Sitting of 24 July 1835

MINUTES.
Petitions presented. By Mr. HENRY L. BULWER, from the Tower Hamlets, and from a National Union of the Working Classes, for; the Mitigation of the Sentence on

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the Dorchester Unionists.—By Sir M. s. STEWART, from Ayr, against the Imprisonment for Debt (Scotland) Bill.—By Sir ROBERT BATESON, from Aughamawurt, against the Irish Church Bill.—By Mr. SINCLAIR, from Irvine and Rafford, in favour of the Grant for Building Churches in Scotland.—By Colonel LEITH HAY, from Elgin and Inverary, against the Aberdeen University Bill.—By Major CUMMING BRUCE, from Elgin County, and two other Places, for Protection to the Church of Scotland.—By Mr. R. STEWART, from North Berwick, against the Royal Burghs' (Scotland) Bill—By the ATTORNEY-GENERAL, from the Royal Burghs of Scotland, for the Repeal of the Acts relating to the Leith and Newhaven Ferries.—By Mr. R. COLBORNE, from the Governors of Bridewell and St. Thomas's Hospital, against the Prison Regulation Bill.—By Mr. HERBERT CURTEIS, from Uckfield, for withholding Compensation from the Proprietors till the Rights of the Black Population be properly secured; from Toberkeigh, for the Better Observance of the Lord's Day; from several Places, in favour of the Church of Ireland Bill.—By Mr. E. TENNENT, from Belfast, against Drunkenness.—By Mr. W. SMITH and Mr. O'BRIEN, from Kilbradan, for Inquiry into the Conduct of the Limerick Magistrates.—By Mr. C. BULLER, from Liskeard, against Drunkenness.—By Mr. C. BULLER, from Uttoxeter, for the Repeal of the Duty on Newspaper Stamps.—By Mr. LOWTHER, from York, against the Ecclesiastical Courts' Bill.—By Mr. TOOKE, from two Metropolitan Parishes, against the Parish Vestries' Act Amendment Bill.

TITHE ON TURNIPS.
Captain Pechellpresented a Petition most numerously and respectably signed by the flock-masters on the Southdowns, and others in the western division of the county of Sussex, praying that a law might immediately be passed to declare that agistment tithe only should be due for turnips pecked up or severed for the depasturage of their sheep. He, Captain Pechell, was aware to what a length the subject of tithes had been carried by a three nights' debate in this House; yet he felt himself compelled to state the hardship complained of by the petitioners in consequence of the Courts having now decided that turnips pecked up in advance of the fold, though consumed on the ground where produced, should pay tithe in kind. The petition was signed by a large party of agriculturists who owned among them no less a number than 38,180 sheep. There were eleven individuals whose flocks varied in number from one to two thousand sheep, and there were fifty-two whose average flock consisted of nearly 400 each. Surely these persons deserved to have their case taken into consideration, and that their very large property vested in farming should be protected. The petition might be viewed as coming from these 38,180 sheep, who begged to be permitted to enjoy their ancient privilege of feeding on turnips uncontaminated by the law of tithe in kind, to which process they have never (till lately) been liable, and they
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were now deprived of the tenth part of the food that was sown for their advantage. The question could no longer be considered as one between the tithe-payer and the tithe-owner. Now, Gentlemen opposite need not assume that these petitions had for their object the impugning of the conduct of the clergy; for the question was, whether the law was to remain in the present state when a different mode of cultivating the land had been brought into practice. The law Courts had decided that turnips should be titheable in kind under certain circumstances, which now operate in a most injurious and vexatious manner; and he now called upon the hon. Gentlemen opposite to join with him in bringing in the Bill of which he had given notice, being assured that it was as beneficial to the interests of the tithe-payer as it was to the tithe-owner. He had intended to provide, by the same Bill, for all suits and complaints for tithes under 10 l. being heard and determined before two justices; but he had now separated the Bill, and he hoped that this circumstance would not operate to its prejudice, notwithstanding the strong feeling evinced by the House last night for refusing the Motion of the right hon. Baronet (the Member for Tamworth), for separating the Irish Tithe Bill. It was absolutely necessary that the House should take some step towards the settlement of this question, so interesting to the flock-masters of England; and it was equally necessary that a stop should be put to the practice of carrying suits for tithes under 10 l. into the Superior Courts. It could not be supposed that this practice should be permitted any longer. If the hon. Member for Lancaster did not know why the tithe-owner proceeded always to levy his tithes in the Superior Courts, he, Captain Pechell, would tell him—that in all suits determined before the Magistrates, only 10 s. in costs were given. The hon. Member might probably know how many hundreds of pounds are generally awarded in the Court of Exchequer. He hoped the House would permit him to bring in the two Bills of which he had given notice for this evening; and, on the part of the petitioners, he moved that this petition be brought up.
Mr. Herbert Curteisrose to give his warmest support to the petition now presented by the hon. Member for Brighton. He considered the claim for tithes in kind

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of turnips used for the pasturage of sheep as most unjust and oppressive; indeed, he considered that the tithe in kind in any crop most injurious and vexatious. He would give his support to the Bill about to be introduced by the gallant Member for Brighton, as the means of at once going to the abolition of a practice so universally reprobated.
Petition to lie on the Table.

