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Whatever deprives the creditor of his power of coercion, deprives him of his security; and as this must add greatly to the difficulty of obtaining credit, the poor, especially the lower sort of tradesmen, are the first who would suffer by such a regulation. As tradesmen must buy before they can sell, you would exclude from trade two-thirds of those who now carry it on, if none were enabled to enter into it without a capital sufficient for prompt payments. An advocate therefore for the interests of this important class of the community will deem it more eligible that one out of a thousand should be sent to gaol by his creditors, than that the nine hundred and ninety-nine should be straitened and embarrassed, and many of them lie idle, by the want of credit.
On the other hand Dr. Johnson says
“ The motive to credit is the hope of advantage. Commerce can never be at a stop while one man wants what another can supply ; and credit will never be denied, while it is likely to be repaid with profit. He that trusts one whom he designs to sue, is criminal by the act of trust; the cessation of such insidious traffic is to be desired, and no reason can be given why a change of the law should impair any other. We see nation trade with nation, where no payment can be compelled. Mutual convenience produces mutual confidence, and the merchants continue to satisfy the demands of each other, though they have nothing to dread but the loss of trade.”
Mr. Burke, in his speech at Bristol, says, “Credit has little or no concern in this cruelty. I speak in a commercial assembly. You know that credit is given, because capital must be employed; that men calculate the chances of insol. vency: and they either withhold the credit, or make the debtor pay the risk in the price. The counting-house has no alliance with the jail. Holland understands trade as well as we, and she has done much more than this obnoxious bill intended to do. There was not, when Mr. Howard visited Holland, more than one prisoner for debt in the great city of Rotterdam.”
12. The fourth reason which has been urged in favor of imprisonment for debt is, that the injury which a creditor
sustains is two-fold-it is the loss of his property and the wound to kind feeling :-the offence is often committed, not by an enemy, for then, peradventure, it could be borne, but by a companion, a familiar friend. We have been taught to forgive our enemies; but no moralist has ever ventured to teach us the forgiveness of our friends. Every creditor ought, therefore, it has been said, wilhout any considerationi. of these legal subtleties and refinements respecting breach of trust and fraud, to be permitted to punish his debtor, who ought to pay in his person when he cannot pay in his purse.
13. That a creditor ought not to have the permission to gratify his injured feeling, by the imprisonment of his debtor, is the opinion of many moralists and legislators. Dr. Paley, who is a friend to imprisonment for debt, says, “ As an act of satisfaction and revenge, it is always wrong in the motive, and often intemperate and undistinguishing in the exercise; to pursue with the extremity of legal rigor a sufferer whom the fraud or failure of others, his own want of capacity, or the disappointment and miscarriages to which all human affairs are subject, have reduce ed to ruin, merely because we are provoked by our loss, and seek to relieve the pain we feel by that which we inflict, is repugnant not only to humanity but to justice: for it is to pervert a provision of law, designed for a different and salutary purpose, to the gratification of private spleen and resentment.”
Dr. Johnson has said, there can be no reason why any debtor should be imprisoned, but that he may be compelled to payment, and a term should therefore be fixed, in which the creditor should exhibit his accusation of concealed property. If such property can be discovered, let it be given to the creditor; if the charge is not offered, or cannot be proved, let the prisoner be dismissed.
Mr. Burke, in his speech to the electors at Bristol, reasons upon the supposition that the creditor's revenge ought not to form any part of the motive for the sentence of imprisonment. He says, “by our law with relation to civil debts, every man is presumed solvent." A presumption, NO. X. : Pam. . VOL V.
in innumerable cases, directly against truth : therefore the debtor is ordered, on a supposition of ability and fraud, to be coerced his liberty until he makes payment. By this means, in all cases of civil insolvency, without a pardon from his creditor, he is to be imprisoned for life: and thus a miserable mistaken invention of artificial science operates to change a civil into a criminal judgment, and to scourge misfortunes or indiscretion with a punishment which the law does not inflict on the greatest crimes.
14. The different reasons which have been urged in favor of imprisonment for debt may, then, be exhibited as follows:
(1. To compel restitution of the 1. As a private satisfaction to property. the creditor.
