The Online Library of Liberty

A project of Liberty Fund, Inc.

• Errata—vol. VI. *
• An Introductory View of the Rationale of Evidence; For the Use of Non-lawyers As Well As Lawyers.
• Chapter I.: Title-page Justified.
• Chapter II.: Relation of Law to Happiness—of Procedure to the Main Body of the Law—of Evidence to Procedure.
• Chapter III.: Ends of Justice On the Occasion of Judicature. *
• Chapter IV.: Duties of the Legislator In Relation to Evidence.
• Chapter V.: Probative Force—whence Measured—how Increased—how Diminished.
• Chapter VI.: Degrees of Persuasion—thence of Probative Force—how Expressible.
• Chapter VII.: Causes of Trustworthiness and Untrustworthiness In Testimony—thence of Belief and Unbelief.
• Chapter VIII.: Of the Securities For Trustworthiness In Evidence.
• Chapter IX: False Securities For Trustworthiness In Evidence—oaths and Exclusions.
• Chapter X.: Of the Reception and Extraction of Evidence, Viz. With the Help of the Above Securities.
• Chapter XI.: Collection of Evidence—english Practice.
• Chapter XII.: Of Circumstantial Evidence.
• Chapter XIII.: Of Make-shift Evidence.
• Chapter XIV.: Of Preappointed Evidence.
• Chapter XV.: Difference Between Preappointed and Unpreappointed Evidence.
• Chapter XVI.: Preappointed Official Evidence.
• Chapter XVII.: Extempore Recordation, How Applicable to Legally Operative Facts At Large.
• Chapter XVIII.: Of Derivative, Including Transcriptious, Recordation, Wherein of Registration.
• Chapter XIX.: Exclusion of Evidence.—general Considerations.
• Chapter XX.: Exclusion Continued—causes For Which It Is Proper Or Not, According to Circumstances.
• Chapter XXI.: Exclusion Continued—causes For Which It Cannot Be Proper.
• Chapter XXII.: Exclusions By English and Other Laws—analytic and Synoptic Sketches.
• Chapter XXIII.: Safeguards Against Suspicious Evidence: Including Instructions Concerning the Weighing of Evidence.
• Chapter XXIV.: Authentication and Deauthentication, As Applied to Preappointed and Other Written Evidence.
• Chapter XXV.: Exclusion and Nullification Applied to Contractual Matter, In So Far As Writing Has Been Omitted to Be Employed In Giving Expression to It.
• Chapter XXVI.: Of the Exclusion and Nullification of Contractual Matter, Informally Though Scriptitiously Expressed, In a Transaction Which Has Been the Subject of Matter Formally Expressed.
• Chapter XXVII.: Imprisonment For Debt:—disguised Exclusion of Evidence Involved In It.
• Chapter XXVIII.: Of the Burthen of Proof: On Whom Shall It Lie?— (a Question Produced By Undue Exclusion of Evidence.)
• Chapter XXIX.: Evidence Considered In Its Relation to This Or That Fact In Particular—why Discarded From This Work.
• Chapter XXX.: Evidence In Relation to Particular Facts and Pleadings Under Technical Procldure.
• Chapter XXXI.: False Theory of Evidence (gilbert’s * )—its Foundation:—precedence Given to Written Before Unwritten.
• Chapter XXXII.: Liberalists and Rigorists—parties Belligerent In the Field of Jurisprudence, and In Particular of Evidence.
• Chapter XXXIII.: Conclusion.
• Appendix A.: Cautionary Instructions Respecting Evidence, For the Use of Judges.
• Chapter I.: Propriety of Cautionary Instructions, In Preference to Unbending Rules.
• Chapter II.: Considerations Proper to Be Borne In Mind In Judging of the Weight of Evidence.
• Chapter III.: Considerations Respecting the Effects of Interest In General Upon Evidence.
• Chapter IV.: Considerations Respecting the Effect of Pecuniary Interest Upon Evidence.
• Chapter V.: Situations.
• Chapter VI.: Makeshift Evidence.
• Chapter VII.: Scale of Trustworthiness.
• Chapter VIII.: Best Evidence, What?
• Chapter IX.: English Law Scale of Trustworthiness.
• Appendix B.: of Imprisonment For Debt.
• Section I.: Its Inaptitude As an Instrument of Compulsion.
• Section II.: Its Inaptitude, Applied As It Is As an Instrument of Punishment.
• Section III.: Its Needlessness Demonstrated By Experience.
• Section IV.: End, Or Final Cause of the Institution—judge and Co.’s Sinister Interest.
• Section V.: Means Employed—mendacity and Usurpation.
• Section VI.: Affidavit Previous to Arrest, Its Unfitness.
• Section VII.: Consequence of the Exclusion Thus Put Upon Evidence.
• Section VIII.: Advocates For the Abolition of Imprisonment For Debt—their Errors.
• Section IX.: Scotch Law—cessio Bonorum, Its Inadequacy.
• Section X.: Agenda—course Proper to Be Taken On the Occasion of Insolvency.
• Appendix C.: False Theory of Evidence—(gilbert’s.)
• Rationale of Judicial Evidence, Specially Applied to English Practice. From the Manuscripts of Jeremy Bentham, Bencher of Lincoln’s Inn.
