Sitting of 3 December 1813

INSOLVENT DEBTORS AMENDMENT BILL.
Mr. Lockhart, conceiving this Bill to have a natural reference to the principle of the Act of last session, which principle had not then, in his judgment, undergone an adequate discussion, took this opportunity to make a few observations upon it. It was impossible, indeed, as it appeared to his mind, to consider this Bill without adverting to the Act of last session, the difficulties in the execution of which this Bill proposed to remove; and so doubt these difficulties were likely to be obviated by it, the noble author of the original Act having evidently applied great industry and ingenuity to the consideration of the measure. This Act, however, proposing to make a very material alteration in the common law of the country, it was peculiarly the duty of the House to consider the effect of that alteration. The common law had given to a creditor the body of his debtor as a security for payment, and that security this Act proposed in a great measure to take away. As to the crowded state of our gaols which was emphatically dwelt upon as an argument for this extraordinary measure, he could, not believe that that circumstance was owing so much to the obduracy of English creditors, as to the extravagance of debtors. In adverting to the principles of the common law with respect to debtor and creditor, he did not mean to contend that creditors should, possess an uncontrolled discretion over the custody of debtors. On the contrary, he approved of the interposition of the legislature to modify the principle of the common law. But the question was, how that modification should be regulated. If too strict, opportunity would be af-

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forded to creditor to gratify vindictive passions, to injure humanity; and if too lax, idleness, thoughtlessness, and profligacy would be encouraged. The Act, in prescribing that a debtor must be imprisoned three months before he could obtain liberation upon surrendering his properly, might be very injurious to the interests of both debtor and creditor; for that period would too probably pass in spending the property which ought to belong to the creditor, and in deteriorating the moral habits of the debtor. But as a punishment it was obvious, that three months afforded an insufficient protection to creditors, by not holding out any adequate terror to prevent the thoughtless or idle, and still less those of bad principles, from contracting debts. Therefore, he submitted, that upon so great a departure from the principle of our common law, as the Act under consideration involved, this circumstance was a serious defect. But there was another defect in the Act, which appeared to him much more exceptionable; namely, that no debtor was compelled to give up his property at the expiration of three months; but might remain in prison if he thought proper, to squander the property of his creditors. He was aware, that if a debtor could be proved to have improperly disposed of his property in prison, he was deprived of the benefit of the Act; but why not assimilate the Act entirely to the Scotch law of the cessio bonorum, which was quoted as a precedent for it by compelling the debtor to surrender his property to his creditors? and such a provision would diminish the objections entertained with respect to the short period of three months imprisonment. From a deliberate review of this law, the hon. member conceived that one of two consequences must result from its existence; either that persons would become more extravagant, or that much less credit would be given. It might be urged, that creditors ought to be more circumspect; that the people of this country were much more ready to give credit than those of other nations; and that hence the prodigal were improperly afforded facilities for the indulgence of their habits; but then by the rigid observance of this rule of circumspection, the honest and industrious, to whom credit was indispensably necessary, and whose success was desirable for the public interest, might very materially suffer. For there was what was called a "useful
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credit," which was essential in this country; and any measure at all likely to affect that credit, should be weighed with the utmost caution.
There was one class of creditors not at all noticed in this Act; namely, those who suffered from frivolous and vexatious actions, and sought in vain the recovery of their costs. The debtor for such costs had the same relief under this Act as any ordinary debtor. Thus no adequate restraint was provided to prevent the vindictive or the profligate from wantonly bringing actions against honest men. Surely such cases required some special attention, as well as those of crim. Con. or malicious injuries. For the principle which rendered punishment justifiable in the latter, applied also to the former. But while this Act released a man after three months imprisonment, however he might have trespassed upon property, or even were he guilty of assault and battery, unless a particular averment appeared in the declaration, it also gave liberation to a vexatious or malicious prosecutor, such as he had described. All such were released at the end of three months. Thus the poor might be vicious with comparative impunity; for no one could pretend that three months imprisonment furnished any material terror to such depraved persons as he had alluded to. It was the boast of the law of this country, that it afforded redress for every wrong, and that there were none above the law; but really, by the operation of this Act, many would be forced below the law. For instance, how often might revengeful malicious persons be forward to bring an action perhaps of the most injurious kind, against the objects of their revenge and malice, if the only hazard of the experiment were to be three months imprisonment. He could not help pronouncing this case a most serious omission in the Act. But there was also another serious omission; for the Act made no distinction between the debtor who availed himself of every legal expedient to increase his plaintiff's costs upon a debt clearly and indisputably due, and the debtor who promptly, and without litigation, acknowledged the justice of the claim upon him. That two such debtors should have the same facility of release was evidently a defect. In his opinion, provision should be made in this new code to allow debtors, if they thought it just, to acknowledge their debts at once, and thus save

