CHAPTER V

IMPRISONMENT FOR DEBT

Imprisonment for debt, laughable enough, perhaps, in an eighteenth-century comedy, is something of an anomaly in the existing state of justice. Some ten thousand persons annually go to prison for debt, or, rather, for contempt of court, arising in connection with the disobedience of an order of the court to pay a certain sum of money on a judgment.

Of course, credit forms a large field for discussion. It is essential in all communities, among all classes of the population. How it comes into being and how it justifies its existence are questions of more than ordinary interest. In the first place, a man who lives at the rate of a thousand or two a year inevitably has credit given to him unasked. It is a part and parcel of daily life, convenient, if not necessary, in his case. Tradesmen are paid in the usual course of events and matters go tranquilly onwards. If, by mischance, the source of his income suddenly, unexpectedly even, comes to an end, how does he stand? He may owe two hundred pounds or two thousand. His credit has merely been the outcome of custom, usage, not of fraud, or of intention to defraud. Had his intentions been fraudulent, he would have “pushed” his credit far beyond the sum of two thousand pounds, which is merely an extravagant sum for a man with an income ranging from one to two thousand pounds _per annum_. But the two thousand pounds which he owes are, through his abrupt loss of income, a grave menace. If the sum is greatly divided up, his life may be made tormenting, for when a debtor is in difficulties, though they may have arisen through no fault of his own, it is the psychological moment for some creditors, most creditors, to deluge him with writs and summonses--a senseless system in the circumstances--and to pursue him with regiments of solicitors’ office boys, professional debt-collectors and officials from the county court. (The demeanour of these claimants generally savours of mixed brazenness and terror, amusing to the debtor if his _sang froid_ is equal to a little detachment! Carrion of the debt-collecting and process-serving species is very human in its appreciation of “tips.” Indulgence in pleasantry, too, goes a long way sometimes in gaining some petty privilege!)

An instrument of the law known as the “specially endorsed writ” (for sums of £20 and upwards) is quite pestilential to the victim of credit. If the debtor happens to be in possession of a little money, it only adds to his expense to “enter an appearance”; it is usually better, therefore, to let the creditor “sign judgment” in due course. Solicitors still glory in these writs: where the debtor is likely to meet the obligation, an interesting little bill of costs for doing virtually nothing also stands a fair chance of being met without taxation. The costs are generally from three guineas to four pounds in the endorsement on the writ, and they are apt to tempt the person writted to send in a covering cheque for debt and costs, as marked. Service is often effected by the office boy, so that, with the exception of the stamp on the original writ, the expense is practically nothing. In other words, the solicitor earns his three guineas too easily, for there is a tendency not to tax such costs, which are unfair to a debtor who is not particularly pressed for money, who means to pay, and whose failure to do so has been due chiefly to oversight or neglect.

We know that a debt of £50 is a basis for making a person bankrupt. Consequently, the debtor whose funds abruptly cease may have many trials to face with debts which only run to a few hundred pounds. Furthermore, suppose some trifling debt--for ten pounds or so--is pushed into a judgment in the county court. Later on it is matured by the machinations of a solicitor into an order of the court for the payment of so much a month. If the debtor is unable to meet the order he may be committed to prison for contempt of court--arising from disobedience to pay. Thus imprisonment for debt evolves itself.

The abolition of imprisonment for debt has frequently been discussed. Many county court judges are against committals; some, of course, remain in favour of them. Judge Henry Tindal-Atkinson, County Court Circuit No. 58, was one of the witnesses to appear before the Select Committee on Debtors (Imprisonment), Sessions 1908 and 1909. In his evidence, the learned judge favoured the abolition of imprisonment, which he considered generally oppressive, and particularly hard on the working man, whom it placed rather at the mercy of the creditor. “Credit he thinks pernicious,” to quote from the report of the Select Committee, “and extravagant, from the necessarily high prices charged by tradesmen, uncertain that they may not have to wait years for their money. It is witness’s experience--which he illustrates by a comparison of committal orders in different districts on his own and other circuits--that extravagance increases in proportion to wages, the working man in good times spending every farthing and leaving no margin for present debts or future emergencies. Then in the case of process, fees further increase the debt, amounting perhaps to 8s. 6d. in a £2 claim. Witness favours abolition of imprisonment, and thinks it would diminish plaints. He does not think committed debtors necessarily dishonest.”

