Imagens das páginas
PDF
ePub

minary arrest being thus completely inexpedient and unjust, its utility as a mode of satisfying the creditor is not sufficient to warrant the continuance of the practice; or at least is so limited, as to require much circumspection in its application, to adapt it to the interests of society. That this is generally felt and acknowledged, may be gathered from the immense latitude of the provisions of the insolvent laws. These, as they now stand, are a bungling contrivance to mitigate the severity of the original law of debtor and creditor : and in order to leave open a door sufficiently large to the unfortunate, they give such a latitude to the rogue, as places the creditor perfectly at his mercy. If the sums surrendered in the insolvent courts be compared with the debts in the schedules, it must be concluded, either that much property is successfully concealed, or that few take the benefit of the Act as long as they have any money remaining. Here then, the law of arrest operates to the direct injury of credit. If the power of preliminary arrest were not felt to be an intolerable hardship, the legislature would never have fallen into such vicious excess : and the nature of the remedy throws a valuable light upon the evil, for the abatement of which it is adopted. To satisfy the just demands of the creditor, it is absolutely necessary that the debtor's goods should at once be placed at the disposition of a competent tribunal, and that the appeal to that tribunal should be compulsory on both parties. If, for the protection of the unfortunate, it is right that the debtor may force bis creditor into an insolvent court, it is no less right that the creditor should enjoy a corresponding power to force an unwilling debtor to submit to the same tribunal ; and this being done, all necessity for personal restraint at once ceases, as much as in an ordinary case of bankruptcy. To bring a pauper before the court, preliminary imprisonment is not requisite : such debtors frequently procure themselves to be arrested, in order to take the benefit of the Act; and they would voluntarily appear, if the law would permit them, without such intervention. In practice, the necessity for actual incarceration operates as a vexatious embarrassment, amounting sometimes to an absolute impediment to the operation of the Act. I have frequently known prisoners to affirm that the want of two or three pounds to pay the expences of the process has detained them for years in confinement, while the creditor, contented with possessing their person, throws every impediment in the way of their discharge. If, on the other hand, incarceration be considered as a means of forcing the unwilling, it is obviously less efficient than the warrant of a competent tribunal. In the latter case, contumacy and concealment would become criminal; and being so, would justly subject the prisoner to a discipline sufficiently rigorous to insure his prompt obedience. As the law now exists, the unwilling debtor is necessarily considered in the light of an innocent man; and the discipline of a sheriff's gaol is the worst that he has to encounter. Nothing can be more ludicrous, if aught so vexatious can be a fit subject for mirth, than the law which enables a debtor to withdraw his property from the operation of the courts, and, by submitting to the ordinary restraints of a debtors' prison, to consume in profligate dissipation the money which of right belongs to his creditor.

For the fraudulent, the penitentiary or the felon's gaol is the proper place of confinement. It is a fact, that the mind soon becomes reconciled to incarceration, when a prison offers the means of idleness and sensual enjoyment; and instances are frequent, in which men of considerable property, and educated with the habits of gentlemen, voluntarily submit to the disgrace and discomforts of a long imprisonment, rather than settle with their creditors. The slightest motive of contingent benefit, the mere desire of revenge, suffices to overcome the natural repugnance to personal restraint. It is notorious, that in debtors' gaols the prisoner can enjoy every luxury for which he can pay, save only change of place. Generally speaking, the fraudulent debtor is better off in his confinement, than the man who is honest. The privileges of such places are matters of purchase; and he who has deprived himself of ready cash, by a partial payment of his debts, is placed under severer restraint than the rich rogue. In the Four Court Marshalsea of Dublin, which is analogous to the King's Bench of London, the paupers are excluded from the more healthy and cheerful part of the prison, appropriated to those who pay for their apartments. When a person of good education and decent habits is placed in this predicament, it is scarcely possible to conceive a punishment more severe than the enforced association with ignorance, filth, and vulgar profligacy to which he is exposed. Yet this man may possibly be detained for debts incurred by the fraud of another prisoner, enjoying all the advantages from which he himself is excluded.

