Ex Libris C. K. OGDEN /I J A TREATISE ON CIVIL IMPRISONMENT IN ENGLAND. I T A H ' : [ mim an' 1 "O XIQW31HA MA [DAM BAMOHT'ifg H O . \ A TREATISE O H CIVIL IMPRISONMENT Itf ENGLAND* WITH THE HISTORY OF ITS PROGRESS, AND OBJECTIONS TO ITS POLICY, AS XT KKirtCTI THS INTERESTS OP CREDITORS, AMD THE PUNISHMENT, OR PROTECTION OF DEBTORS* CONCLUDING WITB THE PRINCIPLES AND GENERAL LINES OF A PLAN FOR AMENDING THE PRESENT LAWj AND AN APPENDIX OF NOTES. BY THOMAS MACDONALD, OP THE INNER TMPLE, BARRISTER AT LAW, LONDON: PRINTED *OR J. MURRAY, N JJ, n,B*T THET. M.pgc.XCf, ;}* . rnnolhqrrij. . 3 - . " j't' o3 miri talds life 03 lo ij-nO -" wjni zailo ADVERTISEMENT, FROM fome late difcuflions it would feem thai; the prefent laws of arreft upon actions, and of imprifonment for debt, are yet confidered by many as, upon the whole, productive of general good confequences. The author of this treatife, which was written upwards of two years ago, has there- fore been induced to publifh it. He has endeavour- ed to place the fubject in all the different points of view of which it was fufceptible ; and might have added a regular plan for amending that branch of the law, which his inquiries and reflections had en- abled him to form. But, in the prefent mode of communication, he has thought it more becoming to offer only the principles and general ideas on which that plan proceeds. Thefe will be found in the concluding chapter. Its objects are, by means, of a plain and practical courie of proceeding, to. render imprifonment for debt more beneficial to the fair creditor; and lefs oppreilive to the honed debtor. On the one hand, to remove as much as poflible the creditor's jufl complaint of its inefficacy A3 as vi ADVERTISEMENT, as a remedy; and on the other, to preclude every argument, on the part of the debtor, for the necef- fity of fuch occafional afts of infolvency as have of late been fo wifely reprobated. 9 a 9 - I .H:T *. dflf 3 HA A* :-;'.' ' i i loataa-l t qM^ :oiTbi mfci For my part, knowing, as I do, thofe fentiments of juft and correct hu- manity, and that liberal, yet guarded reafoning on which your Lordfhip pro- ceeded, DEDICATION. ix ceeded, I cannot refrain from faying, that you there difplayed a public fpirit, of that character and defcription, which it is not flattery to extol. I have the honour to be, With great refpeft, MY LORD, Your Lordfhip's moft obedient, And moft humble fervant, Inner Templf, March 1791. THQ S MACDQNALD. -I/i . ' JL -iduJb I Jjjrfj o Ism , [iih"b '.^X 1 " i >%iiw ' 3rlj ! )rf 7"-y Duo i'>fioq^q PREFACE. f I ^ H E author of the following treatife knows JL little of his own mind, if any thing it con- tains can juftly be afcribed to a preiumptuous and intemperate fpirir of reformation ; which, even in matters of municipal law, abjures all relpeft for eftablifhed practice. He admires the genius of that philofophy which refifts the prejudices of habi- tual opinion, and penetrates to the true character of things : but he is well convinced that its reafonings are often too abftracl: for application j and that the good to be derived in particular inftances from frequent alterations of fixed and familiar laws, would upon the whole be far overbalanced by the uncertainty arifmg from perpetual fluctuation, Yet the timid pedantry of that fubrmfTion which too often fetters the minds of men, has nothing in it to bear the teft of candid reflection. Bending to every abfurdity with implicit obedience, it denies to fociety all the benefits of experience; and aims prepofteroufly at holding ftationary, what muft fof be progreflive. sii PREFACE. Numberlefs are the inftances which might bo mentioned of long fubfifting errors or defers ii^ moft important laws, both civil and criminal ; fiich as could not, but for the lazy habits of prejudice, have been fuffered to remain for any length of time. Till the year 1690* a landlord who had taken or dif- trained his tenant's goods for rent couid not by any poffible means fell or difpofe of them for his pay- ment. Till I7O2-J-, in trials for treafon or felony, he witneffes for the prifoner were examined with- out oath j while the tcftimony of thofe againft him had all the credit of that folemnity. Till the year 1706^, a perfon convicted of a crime which the law held to be clergy able ; that is, fuch as ought; not for the firft offence to be punifhed with death^ was neverthelefs hanged, if it happened that he had not been taught to read. It was not till the fame year 1706, that thofe grofs and palpable practices which difgraced the courfe of judicial proceedings, *nd formed the fubject of the amending ftatute of Queen Anne (penned and introduced by the great Lord Somers) were lopped off, or ir. part reformed. And till fo late a period as 1727 (| the {imple cafe of two contending parties having mutual debts was unprovided for 3 fo that inftead of fetting off the one demand againft the other, and having one judgment for the balance, two diftinct actions * z William and Mary, il< i. c. 5. f i Anne, ft. 2. c. 9, t c Anne, c. 6. 4 Anne, c. 16. H zGeo 2 c 22 and PREFACE: *m and judgments were neceflfary. Thefe are but examples. The exifting laws of civil itnprifonment) or, in other words, the laws which in this country give to plaintiffs and to creditors certain powers over the perfons of defendants, only becaufe plaintiffs make oath in fupport of their claims, and of infol- vent debtors, only becanje they are injohent, without even profeffing any purpofe of difcrimination, form a fyftem, in all its parts, fo Angular, and apparently fo repugnant to the general Ipirit of our jurifpru- dence, that the author of this treatife could not refrain from making an exertion to bring it fully before the public. But he would not be mif- \mderftood, Pie is aware of that dangerous fpecies of bigotry which wears the character of liberal opinion j and, while he reprobates the laws of ar- reft and civil imprifonment, as they now ftand, he accedes without hefitation to the following pofitions. i ft. That no law or eihblilhcd legal practice ought to be altered or fuppreffed, till by clear de- nxmftration it is fliewn to be eflentially pernicious; and that the hiftory of fuch a law or legal practice, however clearly its origin and extenfion may be thereby fhewn to have arifen from an abufe of form or perverfion of principle, ought only to have the of meeting that prejudice, or fuperibdous reverence, xiv PREFACE. reverence, which precludes enquiry beyond that point it ought not to weigh. tOJdbb adly, That no law whatever, however necefTary or wife it may be, can ftand the teft of reafoning from extreme cafes of private hardfhip or injuflice fuffered by individuals under its abufe. ^ijqr Hl/ll33 3'd 3dly, That whatever may have been anciently the cafe, the arreft and fudden imprifonment of debtors, or thofe who are folemnly charged as fuch, are now, in certain ctrcumjt antes, indifpenfably neceffary. w livs And laftly, that a. fair creditor is rarely a vindic- tive oppreffor of his unfortunate debtor; and that fraudulent or dilhoneft debtors, are far more nume- rous than cruel creditors. Ut>3T> It was with the full impreflion of thefe truths upon his mind that the author proceeded to con- fider the prefent fubjecl, and treated it in the man- ner he has done. Every prefumption is in favour of a fyftem, which, though frequently the fubject of complaint, has yet fubfifted for centuries. It was therefore neceffary, by defcribing its origin and ac- companying it in its courfe, to (hake the afcendancy which, to the exclufion of fair reafoning, it had gained. - The frequency of fraud, and the grofs violations of common honefty and juft fentiment, which the unprincipled and ungrateful conduct of many debtors was for ever prefenting to the general view, PREFACE. *v view, ferved to keep back the miferies of innocent and unfortunate men, who fuffered as infolvent debtors, from the attention which in juftice they deferved. It was therefore neceflary to bring them forward to obfervation in the circum- ftances which truly belonged to them. By a mifapplication of the principle, That no law is to be cenfured becaufe injuftice may be practifed under its abufe, every law, however noxious and unjuft, if not always the inftrument of iniquity, might be placed beyond the reach of objection. It was therefore neceflary to fhew that the root of the evil was the want of principle and confiflency in the law; that the various mifchiefs it produced arofe, not from it abufe, but from its regular exe- cution; that it fwept over all, without difcrimina- tion; was lefs frequently beneficial to the honeft creditor, than convenient for the extortioner; and in fometimes promoting the ends of juftice, pro- moted them by chance. It ftill remained to anticipate thofe arguments which, in order to balance what cannot be the fub- jeft of difpute, ingenious men are ready to fupport upon fpeculative ideas of fome general good. With that view it was only neceflary to try the law in queftion upon principles of general policy. 4i to the fair and honeft Creditor. 103 CHAP. xxiv CONTENTS, CHAR XVIII. tfbe Law of Imprifonment for Debt conftdered with a View to the prejent State of thcfe Frauds which it was meant to rejlrain ~ 105 CHAP. XIX. The remarkable Provifion contained in the Statute commonly called the LORDS ACT 9 108 CHAP. XX. An Argument founded upon the frequent Inftitution of CHARITABLE SOCIETIES for the Relief of in- fohent Debtors in Prifon 112 X- CHAP. XXL Afts of Insolvency n^ CHAP. XXII. RECAPITULATION 119 CHAP. XXIII. Conclufion. Containing THE PRINCIPLES IAND GENERAL LINES OF A PLAN for amending the Laws of Civil Iwprifonment 122 CONTENTS [ XXV ] CONTENTS OF THE APPENDIX. CT'HE Jurifdittion of the Court of Common Pleas; the Nature of different Writs ; and the ancient Courfe of Proceedings in Actions Page 145 Chapter 29 ofMagna Charta, " Nullus liber homo," Cfr. 148 Mr. Burgefs's " Con/aerations upon the Law of In- " Jolvency" 149 Ancient Proceedings in the Gz/fco/Bailiffs or Account- ants -^ 149 xxvi CONTENTS OF THE $be Statute of Merchants 1 50 Statutes againfi Bailiffs or Accountants 155 LordCoke'sObfervation upon the Proceedings of Edward the Firfl againft bis Judges 156 A material Difference in Effeff between commencing certain Actions in the Court of King's Bench by Bill, and commencing them by Original Writ 157 Obfervation by Lord Mansfield, and Quotations upon the SubjecJ of legal Fi&ions and Subtleties 159 The Abufes mentioned in the Statute of the %th of Elizabeth 160 ?he Defer iption of Abufes and Oppressions by Ar reft, in the Statute of the \yh of Charles the Second 161 tfhe Statutes requiring an Affidavit of Debt to the Amount of fen Pounds, pre-vious to an Arreft 162 Inftances of abfurd and opprejfive Imprifonments ftated in the Preamble of 25 Geo. III. c. 45 and the /*'- , nited Imprifonments for fmall Debts under that Statute 164 Note of the Law, which, by putting into the Creditor's Hands the Perfon, withdraws from him the Eftate of the Debtor 165 6 fbg APPENDIX. XXVli fc Law of Civil Imprifonment in Scotland, brought down from its firft Eftabli/hmnt to the prejent 1 66 tfbe Law of Civil Imprifonment in Holland, and in the trading Cities of Germany 177 *fbe Marquis of Beccaria on Imprifonment 178 Puffendorff and Barbeyrac on fafohenty 179 of the antient Proceedings at Law, in Civil Matters. "^H E original writ or warrant which ifrued from JL Chancery for bringing before the court the party charged with an injury purely civil, was di- rected to the fheriff; and it might naturally occur, that the law gave him power in all cafes without diftinclion, in executing his warrant, to bring the party, if he difobeyed, before the court by force. But this was not the cafe his warrant was only the original ground of certain writs and proceedings ; the courfe and operation of which give a juft idea of that excefiive regard which in thole days was paid to perfonal freedom, even in the exercife of the higheft gnd moft important powers of civil autho- rity*. After repeated ads of wilful difobedience and contumacy, by not appearing in court, the defen- dant was ftill fufFered to be at large, and perfect maf- ter of his perfon j and as, perhaps, he never had any property to lofe, or what he once had (which might have been fufficient to pay the debt) had gene to the king upon the writ of diftrefs which irTued for his difobedience, all the fubfequent writs and war- * The courfe of thefe writs and proceedings is ftated in the Appendix, D. writs jo TREATISE rants which fucccfiively followed, were fulminated againft a fhadow. If again the defendant obeyed the original writ, by appearing in court, and judgment pafied againft him, then ftill his eftate only was anfwerable his perfon was free. Such was the courfe of legal proceedings againft a man charged at the firit of another with the breach of an obligation purely civil. But where the injury was attended with violence, and therefore the cafe had fomething criminal in its nature, or, as the law-books exprefs it, favoured of criminality, his perfon was not fo inviolably fecure, even where the proceedings, fubfequent to die original writ, iffued from the Court of Common Pleas. He was liable, in an action of thevt nature, eventually to imprifonment ; but only in cafe he had no property to diftrain, and not till after repeated warnings had been given him *. When a defendant, having been brought into court by force of diftrefTes executed againft his ef- fects, had judgment given againft him, he was order- ed to pay a fine to the king for the public offence he had committed ; and till that fine was paid f, he was detained in cuftody on account of the -public-, but Hill, if he fatisfkd the king for the intereft of the public, the private creditor could only attach his property i he had no power whatever over his per- fon. * Appendix, E. f Gilbert's La\v of Executions, p. 59. CHAP. ON CIVIL IMPRISONMENT. 11 CHAP. IV. A Reflection. IT was a wild and unwarrantable liberty, which, in any cafe, fuffered a private individual to fet himlclf obftinately againft civil authority, by re- peatedly contemning a lawful command, which it was at all times in his power to obey. The origi- nal complaint might not charge him with any cir- cumftance of violence againft his neighbour; but he became criminal by his fubfequent conduct. His contempt made him an offender againft the public, and therefore fubjecled his perfon to the coercive power of public authority. But if die original charge was for an injury attended with cir- cumftances of force and outrage, his refufal to ap- pear in court was a proof of his guilt ; and the violence he had committed againft one, was fuffi- cient to (hew that his liberty, while he remained impunifhed, was dangerous to all. Yet this extreme of perfonal freedom has been extolled as antient Engliih liberty for as fuch it is defcribed in the declamations of thofe men, who, in viewing the rude and unprincipled fimplicity of former times, are for ever dreaming of the ideal felicity and vifionary virtues of a golden age. The legal hiftorian can inform us, that the per- fons of men were often placed beyond the reach of public reftraint, that they might be the furer vic- tims of private flavery. * CHAP. TREATISE CHAP. V. aw of Imprifonment fcr a Civil Injury, unar- companied by Force, introduced in favour cf tks BARONS. TH E progrefs from that extreme of private perfonal freedom, which counteracted the rre- ceffary powers cf civil authority, to its oppofite ex.- treme, which defeated their btft purpofes, is now to be traced. It was onjy by degrees that the idea of depriving a man of his liberty in any cafe, where he had not forfeited it by the commifiion of fome aft of open violence, could infmuate itfelf into a fyflem of laws which rofe upon the foundation of a great charter of liberties*. In very early times, dillionefty, or a difregard of the rights of others, affuming one uni- form rude and turbulent character, effected its pur- pofes by forcible means; but when the rights of individuals were guarded by the powers of a focial compact more clofely united, and better braced, difhonefty had to fteal towards its ends by fecret artifice, falfehoocl, and treachery. By degrees, therefore, the idea which had been before annexed to acts of open violence, extended itfelf to the impofitions practifed under all the different modes of fraud and artifice. But till the laws adopted that idea, it may well be con- * Appendix, F. ceived ON CIV1I. IMPRISONMENT. 13 Ceived what enormities were committed by men, who having no property to lofe, and nothing to fear for their perfons, committed them with im- punity : yet it was fome confiderable time before the laws did adopt that idea. The complaints of the poor and dependent could feldom reach the feat of government ; and in thcfe days every man was poor and dependent who was not great. It was not therefore till the great felt the evil that a remedy was thought of. It had become a com- mon practice with bailiffs and receivers" who collect- ed the rents of the Barons, to abfcond, without rendering an account of the fums they had received. In fuch a cafe the thought was natural, that the ferfon of the man fhould be feized, for the pur- pofe of compelling him to do what was clearly in his power, namely, to render an account '-of what he had received. In the reign of Henry the third a law was accord- ingly parTed*, by which it was enacted, That bailiffs who failed to account to their lords, if they with- drew themfelves, and had no lands or tenements by the feizure of which they might be diftrained upon the common writ of attachment, fhould " be at- tached by their bodies." Natural and rational as the general idea of this law certainly was, the novelty of it feems to have induced a degree of caution, in applying the remedy, which rendered it nugatory, or, at lead, extremely inadequate. The arreft of the defaulter's perfon could only, after all, take place where two circum- * 52 Hen. III. c. 23. Star, of Marlbridge. fiances I 4 TREATISE fiances concurred. It was necefiary not only that he fhould have abfconded, but alfo that he ihould not have belonging to him a freehold eftate in lands or tenements, even to the mofl trifling value*; for it was ftrictly interpreted as being a law againft liberty. If he either remained at home, or, rather choofing to go elfewhere with his booty, purchafed an acre of land within the county, to evade the ftatute, he might refufe to render an account, and his perfon was free as everf. * z Inlt. 144. f Appendix, G. . bkrorfl v vsrh icj- : .mob .HT CHAP. ON CIVIL IMPRISONMENT. 