Part 2
The affair is so managed as to levy the last day of a term, that no court may be open to a complaint; and before the next term AFFIDAVIT'S sufficient _prove_ not only the legality of the debt and proceedings, but that no such transaction ever happened, if that should be found most _convenient_. I have been witness to the oppression and cruelties exercised in conquered countries, the misery and wretchedness of the inhabitants living under military and despotic governments, and to the numerous train of evils accompanying the seat of war; but never, no never, met with horrors so dreadful to look on, as are daily perpetrated with impunity in this country of boasted liberty:
_As well we might the host of armies bear_, _As feel the_ EFFECTS, DISTRESS, _and_ FORCE _of war_.
Why do we tell Spain, Portugal, and Italy, that we have neither bravos, assassins, or inquisitions, when we are cursed with pettyfogging attornies, bailiffs, and knights of the post, a more numerous and dangerous left of banditti, who commit every species of barbarity and cruelty, under the specious pretext of doing their duty? To what purpose do we daily waste our lungs, and crack the drum of our ears, bauling at the illegality of GENERAL WARRANTS, which happens once in a century?
I defy the annals of the secretary of state's office to produce a General Warrant, or even the records of the Star Chamber, an order fraught with equal oppression.
If I remember right, the warrant which seized your person and papers left you quiet possession of every thing else; and even those papers were returned, with the additional recompence of FOUR THOUSAND POUNDS: notwithstanding we look on you as a martyr to ministerial vengeance and oppression. If so, by what standard of oppression will you measure the wrongs here complained of? You cannot insult our understanding so far as to tell us, oppression from one minister of state is weightier than from fifty ministers of HELL, who not only seize our property, deemed such by law, but the absolute exceptions in law, papers, books, and wearing-apparel.
If, Sir, you are not a perfect MOCKERY of that patriotism you so industriously persuade us is the spring of ALL your actions, if you have a grain of genuine liberty in your composition, if you are not steeled against the feelings of humanity, lost to every sense of gratitude, and deaf to the cries of the injured, you will search and probe the very inmost recesses of these infamous transactions; and, if possible, totally eradicate the cause. But I fear the root has taken too fast a hold to be removed by your utmost efforts; indeed you may lop the branches, and prune the sprouts, but nothing less than a parliamentary aid can destroy the trunk; or at least, to make any tolerable figure or progress in the business, the chief justice must exert his abilities and power, or all yours will prove little less than abortive and fruitless. But as it is not a sufficient excuse for neglecting a part, because we cannot accomplish the whole, I shall point out to you a few inconveniencies, which may in some degree be remedied or prevented in future.
You are to take care that eligible bail is not, on any PRETENCE, rejected; for the laws have put it out of the sheriffs power to refuse such bail as APPEAR responsible for the debt at the TIME it is offered, nor does the law call on the sheriff, should such bail subsequently become insolvent; notwithstanding the contrary doctrine of bailiffs and pettyfogging attornies.
You are to take care, that for a bail-bond to a bill of Middlesex, that one guinea _per_ hundred is not extorted, which is the common practice.
You should totally abolish the imposition of making a prisoner pay half a crown, but oftener five shillings, for searching the office of Middlesex; which is a tax founded on no better authority than the mutual cheat of bailiff and clerk in office.
You should take care, that no blank warrants go out of the office till the receipt of the king's writ.
You should take care, that such writs are sealed before you grant a warrant on them.
You should take care, that such writs are not altered after sealing.
You should take care, when more persons than one are included in a writ, that no more than one is put in a warrant.
You should constitute a sworn appraiser of reputation, and take security for his integrity in the appraisement of all such goods as are seized by virtue of execution.
You should prevent clerks in office accepting presents from bailiffs, as such presents cannot be for the public good.
You should take care, that plaintiff and defendant are not BOTH charged with the expence of arrest, and that too by treble fees.
You should appoint proper persons in Middlesex to take bail-bonds, the same as in London; but under better regulations.
You should appoint a proper person to superintend lock-up-houses twice a week, and make returns of such prisoners as remain for want of bail, and the names of such bail as HAVE been by them OFFERED to the bailiff.
You should regulate the expence of lock-up-houses, and have those regulations hung up for the INSPECTION of prisoners.
YOU SHOULD PREVENT ANY OFFICER KEEPING A LOCK-UP-HOUSE, OR HAVING ANY INTEREST THEREIN.
To enumerate ALL the frauds and artifices practised by these _gentlemen_ would swell this Letter to a voluminous size. Suffice it therefore, that I have pointed out more malpractices than you will easily rectify, or could have comprehended from COMMON report, notwithstanding you conceived them to be both numerous and flagrant.
Having thus far shewn what is practised in open defiance of all laws human and divine, it will not be improper to remark how far these outrages are carefully prohibited by the strict letter of the laws now in force.