• Preface.
• Prospective View.
• Book I.: —theoretic Grounds.
• Chapter I.: On Evidence In General.
• Chapter II.: Of Evidence Considered With Reference to a Legal Purpose; and of the Duties of the Legislator In Relation to Evidence.
• Chapter III.: Of Facts—the Subject-matter of Evidence.
• Chapter IV.: Of the Several Species Or Modifications of Evidence.
• Chapter V.: Of the Probative Force of Evidence.
• Chapter VI.: Degrees of Persuasion and Probative Force, How Measured.
• Chapter VII.: Of the Foundation Or Cause of Belief In Testimony.
• Chapter VIII.: Modes of Incorrectness In Testimony.
• Chapter IX.: General View of the Psychological Causes of Correctness and Completeness, With Their Contraries, Incorrectness and Incompleteness, In Testimony.
• Chapter X.: Of the Intellectual Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XI.: Of the Moral Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XII.: Ground of Persuasion In the Case of the Judge—can Decision On His Own Knowledge, Without Evidence From External Sources, Be Well Grounded?
• Book II.: —on the Securities For the Trustworthiness of Testimony.
• Chapter I.: Object of the Present Book.
• Chapter II.: Dangers to Be Guarded Against, In Regard to Testimony, By the Arrangements Suggested In This Book.
• Chapter III.: Internal and External Securities For the Trustworthiness of Testimony Enumerated.
• Chapter IV.: On the Internal Securities For Trustworthiness In Testimony.
• Chapter V.: Of Punishment, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VI.: Of the Ceremony of an Oath, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VII.: Of Shame, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VIII.: Of Writing, Considered As a Security For the Trustworthiness of Testimony.
• Chapter IX.: Of Interrogation, Considered As a Security For the Trustworthiness of Testimony.
• Chapter X.: Of Publicity and Privacy, As Applied to Judicature In General, and to the Collection of the Evidence In Particular.
• Additional Notes to Books I. & II. Chiefly With Reference to Alterations Made In the Law Since the Date of the First Edition,— Viz. 1827.
• Book III.: Of the Extraction of Testimonial Evidence.
• Chapter I.: Of the Oral Mode of Interrogation.
• Chapter II.: Notes, Whether Consultable?
• Chapter III.: Of Suggestive Interrogation.
• Chapter IV.: Of Discreditive Interrogation.
• Chapter V.: Of the Demeanour of the Adverse Interrogator to the Witness, Considered In Respect of Vexation.
• Chapter VI.: Of the Notation and Recordation of Testimony.
• Chapter VII.: That the Evidence Should Be Collected By the Same Person By Whom the Decision Is to Be Pronounced.
• Chapter VIII.: Five Modes of Interrogation Compared.
• Chapter IX.: Epistolary Mode of Interrogation, In What Cases Applicable.
• Chapter X.: Epistolary Mode of Interrogation, How to Apply It to the Best Advantage.
• Chapter XI.: Helps to Recollection, How Far Compatible With Obstructions to Invention?
• Chapter XII.: Of Re-examination, Repetition, Or Recolement.
• Chapter XIII.: Of Spontaneous Or Uninterrogated Testimony.
• Chapter XIV.: General View of the Incongruities of English Law In Respect of the Extraction of Evidence.
• Chapter XV.: Mode of Extraction In English Common-law Procedure—its Incongruities.
• Chapter XVI.: Mode of Extraction In English Equity Procedure—its Incongruities.
• Chapter XVII.: Mode of Extraction In English Ecclesiastical and Admiralty Courts—its Incongruities.
• Chapter XVIII.: Incongruities of Roman Law In Respect of the Extraction of Evidence.
• Chapter XIX.: Of Confrontation Under the Roman Law.
• Chapter XX.: Recapitulation.
• Book IV.: Of Preappointed Evidence.
• Chapter I.: Of Preappointed Evidence In General.
• Chapter II.: Of Instruments of Contract In General.
• Chapter III.: Of the Enforcement of Formalities In the Case of Contracts.
• Chapter IV.: Formalities, What Proper, and In What Cases?
• Chapter V.: Of Wills, As Distinguished From Other Contracts.
• Chapter VI.: Of Preappointed Evidence, Considered As Applied to Laws.
• Chapter VII.: Of Public Offices At Large, Considered As Repositories and Sources of Preappointed Evidence. *
• Chapter VIII.: Of Official Evidence, As Furnished By Judicial Offices.
• Chapter IX.: Of Preappointed Evidence, Considered As Applied to Legally-operative Facts At Large.
• Chapter X.: Of the Registration of Genealogical Facts, Viz. Deaths, Births, and Marriages.
• Chapter XI.: Of Offices For Conservation of Transcripts of Contracts. *
• Chapter XII.: Of the Principle of Preappointed Evidence As Exemplified In the Case of Real Evidence (evidence From Things.)

