it was impossible that they could discharge their duty in the manner they ought to do. He by no means intended to attach blame to the present boards, for any thing that these reports contained, because he did not know how far measures had been taken by them to remove the abuses complained of, or whether they had had the means of preventing them.
Mr. Fostersaid, that in respect to the assessed taxes, the sub-commissioners, and the distilleries, it was his intention to bring forward measures immediately for meeting the complaints contained in the reports. That steps had been taken with good effect already to do away the abuses that existed in the coasting trade, landing goods on bills of view, and the collection of the auction duties.—That the mode of stating the collectors accounts was very truly pointed out as defective, and that measures should be adopted for reforming it.—That in respect to the conduct of the inferior officers of the revenue, he should propose to grant an amnesty of all transgressions up to the period of the late regulations for increasing their salaries, nearly the whole of them having taken fees under the former system, in consequence of the smallness of their salaries and legal emoluments.—That, however, it was the fixed determination of the government to act without any regard to persons and services in punishing any officer who should hereafter take a fee. The right hon. member said that in regard to the distilleries, he had last year, in compliance with the wishes of many persons, admitted stills of 800 gallons to be used, but that it would answer no end to make any alteration in the existing laws till a complete reformation took place in the conduct of the inferior officers; that he was glad the hon. member
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had sought for the information he had desired, as it gave him an opportunity of fully justifying the policy of the present bill.
Col. Archdallsaid, that it was absolutely necessary that something should be done to put down the illicit distillation, and protect the people of his part of the country from the great rigor of the distilling laws.
Col. Barrysaid, it was with great reluctance he ever differed from his right hon. friend, but he must say that be thought the fining of counties for illicit stills discovered in them was a most unjust proceeding.—That 15,600 l. had been ordered to be levied in his county, and that if payment of it is enforced that it will ruin many poor families.—He therefore thought that it was absolutely necessary that something should be done immediately to relieve the people from such enormous penalties.
Mr. O'Haraexpressed the same opinion.—The bill was then read a second time.

BANKRUPT LAWS BILL.
The house having resolved itself into a Committee on the Bankrupt Laws Amendment bill,
Sir S. Romilly, in order to obviate an objection, which he understood was to be made to the clause for allowing bankrupts who may have obtained their certificates to be witnesses, without any release of their allowances, in cases where their assignees were claimants, proposed an amendment, to provide that bankrupts were not to be allowed to be admitted as witnesses under this act, but in such cases wherein they may by law be competent witnesses before the passing of this act.—The effect of this amendment was to allow bankrupts to be witnesses upon releasing their interest in the particular matter in issue, without a general release of their allowances upon the other property assigned under the commission.
A long discussion ensued both on the clause and the amendment, in which the Attorney and Solicitor General, and Mr. Davies Giddy, expressed strong doubts of the propriety of making any inroad upon the law and rules of evidence as they exist at this moment; and sir Samuel Romilly, Mr. Stephen, Mr. Jacob, Mr. Morris, and sir Charles Price, argued, in substance, that it was desirable to adopt the clause thus amended, in order to do away the practice of giving nominal releases by fictitious instruments which were afterwards to be concealed, and to prevent, if the release were real, the bankrupt from being obliged to give all he would in that