IPSWICH—CASE OF MR. CLIPPERTON.
Mr. Freshfieldmoved, that John Clipper-ton be brought to the Bar and discharged.
Lord John Russellsaid, that when this question was before the House on a former occasion, he had understood the debate to be adjourned until the evidence was printed, in order that hon. Members, before deciding on the case, might know the facts of it. It now appeared that the evidence would not be printed so soon as the hon. Member for Montgomery shire anticipated. He should, therefore, move that the debate be adjourned till Monday.
Mr. Williams Wynnsaid, that on inquiry at the printing-office this morning he had ascertained that the press of business there was so great, more particularly in consequence of the printing of the evidence on Orange Lodges, that there was no chance of the evidence in this case being printed just yet. When Mr. Clipperton was before the Committee he had refused to answer certain questions, claiming the protection of his profession. He (Mr. Wynn), in common with the other Members of the Committee, had conceived that such a claim was not tenable: but he had since read a judicial decision given by Lord Brougham, from which it would seem that the protection to be claimed by an attorney in virtue of his office went much beyond what he imagined. He hoped that when the evidence was printed, the hon. and learned Gentleman opposite would give his opinion how far the witness had been justified in his refusal to answer the questions put by the Committee.
The Attorney-Generalsaid, that as no further proceedings were, he believed, to be instituted against Mr. Clipperton, the delicacy which he should otherwise have felt was removed, and he should, therefore, most certainly give his opinion on the case on Monday.
Lord John Russellsaid, that he hoped on the same occasion the right hon. Gentleman opposite would give his opinion as
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to the law of Parliament in this case. A great many years ago, a witness in the Grampound case had refused, under similar circumstances, to answer questions, and the right hon. Gentleman then expressed so strong an opinion that he (Lord John Russell) moved the House not to press the question further.
Sir Edward Knatchbullconceived, that Mr. Clipperton had already suffered enough in being confined for six weeks, at a season of the year when such confinement was peculiarly injurious.
Mr. Haweswas sorry that he could not discharge his duty and Mr. Clipperton at the same time. He was not disposed to show him mercy until the prisoner was ready to show his papers, or give a sufficient reason for having destroyed them.
Mr. Roebuckdissented from the doctrine that an attorney so circumstanced was privileged on the ground of professional confidence.
Mr. Freshfieldmaintained, on the authority of the case decided by Lord Brougham, that Mr. Clipperton could not, as a man of honour, or as a professional man, answer the questions put to him, and he hoped to be able to convince the House that he had only done what was his duty.
Mr. Scarlettthought, that Mr. Clipperton ought not to have been called upon to divulge the secrets of his client. He considered him an honest straightforward man, incapable of a dishonourable act, but he admitted that his knowledge of him was not great.
The House divided on the Amendment—that the debate be adjourned till Monday.
Ayes 54; Noes 23; Majority 31.

TITHES (ENGLAND).
Mr. Hodgespresented a Petition from Hawkhurst, for an inquiry into, and alteration, of the Law relating to Tithes. The petition was signed, he observed, by nearly all the respectable inhabitants of the parish; men of all parties, who united at least upon one point, viz., that the present tithe system must be speedily amended. The tithes of Hawkhurst belonged to the Dean and Chapter of Christchurch, Oxford, who let them on lease to their attorney, while the officiating minister was very inadequately provided for. The exactions had been so severe that out of forty-eight renting farmers in Hawkhurst, no fewer than

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twenty-three had become insolvent, a proportion unequalled in any other part of that or the adjoining county. He contended that unless relief was given by a change in the tithe system, other parishes would soon suffer, and the agricultural interest be reduced to the lowest state of poverty. It appeared that there had existed a modus at Hawkhurst, but the tithes were now taken in kind, and the impropriator under the Dean and Chapter of Christchurch lived at Oxford, and as he would not pay rates but upon compulsion, whenever a poor-rate was imposed due notice was obliged to be sent to him at Oxford to the great expense of the parishioners. The poor-rates in the parish were necessarily very considerable, and they had been increasing during the last five years. He trusted that in the next Session some measure would be brought forward to meet and remedy the evils of the present system. The hon. Gentleman concluded by asking what course his Majesty's Ministers intended to pursue with respect to the question of English tithes?
Sir Edward Knatchbullagreed with his hon. Friend in thinking a material and extensive alteration in the English tithe-laws absolutely necessary. It would afford him great pleasure, therefore, to hear from the noble Lord opposite that his Majesty's Government had it in contemplation to introduce some measure upon the subject.
Lord John Russellhad, on a former occasion, stated the reasons why his Majesty's Ministers did not think it expedient to proceed with a measure on the subject of the tithe-laws in England during the present Session. He now begged to add, that he should be prepared, on the part of the Government, early in the next Session of Parliament, to submit a measure on the subject to the consideration of the Legislature. On a former occasion he had stated, that he thought it would be advisable that the subject, after it had been laid before Parliament, should be referred to the consideration of a Select Committee, in order that the different bearings of the question, and the different amount and operation of tithes in different parts of the country, might be duly and properly considered. He would only add, that he still retained the same opinion as to the propriety of that course.
Petition to lie on the Table.

