BAR EXAMINATIONS. Easter Term, 1874. HINDU AND MAHOMMEDAN LAW, AND LAWS IN FORCE IN BRITISH INDIA.-The Council of Legal Education have awarded to:-Montagu Clementi, Esq., of Lincoln's Inn, a certificate that he had satisfactorily passed an examination in the subjects above mentioned. GENERAL EXAMINATION.-The Council of Legal Education have awarded to:-John Channon Lee Bassett, Esq., of the Inner Temple; Anada Mohan Bose, Esq., of the Inner Temple; John Brumell, Esq., of the Middle Temple; Sebapathi Iyah Cumbumpati, Esq., of Lincoln's Inn; Ernest Eiloart, Esq., of the Inner Temple; Ernest Badinins Florence, Esq., of the Middle Temple; William Erskine Foster, Esq., of the Inner Temple ; Graves, Samuel Haughton, Esq., of the Inner Temple; Edward William Hawker,, Esq., of the Inner Temple; Arthur Jepson, Esq, of Lincoln's Inn; Charles Edward Jones, Esq., of the Inner Temple; Ashley Henry Maude, Esq., of Lincoln's Inn; Douglas Metcalfe Metcalfe, Esq., of the Inner Temple; Thomas Stewart Omond, Esq., of the Inner Temple; Thomas Alfred Spalding, Esq., of the Middle Temple; and Robert William Taylor, Esq., of the Middle Temple; certificates that they have satisfactorily passed a public examination. The Council have also awarded studentships in Jurisprudence and Roman Civil Law, of 100 guineas, to coutinue for a period of two years, to Robert William Taylor and Richard Meares Sly, of the Middle Temple; and a studentship in Jurisprudence and Roman Civil Law, of 100 guineas, for one year, to George Edward Septimus Fryer, of the Inner Temple. APPOINTMENTS. Mr. A. Stavely Hill, Q.C., M.P., has been appointed Deputy High Steward of the University of Oxford; Mr. E. M. E. Welby, Stipendiary Magistrate of Sheffield; Mr. J. H. Graham, solicitor, has been appointed Chief Clerk to the Lord Mayor at the Mansion House Justice Room; Mr. Thomas Lamb, Clerk of the Peace for the Borough of Andover; Mr. Arthur Ireson, jun, Clerk to the Justices of the Peace for the Borough of Kingston-upon-Hull; Mr. A. C. L Glubb, Coroner for Liskeard; Mr. William Wallis, solictor, Coroner for the Borough of Newark. Trinidad. -Mr. Henry Ludlow has been appointed Attorney-General. THE LAW MAGAZINE AND No. VII.-VOL. III.-JULY, 1874. ON THE ABOLITION OF IMPRISONMENT FOR DEBT.* ONE By PROFESSOR LEONE LEVI, F.S.A., F.S.S. NE of the most difficult problems of practical legislation is how to reconcile the claims of private right with proper regard to the interest of the great community. The interest of the people in the aggregate, said Benthem, in their character as suitors, is that as few debtors as possible should go to gaol and that as little as possible of the mass of property at the disposal of the judges should perish, or be lost to the parties entitled to it. Yet, for debts comparatively of an insignificant amount, 7,000 to 8,000 persons a-year are still imprisoned by county-court judges, and all they have and all they might earn, at least during the time of their imprisonment, is thereby lost to themselves, to the creditors, and to the entire community. For the protection of a foreign trade, amounting to some £600,000,000 a year, of a home trade of twice or thrice that amount, of bills of exchange and promissory notes constantly in circulation for some three hundred millions, and of cheques cleared at the clearing-house of some five thousand millions a year, imprisonment for debt has been abandoned. For the protection of credit in the smallest transactions, a large portion of which is absolutely prejudicial to the parties interested, imprison A paper read at a recent meeting of the Law Amendment Society. ment is still practically maintained, and the simple threat of the same is deemed to be its best security. Montesquieu said that in civil suits the law should not grant imprisonment for debt, because the freedom of a citizen is of more importance than the welfare of another, but that in commercial suits the law should consider the public good of more consequence than the freedom of the citizen. Singularly enough, British jurisprudence has pursued precisely the opposite system. Whilst it has abolished imprisonment for debt for the protection of transactions of a commercial character of £50 and upwards, it has retained it for transactions generally of a civil character for sums below that amount. Is it right, is it expedient that the present system of imprisonment for debt should be maintained? Doubtless, it is one of the first duties of a civilized State to maintain private right and to uphold the sacredness of private contract. If it be found, however, that as a remedy imprisonment for debt exacts more than is adequate to the protection of the rights of the creditor, and consequently than he is entitled to have, that it has a tendency to confound a civil with a criminal wrong, the debtor being kept in the common gaol with the malefactor, that the exercise of such remedy is attended with