APPENDIX B.

OF IMPRISONMENT FOR DEBT.

SECTION I.

ITS INAPTITUDE AS AN INSTRUMENT OF COMPULSION.

In the case of debt, imprisonment, if in any character, can only be justifiable in the character either of an instrument of punishment or of an instrument of compulsion.

In the character of an instrument of compulsion, suffering being an unavoidable attendant, not only of the use of this instrument, but of compulsion itself by whatsoever means produced, it cannot be justified if it be either groundless, or needless, or inoperative, and thence useless.

In the particular circumstances of the individual case, has the application proposed to be made of it a just ground?—is it necessary to the accomplishment of the proposed object?—does it upon the face of it bear a promise to be effectual?

Unless, in relation to every one of these points, the judge have antecedently taken the requisite measures for satisfying his judgment and framing a decision accordingly, such measures not being either physically or prudentially impracticable, the application which by his authority, order, or permission, is made of this afflictive instrument, is unjust and indefensible.

For obtaining any such satisfaction, there exists but one possible means, and that is—receiving evidence: and in this case as in so many others, the testimony of the party himself is not only the best evidence, but to such a degree the best evidence, that without it, all other possible evidence put together which the world is capable of furnishing, may be pronounced insufficient.

In the sort of case in question, it has been and continues to be the interest of the judge to refuse ever to give admission to evidence either to this or so much as to any sort of evidence in general, and in particular in this best and on all occasions indispensable shape. Accordingly, in relation to no one of those several heads will any judge ever give admission to this best and most indispensable sort, not to speak of any other sort of evidence.

In the hearing of evidence, especially in the extraction of it in the shape of testimony, much labour must be expended, and little power is exercised. In the making of presumptions, especially if, as here, without grounds, no labour is expended, and much power is exercised.

Accordingly, on this occasion as on so many others, the door is shut against evidence, and presumptions made without grounds are substituted to it.

In a large proportion of the whole number of instances in which the instrument of afflictive imprisonment is applied in this character, these presumptions are, to the knowledge of all mankind, every one of them false: but in this as in those instances, in the consciousness of such falsity no impediment is found to their being made.

Of evil in this shape and to this purpose, the application cannot have a just ground, unless from the defendant to the plaintiff not only a debt be due, but a debt exceeding in value the aggregate of all debts, if any, due from the plaintiff to the defendant. Of all points concerning which, in a case of the sort in question, the judge, if justice were his object, would be solicitous to obtain some information, this is one: but concerning this point, English judges, in so far as it has been in their power, have taken care to keep all such information out of their reach.

To the accomplishment of the object proposed—viz. the discharge of the debt, supposing a debt due—is this infliction necessary? Another point this, in relation to which the judge refuses to inform himself. Altogether unnecessary it is, as often as the solvency of the alleged debtor is out of doubt.

Forcing a man to pay money that he does not owe—forcing a man to render in any shape a service that he does not owe—is not justice.

Forcing a man to pay for another, money which not he himself but that other owes, is another result equally incompatible with justice. In this case, as in the other, it is forcing a man to pay money that he does not owe.

By the vicarious suffering thus indicted, no benefit is produced to the whole community of which these several parties are members. He who trusts his money in the hands of another, does it in contemplation of some benefit—of benefit in some shape or other;—and if it be in no other shape than that of the pleasure of beneficence, it makes to this purpose no difference.

To the relation of creditor, if contracted with the party’s consent and knowledge, benefit in some shape or other is always expected, and generally is essentially attached:—to the relation of friend to the debtor—friend able and willing to afford relief to his suffering, by taking up more or less of his burthens—no such benefit is, unless by mere accident, attached.

Upon the face of it, to the purpose in question, the infliction in question—does it carry any sufficient promise of being effectual? Not it indeed.

At the charge of the debtor himself, effectual it cannot be, in so far as property to the amount in question—property fails of being in his possession, or at his command.

At the charge of any other person, in the character of friend, prompted by sympathy to relieve the debtor from this affliction—that it should be effectual, is not for the common good of all persons concerned—is not, as hath been already shown, a desirable result.

At the charge of the debtor himself, when these necessary means are actually at his command, its efficiency, managed as it is, is in a high degree imperfect, in comparison of what it most obviously might and ought to be.

To the many a hell, to the comparatively few a prison, is, though not indeed a paradise, yet however a place of comfort—of comfort obtained at the expense of the injured individual by the interested connivance of the judge.

Solitary confinement—to the purpose to which this severe infliction is least well adapted—to the purpose of punishment—has in a most inordinate degree been with the most unthinking levity but too often applied:—solitary confinement continued for two years together, and the victim not yet heart-broken, nor reduced to a state of melancholy madness.

