THE RECOVERY OF SMALL DEBTS.
ONE of the most carious survivals in modern jurisprudence is the power of imprisonment for Civil Debt, of which a small fragment is still legalised in this country. It is un-
doubtedly derived by direct descent from the extraordinary authority given to the creditor over the person of the debtor by the Roman Law. The relation of debt in ancient Rome was in fact the cruelest system of slavery, and though in course of time its severity was greatly mitigated, the radical idea that the creditor had a right to keep the debtor in jail until the debt was paid was never shaken. And from the Roman law this conception made its way into the jurisprudence of all modern Europe. But as society passed into a settled order, it became necessary to modify I the creditor's right so far as to make the State, and not the creditor himself, the custodian of the debtor. It is difficult to believe that any private persons could have dis- charged this function much worse than the English Govern- ment did up to a period within the memory of many persons still living. The shameful delays, the dreary wastefulness, and the brutal cruelties of the English system of imprisonment for debt, are they not written in the pages of " Pickwick " and " Little Dorrit " ? Almost the first piece of work which the Reformed Parliament took in hand after 1882 was, as is well known, the improvement of the Criminal Law ; and the Criminal Law Commissioners, whose valuable labours so largely affected subsequent legislation, were charged, among other things, with the investigation of the whole system of imprisonment for debt. They reported in favour of "limiting the power of imprisonment itself, and confining it to cases where it was warranted, on the plain and just principle of preventing the debtor from fraudulently absconding or removing his property beyond the reach of justice, or for the punishment of actual fraud, or compelling the debtor, after judgment, either to pay the debt, or make a cession of the whole of his property for the benefit of his creditor ; beyond that, we believe that the practice of im- prisonment for debt is neither warranted in principle nor bene- ficial in practice."
It was some years before the recommendations of this report were carried out, even in part. The Bankruptcy Act of 1861 made a considerable step towards the ideal sketched by the Criminal Law Commissioners. But debts not exceeding £20 in amount, subject to the authority of the County Courts, were exempted from Lord Westbury's Bank- ruptcy Act. In 1869 an Act for the Abolition of Imprison- ment for Debt was passed, and at the same time the law of Bankruptcy was again consolidated and amended. The first- mentioned statute provided in general terms that no person " should be arrested or imprisoned for making default in pay- ment of a sum of money." But this general principle is qualified by an exception in favour of the jurisdiction of the County Courts over small debts under £50, which allows imprisonment for a term of six weeks, " where any person had made default in payment of any debt, or instalment of debt, due from him, in pursuance of the order or judgment of any competent Cond." This might apply to persons owing more than £50, if it were not that the Bankruptcy Amendment Act exempts them specially from the operation of this statute. The debtor who owes more than £50 not only escapes the penalty of imprison- ment, but by surrendering his estate to his creditors obtains a discharge, if it pays not less than ten shillings in the pound, or if his failure to pay this proportion was due to no fault of his own, or if his creditors accept, as in most cases where there are few assets they are likely to do, a lower rate of composition. The bankrupt then, if he have not committed a fraud, which is punished criminally as a misdemeanour, starts a free man. But the small debtor who happens to owe less in the aggregate than £50, can never or hardly ever start clear, if he once gets deeply in- volved. Take, for instance, the case of a working-man in
London, earning, say, £2 a week. Perhaps he is extravagant,
perhaps unfortunate, and has run up a number of small bills, amounting in the aggregate to £25 or £30. The debtor's furni- ture and everything he possesses may be taken in execution by any one of perhaps five or six creditors, and he may be im- prisoned from time to time if he fails to clear off the instalments covering the balance, and may be imprisoned further at the suit of every one of the remaining creditors, until his character has been hopelessly damaged and his work irretrievably lost.
