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men then as any now in law and church | determination. And for this he gave the and state. The legislators who made the authority of Serjeant Hawkins, who says, act of Edward 3d, he said, gave that direc- that by law an intent to commit a felony tion, as they did not wish to leave to the is a felony itself, as a man shooting at anosubtlety of judges, or the simplicity of ther with intention to kill him: and he juries, so very material a point. In the put the question, whether, if there were present case, the bill followed the spirit, bravoes in this country, as there were in but not the letter of that of Edward 3d, as others, the House would hesitate to make well as those of Charles 2d, king William, their laying a plan to kill a man felony? and queen Anne; all of which did the same As to the word “ agree,” to which so thing that is done in this: so that the many objections had been made, Mr. House might consider themselves as not Burke answered with great force of arguacting worse than their ancestors. ment, that an agreement implied an inten

Here Mr. Burke read an act of queen tion of two people; it was, in fact, a con-, Anne, containing provisions similar to tract-not a nudum pactum, but such as those before the House. This he said, a man might recover on at law. As to he had read for the purpose of showing the argument of the right hon. gentleman that our ancestors had entered into an (Mr. Fox), from the statute of frauds and enumeration of the specific things that perjuries, that a sum above ten pounds constituted the offences, not as overt cannot be recovered under a verbal agreeacts, but as acts treasonable in themselves, ment, that right hon. gentleman, he said, following exactly that of king William, all was acquainted with the laws well enough of which went on the principle, that it was to know, that the criminal law punished not safe for the subject to have the con. an offence on a sum far below that on struction of overt acts left to the caprice which a civil action could be maintained ; of judges; and the last statute, namely, for instance, if a man put a twopenny that of queen Anne, was not only pros- stamp upon paper, it was felony. In pective, but retrospective; as it declared short, the smallest pecuniary frauds were those who had been abroad before it, and by the law highly criminal and for this returned without licence, traitors-and, plain reason, that if, in criminal cases, a prospective, as it declared those who trans- loose was given in small matters, it would ported, or went on board a ship with be impossible to know where the mischief intent to transport themselves to France, would end: so that from criminal and , guilty of high treason. So that this was civil law it was impossible to argue à mi., not the first attempt to make an intent nore ad majorum or vice versa. When gen-, high treason. That statute had an energy tlemen objected to the provisions of the : and a harshness in it far greater than the bill on the score of possible perjury, they present, although it was made in the very should reflect, that it was the condition session that the queen received an account of human law and human nature to be of the glorious victory of Blenheim, al- ruled by the oaths of men in trials for their though the Houses of Parliament were life and property, there being no other full of whigs, and although there was not means to be resorted to. That objection, a single division in the Commons on it, therefore, was at an end: so that the bill, from the 12th of January to the 8th of introduced no new matter, no anomaly. March, the time it was going through the whatsoever; and if it differed from the House. Nay, it was carried triumphantly statute of Anne in any thing, it was in through, though the Commons were as being infinitely more lenient. wise and virtuous then as at any time. The next matter for the consideration :

Here Mr. Burke quoted a sentence from of the House was, whether there were any : the Lex Julia Majestatis, in order to show new occasions that demanded this meathat all nations agreed in the principle, sure? And if there were, whether they: that he who aided the enemy was guilty came within the meaning of the words, of high treason. But gentlemen had aiding and comforting? For the laws, he asked, was a bare intent to commit an said, were bending to occasions while act sufficient ground for punishment? To they followed principles, as the rays of, this he would answer, Yes! the law pro- light acting under a general law are renounced it. Not, indeed, that intent fracted by a particular modification of which lay concealed in the bosom, but glass through which they would, under that which was conceived with a resolution the same laws, otherwise pass in a direct to execute it; not the cogitation, but the line. What was the particular occa-> sion that governed the present case ? of France, he observed, and with infinite France had endeavoured under the spe- regret observed, was left out. It was, cious pretext of an enlarged benevolence, indeed, he said, hiatus" valde deflendus : to sow the seeds of enmity among nations, but as it had been abandoned, he would and destroy all local attachments, calling make no farther remarks on it. them narrow and illiberal-thereby to dis- On the whole, conceiving, as he did, sever the people from their governors. that it was the duty of the House to conLet any one read the proceedings of that centrate and fortify the country-conceivmother of mischief, the Revolution So- ing that it was their duty to keep their ciety, and be convinced. In consequence subjects at home, and prevent an adulterof this, he said, the House was called ous communication with the French-and upon to give every fair advantage and conceiving that a man was as likely to be every parental advice to the country, a better husband for having two wives, as and preserve that moral relation, the de a better subject for having two countries struction of which was the great aim of -he would give the bill his most hearty its enemies.