No arrest is lawful, unless the bailiff absolutely lay his hand on the defendant; for the writs express arrest by the words CAPIAS, ATTACHIAS, that is, to take and catch-hold; therefore, breaking open doors to make an arrest is no more lawful than breaking them to commit a burglary; for every act of violence is unlawful till the arrest be made and complete.
No arrest in civil cases is to be made with violence, by breaking open doors, unless when regular possession shall be recovered of any house, and the defendant happens to be in SUCH HOUSE. Therefore bailiffs enter at their peril, and the defendant is justifiable in putting him to death in the very instant he ATTEMPTS to raise a latch; for it would be absurd to suppose the laws will protect a man in the commission of an unlawful act.
Any bailiff MALICIOUSLY arresting any person, where no cause of action is, shall suffer six months imprisonment, and shall pay treble damages, with a forfeiture of 10l. before he is discharged.
No bailiff shall take more fees than what the law allows upon pain of incurring a penalty of 40l. with treble damages, to the party aggrieved.
Attachment lies against him for executing a writ OPPRESSIVELY by FORCE, EXTORTION, or in any CORRUPT manner.
But our laws have originally considered sheriffs only ostensible for the due execution of writs, and therefore take little notice of their deputies, but make him answerable for THEIR acts in a ministerial capacity; and equitably so, for the law supposes him capable of avoiding evils of this nature by chusing proper persons.
We will now consider what provision the laws have made against Barratry and other iniquitous practices of pettyfogging attornies, from whom all the other grievances, either positively or negatively, spring. My lord Coke thus defines a Barrator; _that he is a common mover and maintainer of suits in disturbance of the peace_, _and in taking and detaining the possession of houses_, _lands_, _and goods by false inventions_, _and therefore the indictment against him_ OUGHT _to be in these words_; viz. that he is, COMMUNIOUS MALEFACTOR, CALUMNIATOR, & SEMINATOR LITIUM, & DISCORDIARUM INTER VICINOS SUOS & PACES REGIS PERTURBATOR, &c. &c. which is saying, that a barrator or pettyfogger is the most dangerous oppressor in the law; for he oppresseth the innocent under colour of that law which was made to protect them from oppression; and yet we have 500 of these barrators or pettyfoggers in the courts at Westminster every term, in the full exercise of their depredations, notwithstanding the laws expressly pronounce the following sentence against them; viz. "that they shall be rendered incapable of acting as attornies."
"Attornies must produce receipts from under the hands of council, or other persons receiving fees, if requested by their clients, or they shall not be allowed them; and attornies must give in to their clients a true bill, under their own hand-writing, of all such fees, &c. one month before any action shall be brought against their clients for the same.
"No attorney shall delay his client's suit from any advantage to himself, or demand more than his due fees and disbursements, under pain of a fine and disability to act.
"If any attorney shall suffer any other person to prosecute any suit in his name, he shall forfeit 20l.
"If any attorney's bill, upon taxation, be reduced a SIXTH part, he shall pay a penalty of 50l. and be disabled from acting as an attorney.
"If any who have been convicted of perjury, forgery, &c. shall practise as an attorney or solicitor in any suit or action, the judge, where such action shall be brought, hath power to transport the offender for seven years, under such pains and penalties as other felons.
"If any attorney shall procure a blank warrant from any sheriff, with intent to arrest, before a writ is delivered, he shall be expelled and punished.
"Every attorney must enter and file a warrant of attorney in the suit he is employed to prosecute, under the penalty of 10l.
"The plaintiff's attorney must file his in the term he declares, and the defendants his in the term he appears.
"And no attorney shall appear or plead a plea, without a warrant from his client."
Notwithstanding our laws abound with these and many more excellent provisions in behalf of the subjects at large, by prescribing limits to the power, and inforcing the duty, of attornies, we daily feel their inefficiency to protect our liberty and property, a proof that human foresight is unequal to the task of guarding against the invention and chicanery of necessitous villany.
However, as the evils arise not so much from the DEFECT of our laws as from a BREACH of them, there is a firm bottom to proceed on, and from your insatiable hatred to oppression, we may hope to see some wholesome regulations in the sheriffs department. The judicious choice of Mr. Reynolds, as under-sheriff, will greatly facilitate a remedy to these growing complaints; from whom, as a man and friend to the community, we have every thing to hope--as an able lawyer, nothing to doubt.
