THE ANCIENTS AND THE DEBTOR
I find this question of the debtor, and our modern method of imprisoning the poorer variety of the genus, in the forefront of any consideration of the problem of the law and the poor, because to my mind it is a clear and classic instance of the way in which it comes about that the law with us is a respecter of persons.
The physiological tutor will take his pupils into the laboratory and cut up a rabbit to show them where their livers ought to be, the microscopist will choose a newt to exhibit to you the circulation of the blood, and in like manner, for my purposes, the debtor seems to me to possess all the necessary legal incidents in him through which one can give an excellent object lesson on the law and the poor. There is no legal mystery about a debtor; he is a common object of our legal seashore, as ancient oflineage as the periwinkle and sometimes almost as difficult to get at. Everyone has in his life at some time or other been a debtor, though not all of us have attained to the dignity of a co-respondent, a mortgagor, a garnishee, a bankrupt or acestui que trust.
It seems to me that to demonstrate to the man in the street the unfairness of our law of imprisonment for debt is such a feasible proposition, that I have come to regard the subject as very fitting for the citizen’s kindergarten education on legal reform. Once understand the history, and the causes of the continued existence, of imprisonment for debt, and its evil effect on right action, conduct and social life, and you will find it easier to diagnose the more obscure legal diseases which are partially the outcome and partially the cause of much real distress among the poor. Carlyle tells us to “examine history for it is philosophy teaching by experience,” and, if we take his advice in this matter of imprisonment for debt, we shall, I think, be bound to admit that what is going on among us day by day in the County Courts of this country is in historical fact a relic of a very ancient barbarism.
It is the more extraordinary to me that this relic should still be venerated, since history also makes it clear that teachers, prophets and law-givers of all ages have testified to their sense of the cruelty and injustice of the law which thrusts a man into prison because he does not pay his neighbour what he owes him. I propose, therefore, before I set down exactly what we are doing to-day, to trace the pedigreeof our present system of dealing with debtors and show you historically and cinematographically, as it were, how the world has treated its debtors in the past and what the saner men of different ages thought about it at the time. In this way the man in the street of to-day will have the material for forming a sound judgment on the question of what we should do with the poor debtor.
And to begin with the Old Testament. Let us remember with gratitude the remarkable action of Elisha in the matter. Elisha went the length of performing a miracle to pay the bailiffs out. There are many poor widows in the mean streets of our own cities looking down the road for the Elisha of to-day who cometh not. Miracles do not happen nowadays; people don’t do such things. Still it is interesting to know that there was imprisonment for debt in Elisha’s day, just as there is now—for the poor and only for the poor—and it is encouraging to know what Elisha thought about it.
What happened was this:—
The County Court bailiffs of the County Court of Israel, holden at Samaria, went with a body-warrant to seize the two sons of a poor widow on behalf of a creditor of her late husband, just as they might do to-day.
Fortunately, the deceased had been a servant that did fear the Lord, and Elisha, hearing of the trouble, went down to the house, and in that simple, kindly way that the dear old prophets had of putting little troubles straight for members of their congregations and also no doubt to show the contempt hehad for the proceedings of the County Court of Samaria, sent the widow out to borrow empty vessels of her neighbours. These he miraculously filled with oil of the best, and the only pity of it was that there were no more vessels to fill, for Elisha was in form that morning, and was sorry to stop. When it was over he said to the widow: “Go sell the oil and pay thy debt and live thou and thy children of the rest.”
I am very fond of that story. I like to believe it really happened. I wish it could happen to-day, for there are many poor women in much the same straits as that poor widow. I have never heard the text referred to in churches and chapels, and I am not surprised. A minister who preached about it would have to explain that he could not do miracles of that kind himself, and if he were to do the next best thing and preach about the iniquity of imprisonment for debt straight from the shoulder—as I am sure Elisha would have done—the respectable credit draper, the pious grocer, and all the noble army of tally-men would get up in their pews and walk out of his church or chapel in disgust.
The days of miracles are past, but if it was worth while for a holy man like Elisha to show what he thought about imprisonment for debt, by means of a miracle, surely, after all these ages, we might have improved that particular piece of barbarism off the face of the earth.
But no. The poor are worse off now than they were then. The bailiffs come for their bodies onbehalf of their creditors still. And they look down the road in vain. There is no Elisha.
And when you come to the New Testament the matter is laid down even more clearly. Matthew vi. 12 has the actual words of Our Lord’s Prayer to be, “And forgive us our debts as we also have forgiven our debtors.” If the forgiveness of our debtors is a condition precedent to our own forgiveness, most of us are in a parlous state. But is it too much in this Christian country of ours to suggest that, even if the highest ideals of the Master are beyond our attainment, we need not insult our belief by continuing a barbaric pagan system of cruelty which has been singled out for special disapprobation by the Word that we cannot shut our ears to?
You remember the parable of the king that took account of his servants which Matthew sets out in his eighteenth chapter. How a servant owed the king ten thousand talents and, as he had not wherewith to pay, his lord commanded him to be sold, and his wife and children, and all that he had, and payment to be made. Note that in those days the wife and children were actually sold into slavery. We do not do that: we remove the bread-winner, only, to gaol and care for his wife and children in the workhouse. It is encouraging to find this much reform after nineteen Christian centuries.
The servant, you will recollect, pleaded with the king, saying, “Have patience with me, and I will pay thee all.” Debtors have not altered much since that date, and the text has a familiar ring in the ears of a County Court judge. The lord of thatservant, being moved by compassion, released him and forgave him the debt. This is important to remember, for the servant being forgiven his debt was without excuse for his subsequent contemptible conduct. And, indeed, I have often found that men who have been most leniently treated in their own failures by those in a better position, are themselves most greedy in extorting the uttermost farthing from their smaller victims. Speaking generally, it is not the most desirable class of trader that makes use of the debt-collecting system of the County Court.
The servant of the parable was the meanest of curs. He “went out, and found one of his fellow-servants, which owed him a hundred pence: and he laid hold on him, and took him by the throat, saying, Pay what thou owest.” Here, again, we may flatter ourselves on our superior procedure. If this had happened in Lambeth, the servant would not have been allowed to go for his fellow servant with such jubilant audacity. Nowadays everything would be done in legal decency and order. The debt being for a hundred pence, and, therefore, being within the jurisdiction of the County Court, a summons would have to be issued, fees would have to be paid to the Treasury and the Court officials, and a lot of money spent and added to the debt before imprisonment followed. Still the rough-and-ready methods of the earlier centuries were certainly cheaper, and the result was much the same. For we read that, though the fellow-servant pleaded in the same formula, “Have patience with me, and I will pay thee,” the creditor of the hundred pence stoodfirm for his rights and cast his fellow servant into prison till he should pay his due.