One great reason of the continuance of the existing law lies in the undue protection given to certain species of property. The false policy of a legislation, which favours entails and settlements, makes it so difficult for a creditor to attack the estate, which has been perhaps the specific ground of his confidence, that society is indisposed to admit of a complete exemption of the person of the debtor. At the same moment, however, privilege of Parliament is allowed to a favoured few, without any serious evil to the community. In these instances, the creditor is a purchaser with notice; and in trusting, he makes his terms accordingly. The same result would ensue, if immunity from arrest were general. Reason, however, requires that if the person be free, the cessio bonorum should be perfect, that it should be prompt, compulsory, and entire. It may perhaps be urged, that such an arrangement might be rendered oppressive, when embarrassments are temporary; a small debt giving the creditor a right to urge on a premature and ruinous exposure of the debtor's circumstances. But the same objection lies against the bankrupt laws, when the smallest creditor can strike a docket, if an act of baukruptcy has been committed. The personal interests of the creditor are in most cases a sufficient restraint on such conduct; and a man's affairs must be bad indeed, if he could not get assistance to relieve him from the persecution of a malicious creditor. A still better remedy would likewise be found in the establishment of courts of arbitration, in which the interests of debtor and creditor might be discussed, and arrangements made à l'aimable, wherever the affairs of the debtor were not wholly hopeless.

One per

That the evils of preliminary arrest are inherent, and that the insolvent laws, with all their latitude, are insufficient to meet them, are evinced in the number of persons still confined for small debts. In a return made to the House of Commons, in June, 1828, of the prisoners confined in one prison in Ireland, with the amount of their debts and the term of their incarceration, fifty-three

persons are specified as having been detained for more than a year. Of these, five were confined for a debt of ten pounds each, for the respective terms of six years and a half, four years, three years, nineteen and seventeen months; and the second quoted individual is still (1831) in confinement. One prisoner (a lady), arrested as long back as February, 1797, was detained for 231. ; and another in August, 1822, for the same sum. Debts of 201., 211., and 121., had occasioned the imprisonment of three persons since 1824. son had been in custody since 1815, for 18l.; and he is still detained (though in a state of lunacy) for the debt. Of the whole fifty-three, twenty-five were imprisoned for debts under a hundred pounds. One female on the list, confined in discharge of her bail, has subsequently died in prison. A gentleman confined since 1807, for a debt under 2701., remains, and will probably continue through life, a prisoner, owing to an obliquity of mind which prevents him from attending to his affairs, though he is said to have possessed large property. While tifty-three individuals are thus stated to have been labouring under the hardship of protracted imprisonment, seventythree only are set down as having been confined within the year. A due comment on each of the fifty-three cases would most probably detect some specific blunder in legislation, showing an indifference to human liberty strangely at odds with our natural claim to civilization.

To dwell on the iniquity of a dispensation, which admits of such unnecessary cruelty within the walls of a single gaol, would be a sheer waste of words ; but a reference to the enormous expence to the community, attendant upon a debtors' goal, is necessary to complete the picture. Besides the ground-rent and repairs of the building, the public is charged with the salaries of the officers necessary to safe custody, with those of a medical and a clerical establishment, and with the support of an hospital and its attendants. By a recent law also, food and coals are supplied to the pauper prisoners. Without attempting to fix with accuracy the gross expence of such an establishment, it may be stated as amounting to a large per centage on the debts for which the whole number in confinement is detained. It is not the least vexatious part of the business, that, of the contingent expences, the larger part is occasioned on account of the paupers, who afford the greater number of cases of long incarceration, and who consequently suffer most in health, and require much humane assistance. I have known instances in which such persons have cost the county many times more than the sum for which they were detained ; so that if the practice would not have encouraged fraud, it would have been economy in the Government to have paid the debt, to get rid of the incumbrance. Io Ireland, where the system of small farming makes many small debtors, and where there are no

poor rates, it is more than probable that not a few of the prisoners remain in custody voluntarily for the sake of the support; and it cannot fail to be very soon discovered, that a friendly writ is an expeditious mode of getting rid of a lunatic relation. The expence attendant upon the safe custody of the insane in prisons, where the ordinary means and appliances of an asylum are not to be had, is a grievous and wanton addition to the public burdens: but infinitely more important is the cruelty of the prisoner’s situation, deprived, as he must be, of the chances of cure which are afforded in appropriate establishments. It is true that means exist under the Insolvent Act, by which a lunatic may be promptly discharged; but there are none by which he must: and if the prisoner be under attachment, I am not aware of any legal process, short of the expensive one of moving the court, by which his discharge is possible. It would be sonie return for the expenditure thus incurred in a debtors' prison, if the condition of the pauper prisoners was tolerably comfortable; but it is obviously necessary thai the relief of the first wants of nature should be on the lowest scale, to prevent the gaol from being converted into a poor house. Drunkenness and filth are placed in loathsome contrast with squalid poverty; and the resulting demoralization is proportionate. Reluctant debtors must surrender their effects or be forced to do

