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was 21. 6s. and costs 61. 8s. William Stevens, whose ori. ginal debt was 4l. and costs 10l. 188. 10d. William Haynes, whose original debt was 1l. 19s. and costs 5l. 175. John Ayston, whose original debt was 21. 3s. 11d. and costs 141. 10s. being six times the original debt. William Wootfield, whose original debt was 14s. and costs 6l. 16s. 10d. being nine times the original debt; and Matthew Robinson, whose original debt was il. 198. and costs 3sl. being fifteen times the original debt. One instance shall be stated more particularly to show to what a ruinous account costs are raised on the merest trifles, and how little the original creditor is concerned in the imprisonment of the debtor in such cases. The society having been lately petitioned by one Gaskin, a leather-dresser twenty-one years of age, imprisoned for a very small debt in the gaol of the city of Worcester, on a writ of process out of the court of pleas in that city, wrote a letter, agreeably to the course of their proceeding, to the creditor, desiring to be informed “ of the manner in which the debt was contracted, whether in the common and ordinary course of business, or by specious pretences, and such other circumstances as might enable the society to judge of the petitioner's true character, and of his qualification to partake of the public bounty from this charity, and whether he had obtained the groats. The creditor's answer was as follows: "Worcester, March 6th, 1792.-Gentlemen, I should have answered yours before, but could not get at particulars of the defendant's
I some time since employed Mr. C. (an attorney) of this city, to recover the sum of five shillings for goods (second-hand clothes) sold to the defendant. On Mr. C.'s proceeding, defendant promised to pay a weekly sum until debt and costs were discharged. Defendant not performing his agreement, Mr. C. proceeded to judgment. I was paid my debt of five shillings, and a joint undertaking was entered into by defendant and one Vale, for the payment of five pounds, being the debt and costs, and that security taken in my name. Part of the sum was levied on Vale's effects, and the remaining sum of 31. 11s. 4d. is the debt due from the defendant. There are no groats
allowed in the city prison where the defendant is now confined.”
Your committee report this case in particular as representing a perfect picture of almost every evil which attends the common course of imprisonment for small debts.
The original debt is five shillings, the costs are as many pounds—the creditor receives payment of his original debt -the cause becomes that of the attorney, who proceeds in the name of the creditor, without apprizing him of what he is about--Another poor man is involved in the misfortune--all his effects are taken for part, and the original debtor for five shillings, a manufacturer in the full vigor of youth, against whom no charge of fraud is made, lies in prison for the balance.
And here it may be proper to state an account taken of the sums recovered upon verdicts in London and Middlesex in the court of common pleas from Easter term 1788 to Easter term 1790, and the costs upon these verdicts according to a computation made by an officer of the court. The sums recovered were £56,272. and the costs computed at £17,950.
The enormous disproportion of debt and costs in cases of small debts, appears from a dissection of this account. In actions where the highest sums recovered were 20l. the costs amounted to 9,2501. and the whole amount recovered was only 1,948l. And in actions above 501. where the sums recovered amounted to 52,2621. the costs were only 5, 2001.
This account has probably underrated the costs, for the estimate is only what they ought to be, and it is not likely that the actual account should be less.
Another account was also made up of actions in which there had been no trial but only a judgment on a writ of enquiry before the Sheriffs, and where the computation of expense may be made with a greater degree of certainty. This was taken from the books in the Sheriffs' office for eight years, ending in 1789, by Mr. Birchell the acting Under-sheriff, who was examined as a witness. The total number of actions was 7,415. The number of those where
the sum recovered did not exceed 15l. was 3,384. The amount of the sums recovered on those actions was 254, 3591. and the amount of costs 44,908l.
The number of actions, where the demand was for 1001. and upwards, was 901. The sums recovered amounted to 254,5591. and the costs only 10,8121.
