Some objections humbly offered to the consideration of the Hon. House of Commons, relating to the present intended relief of prisoners

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SOME OBJECTIONS Humbly offered to the CONSIDERATION OF THE Hon. HOUSE of COMMONS, Relating to the preſent intended Relief of Priſoners

LONDON: Printed for R. WALKER, at the White-Hart, without Temple-Bar, E. NUTT, at the Royal-Exchange, and ſold by the Bookſellers of London and Weſtminſter. 1729. (Price 6 d.)


1. PART I.

Of the Fraud made uſe of by Inſolvents to bring themſelves within the Reach of the Acts of Parliament, with ſome Limitations; humbly offered to be conſidered of, in order (not to prevent an Act of Favour to real Inſolvents, but) to prevent the Abuſe of it by improper Objects.

IT is no wonder, if after ſo many Petitions from the ſeveral Priſons almoſt over the whole Kingdom, and ſuch horrid Cruelties and Inhumanities, as appears to have been practiſed by ſome Jailors, eſpecially by the Warden of the Fleet and his Agents, upon ſeveral unfortunate Gentlemen who have fallen into their Hands; I ſay, 'tis no wonder if a Bill for Relief of Priſoners is become very popular.

[Page 2] By how much the ill Uſage of the Priſoners, who are thus abuſed by the Keepers of Priſons, ſhocks the tender and charitable Part in every Man's Breaſt; by ſo much the Caſe of the Priſoners, even of thoſe who have not been uſed ill, prevails upon the Publick in favour of the GRACE deſir'd.

Nor ſhall one Word be ſaid, or one Thought ſuggeſted, in this Tract in Prejudice of the Charitable Intention of the Houſe, or any way to leſſen the good and generous Diſpoſition of any Perſon whatever, whether in the Legiſlature, or out of it, towards promoting ſo good a Work.

Far leſs ſhall I take one Step, or ſpeak one Word, that ſo much as looks like a Plea for the Cruelty and Inhumanity of Jaylors and Priſon-keepers; their Conduct in moſt, if not in all the Jails in England, calls aloud for a like Inſpection of Authority and for Juſtice upon the Perſons, as well as a ſevere Cenſure of the Practiſes of the Delinquents, in order to have that rigid, tho' neceſſary Part of the Law, call'd Impriſonment for Debt, be executed with Humanity and with Equity, according to the natural Rights of the Unfortunate, as Men; and according to [Page 3] their legal Rights as Engliſhmen, which it is evident has not been obſerv'd hitherto.

And to conclude this Part; leaſt of all ſhall I ſay one Word here in behalf of the Perſons at this time detected openly in the Cruelties, Inhumanities and Extortions, which they have practis'd upon the unhappy Gentlemen who have fallen into their Hands: I do not ſee they merit the leaſt Favour from their Country; they have acted a dreadful Part, and they are in Hands, which I doubt not will have more Mercy than they have ſhewn to the Miſerable, who have been under their Power; and tho' I ſhall not, on the other hand, prompt or puſh their Misfortune, yet this I may ſay without any Prejudice or Injury to them, that I hope they ſhall have ſuch Juſtice, as will effectually diſable them, and warn all others (of that rough Employment) from the like Practices.

Having laid down theſe Poſtulata, in order to prevent any prejudging my Deſign in this Work, or raiſing a popular Clamour, as if it was intended to leſſen the intended Grace of the Government or Legiſlature, and to prevent the Deliverance of Priſoners; I ſhall with the more freedom lay down ſome Difficulties, [Page 4] which, as they occur to me on this Occaſion, ſhall be worth the Conſideration of the Legiſlature, not to lye as Obſtructions in the way of the intended Bill, as a Reaſon ſine qua non, but that the Parliament, taking them into their Hands, and approving or diſapproving them, as they ſhall appear important, may find out ſuch proper Remedies as to their great Wiſdom ſhall ſeem meet.