And if this had been a repertory drama and not a parable, the curtain had fallen on that scene and one would have come away depressed with the abjectness of human nature and with a cold feeling that the world was a drab uncomfortable place. But the ancient dramatic stories always have a happy ending. There is more of the spirit of the old Adelphi than of the Gaiety Theatre, Manchester, about the parables. The lord hears of his servant’s scurvy behaviour and, to the delight of all sane men of child-like and simple faith, the wicked servant is delivered to the tormentors till he shall pay all that was due.
I confess that my legal mind has been haunted with the thought that, the lord having forgiven the servant his debt, it was rather a strong order for him to go back on that forgiveness. Doubtless there was no consideration for the forgiveness, it wasnudum pactum, or there may have been an implied contract that the servant should do unto others as he had been done by, but I rather expect the lord and his advisers only considered the justice of their act rather than its technical legal accuracy. But one thing we can rejoice in. There is the dramatic story, and no one can construe it into approval of any form of imprisonment for debt.
I know that many who do not regard the Bible as an authority will not be troubled about this testimony; probably many more who do read the Scriptures for guidance will be pained that anyoneshould make use of holy words to upset a system that they find so useful in the commercial weekdays of life. Moreover, some will shake their heads and remind me that “the devil can cite Scripture for his purpose.” That is true enough. But it will be a very clever devil who can cite any Scripture in support of section 5 of the Debtors Act, 1869.
And I will pass away from scriptural precedents to others which, though to me they possess a less compelling sanction, will perhaps have more weight with men of the world. In the history of ancient Greece the debtor played an important part. Let me remind you what the Archon did.
The particular Archon I refer to is Solon.
Solon knew all about imprisonment for debt, and his evidence on the subject is most convincing. It is well to remember, too, that Solon was a business man—I have this from Grote, who got it, I fancy, from Plutarch. Exekestides, Solon’s father, a gentleman of the purest heroic blood, “diminished his substance by prodigality,” and young Solon had to go into business; in modern phrase, he “went on the road,” and saw a lot of the world in Greece and Asia. I mention this because I am always told that if I knew anything of business I should understand the necessity of imprisonment for debt. Solon was emphatically a business man. Solon was also a poet, which perhaps was his best asset as a social reformer, but he was no sentimentalist if, as some say, when he was a general attacking a rebellious city he ordered the wells to be poisoned to put an end to the strife.
When Solon in a time of grand social upheaval was made Archon, he found the poorer population, including particularly the cultivating tenants, weighed down by debts and driven in large numbers out of freedom and into slavery. Let me set down the condition of things in the careful words of Grote lest I appear to exaggerate.
“All the calamitous effects were here seen of the old harsh law of debtor and creditor—once prevalent in Greece, Italy, Asia, and a large portion of the world—combined with the recognition of slavery as a legitimate status, and of the right of one man to sell himself as well as that of another man to buy him. Every debtor unable to fulfil his contract was liable to be adjudged as the slave of his creditor, until he could find means either of paying it or working it out; and not only he himself, but his minor sons and unmarried daughters and sisters also, whom the law gave him the power of selling.The poor man thus borrowed upon the security of his body(to translate literally the Greek phrase) and upon that of the persons in his family.”
The words I have italicised are interesting as exactly defining the principle of all imprisonment for debt. A wage earner to-day who runs up bills with tally-men and grocers obtains credit upon the security of his body.
I have heard from the wife of a poor debtor an apt but unconscious translation of the Latin maxim,Si non habet in aere luat in corpore. Her allegation was that a tally-man had said to her husband, “If I canna ’ave yer brass I’ll tek yer body.” In the northcountry, among the more old-fashioned bailiffs and their victims, warrants of arrest are commonly known as “body warrants.” No doubt the imprisonment of to-day is different in degree from the slavery of debtors in Greece five hundred years before Christ, but it is absolutely the same in principle, founded on the same idea, and worthy to be maintained or abolished by the citizens of this State for the same reasons that were found good by the citizens of Athens.
Thus it is that it is worth while finding out what Solon thought about it. I wish Solon’s tract, “What the Archon Saw,” had come down to us, and we could have quoted actual instances of the wickedness of imprisonment for debt in his day, but at least we know what he thought of it, and, what is really important to us, what he did. Solon had a pretty wit in titles. He called his billSeisachtheia, or the shaking off of burdens. The relief which it afforded was complete and immediate. It cancelled at once all those contracts in which the debtor had borrowed on the security of his person or his land; it forbade all future loans or contracts in which the person of the debtor was pledged as security; it deprived the creditor in future of all powerto imprisonor enslave or extort work from his debtor, and confined him to an effective judgment at law, authorising the seizure of the property of the latter.
This was indeed a shaking off of burdens. For here we find, not only was imprisonment for debt abolished lock, stock and barrel, but a law enacted protecting the land of the cultivator from beingseized for debt. This is akin to what in some of our colonies is called a homestead law, and I have always contended that in the interests of the State the few sticks of furniture which a poor man and his wife and children always call “the home” should be protected from arrest for debt, just as the bread-winner’s body should be exempt from imprisonment. I could have got along with Solon.
And when one is told the old tale that continues to be put forward by those who wish to retain imprisonment for debt—that the workman will starve for want of necessary credit and that trade will stagnate owing to timid creditors refusing to trade—let us remember with pleasure that that was not what the Archon saw as a result of his beneficial measures. On the contrary, the testimony is overwhelming that there grew up a higher and increasing respect for the sanctity of contracts. The system of credit-giving, and especially of moneylending, assumed a more beneficial character, and “the old noxious contracts, mere snares for the liberty of a poor free man and his children”—the flat-traps of to-day—disappeared. What happened was what will happen here when we abolish this degrading system of giving credit on the sanction of body warrants. What happened in Athens was that, although there were some fraudulent debtors, the public sentiment became strongly in favour of honesty, and it is agreed that the prophecies of Solon’s failure were not made good, and “that a loan of money at Athens was quite as secure as it ever was at any time or place of the ancient world.” Furthermore,it is acknowledged by the better authorities that what I expect and believe will happen in the mean streets of England when imprisonment for debt is abolished, actually did happen in Athens, and, to use Grote’s words, “the prohibition of all contracts on the security of the body was itself sufficient to produce a vast improvement in the character and conditions of the poorer population.”