18. Different Moralists have expressed their opinions upon this subject.
Dr. Johnson says
“ As I was passing lately under one of the gates of this city, I was struck with horror by a rueful cry which summoned me to remember the poor debtors. The wisdom and justice of English laws are, by Englishmen at least, loudly celebrated: but scarcely the most zealous admirers of our institutions can think that law wise, which, when men are capable of work, obliges them to beg; or just, which exposes the liberty of one to the passions of another.
“ The confinement, therefore, of any man in the sloth and darkness of a prison, is a loss to the nation, and no gain to the creditor. For of the multitudes who are pining in those cells of misery, a very small part is suspected of any fraudulent act by which they retain what belongs to others. The rest are imprisoned by the wantonness of pride, the malignity of revenge, or the acrimony of disappointed expectation.
“ If those, who thus rigorously exercise the right which the law has put into their power, be asked, why they continue to imprison those whom they know to be unable to pay them ? one will answer that his debtor once lived better than himself; another, that his wife looked above her neighbours, and his children went in silk clothes to the dancing-school; and another, that he pretended to be a joker and a wit. Some will reply that if they were in debt they should meet with the same treatment; some, that they owe no more than they can pay, and need therefore give no account of their actions. Some will confess their resolution, that their debtors shall rot in jail; and some will discover that they hope by cruelty to wring the their friends.
“The end of all civil regulations is to secure private happiness from private malignity ; to keep individuals from the power of one another, but this end is apparently neglected, when a man, irritated with loss, is allowed to be the judge of his own cause, and to assign the punishment of his own pain ; when the distinction between guilt and happiness, between casualty and design, is entrusted to eyes blind with interest, to understandings depraved by resentment.
“Since poverty is punished among us as a crime, it ought to be treated with the same lenity as other crimes; the offender ought not to languish at the will of him whom he has offended, but to be allowed some appeal to the justice of his country.”
Mr. Burke says
“The next fault is that the inflicting of that punishment is not on the opinion of an equal and public judge; but is referred to the arbitrary discretion of a private, nay interested and irritated individual. He, who formally is, and substantially ought to be, the judge, is in reality no more than ministerial, a mere executive instrument of a private man, who is at once judge and party. Every idea of judicial order is subverted by this procedure. If the insolvency be no crime, why is it punished with arbitrary imprisonment? If it be a crime, why is it delivered into private hands to pardon without discretion, or to punish without mercy or without discretion ? "
Dr. Paley says
“ The only question is, whether the punishment be properly placed in the hands of an exasperated creditor ; for which it may be said, that these frauds are so subtile and versatile, that nothing but a discretionary power can overtake them, and that no discretion is likely to be so well informed, so vigilant, or so active as that of the creditor.” 19. It
be true that there are some crimes for which society may have neglected to provide a proper punishment: and it is true that there are certain offences which it is beyond the
of any legislature to redress. Paulus Emilius being asked, why he would put away his wife for no visible reason ? “ This shoe,” said he, and held it out on his foot, is a neat shoe, a new shoe, and yet none of you know where it wrings me.”
20. Arbitrary imprisonment for family disputes is no part of the law of England; but when, at some future time, this salutary coercion is submitted to the consideration of the legislature, it may possibly be said, “ the only question is, whether the punishment be properly placed in the hands of an exasperated husband : for which, it may be said, that these offences are so subtile and so versatile, that nothing but a discretionary power can overtake them, and that no discretion is likely to be so much informed, so vigilant, or so active as that of the husband.”
21. Admitting it to be true that there are certain frauds so subtile and versatile as to be beyond the reach of public tribunals : is it not more expedient that such offences should be punished by private disapprobation, than that justice should be violated and revenge encouraged by permitting an injured party to assign the punishment for his own pain?
“ It must be remembered that all law is for some good, that may frequently be attained without the admixture of a worse inconvenience: and, therefore, many gross faults, as ingratitude and the like, which are too far within the soul to be cured by constraint of law, are left only to be wrought on by conscience and persuasion."