Sitting of 7 December 1813

Preamble
The Report of the Committee of Ways and Means was brought up; the Resolutions for allowing five millions to be raised in Exchequer Bills were agreed to, and a Bill ordered accordingly.

STATE OF NEWGATE.
Mr. Edenrose to make his intended motion for Papers relative to the present state of Newgate. It was a duty not enjoined by law, but acted upon by grand juries, to visit gaols, and to report on any faults which they might find in their management. In pursuance of this practice, the grand jury of the city of London last week visited Newgate; and their report stated, that in that part of the gaol in which women were confined, and which was not intended to accommodate more than 60 prisoners, not less than 120 were now contained. In the other, consecrated to the debtors, and where only 100 ought to be, they had not found less than 340. To state, that most of these were in want of clothing and bedding, and that the rain beat upon them, might be sufficient to authorize his motion; but he would add a few facts from the evidence of Mr. Newman himself, given before a committee, at the same time that he would do justice to the exertions of that gentleman to do every thing in his power to render the situation of the pri-

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soners less miserable than it was. He stated in evidence, that the wards for the women were only built to contain 56; but that, by cramming the hospital and infirmary with prisoners, they might be made to hold 100—at present they inclosed 20 above that number. The dimensions of the principal room for the women, according to his statement, were 70 feet in length and 16 in breadth. In this only 20 women were originally placed, so as to have each three feet six inches in length. Now that number was trebled, and every female prisoner had no more space allotted to her than one foot three inches. They even had less, as many were compelled to keep their children with them for want of a home to send them to. What was the description of the prisoners thus crowded together in that gaol? They were convicts sentenced to transportation, but who were compelled to wait, as the means of conveyance were not ready, or because they were too ill to be removed. They were also prisoners on suspicion of crimes; the hardened were mingled with those who had but just committed a first offence, and who, if they had brought a single seed of virtue into that horrid den, would soon have it choaked in the company of the most abandoned. On the part of the debtors confined, (whose number, he hoped, the Act to be passed this day would greatly diminish, by depriving the creditor of the power of punishing the insolvent debtor) the want of room, and difficulties, were the same. As to the male felons, the grand jury stated nothing; but it was notorious that the same system of mingling the hardened with the first offenders prevailed. These were the facts which induced him to form his present motion. He made it for two additional reasons; because to make an evil public was a great redress; and because he should, after the recess, move for a committee to inquire into the state and regulation of prisons. The paper for which he should move had already been taken into consideration by the city of London, a building was ordered to be prepared, and a remedy proposed to soften the evil. It therefore could not be beneath the notice of parliament to contribute by its attention to the relief which it was now endeavoured to yield to so many unfortunate prisoners. The hon. gentleman concluded by moving, that a copy of the papers respecting the state of the gaol of Newgate, lately presented to the judges
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by the grand jury, be laid before the House.
Sir W. Curtisseconded the motion; at the same time, he expressed his firm opinion, that however unfortunate the situation of the prisoners in Newgate was, no blame could be laid on Mr. Newman, who had done every thing which his limited means allowed to improve it.
Mr. Alderman Combefollowed the same line of argument.
Sir James Shawthought that the more the House should inquire into the management of Newgate, the more it would find that everything was done, consistent with existing means, to accommodate the prisoners. The overfulness of the gaol was the cause of their distressed situation; and this was occasioned by the failure in the operation of the Insolvent Debtors' Act. The number of persons confined for debt in Newgate now amounted to 355. It was the object of the city of London to remove all debtors from that gaol; and for that purpose a building was erecting, which would contain about 500 debtors. Nothing, therefore, was wanting on the part of the city of London, in disposition to accommodate that class of individuals. The room provided in Newgate for felons and convicts was not intended for more than 370, and now contained 479.—This was chiefly occasioned by the necessity in which many convicts were placed of waiting till a sufficient number had accumulated to be sent to New South Wales. The sheriffs of London, with that due attention to every branch of their duty by which they had distinguished themselves, had about three weeks ago represented to the noble lord holding the office of his Majesty's secretary of state, the necessity of procuring shipping to ease Newgate of the number of convicts sentenced to transportation which it contained. The reply which they had received was, that every thing possible should be done by government to procure the necessary shipping. When the debtors should be for ever removed from that gaol, and 200 convicts transported, the number that would remain would not then much exceed 300; and the capacity of Newgate would then allow that separation between hardened and new offenders to be made, the propriety of which everyone must acknowledge, while lamenting its present impracticability. He had thought these explanations necessary, when he found that the motion of the hon. gentleman opposite

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seemed to imply a charge both against the keeper of the gaol of Newgate, and against the city of London. He trusted he had now satisfactorily shown the origin of the evil, and the prospect of its being remedied.