Of course, I am not putting forward “What the Archon Did” as an example to the Archons who Didn’t of to-day. The theory of evolution teaches us that in two thousand years the Solon type must have improved, and that the Solon that we see in the latter-day armchair of State must be a far, far better thing than anything that obtained in Ancient Greece. Possibly, the world having no use at all for Solons, the type is extinct. Be that as it may, I am more than ever puzzled since I have studied the records of What the Archon Did. If the world had got so far in the question of imprisonment for debt five hundred years before Christ, why are we where we are now nineteen hundred years since the Master set before us the true doctrine of forgiveness of debts?
The Roman laws against the debtor upon which we have ultimately modelled our own were equally harsh and would nearly satisfy the moneylender or tally-man of any age. Upon notice, a debtor had thirty days in which to discharge his debt. If he did not do so his creditor carried him off in chains. Note, however, that he was not a slave, but his creditor had to keep him in chains for another sixty days, during which time he had to bring the debtor out onthree successive market days to give his friends an opportunity of paying up and releasing him. The creditor had also to provide the debtor with a pound of bread a day. In these socialist days we take that burden off the creditor’s shoulder and a generous State feeds the imprisoned debtor at the cost of the community. On the third market day, if the debtor’s friends were still backward in coming forward, the debtor was killed and thrown into the Tiber, or his body was divided among his creditors, which was the only dividend they received. If there was any market for him he was sold into slavery. It seems that in the very early days of Ancient Rome each creditor had a right to carve his pound of flesh from off the debtor. Portia’s point against Shylock:
... nor cut thou less, nor more,But just a pound of flesh:...
was foreseen and provided for in the drafting of the Twelve Tables. It is enacted in the Third Table: “After the third market day the creditors may cut their several portions of his body: and any one that cuts more or less than his just share shall be guiltless.” Unless, therefore, the laws of Venice amended or repealed the Twelve Tables, Shylock’s case seems to have been wrongly decided. What is at least curious is that the ancient idea of debtor and creditor law embodied in those ancient statutes should be the foundation of one of the most popular plays in the English language.
Some good people have found a difficulty in understanding Shylock’s outlook on life and cannot comprehend why a creditor should enjoy killing adebtor. But, after all, it is equally strange why a creditor should take pleasure in imprisoning a debtor. Yet to-day thousands of debtors go to prison because they have not means to pay their creditors. The difference between killing and imprisoning a debtor is a difference in degree only. The principle is the same. The object of the creditor is, perhaps, in the first place, to get repaid his debt; when he finds this is impossible the death or imprisonment of the debtor merely satisfies his desire for revenge. The ancient Romans were, in one way, a more practical people than ourselves, for they threw the costs of this revenge direct upon the creditor, whereas we throw it upon the taxpayer. If this particular impost were made upon me in any direct manner it would almost persuade me to be a passive resister.
I am glad, however, to remind you that in historical times at all events the Romans did not carry out the law of the Twelve Tables to its uttermost cruelty. The popular way of dealing with a debtor seems to have been to sell him into slavery and then to credit him in your ledger with the price he fetched—less the out of pockets—much as we do to-day when we issue execution against chattels. In later years the slavery of debtors was abolished and imprisonment much like our own was substituted, but the Romans never had a lawgiver as wise and powerful as Solon to get rid of imprisonment for debt altogether. And the Roman imprisonment for debt in some shape or other runs through the social systems of the Middle Ages, being harsh in one placeand less cruel in another, and mitigated at one date and aggravated at another. Always we find a feeling among the more thoughtful of mankind that it is in itself a harsh and cruel system and a desire among at least a few to help the victims of it in their distress.
Fynes Moryson, who was in Rome in 1594, tells us of a practice which then prevailed in the Pope’s State which might be introduced into Protestant England to-day in a lively belief that it would be in accordance with the tenets of the Christian faith and a certain hope that it would relieve many a poor wretch in misery and despair. “If,” he writes, “a man be cast into prison for debt, the judges after the manner visiting frequently those prisons, finding him to be poor, will impose upon the creditor a mitigation of the debt, or time of forbearance, as they judge the equity of the case to require, or if by good witnesses they find the party so poor as really he hath not wherewith to pay his debt they will accept a release or assignment of his goods to the creditor and whether he consent or no will free the debtor’s body out of prison.”
At all periods of time we find the same uneasiness in the minds of rulers and governors about keeping a poor man in prison for debt when he cannot pay. The governors of English gaols will tell you that 90 per cent. of the debtors lying in prison to-day for civil debt, rates, maintenance or bastardy orders and small fines are too poor to pay. Yet here in England our legislators cannot even get as far as the Papal State of the sixteenth century in anexercise of charity to the poor and distressed. Pending the abolition of imprisonment for debt, a Home Office visitation with power to release the really unfortunate on the lines of the practical experiment which Fynes Moryson wrote home about three hundred years ago would be something to be going on with.
This, however, is a matter which is concerned with methods of reform. But, before we deal with amendments of the law, it is necessary to trace clearly and accurately the evolution of imprisonment for debt in England, in order that we may understand how and why it exists to-day as a law that can only be put in force against the poor.
OF IMPRISONMENT FOR DEBT IN ENGLAND
I am honestly sorry to have to inflict a chapter of legal history upon anyone, but for the life of me I do not see how the imprisonment for debt of to-day can be intelligently appreciated until one knows something of its lineage. To begin with, it may be news to some folk to learn that in the merry days of Henry III. there was no imprisonment for debt at all. If Godfrey the garlic seller or Hogg the needier owed Rose of the small shop a tally for weekly purchases and would not pay, Rose, poor woman, could not get an order to send them to gaol. Yet there is no evidence that trade was thereby injured, or that there was any difficulty in Rose regulating her credit-giving, or in Godfrey and Hogg and the rest obtaining as much credit as they deserved. Thefirst thing to remember is that England at one period had no use for imprisonment for debt.
It occurs to me that, if I can persuade the man in the street to understand how imprisonment for debt began and continued until it became a great public scandal, and show how in the last hundred years little by little its evil influence and extent have been abated with good results, we shall be making great strides towards the restoration of that liberty in England which in the matter of debt was the citizen’s privilege in the days of Henry III.
But the reason for the absence of imprisonment for debt in these early feudal days is not so satisfactory to modern ears as one could wish. Lord Chief Baron Gilbert, that crisp and accurate lawyer of the eighteenth century, puts it very clearly when he says: “But there was no Capias for the Debt or Damages of a Common Person, because the party having trusted him only with personal Things his remedy was only on the personal Estate, and the King had the Interest in the Body of his subject; and the Lord in hisFeudatoryorVassalto be called out to War or to labour for him; and therefore none but the King could imprison him.”
And this seems clear, that the reason a creditor could not imprison a debtor was because in those days a debtor had only a limited interest in his own body. The fighting part of his body belonged to the king, the labouring part of his body belonged to his lord, and the king and the lord were not going to have their rights and property in his body interfered with because the subject and vassal had been foolishenough to run into debt with another subject and vassal who wanted his money.
