SOME REASONS FOR AN Act of Insolvency ON Consideration of the Case of Prisoners confined for Debt in the several Goals of this Kingdom.
( 1 )
The CASE of Insolvent Debtors Confined in the several Goals in this Kingdom.
IT is now nine Years since the last Act of Insolvency, and the Prisons are so crouded, that there is scarce Room to contain the vast Numbers daily sent thither; and as the Changes and Chances of human Affairs, especially of those whose Estate and Effects do not consist in Land, and consequently must be in a State of Fluctuation, have been the Means of sending many into Prisons, not occasioned by any Fault in them, but frequently from the Principles of Virtue, Charity and Honour, which would not permit them to use the Means of growing Rich, which others have, too often at the Expence of their Ruin and Destruction; Surely then such are Objects of publick Companion, and deserve Relief upon their surrendring up all their Estates and Effects in the most solemn manner, at the hazard of their Lives, because the Creditors cannot have more than the Debtor has to give him; and when that is refused, it is manifest that the Creditor wants not Money, so much as to gratify a vindictive Disposition, by confining the Debtor in a Prison, where Want and Misery must be his Portion, until he be relieved by Death, or by timely Interposition of Parliament.
It appears from the Books of the Prison of the Fleet, that between three and four hundred Prisoners are annually committed there, which is above a third more than are discharged in one Year; and what is very strange, it also appears that no more than Twenty-three Prisoners were discharged in the two last Years, by Virtue of the Act for the Relief of Debtors with respect to the Imprisonment of their Persons; so that since two thirds of the great Numbers committed are not annually discharged, even by Death, and all other means of Enlargement, it will soon be impossible for the Prisons to contain them.
Before Arrests and Imprisonment became so frequent as they are at present, many ingenious foreign Artificers and Manufacturers, induced by the Goodness and Clemency of our Laws came over hither, and greatly contributed to the Advantage, Wealth and Power which this Nation by their extensive Trade has so long and successfully enjoyed: But the Abstract of the Act of Parliament of the Fifth Year of his late Majesty, intituled, An Act to prevent Inconveniences from seducing Artificers in the Manufactures of Great Britain into foreign Parts,which has been lately published in the London Gazette for several Days together in the beginning of December last, plainly demonstrates that the Scene is changed: And it is humbly submitted, whether the modern Perfection of Creditors against their Debtors, together with the accumulated Expences of the Law, be not the real Cause of our being deprived of so many useful Hands as have transported themselves, together with their Arts and Skill in Manufacturers with them; by which Means great part of the Manufactures of this Kingdom, have been taught to Foreigners; so that not only our Trade but our Navigation calls for immediate Relief, and with this View it is apprehended the aforementioned Abstract was published.
It is therefore humbly submitted, whether the Fears of the Pains and Penalties mentioned in the said Act can be so strong an Inducement to bring our Manufacturers home, as the dread of starving in a Prison must be to keep them where they are; and as the Nature of Trade is such, that where a Country loses any Branch of it, those Persons skilled in that particular Art, will resort where it is in chiefest Demand. This must necessarily call more of our Manufactures and Sailors Abroad, because the Decay of Trade will put them under Difficulties here; and any foreign Country is preferable to a loathsome Prison.
That upon a well-grounded Calculation, it appears, that there are Ten thousand Persons, and upwards, now in Prison for Debt in this Kingdom, and that the greatest Part of them have Wives and Children, which may be computed at Three, one with another, so that Thirty thousand innocent Persons, and more, are involved in the Ruin of the Prisoner, though by no means contributing to the Occasion, who are or must necessarily become a Burthen to the Country.
( 2 )
Objection 1. It is objected, that an Insolvent Act may endanger Credit.
Answer. It is presumed the Legislature will have no regard to any Credit but what relates to Trade and Commerce in general, fairly given on that Account: All useful Credit consists in the good Opinion that one Man has of another, and cannot be prejudiced by any Law that may discourage Men from imprisoning their Debtors; for so long as Men conceive a good Opinion of each other, so long will useful Credit continue, and no longer. The Credit that is given to indigent and extravagant Persons, by lending them Money, or selling them Goods, is always given with a View to Extortion, sometime to the Amount of twenty or thirty Cent, or more, which certainly ends in the Ruin of the Borrower, and often of the Lender; so that the Power designing Men have of confining their Debtors, chiefly occasions this false and pernicious Credit, that has its Shape in many Instances, such as lending and discounting Notes; selling Goods at exorbitant Prices; advancing Money to purchase Reversions from extravagant Heirs, to such who may have Expectations from rich Relations, therefore Credit of this Stamp cannot deserve the Countenance of the Legislature, because they ought to be considered as their own Insurers.
Objection 2. Secondly, It is objected that a Bill to discharge Debtors from Confinement without the Creditors Consent, is by Law to deprive Men of their Property.