2. To gratify his injured feel[ ing.
(1. For fraud. 2. As a public punishment of \;
:32. For the sake of public crethe debtor.
dit. 15. Imprisonment can be justified only to compel restitution, or as a punishment for fraud in obtaining possession of the property.
BY WHOM OUGHT A DEBTOR TO BE
IMPRISONED. 16. It is a general maxim, that no person should be a judge in his own cause; but from this maxim the law of England has, hitherto, departed with respect to imprisonment for debt.
17. The consequences of this deviation may be seen in a very interesting and affecting report by a Committee of the House of Commons appointed to inquire into the practice and effects of imprisonment for debt. From this report, published in the year 1792, I subjoin the following extracts : : 'Of the total numbers of prisoners stated to be in the
* Page 612,
different gaols, from which returns have been made, amounting to 1,957,–706 appear to be debtors in execution; of these 110 are in execution for debts under 201., 185 are in execution for debts from 201. to 501., 141 are in execution for debts from 501. to 1001., and 270 are in execution for debts of 100l. and upwards.
Of the 110 in execution for debts under 201. some have been in prison eight years, others nine years, and one ten years; one man is stated to have been in the Fleet prison since the year 1783, for 41. 10s.; another is returned as a prisoner in Newgate for 61. 128. ; a woman for 71. 19s. iid.; a man for 81. 78. id.; and a woman to the Marshalsea for 91. 6s. . Of the 185 in execution for debts from 201. to 501. some have been eight, others nine, and others ten years in prison : one man has been twenty-four years in prison for 351. . Of the 141 in execution for debts from 501. to 1001. some have been confined seven years, one nine years, and one ten years.
Of the 270 in execution for debts of 1001. and upwards, a considerable number have been in gaol nine years, some ten years, and others eleven years.
The Committee further reports, that some of the returns have stated the numbers of prisoners who have died in gaol since the year 1780: but, owing to the change of gaolers and the want of regularly kept gaol books (at least this is the reason assigned in many of the returns the amount received on that head is very deficient. The numbers returned to have died in prison since the year 1780 amount to 442.
The numbers who have died since the above period in prison for debts under 201. are one hundred and three : nine of whom had been two years; four had been three years; and one five years in gaol: a woman died in the County gaol of Devon, after being a prisoner forty-five years for 191.
The numbers who have died since the above period in prison for debts from 201. to 50l. are 137, sixteen of
whom had been two years, ten three years, and one eleven years in gaol.
The numbers who have died since the above period in prison for debts from 50l. to 1001. are 75: nine of whom had been two years, five three years, and one nine years in gaol.
Of the numbers who have died since the above period in prison for debts of 1001. and upwards, twenty-two had been two years, nine three years, two seven years, one ten years, and one fifteen years in gaol.
The greater part of the prisoners appear to be married ; and many of them have very large families; some five, others six, and others ten children. Of 570 prisoners in the King's Bench, about 340 have wives and children; and according to the returns, the total number of wives and children belonging to the persons then in prison, as far as the number could be ascertained with respect to those gaols from which returns have been received, was 1300 wives and 4088 children. The circumstances in which children, who are in gaol with their parents, live and are brought up, will appear in the sequel. - Much greater part of prisoners for small debts are of the description of manufacturers, laborers, and seamen.
Of the small debts for which persons of the fair and honest description, who are discharged and relieved by this society, have been detained in prison, it appears in general that law charges and costs make by far the greater part. The witness stated, that those charges raised the debt very often to double, frequently to treble, sometimes to six times, and sometimes to more than ten times the original amount. He supported this part of his evidence by stating the fol. lowing instances : -The society after the usual inquiries respecting character, &c. discharged froin prison or obtained the groats for the following persons: viz. William Taylor, whose original debt was 61. 6s. and costs 121. 45. John Mackay, whose original debt was 261. and costs 30l. William Coverley, whose original debt was 121. and costs 281. Andrew Chisholm, whose original debt was a guinea, and costs 4l. 9s. 10d. Thomas Smith, whose original debt