These Courts lead as it were a double life. They have extended their energies along two different branches of business. Each Court has become a huge debt-collecting machine for minor tradesmen and at the same time has developed into an important and trusted tribunal for deciding disputes between citizens. Both these functions are important ones, but the two branches have nothing to do with each other. In the debt-collecting branch the cases are, for the most part, undefended; in the other branch the cases are nearly all fought out. In the first branch the judicial work is unimportant, the machine works automatically; in the second branch the vitality of the Court depends almost entirely on the quality of the judicial work.
In considering the future of the debt-collecting branch of the Court it will be necessary to consider the whole question of imprisonment for debt, which is the ultimate sanction of the business. The point to be considered is, I think, How far is it right for the State to provide a machine to collect the class of debts that are, in fact, collected by the County Courts? The point is a practical one, for if imprisonment for debt were abolished or mitigated, a great deal of the work of the County Courts would undoubtedly fall away, leaving reasonable time at the disposal of the Courts to try cases under the present extended jurisdiction, and possibly making room for a further extension, if that were thought desirable.
Let me try and describe the present system in a few words. A grocer, draper, or jeweller hands over to a debt-collector a large number of debts to collect; the customers are, from a business point of view, the “undesirables.” The debt-collector makes some effort to collect the debts outside the Court, and then issues a batch of summonses against all who are or pretend to be impecunious. It is no uncommon thing for one collector to issue a few hundred summonses in one day. On the day of trial the cases are either undefended, or the wife appears and consents to judgment, and an order is made of so many shillings a month. The defended cases are, I should say, less than five per cent. of the total summonses issued, and those successfully defended are a negligible quantity. In Manchester and Salford, where we used to divide this class of work from real litigation, the lists were seldom less than 400 cases a day. When the judgments are obtained, the duty of the defendant is to pay the monthly instalment into Court, and a ledger account is opened, the Court becoming a sort of banker for the purpose of collecting and paying out the money. Whenever the debtor fails to pay an instalment, the collector is entitled to take out a judgment summons, calling on the debtor to show cause why he should not be committed to prison for non-payment. On proof that the debtor has means to pay, or has had means since the judgment, the judge’s duty is to commit him to prison.
Two things are clear about this system. It is not a system of deciding disputes, but a system of collecting debts, and in the cases of workpeople without property it could never be carried out without imprisonment for debt. When the legal reformer looks at the figures relating to imprisonment for debt, he will see at a glance that if he could get rid of a large quantity of the debt-collecting, there would be more time for the real litigation. Many people still seem to think that imprisonment for debt is abolished. In France and the United States and in most civilised countries I believe it is, but in England it is not only not abolished, but is greatly increased. The actual number of debtors imprisoned has recently decreased, owing no doubt to the fact that Judges are more and more inclined to temper the wind of the statute to the shorn lamb. But the number of summonses issued and heard increases, and there is no doubt the credit habit grows upon the working classes, and is encouraged by the system of imprisonment for debt. In 1909, the last year of statistics before me, no less than 375,254 summonses were issued. It is the commercial and domestic waste which lies hid in these figures that distresses me. They reduce me to the despair of those two immortals, the Walrus and the Carpenter, who
“Wept like anything to see
Such quantities of sand.
‘If this were only cleared away,’
They said, ‘it would be grand.’”
But ought it to be cleared away? In the main I think it should. One might lay down the principle that where the debt was not necessarily incurred the State should not assist the creditor to collect it by imprisoning the debtor. For the system is used, in the majority of cases, by a very undesirable class of creditor. I analysed a list of 460 summonses heard by me in one day. There were 284 drapers and general dealers. These include all the instalment and hire system creditors. There were sixty jewellers, thirty-five grocers, twenty-four money-lenders, and ten doctors. Now, with the exception of the doctors, and possibly in a few instances the grocers, it was not in the least desirable, from the point of view of the State, that these debts should be collected at all. Why should taxes be imposed and work done at the public expense to enable a jeweller to persuade a man to buy a watch he does not want? Why should the State collect the jeweller’s money for him by imprisonment for debt? If there had been no imprisonment for debt the jeweller’s business wouldn’t pay, and the workman would have one chance less of mortgaging his wages for the immediate delight of possessing a third-rate piece of jewellery. This would be better for the State and the workman, and for everybody but the jeweller. But why should his interests prevail over those of the rest of the community, and why should we spend money in promoting a business of which most of us disapprove? Everyone must have noticed of late years the enormous growth of firms whose main business seems to be to tempt people of small means to purchase things they do not want, or, at all events, cannot afford. Take up any newspaper or magazine circulating among the lower middle classes, or among working men, and you will find it crowded with advertisements of musical instruments, cycles, furniture on the hire system, packets of cutlery, all of which can be obtained by a small payment down and smaller instalments to follow. Remember, too, that over and above these there exists a huge army of “tally men” and travelling touts, who are pushing on commission, clothing, sewing machines, Family Bibles in expensive series, jewellery, and a host of unnecessaries. What chance has the working-man to keep out of debt? Not one of these transactions has any commercial sanction. Credit is given merely because there is imprisonment for debt. And there is a further aspect of this question which I am surprised has never attracted the attention of temperance reformers. As long as a man can get credit for groceries and clothes there is not the same urgent reason to spend his cash upon these things. But cash is necessary in the public-house, because, by the Tippling Acts, no action can be brought for the price of drink consumed at a public-house. So the obvious result too often follows: the wages are spent at the public-house, and the credit for the week’s groceries and the children’s boots is obtained under the sanction of imprisonment for debt.
Much more might be said in objection to the system of imprisonment for debt, but we have enough before us, I think, to show a strong case for reform. The next question will be: Should that reform be abolition? Although I am personally in favour of the abolition of imprisonment for debt, I am in doubt whether it is desirable at the moment; and I am so eager to see some reform that I would welcome any measure, however meagre, that did something to mitigate the misfortunes of the insolvent poor. I have suggested as a practical measure that no summons should be issued or committal made for a less sum than forty shillings. One must remember that there are a huge number of traders giving reasonable credit to their fellow-traders, who find, when they seek to recover the debt, that the goods in the house or shop are in the wife’s name. This is really a quasi-fraudulent obtaining of credit, and there are many similar cases not within the criminal law where imprisonment for debt seems a natural remedy. Moreover, if one studies the evidence given before the Commissioners on the subject, and if one discusses it, as I have, with men in business, one finds that abolition would meet with great opposition from powerful trade interests, whereas the “forty shilling” proposal is generally regarded as a fair experiment, which would injure no one but traders who deliberately give credit to the poorer working class under the sanction of imprisonment for debt. In my own experience, I have found hardly any cases of judgments summonses taken out for more than two pounds where there was not ample evidence of means, and where the non-payment was not more or less of the nature of a contempt of Court. In the smaller cases the means, though proved to have existed since the judgment, have disappeared, and the debtor is only saved from imprisonment by the leniency of the Court. Total abolition of imprisonment for debt would probably never be carried by consent. It would mean more commissions, inquiries, reports, and the waste of time that these things necessitate. Abolition of imprisonment for debt for sums under forty shillings—a great practical reform for the very poor—would, I believe, be carried by consent. That is why I put it forward. It is utterly illogical but intensely practical; and when one has been face to face with the misery of others for many years, one cares more for business than logic.