did. Mesne process, translated into English, means middle process, and the

idea was to lock a defendant up in the middle of the trial and keep him there in case it turned out at the end of the proceedings that he owed the money. It was as popular with the sharks of the eighteenth century as the present imprisonment is with the moneylenders and tally-men of to-day. Any person who would make an affidavit that another owed him twenty pounds or more could lock him up pending the trial and, unless the victim could find the money and pay it into Court, he remained in the sponging house until the trial came on. Harry Warrington was served so, if you remember. Two gentlemen came from over the way, "one of them takes a strip of paper out of his pocket and, putting his hand upon Mr. Warrington's shoulder, declares him his prisoner. A hackney coach is called and poor Harry goes to sleep in Chancery Lane." Certainly Harry owed the money and had been reckless and extravagant enough, but even then the method of arrest strikes us to-day as a little high-handed. Nor was it always made use of with honesty. To bold rascals it was a very perfect machine for the wickedest blackmail. An affidavit of debt--and eighteenth century affidavits were no nearer the truth than those of the present century--was all that was required, and if in the end the affidavit was found to be false, the only remedy was to prosecute the swearer of it--if you could find him.

A case that Lord Denman mentioned in the debates in 1837 created a good deal of uneasiness in the public mind. A certain Portuguese nobleman, the Duke de Cadaval, on landing at Falmouth, or when he was residing at Plymouth, was arrested on a pretended debt, thrown into prison, and obliged to pay a large sum of money to procure his release. He afterwards recovered in an action for malicious arrest heavy damages, but he never received a penny of them, nor is there any record that the false witnesses were punished for perjury. There are many stories of this kind, and it was an obvious result of the system of arrest on mesne process. One would have thought that there would have been no difficulty about abolishing a legal machinery that brought about such injustice, but, in truth and fact, it was quite otherwise. Indeed, the people who wanted to abolish the excellent and business-like system were regarded as very pestilent and turbulent busy-bodies by the average citizen.

Another incident of imprisonment for debt at this date was that if a creditor preferred to issue a _ca. sa._ to a _fi. fa._ and took the body of the debtor in preference to the property of the debtor, he thereby discharged the debtor. If, therefore, the debtor preferred imprisonment to paying his debts, the law afforded the creditor no other remedy. There were instances of debtors remaining in prison for over twenty years well able to pay their debts, but preferring to live in luxury within the rules of the prison. _Re Pickwick_ is perhaps the popular leading case on this point. But whilst we remember with pleasure how the law enabled our dear friend to outwit for a time those wily attorneys Dodson and Fogg, do not let us forget the terrible sights he saw in the Fleet.

The Chancery prisoner, the fortunate legatee whose lawyers had had the thousand pounds legacy, and who was in the Fleet, mending shoes for twenty years because the loom of the law had woven a shroud of costs round him and buried him in prison--he was no fiction. His heart was broken when his child died and he could not kiss him in his coffin. There he remained living a solitary lingering death, lonely amid the noise and riot of the Fleet, until God gave him his discharge. This and many another case was before My Lords and known to the intelligent Commons when the question of the abolition of arrest on mesne process came up for discussion in 1837.

It is to Lord Cottenham, as I have said, that we owe the statute which, to use Mr. Atlay's phrase, "abolished the bane of Mr. Micawber's existence, imprisonment for debt on mesne process." Nor must it be thought that it was done without a struggle. Lord Lyndhurst said, and no doubt truly, that, judging from the petitions, he should be within the truth in saying that the Bill was very unpopular. The petitions were at least ten to one against the Bill. There was no more enthusiasm about mitigating imprisonment for debt then than there is to-day. The history of these things is always the same; the traders objected to the abolition of imprisonment for debt, the newspaper proprietors strenuously opposed the reduction of the Stamp Acts, the doctors fought against national insurance. Yet, when the horrible thing is done, we find them smugly prospering on the reform.

Lord Brougham, who from the very first had always held instinctively the true faith in these matters, pointed out to a reluctant House how credit was imprudently given to the real injury of the customer who is induced to buy what he cannot pay for, and to the injury of those who do pay what they do owe, but who pay the dearer in proportion to the bad debts which the tradesman is led to let others contract with him. Further, he emphasised the wrong done by clothing an insolvent person with an appearance of credit by lending him more goods which serve as a bait or decoy to others that have not yet trusted him. He laid down the principle that debt should never be treated as a crime and still less as a crime to be punished at the sole will and pleasure of the creditor, and eloquently called upon the peers to wipe out this foul stain from our civil code.