Mr. Alderman Atkinsvindicated Mr. Newman from any blame which might by implication have been attached to him in consequence of the present motion. Every thing was done to keep Newgate in the best order, and in the most cleanly state. If any member of the House looked at that prison in the morning, he would not be ashamed to compare it with any dairy in the country. Much of its inconveniences were to be attributed to the prisoners themselves, and especially the women, whom it was impossible to keep clean. The great grievance was, the too great number of prisoners.
Mr. Abercrombyexpressed his satisfaction that this motion should have been brought before the House, and met in the cheerful manner it had been. It was impossible to speak with too much regard of the attention and humanity of Mr. Newman; but he must own, that having occasion to visit Newgate two years ago, in his capacity as a member of that House, the state in which he found it made him consider it as a disgrace to this metropolis, especially the wards of the women. He agreed with the last speaker, that women might be less disposed to cleanliness, yet the place was not such as humanity required should be provided for them. Comparing the returns of the average number of prisoners with the capacities of the gaol itself, it was evidently impossible to class the prisoners according to their various shades of offence. That could only be effected by a particular provision for that purpose.
Mr. Alderman Smithspoke generally on the depravity and ill conduct of prisoners, which greatly impeded any exertion made in their behalf.
Mr. Lockhartthought, that there were two causes of the distresses experienced in Newgate—the one temporary, and the other lasting. The first related to debtors, and he hoped the present Act would remove it. The second, to the hardship of prisoners being compelled to wait till their number was sufficiently considerable to allow of their being transported. To remedy the latter, he thought it would be preferable to select a new place of banishment, and form a new settlement nearer
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home, which would admit of a more frequent embarkation on the part of the convicts, and at less expence. There was also another method which might lead to a diminution of their numbers. He wished government should investigate their particular offences more deeply; and if they were found, as it might often happen, worthy of pardon, that it should be granted at once, and they should not be left to be entirely corrupted by the company of the abandoned.
The motion was then agreed to, and the papers ordered to be laid before the House.

INSOLVENT DEBTORS' AMENDMENT BILL.
On the order of the day being read for the third reading of the Bill, Mr. Serjeant Best moved that it be recommitted.
The Speakersaid, that the stage at which this could be done was past; and that, according to the regulations of the House, the Bill must be now read a third time.
Mr. Serjeant Besthad understood, when he gave notice yesterday of his intention to move for the recommitment of the Bill, that his proposal had been agreed to by the hon. gentleman opposite.
Mr. Hornerstated, that if the hon. and learned Serjeant supposed that he had agreed to the recommitment of the Bill, he was in an error; as, instead of advancing it, it would have been taking a step backwards.