15 CHAP. VI. 1'he next Law of Civil Imprifonment y introduced in favour of the MERCHANTS. IT was in the celebrated reign of Edward the firft that the law firft feized upon the perfonal liberty of a mere debtor. The fame views of ambition which had led that able monarch to break down the grandeur of the Aula Regis, by annihilating its leader (the great jufticiar of the kingdom) and feparating its parts, taught him the expediency of advancing fome new acling power in the ftate, which might put the balance into his own hands, and enable him to preierve or deftroy the equili- brium at pleafure. The Barons, having long been the lords of the common people, were hardly the fubjefts of the king; and he faw that as long as the common people were the mere inftrmnents of others, they would be the inftruments of thofe who held over them the immediate means cf opprefllon. It was therefore by extending the views, and raifing the principles of the people at large, that he wifely thought of being indeed the monarch of his king- dom. This could only be effected by enabling them to acquit rights and interefts, under his patronage and protection, which Ihould render them independent of their former opprefibrs: and thefe were only to be acquired by means of the extenfion and encou- ragement of trade. But i6 t R ATiS g But as the law then ftood it was hardiy poftibie to carry on the fair courfe of trade with fafety. The' chief confumers of every commodity were in thofc times the proprietors of land : they contracted large debts to the merchants : their larids were protected from execution by feodal principles ; and the circui- tous progrefs Qf&ftreffes, even diftrefles infinite, as they were called, had the effect to encreafe but not to remedy the mifchief. Many of thefe diftrefies brought nothing to the creditor, but, on the con- trary, carried off the very property which ought to have paid him. They were difregarded by fome, who had no property to lofe, and defeated by others, who held the corrupt minifters of the law in their intereft. They formed, in Ihort, too tardy and un- certain a courfe of procedure for the enforcement of that punctuality, which even the fimpleft ideas of trade foon fhew to be indifpenfable towards the fupport of mercantile credit. In the eleventh year, therefore, of that monarch's reign, the ftatute of Acton Eurnd y as it is called, was parTed j by which it was made lawful to a merchant, whofe debtor had acknov/ledged his debt before a certain magiftrate, to apply, after the day of pay- ment, for a warrarit to fell his debtor's moveables and chattels ; or, if no buyer was to be found, to have them delivered up to him, at a reafonable price, to- wards fatisfktion of the debt ; and if the debtor " had no moveables whereupon the debt might be levied," the ftatute declared, that cc his body ihould then be taken where it might be found, and kept .-in prifon, ON CIVIL IMPRISONMENT. 17 prifon, until that he had made agreement, or his friends for him." Two years after, the remedy was farther extend- ed, with much feverity, by a new law*, explanatory of the former -, by which the debtor of a merchant was, after the day of payment, made liable to im- mediate imprifonment, without regard to his effects ; but with exprefs power to him, at any time within a quarter of a year, to fell his lands or chattels for the purpofe of difcharging the debt ; and after ex- piration of that quarter, all his lands and goods v/ere to be delivered to the creditor, (f by a reafonable ex- * f tent ;" the debtor's body being ftill kept in prifon till payment of the debt by means of his eftate ; the creditor finding him bread and water for his fuf- tenance. It was declared that the benefit of this ftatute fhould not extend to the JEWS. Both thefe ftatutes have been underftood as forming one entire law; both being entitled theStafufe of Merchants, as exclufively in favour of that clafs of men; and its extraordinary feverity againft their debtors, arofe from the circumftances of the times. * 13 Edward I. ft. 3. The preamble of this ftatute points out the peculiar objeft of the law in thefe words: " Forafmuch as merchants, which heretofore have lent their goods to diverfe perfons, be fallen in poverty, becaufe there is no fpeedy remedy provided whereby they may fhortly recover their debt at the day of payment; and for this caufe many merchants do re- frain to come into the realm with their merchandize, to the damage of fuch merchants and of all the realm." As feveral parts of the ftatute may afford matter of obfervadon, the whole of it will be found in the Appendix H. C The iS TREATISE The rifmg Interefts of trade required in thofe days the helping hand of government : for the merchant, who was not then, as he is now, the firft private character in the ftate, had to ftrnggle in the crowd againft the contempt and injuftice of the great. It was Edward's policy to bring him forward, by ex- traordinary legal privilege j and his policy was founded on public wifdom. CHAP. ON CIVIL IMPRISONMENT. 19 CHAP. VII. .Another Law of Imprifonment in favour of the BARONS. IT was not Edward's policy to attempt any fud- den deprefiion of the great men who furrcunded his throne. He knew that they would fall, exactly as the commons rofe ; and it was only necefiary to divert their attention from the turn which he had given to the balance. The mercantile body had received fignal marks of favour j and if the barons had not at the fame time been foothed, they would, it is probable, have exerted all their power for the difcouragement of that body of men j not as rivals of any note or con- fideration, but as being, in their eftimation, unwor- thy and contemptible favourites. The law which had been made in the laft reign for the purpofe of compelling by imprifcnment the bailiiTs and receivers of the barons to render their accounts, was in itfelf a fit fubject of amendment : for, even after the defaulter had complied with the law, by delivering an account, the fubftantial evil Hill remained. That account might ihew a heavy arrear againft him ; and there the flatute was filent. The Barons, therefore, now acquired a very ftrong remedy, giving them powers over the perfons of their debtors, (for it may be prefumed that, except their te~ nants, their receivers of rents were their only immedi- C a ate .20 TREATISE ate debtors) ftill more ample than thofe obtained by , the merchants. It was enacted *, that their bailiffs and receivers, upon being found in arrear by the decifion of auditors (who were appointed by thefe lords themfelves) fhould be immediately committed to the nearefl prifon, where the fheriff, or his gaoler, was to keep them in irons ;. and where they were to live at their own expence, till they fully fatisfied their lords for the arrears which they owedf. Thefe flatutes againfl bailiffs, in matters of account, are material to the prefent purpofe, as they are re- ferred to in fubfequent laws, extending imprifonment to other caufes ; but of themfelves, they operated only within a very narrow circle, and were directed againfl one particular object. They went, indeed, beyond the line which had long been held facred, and which protected every man from the lofs of liberty, for any caufe fliort of open outrage, or forcible injury : but they were alfo levelled againfl an act of the worfl (pecies of difhonefly ; namely, a breach of trufl, ag- gravated, in general, by a difregard of one of the ftrongell relations then known in the flate. . * 1 3 Edward I. c. u. f Appendix I. uoHj i ji bn ; sonab " :;ur ibicbb 'rjflfj >[[c[mi CHAP ' ON CIVIL IMPRISONMENT. 21 CHAP. VIII. Civil Imprifomnent farther extended by the Legijlatun* FOR upwards of fixty years the law of imprifon- ment, for a caufe purely civil, refted where it had been left by Edward the'firft, viz. with Barons who had been defrauded by difhoneft ftewards, and merchants, who required all the encouragement and aid which extraordinary privileges and protection could give. It operated upon fuch particular cir- cumftances as at firft juftified its introduction, and afterwards facilitated its progrefs. The idea was no longer novel. The practice, in thofe fpecial cafes, had reconciled it, by habit, to the minds of the people. When, therefore, it was afterwards ex- tended to others, it proceeded without obfervadon ; till at length it grew infenfibly into a common, courfe of execution. In thofe days, the circle of contingencies, in the affairs of men, was more bounded than it is nowj their connections were fewer j their tranfactiohs lefs complicated. The effects, therefore, of future events, were more within the range and forefight of pru- dence; and it followed, as a neceflary confcquence, that fewer honeft individuals could be ruined by unforefeen calamities. In general, an infolvent debtor was then an unworthy member of fociety. So uncertain were the obligations which, in antient times, arofe from implied engagements, that a debt, tech- C 3 nically la TREATISE nically fo called, being a right to demand afum cer- tain, was founded on fome public, or judicial, act, or written inftrument j or fuch a contract, without writing, as might reduce the fum demanded to a certain precife amount. To debts of this de- terminate nature the aEtion of debt was confined ; and if it proceeded upon a written inftrument, fuch as a bond or deed, the defendant could run little hazard of fufFering by an erroneous or unjuft judgment -, becaufe, if the debt had been paid, the bond or deed would have been cancelled. If it proceed- ed upon a fimple contract, there was a privilege incident to the action, which indeed lay open to manifeft objections in point of expediency as well as juftice, but protected an honed defendant of fair character. He was permitted to clear himfelf of the demand, by fwearing that he owed nothing j ' which was conclufive, if he got eleven of his neigh- bours (who were called compur -gators) to fupport his credit, by making oath that they believed he fwore truly. This was termed waging his fazv*. To this action of debt (for reafons perhaps found- ed upon the particular nature of fuch. actions) and alfb to the action aftZethtue, in which the defendant had the fame privilege of wager of law, the fame procefs againil the perfon of the defendant, which had been given to the Barons againft their bailiffs ; or, in other words, the law of imprifonment by arrefl, was extended in the reign of Edward the third f. * The fource of this practice has been often traced, and is well known Even now it is known in lu-w. f 25 Edward I II. c. 17. In ON CIVIL IMPRISONMENT. 23 In the action of detinue, the nature of the injury had fomething criminal, or at leaft grokly difhoneft, in its competition. That action* lay againft a per- ibn who having, by fair means, or with the appear- ance of right, got the goods of another into his polleflion, afterwards wrongfully detained them. He had not indeed poffrffed himfelf of them by thefc or robbery j but, from the moment he refufed to re- ftore them to the right owner, he held them by no better title. * Now fuperfeded in practice by the adlion of trover, in which there lies no wager of law: as the action of debt, on fimple contract, is, (partly, for the fame reafon), fuperfeded, in praftice, by the adiion of indebitatus aj/limpfit, for breach of promife, or of affiimfjit ; which is the technical word for en- gagement or undertaking. . C 4 CHAP. 24 TREATISE CHAP. IX. *Lbe Law of Imprijonment Jlitt further extended in Pr a ft ice; but not by the Legiflature. FOR fome time after the eftablifliment of the feveral courts of law, claims of right were moft frequently both made and refilled with cir- cumftances of force and violence, and the proper. fubjects of jurifdicYion belonging to the Court of King's Bemhy comprized, in thofe days, a great (hare of all the difputes which occurred among the people. An injury, in matter of private right, was then often truly, as v/ell as technically, denomi- nated a trefpafs vi et armis. But the fubjects of litigation changed of courfc with the ' manners of the people. Civil injury, without any mixture of violence, gave occafion to many actions ; and as thefe were properly fubject to the jurifdiction of the Court of 'Common Pleas 3 which had alfo cognizance of certain forcible injuries, by ipecial warrant, or original writ from Chancery for each particular caufe, that court foon came to de- termine moft of the queftions of private right which occurred. The bufmefs of the Court of King's Bench was in this manner much abridged; and it would feem, that there have been judges who found lefs enjoy- ment in the honourable porTeffion of their own proper pre-eminent jurifdiction, than in the conilant exer- cifc of judicial power, however trivial the fubject, 4 The ON CIVIL IMPRISONMENT. 35 The active fpirit of induftry began to be bufy even on the bench; and its fubftantial gains foon bore down the dignity of magiftracy*. The chancellor, in exercifing his power of ifibing the king's original writs at the fuit of the parties complaining, by which the Court of Common Pleas was authorized to take cognizance of caufes, was frequently obliged to form new writs, according to the exigencies of particular cafes, to which former precedents did not apply. This was indeed the fubject of "a fpecial itatutef; and an action founded upon any fuch newly-formed writ, was technically called an action of trefpafs on the cafe, to dirtinguifh it from the action of trefpafs vi et armis, according to the different nature of the injury. For though both had the appellation of trefpafs, yet the trefpafs vi et armis, applied properly to an act which was " in icfelf an immediate injury to another's perfon or pro- perty." And the actiqn on the cafe applied 'to an omiffion; or to an act which was not immediately, but only by confequence, and collaterally, injurious. The various queflions thus arifing from the mul- tiplicity of new rights, which the tranfactipns of an improved fociety had introduced, were brought before either of the courts indifferently ; ac- cording to the fuggeftion of the plaintiff at fuing out his original writ from Chancery. And the Court of King's Bench came alfp frequently to act by a delegated^ not an original authority, even in Appendix K, f 13 Edward I. c. 24. judging 26 TREATISE judging of injuries which were held in law to bci trefpaffes both againft the private party and the public peace; and were'confequently the proper fub- ject of their own original jurifdiction*. From that time, thofe lines of diftinction which had been clearly and ftrongly marked out at the eftabiifhment of the courts, were rendered obfcure- and confufed. The courts came foon to be rival powers, and were bufily fuperfeding the legiflature by fittitious contrivances, which operated as new laws. Indeed, all their proceedings were fufnciently expreffive of what was, in thofe days, their ultimate object which was neither the protection of perfonal liberty; the fecurity of property; the fuppreffion of groundlefs litigation; nor the peace of the public. The legiflature, it has been obferved, had already- removed the natural impreffion (inconfiftent, indeed, in its full extent, with the well-being of advanced fociety) that no civil power could touch the per- ibnal freedom of a man, who had committed no violent wrong, or offence againft the peace of the public; and the people therefore were prepared to fufter the gradual progrefs of imprifonment, even for the declared purpofe of preventing only a re- mote inconvenience. The writs of trefpafs from Chancery came focn to be formed, with a view more to the procefs which might be convenient for the plaintiff than to the nature of his complaint. Caufes which had nothing in them of trefpafs, or active injury, but arofe perhaps * Appendix L. from ON CIVIL IMPRISONMENT. 27 from omiffion, had yet been denominated trefpafies: and partly, perhaps, to favour die jurifdi&ion of the Court of King's Bench, or to divide the buii- neis of civil actions more equally j but chiefly, to authorize the imprifonmeht of the defendant, for which purpofe a charge of violence was indifpenfable, they were often feigned (without the fmalleil colour of truth) to have been attended with /era*. Thus in numberlefs inftances, before the legifla- ture had extended imprifonment, a defendant was deprived of his liberty by the falfe application of a word. . CHAP. aS TREATISE CHAP. X. *The fame Subjeft continued. BY means of fictions, confiderably bolder than that which has been juft defcribed, the laws of arreft and imprifonment were carried, in practice, ftill farther. When a defendant was in the cuftody of the Court of King's Bench ; that is, in prifon, by its authority upon a charge of forcible injury, he might, if fued in another court, have got clear of that fe- cond action, by pleading the privilege arifmg from his being already in the cuftody of the Court of King's Bench*. Upon this a principle arofe, that the court having him in cuftody for one fort of injury, was entitled to proceed againft him for caufes, of a nature totally different. This principle, by a fiction contrived for the pur- pofe, the officers of the court turned to good ac- count. It was onlyfuppofmg a man to be guilty of a trefpafs, or public offence, fuch as fell under the proper cognizance of the court, while perhaps they knew him to be innocent. The proper warrant of the court, viz. the Bill of Middle/ex, (as it is gene- rally termed) was iffued for feizing his perfcn im- mediately, and taking him into the cuftody of the court, that he might anfwer (as it was feigned) for * .Appendix M. the ON CIVIL IMPRISONMENT. 