Arrest on mesne process was abolished, not ungrudgingly it is true, but it came to an end, and a commission was set up in 1839 to inquire and report upon the whole system of imprisonment for debt. This commission ultimately reported in favour of abolition. In 1844 another Bill was introduced to distinguish between cases where it could be shown that the debtor was an innocent fool and not a culpable contumacious defrauder. It was not of much avail as a social reform, but may be fairly described, perhaps, as a worthy effort. The brightest reading in its history for us to-day is the debate in which Lord Brougham, with savage eloquence, rubs it in--the modern slang expresses Brougham's method so accurately--and jeers at the opponents of imprisonment for debt now that all their Cassandra prophecies over the abolition of imprisonment by mesne process have proved themselves to be worthless. Abolition of this system had not diminished credit, and had not raised any difficulty in citizens obtaining credit. Then, as now, these were the trade arguments against reform solemnly used by business men, officials and lawyers, and though, on each occasion when the reform has taken place, they have been found to be the hollowest nonsense, yet they are repeated to the reformers of to-day with the same pompous effrontery with which they were offered to Lord Brougham.

We now come to 1869, in which year the present state of the law was created, and it is this law which seems to me so unjust to wage earners and poor people who are in debt, placing them as it does in conjunction with the Bankruptcy Laws in such a wholly inferior position to that of the well-to-do citizens. In order to understand the exact legal position it is, I fear, necessary to deal with the matter in some little detail.

The intention of the Legislature at the time seems to have been right enough. It was desired, no doubt, that a fraudulent debtor should be punished and that an honest debtor should not. If a means could be invented to carry out this principle no one would utter a word against it. A fraudulent debtor is, I take it, a man who, having ample means over and above the reasonable necessities of himself and his family, conceals them or places them in fictitious names and then defrauds his debtor and refuses to pay him.

I should be in favour of more stringent measures being taken against the fraudulent debtor, for one meets him every day, well-to-do and smiling, with a bill of sale on his furniture and everything in his wife's name. But he is the curled darling of the law. He makes use of the law to protect himself and his frauds, and the Debtors Act, which was intended to abolish imprisonment for debt, has no terrors for him, whilst under its provisions hundreds of weekly wage earners are imprisoned.

As Sir George Jessel said, the real intention of the Debtors Act, 1869, was to abolish imprisonment for debt for honest debtors and to retain the right of judges to punish fraudulent debtors. Many of the sections of the Act are framed, and to some extent assist, in the excellent aim of making it hot for the naughty and wicked debtor who has cheated or defrauded his creditors. Why is such a person punished? asks the Master of the Rolls. I give the answer in his own words. "Simply because he is a dishonest man. He need not perhaps be called a thief in so many words, but he is a man who takes or keeps money belonging to other people, and he is punished accordingly." Instances of such are defaulting trustees and similar misdemeanants, and, so far as the Act provides for their punishment, we have no quarrel with it.

Now no one would contend that the system of imprisonment for debt as carried out in the County Courts is a system directed in the main against dishonest men. Improvident, careless, foolish and childlike these poor defendants in the County Court may fairly be described; but if a day of judgment audit could be carried out, and a balance struck on the item of "honesty" as between the working-men debtors and the class of traders who give them credit, I make little doubt which class, as a class, would show the better figures. No, we do not imprison in the County Court for dishonesty _per se_; dishonesty may or may not be a feature of any particular case, but it is not an essential.

The order for imprisonment is made under section 5 of the Debtors Act, 1869. That is the tally-man's charter. I am sorry to bore anyone with all these sections and statutes, but there is such a lot of inaccuracy written and talked about the matter that it is best to set down the actual enactment. We must remember then that the Act, being an Act for the abolition of imprisonment for debt, had begun by enacting in the fourth section that "with the exceptions hereinafter mentioned no person shall be arrested or imprisoned for making default in payment of a sum of money." These last words state quite clearly the true principle of what the law ought to be. Unfortunately for the poor the special exception made for them has only too truly proved the rule.

The opponents of abolition were but too successful in their endeavours to make inroads upon the thoroughness of the proposed reform, and one of the exceptions was called "a saving power of committal for small debts." It might have been better described perhaps "as a saving power to imprison poor debtors." This is the famous section 5 of the Debtors Act, 1869, over which so much controversy has since arisen, on the working of which two important commissions have sat and reported, and under which we may proudly claim to be one of the last civilised countries that clings to a system of imprisonment for debt.

It is necessary to set out the section at some length, for it has a googlie element about it and is not so innocent as it appears on the surface. It first sets out "that any Court may commit to prison for six weeks any person who makes default in the payment of a debt or instalment due in pursuance of a judgment." That, of course, is plain sailing imprisonment for debt. Then, however, follows the sub-section--I again apologise for troubling you with all this, but it is really a good citizen's duty to understand it--which causes all the worry. It is enacted in sub-section (2) "that such jurisdiction shall only be exercised where it is proved to the satisfaction of the Court that the person making default either has _or has had_ since the date of the order or judgment the means to pay the sum in respect of which he has made default and has refused or neglected or refuses or neglects to pay the same."

It is the words that I have printed in italics that hit the poor man and the weekly wage earner, for of course it is generally provable that, although he has no present means to pay a debt, he _has had_ since the judgment means to pay which he has spent on the maintenance of his family, or, if you will, on beer or tobacco, or picture palaces, or, in a word, as good solvent middle class people would say--improvidently.