Mr. Serjeant Bestthought, that were the Bill to pass without the amendments which he had to propose, it would not perform the office which it was intended to perform. In the original Bill passed last session, there was a clause which he was astonished should have escaped the attention of the members, and should have been allowed to become part of the British law. It was therein enacted, that if a party concealed property to the amount of 20 l. he should be liable to capital punishment. This was an innovation of the most dangerous tendency. It had never happened in any case before, that a British subject was exposed to capital punishment without the double protection of two juries, of a grand jury, and of a jury on his trial; while by the clause as it stood in the Bill, he might be convicted at once on a mere information. There were also many other clauses of this amended Bill, which required to be altered to render it efficient, before it passed into a law. In the third section it was
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stated, that any insolvent debtor, desirous to take the benefit of this Act, should give notice of his intention in the London Gazette, or any other newspaper. Thus the debtor was allowed to choose any paper which he might think least likely to meet the eyes of his creditors. Another clause allowed debtors to be brought before magistrates, out of quarter sessions, but did not invest those magistrates with sufficient authority to act. He mentioned these facts not in a spirit of hostility to the Bill, but to show the propriety of placing it in a situation in which it could be satisfactorily amended. If passed as it stood, it was impossible that it should be executed. The House must recollect, that all prisoners were not to be discharged; that a difference should be made between those who had been rendered insolvent by misfortunes and by fraud. But how could the court ascertain when misfortune and fraud were at the root of insolvency, if the Act did not point out any means of obtaining satisfactory evidence? Suppose that a debtor from Northumberland should be confined in the Fleet or the King's-bench, which frequently happened, as prisoners possessed the means of removing themselves from a country to a town gaol. Was the creditor, defrauded, and perhaps deeply injured in his circumstances, by the villany of the debtor, to be at the expence of bringing not only himself, but his witnesses from Northumberland with him to prove the fraud committed upon him? It might happen, and it undoubtedly frequently happened, that the debtor's dishonesty had put it out of the creditor's power to incur the expence necessary to prevent him taking the benefit of the Act, and to recover his own property. Thus fraud produced its own security! For the purpose of amending this defect, he intended proposing a clause, which should empower creditors in the country to go to magistrates within, the districts, before whom they should state and prove their case, and transmit an authenticated copy to the court, against the debtor. This was certainly a bad way of administering justice, but it was the only one consonant with the nature of the Bill that remained.—To the principle of this measure he was not hostile, but he thought that as it stood at present it made no difference between the honest and the fraudulent debtor. It was said to be founded on the principle of the cessio bonorum, but not sufficiently so. He wished it to be carried farther on that
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plan. He wished to make this cessio bonorum in some cases preventive of the imprisonment which insolvency was likely to occasion. There were many individuals to whom passing the threshold of a prison was as severe punishment as protracted confinement. The idea of it was revolting to their minds. The present Bill did not offer these any relief; it did not go far enough. He wished to present a temptation to a timely settlement; and to induce debtors, as soon as they found themselves likely to become insolvent, not to hold their creditors at arm's length, but immediately to call them, and adopt the only means which could procure a satisfactory arrangement to all parties, securing the one against further, losses, and the other against confinement. He would, therefore, propose a clause enacting that debtors rendered insolvent by proved misfortunes, and coming forward in time to satisfy their creditors as to their real condition, should have the benefit of the Act without being sent to prison. If they were to be confined even three months only, then the greater part of the money they might still possess, would, in that period, have passed into the hands of gaolers and other persons, to the real detriment of the creditors. It also frequently happened, that either through, malignity, or through a vain wish of delaying the dreaded hour of imprisonment, a debtor defended causes, which led his creditors into useless expences, and only served to bring down increased ruin upon himself. He would make a difference between those who acted thus, and those who called at once their creditors, and put them fairly in possession of the real state of their affairs. He intended, therefore, to propose a clause, enacting that when a debtor should defend hopeless causes, and a verdict should be found against him by a jury of his countrymen, he should be punished, not merely by the three months of imprisonment mentioned in the present Bill, within the rules of the prison, where it was known so many comforts and indulgences might be obtained, but by twelve month's close confinement within the walls of the gaol. On the contrary, the honest but unfortunate insolvent debtor should be entitled to his freedom after three months; but if it was proved that he had been reduced by expences into which he had no right to launch, by living above his condition, and thus incurring wanton losses, he should not be dis-

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charged under a twelvemonth. In the case of bankrupts, if a man gave a fortune to his children subsequent to an act of bankruptcy, he was not entitled to his certificate, or if he had wantonly lost 100 l. within the twelvemonth. Why should it be different in the case of an insolvent debtor, if it should be proved, that within the same period, he had either transferred a fortune to his children, or incurred similar wanton loss? He therefore wished to add a clause to the Bill, which, acting like the provisions of the bankruptcy law against the granting of certificates in such particular cases, should deprive the insolvent debtor, placed in similar circumstances, of the benefit of the present Act.
The Speakerthen stated, that, consistently with the regulations of the House, the Bill must how be read a third time; and then any hon. gentleman might offer clauses as amendments, or move to postpone the passing of the Bill.
