555 Chester Criminals' Execution. {COMMONS} Chester Criminals' Execution. 556

for which they were issued, would shortly expire, and the usual course was, before they expired, to enable the Government to issue fresh ones. It was in strict accordance with the regular practice pursued every year.

The vote was agreed to, as was another vote of 621,500l. for the discharge of Exchequer Bills issued for carrying on public works.

The House resumed, and the resolutions were reported.

CHESTER CRIMINALS' EXECUTION.] On the Motion of Mr. Jervis, the House resolved itself into a Committee, upon the Bill for providing for the Execution of Criminals in Chester.

On the first clause being read

execution of a criminal, the loss of life was hardly to be justified. He was not for extending, the punishment of deathbe was for abolishing it wherever it could be done with safety; and he thought it would tend greatly to lessen its effect if the infliction of it were to be left to a subordinate officer. There was something unseemly, also, in the gaoler of the criminal being his executioner. He was aware that in law, the Sheriff had the custody of the criminal's person; but it was not in fact under his charge, and the union of the two offices, which would be created by the Bill, would be most distressing to the feelings of the unhappy person to be executed. He proposed, therefore, that instead of saying that an act should be passed to remove doubts which had arisen as to the jurisdiction of the Sheriffs, the act should recite, that whereas the Sheriffs of the county of the city of Chester were by law liable and were used and accustomed to execute all criminals executed for offences committed in the county of the city of Chester, and whereas since the passing of the said act the said Sheriffs have executed such criminals, the said Sheriffs shall in future obey the order of the judge of assize, in the same manner as they before obeyed the order of the Court of Grand Session, with reference to such execution as aforesaid; and the sheriffs of the county shall in like manner be bound to obey the order of the judge of assize in respect to the execution of criminals convicted of capital offences committed within the county of Chester." He should be sorry to see the judges of assize deprived of the power of ordering, in a very large county, a person to be executed near the place where the crime for which he was to suffer was committed. His noble Friend the Chief Baron of the Exchequer to this day contended that the Sheriff of the city was liable to the duty which his (the Attorney General's) Amendment would declare belonged to him, and that duty had always been performed by him till somebody scanned the Act of Parliament with a curious legal eye, and discovered what was supposed to be a flaw in it. The hon. and learned Gentleman concluded by proposing his Amendment.

The Attorney-General rose to propose an Amendment. Whatever might be the legal interpretation put upon the Act, it was certainly not the intention of those who framed it, that the duty of executing criminals for offences committed within the city should devolve upon the Sheriff of the county. Matters had, however, come to such a pass, that the Grand Jury of the county of the town threw out all bills for capital offences which might give their Sheriff the trouble of superintending an execution, and the Grand Jury of the county did the same for their Sheriff. It was, however, a great question whether this duty ought, in consequence, to be thrown on an officer like the Constable of the Castle of Chester, of little or no station, and of little or no responsibility. Nobody before this Bill was brought in ever dreamt of those functions being committed to that officer; yet the preamble of the Bill stated, that doubts having arisen whether the Sheriff of the county of the city of Chester or the Sheriff of the county should perform the duty of executing criminals for offences committed within the city of Chester, the Constable of the castle of Chester should execute that office. Hon. Members would, he thought, agree with him that a goaler, a mere subordinate officer, receiving a small salary, and removable at the pleasure of the Crown, ought not to have the responsibility of carrying the last penalty of the law into execution, which required to be attended with every circumstance that could impart to it the character of solemnity. Unless a great impression were pro- by whom the Bill was introduced. His duced upon the mind of the public by the opinion was, that it would be better to

Sir John Campbell differed from his hon. and learned Friend opposite, as well as from the hon. and learned Gentleman abstain from legislating on the subject al- | same time, he was far from thinking that together, and to leave the question under the Constable of the Castle was the prodebate to be settled by a judicial tribunal. per person upon whom to devolve the The last trial had gone off on a technical point; but, no doubt, an opportunity would be afforded of having the point decided by a court of law. He should, therefore, move as an Amendment, that the Chairman do leave the Chair.

for leave to bring in a Bill "to Abolish | 5001. was part of a sum of 16,2001. which

Imprisonment for Debt, except in cases of the plaintiff claimed, and the action was to

