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“ The cause was proceeded in, and set down for trial, and was then left, by the consent of the parties, to arbitration. The accounts were investigated by the arbitrator, a young man at the bar, who went through them with the greatest minuteness and attention, and he die rected, by his award, that a verdict should be given for the defendant. Upon the face of the award there appears even a balance 4161. 17s.6d. due to the defendant from the plaintiff, which it is supposed the arbi. trator would have directed to have been paid to him by the plaintiff, but he had not the power to do so. The plaintiff, however, had to pay all the costs both of the cause and the reference, which he did without making any attempt to set it aside. And here I cannot help mentioning the evidence of a gentleman given before the arbitrator, who is in the profession, and has been a clerk in court in the Exchequer of Pleas for upwards of forty years. He was called, on the part of the defendant, to prove that a sum of money was paid by the defendant to him, on the plaintiff's account, for the debt and costs in an action in which the plaintiff had been arrested, and which, of course, the defendant had a right to charge the plaintiff with, if paid by him.
“ This gentleman said, that during the whole of his practice he had never considered it necessary, nor had ever sued out a bailable process against any mian, unless he considered him a sojourner, a man that was here to-day and gone to-morrow, who had no settled place of residence, lodging at a coffee-house, perhaps, or a man of that description.”
From these particulars some sort of conception may be formed of the amount of the mischief which holding to bail cannot but do, the dreadful amount of the mischief which it is always liable to do, and the vast amount of mischief which it is habitually doing. Now what is to be remembered is, that all this mischief is daily and regularly produced for the purpose of taking security that a man shall not run away, when not one man in five thousand would ever think of running away.
There may be a plea for this mischief on another ground. It may be admitted, that the professed object of the law, in the bailing system, the mere forthcoming, or, as it is called in continental law, the justiciability of the defendant, is not worth a millionth part of the evil which it produces :—but that the intent of the law is not regarded ; and the process which it has established for one purpose, and that a very insignificant one, is employed by the lawyers for another purpose, and that a very important one-namely, the extraction of the payment for the plaintiff.
This point requires a little commentary. The obtaining the payment of just debts is an important object--that will not be denied. But Heaven defend the weak from those men who can be contented with the bailing system, as means for the accomplishment of that end !
When any end is sought to be obtained, the proper consideration is, What are the means, hy which, with most benefit, or least evil, it is capable of being effected? If a good end is sought to be obtained by means productive of a huge mass of evil, when it might be obtained by means which would produce very little ; that sort of course is pursued by which a great part of the evil which hitherto has oppressed mankind, has been entailed upon the race
-that course in which villainy has in all ages found it most safe and profitable to pursue its own gratification.
For the compulsory payment of debt, where compulsion is required, the course which justice and right reason point out is obvious in the highest degree. Let the debtors be immediately called before the judge, which may be done at scarcely any expense; let proof of the debt be given, which in the great majority of cases may also be done at very little expense; and then let the judge order whatever acts of coercion the law prescribes. What are the acts of coercion must fit to be prescribed, is a matter of some difficulty to determine, and at present we have no occasion to undertake the inquiry. One thing in the mean time is certain, that it ought to be as little expensive as possible.
It will, at any rate, be granted to be a primary canon of justice, that coercion, for the payment of debt, should not be applied without the decision of the judge : that one man should not, at his own pleasure, have the power of applying coercion to another; because that is to open a door to all inanner of injustice, cruelty, and oppression. This injustice, this cruelty, this oppression, is incurred, by allowing the bailing system to be made use of as the instrument of coercion for the payment of debt, It is a coercion applied totally independent of the judge ; not only without the decision, but without the knowledge of any judge. It is a coercion which may be applied with perfect safety, and is habituaily applied with perfect safety, to individuals not indebted to the plaintiffs in a single farthing. It is surely needless to say any thing which has for its object to excite a lively idea of the enormity of this extraordinary case. The bare enunciation of the fact, that in England a man may employ the system of coercion allowed for the recovery of debt whenever he pleases, without the intervention of any judge, --is quite sufficient. The stranger who shouid hear this averred of any nation, of the name of which he was not informed, would suppose that he was hearing an averment respecting some nation of barbarians ; a people as yet too far sunk in ignorance and ferocity to be capable of establishing or enduring a regular administration of law.
To have a just conception, however, of this most astonishing portion of English law, it is necessary to bear in the mind two
things—both that the coercion is extra-judicial, applied not after evidence and decision, but before them; and also that it is oppressive in a manner and to a degree which outrage both policy and humanity. In the first place it operates to a destruction of the property of the defendant, which in the case of a poor man, that is, in the case of the far greater portion of those against whom it is applied, must be altogether ruinous. That is to say, it is so oppressive as to bring upon the greater portion of those against whom it is applied, the extremity of misfortune. It is, in this manner, calculated to defeat the very end which, according to pretence, it has in view-namely, payment to the plaintiff. The man to whom it is exceedingly difficult to pay 151., when 151. or perhaps a great deal more is added to it by law charges, finds himself reduced to a state of total inability to pay ; and his creditor loses every chance of recovery. Upon the ground of experience, this accordingly is the general result. But if the bailing system procures not payment from the defendant, what does it do? It extorts money from the necessitous in vast quantities, to enrich with it the whole tribe of law agents, from the lord chief justice down to the bailiff's follower!