To the wrenching out of the grasp of the depredator the property of his creditor, nothing that has ever been known by the name of torture, supposing it necessary and at the same time actually effectual, or but for the wilful default of the debtor effectual, would be misapplied: for if, having the property at his command, rather than give it up to him to whom it is due, it be his choice to endure the torture, the proof is altogether conclusive, that be the extremity of the torture what it may, he experiences in the idea of the detention—he experiences, from whatsoever source, a countervailing and more than equivalent, howsoever malignant and unenviable, pleasure.

Happily, to the production of the desirable result, no such alarming, no such dangerous instrument is necessary—no such instrument is so effectually conducive as the familiar—indeed too familiar and simple instrument—solitary confinement.

Two years have scarcely satisfied the unfeeling and unthinking severity by which it has been applied to the purpose of punishment:—two weeks would in most, if not in all instances, suffice for the purpose of compulsion thus directed—for the purpose of compelling disclosure and surrender of effects for the benefit of creditors.

Of suffering, in the character of an instrument of compulsion operating by its intensity—as in the case of what is commonly understood by the name of torture—it is a property, by the stimulus applied to the mind, to excite such a degree of resisting force as hath sometimes been found sufficient to prevent the attainment of the object aimed at by it. Of solitary confinement, especially it alone employed as an instrument of compulsion, accompanied, as it ought to be, with spare diet and perpetual darkness, it is the property to break the spirit, as the phrase is—to infuse weakness into the mental frame, the desired and salutary weakness,—to deprive it of the power of applying what in the present case is by the supposition unjust resistance.

SECTION II.

ITS INAPTITUDE, APPLIED AS IT IS AS AN INSTRUMENT OF PUNISHMENT.

In the character of an instrument of punishment, the infliction in question,—is it well-grounded?—is it necessary?—is it, or does it promise to be, effectual?

Compulsion out of the question, if to any purpose suffering purposely applied and directed to an end be of use, it is to one or other of these three: viz. prevention by example, prevention, viz. of delinquency in the shape in question, on the part of persons other than the delinquent in question;—prevention of delinquency on the part of the person in question, by depriving him of the power of transgression, or by depriving him of the will, the disposition or inclination, i. e. reformation.

In the case in question, delinquency in any shape, has it taken place? Because, if not, all punishment is out of the question—all consideration of the subject of punishment is out of place.

Fraud or temerity,—in one or other of these shapes, delinquency, if on the occasion in question it really has had place, must have operated.

SECTION III.

ITS NEEDLESSNESS DEMONSTRATED BY EXPERIENCE.

Unjustifiable in this case in the character of an instrument of punishment—inadequate and unjustifiable in the character of an instrument of compulsion, it is unjustifiable in every imaginable point of view.

To what possible ends or objects can it have been directed?

Not to the benefit of trade,—i. e. for the augmentation of the security of traders.

It is in this application of it—if to this purpose application had been made of it, that the colour for it, the colour put upon it, would have been most plausible. But it is precisely in this case in which there would have been the best pretence for it,—in which the pretence for employing it would have been most plausible, that it is not employed—that the insolvent is exempted from it. On giving up all his property, a person deemed a trader is under the name of a bankrupt exempted from imprisonment.*

SECTION IV.

END, OR FINAL CAUSE OF THE INSTITUTION—JUDGE AND CO.’S SINISTER INTEREST.

Benefit of trade—security of property in case of trade—are not, then, the real objects, or among the real objects, to the attainment of which the infliction as applied in this case has been directed.

What, then, has been the real object? In this, as in every other quarter of judge-made law, the advancement of the sinister interest of the makers:—the interest of the sceptre, the interest of the purse, and the interest of the pillow;—the increase of power to the judges,—the putting of money into the pocket of Judge and Co.—and the saving of trouble to the judges.

If within the same walls within which the blameless debtor lies stretched upon a bed of wretchedness, or without a bed lies stretched on the floor—the fraudulent debtor lead a life of ease and plenty—it is because it is the interest of judges, that he who comes thither with other men’s money in his pocket should lead that life. Whether it operate in the shape of fees received by his own hand;—whether it operate in the shape of patronage—that is, in other words, fees received by the hands of a nominee—the force and effect of sinister interest is still the same;—with only this difference, that, received by the hands of a nominee, the value of a mass of fees is sometimes, though not always, less when received by the patron through the hands of a nominee, than when received immediately into his own.

Under the name of rent, or under some other name, the comforts enjoyed in a jail by a dishonest debtor are bought with the money of the injured creditor—bought of the jailor: and it is generally by some judge that the jailor is stationed in this his profitable post.

The difference between the rate of mortality in the aggregate body of imprisoned debtors, and the rate of mortality among persons at liberty, would give the number of deaths of which, though not for the purposes of punishment, yet for other purposes, the judges with just reason may and ought to be considered as the authors:—viz. in the joint ratio of the facility with which, if such were their wish, the abuse might be done away, and of the advantage which in every shape they derive from the maintenance of it.

How slight, in comparison, would be the responsibility of an English Chief-Justice, if on the score of untimely death produced by imprisonment for debt, he had no more to answer for than Su-raja Dowla had for the mortality in the black hole!