You will, indeed, find that the whole history of the law and the poor seems to be a long struggling of the poor out of slavery and serfdom where they had a certain guaranteed amount of food and protection from their masters, similar in nature to that given to the ox or the ass or anything that was his, into a state of freedom, so-called, in which they had given up their rights to food and protection without getting any certain rights of wages or the equivalent of wages in return. We are in the middle of adjusting these things to-day, and the story of imprisonment for debt, and why it is retained at the present only for poor people, is a page in the curious English history of social progress.
As long as the debtor was a vassal having certain duties to perform for the lord of the manor his lordship thought him as much worth preserving as the game or venison within the curtilage of his park. It was for this reason you could not take his body in execution. As you may know, when you obtain a judgment in a court of law the next thing to do is to proceed to execution; that is to say, the judge having given you judgment a writ is granted to you whereby you get the sheriff to take your part and seize for you either the goods or body of your opponent. The history of these ancient writs is full of amusing folklore for those who love such things, and we still call them by their old dog-Latin names, not for any scientific purpose, but for much the same reason that the doctors write their prescriptions in hieroglyphicsand priests mumble Latin or English—but always mumble—in a cathedral. It is the essence of a profession that it should be mysterious and incomprehensible, otherwise the common herd would not respect it and pay its fees.
And, prior to Henry III., if you got a judgment against your neighbour for money owing by him to you, your remedies of execution were these. By a writ offieri faciasthe sheriff could be commanded to seize the goods and chattels of the debtor in satisfaction of the debt. This dear old writ, thefieri facias, affectionately alluded to as thefi. fa.by attorneys, bailiffs and others who have the handling of the fellow, is still with us. I agree that without him the delivery of judgments in courts of law would be mainly of academic and rhetorical interest. For as Gilbert—not William Schwenck, but Sir Geoffrey the Chief Baron—puts it, if a party trusts a man with personal things, then his remedy should be against the personal things of the debtor, and this seems a principle of common law and common sense as just as it is homeopathic. As our latter-day Gilbert would have put it, “the punishment fits the crime.”
But when you come to our other writ, thecapias satisfaciendum, or “ca. sa.” as it is written in the absurd legal shorthand of the day, or “body warrant” as it is still termed with brutal accuracy in Lancashire, then you will find that in old days different considerations prevailed. You were not allowed to seize a man’s body for debt, but only his goods. And I am glad to find myself setting forthhigh Tory doctrine and asking my fellow citizens to return to the earliest common law of the land, for this seems clear that originally, unless the action was for trespassvi et armis, which was in the nature of a criminal matter, there was no remedy against the body of the defendant. Theca. sa.whereby the sheriff was ordered to seize the body of the defendant in execution could not issue at the instance of a successful plaintiff at common law. In other words there was no imprisonment for debt.
Our forefathers recognised what we seem to have partially lost sight of, that as credit could only be given commercially to a man with goods, it was fair and just that his goods should be seized if he did not carry out his contract. But for reasons of their own—no longer sound as reasons to-day, it is true—they refused to allow a man to mortgage his body for goods. Body warrants only issued against criminals or in actions of a semi-criminal character. It will be reassuring to those conservative minds who fear the abolition of imprisonment for debt to remember that there was a time in England when it did not exist, and that if we abolish it to-day we are working on old-fashioned and constitutional lines. Imprisonment for debt has not the sanction of antiquity, and a desire to sweep it away must not be put down to the wild and wicked desires of a political futurist architect, but rather to the pious hopes of one who is in deep sympathy with the best features of the Norman and Early English social institutions of his native land.
To tell the long story of the statutory evolutionof imprisonment for debt from the Statute of Marlbridge, 52 Henry III. c. 23, to the Act for the Abolition of Imprisonment for Debt—so-called—of 1869, would be out of place here. It is enough to know that little by little the principle of the right of one man to seize the body of another in an execution for debt became recognised by statutes and by custom until the wrongs it caused reached such a scandalous pitch in the eighteenth century that some reform of it became inevitable.
The more modern contests over its partial mitigation from time to time throw a direct light on the differences of opinion upon the matter of to-day. It will be seen that there have always been two schools of thought among politicians. One school was clear, that to tamper with imprisonment meant ruin to trade; the other held—what I take to be the true gospel—that a man ought not to be allowed to obtain credit on the security of his body.
Until the end of the eighteenth century the harshness and cruelty of imprisonment for debt received little attention. The history of the debtors’ prisons, the Fleet, the King’s Bench, the Marshalsea and the City Compters, are pages of the story of our law that no one can read to-day without shame. Yet the Howards and Frys who called attention to the facts met with just as little encouragement and attention from the rulers of the country as anyone does to-day who desires to put the coping stones on the completed work, the foundations of which were laid by these great reformers.
The extraordinary results that took place throughimprisonment for debt as it existed in the eighteenth century are surely beyond parallel in any legal system. The plays and fictions of the time are full of instances. You remember when Roderick Random finds himself in the Marshalsea he meets with his old friend Jackson and asks him about hisamourwith the lady of fortune: “You must know,” replies Jackson, “that a few days after our adventure I found means to be married to that same fine lady you speak of and passed the night with her at her lodgings, so much to her satisfaction, that early in the morning, after a good deal of snivelling and sobbing, she owned that far from being an heiress of great fortune she was no other than a common woman of the town who had decoyed me into matrimony in order to enjoy the privilege of afemme couverte, and that unless I made my escape immediately I should be arrested for a debt of her contracting by bailiffs employed and instructed for that purpose.” Upon hearing this poor Jackson escapes and serves for a few months as surgeon of a sloop, but, on his return, is arrested for a debt of his wife’s and comes to live at the Marshalsea on half pay.
Nor is there anything wildly improbable in the story. Smollett had been in a debtor’s prison himself, and very likely had heard the story at first hand, for many equally extraordinary stories in real life are well authenticated.
There was the strange case of the lady who married a man under sentence of death to get rid of her debts, and was greatly upset when her husbandwas respited and sent to the colonies. But perhaps one of the most curious stories is that of the dear old blind spinster of Clerkenwell, with a fortune of a thousand pounds, who took a deep interest in the career of an industrious shoemaker’s apprentice and made him presents of clothes and a watch and lent him ten pounds. When he was out of his articles and was about to go home to Leicestershire and settle down there, he was arrested for the loan and the attorney’s bill of costs and the “garnish” at the lock-up to which he was taken. After a few days the kind-hearted lady visited him and offered him three alternatives. He might pay the money; go to the debtor’s prison for the rest of his life; or marry her. He chose the last alternative and was kept in the sponging house until his wedding day.