PREROGATIVE OF MERCY—LADY MULGRAVE.
Sir Robert Batesonwished to put a question to the noble Lord, the Secretary for Ireland. At a late Assizes in Ireland, certain parties had been convicted of a misdemeanour, and sentenced to six months' imprisonment; but he had heard, that in consequence of a memorial to Lady Mulgrave, those parties had been liberated, without any communication with the Judge who presided at the trial. This he considered to be very unusual; and he wished, therefore, to ask the noble Lord whether he was aware of the circumstances?
Viscount Morpethobserved, that the case was this—that at a late Assizes, certain parties were convicted, on cross indictments for a riot, by the same Jury. The Chief Baron sentenced all the parties included in one of the indictments, and who were Catholics, to six months' imprisonment; and the parties included in the other indictment, and who were Protestants—some to three and some to two months' imprisonment. All the Jury, eleven of whom were Protestants, signed a petition to the Lord-lieutenant, and not to the Lord-lieutenant's Lady; which petition was also backed by the Mayor of Derry; praying for the remission of the longer sentence passed on the Catholics; and with that prayer the Lord-lieutenant thought it consistent with his duty to comply. The hon. Baronet had alluded to Lady Mulgrave. He was surprised that that noble Lady should not have escaped an attack in the newspapers, for merely having sent a private charitable letter, in reply to one received by her from the wife of one of the prisoners.
Sir Robert Batesonhoped the House would indulge him, while he gave a brief explanation. He could assure the noble Lord that he never stated, in his question, anything as to whether the sentences were passed on Protestants, or Catholics, or Quakers. He asked the question simply as to the matter of fact, whether the sentences had been remitted without any communication with the Judge who had tried the prisoners. As to Lady Mulgrave, he assured the noble Lord that he meant nothing offensive in his observations. He had not read any newspapers; but was instructed, by letters from very respectable persons, that an application had gone to her Ladyship. He was the last person in the House to lessen or impair the influ-

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ence of the fair sex, or in any degree to check the exercise of their benevolence.
Mr. O'Loughlenwished to set the hon. Baronet right as to what was the practice with regard to applications to the Lord-Lieutenant for the exercise of the prerogative in the case of the remission of sentences on prisoners. It was by no means unusual for the Lord-lieutenant to make such remission when accompanied by such strong representations as were made in this case, without at all referring the question to the Judge who passed the sentence.
Subject dropped.

IMPRISONMENT FOR DEBT.
The Attorney-Generalmoved that the Order of the Day, for the further consideration of the Report, be read.
Mr. Law moved, as an Amendment, that the further consideration of the Report be postponed till Monday next.
The Attorney-Generalhoped the hon. and learned Gentleman would not persevere in his Motion. He had given early notice of his intention to bring this Question on to-night; and he was very anxious to do so, for there were hundreds and thousands of persons looking forward to the passing of this measure; all of whom were suffering that sickness of heart which arose from hope deferred.
Mr. Lawsaid, that his reason for wishing the Motion to be postponed was, that many hon. Members who were anxious to declare their sentiments on the subject, were not present.
Lord John Russellobserved, that the hon. and learned Gentleman must be aware that it was intended on Monday to go into Committee on the Irish Church Bill; there would therefore be no time, at this late period of the Session, to carry this measure forward if they were to lose the present opportunity. He hoped the opposition would not be persisted in.
The House divided on the original Motion; Ayes 56; Noes 14; Majority 42.

List of the NOES.

Bailey, J.

Sheppard, T.

Burrell, Sir C.

Somerset, Lord G.

Clerk, Sir G.

Trevor, A.

Estcourt, Thos. G. B

Turner, W.

Finch, G.

Vere, Sir C.B.

Lincoln, Lord

Mackinnon, W. A.

TELLERS.

M'Taggart, John

Law, Hon. C.

Ross, Charles

Freshfield, James W.

The Order of the Day was read, and the Attorney-General moved that the Speaker do leave the Chair.
Mr. Freshfieldopposed the Motion. He begged leave to offer a few words in explanation of his course of proceeding. He had given notice of his intention to move that the Report betaken into further consideration that day six months; but his hon. and learned Friend (Mr. Law), had made a Motion which precluded him from acting on his notice. He was therefore obliged to give the present Motion a negative. He felt, whatever might be his opinion, or those of any Gentleman in the House upon the subject, it was a question upon which the public had only begun to think, at least in the particular form in which it was presented to them in the present Bill, and therefore he had intended to propose the postponement of the Bill to afford the public an opportunity of considering the measure in the form in which the hon. and learned Attorney-General had thought right to introduce it, that it might be taken up at a future Session either in its present condition, or with those practical changes in it which experienced persons might suggest in Committee. He objected to the Speaker's leaving the Chair, and to any further proceedings being had on the Bill during the present Session, in order that the public might have full time to consider of it. He objected also strongly to the measure being regarded, in any shape, as one issuing from that side of the House, and resisted on this. For himself he would say, that if he could regard it with any political view, he believed he should be the last to oppose the Motion. But when he recollected, that although the measure was brought in by the learned Attorney-General, in conjunction with the hon. Member for Lambeth (Mr. Hawes), yet that the measure itself proceeded originally from the Report made by the Common Law Commissioners, Mr. Commissioner Lee, and Sir F. Pollock. It was impossible to receive the Bill as a party measure, or that any Gentleman could do justice to the subject, who should consider it in such light. He discharged himself of all party feeling, considering it as a great and important question that they were discussing, one which would work much good, or increase evil in the country; and that therefore they should consider seriously before they proceeded to effect so great a change.