People of England! when will you open your eyes?—how long will ye be the dupes of sophistry, hypocrisy, and masquerade?

The nature of things will not change itself for the accommodation of English judges. Without evidence, there never has been, never will be, never can be, any such thing as justice. Resolved never to hear evidence—they are resolved never to do justice.

Believe, Honourable Gentlemen—believe, noble and learned Lords—the subject swarms with difficulties: difficulties indeed but too mighty. But the seat and source of them,—where is it? In the nature of the case? Not there indeed: but in the nature of the men from whose hands, if from any, the remedy would have to come. In finding out what is most fitting to be done, in that there is little difficulty. The difficulty is in prevailing upon men, whose interest it is that it should not be done, to cause it to be done, or so much as endure to see it done.

“The House will pause”—“I am not prepared to say”—“Your Lordships will pause:” such are the set phrases in which it would be postponed. Prepared to say? When will you be prepared to sacrifice your interest?

Hear evidence—distinguish between right and wrong—distinguish between degrees of guilt—distinguish between guilt and innocence. Give yourselves at least the possibility of doing so:—No, not you indeed:—it is too much trouble. These are the duties that sit so heavy on you: these are the shapes, the very idea of labour in which is, even in prospect, so intolerable.

Distinguish between guilt and innocence? No: we are not used to it—we cannot bear it—the fatigue would be intolerable.

SECTION V.

MEANS EMPLOYED—MENDACITY AND USURPATION.

Flagitious as was and as has been the end, the means have been like unto it. Depredation the end: mendacity and lying, of the very worst sort, the means.

By the original constitution, if to a state of society where all power was arbitrary and unsettled, a term with any such signification as at present stands attached to the word Constitution can be employed:—by the original constitution, for a penal cause—i. e. for an act that was deemed an offence against the king—a man might be arrested and put into confinement in the first instance: for a non-penal cause, a man could not be so dealt with. For the determination of causes of a penal nature, there was one sort of judicatory, the King’s Bench: for determining causes of a non-penal nature, there was a different judicatory, the Court of Common Pleas.

Money extorted by power from distress under the name of fees, constituted then a part of the income of a Judge—a Westminster-Hall Judge. With the share allotted to them out of the spoil, the judges of the King’s Bench were not content: a contrivance was hit upon for giving increase to it. Quoth the Chief-Justice to the Serjeant-at-law, who had for his client a creditor, or pretended creditor—“If you will charge a crime upon your debtor, I will take him up as for that crime, and I will not let him go till he has paid your client his demand, or given security for it;—you and the serjeant on the other side pleading pro and con in the meantime.” Such, if not in tenor, was in purport, in substance, and effect, the arrangement that was made.

Here, then, was double injustice—here was a most complicated system of injustice and immorality in other shapes. The debtor was illegally deprived of his liberty:—the judges of the proper judicatory were cheated of their fees. Such being the effects produced, the means were suitable:—a conspiracy between the judge and the lawyers that practised under him—a conspiracy, and the means employed for giving effect to that conspiracy, a vile and notorious lie.

Thus commenced the practice: commenced in the King’s Bench, how it opened the court, many words will not be necessary to show. Vice is a fruitful stock—lies beget lies. The lie of which the birthplace was the stronger court, the King’s Bench, was an aggression; the lie taken up in and by the Common Pleas was in self-defence: and, not to be left altogether in the lurch with such examples, up stood the Exchequer at last, and put in for its share. Truth was a weapon of which neither of them understood the management: on all sides of Westminster Hall, falsehood had been the instrument by which everything had been done.

They have forged a bond upon you, have they? Don’t stand to contest the genuineness of the bond,—that will be a waste of trouble and uncertainty. I will tell you what is your shortest and surest course:—forge a release. Such, says the common story, was the advice given by one attorney to another. But if reference had been safe, there would have been no need of story. On all the benches, if not precisely in this shape, in a shape much more dishonest, falsehood is daily practised.

SECTION VI.

AFFIDAVIT PREVIOUS TO ARREST, ITS UNFITNESS.

To the misery produced by imprisonment for debt on mesne process, in the earlier part of the last century, in the shape of the angel of beneficence, the demon of chicane suggested and carried a wretched palliative—viz. the sort of affidavit by which the necessary warrant for arrestation has ever since been preceded.

In addition to the general assurance of the existence of a debt rising to a certain amount, if the averment of its being over and above all debts due per contra, as also of the arrest being, in the persuasion of the creditor necessary to the eventual securing of effectual justiciability or personal forthcomingness on the part of the alleged debtor, had been required, the number of the sort of arrests in question, and with it the profit of Judge and Co. would have undergone no inconsiderable diminution. Accordingly, obvious as those amendments were, effectual care was taken that neither of them should be made.

Loss by the unjust imprisonments thus prevented—profit upon the affidavits thus rendered necessary,—which was the greatest? Loss was probably the answer: for on this, as on all other occasions in which great good to the many cannot be produced but at the expense of evil in less amount or quantity to the domineering few, great was the reluctance experienced in the admission even of this wretched palliative.