These stories are but a sample of the iniquities that were going on in that day, and yet then, as now, the feeling of legislators and business men seems to have been that it was dangerous to trade and business to sweep this horrible system away, so blind are people to the wrongs they see every day, so dull are ears to cries of pain and distress that are continuous and never cease. It would seem as though the conscience of mankind can only be startled into action by some catastrophe, some tragedy obviously brought about by bad government and bad laws, and not until then will it translate its knowledge of evil into demand for reform.
The tragedies of imprisonment for debt occurred, but they took place behind closed doors and the world only heard of them by slow degrees. Atlength, however, the constant repetition of the miseries of the poor debtors who languished in prison, wasting their lives and eating out their hearts in despair, began slowly to convince the man in the street that there really was something wrong with the world and that the cup of human misery of some of their fellow creatures was slopping over into the saucer of despair. Timid reformers began to think something might be done. The arguments then, as now, were all one way, but then, as now, there was no one to listen to them. Good men had raised their voices to point out the wrong-doing that was going on, and the unnecessary wretchedness that was being caused, but nothing much came of it. There were a few desultory and ineffective movements towards discharging poor debtors, but the matter did not greatly interest mankind, and there seemed to the eighteenth century mind no very clear reason why a debtor once in prison for debt should ever be released. To-day, in the same way, it is difficult to persuade the average citizen that there is any injustice in a debtor being sent to prison for debt. The attitude of mind about the thing is not greatly altered, though happily the amount of injustice and wrong-doing has been lessened.
It was not, indeed, until the beginning of the reign of Queen Victoria, a time of great hope for the poor and distressed, a period which has not inaptly been called “the springtime of social reform,” that any practical movement was made. I myself keep March 31st as the birthday of the movement for the abolition of imprisonment for debt, but anyway it isa red-letter day in the history of English literature and worthy of great honour. For on that day, in the year 1836, the first number of “Pickwick,” appeared and there is no doubt that the account of the Fleet prison in that volume has made it the popular text-book of legal reform in these matters. If “Pickwick” in 1836 was not thecausa causansof Lord Cottenham’s Bill to amend the law of insolvency which was introduced in December, 1837, there is no doubt that Dickens’ stories of the cruelty of imprisonment for debt supplied the motive power necessary to pass it by rousing the public conscience to insist upon something being done.
The point of particular reform aimed at by the Bill was to abolish what was called arrest on mesne process. It is an absurd term, and it was a still more absurd thing. The wonder is that it had survived as long as it did. Mesne process, translated into English, means middle process, and the idea was to lock a defendant up in the middle of the trial and keep him there in case it turned out at the end of the proceedings that he owed the money. It was as popular with the sharks of the eighteenth century as the present imprisonment is with the moneylenders and tally-men of to-day. Any person who would make an affidavit that another owed him twenty pounds or more could lock him up pending the trial and, unless the victim could find the money and pay it into Court, he remained in the sponging house until the trial came on. Harry Warrington was served so, if you remember. Two gentlemen came from over the way, “one of them takes a strip of paper out ofhis pocket and, putting his hand upon Mr. Warrington’s shoulder, declares him his prisoner. A hackney coach is called and poor Harry goes to sleep in Chancery Lane.” Certainly Harry owed the money and had been reckless and extravagant enough, but even then the method of arrest strikes us to-day as a little high-handed. Nor was it always made use of with honesty. To bold rascals it was a very perfect machine for the wickedest blackmail. An affidavit of debt—and eighteenth century affidavits were no nearer the truth than those of the present century—was all that was required, and if in the end the affidavit was found to be false, the only remedy was to prosecute the swearer of it—if you could find him.
A case that Lord Denman mentioned in the debates in 1837 created a good deal of uneasiness in the public mind. A certain Portuguese nobleman, the Duke de Cadaval, on landing at Falmouth, or when he was residing at Plymouth, was arrested on a pretended debt, thrown into prison, and obliged to pay a large sum of money to procure his release. He afterwards recovered in an action for malicious arrest heavy damages, but he never received a penny of them, nor is there any record that the false witnesses were punished for perjury. There are many stories of this kind, and it was an obvious result of the system of arrest on mesne process. One would have thought that there would have been no difficulty about abolishing a legal machinery that brought about such injustice, but, in truth and fact, it was quite otherwise. Indeed, the people who wanted to abolish the excellent and business-like system wereregarded as very pestilent and turbulent busy-bodies by the average citizen.
Another incident of imprisonment for debt at this date was that if a creditor preferred to issue aca. sa.to afi. fa.and took the body of the debtor in preference to the property of the debtor, he thereby discharged the debtor. If, therefore, the debtor preferred imprisonment to paying his debts, the law afforded the creditor no other remedy. There were instances of debtors remaining in prison for over twenty years well able to pay their debts, but preferring to live in luxury within the rules of the prison.Re Pickwickis perhaps the popular leading case on this point. But whilst we remember with pleasure how the law enabled our dear friend to outwit for a time those wily attorneys Dodson and Fogg, do not let us forget the terrible sights he saw in the Fleet.
The Chancery prisoner, the fortunate legatee whose lawyers had had the thousand pounds legacy, and who was in the Fleet, mending shoes for twenty years because the loom of the law had woven a shroud of costs round him and buried him in prison—he was no fiction. His heart was broken when his child died and he could not kiss him in his coffin. There he remained living a solitary lingering death, lonely amid the noise and riot of the Fleet, until God gave him his discharge. This and many another case was before My Lords and known to the intelligent Commons when the question of the abolition of arrest on mesne process came up for discussion in 1837.
It is to Lord Cottenham, as I have said, that weowe the statute which, to use Mr. Atlay’s phrase, “abolished the bane of Mr. Micawber’s existence, imprisonment for debt on mesne process.” Nor must it be thought that it was done without a struggle. Lord Lyndhurst said, and no doubt truly, that, judging from the petitions, he should be within the truth in saying that the Bill was very unpopular. The petitions were at least ten to one against the Bill. There was no more enthusiasm about mitigating imprisonment for debt then than there is to-day. The history of these things is always the same; the traders objected to the abolition of imprisonment for debt, the newspaper proprietors strenuously opposed the reduction of the Stamp Acts, the doctors fought against national insurance. Yet, when the horrible thing is done, we find them smugly prospering on the reform.