29 the trefpafs with whicfy he was charged. He was brought accordingly, as a delinquent, before the court, and then given to underftand, that the warrant had charged him with a fuppofed trefpafs, or forcible injury, for the fole purpofe of entitling them to feize his perfon; and that noWj being a prifoner, he was only to anfwer a complaint made againft him by his neighbour, refpecting a debt, or private tranf- action between them. The Court of Common Pleas acted, of courfe, upon a fimilar plan, and proceeded upon a ficti- tious trefpafs, which authorized the fubfequent pro- cefs of imprifonment for it is to be remembered, that without a charge of trefpafs, imprifonment, or capias, was no part of their procefs*. The Court of Exchequer proceeded alfo in a fimi- lar manner. Their jurifdiction was, in its original nature, ftrictly limited and very clearly defined. As mentioned in a former chapter, they had, minif- terially, the management of the king's revenues, and judicially, the power of proceeding in matters refpecting his debtors. When, therefore, they meant to exceed their jurifdiction, titty fuppofed the plaintiff to be the king's debtor. Upon that falfe fuggeftion or fiction,'they ifTued their own writ againft the defend- ant, as being debtor to the king's debtor ; averring, that the plaintiff, as the king's debtor, was thereby the left f a kle to P av tne king's debt. Upon that * See cJ.iap. 3, fupra. f The writ therefore obtained the name of Quo minus, from the introductory words of the fentence. fiction, 30 TREATISE fiction, this debtor of the Juppcfed debtor of the king, was feized, imprifoned, and brought into court > and then the fidion had done its office*. * The encouragement and indulgence which the fpirit, either of litigioufncfs or rapacity, daived from this eagernefs cf prndlitioners, belonging to particular courts, to acquire em- ployment, may be eafily conceived yet the fictions made ufe of to draw jurifdiction to different courts, in cafes of which they had no legal cognizance, while they gave rife to many illegal imprifcnments, may have been productive of one very important good confequence, as " they have probably," to ufe the words cf Mr. Mitford in his treatife on the pleadings in Chancery, had the effeft of preventing that abufe of power which is too " often the confequenee of the fingle jurifdidlion of one fupreme *' court." The legiflature however might, without the aid of fc&ion, have done the fame thing. CHAP. ON CIVIL IMPRISONMENT. 31 CHAP. XL *The Law of Imprifonment ftill extended by the LEGISLATURE. FO R upwards of one hundred and fifty years, vi. from the 25th of Edward the third, to the 1 9th of Henry the feventh, the law of civil im- prifonment was not extended by the legiflature* it was, en the contrary, alleviated in the reign of Henry the fixth, by the ftatutory introduction of bail to the fheriff, to be afterwards explained. During that period, however, the induftry of the practitioners of the law had been bufily and profitably employed in fictitious practices, which were fome- times attended with certain falutary effects; but, in extending imprifonment, without law, were clearly unjuftifiable. Thofe practices met at length indirectly with the approbation of the legiflature. The law of imprifcnment, by arreft of the defendant, was extend- ed by ftatute f to all actions upon the cafe (as they were technically denominated) that is, to all fuch actions, proceeding, as already explained, upon original writs, for damages, arifing confequen dally from the particular circumftances of each particular cafe. This was extending the law of imprifonment, * Appendix N. f 19 Henry VII. c. 9. without 32 TREATISE without reftriction or qualification, to almofl every cafe which could occur*, and putting it far beyond the forefight of any man to guard againft it. Obligations in law arifmg from the moft remote confequences, might at any time deprive him of his liberty. But in former times, the particular genius of the monarch gave birth to particular laws for the govern- ment of the people; even where his own immediate interefts did not require their aid. It was in the reign of Henry the Jeventh that the law thus extend- ed the imprifonment of defendants upon mere civil demands. The fpirit of avarice was then feated on the throne of England; and the rights of per- fonal freedom; the independence of integrity; the efforts of induftry; even the facred claims of mif- fortune, were relentlefsly facrificed at her fhrine. The reign of Henry the feventh became the petty tyranny of an extortioner; not the fovereignty of a monarch: and the people were taught, by the balV miniftry of Empfon and Dudley, and the frigid maxims of their matter, that a failure in the punctual payment of money, was a wrong, which no diftjndtions or circqmftances could ex- tenuate. * It vas afterwards, by 23 Henry VIII. c, 14. extended to aftions of annuity and covenant. CHAP, ON CIVIL IMPRISONMENT. 33 CHAP. XII. tfhe benefit of Summons or Warning, previous to the Arrejl and Imprisonment of Defendants, taken away by new contrivances, founded upon Suppofition and Fiftion. IN fuch actions as proceeded upon an original writ from Chancery, the courts could only feize the perfon of the defendant by a fubfequent writ of c.dpias ad refpondzndum iflued againft him, even- tually, and after the warning which preceding writs afforded him. The officers of the courts were thus frequently difappointed; as defendants who received fuch previous notice, had an opportunity of com- promifing claims, or appealing to the reafon and humanity of creditors. But they had alfo an opportunity of flying fud- denly from their country like felons ; of relinquifn- ing their early habits ; breaking the deareit ties of nature ; and" wandering forlorn in a land of ftrangers for to this ftate of mifery, it was faid, a debtor would fubmit, rather than yield himfelf, a helplcfs priibner, to aniwer for a debt he could not pay. The practice of the courts, therefore, took a new courfe. By a chain of fictitious contrivances, they afilimed the power of originating actions in fuch cafes as, the law faid, fhould only be originated by the king's writ from Chancery plaintiffs were in Jubilance, though not perhaps in form, delivered D from 34 TREATISE from the preliminary of finding fledges of f or feciirity to the public, againft groundlefs or ma- licious fuits ; and defendants were inftandy feized by the officers of court, without notice, intimation, or warning of any fort -, fo that their " bodies" could not, by any poffibility, be withdrawn from the united power of the plaintiff, the judge, and the gaoler. The minds of the few who obferved fuch innova- tions were diverted to confiderations of the conve-* niency, which, it was faid, would refult from a practice correctory of the law And the plan was carried into effect; thus An original writ from Chancery was fuppofed Pledges of profecution, or fecurity againft ground- lefs and malicious fuits y were fuppofed the notice to the defendant was fuppofed the fheriff's inquiry for goods was fuppofed his anfwer or return, that the defendant had no goods, was fuppofed And upon thefe various fuppofitions, of important facts *v the writ for feizing the defendant's perfon iffued on the inftant j and, inftead of being the very laft, was the frft proceeding againft him. All the preced- ing fteps were regularly taken in law, that is, (ac- cording to the meaning of the expreffion in many cafes) they were not taken in truth. The blow thus -fecretly and fuddenly given,. m every cafe, without regard to circumftances, it was- impcfiible to ward off, even by fair, and amicable means ; t and the credit and character of the defendant perhaps .were ruined. But the offi- cers of the court were made fure of emoluments, * Appendix O. which ON CIVIL IMPRISONMENT. 35 Which might otherwife have efcaped them. The legiflature knew nothing of thefe new laws j but the people were told " In fiftiom juris confiftit equt- tas"~ All obftruftions or precautions in the way of fuitors, (becaufe fome had tended to the delay of juftice,) were now thrown down ; and the body of a defendant, which might, it was faid, have been withdrawn from the plaintiff by voluntary banifh- ment, was thus fecured to him by imprifonment*. * It need hardly be obferved, that whatever reflections may arife upon the conduft of the courts formerly, in not annihilat- ing fees, but difpenfing with proceedings, which flood, reafon- ably, between a mere defendant and imprifonment, and which it was their duty to have preferved wherever they had not been fuperfeded by ftatute; and however far it may be corrcftly jufl to fay, that fuch practices were dangerous and illegal, it does by no means follow that thofe exploded proceedings ought now to be reilored in practice, or any thing fimilar to them adopted. It will appear from the fequel that they have not been ftated with any fuch pnrpofe in view, to 5 CHAP, 36 TREATISE CHAP. XIII. _ The Maxim " IN FICTIONE JURIS GONSISTIT EQUTTAS." SUCH general maxims as communicate no precife idea, are weapons equally dangerous in the hands of perfidy and corruption, or of igno- rance. Thofe ftrange miihapen powers, which prevailed in the reign of Charles the firft, practifed the worft of their prepofterous follies and abufes, under the motto " Saluspopultfupremalex." The people were pleafedwith the found; and never confidered that, of itfelf, it meant nothing, becaufe it defined aothing. The wildeft latitude of opinion, or perverfion of udicial authority, has, at times, found flicker under the adage " Eft boni judicis ampliare juftitiam" The maxim " In fitfione juris confiflit equitas" when taken as a general maxim, degrades the dig- nity of juftice, and is an infult to legiflative wif- dom. Yet this maxim has, in the writings even of thefe days, been repeated and extolled as a propo- fition which every inftance demonflrates. When from premifes which have no foundation in fact, but are fuppofed in law, a found conclufion is drawn, and a falutary effect produced, juitice is adminiftered by the machinery of legal fiction. But juftice ON CIVIL IMPRISONMENT. 37 juftice difclains to furrender her own natural cha- rafter, or to diftort her proceedings, by travelling through circuitous paths, to that which may be di- rectly attained. Where the alternative is, that with- out the ufe of a fiction, in form, either the legifla- ture mufl ftrike at the root of a whole fyftem to get at a particular evil ; or judges be compelled to ftretch out the arm of authority in fupport of pal- pable iniquity, the affiftance of legal fiction is there to be permitted. But when legal fiction operates againft the ends of juftice, and the beft principles of nature, it acts in oppofition to the only purpole it can profcfs ; and then deferves another name *. * See an cbf;rva'ion on the fubjed of legal fiftion, by Lord fylansfelJy Appendix P. T) G H A P. ^8 TREATISE . CHAP. XIV. BAIL for the Appearance of Defendants or " BAI TO THE SHERIFF." THE perfonal liberty of defendants having become a lucrative fubjedof pofTeffionin the hands of the minifterial officers of the law, fheriffs and their followers let to farm the emoluments of their power The confequences were dreadful. The country was over-run by bands of robbers, clad in the garb of office, and armed with the warrants of civil authority. The people were frightened at the name of their fovereign. This had been the ftate of things for a long courfe of years, when, by a flatute of Henry the fixth, fome interruption was given to thofe depre- dations. By that ftatute* fuch offices were no longer to be let in farm ; and perfons arrefted by the fherirT upon actions, were, agreeably to the common law, to be fet at liberty, upon reafonablc fureties, or bail for their appearance, * 23 Hen. VI. c. 9. The preamble of this ftatute (hews the prevalence of thofe abufes which have been defcribed above. It is in thefe words :. " Item, the king confidering the great perjury, extortion, and oppreffion, which be and have been in this realm by his (heriffs, under-fheriffs, and their clerks, coro- ners, ftewards of franchifes, bailiffs, and keepers of prifons, and other officers, in divers counties of this realm, hath ordained by authority forefaid, in efchewfng all fuch extortions, perjury, aa'4 oppreffion, that no ftieriff," &c, Yet ON CIVIL IMPRISONMENT. 39 Yet they were only delivered from the hardfhips of immediate imprifonment. In fact, their perfons were given up to their bail inflead of the gaoler, Jf the defendant did not appear, the bail were an^ fwerable to the extent of the bail bond *. If the ftatute, in giving the benefit of bail to defendants, had alfo reftored that part of the com- mon law which required fecurity from plaintiffs for the fair and bond fide profecution of actions ; or had provided fomerhing equivalent, the remedy might have operated. But fo long as it was in the power of a plaintiff to raife an action" for any fum, without qualification or reftraint, however groundlefs the demand, he could gratify his malice, or accom- plifh his purpofe of extortion, by profecuting for a film far beyond the credit of the defendant And the fubfequent practice of the courts extended the evil; for, by virtue of their own difcretionary powers, they required from the defendant fubftan- tial fecurity, or, as it was termed, ffecial bail> in all cafes without diftinction where the plaintiff ftated his caufe of action to amount to . 20 or upwards; and afterwards, inftead of raifing the fum with the rife of money and the circumftances of the people, they reduced it to one half that fum; fo that common bail, as it was termed, that is, the jnfertion of the fictitious names of Doe and Roe as * This bail for the defendant's appearance can only be discharged by his giving bail, after the return of the writ, for the cofts and condemnation; or that he lhall render himfelf * priibner. P 4 fecuritiesj 40 TREATISE fecurities, was admitted only where the debt ap- peared from the plaintiff's own ftate of it to be under . 10. In that cafe the defendant, though liable to arreft, was difcharged out of cuftotly upon nominal bail ; but wherever the debt was . TO or upwards, and he could not give fubflantial bail, or pay the mcney, he had no means of regaining his liberty^ 1 C H A P. ON CIVIL IMPRISONMENT. 41 CHAP. XV. The imperfeff Remedy applied by the Legtjlature, to abujes prafiifed under the Law of Bail, in the Reign of Charles the Second. THUS flood the law and practice after the ftatute of Henry the fixth. The fuperior courts imprifoned the defendant for want of bail in every cafe where the fum in queftion, according to the plaintiff's account of it, amounted to . 10, or upwards ; and in no cafe was it neceffary for the plaintiff to Hate the caufe of action in the writ upon which the defendant was arrefted. It is therefore hardly pofiible to conceive any thing more completely empty, or more abfolutely falfe, than the form of writ by which, in the name of the king, his fubjects were, for warit of bail, daily thrown into prifon ; and yet, notwithftanding the grofs outrages againft juftice and good order, which were thus committed, in evafion of the ftatute cf Henry the fixth (and which did not pafs un- noticed by the legiQature * ) no preventive was thought cf till the I3th of Charles the fecond : though during that long interval the laws of civil imprifonment had been greatly extended. Exclufive cf the fatal imperfection which has at- tended thefe laws from their firft extenfion over the people at large, throughout their whole progrefs, yiz. their indifcriminate and unbounded operation, * See 8 Eliz. c. 2. giving colls in certain cafes to defendants yexatioufly arrefted. Appendix Q^ there 4-i TREATISE there were here two manifeft fources of endlefs abuie i ft. There was no check upon a plaintiff who was difpofed, or found it convenient, to raife a groundlefs action for a fum beyond the credit of the defendant And, id. No means were provided for Informing the defendant, at the time of the arreft, for what caufe he was arrefted. Although the former of thefe evils was more weighty than the latter, and the ftatute of Charles the fecond defcribed both of them in very ample terms*, yet it only provided a remedy for the latter ; and fuch a remedy as removed but part of the evil. It went no farther than to ordain, that 4f the certain and true caufe of action was not par- ticularly defcribed in the writ or warrant, the defen- dant fhonld only be obliged to find bail to the ex- tent of . 40. Whoever, therefore, was oppref- fively arrefted upon a writ or warrant which defcrib- ed a fpecial caufe of action ; or who could not find bail to the amount of . 40, was as much without a remedy as ever. v What was the confequence ? The multitude ftill groaned under all the evils which the ftatute defcribed the gaols were full of milerable wretches, oppreflfed as infolyent debtors -, and the legislature exprefled their regret, while they proclaimed their indolence, by inventing the feeble, and impolitic^ ' expedient of an aff of mfohency f. * 13 Car. II. ft. 2. c. 2.-T-See the defcription of the abufe; Which then prevailed, (and do ftill prevail) in ihe preamble of thai ftatute, Appendix R. f See chap. 'infra, upon acb of infolvency. e H A p ON CIVIL IMPRISONMENT, 43 CHAP. XVI. $he Efeff of the Statute of CHARLES THE SECOND upon the Warrants nf Arreft and Im^rifonment of the Court of King's Bench, IT 'was formerly felt as one of the inconveniences attending thofe fictitious proceedings in courts of law, which were invented for fuch purpofes as could not bt avowed, that upon every alteration which the legifiauire found it necefTary to make upon the legiii couife of procedure, inconfiftent with actual practice, fome fictitious regulations were engrafted by the courts themftlves. It muft ever be fo. It is the object of fuch fictions, profeffedly for purpofes of convenience (which it is certain they often promote) to counteract or evade, while theyfeem to co-ope- rate with law. To preferve their exiftcnce, by faving appear-r ances, thofe fictitious proceedings had, therefore, to accommodate themfelves to whatever new fhape the law might aiTume; and to extend or abridge their operation accordingly. The law knew nothing of the fictitious practice by which the Court ,of King's Bench had acquired an original jurifdiction in certain civil caufes -, or of the fummary arreft and imprifonment to which de- fendants, in fuch civil caufes, were fubjected by S, courfe of procefs which had been calculated only 44 TREATISE for forcible injuries. The ftatute of Charles the fecond, therefore, in providing a remedy for the* grofs abufes it defcribed, by ordaining that writs, &c. fhould fpecify the true caufe of action, flruck colla- terally at the very root of that fictitious practice. The Court of Common Pleas thought they had by this ftatute effectually recovered all their original jurifdiction in caufes of a nature purely civil ; and the officers and practitioners in the Court of King's Bench were alarmed at the profpect of lofing fo great and lucrative a fubject of cognizance. Indeed the ftatute was fo directly repugnant to the fiction by which they held it, that the lofs appeared in- evitable. But they found relief in one of thofe diftinctions which practical men of words* have frequently brought to bear with fo much fuccefs againft fenfe and reafon. * The ftatute/ it was faid, c will not be diibbeyed, if what it requires is done, though Jome- thing more fhall alfo be done. It does, indeed, require that the true caufe .of action (hall be fpe- cially defcribed in the writ, but it does not fay that a falfe caufe of action may not alfo be given j there- fore the ftatute will be obeyed, if after ftating a falfe caufe of action, viz. a fictitious trcfpafs or forcible injury, a true caufe fhali alfo be defcribed in the fame writ. Thus the writ will have a two- fold operation the firft part of it, though falfe, * The reafonings of the courts were, even at that period, as much confined, upon many fubjefts, by the narrow fubtleties of language, as they are now enlarged by a wife liberality of principle. ON CIVIL IMPRISONMENT. 