“Oh! what a blow did that act give to business! Before that act was passed, the richest merchant in London might be taken off, charged—aye, by any man whatever, by a man to whom he had never owed a farthing in his life.” Never shall I forget the tone or the countenance with which, some fifty years ago, that lamentation was uttered to me by an experienced practitioner, by whom it was expected that it would have called forth my sympathy, instead of being met with the secret emotion, which is not less distinctly recollected.

SECTION VII.

CONSEQUENCE OF THE EXCLUSION THUS PUT UPON EVIDENCE.

Under the influence of such principles—I mean always, in the first place, the principle which shuts out the light of evidence—which keeps innocence for ever confounded with guilt, and each shade of guilt with every other—it has been impossible to do otherwise than very badly, and not easy to do worse than has been done.

Insolvency and bankruptcy form, in the nature of things, but one case. Who and where is the man who, having it in his power, ought not be made to pay his just debts?—who and where is the man who, being blameless, ought to be punished for not doing what he cannot do?

Insolvency and bankruptcy form, in the nature of things, but one case. It is by the demon of chicane—it is by the sinister interest of the possessors of power, that it has been split into the undistinguished parts, for the designation of which these denominations have been employed.

To the same evil spirits in conjunction may be referred the several corresponding and harmonizing distinctions:—the distinction between non-trader and trader—the distinction between insolvent and bankrupt—between insolvency the condition of the one, and bankruptcy the condition of the other.

Never was technical jargon and sham learning employed to a viler purpose:—never was fouler corruption covered by whitened sepulchres.

SECTION VIII.

ADVOCATES FOR THE ABOLITION OF IMPRISONMENT FOR DEBT—THEIR ERRORS.

So completely is the idea of right confounded with the idea of judges’ will in the mind of an English lawyer—so completely is the difference between right and wrong understood by him to be dependent upon that will, that when a practice, howsoever established, happens by whatsoever cause to have been brought under his displeasure,—no notion can he form to himself of any other mode of combating it, than by insisting that it is illegal:—in other words, that it is not established.

Humanity is a virtue which in England, for at least several generations past, has in no class of men been altogether wanting—not even among lawyers.

Among lawyers, accordingly, and in more instances than one, there have been found those, who under the impulse of this motive have raised their voices against this abuse. They have argued against it;—they have complained of it;—they have filled volumes with their complaints. They have argued against it,—but how? By showing the mischievousness, the impolicy of it? Something more or less to this effect:—but so long as the legality of it remained unquestioned, they felt what they could not but feel, how unimpressive would be all arguments drawn from such contemned and neglected sources. Yes, it was illegal. Imprisonment for debt illegal? Then what else is there that is legal? If in this case, practice of justice—practice persisted in century after century, does not make law, in what other instance does it make law? If by its mischievousness the practice of English judges be rendered illegal, in what quarter of the whole field of law will any legal practice be to be found?

Illegal? No: the great grievance is—not that it is illegal, but that it is legal:—not that at the hands of the authors of the mischief a remedy may be hoped for, but that it is hopeless.

Strenuous and persevering has been the contest in this quarter of the field of legislation. Parties have formed themselves upon the ground:—the debtor has had his champion, the creditors have had theirs,—each has chosen his watchword, each has chosen his virtue. Humanity, in her soft colours, decks the breastplate of the debtor’s champion: Justice, in her grave and sombre tints, that of the champion of the injured creditors. In the eye of the man of humanity, all virtue is on the debtor’s side—on the creditor’s, nothing but vice. The man of humanity has neither eyes, nor ears, nor feeling, for anything but the oppression exercised by obdurate creditors, and the miseries endured by naked and famished debtors:—the man of justice has none but for the frauds and prodigality of dishonest debtors, and the depredations committed upon the property of their injured creditors.

All along, and on both sides, in the pictures drawn of vice and misery, there has been but too much truth. In the theories formed for the purpose of accounting for these disastrous phenomena, the same error has prevailed on both sides. In shutting their eyes against the only cause of these disastrous phenomena—in the successful exertion made on both sides to avoid seeing the sole authors, the sole creators, the sole preservers of all this vice and all this misery—both sides have constantly been agreed.

If misery have been produced, it is because on this ground the production of it is the object to which the exercise of power has been directed. If vice have been produced, it is because, whilst the matter of punishment has not been employed in the prevention of it, the matter of reward has, by the hand or under the eye of power, been employed or suffered to be employed in the production of it.

If the blameless debtor from whom, he having nothing, no human power could extract anything, has been consigned to useless suffering, it is because the judge got money by consigning him to it.

If the blameless debtor, in whose instance all punishment is undue, be consigned to a course of suffering more severe, because more protracted, than any which the worst of criminals would have been consigned to under the name of punishment,—it is because it would be requisite to learn, whether he were blameless or blameable, that trouble which the judges have one and all been resolved not to take.