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creditors from costs; and a distinction should exist between such a debtor and one who wantonly subjected his creditor to costs. The hon. member concluded with stating, that he would not oppose the farther progress of this Bill; although he felt it his duty to express his opinion upon the measure to which it referred, and the merits of which would, he hoped, be more fully discussed in a future session.
Sir S. Romillythought the hon. member's observations inapplicable to the Bill before the House, and rather referring to the Act of last session; the principle of which was simply, that a debtor should obtain his freedom upon giving up his property. To this Bill, which merely had in view the carrying that principle into effect, and the execution of the Act of last session, he hoped that no obstruction would be given.—As to the hon. member's observations, there was no doubt, that, notwithstanding the present Bill, we must wait to see the operation of the original Act before every defect could be provided against; and probably the hon. member, by turning his attention to the subject, might be able to suggest some useful improvements. The hon. member had stated, that no distinction was made in the Act alluded to, with respect to such debtors as availed themselves of certain legal expedients to increase the costs of their creditors; but the way to cure that evil was not, in his opinion, to make any distinction in this Act, but to do away these expedients themselves. For instance, he could not see the justice of allowing writs of error where there was no substantial error, and where the proceeding only served to produce delay and costs. He thought, therefore, that no writs of error should be allowed, unless such error were certified by two counsel. This change would, in his judgment, prove a very material improvement. He was anxious to attend in all cases to the interest of the creditor as well as that of the debtor; and the state of our law between debtor and creditor appeared to him to be such as to require many serious amendments. It was too harsh towards the person, and too relaxed towards the property of the debtor. He could not; for instance, imagine any reason why freehold and copyhold property, and property in the funds, should not be rendered responsible for the payment of a man's debts. So strongly indeed was he impressed with, this opinion, that it was his
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intention to bring forward, after the recess, when there would be a full opportunity for discussion, a measure similar to that which he some years ago felt it his duty to submit to the House, for making freehold property subject to the payment of debts after the debtor's decease.
The Bill was read a second time.

REPORT FROM THE COMMITTEE OF SUPPLY.
Mr. Lushington reported from the Committee of the whole House, to whom it was referred to consider further of the Supply granted to his Majesty, the Resolutions which they had directed him to report to the House; and the same were read, and agreed to by the House, and are as follow:

1. That a sum, not exceeding 10,000 l. be granted to his Majesty, upon account, towards defraying the charge of five troops of dragoons, and thirteen companies of foot, stationed in Great Britain, for the purpose of recruiting the corps employed in the territorial possessions of the East India Company, for the year 1814.

2. That a sum, not exceeding 2,800,000 l. be granted to his Majesty, upon account, towards defraying the charge of the embodied militia of the United Kingdom of Great Britain and Ireland and of the royal corps of miners of Devon and Cornwall, for the year 1814.

3. That a sum, not exceeding 500,000 l. be granted to his Majesty, upon account, towards defraying the charge of general and staff officers, and officers of the hospitals, serving with his Majesty's forces at home and abroad, and the charge of his Majesty's garrisons, for the year 1814.

4. That a sum not exceeding 20,000 l. be granted to his Majesty, upon account, towards defraying the charge of full pay for supernumerary officers of his Majesty's forces for the year 1814.

