date

2 Aug 1812 Evidence Introd
2 Aug 1812

Evidence Introd

Introd

Ch.26. Imprisonment for Debt

'.9. Scotch Law - inadequate

'10. 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 let out.

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 procedure set, it and [...?]. Taken[?] away, that many great is the use of it, great at least /any rate/ the use that might be made of it.

But the necessary month! There lies the absurdity, there the mischief, there the indication of the sinister interest in which both the absurdity and the mischief took their rise. A month in a prison jail? and to what end /purpose/? not to the purpose of compelling the [...?], for that purpose is provided for provision is made by the imprisonment of indefinite length which till the object be accomplished would without it take place of course. Not any rate the purpose of punishment; for like the perpetual imprisonment under English law, this [...?] imprisonment under English law, falls like the dew of /rain from/ heaven and occasionally lightening upon just and 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 [...?] of the law, for whose use interest and whose alone it evidently /manifestly/ was that caused it to be established. For upon letting in /putting a man in/ for upon letting him out, profits to this end that man during his stay there profits more of which would have been to be reaped, had the [...?] man without being sent to prison, been admitted to deliver up his all to and in the prisons of his /the/ Judge.
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  • Title: [1 Aug 1812 Evidence Introd]
    Description: 1 Aug 1812

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    Ch. 26 Impris[?]

    '.2 Bad for compulsion

    To the correcting 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 he choses /as to his choice/ to endure this torture, the proof is altogether conclusive that be the intensity of the looker what it may, be experience in the (idea) of the detention, he experiences from whatsoever course, a [...?] and more than equivalent, howsoever malignant and unenviable a pleasure.

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

    Two years has scarce 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 has /hath/ sometimes been found sufficient to prevent the attainment of the object aimed at by it. Of solitary imprisonment, especially if 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 weakness into the mind /marked [...?]/ the desired and solitary weakness, to deprive it of the power of applying what in the present case is by the supposition unjust resistance.
  • Title: [26 May 1804 Evidence Ch. Extraction]
    Description: 26 May 1804

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    § Engl. Law

    In the case of a delinquent /delinquency/ - of an individual presumed or suspected of delinquency, all this rigour is laid aside. The law knows /admitts/ of no other infliction in the character of a compulsive process, the law admitts of no other infliction, than simple imprisonment. What is the consequence? that in many cases a long protracted course of suffering is produced - a long remainder[?] of life filled not infrequently with bitterness, and the object in view not compassed / / after all - : the quantity of suffering augmented, and the whole of it thrown away.

    Many a dishonest debtor in whom the juryman's torture would have produced immediate compliance, carries the fruits of this dishonesty with him to prison, and there consumes them, in defiance of his injured and impoverished creditors.

    In the case of bankruptcy, i.e. commercial insolvency non-responsion and false-responsion is /are/ indeed as far as concerns the concealment of effects /assets/ applicable in satisfaction of debts, made punishable and punishable with death; but even here the distant and eludible punishment is preferred to the unelludible and instant compulsory infliction; and in cases of non-commercial insolvency, and in all other cases in which evidence is supposed to be extracted

    simple imprisonment and that alone is applied, and is the only [074-427/2]

    infliction applicable. This infliction is indeed susceptible of prodigious variation, under the same name variable upon a prodigiously extensive scale: depending upon the localities of the prison - the accommodations afforded by the prison, and the exterior appendages /territory/ annexed to it: but the variations depend upon accident, are the result /product/ not of justice /wisdom/ but of negligence and in practice are not applied, nor indeed capable of being applied with uniformity to this purpose.
  • Title: [15 Apr 1808 Ch. | | Competition]
    Description: 15 Apr 1808

    Ch. | | Competition

    Such saints [...?] the [...?] they have bred[?]

    To honest sectors, as many as necessity forced into their grasp /hands/ they had made it their interest, and consequently their study and endeavour, to add as many dishonest suitors as by encouragement they could render such. To enable them to render justice to honest suitors, and in particular on the plaintiff's side of the cause, imprisonment frequently, power[?] of imprisonment was always /constantly/ necessary. But had they confined the application of it to the ends above indicated as its proper ends, it would have been, comparatively speaking of little use to them. They would have got hold of a man, but to little purpose, for he would never more[?] had long to stay in their hands. He would have been come at with proportionable facility: but consequently with so much the less profit to their underlings.

    To the purposes of distinct suitors, imprisonment as applied and managed by them is admirably well adapted, in both sides of the cause.

    On the plaintiff's side, as often as, whether habitually or though but momentarily it happens to the intended victim the defendant, to he[?] in a state of indigence /[...?]/ it [...?] the purposes of opposition[?]: of simple opposition[?} or opposition for the purpose of extortion[?], or destruction of rural[?] prosperity, as the case may be. The Defendant goes to jail: the Judge has taken care never[?] to see[?] him /made it a rule never to set eyes on him/, for fear of seeing reason for letting him out again. The Judge and his underlings receive in the first instance, and from the same quarter, the [...?] of the right of Opposition, their fees, The[?] persons[?] his[?] in fact for weeks or months, years, or life, or till the /appropriate/ purpose of the opposition[?] has been accomplished. The longer the /prisoner/ his[?] there, so much the better for the Judge: by the hands of his [...?] and instrument the Jailor, /he receives such profit as is to be extracted from the poor /imprisoned/ man's misery/.

    /Anno 1798, the Chief Justice of the King's Bench made in this way almost , │ │ a year, of the Common Pleas, , │ │ a year./

    / ( a) In Scotland, even under the technical system he does not even now. By injuries to the liberty of the subject Scotch Judges get little or nothing: nor have they any such influence on /command over/ the legislature as English ones have./