In the same report, Judge Henry Mason Bompas, of County Court Circuit No. 11, expresses an opinion in conflict with Judge Atkinson’s. “Witness opposes the abolition of imprisonment as likely to check the credit required by the working classes, increasing its cost, and leading them (the working classes) to treat their obligations too lightly.... Witness is of opinion that imprisonment has not sufficient terrors. To the Burnley colliers his Honour’s seven-day sentences appeared so much in the light of a holiday above ground that he has been obliged to increase them. He instances a case of a man in employment doing his imprisonment by proxy, the unemployed substitute receiving five shillings in solatium of the seven days. The efficacy of imprisonment he deduces from the proportion of cases in which committal orders produce payment. Witness thinks credit desirable in certain cases, and that the question of tempting persons to it applies to all classes of society.... With regard to proof of means, witness says his practice is to accept arrangements between debtor and creditor as evidence upon which to make an order, subject to his knowledge of the creditor, as voluntary on the part of the debtor, who has the opportunity of attending court and making his own statements. In cases where no agreement is produced, evidence as to the man’s wages is obtained from the employer upon a printed form, if the debtor does not object. He alludes to the difficulty of ascertaining what a debtor may be paying into court upon other debts (whereby, in fact, his wages may not represent his income, in which case witness would regulate the order accordingly), unless he appears.... Witness opposes a suggestion that imprisonment be held to purge a debtor of the amount for which he was imprisoned.”

Judge Edward Bray favours, in his evidence, the abolition of imprisonment. He opposes “the present system as prejudicial to the interests of the working classes on account of the enormous and expensive and indiscriminate credit which they can obtain.”

Sir Kenelm Digby, G.C.B., at one time a County Court Judge on Circuit No. 19, favours the limitation of the power of imprisonment, but he considers its abolition impracticable as abolishing credit.

Judge Cyril Dodd, Circuit No. 16, stated in his evidence that he desired the abolition of imprisonment for debt; he also recommended the widening of the present definition of crime.

Judge John Gent, County Court Circuit No. 12, favoured, under certain conditions, the abolition of imprisonment for debt. “He would retain imprisonment for debt,” so the report goes, “in fiduciary cases and for default by a solicitor in payment of money when he has been ordered to pay the same, also for default in bankruptcy, taking other cases of fraudulent debt into the criminal courts. He reprobates the payment by results of registrars as putting an obstacle in the way of judges who conscientiously try to restrict the issue of committal orders, by placing them in an invidious position of responsibility for the reduction of the salaries of the registrar and his staff. He instanced his own feelings on finding that he had been the means of reducing the salary of the registrar at Huddersfield £200 or £300.... He thinks registrars favour the present system.... Witness disapproves of credit as vicious, and unnecessary, even in bad times, when the poor, he thinks, would be wiser to accept charitable assistance. He believes credit to be mainly given on the power of imprisonment in reserve.... Witness thinks the requirements as to proof of means difficult to work and unsatisfactory, the Court of Appeal having decided that ‘means to pay’ are means to pay after the discharge by a debtor of his obligation of family maintenance.”

Judge Henry Best Hans Hamilton, of Circuit 4, opposed, before the Select Committee, the abolition of imprisonment, “as likely to swell the numbers of improvident working men, and, by increasing the difficulties of obtaining the credit necessary in bad times, throw both the honourable and the improvident on the workhouse or parish at such seasons. He considers execution against goods (generally claimed by relatives or obtained on the hire system) useless against the improvident or dishonest.”

Judge Arthur O’Connor, K.C., of County Court Circuit No. 2, “approves the power of imprisonment as a necessary instrument in securing payment of judgment debts which would otherwise remain unpaid.”

Judge William Stevenson Owen (now deceased), Circuit 24, favoured the total abolition of imprisonment for debt, “save, perhaps, for damages for tort.”... Further, “He would make default in a fiduciary capacity, or by an attorney or solicitor, or default in payment for the benefit of creditors of any portion of a salary or income, criminal misconduct.”

His Honour Judge Edward Abbott Parry, lately of Circuit 8, but now appointed to replace the late Judge Emden at Lambeth, stated, when giving his evidence before the Select Committee, that the present system was to be disapproved (1) as favouring disreputable trade, (2) as failing to punish dishonesty, (3) as a means of blackmailing friends and relations of the debtor, (4) as injurious to the poor, etc. He favoured the total abolition of imprisonment for debt, at least theoretically. He added that he believed in credit as a necessary evil.