4; will, " according to the courfe of the court" found the jurifdiftion the fecond, being true, will comply with the law, and give notice to die defendant of the caufe for which he is imprifoned V In this manner the new law produced only .an addition to the old fiction; and thofe fummary warrants of imprifonment which had been formed for luch trefpaiTes as by their outrage difturbed the quiet of fociety, ftill continued to iffue, upon a falfe fuggeftion, againft the liberty of the peaceable trader, or unfortunate debtor. * Accordingly the bill of MidMefex, or writ of latitat which followed it, in cafe the defendant was not to be found in Middle- fex, from thenceforward not only required the defendant to anfv/er as before to a plea of trefpafc, but contained an addi- tional claufe defcribing a fpecial caufe of action, thus ; " And tflfo (ac etiam) to a bill of debt, &c." This is known by the name of the ac etiam claufe in the bill; but it is only necefTary in cafes above . 40. And in fuch cafes an ac etiam claufe is added to the cafiaf of the Common Pleas. . * . " . , CHAP. TREATISE CHAP. XVII. fhe Law of Civil Imfrifonment^fo far as it refyeffs the Arreft of Defendants^ or, technically, Imprifonment on MESNE PROCESS, brought down, to the present Time. THE legiflature, in framing the fktute of Charles the feconci, feem to have been ear- neftly defirous of obtaining a remedy, but not to have rightly apprehended where the ftrefs of the evil lay. The miferies they defcribed arofe more from the total want of reftraint upon the commence- ment of actions, by malicious or defigning plaintiff^ than the inconvenience of not informing defendants by the writ, at the time of the arrefti for what caufe they were arrefted. Yet ftill the law continued to give to plaintiffs the fame unbridled power by which, on the one hand, they might extort the hardeft advantages, as the price of peace ; and on the other, had only to fear the poflible confequence of paying the cofrs of the action. It was, a trade in which the hazard of lofs, was far overbalanced by the chance of gain. Thus flood the law, and all its attendant evils, as defcribed in the ftatute of Charles the fecond, till the reign of George the firftj when the legiflature took notice of the real fource of the mifchief; and went a certain length to cure it. A ftatute* made * izGeo.I. c. 19, irt ON CIVIL IMPRISONMENT. 4? in that reign, after enacting, for the prevention of arrefts in trifling actions, that no perfon fhould be imprifoned upon any procefs ifiuing out of a fuperior court, where the caufe of action did not amount to . 10 or upwards j nor out of any infe- rior court, where the caufe of action did not amount to 40 s. or upwards j ordains, that when the caufe of action fhall be of a fufEcient amount to warrant the arreft of the defendant, an affidavit lhall be made by the plaintiff of fuch caufe of action, before a judge, or a commiflioner authorized for that pur- pofe. In the reign of George the fecond this law was made perpetual. And in the prefent reign*, arrefts upon thtf procefs of inferior courts for any caufe of action under the amount of . 10 were prohibited ; and all acts for the recovery of fmall debts, fo far as they authorized the imprifonment of defendants upon prccefsj for a caufe of action under that amount, were repealed. Thus ftands the prefent law of arreft and im- prifonment of defendants. * ig Geo. III. c. 29, 70. Tke exceptions to the genera! law, arifing from thtfe ftatutes, are ftated Appendix S. r TT A p CHAP, 4 S TREATISE CHAP. XVHI. Civil Imprifonment in Execution ; or Imprifonment of DEBTORS. IMPRISONMENT in execution is, technically, in contradiftin<5Hon to imprifonment on mejne procejs: or, in other words, it is the imprifonment of a debtor, in contradiftinc~bion to the imprifonment of a defendant. The power of compelling defendants to appear in the action, and that of enforcing obedience to the judgment pronounced, are the efTentials of jurifdic- tion. If, therefore, a court can imprifon the de- fendant during the pendency of the caufe, that he may be ready to anfwer the event, a fortiori it can imprifon him for the purpofe of enforcing obe- dience to the judgment. This feems to have been the original principle of the capias ad Jatisfaciendum ; that judicial writ which IfTues in name of the king upon a judgment ; and is directed to the Iheriff, commanding him to take and fafely keep the debtor, fo that he may have " his body" in court " to fatisfy" the creditor for the fum recovered, and cofls adjudged. The capias ad fatisfaciendum is thus the warrant of imprifonment in execution. In fome inftances, as in account againft bailiffs, and in debt *, a capias * 13 Edw. I. c. 1 i. chap. 6, fupra. 25 Edw. III. c. 17 chap. 7, fupra. of ON CIVIL IMPRISONMENT. 49 of this nature was, as we have feen, exprefsly given by ftatute. But in general it ftands upon a pofition which, on the principle already mentioned, has long been eflablilhed as law, viz. ^ that wherever capias lies in procefs, there, after judgment, capias adjatif- faciendum may iffue* Or, in other words, that wherever a common law court can arreft and im- prifon the defendant in the action, it can imprifon him as a debtor till he comply with the judgment f. But if it happen that the debtor is infolvent, the power of the court is fpent when he is fo imprifon- ed. It has taken from him his liberty, but cannot upon circumftances reftore it; and he may remain for life in the hands of a public officer, but in fact the prifoner of a private individual J. * 3 Rep. 1 2. Sir William Herbert's Cafe. f The limited imprifonments for fmall debts of 46 /. and under, by particular ftatute, are ftated in the Appendix T. J The effeft of imprifonment of the per/on, in depriving the creditor of all execution againft the eflate of the debtor, during his life, is ftated in the Appendix V. The law of Scotland, and alfo the laws of foreign commercial countries, fuch as Holland, are extremely different from the law of England, refpe&ing the imprifonment of debtors. See Appendix U. PART 50 TREATISE - PART If. CHAP. I. The general Purfofe of the following Chapters* IF the progrefs and prefent ftate of thofe compre- henfive laws of civil imprifonment which hang over the perfons of all the unprivileged commons of England, have been fairly defcribed ; neither their extraction nor their alpect will procure them a fa- vourable reception from an enlarged or benevolent mind. But it is not by the loofe fuggeftions of general imprefllon, or of benevolent fentiment,. that laws are to be tried. They are to be juftified or condemned by conclusions, deliberately drawn, from their combined effects upon the immediate happinefs of the individual, and the more remote interefts of the community effects which ought reciprocally to aid or correct, by reciprocally acting, upon each other. ON CIVIL IMPRISONMENT. 51 With this general obfervation in view, the fub- jed~t propofed is now to be profecuted. The pro- grefs of the laws of civil imprifonment has beea traced. It remains to ftate their immediate effects ; to point out their leading qualities; to examine fe- parately their parts j and to cdnfider the principles and purpofes afcribed to them in other words, to try their operation by their object : >rt - ' ^nw^ib \\ ' 33ib3rnmi aib'-noq- 1 swrn ' Ea CHAP* 5* TREATISE CHAP. II. 1'he immediate Effett of the Laws of Civil Imprifon- ment upon tke Situation of the Individual with a Reflection on the Prejudice arifing from falfe Ideas of HUMANITY. AN Englifhman, born in that country where the fettered African becomes free; breathing liberty from his birth; and generous, from the beft caufe of generofity, a fenfe of honeft independences is ftruck by the hand of misfortune, rendered in- capable of paying his debts, and reduced to poverty. His perfon is from that moment in the power of another, and his integrity affords him, in law, no poffible means of relief. Is he configned to flavery? No. The wordjla- very is not fuffered: His fituation is defcribed in milder terms : he is committed to prifon, and placed under the power of his creditor, becaufe he is unable to pay him the debt which he owes him. How milerably are we led aftray from the true nature of things by a found ! The Have who toils in chains for his mailer, acts a part in fociety. He derives fome confequence from his labour; and perhaps has never known a better ftate. But the imprifoned debtor, who has tailed all the fweets of liberty, muft drag out his tedious hours in bondage and in idlenefsj deprived, ON CIVIL IMPRISONMENT. 53 deprived, perhaps for life, of all that life could en- able him to enjoy. If indeed we look into a gaol with the eye of philanthropy, a picture of human woe fliall there prefent itfelf, fuch as imagination could never have formed. It is drawn from combinations of mifery, which extend themfelves far beyond the walls of the prifon. They reach the fad dwelling of many a drooping family, reduced to the extremities of want, and driven perhaps to infamy * There are men of no unworthy or obdurate character, who have taught their minds to take the alarm when, in the courfe of an argument upon a fub- ject of general concern, pictures of private diftrefs are prefented to the feelings. They are jealous of the flighteft encroachment upon what they hold to be the ftrict prerogatives of reafon. Forgetful of the wife harmony of nature, which has ordered that no one power of the human mind can perform its due functions alone, they difable one, that another may act with better energy. Nor is it furprifmg that this prejudice ftiould often be cherilhed, while the weakneis of thofe dif- tempered feelings which difturb the judgments of men, is fullered to ufurp the name of humanity. True humanity looks fteadily upon thole private miferies which arefubfervient to the great pur- pofes of general happinefs. Tempered by the cool * Appendix W. E 3 fuggeilions 54 TREATISE fuggeftions of fober reflection, it can a& with de-. termined feverity; and in the purfuits of a great and extended benevolence, is fuperior to the influence of narrow affections. But he who is poflefTed of that juft humanity which can be fevere, will feel for thofe who fink unheeded and unknown under the fore and unnatural preilure of perverted laws. And his judgment will approve of die feeling. For it is wife to indulge the tendereft fympathies of the foul, when they act in unifon with the beft principles of juftice^ and the fovereign authority of public good, ' iHT . I yft fio'b - ..Mum . ";:rn f : -bari -wo i'. ; . agnLdio) adj Ju8 ido kooiq CHAP, ON CIVIL IMPRISONMENT. 55 >sb rb.iv/ flijc ;:; CHAP. III. 2ltf blind Operation of the Laws of Civil Isnprijonment. JT is rightly faid that civil fociety muft be go- verned by general, not by partial, rules; but it is the principle only that is general : the direction is fpecial and relative- In municipal law, as in na- ture, it holds under a general principle, that diffe- rent caufes have different effects ; that circumftances vary confequences > and yet the variation is con- trouled by rule. This principle, in all its parts, would feem to be abfolutely reverfed by the laws of imprifonment. Let us trace their operation in a few familiar ex- amples, beyond the line which the bankrupt law* have drawn around the trading world. By fome of thole untoward accidents which crols the fmootheft ways of life, or by the folly or villainy of others, a man of the pureft principles and fimpleft manners is rendered incapable of doing juflice to thofe who have trufted him. Reafon inftantly de- cideshe fliall fuffer, but yet have the benefit of his integrity j and others muft partake of his mif- fortunes it is the tacit condition of all our reci- procal obligations in fociety. But the law declares E 4 that, 1AHD 56 TREATISE thi't, guiltlefs as he is, he may be configned to endlefs imprifonment, by thole whom he never meant to injure. An innocent, nay a patriotic, proje&or, full or ideal improvements and fanguine expectations $ active and induftrious, but weak and vifionary; comes under engagements which he has not a doubt of being able to difcharge, but which follow the fate of his fchemes in due courfe cf law they termi- nate in a gaol. He feels that he is unfortunate ; but knows not how he is guilty. A prodigal, the fport of youthful levity, and prey of fafhion ; too much a coxcomb to be pofi- tivcly a villain; and yet too thoughtlefs to be truly honeft, runs heedlefs along, till he falls into the gulph which the law has prepared for him. He is taught to refled ; but may never be fuffered to profit by his experience. And an abandoned cheat, a fmiling polifhed thief, who can command his paffions, praftife fimpie man- ners, fafcinate honour, and cajole unfufpefting hcnefty; whofe laborious and fyftematic profligacy has, for the ends of deliberate wickednefs, encoun- tered and furmounted difficulties which virtue would never have known bis courfe at length is run be has no misfortunes to lament ; he cannot appeal to one honeft aftion ; but, as an infolvent debtor, he meets with no harder fate than thofe who went before him. Thus it is By the prefent laws of imprifonment for debt, which know indeed of no diftin&ions, one ON CIVIL IMPRISONMENT. 57 one common fate indifcriminately awaits the inno- cent and melancholy victim of misfortune} the dif- appointed projector; the giddy prodigal -, and the abandoned profligate*. * And fuch examples of injuftice are, to a certain degree, unavoidable. For if the laws of impriionment did not in their firft operation proceed againlt debto s indifcriminately, they would feldom proceed with effeft. But the fact, that fuch con- fequences are at firjl unavoidable, affords ftrong reafon why the law (hould, in its common courfe, take notice of the fitua- tion of pri r oners, and afford means for the relief of the honeft, and punifhment of the guilty. To mew that this is practicable, and would be politic, is the object of the following chapters : but they are not meant to go farther. -Imprifonment for debt is jndiftenfabk. CHAP. $S T R E A T I S E vfQ " CHAP. IV. Afimple Affidavit of Debt the Jingle preliminary Pro- feeding upon which a Defendant is arrejled and imprifoned on the Commencement of the Aftion againft him, IT would be matter of novelty to many a com- mon practioner, to be told, that for the purpofe of preventing the confequences of wanton, ground- kfs, or malicious actions, the law requires fubftan- tial fecurity for the fair and bond fide, profecution by the plaintiff of every fuit he commences in a court of juftice : yet the fictitious names of John Doe and Richard Roe as pledges of profecution, by which the practice fatisfies the law, would be no novelty to his ear. The fkct is, that the fole preliminary towards the commencement of fuch an action as fhaU, inftantly deprive the defendant of his perfonal freedom is a fimple affidavit the oath of the plaintiff that the defendant owes him a certain fum of money. This fmgle act of an individual, executed as a matter of courfe, before a perfon who adminifters an oath with the moft perfect official flight and in- difference, has, for the time, upon the perfon of him againil whom the proceeding is directed, all the effect of a folemn and deliberate judgment pronounced by a iupreme court of judicature. The affidavit mud be pcfitive and direct: it rnuft exprefbly aver that the defendant is indebted to the ON CIVIL IMPRISONMENT, 59 the plaintiff in a certain fum of money. This has been fettled in the Court of King's Bench*, ii> order to counteract, if poflible, by the apprehenfioa of punifhment, fomewhat of the ftrong temptation to perjury which arifes from the facility of the meafure, by depriving it of the fhelter which equi- vocal and indirect exprefiion affords. So much the affidavit, upon the faith of which the defendant is impriibned, does pofitively ftate but it is alfo fit to enquire what it does not ftate. The affidavit does not ftate that the defendant ob- tained credit from the plaintiff upon falfe pretences.. It does not ftate that he is privately withdrawing bis effetts, for the purpofe of defrauding bis creditors. It does not ftate that there is reafon to think he is about to abfcond or conceal himfelf. Injhort, it does not ftate any one circumftancefrom which it can be inferred, or even fufpefted, that the defendant either has committed^ or means to commit, A JRAUD, by fecreting bis effect s> or withdrawing his ferfon. Such is the nature of the only precaution in ge- neral practice for preventing a grofs abufe of legal authority, and protecting individuals from one of the worft calamities which it is in the power of one man to bring upon another f. * Appendix X. f There are cafes where the claim being for remote and un- certain damages, the defendant cannot be arrefted without a fpecial order of the court, or of a judge, upon a fpecial affidavit circumltances but the above is the general hw and prac- i .t: CHAP. TREATISE C H A P. V. fhe ghteftion ftated, Upon what PRINCIPLE the Re~ lation between Debtor and Creditor, WITHOUT ANY CIRCUMSTANCE OF FRAUD, draws after it the Conference of that Imprisonment to which, by the Law as it ftands, Debtors arefubjefted. ; WHATEVER may be the truth of the cafe in point of faft whether the caufe has been deliberately tried upon its merits, or the de- fendant has been unable to defray the coft of a de- fence, and has therefore defpondently fuffered it to take its courfe without interruption j it is neceffarily and fairly to be inferred, after a judg- ment has been regularly pronounced againft him by a court of juftice, that he owes the debt for which he has been imprifoned. Every prifoner therefore in execution, that is, every perfon who is in prifon upon a judgment, is the debtor of him at whofe fuit he ftands fo imprifoned, to the full extent of the fum contained in the judgment. NJ private complaint or objection, tending to the contrary, is then to be liftened to : the relative filiations of the two parties are fixed j the one is a jufl creditor, the other an infolvent debtor. But it is fair to inquire upon what principle it is that the relation of debtor and creditor can ever, of itfdf, and without the ingredient of fraud, dra*-v . i:er it that imprifonment to which the debtor is by law fubje&ed. The ON CIVIL IMPRISONMENT. foe The diftinct and proper character of imprifon- ment in execution for debt, as now praftifed, feems no where to have received a correct and precife definition. It is to be found at one time loofely reprefented as apunijbment* at another, as a mode of coercion f and at another as in itfelf afatisfaffion^ It may alfo be confidered by fome as the effect of a tacit or implied agreement between the contracting parties; or as the means of giving effect to the juft expectations of creditors; and by others as matter of 'public policy. This obfcurity which covers its principle (if, as it has long been practifed, it has any regular prin- ciple) may be the caufe of that blind refpect which it has in general met with, and the filence in which the people at large (and a people of fenfibility) formerly viewed even its worft abufes, and moft ir- regular confequences. * 2 Blackft. Com. 473. Ibid. 3. 