Lord Brougham, who from the very first had always held instinctively the true faith in these matters, pointed out to a reluctant House how credit was imprudently given to the real injury of the customer who is induced to buy what he cannot pay for, and to the injury of those who do pay what they do owe, but who pay the dearer in proportion to the bad debts which the tradesman is led to let others contract with him. Further, he emphasised the wrong done by clothing an insolvent person with an appearance of credit by lending him more goods which serve as a bait or decoy to others that have not yet trusted him. He laid down the principle that debt should never be treated as a crime and still less as a crime to be punished at the sole will and pleasureof the creditor, and eloquently called upon the peers to wipe out this foul stain from our civil code.
Arrest on mesne process was abolished, not ungrudgingly it is true, but it came to an end, and a commission was set up in 1839 to inquire and report upon the whole system of imprisonment for debt. This commission ultimately reported in favour of abolition. In 1844 another Bill was introduced to distinguish between cases where it could be shown that the debtor was an innocent fool and not a culpable contumacious defrauder. It was not of much avail as a social reform, but may be fairly described, perhaps, as a worthy effort. The brightest reading in its history for us to-day is the debate in which Lord Brougham, with savage eloquence, rubs it in—the modern slang expresses Brougham’s method so accurately—and jeers at the opponents of imprisonment for debt now that all their Cassandra prophecies over the abolition of imprisonment by mesne process have proved themselves to be worthless. Abolition of this system had not diminished credit, and had not raised any difficulty in citizens obtaining credit. Then, as now, these were the trade arguments against reform solemnly used by business men, officials and lawyers, and though, on each occasion when the reform has taken place, they have been found to be the hollowest nonsense, yet they are repeated to the reformers of to-day with the same pompous effrontery with which they were offered to Lord Brougham.
We now come to 1869, in which year the present state of the law was created, and it is this law whichseems to me so unjust to wage earners and poor people who are in debt, placing them as it does in conjunction with the Bankruptcy Laws in such a wholly inferior position to that of the well-to-do citizens. In order to understand the exact legal position it is, I fear, necessary to deal with the matter in some little detail.
The intention of the Legislature at the time seems to have been right enough. It was desired, no doubt, that a fraudulent debtor should be punished and that an honest debtor should not. If a means could be invented to carry out this principle no one would utter a word against it. A fraudulent debtor is, I take it, a man who, having ample means over and above the reasonable necessities of himself and his family, conceals them or places them in fictitious names and then defrauds his debtor and refuses to pay him.
I should be in favour of more stringent measures being taken against the fraudulent debtor, for one meets him every day, well-to-do and smiling, with a bill of sale on his furniture and everything in his wife’s name. But he is the curled darling of the law. He makes use of the law to protect himself and his frauds, and the Debtors Act, which was intended to abolish imprisonment for debt, has no terrors for him, whilst under its provisions hundreds of weekly wage earners are imprisoned.
As Sir George Jessel said, the real intention of the Debtors Act, 1869, was to abolish imprisonment for debt for honest debtors and to retain the right of judges to punish fraudulent debtors. Many of thesections of the Act are framed, and to some extent assist, in the excellent aim of making it hot for the naughty and wicked debtor who has cheated or defrauded his creditors. Why is such a person punished? asks the Master of the Rolls. I give the answer in his own words. “Simply because he is a dishonest man. He need not perhaps be called a thief in so many words, but he is a man who takes or keeps money belonging to other people, and he is punished accordingly.” Instances of such are defaulting trustees and similar misdemeanants, and, so far as the Act provides for their punishment, we have no quarrel with it.
Now no one would contend that the system of imprisonment for debt as carried out in the County Courts is a system directed in the main against dishonest men. Improvident, careless, foolish and childlike these poor defendants in the County Court may fairly be described; but if a day of judgment audit could be carried out, and a balance struck on the item of “honesty” as between the working-men debtors and the class of traders who give them credit, I make little doubt which class, as a class, would show the better figures. No, we do not imprison in the County Court for dishonestyper se; dishonesty may or may not be a feature of any particular case, but it is not an essential.
The order for imprisonment is made under section 5 of the Debtors Act, 1869. That is the tally-man’s charter. I am sorry to bore anyone with all these sections and statutes, but there is such a lot of inaccuracy written and talked about the matterthat it is best to set down the actual enactment. We must remember then that the Act, being an Act for the abolition of imprisonment for debt, had begun by enacting in the fourth section that “with the exceptions hereinafter mentioned no person shall be arrested or imprisoned for making default in payment of a sum of money.” These last words state quite clearly the true principle of what the law ought to be. Unfortunately for the poor the special exception made for them has only too truly proved the rule.
The opponents of abolition were but too successful in their endeavours to make inroads upon the thoroughness of the proposed reform, and one of the exceptions was called “a saving power of committal for small debts.” It might have been better described perhaps “as a saving power to imprison poor debtors.” This is the famous section 5 of the Debtors Act, 1869, over which so much controversy has since arisen, on the working of which two important commissions have sat and reported, and under which we may proudly claim to be one of the last civilised countries that clings to a system of imprisonment for debt.
It is necessary to set out the section at some length, for it has a googlie element about it and is not so innocent as it appears on the surface. It first sets out “that any Court may commit to prison for six weeks any person who makes default in the payment of a debt or instalment due in pursuance of a judgment.” That, of course, is plain sailing imprisonment for debt. Then, however, follows thesub-section—I again apologise for troubling you with all this, but it is really a good citizen’s duty to understand it—which causes all the worry. It is enacted in sub-section (2) “that such jurisdiction shall only be exercised where it is proved to the satisfaction of the Court that the person making default either hasor has hadsince the date of the order or judgment the means to pay the sum in respect of which he has made default and has refused or neglected or refuses or neglects to pay the same.”
It is the words that I have printed in italics that hit the poor man and the weekly wage earner, for of course it is generally provable that, although he has no present means to pay a debt, hehas hadsince the judgment means to pay which he has spent on the maintenance of his family, or, if you will, on beer or tobacco, or picture palaces, or, in a word, as good solvent middle class people would say—improvidently.
The further matters enacted are all sensible enough, granted you approve of the main principle of imprisonment for small debtors. They deal with proof of means of the person making default, allowing such proof to be given in such manner as the Court thinks just, and for these purposes the debtor and any witnesses may be summoned and examined on oath according to the prescribed rules.
The other material points of the section are that a County Court judge must exercise his jurisdiction in open Court, he may order the debt to be paid by instalments, he may also make continuouscommittals on each unpaid instalment, he may vary and rescind the order, and the imprisonment when suffered does not distinguish or discharge the debt or other remedies of the creditor. The debtor can take his release in payment of debt and costs.