The Bill having been read a third time,
Mr. Serjeant Bestproposed his first clause, allowing debtors, whether any action had been brought against them or not, to have the benefit of the Bill.
On the motion that the clause be brought up,
Mr. Hornerexpressed his wish to trouble the House with a few words on the subject. As the hon. and learned serjeant had declared that he was favourable to the principle of the cessio bonorum, he was satisfied that it was so; otherwise, from the general tenour of the hon. and learned serjeant's speech, he should have concluded otherwise. From the mode in which the hon. and learned serjeant had assailed the Bill, he was really apprehensive that he was altogether hostile to it, until he expressed his acquiescence in that principle on which it was mainly founded. He confessed that he was much surprised, however, at the objections urged by the hon. and learned serjeant against parts of the measure, recollecting, as he did, that the Act of last session passed through the House without any objections having been made to it on the part of the hon. and learned serjeant. He regretted that the objections in the present instance had been deferred to so late a stage of the Bill. Still he was glad to find that the hon. and learned serjeant approved of the principle of the measure, and so approving of it he trusted that he would not endeavour, by any delay or obstruction, to throw difficulties in the way of its execu-
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tion. When he said this, he begged to be understood that he was persuaded no one was better qualified, both from his legal knowledge and his experience, than the learned serjeant, to suggest many improvements, not only in the Bill before the House, but in any Bill of a similar nature that might be introduced. But he would take the liberty of suggesting to him the expediency of allowing the Bill to pass in its present form; as the subject was one to which both in this and in subsequent sessions the attention of parliament must be repeatedly called, before the statute could be rendered as perfect as it was desirable to make it; and consequently the hon. and learned serjeant would have abundant opportunities of bringing forward any proposition that he might think fit to introduce. With the utmost deference to the judgment of the hon. and learned serjeant, he would submit to him the wisdom of this postponement, even with a view to the attainment of his own objects. He said this with the utmost sincerity; because, although parliament had (wisely, he contended) adopted a great innovation during the last session in the law of England, on this subject, by the admission of the principle of the cessio bonorum, the hon. and learned serjeant had that night proposed innovations on the law of England of a much more extensive description. For instance, the hon. and learned serjeant seemed to think that it would be proper to extend the benefit of the bankrupt laws to persons who were not traders. He seemed to think that it would be proper to designate a new description of punishable crime. And through all the clauses, which the hon. and learned serjeant had intimated that it was his intention to propose, and through, the whole of the hon. and learned serjeant's speech, he seemed to take a view of the doctrine of imprisonment for civil debt, wholly different from the law as it existed before the measure of the last session, and wholly different from the true principle of that measure itself. The hon. and learned serjeant proposed, that the benefits of the Bill under discussion (a Bill, he begged the House to remark, for the discharge of insolvent debtors in prison) should be extended to debtors, not in prison, or not going to prison, who were insolvent, and who could satisfactorily prove that their insolvency was the result, not of criminal extravagance, but of inevitable misfortune. He (Mr. Horner)

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was not prepared to say that there might not be great wisdom in the adoption of such a proposition; but he was prepared to say, that it was an innovation on the existing law, of such an extent, as to require a great deal of consideration. He would also take on himself to assert, that a more novel or a more daring innovation on our jurisprudence had never been proposed either in that House, or elsewhere. It was very true, that there were cases in which insolvency could be traced only to an extraordinary concurrence of calamitous circumstances, and in which the insolvent person was wholly free from blame. At the same time, it was well known that those cases were of rare occurrence; and that the task of distinguishing between such cases and cases of an opposite description was one of the most unfit duties that could be imposed on courts of justice. For what were the objects that courts of justice must consider in an investigation of that nature? They must examine the whole history and circumstances of a man's life, from his commencement in business until the period at which his affairs might be brought before them! They must inquire into all his connections—they must ascertain all his resources—they must investigate all his modes of expenditure—they must trace him through all the ramifications of his manners, and habits, and occupations. Even if a moral tribunal were constituted for such a purpose, it would be found inadequate to its execution; but that a person possessed of such legal knowledge and experience as the hon. and learned serjeant should think of making it a matter of judicial proceeding, did, he confessed, not a little surprise him. He repeated, that the cases were rare in which insolvency was attributable solely to misfortune. More or less of indiscretion and criminality was usually mingled with the cause; and in his opinion, it was much better to leave the determination on this subject with those individuals with whom an insolvent person had now to deal (his creditors), than to submit it to any tribunal whatever, moral or judicial. Those individuals had the best opportunities of knowing, from their acquaintance with the debtor, whether or not his conduct had been culpable or otherwise. The hon. and learned serjeant, however, seemed not to think so; and all at once, on the third reading of the Bill, he proposed a clause, declaring that an insolvent person who