Lock-up-houses, EMPHATICALLY called spunging-houses, were originally instituted for the mutual benefit and advantage of debtor and creditor, as a kind of interlocutory residence or respite from a prison, which gave to the former a lotted time to procure sureties for his appearance, raise money or friends to pay the debt, or otherwise settle the matter; with like opportunity to the latter to consider of and consult his own interest. Thus far it became a humane and equitable institution; but, O TEMPORA! O MORES! how subverted are the lock-up-houses of this day: the instant a debtor enters one of these confines, a temporary hell presents itself. He is hemmed in and surrounded by a set of wretches, whose daily bread depends on the misfortunes of others; on the one side he hears pettyfoggers reading lectures on the THEORY of vice, on the other, bailiffs urging the necessity of its PRACTICE; before him are raigned the unhappy pupils, industriously improving on their infernal precepts, and rendering fraud, perjury, rapine, and every degree of robbery, as mechanical as shoe-making; behind stands a female _Anodyne_, bloated with all the infections purged from her sex, her heart ulcerated with vice, and her face with brandy, railing at the cruelty of creditors, and _piously_ banding off _comfort_ to his misfortunes, by holding out _advice_ pernicious as Eve's apple, a taste of which would entail misery on his whole posterity.
A spunging-house, in its present state, is as destructive to the principles of a man, as a brothel to the chastity of a woman; both enter with an equal degree of timidity and terror, and are seduced by similar stages of viciousness. The former, who held it a dishonour to delay payment of his bill with punctuality, will, after a month's residence in a spunging-house, from hellish tenets and execrable examples, think it meritorious to cheat every creditor he has. The latter, who held the least obscenity offensive to her ear, will, from a like mode of seduction, and abominable examples, not only endure the sound, but court the substance. Most certain it is, that the seeds of vice are alike plentifully sown in these diabolical seminaries, and the hand of authority only can prevent its increase. But it appears, that these abuses committed by sheriffs officers are not wholly recent or local; for so long since as the year 1413 we find an act, in the first year of Henry the Fifth, to prevent abuses, extortions, and oppressions of bailiffs; which act runs thus: "Forasmuch as the king's liege people dare not prosecute or complain of the extortions or oppressions to them done by the _bailiffs_ of sheriffs, because that the said bailiffs of sheriffs be so continually year after year abiding with the sheriffs, interchangeably in one office or in another, our lord the king, by the advice and assent of the lords spiritual and temporal, and at the _special_ instance and _special_ request of the commons of this realm, hath ordained and established, THAT THEY WHO BE BAILIFFS OR SHERIFFS BY ONE YEAR SHALL BE IN NO SUCH OFFICE BY THREE YEARS NEXT FOLLOWING."
But by this and a subsequent act the bailiffs of such sheriffs, whose sheriffwicks are _inheritable_, are excepted. Now the lord mayor and citizens of London have the sheriffalty of London and Middlesex in fee by charter; therefore the bailiffs come within the above exception. The acts themselves are affirmative, and the exception consequently leaves a negative pregnant, which gives the sheriff full power to discharge such bailiffs under sheriffwicks _inheritable_, as if the acts had made no exceptions.
A removal then of the officers, or at least the greatest part of them, is the first step towards a reformation; and the more effectually to eradicate the evil, as far as your power will extend, let them be replaced with men of moderate honesty and morality. Chuse them as you do other officers of less consequence, by ballot, election, &c. such a mode of choice will soon procure proper persons, and put the officers on a reputable footing. There is nothing dishonourable in the profession itself, more than in constable or any other minister of justice; the name of bailiff is become contemptible ONLY from a notion, that none are such but those totally destitute of every spark of humanity and honesty. Sheriffs themselves are royal officers of great dignity, taking place even of noblemen in the county during their sheriffalty. Can it then be supposed, that the immediate deputies of an officer, whom the law honours with a judicial and ministerial jurisdiction, almost to unlimited power, should be composed of men too infamous for any other employment, such {31} only as are excluded from all social and friendly societies of men? However it would be extremely unjust, and argue a want of candour and common charity, to indiscriminately confound the good with the bad, or make the whole answerable for the crimes of a part.
Amidst such a body of men, it is to be hoped that exceptions are not wanting; but I will venture to say, that those exceptions will chiefly be found in the serjeants at mace, some of whom have been reputable tradesmen, and still retain a memory of their own misfortunes, which serves to keep the faculties of feeling and humanity in a proper circulation, and makes them view the precipice from which they fell through the miseries of others.
But as it does not become my purpose or province to select the guilty from the innocent, I will leave them to stand justified by their own works, as they pass your more critical observation; all I contend for at present, is THE VERACITY OF THIS SHORT NARRATIVE, IN WHICH I HAVE NOT RELATED OR ALLUDED TO A SINGLE TRANSACTION BUT I CAN AUTHENTICATE WITH AGGRAVATING CIRCUMSTANCES. LET THEN THE PROOF OF PAST INJURIES BE MY TASK, A PREVENTION OF THE FUTURE YOURS. From the foregoing observations we may fairly conclude, that the present mode of holding the person of house-keepers in trade to bail, is no more beneficial to creditors than reputable to debtors, even supposing such arrest to be thoroughly consonant with the law of the land.