It cannot be denied that there is a singular difference in the treatment of the small debtor and the large debtor. " I have
had," says Mr. Commissioner Kerr, "the case of a defendant appearing to answer a claim by a trustee of a bankrupt, and he has said to me, ' Is it fair that I should pay the full 20s. to this man or be imprisoned, when the debtor here has paid only 103. in the pound and is free ?' I have answered, No, I think it medy, average considerably less than £3 ; that every case of im- prisonment entails a heavy charge upon the ratepayers for the maintenance of the debtor in prison, and possibly a still larger loss, by throwing him out of employment, and casting the sup- port of his family upon the rates. The absurdity of resorting to such a remedy in the vast number of cases which come before the County Courts is clearly shown by an instance cited by Mr. Commissioner Kerr, who, as Judge of the City of London Court, has a very large experience. "I know of one very strong case," he says ; " it is the case of a man named Little Joe, who has been committed three or four times for a small debt to, I think, a loan office. He is a man who earns his living in Billingsgate, —a few shillings a day, possibly not even that. The judgment is in one of the Metropolitan Courts ; he never can appear, and never does appear. If a judgment summons comes to my Court to be served, the bailiff of my Court knows the man to be earning what he can at Billingsgate, and he says, ' I have got another judgment summons for you.' When the officer has the warrant of commitment, this debtor says, ' Tell me when it is convenient for you, and I will come up.' That man rather enjoys two or three weeks of Holloway, because he is well fed and well housed, and he earns a little money. They employ him to do something, and he often leaves gaol with a few shillings, the country paying his expense." A Select Committee, of which Mr. Walpole was the chairman, went most thoroughly into the question of imprisonment for small debts during the course of last Session, and the Report that has now been issued with the evidence very strongly recommends the abolition of the power of com- mitment which the County Courts now alone exercise in practice. The weight of authority, so far as it was tested by the examination of witnesses before the Committee, appears to have been pretty equally divided. Mr. Commissioner Kerr, of the City of London Court, Mr. J. A. Russell, Judge of the Manchester and Salford Court, Mr. G. Russell, Judge of the Derbyshire Court, and Mr. Davis, stipendiary magistrate for Sheffield, bore very strong testimony in favour of the abolition of the present County-Court power of committal for non-payment of debt ; on the other hand, Mr. Daniel, Judge of the Bradford Court, and Mr. Worlledge, of the Suffolk Court, were as strong on the other side of the question ; while county-court officers, country solicitors, manufacturers and tradesmen gave their evidence with delightful impartiality one way and the other.
We have quoted some extracts from the statements made on the side of abolition, and the general tenor of the arguments for altering the law is that there is a manifest and unreason- able inequality between the treatment of the small debtor, who according to all the probabilities is likely to be the poor man, and the large debtor, who has been and doubtless will again be in easy circumstances. Furthermore it is clear, and especially from the testimony of those who maintain the ex- pediency of imprisonment for small debts, that this power is looked upon by the petty tradesman as a guarantee of credit which he would not otherwise care to give ; that in consequence of the possession of this guarantee, small shopkeepers have got into a habit of rash and indiscriminate trading with working- class customers and other people of small incomes ; that credit is often given lavishly to wives without the knowledge of their husbands, and that the debtors living by their daily labour have no time or opportunity to contest the claims against them, and are often forced in consequence by the threat
of imprisonment to pay unjust demands. It is clear, too, that imprisonment for debt is a wasteful and unjust method of dealing with pecuniary responsibilities, inasmuch as it destroys the debtor's power of earning money for the time, and almost certainly drives him to incur fresh debts with loan offices and money-lenders. A still more important considera- tion is the inequality of the law as administered by the County Courts,—not froni want of desire to do justice, but from the incapacity of ascertaining the real means of the debtor, and especially his obligations beyond the debt for which he is immediately sued. There is a singular variation also in the terms of imprisonment which different Judges are in the habit of fixing. Mr. Daniel, of Bradford, considers forty days a reasonable measure of punishment for a debtor who makes default in the payment of the instalments ordered ; while Mr. Russell, of Manchester, considers ten days more than sufficient, and would indeed get rid of the penalty altogether. These are the grounds upon which a number of the witnesses advocate the abolition is notfair,but I cannot help myself.' " It appears, moreover, that of the existing powers of imprisonment, and their conclusions these small debts, for which imprisonment is chosen as the re- are accepted by the Committee. On the other hand, it is con- tended, and we believe the majority of the County-Court Judges support this view, that " credit is as much a necessity for the poor as it is for the rich," and that the credit which the poor obtain for articles of common consumption would be completely destroyed by the removal of the only guarantee which at present induces the small tradespeople to give them credit at all. We might dispute the fact that credit,. save in very exceptional cases, is either necessary or useful to the man with small and precarious means. If it be a temporary convenience, it is a luxury for which he pays dearly, in the in- creased price and inferior quality of what he obtains for his money. But we think it is needless to enter into any discussion of the fundamental principles involved in this dispute. There is a case in point, and one practical instance is worth a score of theories. Working-people in Scotland must need credit, if credit be a necessity of existence, as much as their fellows south of the Tweed, and where credit is required, it is shown abundantly that it is to be obtained in Scotland. Yet in Scot- land there is no imprisonment for civil debt under £8 Gs. 8d., and the wages of artisans and labourers are pro- tected from " arrestment " to the extent of £1 a week. "Notwithstanding these circumstances," we are told, "modes of dealing have sprung up so that all necessary and proper credit is given." And so it would be in England, if we could get rid of the last remnant of a bad old system. This will be done, if Parliament next year should resolve to carry out the recommendations of the Select Committee,----to the ultimate advantage both of small traders and of their customers.
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