Front Page Titles (by Subject) CHAPTER XXVII.: IMPRISONMENT FOR DEBT:—DISGUISED EXCLUSION OF EVIDENCE INVOLVED IN IT. - The Works of Jeremy Bentham, vol. 6
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CHAPTER XXVII.: IMPRISONMENT FOR DEBT:—DISGUISED EXCLUSION OF EVIDENCE INVOLVED IN IT. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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IMPRISONMENT FOR DEBT:—DISGUISED EXCLUSION OF EVIDENCE INVOLVED IN IT.
Course prescribed, in relation to this head, by Natural Procedure.
Follow in relation, to this head what present themselves as the proper subjects of inquiry:—
1. To the alleged creditor, by the alleged debtor, to the amount in question or to any other amount, and in the case of mutual accounts upon a balance, is a debt due?—is there any, and what, reason for supposing, that upon inquiry any such debt will be found to be due?
2. If due, in the possession or in the power,—at the command—of the debtor, is there in existence property, or other lawful means of compensation in any shape, to the amount of the debt, or any part of that amount?
3. Over and above the alleged debtor in question, are there any, and what person or persons, who jointly with him, in any and what proportion, or in his default, absolutely or eventually stand bound for the discharge of it?
4. To the alleged debtor in question, on the occasion of the contracting of the debt, or in respect of the non-discharge of it, is blame in any and what shape imputable?
5. If yes, in what shape? In the shape of fraud or rashness, or negligence;—and in each case, is any and what circumstance of aggravation on the one hand—of extenuation on the other hand, to be found attaching upon the offence?
6. In addition to the alleged creditor at whose instance, on the occasion in question, the demand is made, exist there any other and what persons, who on any and what score respectively, upon the effects of the alleged debtor have any such claim, as by satisfaction administered to the demand made on the present occasion, would to any and what amount be prejudiced?
Such are the points, or at least among the points, in relation to which, had justice been the object and humanity the guide, evidence would have been thought fit to be heard, or if not heard, at any rate in the best producible shape received and read:—heard or read, as the case may be, before any such sufferings as those which are attendant on imprisonment or local confinement had either definitively or provisionally, in execution or on mesne process, as the phrase is, been inflicted.
Evidence received?—from whom?—and in what shape? Answered a thousand and a thousand times over:—from the parties at the initiative meeting in the presence of the judge—in the orally expressed shape,—subject to interrogation,—unless in so far as personal appearance is by accident rendered on either side physically or prudentially impracticable.
Forewarned, an insolvent debtor might withdraw his person or his effects out of the track of justice:—suspicion to this effect declared, at the plaintiff creditor’s peril, on record, no reason why, with the secresy and suddenness that have place at present, the debtor should not be arrested, provided always, that instead of jail or spunging-house, he be brought immediately into the presence of the judge, there to undergo examination, as above.
Course actually pursued in relation to this head, by English Technical Procedure:—groundlessness and needlessness of the infliction in this case.
Above we see what ought to be:—now as to what is.—Under technical procedure—under Westminster-Hall procedure, on scarcely any of these points is evidence in any shape at any time received: on almost all of these points, evidence in all shapes stands at all times excluded.
Look to the efficient cause, and no further: in all this nothing will be seen but that sort of error which, throughout the greater part of this work, has been seen exercising its baneful rule—exclusion of evidence.
Include in your view the consequences and the final cause, the author’s end in view, and the means—everything will be seen by which the heart or the head of a man is most disgraced.
1. For consigning a man to imprisonment definitively till the debt is discharged—that is, bating the accident of insolvent acts, or release given by the injured creditor, to the end of life—in the ordinary course, viz. the common-law course of procedure, all that is required is, direct proof of the debt,—or what is considered as an equivalent, in the character of circumstantial evidence of it, and that conclusive,—inability to defray the charges of defence.
2. For consigning a man to imprisonment provisionally, viz. on mesne process, till he find responsible persons who engage, in the event of a judgment in affirmance of the debt, either to discharge the debt themselves, or deliver up his body to the definitive imprisonment—to imprisonment, viz. in a common goal, or if he able and willing to bear the extra expense, to a place of less incommodious confinement, commonly called a spunging-house, till the reign of George II., nothing more was necessary than repairing to one of the justice-shops (officinæ justitiæ, as in lawyers’ Latin they have been called,) in which the liberty of the subject was and continues to be sold at a fixed price, by and for the benefit of the judges;—going to one of these shops, and paying to the agent of the judge the price of the lying instrument, by which authority for the exercise of this act of oppression was and is conferred.
At present, the matter stands not exactly upon this footing. Anno 1725, at the end of a term of oppression of several hundred years continuance, without so much as the faintest colour of justice (after the degree of opposition that may be imagined,) what was pretended to be a remedy was applied.
Antecedently to arrest, as a condition precedent to the issuing the warrant for arrestation, an affidavit was required to be exhibited by the plaintiff creditor—an affidavit in which the existence of a debt not less than to a certain amount, as due to him from the alleged debtor, was asserted, but in the most general terms, without any the slightest indication given of the ground of the demand—without any such assertion as that that or any other amount was due upon the balance, or that for the vexation, inconvenience, and expense to which the alleged debtor was thus subjected, there existed any such reason as that which would be afforded by his probable insolvency, coupled with his eventual nonforthcomingness for the purpose of definitive imprisonment, as above.
The matter of fact deposed to, insufficient to warrant the suffering inflicted;—the sole source of the evidence the most untrustworthy of all sources,—the party testifying in his own cause, without the check of counter-evidence—that evidence received in the most untrustworthy of all shapes, viz. the affidavit shape;—to the purpose in question, this evidence taken for conclusive;—all counter-evidence excluded;—the party defendant condemned to this inconvenience, vexation, and expense, unseen and unheard:—such was the arrangement which, when applied to the abomination above described, a lawyer-led legislature was weak or wicked enough to present to the people in the character of a remedy.