Judge Sir William Lucius Selfe opposed the total abolition of imprisonment for debt so far as the working classes were concerned. He made certain exceptions, however, in which he would abolish imprisonment, notably in cases arising out of money-lending transactions.

Judge William Wightman Wood, of Circuit 20, another witness, favoured the abolition of imprisonment.

Mr. S. Savill, Chief Clerk at Marlborough Street Police Court, in his evidence, divided debts recoverable before Courts of Summary Jurisdiction into three classes: “I. Sums recoverable similarly to civil debts summarily recoverable under the Summary Jurisdiction Act, 1879, _i.e._, cases in which the County Court has concurrent jurisdiction. In this class, a judgment summons necessitating proof of means must precede committal, and imprisonment is rare. II. Sums due under orders of the Court in cases of affiliation and maintenance orders and orders against persons legally liable for contributory maintenance of a child sent by the Court to a reformatory or industrial school. In this and in Class III. imprisonment is punitive, and purges the debt. III. Sums not recoverable under summary jurisdiction, comprising highway rates, poor rates, etc. Here stipendiary magistrates and ordinary justices have concurrent jurisdiction. Committals in this respect scarcely affect the poor classes, who live in houses and tenements for which the owners are, by consent of the local authority, rated up to £20, the power possessed by justices and stipendiary magistrates to discharge from payment any persons proving inability to pay from poverty not being used in the opinion of the witness to the extent intended by the Statute.”... Witness also suggested that imprisonment “as a screw” was abortive, and really only partially deterrent in its effect; he submitted, however, that if imprisonment for debt were abolished, strengthening of the punitive law would become necessary.

M. Maxime de Gorostarzu, a French advocate, Counsel to the French Consulate-General, supplied the Select Committee with certain information on the French law. To take an extract from the report, “Witness states that imprisonment for debt in civil matters is not possible in France, debts for goods supplied being only recoverable by execution, nor does witness think its want is felt.” Imprisonment for debt was suppressed by the Revolution in 1793, re-established within the next two years, again suppressed in 1848, but re-established once more. In 1867 “it was finally restricted, in deference to public opinion.”

Mr. John Arthur Barratt, a member of the English Bar and of the New York Bar, stated before the Select Committee that, generally speaking, imprisonment for debt on civil process was impossible in the United States, except in cases containing an element of tort or fraud. There are, however, States in the Union in which imprisonment for debt exists, notably in Massachusetts.

Mr. Peter Morison, a solicitor practising in the Scottish Courts, stated, in his evidence, that imprisonment for debt was abolished in Scotland in 1880, except for taxes, fines or penalties, rates or assessment, sums decreed for aliment and _praestendum_ orders (_i.e._, orders by a judge to perform an act).

Mr. Ernest Joseph Schuster, a member of the English Bar, and a Doctor of Laws of the University of Munich, explained that the rules as to imprisonment for debt on civil process were uniform throughout Germany. “Imprisonment for debt _per se_ does not exist, but, by provisions of the German law for dealing with mischiefs which might arise, debtors may, for the protection of their creditors, be imprisoned.”

From the foregoing matter, which is derived for the most part from the report of the Select Committee (constantly referred to in this chapter), it will be seen that imprisonment for debt is by no means generally supported, either by the judges themselves or by those persons associated with judicial administration. Tradesmen of the inferior type support imprisonment with fearful anxiety lest it be abolished. To them, it makes a debt a lever for persecution. Indeed, it is used as a method of _quasi_-blackmail against the debtor of the lower classes. Take the unwary working-man in regular employ. He contracts a debt--he may even be persuaded into it--and the first thing he knows is its maturity into a county court judgment, followed by an order to pay (so much at stated intervals until the debt is liquidated). The man is informed that he will be sent to prison unless he finds the money. He is thus coerced and terrified by the debt-collector, until he suffers himself and those dependent upon him to go without food to meet the payments. The menaces used to bring this state about would not come within the meaning of blackmail, legally, but they savour so strongly of it in practice that “imprisonment for debt” becomes an injustice and an anomaly of the law. Imprisonment for whatever cause and for whatever time is imprisonment, and in the working-man’s mind lies the certainty that his employer, when the latter hears of it, will discharge him forthwith. The tangled terrors of his predicament are worked upon by the debt-collector, a person, we may assume, of even greater persistency than his prototype who pursues the debtor of the upper class.