415. J- " The intent of the capias ad fatisfaclendiim is to imprifon. the body of the debtor //// fatisfatlion be made for the debt, " cofts, and damages." 3 Blacklt. Com. 414, \ In the introduction to a very elegant panegyric upon the care and circumfpeftion of the law, in maintaining to every in- dividual (among other important objefts) " the enjoyment of his civil rights, without entrenching upon thofe of any other " individual in the nation," Sir William Blackftone obferves that the execution of a judgment " puts the party in fpecific * pofleffionof his right, by the intervention of minifterial officers, " or elfe gives him an ample J'atisf action, either by equivalent damages, or by the confinement of his body who is guilty of the ** injury complained of." Ibid. 422. Here it is laid down that a creditor derives an ample fasisfac- tion by the confinement of the debtor's body. CHAP. * TREATISE 3 fll - CHAP. VI. Gvil Imfrifonment in Execution, confidered as a PUNISHMENT. IF imprifonment in execution for a civil debt is to be confidered as a funifoment, the caufe of it muft be a crime: but this will be found to involve a multitude of difficulties. The idea of crime is too well underftood, to re- quire or with propriety to admit of formal definition. It is one of the fimpleft ideas that can be prefented to the mind, and therefore lhall not be made the / , /!/ fubjedofdifcuffion. As every infolvent debtor without any fort o diftinc~lion (except that which arifes from the bank- rupt laws in matters of trade, and what is called the Lords Aft, both to be afterwards confidered) is fub- jedted to the pofiible confequence of endlefs im- prifonment j every infolvent debtor muft of courfe, in this view, be equally and without diftm&ion criminal. The character of insolvency, limply considered* arifts from contracting a debt, and failing to fulfil or difcharge it. If every infolvent debtor is criminal, there muft be guilt either in one or both of thefe cu cumftances, in every cafe where they occur. Let the contracting of the debt be firft confidered. In ON CIVIL IMPRISONMENT. j In this age and country, it will hardly require argument to fhew that a man commits no offence by contracting a debt which he has every probability in reafon to think he fhall have funds to difcharge. But it would be an outrage againft common fenfe any where, for a moment to fuppofe, that a man who has a moral certainty of fulfilling an engagement, does any thing amifs in coming under that engage- ment; only becaufe it is within the compafs of po- fibility that he may never be able to difcharge it *. In contracting the debt, therefore, which he after- wards fails to difcharge, he may be perfectly inno- cent; becaufe his intentions may be fair, and his profpects juft and rational. And in failing to difcharge the debt he lias con- tracted, he may be equally innocent; for that may happen in as many different ways as there are va- rieties in the unforefeen events of life. If this be fo, it cannot furely be faid, that while each of the two ingredients is confiftent with per- fect integrity and innocence f, the law fhall hold at the fame time that there is guilt in the general character of infolvent debtor, which Is compofed of both; that it began by his contracting the debt, and was confummated by his failing to dif- charge it; and that, by one more of thofe fictions which fometimes elude the grafp of reafon, amidft the fubtleties of artificial fyftem, the legal offence of failing to pay, by relating back to the contraction of the debt, taints the whole from beginning to * See Fuffcndsr/ 'and Barbeyrac, Appendix Y. t Appendix , end* 64 TREATISE end, and raifes up a criminal in the eye of law, without the aid either of criminal act or intention propofitions there certainly are which are formed of no better materials. But even when it happens that an infolvent debtor is not thus converted into a criminal by operation of law, without any confcioufnefs or interpofition of his own ; but is truly guilty of fraud, either by contracting the debt, without any view to the means of payment, or by not afterwards applying the means in his power towards difcharging it j and that, in common with others, he is imprifoned, perhaps for life j he is fo imprifoned, not as a per- fon who has been guilty of fraud, but limply as an infolvent debtor. The real truth of the cafe could never be difcovered from this its legal confequence. Even the gaoler cannot, from appearances, dif- tinguifh a prifoner of the former defcription from one of the latter ; if it be not perchance by the levity of the one, and the defpondency of the other the former, relieved by a fituation milder than h knew he deferved j the latter, deprefled by a ftate of mifery which he never did any thing to deferve. If infolvency, as being often confiftent with the faireft intentions, cannot in itjelf be criminal ; im- prifonment in execution, for civil debt, cannot be rendered confifbent with the idea of punifliment. But there are other reafons why that fort of im- prifonment cannot be reconciled to the principles of puniihment. The punifhment of crimes or offences is a matter of public concern, and inflicted by the public. Puniihment ON CIVIL IMPRISONMENT. 65 Pimifhment is alfo proportioned to the guilt of the offender : when, therefore, the guilt admits of dif- tindions and degrees, fo does the punifhment. But imprifonment in execution is infli&ed by one individual upon another, who therefore fuffers pri- vately, at the pleafure of a fellow citizen, without the knowledge, attention, or interference of the public : and although his infolvency, if at all to be confidered as criminal, muft admit of various de- grees and modifications, the law prefcribes no limits to the pofTible endurance of his fufferings. As an infolvent debtor he may be innocent, and his cre- ditor permitted to torment him; as an infolvent debtor he may be criminal, and his creditor fuffer- ed, from the impulfe of the moment, to turn him loofe and unpunifhed upon fociety. Puniftiment is not to avenge, but to warn and inftrucl. There is a grandeur in public principle which difdains the little objeclrs of paffion. But knprifonment in execution, while it gratifies private vengeance, and may ruin the perlbn who fuffers it, can never operate by way of example for the good of others. The reafon is moft manifeft ; it falls from no height ; it is the blow of an equal, perhaps of an, avowed enemy; it provokes relentment or indignation; it is indifcriminate and capricious in its application it is confequently uncertain and impotent. A mind fo conftructed, or formed by mean habits, as to a6t chiefly from the fear of punifli- rnent, will alfo be induftrious and cunning in dif- covering means to elude it ; and where there is fo F much C6 TREATISE much uncertainty, there never can be any fixed apprehenfion. Moreover, if imprifonment in execution for a civil debt is a punifhment, it is a punifhment of which the 'feverity may often rife in exact propor- tion to the innocence and worth of the fufferer. The depraved and grovelling foul of a villain can find .enjoyments in a gaol it is the weak, but ge- nerous dupe of artifice, or the prey of misfortune^ feels all its horrors *. * Appen4ix A A.' CHAP. ON CIVIL IMPRISONMENT. 7 CHAP. VII. Civil Imprtfcnment in Execution confidered as a Mcde of COERCION. IT has been held, and feems indeed, from th* terms of the writ or warrant, to have been the original idea of the law, that civil imprifonment in execution is merely a mode of coercion, or an im- prifonment till fatisfaftion be made that is, until a difhoneft man is compelled, Jqualore carceris, to do juftice. Then what is to be faid for it when it a6ts againft an honed man, for the purpofe of compelling him to perform an impoffibility ? The fame thing which has been faid for torture when inflicted upon in- nocence, as the fojfible means of, fometimes, ex- torting a difcovery of guilt. The law, it is faid, prefumes that every man is able to perform the promife or engagement he has made ; and concludes that his failure is therefore wilful. And this is right but the law goes far- ther. The frima facie evidence of a legal prefump- tion is made to change its -nature -, and inflead of being open to contrary evidence, is held to be abfo- lute and conclufive : for the debtor has no poffible means of proving his innocence and inability. F 2 Imprifonment 68 TREATISE Imprifonment therefore for debt, in the prefent ftate of the law, if it acts as a mode of coercion, afts with the certainty of often offending againft juftice, and only the chance of fometjmes pro- moting it. CHAP. ON CIVIL liMPRISONMENT. 69 CHAP. VIII. Chil linprifcnment in Execution confidered as in itfelf a Legal SATISFACTION to the Creditor. f | ^HERE are not only many fayings of lawyers, A but alfo eftabliihed legal diftimflions, which reprefent imprifonment for debt as being in itfelf a fotisfafficn to the creditor. Confidering it in this light, we fhall be no lefs unfuccefsful in our in- quiries for fomething confident or rational in its nature. A legal fatisfaction muft be fomething received Ifc return for fomething given Let this be applied A creditor has of-his own accord, and with the cir- cumftances, to which he trufted, open to inquiry, lent his money > or fold his goods. In general he caii only be repaid by money or goods. Yet the law does not lead the creditor firft to inquire after his debtor's money or goods to which he trufled; but fays, he may inftantly proceed to recover a fatisfadtion, not by receiving any thing himfelf, but by depriving his debtor of his perfonal freedom. For that pur- pofe it arms him with the power of delivering over the body of his debtor into the cuilody of other men, whofe duty it is to deprive him of the common air of heaven, and reduce him to the loweft ftate of animal exiftence. F 3 A le S ai 70 TREATISE A legal fatisfa&ion, whether real or fididous, can, without a contradiction in terms, be confidered in no other light than as a legal equivalent. How is it, then, that the perpetual imprifonment of a fellow citizen is, in the eye of law, no more than a fatif- faftion for twenty pounds, and yet is alfo a fatisfac- tion for twenty thoufand ? A fatisfaction admits of gradation ; it may be in part or in full : but imprifonment for an hour has the fame value in law as imprifonment for life. If the debtor has once entered the walls of a frifon as a debtor in execution, the creditor lofes from that moment every Jubftantial means of enforcing payment during his debtor's life. The debtor may pofTefs the wealth of the Indies if he is contented to poflefs it in a gaol, (a fecure and well-accommodated retreat for the enjoyments of avarice) he may laugh at the idle anger of his creditor, and dare him to touch his manors or his coffers *. If the fatisfaction which arifes in law to the cre- ditor from the imprifonment of his debtor, proceeds upon the idea that the debtor is made to fuffer in one way for what the creditor fuffers in another,, the matter will be found equally inextricable. A debtor who is honed and unfortunate; who feels that high reliih for freedom and independence, which is the chief felicity of worthy minds ; who has hitherto perhaps enjoyed the be'ft bleflings of domeftic life, and the innocent pleafurfes of fociety, fuffers in- finitely more by the lofs of his liberty, than he who never knsw how to ufe, and for ever abufed, the * Appendix B B. means ON CIVIL IMPRISONMENT. ft means of happinefs but the debt of the latter may be infinitely greater than that of the former. Con- fidering then the imprifonment of the debtor as in itfelf a fatisfaction, of the nature defcribed, the rea- foning (if it deferve the name) terminates in this, that the lofs of the creditor may be trivial, and his debtor rendered miferablej or his lofs may be great, and his debtor hardly affected. When we read the criminal laws of certain na- tions in a rude ftate of fociety, we find every mem- ber of the human body, as well as life itfelf, had its legal valuation in money. We are ftruck at the brutality of men who could thus coolly and delibe- rately, at the table of ftate, form, with minute and barbarous precifion, a fcale of competitions j accord- ing to which a man had only to count his money, in order to know how he could beft afford to gra- tify the rage of a favage whether by breaking the bones, or beating out the brains, of his enemy. In England we dare not fried the blood of our neighbours j we cannot deprive them of their limbs, or of their lives j but, at a certain expence, we can effectually difable them from enjoying the ufe of them. Under the malk of friendlhip, a man may tempt the deftined victim of his cruelty to become his debtor: he may practife on his failings, and encourage his follies , he may then deprive him legally of his liberty, and confign him to mifery. For j.2o he can take from under the orders of the king the perfon of a foldier in the immediate fer- vice of his country: for . 20 he can lock up the body of an able feaman, when men muft be hunted down to fupport the honour and fafety of the na- F 4 tion : 72 TREATISE tion: for is. 4^. a week*, or . 5. i is. ^d. a year, he can hold a fellow citizen in perpetual durance fo that for little more than . 100 a year, a man, in this land of freedom, may purchafe the bondage of twenty wretched prifoners. It is enough to fay that this is foffille, and would be no more than the exercife of a legal right. The queftion may now be afked, Which of the two, the criminal code of the antient Germans, or this branch of the civil laws of England, is the moft barbarous ? If it is true (for the idea would feem to have arifen from the mifapprehenfion of a figurative expreflionj-) that the Romans ever received it as a law that creditors might cut their debtors in pieces, an example of mad ferocity in legiilation is there afforded, which aftonifhes reafon, and fhccks humanity. Btit thofe early laws of the moft polifh- ed ftate in Greece (afterwards reformed by Solon) and of other nations, by which infolvent debtors, and even fometimes their wives and children, were ufed or fold by their creditors as flaves j or the law of Rujfia, by which a Mufcovite is delivered over to his creditor, firft to be well beaten by him, and then made his flave; have nothing in them fo irra- tional, at leaft, as the Englifh law of civil .imprifon- ment. For fuch laws are not both cruel and in- efficient; they do not take every thing from the debtor, and yet give nothing to the creditor J. * This is the fubfifte'nce allowed under the Lords Aft, to be afterwards explained. , f Appendix C C. t Appendix D D. CHAP. ON CIVIL IMPRISONMENT. CHAP. IX, Civil Imprifonment confidered upon the Principle of an implied or tacit Agreement. WHEN fyftem has loft fight of the fimplicity of nature, and is puihed to the extreme of reforting upon every occafion to artificial principle, it confounds, inftead of aiding, the reafonings of men. The mind is made to wander by a circuitous progrefs, through laboured and forced implications, in fearch of an object which lay directly before it; and the plaineft truths are obfcured by the intrica- cies of abftract demonftration. The ftrength and energy of thofe principles of law and of equity, which are to be met with through- out all the different parts of Roman jurifprudence, have furnifhed rules and maxims of municipal law to every nation in Europe. Eutfome of phe theories which rofe upon the principles of that great and juftly celebrated fyftem were much too refined for practical application. They gave employment to commentators; but could never reach the under - Handings of the people. Nor was it neceffary they fliould they 'were the mere play of words; or the combination of fanciful ideas, which hadfeldomany ultimate effect upon the fubjecr.. From the fame facts the fame conclufion would have been drawn by the clown, and by the lawyer. , Both would have agreed, 74 TREATISE agreed, for example, that if a man received money which had been paid by miftake, arid which was hot due to him, he was bound to reftore it. But their reafons would Have founded very differently. The former felt fimply the obligation of natural juftice the latter had been taught the legal effect of a covenant in ldw y which never exifled in f aft* and could demonftrate, upon a multitude of autho- rities, the binding force of tacit agreements, and the legal import of that quafi ccntraffus which arofe ex in- debit i Jolutione* . Accuftomed to the idea of pofitive obligation, as being the confequence of exprefs agree- ment, the Roman lawyers carried the fame /cm of reafoning through the whole chain of duties which were inherent in the nature of things, and imprinted on the mind of every upright man. They fuppofed a contract, and inferred an obligation.. They prove^ by falfe fuggeftions, what in itfelf was moft mani- feftly true. We have had occafion to obferve that no fmall portion of the fame fpirit ofunneceflary fubtlety and refinement (though affecting more the management of forms, than of abftract principles, and derived in moft inftances from a different origin) is to be found in many of the theories of law in this country. If fo, it is not impofTible that the imprifonment of an infolvent debtor may be reprefented as the fair refult of public law, giving effect to a tacit agreement or * In the fame manner they accounted fcientifically for obli- gations equally apparent, arifmg ex negotiorum gejlions, tutelaf rei'-conwwnione, aditione b&reditaiis, and the like. Appendix EE. ON CIVIL IMPRISONMENT. 