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case possess in the world, for the purpose of becoming a competent witness. The amendment was, however, in the end agreed to, and the clause so amended retained as a part of the bill.—On the clause for requiring creditors to release all right of action, on proving their debt under a commission of bankruptcy, the Attorney General stated that he had some objections to this clause, but should wave them, as he understood that his hon. and learned friend intended to obviate them by a clause, which would provide against a creditor's releasing his right of action against a third party, where he had such right, as well as such bankrupt, and to prevent the creditor from releasing his right of action against the future effects of a bankrupt, whose dividends under a second commission of bankruptcy should not amount to fifteen shillings in the pound.—On the clause for authorizing the Lord Chancellor, or the Lord Keeper of the Great Seal, for the time being, to direct notices, other than personal notices, to be served upon creditors in England and Ireland reciprocally, upon appeals by petition on the part of a bankrupt, to whom his creditors should after two years continue to refuse his certificate, a member took some trifling objections, which, after a few observations from sir Samuel Romilly and the Solicitor General, were over-ruled, sir Samuel Romilly having previously stated his intention to bring in a clause, after the bill should be gone through, providing that in all such cases such other notice should under English commissions be given in the Dublin Gazette to Irish creditors, and under Irish commissions of bankruptcy to English creditors in the London Gazette.—On the clause giving to the Lord Chancellor or the Lord Keeper of the Great Seal, the power to grant a certificate on such appeal by the bankrupt, if the certificate should appear to have been withheld by the creditors from improper motives, another long discussion took place, the Attorney General and Mr. Jacob contending that it was more fit that the power of granting or withholding the certificate should be vested in the creditors or in some proportion of them, than in any other tribunal, because the creditors must be the best judges whether the bankruptcy was fraudulent, though it might not at all times be in their power to prove the grounds upon which they were of this opinion, on an appeal by the bankrupt
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to the Chancellor. Whilst, on the other hand, it was most strenuously contended by Mr. Abercromby, that this was the most beneficial clause in the bill, because no certificate would be granted upon an appeal, unless it should appear to the Lord Chancellor that the creditors have no good ground for withholding it; and it appeared from an account on the table, that out of 16,000 persons, who had been bankrupt within the last twenty years, 6,597 were uncertificated, and could never acquire any property for themselves or their families, unless this clause should be enacted to place them within the reach of relief.
Mr. Stephencontended that the great proportion of uncertificated bankrupts being three-eighths of the whole number, proved that the interference of parliament was necessary. This proportion was much the greatest in years of unexampled misfortune; and this circumstance went strongly to prove, that it was not merely the dishonesty of debtors, but their misfortunes, which were punished by stopping their certificates.
The Solicitor Generalcontended that it was better that, according to the law as it now stands, the bankrupt's certificate should depend on the judgment of the creditors than of the Lord Chancellor. He cited to this effect the opinions of lord Thurlow, lord Rosslyn, and lord Clare, who had been all of them chancellors. He thought that in this bill humanity appeared to be confined to the bankrupts, and that the sufferings of the creditors had not been sufficiently attended to. If, however, the clause should be rejected, he would move that instead of four-fifths of the creditors, three-fourths of the creditors, and of those only who had released the person of the bankrupt, should be sufficient for signing the certificate.
Sir Samuel Romillysaid, that the hon. and learned gent. had misstated what lord Eldon had said about the opinions of lords Thurlow, Rosslyn, and Clare. What they had said was, that it would be dangerous to leave the determination of the certificate entirely to the Chancellor. The present clause, however, did no such thing: it only empowered the Chancellor to interfere if he thought proper, upon a petition presented by a bankrupt who had been two years without his certificate. Now, as to fraudulent bankrupts, all those who had any experience in the court of chancery knew that they obtained their

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certificate easier than the honest bankrupts. Fraudulent bankrupts always contrived to have false debts proved, in order to get themselves whitewashed, according to the common phrase. Their bankruptcies were for the purpose of gaining their certificates; whereas honest bankrupts had much oftener to endure the severity of the laws from the obstinacy or caprice of some one creditor. He allowed the people of England and the merchants of England were generally humane; but often great cruelties were practised, which the law should prevent. To say, that from the humanity of the English character these cruelties were not common, was in fact to say nothing. Neither were murders common, but that was no reason that there should not be laws against them. He could state one instance of cruelty to a bankrupt which came within his own knowledge. A bankrupt had been arrested at the suit of a house in the city, and one of the partners of that house was chosen the assignee. This assignee delayed for three years to make any sort of dividend, in order that the house might not be obliged to make its election about proving under the commission. At the end of three years, however he was obliged to make a dividend, but he then divided his debt, proving only one-half. This creditor had frequently been heard to declare, that the bankrupt should never go out of jail except to his grave, and his threat was accomplished. It having been stated to the Chancellor, that the bankrupt could not live more than two or three weeks longer in confinement, he appointed an early day to hear his petition; but though the decree was in favour of the bankrupt, the assignee contrived to have another detainer laid upon him, which gave rise to a more protracted litigation, and his debtor never did leave the jail but for his grave; and there was no doubt but the death of the bankrupt was owing to the obduracy of the creditor. He did not say that such cases were common, but that they should not be allowed to exist. The life of an honest man or his perpetual imprisonment, should not depend upon the caprice of partial judges, after the bankrupt had fairly surrendered his effects.
Mr. Wilsonsaid he was rather anxious not to admit this clause than to dispute it; but till he could put the bankrupt law on a footing which should protect the fair trader, he could not agree to adopt it.
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The clause was then agreed to. Several new clauses were afterwards brought up by sir Samuel Romilly and the Solicitor General, and agreed to. The house resumed; the report was received, and ordered to be taken into further consideration this day se'might.