Anyone who studies this Act of 1869 and comes to the conclusion that this system is anything less than imprisonment for debt, and not imprisonment for fraud, must, I think, be driven to argue that the men who drafted the Act called the Act an Act for the abolition of imprisonment for debt, called section 5 a saving clause for continuing imprisonment for small debtors in certain cases, and did not understand their business. As a matter of fact they knew their business very well indeed, and they carried it out faithfully and well.
What happened undoubtedly was this: Parliament as a whole was out to abolish imprisonment for debt. There were a lot of old-fashioned folk then as now, who wanted to retain it. Compromises were made. It was agreed that there should be abolition, it was also agreed that there should be exceptions. The exceptions readily granted were cases of fraudulent trusteeship and the like. This was not enough for the old gang, so the promoters of the reform threw in poor persons owing small debts. The poor had as few friends in Parliament as the fraudulent and they were huddled together into the same bundle of exceptions as a sop to the opponents of the Bill. When folk describe our present system in the County Court as anything other than imprisonment for debt, a legitimate offspring of its noble Norman ancestorcapias ad satisfaciendum, they do it in ignorance of the legal and political history of the Debtors Act, 1869.
I should like to have set out much of the debate in the House of Commons on the second reading of this Bill. Sir Robert Collier, the Attorney-General, openly expressed his regret that imprisonment for debt was going to be retained in the County Courts, and several members spoke wisely about the hardships then inflicted on the poor and the undesirability of continuing them. But the following extract from a speech of Mr. McMahon shows that no one at that time was under any delusion about what was going to be done. “When,” he said, “arrest on mesne process was abolished shortly after the passing of the Reform Bill it was then said that credit would be disturbed, and that traders would not be able to carry on their business. But these forebodings were purely imaginary, and in the same way he believed no evil would attend the good that must undoubtedly result from the final abolition of imprisonment. If, however, they allowed the rich man to escape under the bankruptcy system they ought not to admit the poor man to be liable to imprisonment, for by so doing they would certainly be open to the charge of having one law for the man in broadcloth and another for the man in corduroys.”
Here the warning is clearly given by a man on the spot, that what they were about to do was to set up a system unfair to the poor, and there was really no doubt in the minds of any of the legislators of the day that they were deliberately retaining imprisonmentfor debt for the poor. I want to insist on this point because one of the stumbling blocks in the way of reform to-day is the strange belief, fostered by the tally-man and his friends, that in some mysterious way imprisonment for debt has really been already abolished and that the working classes really go to prison for contempt of court or some other reason. There is no truth in this whatever.
The Attorney-General who introduced the Debtors Act, 1869, may surely be credited with understanding what it was intended to do. He knew well enough that his Bill was going to abolish imprisonment for debt for the rich and retain it for the poor. He pointed out that he was making bankruptcy cheaper and more stringent. It would be obviously absurd, he said, to make a day labourer a bankrupt, and that brought him to the very difficult question of County Court jurisdiction. At that time the County Court had a jurisdiction to punish for fraud as an incident of debt and also to imprison for debt. He proposed to take away the jurisdiction to imprison for fraud and to leave fraudulent debtors, both rich and poor, to the Criminal Courts. “But then,” he continued, “came the other question of County Court imprisonment where a man was able to pay his debt, but would not do so. He did not regard that imprisonment as a mere punishment for a past offencebut it was a process of imprisonment for the purpose of compelling the payment of a debt, and it was a process very analogous to the principle of the Bankruptcy Law.” He came to the conclusion, after further argument, “that this power of imprisonmentin the one case he had mentioned must be retained.”
When an Attorney-General in 1869 brings in a Bill to abolish imprisonment for debt and deliberately tells us that he retains one class of imprisonment for debt, it is inconceivable why people to-day should strive to make out that the system we are working is not imprisonment for debt, but something else. Unless it be that the advocates of imprisonment for debt know in their heads that it is an evil, out-of-date system, and they have an instinct that it smells more sweetly under some other name.
From 1869 to the present there has been no further reform. Many hope that there never will be any, but for my part I have no doubt it will come along, not in my time, perhaps, but whenever the right moment may be. From 1869 until to-day over three hundred thousand English citizens have been actually imprisoned who have not been guilty of any crime whatsoever. They have been imprisoned mainly for poverty or, if you will, for improvidence—that blessed word that so insidiously describes in the poor that failure in economic asceticism, that lack of cold self-denial of luxury and extravagance, that absence of patient thrift and simplicity of life—characteristic features which are never wanting in the beautiful lives of those social classes above them that the poor must learn to look up to and to imitate.
HOW THE MACHINE WORKS
I fear the earth will do a lot of rolling on before we abolish imprisonment for debt, but very likely I am exhibiting a somewhat senile haste in the matter which is unbecoming. To me it appears strange that, whilst in every other science the professors of it are making earnest efforts to place the result of their studies to the credit of mankind, the law seems more incapable than theology of assimilating new ideas and getting into step with the march of time. I have no hesitation in saying that the County Court, as a debt-collecting machine, is a one-horse wooden antiquity only fit for the scrap heap. If you went down to Euston and found them coupling up Puffing Billy to the Scotch Express and the engine driver dissolved in tears, you would understand the kind of hopeless feeling that oppressesme every morning when I sit down to try a hundred judgment summonses.
For how can they be said to be tried in the sense in which an Englishman is supposed to be tried before he is deprived of his liberty. There is very little evidence, often the defendant makes no appearance and does not even send his wife to tell the tale for him. He cannot afford to leave his work and she ought not to be asked to leave her babies. The word, therefore, of the plaintiff, or, more probably, the debt collector—and many of these men, making it their business and dealing daily with the Court, are far more accurate and careful than the plaintiffs themselves—this is all you have to go by. The law, as I told you, left it entirely to the taste and fancy of the judges what evidence they should receive, and though nowadays all judges honestly endeavour, I think, not to carry out the law to the full extent of its cruelty, yet naturally different men hold different views of the rights and liabilities of the poor, and so there is no sort of equality in the treatment they receive in different districts.
Thus we have in the working of imprisonment for debt everything that is undesirable. The liberty of the subject is at stake, but there is no right of trial by jury, such as the fraudulent bankrupt or any other misdemeanant is entitled to; the evidence on which the debtor is convicted and sent to gaol is any evidence that the judge thinks good enough, and within the limit of six weeks the imprisonment is anything that each particular judge determines. There is, of course, no appeal, and when the prisonercomes out of gaol he still owes the debt, though he cannot be imprisoned again for the same debt or instalment. The multiplicity of these proceedings is appalling. There are over a million small debt summonses issued every year and nearly four hundred thousand judgment summonses, of which about a quarter of a million are heard. What a waste of time and energy it all means. Judges, registrars, solicitors, bailiffs, debt collectors, the piling up of costs and fees on to the original debt, the dragging off to gaol of an occasional debtorpour encourager les autres, the breaking up of some poor home, the blackmailing of friends and relations very little better off than the poor debtor himself, the squeezing of the pittance out of the bellies of the little children to keep the father out of prison—what a picture to leave on the canvas of our own generation for our grandchildren to scoff at.