5. That a sum, not exceeding 200,000 l. be granted to his Majesty, upon account, towards defraying the charge of the allowances to the principal officers of several public departments in Great Britain and Ireland, their deputies, clerks, and contingent expences, and of the amount of Exchequer fees to be paid by the paymaster-general, for the year 1814.

6. That a sum, not exceeding 140,000 l. be granted to his Majesty, upon account, towards defraying the charge of half-pay to reduced officers of his Majesty's land forces, including the reduced officer of

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his Majesty's British American forces, and of the Scotch brigade late in the service of the States General, for the year 1814.

7. That a sum, not exceeding 10,000 l., be granted to his Majesty, upon account, towards defraying the charge of military allowances to reduced officers of his Majesty's land forces, including his Majesty's British American forces, for 1814.

8. That a sum, not exceeding 300,000 l., he granted to his Majesty, upon account, towards defraying the charge of the in and out pensioners of Chelsea and Kilmainham hospitals, and of the internal expences of the said hospitals, for the year 1814.

9. That a sum, not exceeding 30,000 l., be granted to his Majesty, upon account, towards defraying the charge of pensions to be paid to widows of officers of the land forces and marines, for the year 1814.

10. That a sum, not exceeding 155,000 l. be granted to his Majesty, upon account, towards defraying the charge of volunteer corps of the United Kingdom of Great Britain and Ireland, for the year 1814.

11. That a sum, not exceeding 400,000 l. be granted to his Majesty, upon account, towards defraying the charge of the local militia force to be maintained in Great Britain, for the year 1814.

12. That a sum, not exceeding 1,000,000 l. be granted to his Majesty, upon account, towards defraying the charge of Foreign corps in the service of the United Kingdom of Great Britain and Ireland, for the year 1814.

13. That a sum, not exceeding 10,000 l., be granted to his Majesty, upon account, towards defraying the charge of the Royal Military College, for the year 1814.

14. That a sum, not exceeding 15,000 l., be granted to his Majesty, upon account, towards defraying the charge of the Royal Military Asylum at Chelsea, for the year 1814.

15. That a sum, not exceeding 10,000 l. be granted to his Majesty, upon account, towards defraying the charge of allowances to retired chaplains, and of allowances to clergymen officiating with his Majesty's forces at home and abroad, including the expences of the office of the chaplain general, and other, contingencies, for the year 1814.

16. That a sum, not exceeding 100,000 l. be granted to his Majesty, upon account, towards defraying the charge of medicines and surgical materials, for, his Majesty's land forces, and of other hospital continues for the year 1814.

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17. That a sum, not exceeding 30,000 l., be granted to his Majesty, upon account, towards defraying the charge of allowances on the compassionate list to children of deceased officers of the land forces, and to widows of officers of the said forces not entitled to the pension, including the allowance, as of his Majesty's royal bounty to several officers, and to the relatives of certain deceased officers, for the year 1814.

18. That a sum, not exceeding 110,000 l. be granted to his Majesty, upon account, towards defraying the expence of the commissariat department in Ireland, including the charge of forage for the cavalry in that part of the United Kingdom, for the year 1814.

19. That a sum, not exceeding 10,000 l. be granted to his Majesty, upon account, towards defraying the charge of allowances, compensations, and emoluments, in the nature of superannuation or retired allowances, to persons belonging to several public departments in Great Britain and Ireland, in respect of their having held any public offices or employments of a civil nature, for the year 1814.

20. That a sum, not exceeding 150,000 l. be granted to his Majesty, upon account, towards defraying the expence of the barrack department in Ireland, for the year 1814.

21. That a sum, not exceeding 3,000,000 l. be granted to his Majesty, on account, towards defraying the extraordinary services of the army of Great Britain and Ireland, for the year 1814.

The several Resolutions were agreed to, the chairman reported progress, and obtained leave to sit again.