But it is not merely the exhaustion of their property which this system of coercion inflicts upon its unhappy victims. It robs them of their personal liberty; shuts them up without a moment's warning in a prison; drags them from their suffering families; drags them away from that superintendance of their business on which more than any thing payment of their creditors must depend; from that superintendance without which, perhaps, the business, and with it the very subsistence of them and their families, may be lost. This-all this, is done, without the intervention of any judge. A mass of suffering, which would not be justifiable as a punishment, for any but some of the most destructive crimes, after ample proof and judicial decision, is daily inflicted in England, without proof, and without judicial decision, by any man upon any other man whom he chooses to represent as 15l. in his debt.
We daily hear it ostentatiously boasted, that it is the privilege of Englishmen, secured to them by their most venerated charters, that not an individual of them can have his liberty taken away without the judgement of his peers. Alas ! how far is the matter of fact from corresponding with this delusive boast! A number of Englishmen are deprived of their liberty-a number so great, that of all the rest of them who are deprived of their liberty, the number sinks into insignificance on the comparison --not only without the judgement of their peers, but without any
judgement at all! It would not, we are well assured, be going too far to assert, that if all the individuals, in all the countries of Europe, who are imprisoned without judicial decision, were taken together, the number of those who are so imprisoned in England would surpass them all.
To what degree this unparalleled system of coercion for the recovery of debt, is ill adapted to the end, to which, according to pretence, it is directed-namely, payment of the debt-a few particulars adduced by Mr. Pearce will give a practical conception. At p. 16, he
says, “ The more common way now is”-namely, the more common way now pursued by a party held to bail-" after staying in the spunging-house a certain number of days, and finding he can neither raise money, security, nor bailwhich, perhaps, he could do, if at large-to make up his mind to go to a prison : and from that moment it is fifty to one if the plaintiff can get a sixpence.”—In that class of cases which is here represented as the most common, it is stated to be as fifty to one that the plaintiff gets any thing but the lawyers to pay.
In another passage, in the following page, our author says, “ When the defendant is forced to the desperate remedy of surrendering himself to a prison, whatever money he is possessed of, instead of being paid in part of the plaintiff's demand, is appropriated to the purpose of paying the necessary law expenses of getting himself into prison, and the support of himself and family whilst there : the payment of the debt is then entirely given up, and every day the defendant stops in prison, the more desperate the plaintiff's demand becomes."
In fact, Mr. Pearce affirms that this process is an instrument for cheats and oppressors, who frequently make it available to their own purposes, while it is of very little use to the fair and honest creditor. It does, he allows, in some cases, though few in comparison, produce payınent; and we have already seen the deplorable sacrifices, both of property and character, which for that purpose are apt to be made. Now comes the important fact : “It is not,” says Mr. Pearce, “the fair-dealing, but the mercenary tradesman who generally benefits by this.” The particulars are supported by their own evidence. In the greater portion of cases, the dreadful amount of law charges absorbs the property which afforded to the creditor any hope of payment: in some cases the extremity of the pressure pushes the defendant upon desperate courses to procure his liberty: but of these cases it is not the honest man, but the rogue, who commonly takes the benefit.
Besides the general course of hardship, there are particular
occasions on which the process is rendered more than usually oppressive. Some of them are specified by Mr. Pearce in the following words.
" A defendant is frequently arrested on the return day, which is a great hardship ; and no harm could be done to the plaintiff by preventing that, as the only consequence would be, the making the return longer. The hardship is as follows : There is no time to get the ban-bonds completed, and the sheriff has no power, after the return day, to take the bail. The bond, therefore, must be completed on the same day, or the defendant must stay in custody, and give forty-eight hours notice of bail. But even that is not permitted in London : there the defendant is taken to the Compter, the secondary insisting upon it, that no man shall be kept in custody after the return of the writ; and nothing saves him, excepting the payment of the debt and costs, or the money being lodged under Lord Moira's Act.
“ In Middlesex the officer will keep him the eight days in the spunginghouse, even after the return; but, if taken in execution, the defendant must go to gaol, of course, either in London or Middlesex.
"Again, if a defendant happen to be arrested a day or two before the change of the sheriffs, which, of course, is done annually, he has great difficulty indeed of getting out. The officers will arrest you, notwithstanding, on the very day of the change, and this circumstance is an excuse for their not hurrying themselves. A man is frequently kept in custody, on this account, whilst the transfer of the prisoners from one sheriff to another is making out, and in general taken to Newgate.
“Again, if a man is arrested in London, and taken to a spunginghouse, the officer dare not let him out until a bail-bond is signed, without risk of being suspended. Why? Because, if he does, and the debt and costs are paid, the secondary is deprived of bis fee on the bail-bond. But why should he have it ? He takes no responsibility until the bail-bond is executed ; and why should the defendant be deprived of the great accommodation of getting out, and the officer be punished for taking a fee, which the defendant is perfectly satisfied in paying, and for no other reason, but that a further illegal fee may be extorted by the secondaries ?
“The oppression is extremely great : suppose a man is arrested late in the evening, or on a Saturday evening, which is frequently the case, the names of the bail cannot in that case be given in, much less enquired after, till Monday morning, and perhaps the man will not be able to get out before Tuesday, and, if the officer chuses to run the risk and give him his liberty, contrary to the inclinations of the secondaries, the officer is sure to incur censure ; for, if the defendant is seen out, or an attachment comes to the office, the irregularity is then discovered. The secondary says, the officer had no business to let him out without a bond ; and in consequence of this difficulty, respectable men are frequently kept in custody, in London, two or three days, and cannot be released till the bond is signed ; nor can the secondary be bribed."