The Law and the Poor Part 3

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 husband was 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. At length, however, the constant repet.i.tion 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 att.i.tude 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 is a 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 the _causa causans_ of Lord Cottenham's Bill to amend the law of insolvency which was introduced in December, 1837, there is no doubt that d.i.c.kens' stories of the cruelty of imprisonment for debt supplied the motive power necessary to pa.s.s 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 of his 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 n.o.bleman, 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 were regarded 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 a _ca. sa._ to a _fi. 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 Pickwick_ is 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 G.o.d 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 we owe 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 pet.i.tions, he should be within the truth in saying that the Bill was very unpopular. The pet.i.tions 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 pleasure of 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 Ca.s.sandra 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 which seems 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 fict.i.tious 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 the sections of the Act are framed, and to some extent a.s.sist, 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 cla.s.s of traders who give them credit, I make little doubt which cla.s.s, as a cla.s.s, would show the better figures. No, we do not imprison in the County Court for dishonesty _per 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 matter that 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 the sub-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 has _or has had_ since 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, he _has had_ since 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 cla.s.s 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 continuous committals 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 n.o.ble Norman ancestor _capias 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 pa.s.sing 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 imprisonment for 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 cla.s.ses 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 offence _but it was a process of imprisonment for the purpose of compelling the payment of a debt_, and it was a process very a.n.a.logous to the principle of the Bankruptcy Law." He came to the conclusion, after further argument, "that this power of imprisonment in 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 cla.s.s 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 cla.s.ses above them that the poor must learn to look up to and to imitate.

CHAPTER IV

HOW THE MACHINE WORKS

Roll on, thou ball, roll on!

Through seas of inky air Roll on!

It's true I've got no shirts to wear, It's true my butcher's bill is due; It's true my prospects all look blue-- But don't let that unsettle you!

Never _you_ mind!

Roll on!

W. S. GILBERT: "To the Terrestrial Globe."

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 a.s.similating 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 sc.r.a.p 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 oppresses me 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 ent.i.tled 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 prisoner comes 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 debtor _pour 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 fill up 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 drapery and 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:--