concurrence. And when the House conAs to the injury commerce might be sidered that France could only be enabled supposed to receive, he would say a few to carry on war out of resources drawn words. England was a commercial na- from the bowels of Great Britain, it could tion—so was every other, as far as it not but approve of a measure which only could. But if, by commercial nation, it went to prevent Englishmen from fighting was implied that commerce was her ulti. against their own country, and making mate, her only end, he would deny it; contracts to its ruin. “Let us not,” said her commerce was a subservient instru- Mr. Burke, “ turn our every thing, the ment to her greater interests, her secu- love of our country, our honour, our virrity, her honour and her religion. If the tue, our religion, and our security, to commercial spirit tended to break those, traffic and estimate them by the scale of he insisted that it should be lowered. pecuniary or commercial reckoning. The Gentlemen had said, that if we refused to nation that goes to that calculation desupply the French, Holland would; and stroys itself.” elucidated their argument by an old ob- Here Mr. Burke drew an animated picservation, that if the devil was carrying a ture of a contractor dealing with the Dutchman to hell, he would contract with French, and put into his mouth the folhim to supply the coals. To this he could lowing expressions: “Should our soveonly say, that our supplying the French reign, impelled by parental feelings for would be exactly a parallel case, and full as his people, hazard his angust person, and despicable ; and he would answer for the take the field against you, behold, here is patriotic spirit of the British merchants, powder of the first quality, and here are that they would willingly dispense with bullets that shall do his business. I do the profits of that trade for the benefit of not cheat you; believe me, they are good. their country. As to the insuring of our Or should his children, stimulated by an enemy's ships, he objected to it, chiefly hereditary thirst for glory, take the field, on account of the moral effect it must have their avarice shall defeat their courage ; on the minds of the people. In a state those bullets and this bayonet shall go to of warfare, it must be the wish of every their hearts, and Great Britain and her good mind to disarm the enemy rather by commerce be the gainer.” He then turned despoiling than killing them, as well from to the subscription set or foot for a provimotives of humanity as personal interest. sion for the widows of men killed in battle, When, therefore, a prize was taken, and pronounced a warm eulogium on the suban English insurer was to pay the loss, scribers, and said, “ But then comes exclusive of the increased litigation, it Mr. Contractor, and telis them, if I don't either gave the captor the pain to deplore supply, you have no occasion to subthe loss of a fellow subject, or rendered scribe--and while they find charity, his him callous to the consideration and feel avarice finds objects for it.” Mr. Burke ings he should have on such an account, declared, that all he desired was, that and inspired an habitual delight in the England would be true to herself, and not plunder of his fellow citizens, and an in- carry on an adulterous intercourse with difference to the welfare of his country, the prostitute outcasts of mankind. perhaps worse. The clause for prevent- The question being put that the bill do ing British subjcts purchasing ia the funds pass, the House divided:




the peremptory mandates of law. If the Mr. Edward James Elliot insolvency, and even the honesty of the YEAS,

154 Mr. John Smyth

debtor were acknowledged, yet his friends

were looked to as a source of payment ; Noes, S Mr. Grey

153 and, to quote the words of a late respectMr. Whitbread

ablejudge, (earl Mansfield),“ The feelings So it was resolved in the affirmative. of the friend were often tortured to ad

minister to the resentment or interest of Debate in the Lords on the Insolvent Deb- the creditor.” His lordship then went tors Bill.] March 27. On the order of the into an examination of the law as it now day for the second reading of the bill for exists between debtor and creditor. In amending the law of imprisonment on the first stage of the business, the fundamesne process; for better regulating the mental principle of justice was violated; law and practice of bail ; , and for the re- and the very means which the social inlief of unfortunate, and the punishment stitution had adopted to carry that prinof Fraudulent Insolvent Debtors, ciple into effect were abandoned. What

Lord Rawdon said, that the bill was was the great object of the institution of grounded on the great principles of justice government, but to prevent individuals and humanity, and was equally calculated from being even the judges, far more the for the furtherance of both. It made no avengers of their own wrongs? Yet, by outrageous innovation on the laws of the the existing laws of the land, the creditor land. It respected established customs, was enabled to deprive the debtor of his and did not infringe them, but for the at- liberty, upon a simple swearing to the taining the sacred ends of justice. While debt. He well knew, that in some cases the bill, by its operation, relieved the in- this ex parte evidence was not a sufficient digent and unfortunate, it guarded, with ground of imprisonment; for, by the vigilant anxiety, the rights of the creditor, practice of the court of common pleas, the and was intent upon rendering justice to counter affidavit of the debtor was sufficithose to whom justice was due. It was a ent to enlarge him without bail. It was shield of protection to the wretched, and not so, however, in the court of King's a rod of chastisement to the fraudulent. bench. Whence this difference in the The very principle of the law of impri- practice of the two courts? The measures sonment he deemed a principle of rigour of justice should, like itself, be unvarying