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could shew that he had become insolvent from misfortune alone, and who had surrendered all his effects, should be discharged without an hour's imprisonment—without affording the time required to make the necessary arrangements attendant on all insolvency, and in which arrangements the insolvent person was frequently as much interested as any other person. There was another novelty proposed by the hon. and learned serjeant; namely, that if any debtor fought off the demands of his creditors, and allowed them to go to judgment, either on a demurrer or by the verdict of a jury, such debtor should be punished by a more rigorous species of incarceration than had hitherto been known in the law on this subject—close confinement. Now it might be very proper that a debtor so attempting to defeat his creditors in their legitimate object, should be subjected to some mode of punishment; but he should like to know if it was not a new principle in the law of England, to apply imprisonment to a debtor as a mode of punishment at all. Unquestionably, creditors had it in their power to imprison their debtors to enforce a disclosure of property, and a payment of their demands; but certainly the law of England never recognised this imprisonment as a punishment, or it would have been found where alone the power of punishment was ever vested by the law—in the hands of the public. Really, the more he considered these speculative projects of the hon. and learned serjeant, the more strongly he must recommend their postponement to some future period. There were other clauses to be proposed, it seemed, by the hon. and learned serjeant, on which he would comment particularly when they should be individually before the House. It did certainly appear to him difficult to reconcile the anxiety of the hon. and learned serjeant on the present occasion, with his silent acquiescence in the Act of last session. But if there were wanting any thing to convince him (Mr. Horner) how much benefit would be derived from the Bill before the House, it was the nature of the objections which alone, after great consideration, so learned and acute a person as the hon. and learned serjeant was enabled to urge against it. The hon. and learned serjeant objected to that part of the Bill which respected the notices; and having stated that the notices were to be inserted in the London Gazette, and in

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any other newspaper that the debtor might choose, exclaimed, "Was there ever such a regulation heard of?"—Now he begged pardon of the hon. and learned serjeant, but certainly he had never read the Bill; for if he had, he would have found in the next line, that the choice of the newspaper was to be, not at the discretion of the debtor, but at the discretion of the court. So with respect to the hon. and learned serjeant's objection relative to the jurisdiction of the magistrates. The hon. and learned serjeant, having just stated, that the Bill allowed a prisoner for debt to be brought before justices of peace in the country, in session and out of it, asked why, as by the Bill, justices could not do any thing out of session; and added, that this exhibited great carelessness in the drawing of the Bill. He must be allowed to say, that this remark exhibited great carelessness on the part of the hon. and learned serjeant in reading the Bill. If the hon. and learned serjeant would read the Bill, and the Act of last year together, he would find that there were some things which they could do out of session. The judge of the insolvent court had power under the Act to direct magistrates in the country to take the examination of a prisoner for debt, either in session or out of session, for the purpose of certifying to the judge those circumstances on which he was to ground his judgment. By the Bill of Amendment, a power was given to the magistrates, not merely to examine, but to form a judicial opinion, whether or not the debtor was a fit person to be discharged; that opinion to be forwarded for the information of the judge of the insolvent court; and this power was vested in the magistrates, in or out of session. There remained, as he believed, but one other objection to the Bill, on the part of the hon. and learned serjeant. The hon. and learned serjeant had referred to the Act of last year; and had adverted to a clause which he stated to be in that Act, declaring a debtor who concealed from his creditors property to the amount of 20 l. guilty of a capital crime, without those ordinary forms of previous trial which the law required. He was ashamed to say, that he was not sufficiently acquainted with the Act in question, to be aware of the existence of such a clause. If it did exist, it might be proper that it should be rescinded; but—
Mr. Serj. Besthere stated across the table, that he found the clause alluded to,
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although in the Bill of last session when first introduced, had been struck out in the progress of the measure through the House.