fraud, and to amend the law of Debtor and Creditor." As the law at present stood in this country, power was given to any individual member of the community, over the liberty of another, who might, without the order of a judge, or the decree of any court, be deprived of his liberty, thrown into gaol, and subjected to the greatest, the most cruel extortion. This was a power not belonging to the ancient common law of the country, but which was introduced by statute long after the common law had existed, and which was not found in equal severity in France, or any other country on the continent. It was moreover a power, which, being lodged in the hands of all men indiscriminately, was in an especial degree liable to be abused. He would take the liberty of illustrating the nature and severity of the present law, by stating to the House a remarkable case which had recently come under his notice, and which was only a few days ago tried before the Lord Chief Justice of the King's Bench (Denman). In the course of the summer of last year, a foreigner of distinction, the Duke de Cadaval, arrived in this country, accompanied by his wife and family; after landing at Dover and proceeding to town, he took lodgings there. Shortly afterwards he received a letter from a person named Collins, which recounted great services done to the Duke, and intimating that his claims were considerable for these services. The Duke shortly afterwards received another letter demanding payment of the money alleged to be due, and threatening proceedings in case of non-compliance. The Duke was much alarmed, but not complying with the request, Collins swore an affidavit of the debt, stating it at 10,000l., went downto Falmouth, and, accompanied by a sheriff's officer, arrested the Duke, giving, or promising to give, the officer 50l. for making the caption. The Duke being much distressed at the prospect of a gaol and separation from his family, and being a stranger in the country, agreed, under the pressure of these fears, to give the plaintiff 500l. as present payment, which sum he obtained from the Portuguese Consul, and actually handed over in sovereigns in a bag to Collins, to be permitted to go out of custody; and the terms were drawn up in the shape of an agreement, by which it was stated that the

proceed in its usual course as to the remainder. Subsequently the Duke, finding the fraud that had been practised upon him, brought an action against Collins, and had the satisfaction of recovering the 500l. so fraudulently extorted from him. Was not that a state of the law which demanded the serious consideration of the House, with the view of adopting some change which should give greater protection to the public. He could state to the House from the returns which had been made of the money spent in connexion with the present law of arrest, and proceedings consequent thereon, that there was the enormous sum of 300,000l. annually expended by the respective parties debtor and creditor. These funds, which ought to be distributed among creditors, were idly spent among sheriffs' officers and their followers. He would state another consequence resulting from the present law; the cruel creditor who disregarded the feelings of his debtor had the priority, and had thus an advantage over an indulgent creditor who had a reluctance to resort to harsh proceedings. The harsh creditor swept away the whole of the debtor's property, and those who exercised feelings of kindness and indulgence had no remedy left them. The law, therefore, operated as a bounty on harshness and cruelty. The remedy he proposed for this was to abolish imprisonment, but to compel the debtor to abide by the judgment of the court, unless, indeed, it should appear that he was attempting an escape, when he should be compelled to give security. This would deprive the creditor of an opportunity of committing an injustice on his debtor without diminishing his remedy. When he thus proposed to deprive the creditors of their present remedy by imprisonment, he would on the other hand propose to give them greater facilities against the property of their debtor. By the present law there was this difficulty in the way of creditors. Suppose a creditor at Liverpool wished to proceed against a debtor who was about to go abroad, he must send up an affidavit of the debt to London, which must again be sent down to the country, by which lost time the debtor may have escaped by the sailing of the vessel. He would propose as a remedy for this, that on an affidavit being made of the debt and circumstances, a magistrate on the spot should have power to grant a warrant against the debtor, whom the creditor should keep in custody until he could give security. According to the present law, be the debt ever so small, the debtor could be immured in gaol, and his liberty and exertions abridged, instead of being allowed to exert himself for its payment. His person might be enclosed within the walls of a gaol, but such imprisonment did not enable the creditor to get at the property of his debtor. The miserable consequence of this was, that our gaols were filled, the debtor became acquainted with vice and misery, and his mind was contaminated by the prison associates, with whom he was compelled to mingle. He would give the creditor, therefore, power to reach the property of the debtor, but not to inflict the evil he had described. There was another evil in the present law of arrestit made no distinction between the honest and the fraudulent debtor. The unfortunate honest man who could not fulfil his engagements, was no better off than the man who could but would not pay. He should therefore propose that unless there was fraud, or the debtor refused to obey the judgment, or absconded, his person should not be molested; but if there were fraud, then the creditor should have the power to take the body of his debtor in custody. He was aware that creditors would not be willing to give up the advantage of arrest without an equivalent; by the present law a creditor only got indirectly at the property, but he would propose as an equivalent, speedy judgmentspeedy execution; and that all the property should be taken for the satisfaction of the creditor. His first objection to the present law was, that in the case of bonds, bills, promissory notes, and instruments to which any one might have solemnly set his hand, there was great delay in proceedings when the creditor might need immediate execution. Why after a bond was executed should the creditor be put to the expense of a trial? He would propose that after a certain number of days the creditor should have the power of having an execution against his debtor. An objection might be made as to those accounts which were running as unliquidated demands and not secured by any instrument;