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The Bill of the hon. Attorney-General, he affirmed, should be carried or rejected, therefore, entirely upon its own merits, and not as coming from one side of the House or the other. And in desiring to view the subject before the House as one which ought to be considered on independent principles, he disclaimed any intention of casting any suspicion on the sincerity of those Gentlemen on the other side, who were anxious to pass the Bill. If there were cases of great hardship in the law as it then existed, he could assure hon. Members that no one could be more desirous than himself to remove those hardships. It was not a case of debtor or creditor, but it was a question as to whether more of good, or of evil, would be effected by the proposed change. For himself, he must confess he could not contemplate the possibility of conferring the benefits which it was supposed the Bill would confer upon the debtor, without dealing out great hardship to the creditor, upon whom the whole inconvenience of the change would fall. It could not be considered that the Bill was so obviously right, that it commended itself at once to the adoption of every Member the moment it was proposed, even though it had received the sanction of his Majesty's Attorney-General, because, it must be recollected, and it would materially relieve him, (Mr. Freshfield), from what he deemed a painful duty, that they had before them, not only the foundation of the measure, in the Report of the Common Law Commissioners, but also a supplementary paper containing a dissent from it by one of their number, so that whatever predilection he might naturally feel—and no one could feel it stronger—for the opinion of the hon. and learned Member for Huntingdon (Sir F. Pollock), whose name stood at the head of those who recommended the Report, he was bound also to say, that for that of his hon. and learned Friend, who signed the supplementary paper, he felt no less respect, as there never was an individual in any class of society who was less obstinate in his judgment on the subject, or more qualified to form a right judgment upon it from his knowledge, his experience, and his own profession. He was entitled to urge, that it was a question about which persons occupying important stations, and eminently qualified to form right opinions, had displayed great difference of judgment; and that, therefore, he was particu-
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larly warranted in entertaining the doubts which for himself, and those who acted with him, he so seriously felt. He could not feel justified in saying whether the Commissioners were equally strong in the opinions which they had expressed on the subject, but he did hope that if the debate were not finished on this occasion, that individuals who had appeared to have given themselves up to those opinions, would show by their speeches and their votes, that they held them not to the same extent as they once did. He did not want to prejudice any individual, and although for himself, he should rather defer to the supplementary paper of the dissenting Commissioner, he only wished it and the Report to be read, and for individuals to judge of them both for themselves. He knew that much reliance was placed, among other things, on the opinions contained in the Report, expressed by those who thought that arrest for debt was not necessary. But he knew there was a second class of witnesses who said, that in their judgment the power of arrest was essentially necessary for the security of creditors; and there was a third class who were willing to give up that power, only on condition of some measure being substituted of equal or better effect, forgiving security to the creditor. The latter class said, that by reference to Returns from the Courts of Request, it would be seen that a greater number of bailable writs appeared; and, in the Commissioners' opinion, had produced these effects, viz., payment of the debt, although the other class said that the writs which were not bailable, but were served without arrest, had been more effectual in obtaining the payment of the debts. Now, those different classes of opinions were all capable of reconciliation, though all were sincere in giving their opinions, and all right according to the best of their judgment. As to the larger class of merchants, traders, and bankers, attaching little importance to the power of imprisonment, he (Mr. Freshfield) quite agreed that the number of instances in which they resorted to arrest was comparatively small, in proportion to the next class. But he did not admit that the inference was just, that even with that class, the power of arrest was of little or no use, because he believed that it was a great preventive power productive of great benefit by the knowledge of its existence on the part of the debtor,

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and that thus it became of necessity less frequently enforced. In this class, then, was the very benefit produced, for which alone the power of imprisonment was to be admitted at all, the power of arrest inducing the debtor to pay his debt, and therefore rendering the arrests less frequent, which benefit was by the present Bill to be taken away. As to the second class, the small traders, who deemed the present Bill pernicious, and the power of arrest necessary, in those cases, their credits being much more numerous, and smaller in amount, being at the same time less able to repair their losses than the larger class of merchants, &c, this class would feel those losses doubly, when they occurred. It was therefore important that the House should direct its anxious attention to the class of people best able to arrive at just conclusions upon the subject; to him it appeared, by the evidence, that if the power of arrest were taken from them a larger number of debtors would leave their debts unpaid, than was the case at present, and that the correct inference from the evidence must be, that to them, the power of arrest was essential. As to the third class who thought that the power of arrest might be safely given up and substituted measures introduced, better calculated to effect the object of enforcing the payment of debts, he should say but little, as the consideration of those substituted measures would come before them naturally when they were discussing the provisions of the Bill before the House. As it was, he entirely dissented from them. It appeared to him that a greater fallacy was never committed, than to suppose, that because a certain number of bailable writs were issued, and it was found in a great number of instances that bail was put in, that, because the debt was not paid between the time of arrest and the putting in bail, that therefore, the debts were lost and the writs consequently useless. As little would they be warranted in saying that because the bail was put in, that therefore the party was unable to pay his debt. It could not be inferred that at some subsequent stage of the proceeding the debt was not paid. It was stated that in many cases they had no further account of the proceeding. It was probable that persons would resort to arrest in the most desperate cases; and it would be as unjust to infer from hearing no more of the transaction that therefore the debts
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were paid in full, as it would be to infer from the same reason that the debts were lost. As to that class of writs which was not for arrest, which were called "serviceable writs". It was thought that when they had evidence of the writ issuing, and heard no more of the transaction, that therefore the debts were paid; and from this an inference was drawn that the proposed mode of proceeding would be more advantageous than the other. Against this inference, he made the same objection, that it must proceed from premises wholly erroneous. It was forgotten that in the case of writs they were, probably, for very small sums, and that in many instances, the payment of the debt would soon conclude the proceedings. In all those cases in which there was no doubt as to the debt itself, but as to the doubtful circumstances of the creditor, it was continually said, "that individual cannot pay voluntarily, and except by force of law;" and he (Mr. Freshfield) knew in many cases that actions were brought it might be said almost "pro formâ" at the expense of two or three pounds, and after the writ was issued, as a creditable and safe mode of enforcing payment. This, it would be found, would diminish considerably the value of the class of cases which the Commissioners supposed went to prove, that, because there was no account of the proceedings after the writ was issued, that therefore the debt was paid. In many instances there was no great difference between the two proceedings by arrest, and by "serviceable writs," and he denied that this circumstance could be urged as an argument for the passing of the Bill before the House. It was said to be of great importance that they should give up the power of arrest, because it was thought that the class of creditors who attached great importance to the power of enforcing their claims by that mode, although they were continually deceived, yet were led on from case to case, and an uncertain state of credit prevailed in consequence. Now he was exceedingly glad to see the Chancellor of the Exchequer in his place, because there was no individual in that House to whom he would more readily refer this question of credit, at least he should attach much greater importance to his opinion than to any expressed by the Commissioners. He could not conceive a question in which it was a more difficult or dangerous subject for the