Rigorous, because it ex and immutable ; nor could he see any acted from the dungeons of distress and reason why a prisoner, by a process from the cells of inactivity, to which it doomed the one court, should be compelled to the victims of its operation, a something give bail, while, when arrested by a pro. from those very persons, which, when free cess from another, he should be enlarged and undisturbed, and in the exercise of without giving it. The process, either all faculties, they could perform, and who in one case or the other, did an act of were rendered incapable of performing it injustice either to the debtor or to the from the very obstacles thrown in their creditor. By the law, as it now stood, way by those who exacted that perform- a debtor, when arrested, was frequently

was absurd, because it was dragged to gaol for want of sufficient bail, ineffectual to its avowed purpose; for it because the bail exacted was always was calculated to defeat, not to attain its double the debt sworn to.

Here was a object. If the creditor is guilty of a fraud, farther impediment to a debtor's procuring punish him as a fraudulent agent; if not bail. He had then no option but to ex. guilty of a fraud, do not punish insolvency pose himself to the mortification of a reas a crime, which should rather be com- fusal, or to lie in gaol, or to pay the debt, miserated as a misfortune. To punish which he felt to be unjust. The latter insolvency as criminal, and to doom fraud measure, however hard, the debtor freto the same punishment as mere insol- quently adopted, rather than expose his vency, is to confound all moral distinc- feelings to mortification, or his person tions. From the present system also, the to imprisonment. The society of the creditor was frequently induced to pursue Thatched-house Tavern, for the relief of a plan of rigour in order to procure, from insolvent debtors, was an institution the feelings of humanity and the effusions which did honour both to the age, and to of friendship, what he could neither ob- the members who composed it. Their tain from the stern dictates of justice, nor reports were founded on strict inquiries,


and on the most authentic documents. Lord Thurlow expressed great doubt of They had acted upon the grand combin- the policy of this clause. This subject ed principles of justice and benevolence; had been well considered in the reign of and what was the result of their inquiries: George the 1st, and the legislature at Why, that the far greater part of persons that time, after much deliberation, had arrested in this country during the course fixed the limit of arrests at 101. He did of the year, were arrested for debts under not see any reason to extend the limitation 201. and that of 2,000 now languishing in to 201. There were too many instances of the different gaols of the country, 1,300 those who refused to pay their just debts had wives, and 4000 children; beings until they were coerced, and if they were helpless and unprotected; exposed to proceeded against by a process that did calamity, which neither their guilt had in- not require bail, they would only abuse curred, nor could their feebleness avert; the delay of the law, by squandering their 150 of them, upon an average, were every property and defrauding their creditors of year doomed to linger in the dungeons of their just debts. It was of the utmost conconfinement, not because they had not sequence in a commercial country like paid their creditors the debts which were this, in which credit was absolutely nedue to them, and for which they had been cessary, and by which it had been raised originally arrested, but because they had to an unexampled degree of opulence, not money sufficient to pay the fees of that a reasonable prospect should be held office, which were necessary for their en- out to those who trusted, that they should largement. These men were, for the in due time obtain their money from those most part, either tradesmen, artificers, or to whom they gave credit. He was fully seamen; men engaged in the humble and persuaded that the check of imprisonment laborious, but honest and useful callings was necessary to restrain unprincipled adof life; who fought the battles of their venturers from incurring debts which they country in time of war, and who adminis- had not the intention nor the means of tered to its comforts in peace. The discharging, and therefore he doubted very persons confined, of this description, had much whether the present clause would only, it is true, between two and three not be highly injurious to the people of pounds to pay; but that sum, though in this country. considerable in their lordships opinion, was Lord Rowdon said, there might be some still great to those, who neither had the unprincipled men upon whom the caption sum itself, nor the means of obtaining it. might have a proper effect, but there was His lordship proceeded to explain the an infinitely greater number to whom it different clauses of the bill. They were was sure ruin. He was assured that not to prevent all arrests for less than 201. one action in five was settled in the first inwhich was merely a clause of the old law, stance upon the arrest. By the 12 Geo. Ist, as it subsisted previous to Geo. Ist. to frivolous and vexatious arrests were in remedy abuses to which lock-up houses some degree prevented, by restraining were subject; to prevent excessive bail them to sums not less than 10l.; and if from being required; and to enact that the state of the country, its increased the prisoner should not be hurried to gaol wealth, and the value of money in the prewhen in a state of sickness and insanity; sent day, were compared with those of and to publish in the Gazette, every month, that period, arrests under 201. now, would the names of persons convicted of fraudu appear to be as frivolous and vexatious as lent transactions. He quoted the position those under 101. at that time. of lord Bacon, that the end of all laws The Lord Chancellor said, that from the was, to produce happiness and security to knowledge which he had derived from the people; and in conclusion, submitted his situation in a court of law, as well as the bill to their lordships, with a full con- from the information of the officers of the viction that their decision would be the common pleas, he could assert that elevendecision of humanity and of justice. twelfths of the actions brought did not The bill was then read a second time. proceed to the length of the declaration