And the business result of it! Even when the debt is paid—if it is paid—after years of waiting and hours spent coming down to the Courts seeing if the money is yet paid in—or 20 per cent. paid to a debt collector to do it for you—when all is finished, would it not have been far better if you had recognised that you had made a bad debt and stood yourself a few shillings worth of righteousness in forgiving your debtor his indebtedness? Certain it is that the system is useless to, and very little used by, the respectable individual creditor. Indeed, if he tries to use it, he stumbles into so many pitfalls and finds the procedure of it so troublesome and uncanny that he very often fails to stay the course,and, after a few wasted days, goes his way and leaves the debtor to go his. The best customers of the County Court, indeed the only people to whom the system of imprisonment for debt is of any real service, are those traders who carry on a business which can only be carried on and made to pay by reason of the sanction of the shadow of the gaol which is of the essence of the contract.
The tally-men, the moneylenders, the flash jewellery touts, the sellers of costly Bibles in series, of gramophones and other luxuries of the mean streets, these are the knaves the State caters for. For these businesses are based, and soundly and commercially based, on imprisonment for debt. The game is to go forth with a lot of flash watches, persuade a workman in a public-house or elsewhere to sign a paper that he has bought one—he always says, silly fellow, that he thought he had it on approval—and when he fails to pay his instalments put him in the County Court. I have known a pigeon-flying working man earning thirty-five shillings a week buy a watch priced eight pounds which had a second hand and a stop movement for timing that momentarily overcame his better sense of economy. Without imprisonment for debt it would not have paid the servant of the Evil One to have led him into the temptation.
To these traders the County Court is of real value. They issue their plaints in bundles, they take out judgment summonses in batches of thirty, fifty, or a hundred at a time, they can afford to have a skilled clerk well versed in the procedure of the Court to fillup the papers, and can run the machine which a complacent State puts at their disposal with very good results to themselves. I remember a firm starting in Manchester with the sale of some sort of horse medicine—good or bad is really no matter. The method of business was delightfully simple. The proprietor travelled round in Herefordshire and Devonshire and persuaded the farmers to try some of the horse medicine. A form was signed which was a contract of sale and a promise to pay in Manchester. This gave the Manchester Court jurisdiction to issue the summonses, which were for sums of under two pounds. Letters came complaining that no contract had been intended, that the stuff was worthless, etc., but no one turned up and judgment went by default. The success of the business was its ruin. The plaintiff, tired of filling up the forms of the Court and well knowing that none of his customers would pay without process, actually had affidavits of his own ready printed, and this cynical admission of the fraudulent nature of his trade—for an honest man would not expect nearly all his customers to refuse to accept goods ordered—led to his undoing. Inquiries were made, one or two farmers were induced to appear and give evidence, and his business career came to an end.
I am not, of course, saying that the County Court exists only for those who have the courage and effrontery to make the full use of the machine as an accessory to shady trading. But it can be demonstrated that imprisonment for debt is the mainstay of such trades as moneylending and credit draperyand all those low trades that make their profits by foisting shoddy luxuries on to working men and their wives.
Some time ago I made a careful examination of some 460 judgment summonses taken consecutively. The figures were from the Manchester Court. I found the following were the trades represented:—
General dealers, it must be remembered, are traders in a large or small way of business who will sell furniture, drapery, clothes, cutlery, or anything you like, on the instalment system. Their methods of trading are tally-men’s methods.
If this list be looked at, it will be seen that the general public make very little use of imprisonment for debt. The substantial shopkeeper and ratepayer is scarcely represented at all, the grocers and a few of the big general dealers being the only people who pay rates. Some of these general dealers it should be remembered are limited companies having numerous agents paid by high commissions and spending largesums in advertising. Their prices are apparently low, but the quality of their goods leaves much to be desired. Now what worries me is, why should the State keep Courts going for men of this class? The only creditor in that list for whom one can have the least sympathy is the doctor, and the National Insurance Act has now put him on a cash basis, so that in a list taken to-day he would not appear so often. It is clear from these figures that at a cost to the general body of taxpayers you are encouraging a bad class of parasite traders to choke the growth of thrift among the working classes.
For unless you make it ruinous to the creditor for the credit to be given you will never stop it. How can a man at work hinder credit being given through the agency of the wife when the law permits it and caters for it by providing the trader who lives by it with a special debt-collecting machine without which this class of trader were impossible. I have known cases where a working man’s wife was dealing with nineteen different Scotch drapers. What wages can satisfy such an orgy of drapery as that? How often, too, do men and women buy watches to pawn them for drink or a day at the races? What is this but an evil and ruinous form of moneylending? And what makes these things possible among our poor people? The law siding with the knave against the fool; the saving clause for the imprisonment of poor debtors in the Act of 1869.
And whereas I shall show you that bankruptcy and divorce are the luxuries of the rich, so it is only fair, I think, to allow that imprisonment for debt is adistinctive privilege that the law reserves for the poor. A man among the well-to-do classes is never imprisoned for debt; the wage-earners are practically the only people who are subject to it.
The governor of a gaol reported a case to the last Select Commission that sat and did nothing on the subject. A labourer was sent to his custody for twenty-one days in default of payment of four shillings and costs, five and ninepence in all. How can a State for very shame prate about the extortion of moneylenders when it adds forty per cent. on to a small debt like this for costs? The man was a widower with four children, the eldest of whom was thirteen, and the youngest two or three years old.
When father went to prison the children went to the workhouse. That is all part of the system. The debt was a tally-man’s debt for clothes supplied to his late wife. The governor sent it as a typical case for the Commission to consider. “As I believe,” he wrote, “that there is an idea of having the law on imprisonment for debt amended.”
The good governor was, of course, entirely mistaken about that. There is no such idea, except in the heads of dreamers and visionaries like Elisha and the good governor and myself, and we do not count. So his report ended in nothing, and remains on record as a typical result of the working of imprisonment for debt in a civilised European State in the early part of the year of our Lord 1909.
I should like to leave the matter there as a horrible example, for so it is, but I am a man of truth—and, in fact, the poor labourer was not kept in gaol. Itwas afterwards discovered that the good governor, when he investigated the man’s case at 9.30 a.m. on the morning after his arrest, had paid his debt for him and set him free. You remember that Elisha in a similar case performed a miracle by filling several jars with oil. For myself, I think the good governor’s was an even nobler deed.