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Commissioners to enter upon, than this question of credit. He (Mr. Fresh-field) was not going (he was quite ignorant upon the subject) to decide where legitimate credit commenced, and where excessive credit ended. But he denied that there was any real consistency in the argument. It was by means of credit that many men were kept from the parish; and if the present Bill were to deprive them of that resource, it would be a consequence which he for one should greatly lament. It was because a poor man could in those parts of the year, when he only got 7s. a-week, get credit for a few little necessaries of life, that he preserved his independence. He could not live upon the 7s., but by means of credit he perhaps gets 3s. or 4s. a-week to be repaid by him when his salary was increased to 12 s. And in many instances the lower order of tradesmen had as much of those small debts on their books as counterbalanced the credit which they received from the larger class of traders; and they could not put a greater hardship on the poor man, than by taking away credit, which would be the result, if they abolished the power of arrest for those small sums. Let it be remembered that he (Mr. Freshfield) was as anxious as any gentleman could be to restrain the capricious power of arrest: but he objected strongly to giving up that power altogether without any adequate reason. He saw no necessity for it, though it was contended that by withdrawing that power you would put an end to the improvident extent of credit, which was the consequence of individuals knowing that they had the power of arrest. But he believed, that as no man would give credit because he knew he had the power of arrest, so that an improvident and needy person would still have the power of borrowing, they would be more inclined to take credit when they knew there was no power of arrest, and that all that could be done was to seize the property of the debtor, to replace the loss the creditor had sustained. He could not conceive anything so unjust as to make so great a change, either as regarded debts already contracted, or hereafter to be contracted. He could not believe there could be any thing so unjust as to say to the creditor—"the debt which you allowed to be contracted upon the faith of your existing rights shall now continue due under totally different circumstances; and you shall be deprived of
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the security which now you are possessed of." It was supposed that all this was founded on the Report of the Commissioners of Common Law. Now he would just take the liberty of giving to the House certain extracts from the recommendation of that Report, and contrasting them with the provisions of the Bill. There was in the Report no recommendation that the power of arrest should be entirely taken away. The Report again and again stated that if there was any likelihood that the person of the debtor would be withdrawn, that then it would be absurd that the creditor should be deprived of the power of securing the property of the debtor by means of his person: and they recommended as a security (and the only security) against capricious arrests, that you should secure the oath of the creditor, that he believed arrest was necessary to his security. In 1797, when the Act passed, intended to prohibit arrest when payment was made in Bank notes, it was provided that no individual should be held to bail without the oath of the creditor, that they were not tendered to him. But it went no farther. And the Report said, that in cases where it did not depend on the simple oath of the creditor, that even then it should be limited to the discretion of the Judge, whether the debtor should be held to bail. But what did the Bill say? In one Clause it was enacted that there should be no power of arrest unless the creditor should swear that it was necessary for his security, as the debtor was about to depart. If the Bill stopped there, he (Mr. Freshfield) would have had but little objection. But then another Clause provided, that if any arrest should take place, the debtor might bring his action against the creditor; and that it should be incumbent on the part of the creditor to prove that he had grounds for believing that the individual was about to "depart the realm of England and Wales." Thus, for the first time (as he believed) in British Legislation, the onus of proving at the very outset of an action in a transaction necessarily secret, and in the breast of the debtor, the onus of proving that he had reasonable ground for the belief that the debtor was about to depart—was thrown upon the creditor, and if he failed in doing that, he was to lie at the mercy of she debtor. How was it possible to imagine that in a secret communication to the creditor, through links which it might be im-