Having thus, as I hope, remov'd the Prejudices which might lye againſt my preſent Deſign, I muſt alſo ſpeak a Word or two, very briefly, to remove if poſſible a popular Objection (at leaſt as it is uſed in the Mouths of ſome who are more particucularly concern'd in that part) namely, that it is unchriſtian and inhuman, and inconſiſtent with a generous Nation abhorring Cruelty, as England profeſſes to be, to confine poor miſerable People in Priſon for Debt, eſpecially ſuch as have nothing to pay.

As to the latter Part, viz. of confining People in Priſon who have nothing to pay, I come readily into that part, and in doing ſo I confirm what I have ſaid above, that I am not writing in order to intercept the intended Grace of the Parliament to the Unfortunate. The honeſt Debtor willing to [Page 5] pay, but unable; and willing to pay as far as he is able, and ready to give all reaſonable Satisfaction, ſuch as the Parliament may direct, that he is ſo unable, is certainly an Object recommending it ſelf to the Charity and Compaſſion of the whole Nation; and whatever intervenes by the Fraud of others, theſe, and theſe only, are allow'd to be the Perſons for whom the Parliamentary Grace which has been ſettled, and extended in ſo many Acts of Parliament already paſs'd, has been intended.

That very great Numbers of Fraudulent, unqualify'd, wicked, and diſhoneſt People have formerly receiv'd the Benefit of the like Grace by the Help of falſe Oaths, unjuſt Pretences, Connivance of Jailors, Bribery and Corruption of many kinds, has been loudly complain'd of, and I doubt is much eaſier to prove than to prevent; and not being willing, as I have ſaid, to be any ways a Hindrance to the Relief of the honeſt and real Objects of Grace, who are indeed within the Intention of the Act, I cover all that Part with ſaying, Better Ten diſhoneſt Debtors eſcape, than that one real Object of the intended Good ſhould periſh.

[Page 6] Yet I humbly propoſe it, as a Thing worthy the Conſideration of the Britiſh Parliament, whether it is any Way probable, that there can be ſuch a Number of miſerable Inſolvents in one Year, and that of but the loweſt Claſs too; namely, not owing above 100l. to any one Perſon, and all actually Priſoners, as have preſented themſelves yearly to the Magiſtrates, to be diſcharged by the Grace of Parliament, for theſe ſeveral Years paſt?

If it is true, as common Fame ſays it is, that notwithſtanding there was an Act for Delivering ſuch Priſoners but two Years paſt, there are at this Time near ninety Thouſand ſuch Inſolvents, now on the Books of the ſeveral Jails in this Kingdom; I ſay, if this is true, is it rational to believe, that theſe are all really and fairly Priſoners, within the Intent and Meaning of the intended Grace.

It would be a noble Undertaking, and in my Opinion well worth the Houſe of Commons, tho' it took up a good Part of a Seſſion, to find out ſome effectual Means to ſeparate between the Sheep and the Goats, (ſpeaking of that Alluſion with due Regard) in this Caſe; and to diſcover, expoſe, and [Page 7] puniſh the Frauds which are put upon the NATION in this Affair.

It is true, the People are deſpicable; I mean, the Guilty; the Debts they lye for not large, at leaſt not to particular Men, and ſome may ſuggeſt that it is not worth Notice; but I reply, the Number is great, ſurprizingly great, and the Injury to Trade is very conſiderable, nor is the Matter ſmall among Tradeſmen, tho' the Debts (as above) are not ſingly large. For as many of theſe Inſolvents frequently fall within the Compaſs of one and the ſame Shopkeeper, it very often falls heavy; and as theſe fraudulent Debtors boldly run into Mens Books, with a Dependance upon ſuch Acts of Grace, and with an evident Deſign to cheat and defraud their Creditors, and this ſeveral Times over, ſuch People are, I think, very far from being Debtors who deſerve Compaſſion, or within the Intent and Meaning of the Parliamentary Grace.

Likewiſe they are greatly injurious to Trade in general, as they ruin innocent Tradeſmen by their Knavery; many Tradeſmen having had thirty to fifty ſuch Inſolvents diſcharged by one Act, tho' they were never [Page 8] put in Priſon, or ſo much ar arreſted at their Suit, or for any Part of their Debt.

