The Sun.
London, England, 1837-12-06 00:00:00

(Hear, hear)—and I hardly ever saw that proof succeed ;
it is so easy to make the Judge consider that the
party had probable cause. But then it may be said—and
that, no doubt, is also to be considered—that the person in
question exposes himself to the risk of a criminal proceed-
ing. If the debt was not owing, he might be indicted for
perjury. But what if he is a foreigner 2—for your law does
not confine the power of arrest to your own subjects, who
are always here, and liable to the control of your own law,
and to punishment by it. The foreigner as well as the native
has this right ; who, after having done his deed, accom-
plished his purpose, nay, profited by the success of his de-
sign, leaves this country, and you never hear of him again ;
and so the other party is as remedyless as he is scathless
before and after the transaction. These are the conse-
quences of this system—a system cruel and utterly unjust,
and to all principle utterly abhorrent—which is as incon-
sistent with the sound wisdom of legislation as it is with
the humanity of that law which I had hoped we were about
to come to a final decision upon, but into which I am
now afraid we are only about to commence a new and pro-
tracted inquiry. I entirely agree with many of the remarks
of my Noble and Learned Friend as to the defects of the pre-
sent measure. Some of them have been pointed out by
my Noble and Learned Friend who introduced the Bill. As
to all that my Noble and Learned Friend has said re-
lating to the dealing with trusts, and as to the right of
executing powers giveu to the courts, there can be but one
opinion. But Igo a step further, and I agree with my
Noble and Learned Friend opposite (Lord Lyndhurst) as to
the impropriety of extending that old, and I think impolitic
and unjust, at all events highly inexpedient provision of
the Bankrupt Law, but a remnant of a very ancient fashion
of legislation, derived from a very old and obsolete state of
society—l mean from the early time of Elizabeth and of
James I.—that part of the Bankrupt Law which relates to
orders and disposition. This Bill tends to extend that
provision to the case where a party is a trader, and so
within the provisions of the Bankrupt Law, but who is not a
bankrupt. lam against that ; I would rather see it in the
Bankrupt law itself, than extend it to cases to which it dees
not apply. Therefore I agree that this part of the Bill must
receive re-consideration, and I think material alteration. My
Lords, I heartily agree that the great question is now
not so much as to the details of the measure, as upon the
general principle, shall arrest for debt be allowed or not ?
I have repeatedly given my opinion on this subject ; I did so
several yerr3 ago when I brought the general question of the
state of the Law before the House of Commons, and which
ld to tv.e appointment of the Common Law Commission. The
ground upon which I always conceived that the law ought
to proceed is this, and it is the principle upon which I eon-
ce've, though not in all respects very satisfactorily, never-
theless substantially, this Bill proceeds, that debt should
never be treated as crime ; that whenever a man was only
in the position of owing money to another, in whatever wav,
but being unable to satisfy that just demand, he should only
be liable to have all his property, whether in possession, or to
which he had any right or claim, that could be converted into
money, or which was owing to him, taken for the benefit of
his creditor, and used in order to discharge that debt, hut that
his person ought to be free from imprisonment as long as
he had committed no offence. But, my Lords, I qualify
that proposition by this other, and which also is recognised by
the provisions of this Bill, that if the panty refuse to give
up any part of his property, that contumacy shall be, I do
not say punished by imprisonment, but visited with imprison-
ment for the purpose of putting an end to the contumacy,
and securing obedience to the enactments of the law, and the
orders of the Court.—( Hear.) And, in the next place,
where any offence has been committed, either at the time of
contracting the debt or subsequently to the contraction of it,
that that also might be visited by imprisonment. But, my
Lords, I am sorry to see—and I assure my Noble and Learned
Friend who introduced the Bill, that I speak this with very
sincere concern—but I am sorry to see that, among the altera-
tions about to be made in this useful, in my opinion just and
humane, and I am certain wholesome and salutary Act, there
is about to be made, besides the changes to which my Noble and
Learned Friend adverted, one other alteration which I most
deeply deplore—l mean that alteration which i 3 to draw the
line between the Members of the two Houses of Parliament,
and by which we arc invidiously and unjustly, and, in my
opinion, towards the rest of the community, little short of in-
sultingly, to say that with us the law shall not operate; that
alteration by which we are to plaee ourselves in the proud
pre-eminence of being law-makers, and, therefore, law-
breakers— of making alaw by which ee know that we retain
in our own hands the power to violate, and by which we
alone, of all our fellow- citizens, are to keep to ourselves that
power which was described both by my Noble and Learned
Friend who spoke first, and my Noble and Learned Friend
who spoke last, the power of not doing what every honest
man does, and what every man ought to do. Their observation
was, that the object of this Bill, of this compulsory enactment,
was to make every man do what every honest man already did
without compulsion. What an invidious position is it—and
that, too, by way of privilege, by way of exalting Parliament
and making it more likely to gain the affections and to command
the respect of the people—what an invidious position is it
in which this alteration is about to place you ! You, of all
men, arc not to do, or at least are not to be obliged to do,
what they who propound the alteration in the same breath tell
you the object of the Bill is to compel every one to
do—
namelly, nothing more than what every honest man already
does, and do not want any compulsion to force him to
do. My Lords, this appears to me ominous cf the fate
of the Bill ; I think I see its destruction in this most
inauspicious change about to be attempted to be made in
it. But what shill I say when I remind your Lordships
of the principle of this -Bill, to which I have already ad-
verted, and upon which it was originally founded, that prin-