But to quit the legality, and turn to the equity and policy of confining the body of a debtor. There can be no reason given agreeable to humanity or christianity, why one party only should be punished for a crime, if two concur in the guilt. The creditor that gives improper credit, with a view of exorbitant gain, meets the debtor half way in the fraud by the very act of trust. In the former it is premeditated fraud and avarice, in the latter rashness and folly. It is for his own sake that the creditor gives credit, and his hope of advantage begets a confidence in the creditor. As the contract or cause is mutual, so ought the consequence.
We have seen one generation after another imprisoned for debts they could not pay; and experience daily teaches, that a prison, so far from affording a creditor's demand, shuts up, with the debtor, every hope of recovering it. Why then should we pursue the remedy without a benefit? If the debtor has property, take it, and the end of arrest is fully answered. If no such property is to be found, the want of it can be no consolation to the debtor; and it is inhuman to add affliction on the back of misfortunes.
If we search the prisons through, it will appear, that a vast majority of prisoners are such from the villanies of attornies, the injustice of creditors, or from a disability to pay such debts as ought not, from the nature of their contract, to be paid. The just, fair, and honest man seldom imprisons his debtor for a want of abilities so much as for want of inclination. In the latter case, imprisonment is too slender a punishment for the offence, in the former too harsh and severe.
I am not so liberty-bit as to contend for it in behalf of a man, who has wasted his creditors substance by every act of dissipation and profligacy; but there certainly ought to be a line drawn between the fraudulent and honest debtor: the one merits a more exemplary correction than the laws inflict, the other claims not only the law's protection, but the aid of humanity.
The misery attending debtors would be often avoided, if creditors would DEIGN to see and treat with them, instead of sending an attorney, whose hearts in general are not made of penetrable stuff; to hope for mercy from them, is putting your finger in the fire and begging it not to burn.
Attornies fees amount to ten or fifteen pounds by suing a debtor to execution, and by making terms to avoid it as many shillings only; it is therefore absurd to suppose an attorney would advise an amicable adjustment.
As I have in the course of these confused and indigested observations pointed out the several abuses of attornies and bailiffs, with their several remedies, I shall endeavour to shew the reason why these remedies remain unapplied, and why such atrocious offences escape the vigilance, energy, and force of so many statutes framed for their detection, and upon a strict enquiry we shall find the evil under two general heads.
These outrages are mostly practised on such objects as are in a defenceless situation, and constrained to silence from their inabilities to complain. If, _per contra_, the oppressed person saves enough out of the wreck to make application, it is made under these disadvantageous circumstances. An attorney of integrity and reputation as studiously shuns a contest with miscreants, so loaded with infamy, as they would an epidemical contagion; on the other hand, an attorney of the same stamp renders the remedy infinitely worse than the disease. The relief obtained from such an advocate serves but to involve and plunge the complainant in a more horrid gulph of distress, by picking his pocket of every shilling he can procure, and afterwards selling his cause to the infamous defendant. This is a truth fatally felt by one half of the world, and acknowledged by the other.
Surely then the interest and honor of the profession is deeply engaged in the extirpation of these disgraceful nuisances to THEIR community; a small degree of THEIR exertion would brush these asps from the face of the earth, which now buzz and sting, to the annoyance of every less offensive member of society.
To say that this great end is not easy to accomplish, is folly and cowardice in the extreme. A proper knowledge in the laws, joined to a little spirit and resolution, would absolutely bring the whole artillery of pettyfoggers to capitulate at least, and we should see them reduced to the alternative of living by the fair practice, or seeking some other profession.
Is it not enough to put the whole body of law out of countenance, when I positively aver to their teeth, that, with the assistance of the laws now in force, and an able attorney of spirit and character, I would undertake to render these horrid transactions impracticable, with impunity, for the future.
But what can we expect, when our most eminent pleaders will view a monstrous gigantic villany stalking on the verge of his brief, and will not step out of his _methodical_ path to catch it? Have we not heard an orator exclaim, _Your lordships are well acquainted with the abilities of this man_, _this quire of affidavits are of his manufactory_, _the credit of which_, _my lords_, _will render an explanation of the matter unnecessary_?
Notwithstanding the known and established character of the solicitor in question, the very next cause we see the same eloquent gentleman take up the trowel and plaister of logic, and completely cover the egregious blacking he bestowed on him half an hour before.
It is not all the rhetorical eloquence, muttered from the force of language, that can reconcile this absurdity to common sense. The man who was all infamy half an hour ago cannot make so quick a transition; but on such paradoxes in law does the safety and support of these Jeofails depend.
Much having been said about the peculiar qualifications and abilities of a pettyfogging attorney, I shall conclude this Letter with a portrait of the most eminent one in this metropolis.