The uſual Practice of theſe People has been to run themſelves into the Tradeſmens Books, as it is called, in as many particular and different Places as poſſible; always taking Care that it be for ſmall Sums, within the uſual Reſtraint of the Acts of Grace; and then when the expected Favour is in Proſpect, get themſelves arreſted, and put in Priſon, or turn'd over by Habeas Corpus, ſo to be within the Reach of the Law, and then all the other Creditors, who have never offered them the leaſt Violence, are paid with a SUMMONS.

Others by Corruption of Jailors, and by Bribery, have obtained thoſe Jailors to own them as Priſoners in Cuſtody, tho' not really ſo, for a certain antedated Time, ſo as to be brought within the Reach of the Act.

What Perjury, what Forgery, what foul Things are practiſed under this Head, deſerves the Inſpection of the like Authority as lately detected the Frauds of the Fleet-priſon; a Committee, who are above the Reach of Fraud or Corruption themſelves, and fully qualified to ſearch thoſe Deeds of [Page 9] Darkneſs to the Bottom; indeed it ſeems to be reſerv'd to a Houſe of Commons, and to them only.

It was the Saying of a known and judicious Writer, that no Man ought to complain in Print of any publick Grievance, unleſs at the ſame Time he propoſed alſo the Remedies; I ſhall take the Hint, and offer ſomething to the Purpoſe in this Caſe, that I may diſmiſs it as I go:
  • I. It would go a great Way towards preventing this Miſchief, if it was provided in the Act, that no Inſolvent ſhould claim the Benefit twice over; it having been frequent to have them take new Credit, after their having been once diſcharged, ſeeking out new Places of Abode, and new Creditors, who, upon a Variety of Pretences, they inſinuate themſelves ſo far into, as to get Credit with them, their former Circumſtances not being known.
  • II. That none ſhould claim the Benefit of ſuch an Act, who had run from their Bail, made Eſcapes from Officers or Priſon-keepers upon their Parole, or that had committed any notorious Fraud [Page 10] puniſhable by Law, or that had obtained Credit upon Promiſe and expreſs Conditions (before two or more Witneſſes who ſhall atteſt the ſame) not to claim or take the Benefit of any ſuch Act of Grace.
  • III. That none ſhould claim ſuch Benefit who ſhall conceal any of their Goods and Effects from their Creditors, notwithſtanding their having made Affidavit as the Law directs, as in the Caſe of a Bankrupt.

Theſe Proviſo's, together with a New Method to be taken, to limit and reſtrain the Priſon-keepers, to prevent their keeping Priſoners on their Books after they have been diſcharged, antedating their Commitments, and giving fraudulent Certificates of their being Priſoners, when really they were not; I ſay theſe Methods, and ſuch as theſe, under the farther Direction and Improvement of the Legiſlature, I perſwade myſelf would go a great way to prevent the Abuſe of Parliamentary Grace, and to make the future Acts for Relief of Inſolvents effectually and truly, merciful and good, and the honeſt poor Priſoner, nobody repining at his Relief, would be deliver'd; the knaviſh deſigning [Page 11] Debtor remaining, as he ought to do, where the Law directs.

This leads me to enter a little into the Queſtion ſo much inſiſted on by ſome, viz. that no Man ſhould be put in Priſon for Debt.

It is true, that this Doctrine has many Advocates, and ſome have puſhed it ſo far, as to think the contrary Opinion cruel and unchriſtian; but I ſhall enquire more particularly into it in the next Part.

In the mean time, I take this Occaſion to repeat again what I hinted at before, namely, that this is ſo far from impeaching the common Charity, and the Compaſſion of the Britiſh Nation to Priſoners, that it prompts and recommends it by the meer Nature of the Thing; for when I argue againſt the Knavery of the Debtor, in making himſelf a voluntary Priſoner, on purpoſe to defraud and delude his Creditors, it naturally follows that the Priſons ſhould be purged from all ſuch voluntary, fraudulent People, and thoſe that remain would be the more real and unexceptionable Objects of the National Grace.