7$ contract between the parties; the creditor, it may be faid, trufting to that legal confequencej the debtor agreeing to fubmit to it if he fail in the fulfilment of his engagement.^ This would indeed be reafoning in a circle; but it will not be difficult to fhew, upon other grounds, that the law of civil imprifonment can derive no aid from any fuch argument. By one of thofe honourable reftraints which the genius of civil liberty puts upon the actions of men, no poffible mode of bargain, tranfaction, or cove- nant, can place two individuals in the -relation to each other of mafter and flave: for every fubject of a free government is a citizen : a character which may be forfeited by crime, but cannot be furren- dered by contract. Under fuch a government, individuals are taught to feel their importance by the immediate depen- dance of the public upon their exertions towards the general welfare. No middle power is interpoled between them and the ftate. The blefiings of pub- lic profperity are not intercepted by a fubordinate tyrant in their way to the cottage of the labourer. He feels their immediate effects, and can indulge the honeft pride of having contributed directly to- wards them. In fuch a ftate it is, that public and private good are, in truth, co-exiftent and recipro- cal: in others, they are only fo in fpeculation. But this vivifying quality of liberty; this mutual energy, which is for ever acting upon the indivi- duals which compofe the community of a free ftate j would fpeedily be loft, if under the neceffity of the moment 76 TREATISE moment men were permitted to furrender thetf power of contributing, independently, and in their own proper perfons, to the public fervice. In- capable of promoting, they would feel no right to enjoy their country's welfare. The intereft of the public would be no longer theirs. It would be their mailers'. It is the conftitutional boaft of Englifhmen, that the public good is an eftate in common ; of the free poffefiion and enjoyment of which no law can de- prive the humbleft individual who is not convicted of a crime. What multitudes then there are who are bereft of their civil exiftence by the laws of imprifonment ! But is it poflible to maintain that thofe laws have proceeded upon this folecifm in the language of freedom i that a community can be truly free, while individuals may, by their own confent, be flaves ? Perfonal dependence, and the want of thofe civil rights which others enjoy, form the eflence of flavery. Subftantially they are loft to him who is rendered incapable of enjoying them: and fuch is the ftate of the ppifoner for debt. In letting out his labour to hire, no man lofes a particle of his civil liberty. He is at that moment fpontaneouily contributing to the general good. He is upon a footing with his employer : he gives in one way, and receives in another. Would it be fo with a man who ftipulated that,, in a certain event, his neighbour fhould be entitled to deprive ON CIVIL IMPRISONMENT. 77 deprive him of the ufe of his limbs 3 or that if he fail- ed to pay a fum of money, his perfcn fhould be locked up in idlenefs,' and his exiftence rendered equally infignificant to himfelf and to the public ? * Would this be a lawful contract ? CHAP. TREATISE CHAP. X. Civil Imprifonment tynfidered with a View to tbs eftablijhed legal Prefumption of fair Intention , 'till the Contrary is proved. WHATEVER may be inferred to the con- trary from the principles of certain doctrines , it will in general be found, that the reafonings of law, in the eftablifhment of legal preemptions, are full of candour and liberality j proceeding upon maxims favourable to the characters of men, and excluding the idea of unfair or unjuft intentions, till the contrary is eftablifhed by evidence. It is thus that it prefumes refpecting the views of a creditor when he gives credit. In tranfacting with the debtor, he is prefumed to have looked no farther than to that which was fairly before him, viz. the ability of the debtor himfelf, by means either of prefent effects or probable acquirements, to difcharge the debt: and, conformably to this prefumption, whatever may tend to hang out falfe colours, that is, to give falfe appearances, and lead to credit, where there is not fubftance, is upon every occafiorj re-^ probated by the law. The law of imprifonment, however, is incon- fiftent with this prefumption; or makes ufe of it with partiality : it admits it on one fide, and rejects it on the other. It ON CIVIL IMPRISONMENT. 79 It is manifeft that there muft be fomething wrong pn one fide or the other, when, in the common courfe of affairs, a man gives his property, upon a promife of fomething equivalent, to one who has nei- ther property to fupport his promife, nor \htprcbable means of acquiring it. Either the perfon who gives the credit has fome malignant defign againft the man himfelf who receives it, or fome rapacious view to- wards inordinate an EXCES- SIVE FACILITY OF CREDIT, and the Progrefs of Extravagance. IT is for the generous character of candid and unfufpefting good faith, that the Britijh mer~ fhant is jnftly renowned over the world. But every virtue has its neighbouring vice. It is the lot of humanity. The covetous principles of mo- nopoly, and of mercantile avarice, follow hard upon the right fpirit of enterprizej and a blameable loofe- nefs of tranfaction is too frequently the effect of an vinfuipecting liberality. Unfortunately it requires no argument to prove, that a forced and fictitious trade, rifing out of an in- ordinate fpirit of fpeculation, has become a great and growing evil in the commercial world. Thoie bands of defperate adventurers, who float in air, af- ford too many proofs of its exiftence. The felfifh propenfity which leads to it cannot with fafety bs reftrained ; but the means by which it acts, and which are of its own formation, ought not at Itaft to be aided by the laws. It & TREATISE It acts by means of a general and extreme FACI- LITY OF CREDIT*. If there is any truth in what has been beford advanced, this extreme facility of credit proceeds, at leail as much from him who gives, as from him who receives it. To extend beyond all bounds their feveral lines of trade may be the object of both, if both are traders; but as traders deal with perfons \vho are not in trade, it muft often be the objecl: of him only who gives the credit. Yet it feems hither- to to have been underftood that the laws, in re- ftraining that excefs in the operation of credit, by- deterring from its abufe, take notice only of him who receives, not of him who gives the credit. In other words, with an objecl: of public magni- tude and immediate general concern before them, the laws have confined their .view to a matter of private manners, affecting only the individual; namely, the prevention of private extravagance a thing beyond the power of direct and pofitive law, without the tyranny of fumptuary regulations. The laws of civil imprifonment, it has been faid> fevere, indifcriminate, difproportioned, and un- principled as they may other wife be, are juft and wife upon the whole, becaufe they tend to prevent all thofe miferies which extravagance, and the eafe of obtaining credit, if unreftrained by the terrors of This exprefiion is made ufe of to prevent circumlocution; and denotes npt only the eafe with which credit is obtained, but elfo the fatal reijbnefs with which it is given, 2 thefe ON CIVIL IMPRISONMENT. 97 thefe laws, would unavoidably produce. Let this idea be analyfed. A man who is about -to contract a debt, which he cannot difcharge, is checked, it is faid, by the reflection that he may be thrown into gaol by his creditor. Let it be fuppofed that a prodigal thus reafons upon the poffible confequences of things, and even that they act upon his mind as they would upon the mind of him who makes the fuppofition. Then one man, it muft be confefied, is thereby dhTuaded from taking credit: but is not another, by the felf- fame means, encouraged to give it ? It is not enough to coniider the reflections which may pofllbly arife in the mind of a man who is about to become a debtor. It is neceffary to give equal weight to the reflections of one who is about to become a creditor. A perfon offers him a con- fiderable order in the line of his bufinefs' he has yuft heard of him, and knows where he refides*.-r He hefitates, but is foon refolved * e This order," fays he, " will be lucrative, and the man will pay " me rather than go to gaol." His mind is fati(- fied. The idea of his power, as a creditor, over the perfon of his debtor, co-operates with a fpirit of induilry, already too keen, and leads him aftray from the fubflantial inquiry he might otherwife have * Or perhaps the. fame man may have before given him an order for fome trifling articles, and punctually paid him ; for this is a common artiiice. H made. $8 TREATISE made. He gives the credit : the day of payment arrives; the debtor fails the creditor then fees the delufion to which he trufted ; he is difappointed and provoked he vents his anger according to law ; drags his debtor to prifon ; and purchafes peace to his refentment, by the merited, but unavailing, diftrefs he inflicts. If thefe oppofite effects of the laws of imprifon- ment upon credit, reftraining one man from tak- ing it, while they encourage another to give it, are even equal, the argument in fupport of their policy is deftroyed. But they are not equal. How are the parties defcribed, by thofe who maintain that the laws of imprifonment are a check upon ex- travagance? One of them as a man of bufinefs, cool, collected and deliberate; weighing confe- quences, and judging of the ideas of others by his Dwn. The other a prodigal, carelefs, difiipated, and extravagant of courfe inattentive to the view of future confequences. It is impofiible that any impreflion, arifing from reflection, can ever Operate, with equal force, upon fuch oppofite characters. Are then the prefent laws of civil imprifonment v/ife, in putting a check upon the improvident; when it is the improvident only who never think of them? Are they wife, in affording a motive, which may accelerate the courfe (already much too rapid) of a loofe and unguarded credit ? Or ON CIVIL IMPRISONMENT. 99 Or are they wife, in holding forth to the credi- tor's view an illufory and fictitious fatisfadtion ; and thereby diverting his attention from that which ought to have been the fubftantial objedl of his inquiry ? H2 CHAP. loo T R E A T I S E CHAP. XVI. Rcafons of Policy againft thefe Laws, as affording Temp- tations to the Commiffion of Extortion and Fraud -, ly affording the ready Means of Oppreffion. BY means even of thofe imperfect lights, which, in matters of practice, profefiional books af- ford, many avenues to fraud and oppreffion may be clearly difcerned among the laws of civil imprifon- ment; and fome of them have been already pointed out. But he who wiihes to fee the true extent of fuch abufes, muft leave his library, and look abroad into the world. The growth of difhonefty, when once it takes root among the lower orders of men, is incredibly rapid; and nothing is more certain, than that thofe who have themfelves been bruifed by oppreffion, become often the moft unrelenting oppreflbrs. Many a miferable man there is, who was honeft till he wasruined by injuftice. Having furrendered, or been deprived of his all, and yet forced to labour under the hourly terrors of a gaol, in a wretched ftate of filent dependence upon a villain, the feel- ings of nature take a courfe, which nothing but the higher principles of religion, or a fenfe of honour, can obftruct the former unhappily now pofTeiTing but little influence over even the lower ranks the latter, in no refpect adapted to their habits. He has proved, as he thinks, the folly of being honeft; and ON CIVIL IMPRISONMENT. 101 and learns to defpife, or deteft, thofe laws which, inflead of protecting him, when he had done his utmoft to difcharge the obligations he lay under, furnifh chains to bind him down to mifery without end. Thus he is foon qualified to become the.infiru- ment and confederate of his former opprefTor. T,he general obloquy of the public has long frig- matized a fet of men who bring difcredit upon a very uieful branch of the profefilon of the lav/, and many worthy individuals who belong to it, by thofe enormous and inconceivable iniquities which they daily and hourly commit, among the ignorant, the needy, the diftrefied, and unprotected. They ply in all the haunts of vice, or of vulgar diftipation. They help forward the wicked, and liften to the tale of the fimple. They catch at every difhoneft \viih ; mount it into a claim ; and are intruiled with the invention of means, and conduct of meafures, to perfect it into the legal form of a right How is it that fuch wretches fubfift ? Upon the fruit of falfe arrefts; fictitious writs j determined perjuries 3 and bafe confpiracies ! The inferior officers of the law, from the bailiff to the follower's follower, are as keenly induftrious as the lower order of attornies. But the laws, it is faid, have been provident in impofmg fu indent checks and reftraints upon their conduct. Sup- pofing this to be true, is a poor ignorant creature, trembling under the horrors of a fudden arreft, and deprecating the power of a mercenary and unprin- 'cipled tyrant, to appeal to the ftatute book in the ' H 3 moment io2 TREATISE moment of diftrefs; or look for evidence to the walls of a fpunging-houfe ? It would be well if fuch laws were inftruments in the hands only of men who are poffeffed of that generous liberality of character which too frequently indeed fuffers villainy to efcape the lafh it deferves, but feels no intereft in the perfonal diftrefs of an un- fortunate debtor. The majority of creditors, in the circles of trade in particular, are of that defcription. But there are many whofe gains are dependent upon their power of opprefTion. Extortion is the fafeft of all the forms of robbery. It is generally practifed under circumftances which impofe filence upon the fufferer ; and thofe circum- ftances the laws of imprifonment render perpetual. A poor friendlefs debtor is as much in durance, under the power of threats, as under the force of bolts. He is, for ever, at the difpofal of his credi- tor, and of courfe under his command. If, then, the laws of imprifonment afford number- lefs temptations to fraud; are the means of extortion; and give fubfiftence to wretches who proftitute the forms of law to the purpofes of both, it will be diffi- cult to defend them. Let fuch offences, it may be faid, draw down upon, the offenders all the rigour of exemplary punifhment Moft certainly they ought to do fo But it is unneceflary to prove bow much letter it is for the legi/lature to withdraw temptations, than to frejcribe funijhments* CHAP. ON CIVIL IMPRISONMENT. 103 CHAP. XVII. Reafons of Policy againft the prefent Law of Imprifon- mcnt for Debt, founded upon its known Inefficacy, as a general Remedy > to the fair and bone/} Creditor. THE certain expence of the proceeding; the feverity of the meafure; its well-known general inefficacy, as a remedy to the honeft cre- ditor *j and the trouble it may occafion ; are ftrong circumftances, which muft weigh in the mind of every rational man, in common~prudence, againft the imprifonment of his debtor. That meafure, therefore, would feldom be adopted, if thefe cir- cumftances were not overbalanced by other con- fiderations. Yet there is but one fmgle confidera- tion which the law can recognize, as a juft object of the creditor's proceedings; namely, the prevention of fraud in the debtor ; or, in other words, the en- forcement of fiich a Jat i sf action as it may l~e in hh power to give. But if that were to be held as the only purpofe in the mind of a creditor which the prefent law of civil impriibnment endured, there would be an end of the fubject of thefe reflections. In that cafe no, * Were it not perfe&ly well known, and univerfally acknow- ledged, that the fair creditor is very rarely indeed the richer, but very frequently the reverfe, by imprjfoning his debtor, it might be proper here to be particular in ftating circumftances to war- rant a general conclufion on this fubjeft. H 4 hafty, io 4 TREATISE hafty, unprincipled exercife of the power of im- prifonment; no unjuft attempts to practife on the benevolence of others ; no poffibility of perpetual confinement (but as the punifhment of fome fpecific crime) would be fuffered. An inquiry into fome- thing more than die bare exiftence of a debt would precede fo ftrong an exertion of authority at the fuit of a private party: a proceeding fomewhat more folemn than the mere ifluing of a writ of courfe, would be required to confirm, as juft and neceffary, a total forfeiture of a debtor's perfonal liberty. The prevention of fraud, or the juft enforcement of a fatisfaction in the power of the debtor, cannot then, it is manifeft, form the only object, in the view of a creditor, to which the law of imprifon- ment gives its aid. It gives the fame aid, of courfe, to malice, to refentment, or the moft corrupt and profligate purpofe which can be fuppofed ever -to actuate a man who (lands in the legal character of a creditor. And thefe, it has been fhewn, are likely to be at leaft very frequent inducements to a mea- fure, which is, in itfelf, fo generally unprofitable. But is it fit that thofe municipal laws, from which manners muft gradually receive their current and direction, fhould give countenance and fupport to fuch principles of conduct ? In vain fhall it be faid that the laws cannot poffibly diftinguifh be- tween the honeft purfuit of a juft fatisfaction, and fuch iniquitous purpofes. They cannot indeed dif- tinguilh if they do not inquire. CHAP. ON CIVIL IMPRISONMENT. 