Shall the man be let out of jail?—shall he be kept in? On this ground is the everlasting contest between the man of humanity and the man of justice. “Ah! let him out! let him out!” cries the noble sentimentalist, who gets nothing by his being kept in. “Nay, but he shall be kept in,” says the noble and learned disciplinarian—the value of whose patronage would be diminished in proportion as the population of the jail were thinned.

Seeing him where he is, “Let him out!” says the man of sentiment; for thus far does the force of his optics penetrate. Yes: true enough, if there he be, and have nothing wherewith to pay, nor have done anything for which it is fit he should be punished, the sooner he is let out the better. But do you know whether he have wherewith to pay?—do you know whether he have done that for which he ought to suffer?—and above all and before all, do you know, how and why, he came there?—by whose power, and to, not to say for, whose benefit? These are of the number of those questions which would be invidious, and which are therefore never asked. For in an assembly so polite as the first assembly in the united kingdom, and therefore in the universe, unless it be for a party purpose—a question to which, to a noble person especially, if to boot he be a learned one, it would be impossible to find an answer, and unpleasant to look for one—is of the number of those questions that ought never to be asked. Justice in low places—politeness is the first of virtues in a House of Lords.

Conceive a question of this sort bolted out from one of a coroneted head, by some eccentric tongue,—and by none but a most eccentric tongue would any such question be put; up would start some duke, and lest such impertinence should find approving hearers, move that the people whose liberties are at stake, shall under the name of strangers be driven out.

Of such universal indistinctness of vision, or rather of such blindness—the result of browbeating effrontery on the part of lawyers, and awe-struck ignorance and timidity on the part of the well-meaning among the non-lawyers—the result has been that inconsistency which pervades the whole mass of the wretched piece of legislative patchwork which has bankruptcy for its subject.

The inconsistency, though with so little fruit, has found even lawyers more than one to take notice of it.

By Severus, every bankrupt is considered as a criminal: and out comes a law to squeeze and punish him. By Clemens, every bankrupt is considered as the blameless child of misfortune: and out comes a law for his relief. In the eyes of Severus, the interest of the creditor is everything; he is at all times as spotless as he is injured: what the wicked debtor may suffer is not worth a thought. In the eyes of Clemens, every creditor is an extortioner: stone is the material of which his heart is made; if it break, where is the damage?

SECTION IX.

SCOTCH LAW—CESSIO BONORUM, ITS INADEQUACY.

Under Scottish law, after suffering a month’s imprisonment, every insolvent, on giving up his property for the benefit of his creditors, is set free.

This is an arrangement beyond comparison less bad than that of the English law, whether that part of it be considered which concerns insolvency at large, or that part which concerns bankruptcy: and in the way of experiment made, and precedent set, and pretence taken away, great is the use of it; great at any rate the use that might be made of it.

But the necessary month!—there lies the absurdity; there lies the mischief—there the indication of the sinister interest in which both the absurdity and the mischief took their rise. A month in a jail?—and to what purpose? Not to the purpose of compelling the cession: for that purpose, provision is made by the imprisonment of indefinite length, which till the object be accomplished, would without it take place of course. Not any such purpose as punishment: for, like the perpetual imprisonment under English law, this month’s imprisonment under Scottish law falls like the dew and rain and occasionally the lightning from heaven, upon the just and the unjust—and among the unjust, upon the more and less unjust alike.*

Neither to the creditor nor to the debtor any possible use being to be found for it, remain the myrmidons of the law, whose use and interest, and whose alone, it evidently was, that caused it to be established. Fees upon putting a man in, fees upon letting him out;—profit to this and that man during his stay—profits, none of which would have been reaped, had the man, without being sent to prison, been admitted to deliver up his all, to and in the presence of the judge.

For this cause it is that he is put into a jail, where he will do—what? Anything but labour without impediment in that vocation which is the source of his subsistence:—and in particular imbibe the sort of instruction which, as everybody knows, is the natural growth of that sort of school:—learn, if he be honest, how to become dishonest,—and if he be dishonest, how to become worse.

Use of it as an example, as an experiment, as a precedent, as a lesson, to wit to all who will suffer their eyes to remain open to it:—though not to any whose interest, and therefore whose determination, is to keep them shut against it.

It would show to England, if the case of bankruptcy were not sufficient to show, that for imprisonment in case of debt, there is no need, nor therefore any use. On the north of the Tweed, is security for property of less value than on the south side of the Tweed? Is property, in point of fact, in so far as depends on the law of debtor and creditor, less secure?

SECTION X.

AGENDA—COURSE PROPER TO BE TAKEN ON THE OCCASION OF INSOLVENCY.

A few points of subordinate account excepted, so obvious is the course which in this case is pointed out by common sense, that the imputation of trifling seems to impend over the hand that should set about delineating it.