Whenever this most important and final end shall be fully and effectually secured, in all possible cases, the necessity for preliminary arrest will cease to exist. If the cessio bonorum be promptly insured by law, an attempt to escape with the property would become a highly criminal offence; and when the apprehension of such a crime being meditated were duly established before a magistrate, committal to a county gaol under his warrant should follow, as in any other minor charge where bail cannot be procured. So also in the case of fraudulent and evasive practices, imprisonment aggravated by severe discipline, and even, if necessary, by hard labour, should follow the sentence of a competent tribunal. By these means, misfortune would be exempted from useless suffering, the creditor better protected, and all necessity for those public nuisances-the debtors' gaols, where crime and honesty are huddled together, and where the rich rascal can laugh at those whom he robs, while he revels in luxury, will be entirely abolished. All changes short of this (sweeping revolution, if it must be so called), however ingeniously contrived, will prove ineffectual. As long as the debtor can withhold his property by submitting to incarceration, and as long as the subject can be submitted to indefinite confinement without the intervention of a tribunal, no minor arrangements can reach to the many cases of hardship and fraud, to which such a state of things is liable. “ To this complexion we must come at last :” and nothing remains but to expedite the arrival of so happy a consummation.

M.

so.

A T A L E.

[ocr errors]

BY THE AUTHOR OF “ THE KUZZILBASH." In the year 17—, during the progress of that war which Russia so long carried on against the provinces of the Caucasus, and which has terminated only in that species of possession, or rather military occupation of the country, which leaves her mistress of little more than the ground she occupies with her troops, or commands with the range of their muskets,a small party of Russian infantry, which had been detached on duty from a corps stationed near the Kubau river, was surprised by a strong marauding party of Circassians, by whom some of its number were killed, and others taken prisoners. Of the fate of its officer, no distinct accounts reached the head-quarters of his corps; for the private who had been fortunate enough to escape, while his comrades were falling under the arrows and swords of the Circassians, was too much occupied about his own safety to attend to that of his commander; and the gloom which was cast over the corps under Major D-, was deepened by the painful uncertainty which hung over the young man's destiny.

Lieutenant Palovska, for so we shall designate the missing officer, had a brother in the same corps, but absent at the time with the garrison at Stavrepol, who, when he heard of the catastrophe, immediately procured leave of absence, and repaired to the position of Major D

Theodore Palovska, such was the young Pole's name, was, like his brother, beloved not only in his own corps, but by the whole division of the forces to which it belonged. An eminent portion of that masculine beauty for which his nation is remarkable, an air of high distinction, and sentiments as noble and generous as his form was prepossessing, combined with a happy buoyancy of mind, and inexhaustible good-humour, to throw over the young Palovska a charm which few could resist. With Major D- he was a peculiar favourite; and although that officer possessed too high a sense of duty to listen to an inadmissible request from any quarter, he could not deny the young Pole permission to lead a party in search of the remains of the detachment which had been cut off, even wbile he entertained some doubts regarding the consequences, and might, upon grounds of military expediency, have possibly seen cause to withhold his assent. A force of forty cossacks, under an experienced and steady officer, was told off from those under the Major's command, and placed under the orders of Palovska, who took his departure from the encampment with mingled feelings of exultation and anxiety, to search for the unfortunate sufferers; for with the sanguine spirit of youth he doubted not of success, while ever and anon the recollection that he for whom he principally undertook the expedition might already be beyond the reach of its aid, would pass like a cloud over a fair prospect and turn bis hopes to gloom.

A short day's riding, after crossing the Kubau, brought the party to the scene of the disaster, which was easily recognised; for the flight of carrion birds and the herd of beasts of prey which their arrival scared from the spot, had still left enough to prove that the remains which lay before them were those of their slaughtered comrades. The shreds of coarse uniforms which were scattered about, indicated the sufferers to have been privates; a single rag of finer texture with a bit of gold-lace attached it spoke a more alarming hint to the young Pole : but that might have been rent from the person of his brother in the fierceness of the struggle, and he refused to abandon the hope which still whispered in his heart that this beloved brother was yet in existence.

The traces of the retreating enemy were soon lost in the rank herbage and thickets of the country through which they now had to pass ; but they

« AnteriorContinuar »