The Select Committee, though it did not actually recommend the abolition of imprisonment for debt, was only luke-warm in its endorsement of the measure. Many county court judges state definitely that they will not inflict the penalty, for that it is a penalty, and a very serious penalty, cannot be gainsaid. It would be absurd to suggest that all credit would fall apart in the event of the abolition of imprisonment for debt. Indeed, except among the “instalment-system” creditors who prey on the poorer classes, there is no reason to suppose that credit would be affected to a material extent by such a change. As a whole, imprisonment for debt can be labelled a legal fiction. It is imprisonment for debt, and yet, more strictly, perhaps, it is a committal for contempt of court. The terms in this respect are interchangeable. The root of the trouble is debt.

“Under the (Roman) empire, every judgment required to be reduced to writing, and signed by the judge. It was entered in a register, and a copy was delivered to the parties. In the East, after Arcadius, the judgment might be drawn up in Greek, but the use of Latin was retained at Constantinople down to Justinian’s time.... After sentence, the debtor was allowed thirty days for the payment of the debt under the law of the Twelve Tables. At the expiration of that time he was assigned to the creditor by the prætor, and was kept in chains for sixty days, during which he was publicly exposed for three market-days, and the amount of the debt proclaimed; then, if no person released the prisoner by paying the debt, the creditor could sell him as a slave to foreigners. When there were several creditors, the letter of the law allowed them to cut the body of the debtor in pieces, and divide it among them in proportion to their debts; but some writers contend that the words _partes secanto_ are to be taken in a figurative sense, as referring to a division of the price when the debtor was sold as a slave.... The prætor allowed a delay of two months for payment of a judgment debt; and Justinian extended the period to four months, both to the defendant and his sureties, after which the debtor might be imprisoned, not in the house of the creditor, as in early times, but in a public prison.”[20]

One can scarcely leave a chapter on civil--as opposed to criminal [law]--coercion, without some mention of the writ of _ne exeat regno_. It has, perhaps, a certain distant relationship to “imprisonment for debt:” “It sometimes happens (for instance, where a plaintiff is unable to establish his case except upon the admissions of his adversary) that a defendant may, by leaving the country and so putting himself beyond the jurisdiction of the English Courts, seriously prejudice or perhaps altogether defeat a just claim. To prevent such a miscarriage of justice, suitors in the High Court of Chancery could for many years before the coming into operation of the Supreme Court of Judicature Act, 1873, apply for and in a proper case obtain a writ of _ne exeat regno_, addressed to the Sheriff of the county where the party named therein was supposed to be residing, and commanding him to cause such party to come before him and give sufficient bail in the sum endorsed on the writ, that he would not go or attempt to go into parts beyond the seas without leave of the Court, and on his refusal or neglect to comply with this demand to commit him to prison.... This writ, which issued only out of the Court of Chancery or the Court of Exchequer on its equity side, so long as it had an equitable jurisdiction, was originally a high prerogative writ by which the Crown was enabled to prevent any of its subjects from leaving the country when their services were required in it. The writ was subsequently applied to cases between subjects, and the principles which guided the Court in directing or refusing its issue, became by degrees clearly defined, so that Lord Eldon, L.C., said: ‘This Court, if not bound _ex debito justitiae_ (and I do not say it is so bound), is bound in the exercise of a sound discretion to grant the writ, if the case be a case in which the writ ought to be granted.’... Again, ‘if the Court, having granted time for payment of money, is satisfied before the time arrives that the party is going abroad to prevent payment of the money, it will undoubtedly interpose.’... Under the present practice, in order to obtain the writ, the applicant must show (1) that the circumstances are such that the Court of Chancery would have granted the writ, and (2) that the case is one which falls within sect. 6 of the Debtors’ Act, 1869.”[21]

Imprisonment for debt is nearly as old as the hills--under the Roman _régime_, as will be seen, it literally flourished--but it is not wanted in this country at this time and by a fictitious process, too, which is regarded with disfavour by many of the judges empowered to employ it.

FOOTNOTES

[20] Lord Mackenzie.

[21] _Oswald on Contempt, Committal and Attachment._

##