ciple which I stated and contended for ten years ago in
another House, and which led to the appointment of the
Commission of which this Bill is the first most precious
fruit, namely, that a distinction is to be taken between crime
and misfortune, between contumacy and inability, between
that which is only unavoidable and therefore innocent—an ina-
bility to pay a debt and perform an engagement, ar.d that which
is fraudulent and, therefore, guilty, a criminal and shameful
refusal to do whet every honest man, what my Noble and
Learned Friend does of his own free-hill. That is the origin

of the measure ; that was the origin of the Commission ; tf;at
it was that made the Commissioners report in favour of this
measure ; that it was that induced them to draw up this mea-
sure, which measure is based upon that principle, and that
principle alone. If that be not the ground of this mea-
sure, it has not one inch of ground whereupon its foun-
dation can be said to rest. Well, then, how do you

follow up the principle—how do you apply it ? The prin-
ciple being that every man who commits a fraud, every man
who is guilty of a wrong, every man who conceals his
property, every man who fraudulently makes it away, every
man who fraudulently trailics to cheat his creditor—that all who
che it their creditors wilfully and knowingly shall be dealt with
not as uefoTtunate debtors, but as actual criminals. That
being the principle of the Bill, what is the line about to be
adopted by my Hon. and Learned Friend and ethers ? That
your Lordships, that the Peers of the realm, the Aristocracy
of England, the head and ornament of the State—they
whose honour is reckoned better than other men's oaths—
they who decide upon honour, while others judge upon
their oath—the) who, above all, are not only the Peers, the
aristocracy, the ornament and head of society—they, who
are not only the law-givers of the country—they, who are
making this law, as they say, to raise and aggrandise them-
selves, but, as I say, to debase and stigmatise themselves—
are also, as it happet,s, the judges of the land in the last re-
sort, civil and criminal, and in all such cases administer crimi-
nal justice with the highest, the most supreme, and the most
uncontrollable power—what is it that your Lordships, pos-
sessed of all these attributes, are to do to raise and aggran-
dise yourselves, and to recommend yourselves to the respect
and affection of your fellow• subjects ? 'Why, you are to adopt
a clause enabling you to do that which I will not repeat in
conjunction with your names—but enabling you to do that by
your honest creditors which, if other men were to do, you
would punish as cheats, knaves, rogues, and swindlers. Now,
let me see this clause propounded—let me have this alteration
of the Bill propounded—let me see it brought forward, and
I pledge myself to give every one of your Lordships an op-
portunity by your vote of redeeming yourselves, of saving
yourselves, of guarding and protecting yourselves against the
stigma about to be attached upon your names.—( Hear.)
Lord WYNFORD thought that the Bill as it at present
stood was hardly sufficient to effect the first object for which it
was intended, to make people pay their just debts. There-
fore, when this Bill went into Committee, if he had the honour
of being a Member of that Committee, ho should certainly
propose additional clauses to carry the intention of the Bill
into full effect. He (Lord Wynford) was the Judge who first
established the practice—he believed it had since been em-
bodied in an Act of Parliament—that instead of applying
for bail in any case, if the party paid the money into Court
he should be saved from further expense. That being the
case, the complaint of his Noble and Learned Friend upon
that head was entirely an imaginary one. He (Lord Wyn-
ford) differed entirely from his Noble and Learned Friend
upon the Woolsack as to the mode of carrying the princi-
ple of the Bill into executicn. Looking at the provisions
of the Bill as it at present stood, he must say that he could
not help regarding it as a most inefficient measure. It would
of course be vain for him (Lord Wynford) to attempt to op-
pose the second reading ; but the Bill appeared to him to be
so extremely defective that he should be very much surprised
if one of the clauses which it now contained were to be found
in the Bill after it came out of the Committee. He was de-
cidedly of opinion that arrest by mesne process ought to be
avoided in all cases, except where it wasproved to be absolutely
necessary. Arrest by mesne process, it was said, might be
safely allowed where the creditor said he believed that his
debtor was about to abscond. He thought that the Noble and
Learned Lord (Lord Brougham) opposite had said enough
to show that that was not the ,case ; and that the power of
summary arrest could only ibe properly exercised in cases
where it was proved, or where it was evident that the debtor
was acting fraudulently. In no case would he allow the
creditor, acting as he often did under the influence of passion,
to be his own judge. The Noble and Learned Lord then
entered into a discussion of many of the details of the Bill,
but from the low tone of voice in which he spoke, it was im-
possible to gather the purport of his observations in the gal-
lery. He concluded by entering a protest against the Bill
being hurried forward in a manner so hasty as to preclude
the possibillity of its being properly considered. He was
prepared with several amendmets, which he should feel it his
duty to move in the Committee.
Lord DENMAN could cite instances of the unjust opera-
tion of the arrest by mesne process. A member of a South
American Council being in this country, and having given
certain orders to a firm, was arrested for 50,0001., the debts
of the firm, on the pretence that he was one of the partners,
and he was lodged in prison. He afterwards brought an
action for false imprisonment, and recovered damages.
Could it be supposed that this occurred in a civilized