[Page 12] When the Priſoners were all really Inſolvent, really miſerable, and that without any room to charge either them, or the Jailers and Keepers with corrupt Practices, abuſing the publick Mercy, and the like, the Parliament would always be the more ready to paſs Acts for their Relief, as they ſhould ſee Cauſe, ſo that this Propoſal is evidently calculated to encourage and prompt the Mercy of the Publick to Inſolvents, by removing all the juſt Objections which now lie in the way, and have ſo often obſtructed it.


[Page 13]

Of the Neceſſity of Preſerving to the Creditor the Right of arreſting and impriſoning the Perſon of his Debtor; and how the Petty Credit given in all Retail Trade, and which is eſſential to the Support of our whole Commerce, depends upon it.

I Believe it will not be called begging the Queſtion to lay it down as a Foundation, That as there is a greater Trade carried on in England than in any other Nation in Europe; ſo there is a larger Perſonal Credit given in Trade here than in any other Nation, not in Europe only, but in the whole World.

There are ſo many Evidences of the firſt, and ſo many Authors have written on that Subject, that I need only refer my Reader to them; and the laſt is evident to every [Page 14] MERCHANT now in Trade, who ſees with the leaſt Obſervation what Difference there is between the way of Trading here, and the like way of Trading in Foreign Countries, and between the Credit given in either.

Some would make it a Queſtion, tho' I think it is no Queſtion, whether the Greatneſs of our Trade is the Cauſe of giving this large Credit, or that the giving this large Credit is the Cauſe of the Greatneſs of our Trade.

I ſay there is no room to debate this Part; the latter is evident to Demonſtration, namely, that the giving ſuch large Credit is the true Spring of the Greatneſs of our Trade: This appears by comparing the Bulk of the Trade in this Kingdom with the Bulk of our Current Stock in Trade. If no Credit was given, the Trade could not go beyond the Stock; it is true, it might go beyond the Current Coin, becauſe ſome Trade may be carry'd on by Barter, or exchanging one kind of Goods for another, without the Interpoſition of any Medium (which is Money) But no Trade can go beyond the Stock without Credit, becauſe one Value muſt always be deliver'd for another, and they muſt be [Page 15] always equal too, otherwiſe the Exchange is not equal, nor the Payment compleat.

But in Credit the Caſe is quite different; for here the Seller delivers his Goods (which are a real Value) to the Buyer on his Note for Payment, or perhaps on his Verbal Promiſe, either of which, is an imaginary Value only; in a Word, the Fame or Reputation of a Buyer is put into the Scale of Commerce with the real Value and Subſtance of the Seller, and the one is deliver'd for the other: the Account in the Tradeſman's Ledger ſtands as a Regiſter of the Caſe; the Buyer ſtands Debtor on one ſide for the Value of the Goods ſold and deliver'd to him againſt an open Blank on the contrary ſide, to be fill'd up to his Creditor when he pays the Money.

By this ſtrange thing call'd Credit, all the mighty Wonders of an exalted Commerce are perform'd; a Tradeſman beginning with a Thouſand Pound Caſh, and a good Character, ſhall ſtore his Shop or Warehouſe with 5000l. in Goods, and may trade for 10000, nay for 20000l. per Annum; and ſo long as he manages prudently, pays currently, and keeps up his Reputation, ſhall run almoſt what Length he pleaſes in his [Page 16] Trade, ſo much greater a Stroke in Trade does his Character furniſh to him, than his Caſh.

Upon the Foot of this very Article call'd Credit, as a private Man may trade for 10000l. per Annum with but 1000l. Stock, ſo if the Stock of the who [...]e Trade of Great-Britain be, as ſome inſiſt, Ten Millions, the Trade may actually return a Hundred Millions of Pounds Sterling in a Year; an immenſe Sum, but not at all improbable to be true, and perhaps within Compaſs too.

But to bring it down to the Subject: Take the Credit given in ſmaller Articles; I mean, in retailing Goods to the laſt Conſumer: This is what I call petty Credit, and is the particular thing which fills our Jails with Inſolvent Priſoners. Even this petty Credit is, though ſmall in the particular, immenſely great in the general; and tho' it does not encreaſe the Stock of the Retailer, it certainly does encreaſe his Trade, and cauſes him to ſell a great deal more Goods than otherwiſe he would find Cuſtomers for.