So wide from this most obvious course, so tortuous and complicated, and in a word so palpably weak and foolish, in any other character than that of a system of oppression and depredation, is the system set on foot and all along carried on by and for the benefit of Judge and Co., that unless their sinister interest be admitted to have been the only end to which it was really directed, it will appear to have had for its authors, not men, but some inferior race of beings. But of the determination to adhere in all points to the technical system—to consider the abuses of which it is composed as first principles, the propriety of which, lest it should be found to admit of doubt, is not so much as to be taken for the subject of consideration;—of the determination to consider every path of wisdom, or rather of common honesty and common sense, as closed and sealed up for ever,—the consequence is, that in their generation, let men on other points be ever so wise, some track or other of folly is the only track in which it is left to them to tread.

On the part of the commander of an invading or defending army, suppose a fixed determination never from any person, on any occasion, to receive any sort of intelligence:—on the part of such a military commander, the system of tactics would be an exact counterpart of the actual system of judicial procedure:—the aptitude of such commander for military command would be the exact counterpart of the aptitude for judicature manifested on this occasion by English judges.

For satisfaction to the creditor under existing law, what is the provision made? Nothing can be more inadequate—nothing can be more complicated. And when to the creditor it is made, matters are so ordered that it is frequently at the expense of some person or persons from whom it is not due—some friend or friends of the debtor—that it is made, and not at the expense of the only person from whom it is due.

But in Judge and Co. may be seen the great firm to which satisfaction in every instance, by the power of that same great confraternity, is in the first place always made.

In the case of insolvency, punishment ought to be applied to him, and him alone, on whose part there has been blame. Various, and by no means more difficult to distinguish in this than in other cases, are the shapes and degrees in which blame on the part of an insolvent, where there is any, may be seen exhibiting itself.

To all these distinctions, under the guidance of Judge and Co., existing Law inexorably shuts her eyes. Why? Because, as so often observed, to make these distinctions it would be necessary for the judge to hear evidence,—to hear evidence from the best source, in the best shape, and at the properest time;—against all which he sits resolved.

Of this wilful deafness, what is the consequence? Everything that is most contrary to common honesty and common sense.

Woe to the blameless child of misfortune! Thrown into prison for debt, he will lead a life of uninterrupted misery, from which, bating accidents, no relief is found but in death.

Welcome to the swindler!—to the man chosen by the judge, who, instead of restoring to his creditors the property of which he has defrauded them, carries it with him to the house of entertainment which is kept open to money so acquired! His guilt is the deeper, the greater the quantity of other people’s money which he has contrived to bring with him into that place;—but the greater the quantity of that money, the more comfortable will his condition and situation be rendered in that place.

The reward thus heaped together in the lap of the guilty debtor—the punishment thus heaped upon the head of the blameless debtor—is not all. The measure of punishment would in the eyes of these legislators have been incomplete, if the injured creditor had not come in for a share of it. While the debtor, instead of being compelled to give up what he has in his power, if anything, for the satisfaction of his creditor, is either rioting or starving in jail—(who knows or who cares which?)—the injured creditor is fined 4d. per day for keeping him there: and he must submit to this additional loss, or forego whatsoever chance there may be of recovering any part of his original loss.

If we consider what ought to be the practice, we shall find, that in the case of debt, the first point on each occasion to be ascertained is—what on the part of the alleged debtor is the real cause, of the resistance made by him to the demand, and thence of the suit. Is it any real difference of opinion as to the question of right, which has any share in the production of that resistance? or does it arise from no other cause than a present unwillingness to part with the money, or a present inability to provide it?

The next point to be considered is—Solvency on the part of the defendant debtor,—is it out of doubt? If yes, then any vexation in the shape of confinement, whether in a prison, a spunging-house, or in the custody, real or fictitious, of sureties under the name of bail, is unnecessary.

For ascertaining these points, a few minutes—a question or two put by the parties to each other in the presence of the judge—would suffice.

Whether solvent or insolvent, the next point to be provided for is, as far as possible, the satisfaction of the creditor. But satisfaction at whose expense? At the expense of the debtor himself, and not of any other person, those excepted, such as his wife and children, whose subsistence is dependent upon his.

Next to satisfaction, in the event of insolvency—i. e. deficiency in respect of the quantum of such satisfaction—comes punishment:—But in what case?—in a case where, on the part of the insolvent, there has been no blame? To a question of this sort, so far from finding it possible to answer yes, common sense cannot for shame answer simply and without apology in the negative.

And note, that as on other occasions, so on this occasion, every infliction, in respect of whatsoever evil is produced by it, which might be avoided and is not avoided, may be, and ought to be, placed to the account of punishment.

[* ]Under the Insolvent Debter’s act, 7 G. IV. c. 57, imprisonment need not be perceptual; but before the doctor can take advantage of that act he must be imprisoned.–Ed.

[* ]By 6 & 7 W. IV. c. 56, a cessio may be pursued by any person in prison, or who has been imprisoned and liberated, or against whom a writ of imprisonment has been issued, for a civil debt. By the same act, the process which was liable to all the expense and delay of the Court of Session, is made competent before the Sheriff’s local court. In Scotland there is no arrest in mesne process, unless circumstances be proved from which the debtor’s intention to leave the country must be inferred.—Ed.