considerable expenditure, often exceeding in amount the sum claimed, that it is liable to great abuse, and that it is productive of evil rather than good to large numbers of the people, then it becomes the bounden duty of the State to refuse such a remedy. Imprisonment is no part of the contract, and simply to release the prisoner would not impair its obligation, but leave it in full force against his property. Judging from the persistency with which the Legislature has now for many years sought to abolish imprisonment for debt, and the abuses of which have been so well exposed by the prince of modern novelists, we might have expected that the system had long ago been abandoned; but reforms ripen very slowly, and after what has been done in this direction there is yet a modicum of abuse which needs a bold hand to sweep away. According to the old law, not indeed the common law, for at common law there was no remedy for simple debt beyond attaching the debtor's goods, but by statute dating from the commencement of the sixteenth century, a debtor was liable to be arrested by a creditor upon an affidavit made by any other person-it might have been his own clerk-that the debtor owed him £20. It was entirely an ex parte proceeding, and it was in prison, and as a culprit, that the debtor had to wait for the judgment, though at that time imprisonment extinguished the debt. Happily, one of the first benignant Acts passed soon after the accession of Her Majesty (1 & 2 Vict. c. IIO) was to abolish arrest or mesne process, and to place imprisonment for debt at the discretion of the court rather than at the caprice of the creditor. In 1844, by the 7 & 8 Vict. c. 96, imprisonment on final process for a debt not exceeding £20 was abolished, except in case of fraud. One year after, by the 8 & 9 Vict. c. 127, power was given to the court in cases of judgments not exceeding £20 to summon the debtor to show cause why he should not be committed for disobeying the order of the court. And when the County Courts were established in 1846, by the 9 & 10 Vict. c. 95, with a jurisdiction over claims up to £50, imprisonment was allowed to be granted in either of the following five cases, viz.-If the party summoned should not attend as required; if, attending, he should not disclose his estate and effects; if it should appear that he had obtained credit under false pretences or by means of fraud or breach of trust; if he had made away with or concealed his property, or if it should appear to the satisfaction of the judge that the party so summoned has or has had, since the judgment was obtained against him, sufficient means and ability to pay the same, and that he refuses or neglects to do so, pursuant to the order therein contained, whilst in no case imprisonment was to extinguish the debt. In 1859, by 22 & 23 Vict. c. 57, imprisonment for failure of attendance at court was abolished. In 1861, when insolvency and bankruptcy were amalgamated, all persons imprisoned for debt were enabled to obtain their discharges from prison through the court of bankruptcy. And in 1869, by 32 & 33 Vict. c. 62 again the Legislature pronounced itself definitively for the abolition of imprisonment for debt, except, however, in cases 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." Other exceptions to the abolition of imprisonment for debt were made by that Act, as in default of payment of a penalty or of a sum recoverable before a justice of the peace, or for payment of costs, as in matters of bankruptcy; but those relating to fraudulent acts, included in the statute of 1847, were not reenacted, partly because they came under the provision of the Fraudulent Debtors' Act of the same year, and partly because they are already met by the criminal law. It is difficult to say what is the real ground on which imprisonment for debt is now defended. When slavery was a recognized institution the debtor was made to answer in his person for his engagement, and his body was given in pledge for his debt. By the Roman law of the Twelve Tables it was ordained that insolvent debtors should be given up to their creditors to be bound in fetters and cords, whence they were called Nexi, Obærati, et Addicti. But since slavery ceased, the creditor can no longer either sell the debtor as an indemnity or command his labour as compensation. This ground, therefore, has utterly failed. For purposes of precaution, lest the debtor should evade the performance of his obligation, imprisonment for debt might seem more reasonable, but a means of coercion solely applicable to crime ought never to be applied to the mere non-payment of debt, which, till otherwise proved, may be the result of simple misfortune or of causes beyond the control of the debtor. As a means of compulsion, also, imprisonment for debt is often unjustifiable, since the law ought never to compel the performance of what may prove an impossibility. If imprison |