The further matters enacted are all sensible enough, granted you approve of the main principle of imprisonment for small debtors. They deal with proof of means of the person making default, allowing such proof to be given in such manner as the Court thinks just, and for these purposes the debtor and any witnesses may be summoned and examined on oath according to the prescribed rules.

The other material points of the section are that a County Court judge must exercise his jurisdiction in open Court, he may order the debt to be paid by instalments, he may also make continuous committals on each unpaid instalment, he may vary and rescind the order, and the imprisonment when suffered does not distinguish or discharge the debt or other remedies of the creditor. The debtor can take his release in payment of debt and costs.

Anyone who studies this Act of 1869 and comes to the conclusion that this system is anything less than imprisonment for debt, and not imprisonment for fraud, must, I think, be driven to argue that the men who drafted the Act called the Act an Act for the abolition of imprisonment for debt, called section 5 a saving clause for continuing imprisonment for small debtors in certain cases, and did not understand their business. As a matter of fact they knew their business very well indeed, and they carried it out faithfully and well.

What happened undoubtedly was this: Parliament as a whole was out to abolish imprisonment for debt. There were a lot of old-fashioned folk then as now, who wanted to retain it. Compromises were made. It was agreed that there should be abolition, it was also agreed that there should be exceptions. The exceptions readily granted were cases of fraudulent trusteeship and the like. This was not enough for the old gang, so the promoters of the reform threw in poor persons owing small debts. The poor had as few friends in Parliament as the fraudulent and they were huddled together into the same bundle of exceptions as a sop to the opponents of the Bill. When folk describe our present system in the County Court as anything other than imprisonment for debt, a legitimate offspring of its noble Norman ancestor _capias ad satisfaciendum_, they do it in ignorance of the legal and political history of the Debtors Act, 1869.

I should like to have set out much of the debate in the House of Commons on the second reading of this Bill. Sir Robert Collier, the Attorney-General, openly expressed his regret that imprisonment for debt was going to be retained in the County Courts, and several members spoke wisely about the hardships then inflicted on the poor and the undesirability of continuing them. But the following extract from a speech of Mr. McMahon shows that no one at that time was under any delusion about what was going to be done. "When," he said, "arrest on mesne process was abolished shortly after the passing of the Reform Bill it was then said that credit would be disturbed, and that traders would not be able to carry on their business. But these forebodings were purely imaginary, and in the same way he believed no evil would attend the good that must undoubtedly result from the final abolition of imprisonment. If, however, they allowed the rich man to escape under the bankruptcy system they ought not to admit the poor man to be liable to imprisonment, for by so doing they would certainly be open to the charge of having one law for the man in broadcloth and another for the man in corduroys."

Here the warning is clearly given by a man on the spot, that what they were about to do was to set up a system unfair to the poor, and there was really no doubt in the minds of any of the legislators of the day that they were deliberately retaining imprisonment for debt for the poor. I want to insist on this point because one of the stumbling blocks in the way of reform to-day is the strange belief, fostered by the tally-man and his friends, that in some mysterious way imprisonment for debt has really been already abolished and that the working classes really go to prison for contempt of court or some other reason. There is no truth in this whatever.

The Attorney-General who introduced the Debtors Act, 1869, may surely be credited with understanding what it was intended to do. He knew well enough that his Bill was going to abolish imprisonment for debt for the rich and retain it for the poor. He pointed out that he was making bankruptcy cheaper and more stringent. It would be obviously absurd, he said, to make a day labourer a bankrupt, and that brought him to the very difficult question of County Court jurisdiction. At that time the County Court had a jurisdiction to punish for fraud as an incident of debt and also to imprison for debt. He proposed to take away the jurisdiction to imprison for fraud and to leave fraudulent debtors, both rich and poor, to the Criminal Courts. "But then," he continued, "came the other question of County Court imprisonment where a man was able to pay his debt, but would not do so. He did not regard that imprisonment as a mere punishment for a past offence _but it was a process of imprisonment for the purpose of compelling the payment of a debt_, and it was a process very analogous to the principle of the Bankruptcy Law." He came to the conclusion, after further argument, "that this power of imprisonment in the one case he had mentioned must be retained."

When an Attorney-General in 1869 brings in a Bill to abolish imprisonment for debt and deliberately tells us that he retains one class of imprisonment for debt, it is inconceivable why people to-day should strive to make out that the system we are working is not imprisonment for debt, but something else. Unless it be that the advocates of imprisonment for debt know in their heads that it is an evil, out-of-date system, and they have an instinct that it smells more sweetly under some other name.

From 1869 to the present there has been no further reform. Many hope that there never will be any, but for my part I have no doubt it will come along, not in my time, perhaps, but whenever the right moment may be. From 1869 until to-day over three hundred thousand English citizens have been actually imprisoned who have not been guilty of any crime whatsoever. They have been imprisoned mainly for poverty or, if you will, for improvidence--that blessed word that so insidiously describes in the poor that failure in economic asceticism, that lack of cold self-denial of luxury and extravagance, that absence of patient thrift and simplicity of life--characteristic features which are never wanting in the beautiful lives of those social classes above them that the poor must learn to look up to and to imitate.