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possible for him to disclose—how was it possible for him to call legal witnesses to prove the transaction? Why it might have been derived through the wife of the debtor; and she, of course, would be inaccessible; her declaration would not be received on the part of the creditor; or it might be the wife of the creditor; she would be equally useless in a Court of Justice. And yet, notwithstanding this incapability of proving the transaction, according to the strict rules of legal evidence, the onus of proving the whole was thrown upon the creditor; and that was supposed to be carrying out the Report—severe enough in itself, but not so severe as to recommend the measures taken in the Bill which the Attorney-General had ventured to introduce. Now he called the attention of hon. Members to that, and he was sure they would not give their consent to the present Bill. He would now pass on to consider those substituted measures which were to be introduced into the Bill; and it appeared to him that it was difficult to see whether debtor or creditor would be most injured by them. When the action was commenced, and the writ was served, you had the right under this Bill to go before a Judge, and to ask that if security be not given within ten days, there should be a final judgment, unless the debtor show cause against it to the satisfaction of the Judge. The only thing required was the oath of the creditor; and when he had succeeded he might be driven to the necessity of filing the case on affidavit, having an inquiry of the most extensive nature to make. But suppose judgment was obtained, if within ten days the debtor pay not the amount, he was brought before the Commissioners, who proceeded to examine him, as in the case of a bankrupt, as to the existence, nature, and situation of his property, of which a memorandum was to be made by the Commissioner upon the back of his rule; and that memorandum was to act as a transfer of the property to the use of the creditor; and supposing there was a surplus over and above, the debtor then had no provision in the Bill for the arrangement of the sale, or for enforcing the due productiveness of the property. If the property was not sufficient, he must be brought up again, and the same process repeated; and in addition to those arbitrary proceedings, he was to be brought up in custody, as in the case of a bankrupt, if he did not attend
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to the summons. If there were two or more creditors, the first who applied to the Court was to have all the benefit of the process, and there was no possibility of a second creditor overtaking the first claimant, in order to his obtaining an equal distribution of the debtor's property for the common benefit of all the creditors. Now he (Mr. Freshfield) called the attention of the House to the Report, which particularly directed that no preferences should be made, and yet the Bill was calculated to secure the preference of the first creditor, and to prevent an equal and just distribution of the property of the debtor. If the measure proposed really corresponded with the recommendations of that Report, he should be more ready to concur with the Attorney-General; but he hoped the House would not enter into so hazardous a mode of legislation as this for the benefit of a particular class of individuals. If he had not addressed the House on this occasion, he should have considered that he had neglected his duty; and however much he might be disinclined to place himself in a situation which would gain for him so much odium as his opposition to the measure would naturally excite, he owed it to the country and to himself not to be deterred by any such consideration from performing what he considered his duty. He was precluded from moving that the Report be further considered this day six months; but he trusted the House would postpone the measure till next Session.
Mr. Haweshoped, that the Bill would be allowed to go into Committee. The Bill was a very important one—he said so as a man of business—and he was surprised that any opposition to it should spring from a professional quarter. If hon. Members were desirous of having a better opportunity of discussing the measure, that would be afforded to them on the bringing up of the Report.
Mr. Richardsasked for the indulgence of the House, while he stated his reasons for not allowing the Bill to pass into Committee: he felt great reluctance in doing so, because the Bill was a popular one; and he knew, that an individual who opposed it must make up his mind to incur great odium, both in the House, and out of it. On a former occasion, on the Select Committee, he (Mr. Richards) had the honour of moving, that witnesses should be examined upon the provisions

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of the Bill. That Motion was met by a statement from the hon. and learned Attorney-General, that, evidence had been taken. Now, he (Mr. Richards) submitted, that the hon. and learned Gentleman was in error upon that point; evidence had been taken before the Common Law Commissioners, as to the operation of the present law, but none upon the details of the measure; and it was in the details of the proposed measure, that he wished that evidence should be examined. The Commissioners themselves, in their Report, said, that they wished to avoid going into any recommendations on any of the distinct provisions of any Bill which might be founded on their Report. They said, they would not go into any technical details of the measure: now, it was on those technical details, that the whole difficulty rested—he submitted to the Attorney-General whether it was not so? whether men might not be quite agreed as to the principle, but might differ exceedingly as to the details of the proposed substituted measures. No evidence having been examined upon the provisions of the Bill, nor as to the way in which it would work—it was not respectful (he would say so with all due deference to the hon. and learned Attorney-General)—it was hardly respectful to the House, to thrust the measure upon them in that way. What was the state of the law now? the law, in reference to this subject, was, that a person might arrest upon process, and hold the debtor to bail, and might then seize the body of the debtor if the debt were not discharged. It was proposed by the Bill, that the power of arrest by any process or execution, should be abolished. And then the question came, "what could be done to protect the creditor in the new state of the law?" As the law now stood, he was ready to allow there was much to be remedied. He recollected the instance of the Due De Cadaval, related by the hon. and learned Attorney-General, on the occasion of his bringing in the Bill; and which wrought a great impression on all who heard it. He admitted, that that was an abuse of the very strongest nature; and if the Attorney-General had brought forward a measure to remedy such abuses, he, for one, would most readily have supported him; but, because instances of abuses arose in the present system of arrest for debt, was that any valid or good
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argument against the law itself? Look at the course of nature, which was founded on the most perfect wisdom: the elements in their combination, were often fatally injurious to individuals; but they knew well, that if it were not for storms and tempests, much mischief would often result; and who would say, that because shipwrecks occurred on the sea, and houses were blown down on the land, that, therefore, he could better conduct the economy of nature? So it was in a great measure with respect to the subject before the House; and more especially, with respect to the Due de Cadaval. It became the hon. and learned Attorney-General not to make out as many instances as he could to prove that the law was bad; but to show, that the present measure would answer the purpose better—and that he considered the learned Gentleman had failed entirely to do. There were a thousand instances in which the law as it now stood, induced debtors to pay their debts, and this with great advantage to the community. The law operated silently, and imperceptibly, but was not the less real for not being observed, while an instance of abuse was striking; it excited the public attention, demanded explanation, and gave rise to a multitude of complaints. Under the present state of the law, when a man was in difficulties, what did he do? Why, he exerted himself, used all his power, urged by the fear of imprisonment, to extricate himself from his difficulties—those exertions were frequently crowned with success. Now, if the fear of arrest worked in the way he had stated; if the silent operation of that fear produced consequences so advantageous to the public and to individuals, then he said, that the House should pause before it took away that salutary stimulus to exertion. But it being proposed to substitute for the present law the Bill before the House, he should have expected, that such an important measure would have come before them in a well-digested form; but on the contrary, he could not pass over the threshold of the Bill without finding words of the greatest negligence and carelessness. In the very preamble of the Bill, for instance, it was stated,—"a Bill for facilitating the Recovery of Debts,"—(it ought to be judgments;) "the Relief of Debtors willing to make cession of their property for the payment of their debts, the prevention of