were

bond. He next proposed that the creditor should be enabled to compel the debtor to surrender his property. By the present law a debtor might be taken and imprisoned, but he had the privilege of taking lodgings in the Rules without the prison, where he might live despite of his creditors, and waste his substance which ought to be applicable to the payment of his debts.And with respect to this there was this strange law, that if the debtor were possessed of property under 300l. he might be compelled to surrender it, but if above that sum, then he could not be made to surrender it; when, indeed, the very circumstance of the large sum rendered it more proper that the larger property should be made applicable to the payment of his debts. He would propose to give a power to the creditor to summon the debtor before a judge, and on cause shown, the debtor to be compelled to assign over a sufficient proportion of his property for the payment of his debts. By the law, as it at present stood, if a man were indebted to the amount of one hundred thousand pounds and became bankrupt, he could not be imprisoned unless fraud proved against him; but when a man owed only 40s. he could be immured in a gaol and there kept, when the larger debtor escaped with impunity! he did not see why this should continue. His next measure was, that all the property of a debtor, property of every description, should be made subject to the payment of his debts. At present, if a debtor were possessed of ever so much money, , it could not be taken by any proceeding. If a debtor possessed 10,000l. in Consols, or in bonds or bills, they being choses in action, could not be taken under an execution. If he possessed land, the creditor could only take one half, and, afterwards, another half of the remaining half, and so on; but he never could at once take the whole. Copyhold land was entirely protected from judgments, and he could see no earthly reason for the distinction. Thus, therefore, though a debtor might be possessed of large copyhold property, he could, if he thought proper, keep the whole from his creditors. He proposed that all funded property should be made subject to debts. Under the existing law, if a man possessed 10,000l. in the Three per Cents., he might

he should propose that the creditor bring go abroad, there receive his dividends, his action, and then, after verdict, have and leave his creditors unpaid. There instant execution, in like manner as in a was no law to prevent his doing so. {COMMONS} It was true, that a Court of Equity would | debtor when honest in his transactions; prevent the transfer of property in the but if a debtor should conduct himself funds by a fraudulent creditor, but the fraudulently, then he would act contrari

wise; and he thought it ought to be provided, that several things should, as against debtors, be declared misdemeanours, and be punished accordingly. He would have

might enjoy the full proceeds of his dividends with the most perfect impunity. He, therefore, proposed to make copyhold and funded property, and money, bonds, and bills, all liable to execution. He it declared a misdemeanour when a man would make' no distinction - he would absconded from his creditors; he would

make them all liable to the payment of debts. While thus looking to the interests of the creditor, he would not overlook those of the debtor. He would propose to allow him to make a cessio bonorum, without being driven within the walls of a prison. Suppose an unfortunate debtor was obliged to take the benefit of the Insolvent Act, though he be freed from arrest and imprisonment, yet all the property that he subsequently acquired was, by the present law, liable to the payment of his debts. He would propose that, if the property of the debtor were not sufficient to pay the whole of his creditors, he might, by a declaration of his insolvency, a surrender of his property, and an equal

have it made a misdemeanour when a man refused to disclose his property after judgment; he would have it a misdemeanour for a man fraudulently to convey his property, or to dispose of it amongst his friends; he would also have it declared a misdemeanour for a man to contract debts without a reasonable prospect of paying them. When two or three persons acted together in accomplishing some fraud, they could be punished for a conspiracy; but when there was only one person, who, though he might pretend to be in affluent circumstances, and obtain on that ground a large quantity of goods, and dispose of them, yet-however absurd it might appear, and however criminal his

distribution, be enabled to procure a cer- conduct-there was no punishment for

tificate of entire discharge, and be enabled to commence the world again unshackled by continued claims. Need he say the consequences of imprisonment were of the worst possible description? it was always pernicious to morals-a man never went into prison without being contaminated by the society he found there. The practice was productive also of this bad consequence, that the debtor, in the face of great expenses, was induced to collect monies and property of which he defrauded his creditors, for the purpose of maintaining himself in prison, and paying the expenses of his discharge. The returns made of the average amount of dividend paid upon the estates of all persons passing

such injustice. He would propose to make such persons liable to punishment. Although a great change would thus be made in the law, he was of opinion that a considerable majority of the public was against the continuance of the present system. When the subject was discussed in that House, so far back as the year 1780, when Mr. Burke took a part in the discussion, that distinguished individual afterwards expressed his regret that he did not advocate a more extensive change. The learned Commissioners who had sat upon the inquiry on this subject, agreed that a change must be made. What he meant to propose was, that the subject should after the Bill was brought in,

through the Insolvent Court, showed that be referred to a Committee up stairs,

those estates did not pay more than one farthing in the pound. And he felt quite sure, that if the debtor were, instead, declared insolvent, and his property promptly and equally distributed, the same debtor who paid under the present insolvent system one farthing in the pound, would pay a respectable dividend; and it might be allowed that, if the creditors were satisfied with the conduct of the debtor, they might give him a memorial or certificate of that satisfaction to enable him again to conduct himself in the world with credibility and success. So much for the

who would be more competent to go into the important details details th than he could at that moment; and he trusted that his hon. and learned Friend, the Attorney-General would allow his name to be added to those of the other gentlemen, who might sit upon the Committee; and, for his part, he would willingly give the Committee his best attention on the various details which would be there better discussed. He knew the public took a deep interest in the matter-he had received hundreds of letters from all partshe had received memorials without num