FRAME BREAKERS' BILL.
On Mr. H. Addington's moving the committal of this Bill,
The Attorney Generalexpressed his wish to state to the House his ideas on a subject which had created a great diversity of opinion. He then adverted to the circumstances of the times in which that law was passed, and to the peculiar situation of the districts which had rendered that law necessary. If, by the salutary terror it had created, order had been re-established, they certainly had obtained an invaluable blessing at a comparatively trifling inconvenience. The present state of Europe, too, added to the operation of that law, had so contributed to restore order and perfect tranquillity, that should the Bill be

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now for the first time introduced, no man could think it necessary. But where a law, after effecting so much good, was attended with no inconvenience to any one, and held only terror to the guilty, it was certainly a harmless experiment to continue it for some time longer; always recollecting, that what had once come to pass might happen again. But as some hon. and learned gentlemen, and especially an hon. and learned friend of his, sir S. Romilly, whose suggestions were always entitled to the greatest deference, had expressed great objection to the offence of frame-breaking being made a capital felony, he intended to propose to the committee to enact a less severe punishment, and, at the same time, to make the Act permanent on the Statute-book, for the preservation of manufacturing property. The Act to which his hon. and learned friend had principally alluded, and which he wished to substitute for the present Bill, was an Act of the 28th of his present Majesty, by which the breaking up of manufacturing frames was punishable by no less than seven, nor more than fourteen years transportation. His intention, in the present instance was, to make the offence punishable by transportation for life. His principal reason was, that from the best sources of information he had been able to command, he had learnt that convicts for life were much more tractable, and made much better members of society, than those transported for a term of years: the first expecting no alleviation from a fate which was to last for life, but in their good conduct, by which they were soon admitted as settlers in the colony; whereas the others, always impatient under a restraint which they considered as temporary, sighed only in the bitterness and exasperation of disappointment, for the moment which was to bring them back to the scene of their former wickedness. He also wished, that, in mitigated cases, the judges might be authorised to recommend the culprit to a less punishment; or, in fact, if it was preferred, he had no objection to leave the period of transportation to the discretion of the judge. Another clause of the former Act which he would propose to repeal was, that which made it incumbent on persons injured to prosecute, under the penalties of a misdemeanor. But this was intended at the time to protect prosecutors from private revenge, by seeming to compel them to come forward. He did not think that the state of the country re-
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quired such a strong measure; and he would leave the prosecutor, in this particular case, in the same situation in which he stood by law for every other offence.
Sir S. Romillythought there was some objection against proceeding in the way recommended by the right hon. gentleman (the Attorney General). It was proposed to continue a law which had been originally introduced as a mere temporary measure, and to keep the terror of that law still in existence, though no occasion for such terror existed. The nature of the original measure would be entirely altered by thus making it permanent. In his opinion, it would be much better to drop the Bill altogether, and bring in a new one. The present Bill had reference merely to stocking and lace-frames. The machinery used in cloth and other manufactures were not at all protected by it; and yet there was no reason why they should not be protected as well as the others—they came under the very same principle. It was a very momentous question, that should not be decided in so hasty a way. With respect to what the right hon. gentleman (the Attorney General) had said on the subject of Botany Bay, there was an important difference of opinion upon that point. The opinion of a gentleman who had been many years governor of Botany Bay was quite contrary. The opinion of that gentleman was, that the persons transported for life were the most desperate and the most incorrigible of the whole colony. They were the very worst there; and the reason he assigned was, because they considered their case desperate; and for that reason they had laid aside all thought of amendment, and corrupted the rest of the prisoners. The report of the committee which had sat upon this subject should be taken into mature consideration. The number of persons likely to suffer under this Bill was extremely small. There seemed to be no necessity for the Bill, but certainly none for making that permanent which was originally temporary, and changing entirely the nature of the punishment. When it was stated the other day in the House, that the Bill might possibly have such an operation, as to subject to death an apprentice for injuring the frames of his master, a worthy alderman said it was monstrous and incredible that such a Bill could have passed the House. Yet the Bill did pass the House, and that worthy alderman himself voted