105 CHAP. XVIII. The Law of Imprisonment for Debt confidered -with a View to the prefent State of thoje Frauds which it iu as meant to reft ram. IF the law of imprifonment for debt, in its full extent, had, to balance its manifold faults and infirmities, the merit of any efficacy in (what it chiefly profeffes) the fuppreflion of fraud and ex- travagance, there woulcl, comparatively fpeaking, exift but little of thefe vices in diis country. Is this then the fact ? The queftion need hardly be ought laws ever fo * ^Appendix 1 1. I wound ii 4 TREATISE wound the general fenje of the people : and if, in any cafe, that general fenfe can be collected, it .certainly may, refpeding the laws of civil imprifonment. They confound the plain diftindlions ^of reafon, between right and wrong; they Ihock the underftandings of mankind, by exhibiting precifely in the fame fitua- tion, two characters notorioufly the reverfe of each ether. They tend, in confequence, to deftroy that reciprocal confidence between the governor and the governed, which, in a free country, is the principle of obedience ; and they transfer the general preju- dice, which ought always to affed thofe againit whom fuch laws are executed, to thofe who execute them. CftAP, ON CIVIL IMPRISONMENT; tij CHAP. XXI. Atts of Infolvency. THE general nature of thefe acts is well- known. They have already been men- tioned j bilt the fubject demands that they ftiould be particularly examined* They have been applied as public remedies j but if they affume a beneficial appearance^ by fupprefiing, for a time, fome of the fymptoms, while in fact they add virulence to the difeafe, it is time that the delufion fhould give way to fomething more fubftantially and permanently re- medial* An ad of infolvency is defined to be fc An occa- * f fional act, frequently pafled by the legiflature, In confe- quence, fuffer a fubftantial lofs: for he muft lofe his right of execution againft the fubftance of his debtor, that is, againft his lands and goods; during his life. It is therefore an idea too manifeft to require the fupport of argument, that the creditor's right of execution againft the lands or goods of his debtor fhould remain unaffected by the imprifbnrrient; For imprifonment is only for the furpoje of difco-very ; or of inducing the debtor to do all that he can for his creditor's Jatisfattion-, and ought never to be con- fidered as in itfelf a fatisfaction*. Nor can it be faid that thus the creditor might have a double remedy; or that while he imprifoned his debtor for the purpofe of compelling him to dif- charge the debt, he might at the fame moment de-< prive him of the means of difchatging it, by feizing * Sec part ii. chap. vi. fufra. K 9 his 131 TREATISE his effects. The creditor might or might not feizc the debtor's eftate or effects, as he Ihould think pro- per i but if he did, he would of courfe be obliged, by an exprefs provifion in the law for that purpofe, to give notice when he levied or recovered his debt by fuch means ; and the debtor's difcharge out of cuftody at his fuit would follow the fatisfaction fo obtained. SECT. v. fbe Difcharge of Injolvent Debtors. r\ N the one hand it can hardly be the fubjedt of doubt, that the pojfibility of perpetual imprifon- ment for debt ought not to be endured by the law. On the other, the proper ends and purpofes of im- prifonment muft not be defeated, but are on the contrary to be promoted. If the law knew no fuch remedy as imprifonment for debt, and a creditor were confined to his execu- tion againft the eftate or effects, the debtor might not only refufe payment of the debt, but withhold all means of fatisfaction, by concealing, fecreting, or covering his effects from the view of his creditors. This ferves to point out the objects which the laws of imprifonment ought to profefs and it would feem that they may be reduced to the following : Firft t to induce the debtor, if he has .money, to apply it; and if he has not, to procure it, by means of his effects, for the purpofe of difcharging the debt. ON CIVIL IMPRISONMENT. 133 debt. This is indeed the profefled object of the prefent law. Secondly ) to compel him to difcorw his eftate and effects, in order that the creditor himielf may be able to take meafures fjr his own fatisfaction. This cannot be an object of the prefent law, becaufe the creditor cannot avail himfelf of any fuch difcovery, by proceeding againfl his imprifoned debtor's eftate or effects. 'Thirdly ', to expofe extravagance or negligence to public animadverfion, and puniihment. Arid laftly, to fubject the conduct and affairs of infolvent debtors to ftricT; examination, for the pur- pofe of relieving the honed, and bringing the frau- dulent to public trial and conviction. 4 While fuch objects, or any of them, are attain- able, imprifonment acts upon principles which arc plain and intelligible. But a debtor who lies in gaol under circumftances which demonftrate that the further duration of his confinement cannot lead to any one of thofe objects, is deprived of his per- Ibnal freedom againft good policy as well as juftice. As matter of common right, founded upon eternal and unalterable laws, he is therefore entitled to have it reftored to him. But the queftion is, how can fuch lines be drawn, or general rules eftablifhed, by which it may be de- termined when imprifonment, in every particular cafe, has done its office, and when it ought to ceafe ? The queftion is anfwered thus ; For a certain given time * the debtor's confine- *ne? * Suppofe thret months from the commencement of the debtor's irpprifonment in execution. K 3 ment 134 TREATISE ment might be confidered merely as a mode of coercion, for the purpofe of compelling him to fa- tisfy the creditor or creditors at whofe fuit he ftands imprifoned And fuch a limited -time it would be reafonable to give, without fubjecting the debtor to any thing beyond the mere imprifonment : for a man whofe intentions are honeft may fometimes be fo fituated that he muft go to gaols and yet within a fhort time he may be able to provide the means of fatisfaction. But a perfon who has remained a debtor in ex- ecution beyond that given time, ought to be obliged, for the fake of the public as well as of creditors, to difclofe the ftate of his affairs, in order that his creditors may judge of his con- duct, and take proper meafures for their own fatif- fadion, or public juftice. He ought, therefore, to be obliged, at the expiration of that time, to deliver to the gaoler, for general infpeftion, a full ftate- ment of his affairs, with an account of the caufes of his infolvency. There would in this be a degree of danger or of punifhment,- to certain characters, which might induce them to make every poffible exertion, for fatisfying the creditors at whofe fuit they flood imprifoned, either before any fuch ge- neral difcovery fhould become neceffary, or (if they made no fuch difcovery at the time prefcribed by the law) before they could be expofed to thofe fubfequent proceedings, which, if they remained in gaol, would unavoidably take place, and bring their fraudulent practices to light. A debtor who had remained (till longer in prifbn, plight to be considered as a proper object of public ON CIVIL IMPRISONMENT. 135 attention ; for it would then be fair to prefume either that the creditor or creditors at whofe fuit he had been fo long in confinement, prolonged his imprifonment without any rational object j or that his conduct had been fuch, either in point of negli- gence, extravagance, or fraud, as to call for punifh- ment at the hands of the public. In both cafes he ought to "be difcharged out of cuftody as a debtor in execution ; but in the latter he ought, on con- viction, to fuffer the punifhment he deferved. Every debtor, therefore, who had continued a cer- tain time* as a prifoner in execution, ought to be brought up in Wejiminfter-hall; or, if in cuftody beyond a certain diftance from London, at the aj- Jizes-y where fuch proceedings, of a fafe but fum- mary nature, might take place under the fpecial provifion of the law f, as would enable the judge, upon examination of the infolvent, and hearing the charges againft him (if any were made), to deter- mine, either that his farther imprifonment could anfwer no good purpofe, to the creditors or to the public; in which cafe he ought immediately to be difcharged as an infolvent debtor, and fet at liberty Or, that fufficient caufe had been fhewn by cre- ditors, why he fhould be ftill longer detained a pri- foner in execution ; in which cafe he ought to be * Suppofe fx month from the commencement of his impri- fonment in execution; that is, three months after delivering an account of his affairs, and of the caufes of his infolvency. j- As the prefent is only a general view of the plan propofed, the particular forms and proceedings here alluded to arc no t .ted. K- 4 remanded 136 TREATISE remanded .as fuch Or, that his infolveney had ariiert from a grofs degree of extravagance or negligence ; in which cafe, though difcharged as an infolvent debtor, he ought to be committed to prifon for a limited time as a direct puniihrnent Or, that there were circumftances which fixed upon him fuf- picions of fraud fufficiently ftrong to warrant his commitment, for the purpofe of preventing his efcape (during a certain time) from the profecution and punifhment which the law ought to provide for fuch fraudulent infolvents; in which cafe, though difcharged as an infolvent debtor from a fruitlefs execution, he ought to be fo committed for fafe cuftody. A debtor might be remanded in execution on account of difficulty or particular circumftances in his cafe; but every debtor fo remanded ought (if not difcharged by his creditors) to be brought up a fecond time, either at Weftminfter-hall within a certain time, or at the next afllzes, as the cafe might be: and, in order that imprifon- ment in execution might in all cafes whatever have a limited duration, he ought then to be difcharged as an infolvent debtor; but might be committed for punilhment or trial, as the judge fhould fee caufe. In this manner every debtor in execution would be difcharged by the public, out of that kind of fcftody, at a certain period : and, if honeft, he would have nothing to fear: but if he -deferved punifh- ment, he would ftand juftly expofed to it. Creditors would have all the advantages of imprifonment in execution ON CIVIL IMPRISONMENT. 137 execution which they can fairly enjoy at prefent; be- caufe their debtors would be in their power for a lufficient length of time to anfwer every juft pur- pofe And, not to mention the great benefit of a Concurrent remedy by execution againft the debtor's eftate and effects during his imprifonment, *s well as after it, they would have this additional advan- tage, that difhoneft debtors would then have caufe to dread a gaol. For as cruelty or unjuft defign could carry oppreffion but a certain length, fo fraud or dilhonefty could never hope, after a certain time, to effect an efcape by the influence of addrefs, or through the weaknefs of companion. The feve- rities of a gaol would form an Ordeal for diftinguifh- ing the innocent from the guilty ; and creditors, in vindicating their own private rights, would be pro- moting the courfe of public juftice. - SECT. .VI. Of tbs ESTATE AND EFFECTS of Perfons dlfcharged as Infohent 'Debtors. 1 F creditors were to be denied (as they are at prefent) the power of proceeding againft the eflates or effects of their imprifoned debtors, it would be impoffible to propofe any permanent law for difcharging infolvents, without particularly pro- viding for the furrender of their effects to their creditors at large, as the condition of their dif- charge. It is an idea which naturally fuggefts itfelfj but every fcheme^ of which it forms a part, 138 TREATISE part, involves in it a ground of unanfwerable ob- jection. All the various forms and proceedings which, in fuch cafes, are indifpenfably neceffary for regulating the transfer of the debtor's eftate to his creditors j the inveftiture of truftees ; the adminiftra- tion of thofe truftees -, the diiiribution of the re- fidue, after the fund has been worn down to half its original fize; and the effect of that diftribution upon the creditor's claims againil the future eftate of the debtor, form a complicated machinery, full of the means of abufej and too great, in general beyond all proportion, for the value and extent of the ob- ject*. But if creditors could proceed in the regular courfe of execution, not only againft the eftates and effects of their infolvent debtors, during their im- prifonment, and when difcharged as fuch, but alfo againft their future acquifitions, unlefs protected by the certificate of bankrupt; and had befides the bene- fit of pofitive laws to deter their debtors from the frauds of concealment or voluntary mifapplication of the means of fatisfaction in their power (which ought to form an eflfential part of every plan of amendment) the mere difcharge of their perfons, after every rational purpofe of imprifonment had been anfwered, could never fubftantially affect the rights of creditors i or be the proper ground of any new fet of meafures, to throw the courfe of law out of its ordinary channel, * The Lords' A&, occafional infolvent als, and the unavoid- able abufe of the bankrupt laws, when applied to trifling cafes for the fole benefit of the bankrupt, afFord examples pf what is here ftated. SECT, ON CIVIL IMPRISONMENT. SECT. VII. The E/eft of the Difcharge of a Debtor as an Infolvent Debtor. *jP H E difcharge of an infolvent debtor Ought only to protect his perfon ; and as, in every inftance, the law fhould lean in favour of the creditor, that protection ought to be Jo qualified, that the burden of Ihewing himfelf entitled to it fhould be thrown upon the debtor : nor ought it to affect the right of a creditor who had not received timely notice of the debtor's imprifonment previous to his difcharge. Therefore it might juftly be part of the law, that before a difcharged infolvent debtor, arrefted and imprifoned upon a debt prior to his difcharge, could be difcharged out of cuftody upon fuch arreft, he Ihould be obliged to fhew, either that the creditor had notice of the former imprifonment ferved upon him a certain time before the infolvent's difcharge; or that due enquiry had been made refpefting fuch creditor's refidence, without effect: and this might be Ihewn by the affidavit of the perfon who ferved the notice, or made the enquiry. On the other hand, a debtor fo arrefted or imprifoned for a debt, prior to his difcharge as an infolvent debtor, at the fuit of a creditor who had fuch regular notice of the infolvent's former imprifonment, previous to his difcharge, ought to have his action for filch fub- fequent arreft and imprifonment, and recover da- mages on proving fuch notice, With 140 TREATISE With refpect to the cafe of a bankrupt trader thus difcharged as an infolvcut; the complaints which have often juftly been made, that certificates of bankrupt are obtained with too much eafe, regard in general the material operation of fuch certificates in protecting the future effetts of the bankrupt. But the law now propofed would afford no cover to the future effects of an infolvent debtor; and therefore a bankrupt trader fo difcharged would in that ef- fential reipect be as much dependent upon the cer- tificate as ever. His perfon indeed, though he were uncertificated, would.be free from arreft for former debts but that freedom' could only be obtained after a previous imprifonrr>ent and proceedings which would aid and promote the operation of the 'bankrupt laws; and (in confequence of a provifion in the law for that purpofe) expofe the bankrupt, as a difcharged infolvent debtor, to eventual pu- nifhment, in certain cafes,, for which thcfe laws do .not provide* SECT. VIII. jT becaufe the reproach which neceflarily belongs to the cha- racter, mtift induce men who have any regard for reputation to avoid a fituation which expofes them fo unfavourably to public obfervation : and, Secondly , becaufe it is convenient that other men, in the moft diftant parrs, fhould have an opportunity of knowing the fact, not only with a view to more than ordinary caution in future tranfadtions with fuch perfons ; but in order that fuch difcharged in- folvents may be brought to trial and punifhment, if they have been guilty of frauds defcribed by the law, which may not have come to light in the courfe of the proceedings previous to their dif- charge. But if this applies to the cafe of a mere infolvent, who may have been difcharged as fuch without dif- ficulty or hefitation, and immediately fet at liberty, it muft apply flill more ftrongly, in different de- grees, to the cafe of an infolvent who has been re- manded as a debtor in execution, or committed either for palpable negligence or extravagance, or on fufpicion of fraud. It would, therefore, be no fuperfluous provifion in a new law, to make it the duty of the proper of- 7 ficer ON CIVIL IMPRISONMENT. 