Mr. Hornerobserved, that, this was another instance of the inaccuracy of the hon. and learned serjeant, who, nevertheless, had so freely charged others with carelessness and inaccuracy. A great part of the hon. and learned serjeant's invective and declamation had been bestowed on a clause which he had contended constituted a crime unknown to the law, and enacted a punishment destructive of the rights of the subject; and it now appeared, by the hon. and learned serjeant's own confession, that no such clause was in existence; but that, though introduced in the Bill of last session, the House in its wisdom had thought proper to expunge it!
Mr. Lockhartsaid, that the Act of last session had proved wholly inefficient up to the present moment, not a single debtor having been discharged under it. He had no hostility to the Bill whatever. On the contrary, he thought that, properly modified, it might be very serviceable. The hon. and learned serjeant had been unjustly charged by the hon. and learned gentleman with an attempt to introduce a great innovation in the law. All that the hon. and learned serjeant proposed was, to discriminate, if possible, between the unfortunate and the criminal debtor. It might be difficult to do this completely; but the attempt was laudable, and even an approximation to success would be attended with the highest benefits. It was no novelty whatever, to give to persons not in trade the option of taking the benefit of the Insolvent Act. How easy was it now for any person to make himself a trader! He had only, in confederacy with others, to draw and re-draw bills, and he would thus qualify himself to take the benefit of the Insolvent Act. It was so also with the bankrupt laws. An individual had only to prevail on a friend to take out a commission against him, and he could then avail himself of all the benefits of the Act. For his part, he thought the hon. and learned serjeant entitled to the applause of the House and the country, for endeavouring to introduce the discrimination he had alluded to. He was sure, that all the commercial world, and every honest man, would wish, now that parliament was modifying the law on the subject, that some such discrimination should, if possible, be adopted; and that, the

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honest, but unfortunate debtor should not be branded by being placed in the same situation as the debtor whose conduct had been extravagant and criminal. It was true, that, technically speaking, imprisonment for debt was not known to the law as a punishment. But unquestionably it did operate as a punishment; and he could not conceive what objection there could be to modify the power of the creditor on this subject. What could be more just than that the degree of suffering should be proportioned to the degree of criminality? He confessed that he thought in many cases a false compassion had been shown to debtors; he said false, because the consequence of it had frequently been to throw the unfortunate and injured creditors into the prison from which their debtors had been liberated. He repeated, that the commercial world, and every friend of good order and justice, must be grateful to the hon. and learned serjeant for his proposition; and if he did not press it at present, he trusted he would introduce it at some future period, after a more ample consideration.
Mr. Abercrombycontended, that the hon. gentleman who had just sat down, had much misrepresented his hon. and learned friend, whose only regret was, that the hon. and learned serjeant had deferred his objections to the Bill until a stage so late; and who, so far from treating with indifference the opinions of the hon. and learned serjeant, had expressly declared, that there was no one from whom he would more eagerly court discussion on such a subject. He was sure the hon. and learned serjeant must, however, be aware, that even if ultimately he could prevail on the House to adopt his propositions, it could not be until after such mature consideration, and such nice balancing one difficulty against another, that it would be highly inexpedient to press them at the present moment.
Mr. Hammersleydeclared, that in his opinion, the public were extremely indebted to the hon. and learned serjeant for his endeavour to make a distinction between the unfortunate and the guilty debtor. Any Bill which might pass without such a distinction, would in his opinion be very injurious to the community.
The clause was then negatived without a division.
Mr. Serj. Bestnext proposed his clause for punishing debtors who defended the actions of their creditors against them as
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long as possible, with imprisonment for twelve months. This was what was technically termed a sham pleading, and no argument that he had heard would deter him from proposing this clause to punish it.
Mr. Lockhartsuggested that the clause should be made operative, not on those now in prison for debt, but on those who might hereafter be so.
Mr. Serj. Bestacquiesced in this suggestion.
The gallery was then cleared for a division on this clause. Strangers were not re-admitted; but we understood, that Mr. Serjeant Best withdrew this and his other clauses, signifying his intention of introducing them in a distinct Bill in the course of the session; and the Bill was then passed.