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for it. It would be easy to alter the words of the Act in such a manner as not to comprehend cases like that of the apprentice. Every thing said by the right hon. gentleman went upon general principles, and yet the Bill was to be confined to a particular Act. The inconvenience in bringing in another Bill would be, that some delay might arise; during that delay, however, the Bill before in existence would be sufficient for the protection of frames.
The motion was agreed to, and the House having resolved into the committee,
Mr. Homersaid, that he should wait to see how this Bill came out of the committee before he made any further observation upon it.
Mr. Edenstated, from his experience in the committee respecting transportation to Botany Bay, that evidence appeared directly contradictory to the statement of the learned gentlemen, respecting the comparative conduct of the several classes of transports. According to that evidence, indeed, the persons transported for limited periods were very often reformed while those transported for life generally continued depraved and desperate. The hon. gentleman concluded, with expressing a wish that government would attend to the suggestion of the committee alluded to, with respect to the improvement of the civil and criminal courts.
The Attorney Generalsaid, that the subject last referred to by the hon. gentleman, was under the consideration of government; and that papers were before him (Mr. G.) respecting those courts, which would have been decided upon before now, if he had not wanted that assistance which a recent appointment had happily afforded him [alluding, we suppose, to Mr. Serjeant Shepherd's appointment as Solicitor General].
Mr. J. Smithexpressed his satisfaction with the change which was proposed to be made in the measure under consideration; and he had no doubt that in consequence of that change it would prove more effectual for its object than the measure to which it was to succeed.
The Attorney General's proposition was agreed to, the House resumed, the report was received, and ordered to be farther considered on Monday next.

APPEALS—DEMPSTER v. THE MAGISTRATES OF ST. ANDREW'S.
The Lord Chancellorobserved, that he had addressed several observations to the House, on a former day, relative to the several points which were involved in the consideration of this case. Before he proposed to their lordships to come to that judgment which, in his opinion, ought to be given, he was induced to repeat to them the substance of the remarks he had already made upon the merits of this question. It was his intention to move, that the interlocutors of the court should be remitted, and he did not perceive how their lordships could adopt any other decision. There were parts of the judgment of the court below upon which the House was not able to form a distinct opinion. This was a

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claim, on the one hand, to certain property in the liberties of the corporation of St. Andrew's; and, on the other, it was the setting up of a right to keep off whatever might spoil the ground for the exercise of the game of golf. This privilege of enjoying a healthful exercise and amusement, was claimed not only for the corporation and the people of St. Andrew's, but for all others, wherever they may come from, if they chose to play at golf within the links of St. Andrew's. The court of session had decided, that the rabbits of which, the respondents complained might be removed; but it did not appear, how that effect of the decision could be carried into execution. It was not ordered that the appellant should remove them; and afterwards by the suspension (a proceeding in Scotland), when the subject came again before the court, it appeared that the respondents were not authorized to kill all the rabbits, but such as might come into certain parts of the liberties. Then how were they to be removed, and by whom? A question had also been raised at the bar, where it was contended by one, that the whole of these rabbits ought to be removed or destroyed; and by another, that a part only could possibly fall under such a decision. On this part of the argument his lordship's gravity had been disturbed; for it appeared, that one part of these creatures was indigenous; while others were brought there from England; others from different links and places in Scotland; and others again had arisen, which were a compound of this variety. He regretted, however, that this case should, from necessity, be remitted to the court of session for, on the one hand, being, a North countryman himself, he had had an opportunity of seeing and, admiring, the game of golf; but, on the other hand, he could not see how a right like that claimed by the respondents, not only for themselves but for the whole world, could exist, to the prevention of a man's using his own property? For, on this ground, the objection to keeping rabbits would also apply to keeping black cattle, which were likely to do more damage to the earth than the scratchings of rabbits. It would also prevent the keeping of sheep, or any other species of animals. This was a species of war which had been pertinaciously pursued by the parties. He believed Pliny had mentioned the circumstance of the Balearic Islands, whose inhabitants made war upon
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rabbits, and had an army to destroy and drive them from the country. But neither in this Balearic war, nor in any subsequent one, was more spirit manifested, than in this war of the whole world against the rabbits of St. Andrew's. The nobles and learned lord then moved. "That the interlocutors and suspension he remitted for re-consideration, as to those points upon which the House wanted additional information."—Ordered accordingly.

INSOLVENT DEBTORS.
Lord Ellenborough's temporary Insolvent Bill was read a third time and passed.