143 ficer of the court to publilh without delay, in the London Gazette, a lift of all infolvents brought up under the a6t, and either immediately difcharged and fet at liberty ; or remanded as debtors in exe- cution ; or committed, immediately after their dif- charge as infolvents, for matters appearing againft them. I ' - THE Author now concludes He has ftated his ideas with that freedom which he feels to be con- fident with infinite refpecl: for the opinions of others s and a juft imprefiion of the magnitude and diffi- culty of the fubjecl:. It is not indeed for every individual to at the part of a legitlator; but every individual ought freely to ftate the fuggeftions of his mind upon thofe topics of common concern, ' which, from his fituation and habits, have naturally- engaged his attention: and he may be ailured, that fuch fuggeftions will ever be beft received by thofe who are beft able to judge of them. /fa:/' is isl < fottimrnoa ,1O t 32< ni noBivo APPENDIX- [145 3 APPENDIX* N T A, p. 6, HABET rex etiarh curiam et jufticiarios in banc6 refidentes qui cognofcunt de omnibus placitis de quibus auftoritatem habent cognofcendi; et fine warrants iurifdiftionem non habent nee coercionem.Braftori) lib. 3. NOTE B, p. 7. Dicuntur brevia cum fint formata ad fimilitudinem re gulae juris quae brevifef et paucis verbis intentionem pro- ferentis exponunt, ficut regula juris, rem quae eft, breviter enarrat j noh tarheri itit debet efle breve, quin rationem e vim inteintionis contineat.- : -/%/d j lib. 2j c. 12. NOTE C, p. 7'. Thefe writs were of two different forts, arid Had two different technical appellations, viz. a Pratc'ipe, and a Si tc fectrit fecurum : the former^ peculiar to certain a&ions where the defendant had an option given him either to* do the thing required, or Ihew caufe why he did not the L htter. 146 APPENDIX. latter, peculiar to other actions, and commanding the de- fendant peremptorily, and in the firft inftance, to fhew caufe. But both required fecurity or pledges from the pro- fecutor, as the condition of compelling the defendant to appear. NOTE D, p. 9, The courfe of thofe writs and proceedings was as fol- lows : A man was charged with the breach of an obliga- tion purely civil ; as for example, to pay a certain fum of money upon a day certain the day of payment elapfed, and the creditor proceeded thus : He gave a fhort note of his claim into the office of Chancery ; an original writ, or, as it is fhortly termed, an original^ was from thence iflued ; the creditor giving fecurity either in Chancery, or after- wards before the fheriff, that he fhould profecute the fuir with effect. By virtue of the writ thus obtained from Chancery the debtor was commanded by the fherifF, in the king's name, either to pay the particular fum therein fpeci- fied, or to appear upon a day certain before the king's juftices at Weftmirrfter (the Court of Common Pleas) to fhew caufe why he dkl not. The jurifdiclion of the court now attached upon the caufe thus brought before it, by the \vrit from Chancery, and therefore it had authority to- proceed afterwards by means of its own powers. The debtor difobeyed the writ from Chancery, and neither paid the money nor appeared in court. A writ then iilued from the court itfelf, termed a writ of pone or attachment (which, with all fubfequent writs, were called judicial writs, as proceeding from the court) directed alfo to the fherifF, by which he was commanded, in the king's name, to take certain of the debtor's goods which fhould b^forfeited, and fureties who fhould be amerced (technically, to take gage endjafe pledges) if he did not appear upon another day cer- tain toanfwer to the demand, and to fhew caufe why he had difobeyed APPENDIX. 147 the original writ. The debtor yet difobeyed and ft ill his perfon was free. Another writ ifTued, called a diftringas) but it was only againft his property. By it the fheriffwas commanded to feize, in the king's name, all the debtor's lands and chattels within his county, and to anfwer for the iflues and profits thereof, not to the creditor but to the king, who had a right to the whole forfeiture, in confequence of his fubjecVs difobedience. Finch, 1. 352 'S'Blackft. Com. 280. A fucceffion of thefe writs, one after another, might then iflue ad infinitum (termed dijlrefe in- finite) fo as to deprive him from time to time of every thing he acquired, until he chofe to obey the commands of his fovereign. NOTE E, p. 10. Where the injury was attended with violence, or was fo charged, the original writ was joined with that which in the former cafe iflued only in the fecond place, viz. the pone or attachment, by which the fheriff was ordered to take gage and pledges for the defendant's appearance ; and yet another writ againft his property, fuch as alfo iflued in the former cafe, viz. the diftringas, had to run its courfe. Nor was it till the fheriff had made a return nihil (as it is called) that is, given for anfwer to the writ, that the per- fon charged had nothing within his county by the feizure of which he might be diftrefled, that a warrant was at length iflued for bringing in his perfon to anfwer to the charge, which was termed a capias ad refpondendum. Or if the fheriff of the county to whom the writ was directed (which was always the county where the court fate) re- turned for anfwer, that he could not find the defendant, then another writ, called a teftatum capias, was iflued, di- rected to the fheriff of another county, where it was faid the defendant lurked j and repeated writs of the fame fort L 2 (called i*g APPENDIX. (called alias & plurics writs) were fucceffively ifTuedagainft him. If not yet found, he was outlawed. This was the regular courfe of proceeding ; but accord- ing to the prefent practice the capias^ or warrant to feize the defendant's perfon, is ufually the commencement of the a&ion; a fiHtious original writ and return being put upon record " to give a colour of regularity to the proceed.- " ings." Thefc proceedings have been fcated upon the authority of Lord Coke, Lord Chief Baron Gilbert, Sir William Blackftone, and others Nor is it material here to exa- mine how far the authority of thefe great names in the la\r js ihaken by fome paflages in B ration, with regard to the more ancient courfe of common law proceedings, fuppofed by fome to have taken place, in fuch perfonal alions. It appears certain, that at one period, at leaft, the proceed- ings eftablilhed by long practice were as they have been ftated and, in many refpecb, are the regular courfe of proceeding at this da^. NOTE F, p. 12. This refers to the general fpirit of Magna Charta, and not to any article in particular. Chapter 2gth of that great mftrument, indeed, is in the following words: " Nullus " liber homo capiatur vel imprifonetur, aut difleifietur de u libero tenemento fuo, vel libertatibus, vel liberis confuetu- " dinibus fuis, aut utlegatur, aut exuletur, aut aliquo moda " diftruatur; nee fuper eum ibimus, nee fuper eum mitte- * the form aforefaid; and at the laft he fhall have a writ to i* what fheriff he will, to take his body (if he be Lay) and " to retain it in manner forefaid. And let the keeper |C of the prifpn take heed that he muft anfwer for the body, u or for the debt. And after the debtor's lands be deliver- ?* ed o thq merchant, the debtor may lawfully fell his land, " fo that the merchant have no damage of the^ approve- " ments ; and the merchants fhall always be allowed for " their damages, and all cofts, labours, fuits, delays, and *' expences, reafonable. And if the debtor find fureties ** which do acknowledge themfelves to be principal debtor?, tc after the day pafled, the fureties fliall be ordered *f in all things as is faid of the principal debtor, " as to the arrcft of body, delivery of lands, and other " things. And when' the lands of the debtors be delivered unto the merchant, he fhall have feifin of all the lands w that were in the hand 'of the debtor, the day of the re- " cognizance made, in whofe hands foever that they come ?' after, either by feofment or otherwife. And after tiie debt J54 APPENDIX. " debt paid, the debtor's lands, and the ifiiies of lands of " debtors by feofment, fhall return again, as well to the <{ feoffee as the other lands unto the debtors. And if the " debtor or his fureties die, the merchant fhall have no " authority to take the body of his heir, but he fhall have " his lands, as before is faid, if he be of age, or when he fhall be of full age. And a feal fhall be provided that ' fhall ferve for fairs, and the fame fhall be fent unto every " fair under the king's feal by a clerk fworn, or by the < keeper of the fair. And of the commonalty of the mer- " chants of the city of London two merchants fhall be " chofen that fhall fwear, and the feal fhall be opened be- Cl fore them j and the one piece fhall be delivered unto the " forefaid merchants, and the other fhall remain with the c< clerk; and before them, or one of the merchants (if both " cannot attend) the recognizances fhall be taken, as be- u fore is faid. And before that any recognizances be in- rolled, the pain of the ftatute fhall be openly read be- " fore the debtor, fo that after he cannot fay that any did put another penalty than that whereto he bound himfelf, " And to maintain the cofts of the faid clerk, the king " fhall take of every pound a penny in every town where- j, to whom this ordinance {hall not extend). " And by this ftatute a writ of debt fhall not be abated ; " and the chancellor, juftices of the one bench and of the 76 A P P E N D I Xj je&, in thefe words : " The lords ordain that in alt de~ " erects of bonorum to be decerned hereafter, there be art " exprefs claufe infert, ordaining the party in whofe fa- tc vour the bonorum is granted to wear the habit o( bankrupt) " and that they take on the habit before they come out " (of prifon) and come out therewith; and that it fhall be u lawful and free to their ci editors to feize and imprifon " any of them whenever they fhall be found wanting the " habit upon them. And the lords declare that the habit and is not confidered in any fenfe as a fatisfaftion, a cre- ditor who has imprifoned his debtor is not thereby deprived of his right of execution againft his eftate or effects. Whatever may have been the cafe anciently (for the learned Craig has faid that the law was different in his time, but was foon altered) it has for thefe two laft centuries been the law of Scotland that the creditor can refort to execution againft his imprifoned debtor's lands and goods, as a concurrent By the laws of Holland no defendant can, as fuch, arrefted on procefs in the a&ion. A debtor only, N after 17* APPENDIX. after judgment obtained againft him, may be imprifonecT. But he has the action of cejjio bonorum, by which an honefif infolvent debtor regains his liberty, as in Scotland And the laws of fome of the great trading cities of Germany are nearly the fame. NOTE W, p. 55. J The Marquis of Beccaria, in his Eflay on Crimes arxJ Punifhments, treating of the imprifonment of a perfon who by misfortune has been deprived of the means of pay- ing his debts, exprefles himfelf thus: " Why is he ranked " with criminals, and, in defpair, compelled- to repent of " his honefty ? Confcious of his innocence he lived eafy " and happy under the protection of thofe laws which, it is " true, he violated, but not intentionally ; laws dictated " by the avarice of the rich, and accepted by the poor, u feduced by that univerfal flattering hope which makes ** men believe that all unlucky accidents are she lot of a others, and the moft fortunate only their fhare. Man- u kind, when influenced by the firft imprefllons, love cruel " laws, although, being fubjecl to them themfelves, it is " the intereft of every perfon that they fliould be as mild u as poffible; but the fear of being injured is always " more prevalent than the intention of injuring others." Chap. 54. . - : . NOTE APPENDIX, 179 t NOTE X )P .S9. The practice of the Court of Common Pleas Is different From that of the Court of King's Bench in receiving affida- vits of debt to hold to bail. In the Court of Common Pleas the defendant may file a crofs affidavit, and then thft plaintiff may file an additional one in fupplement of the former ; confequently it is not thought neceflary that the affidavit fhould be fo pofitive in the Court of Common Pleas as in the Court of King's Bench. See I T whipping and torturing him occafionally, either for the purpofe of making him $f<;over effects, or of gratifying a favage refentment. NOTE D D, p. 72. Were it necefifary to prove that this is not fpecula- tlon unfupported by fact that while it is certain there are many debtors who deferve the utmoft feverity of law, there are alfo many creditors who perfift, with the moft abfurd and unfeeling obftinacy, in confining debtors whv> have APPENDIX. 185 have evidently failed through misfortune, and are abfo- lutely unable to difcharge their debts were it neceflary to prove this by facts, the multitude of debtors who were thrown into prifon after the great fire of London, many of whom had loft their all, and been rendered infolvent by that great calamity,- and who were neverthelefs kept in gaol, and the mod wretched mifery, by their brutal cre- ditors, would afford fufficient evidence to fupport the afler- tion, that fuch things do very frequently happen. The fact alluded to is known hiftorically, and proved by the; preamble of the 22 & 23 Car. II. c. 20. Nay repeated inftances have occurred, even of late, where creditors perfifted in keeping the body of a debtor in gaol after the mind was gone, that is, after he had be- come infane. And the courts have been obliged to refufe (certainly with reluctance) to difcharge debtors who were admitted to be in that miferable fituation. See Kernot againft Norman, 2 Term Rep. 390. There are even in- ftances of perfons arrefted when in a ftate of infanityj and the Court of King's Bench was under the neceility of re- fufing an application laft Michaelmas term to difcharge a man whom his creditor, knowing him to be infane, had fo arrefted, and ftill kept in prifon, though raving mad, as a debtor in execution. Were further evidence yet neceflary, it might be found in the proceedings of a charitable fociety to be particularly noticed in the fequel. NOTE E E, p. 74. A very ingenious man and philofophic lawyer, obferving upon the litis contejiatia of the Romans, after mentioning that it ceafed to be a judicial contract, goes on in thefe words : " But then it was defined to be a quaji contract, which, 186 APPENDIX. ** which, in plain language, is faying, that it hath nothing C{ of a contract except the name." Lord Kaims's Law Trafis t 296. NOTE F F, p. 85. Without meaning to adopt the following opinion of Puffendorffi it may be of fome ufe to contraft it with the arguments quoted in this chapter from Sir William Black- ftone. " Confiderandum preterea hie eft, quam quts u caufam aut neceflitatem habuerit debitum contrahendi. w Prout enim haec gravis aut levis fuerit, favor debitoris < l inopis aut miferatio intenditur aut remittrtur. Undc c recie duriore habentur conditione mercatore^ etiam qui " per cafum fortuitum folvendo efle defierunt, quam alii * c qui ex peculiari quadam neceflltate pecunias mutuo fu- *' mere funt adafti. Illos enim lucri cupido debita con- < c trahere fubigit. Et cum ipfi artem ditefcendi profitean- " tur vix culpa carent qui etiam fortuito non pracaverunt; w puta, qui omnes fuas fortunas uni cafui expofuerunt." Puff, de Jure Nat. et Gentium, lib. 3. c. 7. 3. Sir William Blackftone's Commentaries have been par- ticularly referred to, becaufe that work is not confined to the collections of lawyers, but juftly holds a diftinguiflied place in the library of every gentleman. It is an authority, therefore, which can be confulted by every body. NOTE APPENDIX. 1*7 NOTE G G, p. 88. The application of this principle in the bankrupt laws perhaps requires correction. The object of it is, that de- ferving men, who have fuffered by innocent errors and mif- fortunes in trade, fhall be protected, and preferved to their country; but that deferving men only, (as far as law can diftinguifti that character) (hall be fo protected. The ob- jection is, that the law does not difcriminate fo much as it jnight: that provided a man has fufficient addrefs to pro- Cure a concurrence of four-fifths of his creditors, and no diTetl act of fraud appear againft him, he may receive the protection of the bankrupt law in its fulleft extent (if no objection is ftated to the lord chancellor) although he has been all along playing at hazard in trade, with the money of others, and wilfully expofmg them to the utmoft jeopardy, merely to purchafe to himfelf a very remote chance of gain, or immediate fupport in a line many de- grees above his fair pretenfions. This, it muft be confeffed, is a delicate fubject, and too many conditions might defeat one great object of the law; but furely, upon the fame principle that gaming to a certain extent, or giving a cer- tain fum of mpney to a daughter upon her marriage, are circumftances which by the ftatute exclude the bankrupt from all benefit under it; others ftill more prevalent, in that line of life, might be added. Were there more precaution in that refpect, fo as to place in the fituation of common infolvents thofe bankrupt traders who have been guilty of certain mal-practices which admit of definition, there would not be fo much room for the reflection, that the bankrupt law is much lefs reforted to for the benefit of creditors than for that of debtors and men of integrity would be lefs frequently mocked at the unprincipled ar- rogance of thofe {lately bankrupts who are to be feen in all the public walks of trade, looking down upon their indigent creditors, and grown great by difhonefty. NOTE APPENDIX. NOTE HH, p. in. That part of the Lords Act which relates to the dif- charge of the prifoner, after having directed the manner of his being brought up, the oath he is to take, and the align- ment and conveyance he is to execute in favour of his creditors, proceeds (faction 13) in thefe words: "And " upon every fuch alignment and conveyance being- exe- tf cuted by any fuch prifoner or prifoners, he, {he, or they " fhall be difcharged out of cuftody by rule or order ** of fuch court, which (hall be petitioned by any fuch * c prifoner; and fuch rule or order being produced to, and " a copy thereof being left with, any fuch fheriff, gaoler, " or keeper of any prifon as aforefaid, fhall be a fufficient < l warrant to him to difcharge and fet at liberty forthwith