Thus the Wholeſale Dealer truſts or gives Credit to the Retailer, and thereby encreaſes his Stock (for Credit in Trade is Stock in [Page 17] Trade) the Retailer gives Credit to the Con [...]umer, and thereby increaſes his Sale.

Now upon what Foundation is all this Credit given? The Retailer, being a Woollen-Draper, truſts his Neighbour with a Suit of Clothes; how comes he to do it? perhaps the Man has no extraordinary Character; well but, ſays the Retailer, he is a Tradeſman as well as I, and he muſt pay me, or he ſhall not be able to ſtand at his Shop Door, or ſit behind his Counter, for I will arreſt him and make him pay me; and upon this Power of Arreſting the Debtor, and carrying him to Priſon, or whether he is carry'd to Priſon or no, the expoſing him, diſgracing him, and ruining his Credit; I ſay, upon this is founded the Freedom of the Tradeſman to truſt him.

If you deſtroy this Power of Coercion, you deſtroy the Credit in Trade; for if the Man cannot be credited, he cannot buy; and if the Tradeſman cannot arreſt him, he will not ſell.

This particular Caſe merits to be very well obſerv'd; and there is more Weight in it than perhaps appears at firſt View.
  • 1. I ſay if the Buyer cannot be truſted, he cannot buy, that is to ſay, he cannot buy at that time; he will make ſhift for a while, will wear his old Clothes longer, go without ſuch or ſuch fine things for himſelf, or Wife, or Children, and abate in his Expence, becauſe he has not Money to buy, and the Shop-keeper will not truſt him.

    Even the Drunkard will abate his Liquor, if the Alehouſe or Tavernkeeper will not admit him to ſcore; abundance of Luxury and Gaiety, as well in Food as fine things, muſt abate for want of ready Money; whereas Men will venture to buy if they have Credit with the Tradeſman.

    To ſay, let Luxury and Extravagance abate, it will perhaps reform the Town, is to ſay nothing; for the Queſtion does not lye that way: It is not whether the Luxury will abate, but will our Trade abate or not; if the Trade abates, as it certainly will, my Argument is good.

  • [Page 19] 2. On the other hand, if the Buyer cannot buy, the Seller cannot ſell; then his Stock lyes dead on his Hands, the Money for it, and for which perhaps he has been truſted himſelf, grows due, and he cannot pay; he had better ſell, and give ſome Credit; but he is afraid to do that, becauſe if his Debtor refuſes to pay, he cannot force him to it. In ſhort, he muſt truſt, or ſhut up Shop, and break; and thus if a LAW ſhould be made to prevent arreſting the Perſon of the Debtor, you at once deſtroy Perſonal Credit and ruin the Tradeſmen.

I remember an Attempt ignorantly made, (as it appear'd afterwards) even by the Tradeſmen themſelves, to deſtroy this Petty Credit: The Shop-keepers mightily affected to write over their Shop-Doors, No TRUST BY RETAIL. But the Conſequence ſoon appear'd, to the opening their Underſtandings; for Thouſands of Buyers, who laid out their Money freely, and who, tho' they might not always pay down upon the Spot, yet paid tolerably well, went from their Shops, and bought where they knew they could be truſted.

[Page 20] In a Word, any LAW which abates Petty Credit, or Truſt by Retail, will be fatal to TRADE, and would give ſuch a Blow to our Commerce in general, as it would be impoſſible for all our Heads put together to retrieve.

Therefore if we will ſupport Trade, we muſt encourage Petty Credit; and if you will ſupport Petty Credit, you muſt not take away the Security to the Creditor; the Security of the Tradeſman's truſting his Neighbour is the Power he has by Law to enforce his Payment, and of arreſting and impriſoning the Debtor if he fails or refuſes: The Law is the Tradeſman's Security, and if you take away the Law, which is his Security, you take away his Trade.

What is the Reaſon why in Scotland, and in other Countries, they have ſo little Trade? 'tis becauſe you cannot enforce your Demand of Debt, you can't ſend the Debtor to Priſon; and therefore no Man buys till he has Money to pay; if you will impriſon the Debtor, you muſt allow him a Maintenance, or he will come out before your Face.