being delivered. He therefore recomMay 6. The house went into a com- mended that this clause should be postmittee on the bill. The first clause being poned, to be farther considered : whichi read, that no person shall be held to spe- lord Rawdon agreed to. cial bail where the cause of action shall not amount to 201. or upwards,

May 31. The bill having gone throus

the committee, the report was this day | also that the shortening, abridging, and brought up and agreed to. After counsel cutting off expense from proceedings on had been heard against the bill,

mesne process was another very attainable Earl Stanhope said, he approved of the object; and a proper regulation as to the great features of the bill, but as he meant treatment of debtors in gaol, he should to propose some amendments, he thought consider also as very important matter. the best way would be to recommit it. But he was for proceeding even as to

Lord Thurlow was of opinion, that un- these with great timidity, and only for a less imprisonnient for debt was unneces- short time by way of experiment. Though sary for the support of credit, it ought he approved of several regulations of the to exist ; if it was necessary for that bill, he did not feel that he could suffici. purpose, it ought to be a real imprison- ently digest them, so as to reconcile his ment, and they being allowed to be at mind to agree to them this session; and large within the rules, as was the present he would therefore propose that the bill, practice, was extremely improper. Impri- when gone through in the committee, sonment, for debt was either intended for should lie over till next session, and that coercing payment to the creditor, or as it should be referred to the judges, that the punishment of fraud ; and he could they might bring in a bill framed upon see no principle, either of justice or expe. their ideas. The noble lord would still be diency, for allowing a debtor, who might entitled to much credit, and they would appear to have acted fairly with respect receive great assistance from his labours to one or two debts, which alone were the and suggestions. subject of investigation, to procure a libe- Lord Rardon reprobated the proposiration and discharge from all his other tion of the learned lord and said, thai nodebts, as to which his conduct might have thing would be more disagreeable to him been very different. His lordship said, than to recommit the bill for the purpose that although he did not see any consistent he had mentioned, if there was no serious principle operating throughout the bill, in intention to go through with it, but only its present shape, which could meet his to allow it to sleep over till next session. mind

upon the subject, yet he did not say Their lordships might talk of putting off that it might not be so modelled as to be this bill to another session, as if it were to some a beneficial measure. In this view another week but to those whom it was he approved of the recommitment. meant to relieve, the delay was a serious

The Lord Chancellor said, he must op- matter indeed; to recommit it, for the pose the recommitment, unless it was in- purpose of putting it off for another session, tended, in the committee, to make a great was totally unbecoming the dignity of the and essential change in the bill. He had House, and he must complain loudly that formerly given his opinion, which he still this opposition had not been made sooner, retained, that the insolvent clauses were instead of giving that apparent counteunjust in principle and, impracticable in nance to the measure, which it had receive execution; they struck at the whole sys. ed in its progress. tem of the law of England with respect The question for the recommitment of to debtor and creditor-an attempt which, the bill was put and carried. A motion in his opinion, was highly dangerous, and was then made by lord Thurlow, that the which did not appear to be justified by any bill should be recommitted on that day necessity sufficiently urgent. But even in two months; to which lord Stanhope that system (as in many others which moved, as an amendment, to leave out the were generally good), he was ready to words “two months,” for the purpose of admit that there might be particular in- inserting "monday next." The House diconveniences and individual hardships, to vided on the question, that the words “two which perhaps some remedy might be safe. months” stand part of the motion. Conly applied. The security of the creditor, tents, 10; Not-contents, 5: Majority as connected with general credit, was the against the bill, 5. interest of the debtor no less than of the creditor; but every false expense, every Debate in the Lords on the Abolition of delay, every uncertainty in the recovery the Slave Trade.] April 11. The Earl of of debts, ought to be avoided. In his Abingdon rose and said :-Your lordships present view of the case, he was rather in- will not suppose that I am about to enter clined to the limiting arrests on mesne

into the wide and extensive field of arguprocess to sums above 201. He thought ment which the question for the Abolition

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