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frauds" (it ought to be the punishment of frauds) "by debtors; and for abolishing imprisonment for debt, except in cases of fraud." The exception was altogether erroneous; for the imprisonment on conviction was not imprisonment for debt, but for misdemeanor. But he proceeded to consider the Bill itself. The 1st Clause of the Bill said, that if the plaintiff, in any action for any debt, shall, after suit commenced in any Court, shew, by affidavit, that the sum sought to be recovered in such action is due to him from the defendant, and on what account, and that demand before action brought was made upon the defendant for the payment of the sum so due, such plaintiff shall, after service of process on the defendant, be entitled to a rule of Court in which such suit is commenced, or order of a Judge of such Court, giving the defendant notice, that final judgment will be signed against him for the sums sworn to be due, unless such defendant shall, within ten days after the service of the rule or order, give security, to be approved by an officer of such Court, for the payment of the debt and costs, in case final judgment shall be given against him, or unless the defendant shall, within the said time, shew sufficient cause to the said Court or Judge of such Court, on oath, why final judgment should not be signed against him, and that such judgment shall be so signed, unless the said defendant shall either give such security or shew sufficient cause, and give such security as shall be approved of by the officer of the Court." Now, the question of "security" involved the whole of the case—there was to be the affidavit of the creditor too. Now, there was nobody, who had been in the Court of Chancery that did not loath the very name of an affidavit—the hon. and learned Attorney-General might jest at it if he pleased, but it was no jest to his clients. Well, the debtor must come before the Court. Now, as he could only come before the Court in term time, it followed that it must often be carried on before the Judge in chambers. So it would often be done in secret, before one Judge, on affidavit, and in chambers, where the public were excluded. And that was to be substituted for the Trial by Jury, handed down to them by their ancestors; and such sticklers for liberty as the hon. Member for Bridport, (Mr. Warburton) were not ashamed to stand up with the Attorney-
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General, and endeavour to bring in a Bill which abolished the Trial by Jury! Counsel would be heard, and as much expense would be incurred in this preliminary business as in the whole of the action. It would form a monstrous excrescence upon the action itself, and it was brought forward by the Attorney-General as a boon to his Majesty's subjects. He begged also to ask the Attorney-General, or any Gentleman acquainted with the subject, how, the Judge could get through this enormous additional mass of business, which was, of necessity to be cast on them by the Bill. Was there any thing so monstrous, as to propose to do way with imprisonment for debt, and substitute for it a provision, which, when it came to be considered, in limine, could not work at all? It was unjust, that the debtor should be compelled to find security for the debt and the costs, before the cause was tried. It would be impossible for the debtor to convince his friends that he would win the cause before it was tried, even though he were convinced of its justice, in his own mind; and if he could not do that, how could he be expected to get his friends to give security for the debt and the costs of the action before it began? The Bill proceeded on the assumption, that Commissioners would be able to obtain from the debtor a full discovery, on examination, of all his property. Now that discovery, even in the Bankrupt Court, or the Court of Chancery, was often very delusive and difficult to be ascertained. And there was not a single clause in the Bill, which enabled the Commissioners to give the creditor any expenses. And how was it to be supposed, that a creditor could go to a great expense at his own risk, for compelling a full discovery? That was a defect in the Bill. Again look at the mode of examination, supposing the creditor were so chivalrous as to go to the expense of 20 l., 30 l. or 40 l. for enforcing discovery, what provision was then made for obtaining such a discovery? It was a perfect illusion—the Clause shewed either great want of thought, or incredible ignorance of human nature—was it to be supposed, that a man deeply interested in the security of some valuable property, would reveal it on a simple viva voce examination—by mere interrogation? It was the most absurd proposition ever heard of. It was impossible that the