[Page 21] It may be true, that there is ſome Humanity in ſuch a Law, but I cannot ſay there is any Policy in it; for it overthrows perſonal Credit, and that in effect ſinks Trade, leſſens the Conſumption of Goods, and ruins the Tradeſmen themſelves: I cannot but think it were much better to have an Act of Mercy every Year, to releaſe poor Inſolvents upon reaſonable Conditions, than not have it in the Tradeſman's Power to impriſon them when they do not pay; for this Mercy will not be ſo prejudicial to the particular Creditors, as the other would be to the general Credit.

It is our Buſineſs to increaſe our Trade to the utmoſt by all lawful Methods; nay, wiſe Men in Commerce tell us, ſome Errors, even in Morality, had better be wink'd at, than the Trade be ruin'd, or than any general Head of Trade be impair'd; the Meaning is, that, in ſome Caſes, even our Luxury or High-living, I do not mean our Drunkenneſs and Vice, is ſo eſſential to our Trade, that it were better continued, than be entirely ſuppreſſed, the Trade would ſuffer ſo much.

It muſt be confeſs'd, a Set of Sumptuary Laws, as they are called, to reform our Extravagancies in Equipages and Dreſs, Houſe-Furniture [Page 22] and Diet, would effectually ruin our Commerce, ſtarve and leave unemploy'd our Poor, and reduce the whole Nation to a moſt deplorable Condition of Miſery and Diſtreſs.

It would be the like, in Caſe of a Stop to Credit, for it would be an Abatement of the Conſumption in all Sorts of Goods, as well our Manufactures and Home Product, as our importation from abroad; for as the laſt Conſumer is the Life of all, if Credit abates, he abates his Expence, and buys leſs; conſequently Trade declines, and leſs is conſumed. By Credit here, that I may explain Things as I go, I muſt be underſtood to mean not publick Credit, I have nothing to do with that Part here; but perſonal Credit, the ordinary Credit given by one Tradeſman to another, as well in wholeſale Dealing and Merchandizing, as in Retailing from the Shopkeeper to his Neighbours and Cuſtomers, and indeed chiefly the laſt; for on that does the Wholeſale Part depend.

Upon this Foundation I build the Conſequences which I inſiſt upon, as above; this Truſt by Retail, this petty Credit entirely depends upon the Right which every Citizen, thus ſelling his Goods to his Neighbour upon [Page 23] his Word, that is, upon his perſonal Credit, has by Law to ſue, arreſt, impriſon, and keep in Priſon his Debtor, if he delays or refuſes to pay the Money when it is due.

If you take away this Right, you take away the Credit; for no Man will ſell his Goods upon a Faith which the Debtor is not obliged to keep.

It is a great Miſtake to ſay, perſonal Credit is given upon the Honour and Faith of the Debtor; the caſe is quite otherwiſe, the Credit is given to the Law; 'tis my being able to proſecute the Debtor in a Courſe of Law, and (as we call it) make him pay me, that encourages me to truſt him; and therefore 'tis the ordinary Enquiry of a Tradeſman, when he would inform himſelf about a Man he deals with, not whether he be honeſt, but whether he is able; if you tell him he is a Knave, and won't pay any body if he can help it, O, ſays the Tradeſman, I don't value that; I am willing to get off the Goods, and if he is able, I'll venture; for I know how to make him willing.

Nor does any Part of this Diſcourſe, to repeat it again, tend in the leaſt to prevent our Tenderneſs to any of theſe Debtors who [Page 24] are thus impriſon'd, if by Diſaſters, Loſſes, Misfortunes, or any viſible Accident they are render'd really poor and unable, but that ſuch ſhould always be reliev'd; and if the Creditor be cruel and inexorable, as ſome perhaps will always be, the Parliament will, on all juſt Occaſions, of which alſo they are the proper Judges, deliver ſuch Inſolvents by Acts of Clemency and Grace, as they do now, and no Chriſtian Tradeſman can, I think, repine at their commiſerating and relieving unfortunate, tho' otherwiſe honeſt Inſolvents.