Doubtless the peculiar jurisdiction of courts of equity has caused this extraordinary rigour in the punishment of contempts: but justice and a respect for personal liberty alike require that punishment should be meted out according to the gravity of the offence. The Court of Queen's Bench upholds its dignity by commitments for a fixed period; and may not the Court of Chancery be content with the like punishment for disobedience, however gross and culpable?

Mesne

Every restraint on public liberty hitherto noticed has been permitted either to the executive Arrest on government, in the interests of the state, Process. or to courts of justice, in the exercise of a necessary jurisdiction. Individual rights have been held subordinate to the public good; and on that ground, even questionable practices admitted of justification. But the law further permitted, and society long tolerated, the most grievous and wanton restraints, imposed by one subject upon another, for which no such justification is to be found. The law of debtor and creditor, until a comparatively recent period, was a scandal to a civilised country. For the smallest claim, any man was liable to be arrested, on mesne process, before legal proof of the debt. He might be torn from his family, like a malefactor,— at any time of day or night, and detained until bail was given; and in default of bail, imprisoned until the debt was paid. Many of these arrests were wanton and vexatious; and writs were issued with a

was committed for refusing to discontinue his addresses to a ward of the court, and died in prison.

facility and looseness which placed the liberty of every man,—suddenly and without notice,—at the mercy of anyone who claimed payment of a debt. A debtor, however honest and solvent, was liable to arrest. The demand might even be false and fraudulent but the pretended creditor, on making oath of the debt, was armed with this terrible process of the law.' The wretched defendant might lie in prison for several months before his cause was heard; when, even if the action was discontinued, or the debt disproved, he could not obtain his discharge without further proceedings, often too costly for a poor debtor, already deprived of his livelihood by imprisonment. No longer even a debtor,-he could not shake off his bonds.

Slowly and with reluctance, did Parliament address itself to the correction of this monstrous abuse. In the reign of George L. arrests on mesne process, issuing out of the superior courts, were limited to sums exceeding 10l.: but it was not until 1779, that the same limit was imposed on the process of inferior jurisdictions. This sum was afterwards raised to 15l., and in 1827 to 20l. In that year 1,100 persons were confined, in the prisons of the metropolis alone, on mesne process.4

3

The total abolition of arrests on mesne process was frequently advocated, but it was not until 1838 that it was at length accomplished. Provision was

1 An executor might even obtain an arrest on swearing to his belief of a debt. Report, 1792, Com. Journ., xlvii. 640.

2 12 Geo. I. c. 29.

319 Geo. III. c. 70. Hans. Deb., 2nd Ser., xvii. 386. The number in England amounted to 3,662.

made for securing absconding debtors: but the old process for the recovery of debt, in ordinary cases, which had wrought so many acts of oppression, was abolished. While this vindictive remedy was denied, the creditor's lands were, for the first time, allowed to be taken in satisfaction of a debt;' and extended facilities were afterwards afforded for the recovery of small claims, by the establishment of county courts."

ment for

The law of arrest was reckless of liberty: the law of execution for debt was one of savage Imprisonbarbarity. A creditor is entitled to every debt. protection and remedy, which the law can reasonably give. All the debtor's property should be his; and frauds by which he has been wronged should be punished as criminal. But the remedies of English law against the property of a debtor were strangely inadequate, its main security being the body of the debtor. This became the property of the creditor, until the debt was paid. The ancients allowed a creditor to seize his debtor, and hold him in slavery. It was a cruel practice, condemned by the most enlightened lawgivers: 3 but it was more rational and humane than the law of England. By servitude a man might work out his debt: by imprisonment, restitution was made impossible. A man was torn from his trade and industry, and

1 1 & 2 Vict. c. 110.

29 & 10 Vict. c. 95.

Solon renounced it, finding examples amongt the Egyptians.Plutarch's Life of Solon; Diod. Sic., lib. i. part 2, ch. 3; Montesquieu, livr. xii. ch. 21. It was abolished in Rome, A.D. 428, when the true principle was thus defined-Bona debitoris, non corpus obnoxium esset.-Livy, lib. 8; Montesquieu, livr. xx. ch. 14.

buried in a dungeon: the debtor perished, but the creditor was unpaid. The penalty of an unpaid debt, however small, was imprisonment for life. A trader within the operation of the bankrupt laws might obtain his discharge, on giving up all his property but for an insolvent debtor there was no possibility of relief, but charity or the rare indulgence of his creditor. His body being the property of his creditor, the law could not interfere. He might become insane, or dangerously sick: but the court was unable to give him liberty. We read with horror of a woman dying in the Devon County Gaol, after an imprisonment of forty-five years, for a debt of 197.1

Debtors' prisons.

While the law thus trifled with the liberty of debtors, it took no thought of their wretched fate, after the prison-door had closed upon them. The traditions of the debtors' prison are but too familiar to us all. The horrors of the Fleet and the Marshalsea were laid bare in 1729. The poor debtors were found crowded together on the common side,'-covered with filth and vermin, and suffered to die, without pity, of hunger and gaol fever. Nor did they suffer from neglect alone. They had committed no crime: yet were they at the mercy of brutal gaolers, who loaded them with irons, and racked them with tortures.2 No attempt was made to distinguish the fraudulent from the unfortunate debtor. The rich rogue,-able, but unwilling to pay his debts,-might riot in luxury and

1 Rep. of 1792, Com. Journ., xlvii. 647.

2 Com. Journ., xxi. 274, 376, 513.

debauchery, while his poor, unlucky fellow-prisoner was left to starve and rot on the common side.'1

The worst iniquities of prison life were abated by the active benevolence of John Howard; and poor debtors found some protection, in common with felons, from the brutality of gaolers. But otherwise their sufferings were without mitigation. The law had made no provision for supplying indigent prisoners with necessary food, bed-clothes, or other covering; and it was proved, in 1792, that many died of actual want, being without the commonest necessaries of life.3

2

Thatched

Society,

The first systematic relief was given to insolvent debtors, by the benevolence of the Thatched The House Society, in 1772. In twenty years house this noble body released from prison 12,590 1772. honest and unfortunate debtors; and so trifling were the debts for which these prisoners had suffered confinement, that their freedom was obtained at an expense of forty-five shillings a head. Many were discharged merely on payment of the gaol fees, for which alone they were detained in prison: others on payment of costs, the original debts having long since been discharged."

Rep. 1792, Com. Journ., xlvii. 652; Vicar of Wakefield, ch. XXV.-xxviii.

2 Report, 1792, Com. Journ., xlvii. 641. The only exception was under the act 32 Geo. II. c. 28, of very partial operation, under which the detaining creditor was forced to allow the debtor 4d. a day; and such was the cold cruelty of creditors, that many a debtor confined for sums under 20s., was detained at their expense, which soon exceeded the amount of the debt.--Ibid., 644, 650. This allowance was raised to 3s. 6d. a week by 37 Geo. III. c. 85.