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Commissioner, with all his powers of examination, could ever discover the property—and the creditor would go defrauded of his just debt by a Bill, that was expected to be passed by acclamation. The Bill, as it appeared to him, would offer a premium to fraud; it would injure industry; it would render men improvident and careless for the future, when, j by a sort of legerdemain, assisted by the Bill of the Attorney-General, they could get rid of their just claims. The effect of the Bill would be also to make it necessary that a much larger profit should be required, in order to cover the risk incurred by abolishing imprisonment for debt. In every state of Europe, except Portugal, a process of arrest was allowed; and out of twenty-four foreign jurists, eighteen were decidedly for retaining it. He would say, with great respect to the hon. the Attorney-General, "shall fools rush in where angels fear to tread?" He meant no offence; but, on subjects of commercial credit, the hon. and learned Member was not so well informed as he (Mr. Richards) would wish; and though actuated by the best of motives, as the Knight of La Mancha was, yet, like him, he would be unable to accomplish his good and Quixotic designs, and without producing any really good effects, would impose upon a great class of persons a serious and an incalculable evil. The hon. Member, after stating, that out of sixty-six petitions he had presented, fifty-three were against the Bill, expressed his intention to vote against going into Committee on it.
The Attorney-Generaldid not think it at all necessary to go into any arguments relative to the principle of the Bill, and the more especially as he entertained not the slightest hope that any thing he could urge would have the effect of convincing either the hon. Member for Penryn or the hon. Member for Knaresborough, that this was not a bad Bill. Nothing that he had heard advanced against the measure had in the least altered his opinion respecting the utility of it, and, therefore, he would suggest that the better course to pursue would be to allow the Bill to go into Committee now, upon the understanding that those who objected either to the whole or any part of it, should be afforded an opportunity of bringing forward their objections on the bringing up of the report, or when the Bill came to a third reading.
Sir William Folletthad, in common with many other hon. Gentlemen, understood that this Bill was not to come on that night, and this understanding was, he believed, the reason the House was so thinly attended. He knew that many hon. Gentlemen not belonging to the profession of which he had the honour to be a member, but connected with trade and commerce, were anxious to speak upon the subject, and he thought that it would be only fair to afford them an opportunity of expressing the opinions which they entertained with regard to this measure. The House should recollect that this was a Bill of very great importance, and that it not only went to abolish imprisonment, for debt, but would materially alter the whole of the law in reference to debtor and creditor. The whole trading and commercial interests of this country would be more affected by this measure than by any that had come before Parliament for many years past, and, therefore he must submit that it was anything but just to proceed with it in so thin a House, and when it was impossible that either the principle or the details which it involved could be discussed in a manner commensurate with the grave importance of the subject. It was not his intention to offer any observations on the principle of the Bill, but as it might be susceptible of great improvement in the Committee, even though the principle it went to establish might be agreed to, he would suggest whether, if his hon. Friend the Member for Penryn were to withdraw his amendment, his hon. and learned Friend the Attorney-General ought not to postpone the motion for going into Committee to some future day, either during the morning or evening sittings? His hon. and learned Friend should bear in mind that a great number of petitions had been presented to the House from all quarters against this Bill.
The Chancellor of the Exchequersaid he did hope his hon. and learned Friend would not accede to the proposition for postponement. Last evening it was expressly stated that the Bill would be brought forward this night; and to meet the convenience of the House, and to prevent mistake, it was put the very first of the Orders of the Day. If the Bill was postponed, what chance was there that it, could pass this Session? He did not think that, however long they postponed it, a

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subject like this was ever likely to be discussed in a much fuller House than the present. The Bill had been fully discussed before. Let them, then, proceed to the Committee to make the Bill as perfect as possible. Hereafter there would be opportunities of attending to any suggestions that honourable Members might make.
The House went into Committee.
On Clause 3 being proposed,
Mr. Richardsobjected that it would give the Commission vast political influence, and thought the House should view with considerable jealousy such an increase of power vested in the Crown.
Mr. Warburtonsaid a few words, which we could not catch; but he appeared to favour the Bill.
Mr. Freshfieldobjected to the Clause, as granting too much power to the Commissioners.
Sir John Campbelldefended the Clause, as one that dealt equal justice to the humble and exalted. By the present Clause every person against whom judgment was signed must resign his property, and that course would serve the creditor in the end, by making him more cautious in giving credit, while it relieved the debtor from the horrid consequences of being deprived of his bread by being kept in custody. If the debtor now practised a fraud he would be treated as a criminal.
Clause agreed to.
On the 4th Clause, Mr. Scarlett and Mr. Freshfield, on the ground that Commissioners or Trustees should not have the power of apportioning the amount of money to be paid to the creditors; said that such power would be abused, and lead eventually to the ruin of the debtor's fortune.
Sir William Follettthought the Clause would not lead to the benefits anticipated from it. There were many tradesmen who could not pay their bills when demanded. The present Bill gave them no time; for a party of creditors might assemble, and in ten days seize his property, his lands, goods, and every thing. If the Bill passed, no mercantile man would put his hand to a Bill, from the fear of being despoiled of his property at the caprice of his creditors, by having judgment marked against him in ten days. Many men might be solvent and yet not be able to pay their bills when immediately called for. The Bill would ruin trade, by allowing no time to the
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debtor. It placed the debtor in a worse position than he was in at present.
The Attorney-Generalsaid, the Clause had the full approbation of the most eminent commercial men; and their opinion was certainly of more avail than those of a mere professional man. When those opinions would be laid, as they would be, before the hon. Gentleman, he (the Attorney-General) was sure he would change his opinion. The object of the Bill was to procure a speedy recovery of debts, which could not be effected by the present Bill, and this was a great desideratum.
Mr. Hughes Hughessaid, the Bill was of so important a character that it should not be discussed in so thin a House. He would, therefore, move that the Chairman report progress.
The Committee divided on the Clause: Ayes 40; Noes 6:—Majority 34.
The remaining Clauses of the Bill were agreed to.
The House resumed.

Preamble
MINUTES.] Bill. Read a second time:—Stamp Duties Offices' Consolidation.
Petitions presented, By the Marquess of SALISBURY and the Earls of ABINGDON and HAREWOOD, from Oxford, Maidstone, Doncaster, and another Place,—against the Municipal Corporations' Bill.—By Lord BROUGHAM, from Bath, in favour of the whole of the above Bill; from the City of London, in favour of the Prisoners' Defence Bill; from Alverthorp-with-Thornes, against Dram-drinking, and against Allowing Beer to be drunk on the Premises.