Answer. The Legislature has an Interest in the Lives and Liberties of the Subjects, and therefore may, as they frequently have done, interpose their Authority to abate the Rigour and Resentment with which the Creditors pursue their Debtors, and even to restrain Creditors for their own Interest, from squandring away their Substance to such pernicious Purposes, least the frequent Repetition of it may hereafter oblige some of them to become Insolvents also, which has been the Case of many. An Insolvent Act will not discharge the Debtor upon any other Terms than upon delivering up all his Estate and Effects to his Creditors; therefore whatever the Loss be the Creditors have sustained it already; they can’t have any more than the Debtor has to give; so that they can lose nothing by such an Act, unless it be the hopes of obtaining the cruel Satisfaction of the Prisoners Lives in exchange for their Property.
Objection 3. A third Objection is, that ill Men may take Advantage of such an Act, and defraud their Creditors by Concealment and Perjury.
Answer. Where one Man goes to Prison that can pay his Debts, five hundred are sent thither who are not able to pay, because Men generally extend their Credit, and make use of all the Means in their Power, to prevent their being carried there; and it is difficult to conceive that any Man would suffer himself to lie seven or eight Years in Prison upon the hopes of an Insolvent Act, if he could possibly avoid it. But supposing that some few Instances of this kind may be found, it can be of no Weight against a Bill to relieve those that are really Insolvent and Incapable; for it is not an Argument against a good Law, that accidental Ills may arise from it any more then that Men ought to refrain from going to Church, or to the Courts of Justice, because they may sometimes meet with Villains and Pickpockets there: Besides, if there are such Wretches who would chuse to lie in Prison rather than pay their Debts, the Creditors in such Cases want the Authority of the Legislature to oblige such Persons in the most solemn manner to deliver up their Estates in satisfaction of their Debts.
Objection 4. It is objected, that the Act for Relief of Debtors with respect to the Imprisonment of their Persons, has the Force of an Act of Insolvency during the continuance of it, and therefore no occasion for any other.
Answer. That Act relates to such Persons as are charged in Execution for a Sum or Sums of Money not exceeding One hundred Pounds in the whole, and therefore the Benefit of it can be taken but by very few Prisoners, whose Debts are within the Description of that Act, and not one in ten of these can possibly have the Allowance, or be discharged: For as the principal View of the Gentlemen who manage for the Creditors is to make a large Bill of Costs, so those Gentlemen make Improvements upon the Statute that entirely destroys the Ends proposed by it, as will appear in the following Instance. A Man was arrested for fourteen Pounds, and carried to Prison, where he remained five Terms before he was charged in Execution, and then not before the last Day of the fifth Term. The next Term he summoned his Plaintiff into Court, and upon Oath gave in a Schedule of his Effects. The Plaintiff had time till the following Term to enquire into the Truth of the Schedule (which proves that the Prisoner must remain seven Terms, or twenty-one Months, before he can be entitled to the Allowance of that Act). In the mean time the poor Prisoner was charged with a Declaration in Custody, at the Suit of another Plaintiff, for twenty Pounds: The
( 3 )
first Plaintiff took all he had, and he was discharged at his Suit in open Court. But, alas! he was in a worse Condition than before, because he gave up the small Effects contained in the Schedule, and was carried back to Prison without any Means of Support in the World, where the poor Man remained fifteen Months after, and then perished for Want: But he was not charged in Execution upon the second Declaration before his Death; nor was it in his Power but at some Expence, which he was unable to sustain, to oblige his Plaintiff to proceed faster. Supposing this Man had lived ten Years longer, and was indebted to several Persons, the same Methods might have kept him in Prison, without a possibility of Relief.
Prisoners that are indebted to more than one Person, they, in order to be discharged, must deliver up their All to those Creditors, at whole Suit they are charged in Execution, pursuant to the said Act; the Consequence of which is, that the rest of the Creditors are stript of their Proportion of the Effects, and the Prisoners must remain in Goal to perish.
As an Insolvent Act will release Thousands of poor unhappy Wretches who now languish in Confinement, and will be the best Means of calling home our fugitive Manufacturers and Sailors, and will also greatly ease the Taxes for the Poor, without doing any Injury to the Creditors, and be of great Benefit to the Publick, by having many useful Hands at Liberty to be employed in the Arts and Manufactures of this Kingdom, who are now locked up, and rendred useless to the Publick, as well as burthensome to their Friends and Acquaintance, and may hereafter, if not speedily relieved, become together with their unhappy Families, a Charge upon their respective Parishes.
For these Reasons, and many others, which cannot be reduced into so narrow a Compass as the Nature of this Case requires, it’s hoped that the Legislature will think that so many Thousand unhappy Persons, the most of whose Miseries arise from real Misfortunes unavoidable in the Course of human Affairs, and not from any Crimes of their own, are worthy of their Compassion, and that a Bill will be brought in for their Relief.
Transcribed from the copy in the British Library. ESTC record no.: T20035.
Confusingly, there are two titles given: one on the fly leaf, given first here, and one at the head of the text.
‘nine Years since the last Act of Insolvency’: referring to 2 George 2 c.20.
‘the Act for the Relief of Debtors with respect to the Imprisonment of their Persons’: 2 George 2 c.22.
‘An Act to prevent Inconveniences from seducing Artificers in the Manufactures of Great Britain into foreign Parts’: 5 George 1 c. 27.
‘which has been lately published in the London Gazette’: London Gazette, 7564, Nov 30 – Dec. 4.