Scotland in the nineteenth century

2. Crime and punishment

Section 2.4: Debt

"to inquire into the effects which have been produced by the Acts 53 Geo. III, c.102, and 54 Geo. III, c.23, for the relief of insolvent debtors in England, and to report their observations thereupon to the House..."

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Although the main subject of the inquiry was the effect of the Insolvent Debtors (England) Acts of 1813 and 1814, the Lord Advocate of Scotland, who was a member of the Committee (pp. 52-54 and p. 56), gave an explanation of the law concerning debtors in Scotland. He discussed the powers of the creditor to arrest and imprison a debtor. After the debtor had been imprisoned for a month, he could raise a suitor process, called a process of "cessio bonorum", in the Court of Session, he had to call all his creditors as defenders in that process. If he could prove that he had fallen into debt "through innocent misfortune", he could obtain the benefit of the Cessio. He had to grant all his subject and effects, heritable and movable, to his creditors and he was then released from prison. In some cases, the court refused the benefit of Cessio to persons who had become insolvent through their own extravagance.

"appointed to take into consideration the state of the law respecting the discharge of insolvent debtors..."

The Committee agreed with the principle that a debtor ought to he released from custody on making a bona fide division of all his property amongst his creditors, except when his conduct had been fraudulent. The application of the law had been unjust in some cases. They recommended that a new Act should be substituted for the existing Acts, in which provision should be made for a more accurate examination into the accounts of the debtor and the claims of his creditors by the appointment of two Commissioners instead of one. In addition, the preliminary examination should take place outside the Insolvent Debtors Court, the debtor's property should be delivered into the hands of an assignee within a shorter period if he chose to take benefit of the Act. In addition, the creditors should be empowered to oppose the discharge of the debtor, all fees and stamps should be abolished in the Insolvent Debtors Court, only regularly admitted attornies should practise as agents in the Court, and more effectual provision should be made to render any property which the insolvent might acquire after his discharge liable to the debts which he had previously contracted.

Robert Graham, a lawyer in Scotland (pp. 58-64), explained the process of "cessio bonorum" whereby a debtor who had been in prison for a month might be set free by a decree of the court on proving that his insolvency was a result of misfortune. The creditors were notified that the debtor had applied for cessio bonorum and were given the opportunity of making objections. All the debtor's property, real and personal, was divided among the creditors. Furthermore, his future estate continued to be liable to the demands of his creditors. He thought one of the main advantages of the Scottish law was the facility with which creditors could attach the property of debtors.

If a debtor was convicted of fraudulent conduct, on the other hand. he remained in prison. The creditor was compelled to provide aliment for the debtor whom he had imprisoned, if he had no other means of subsistence. Consequently, few debtors were detained in prison indefinitely.

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It was common practice in most Scottish burghs for persons freed from jail under the Act of Grace to pay fees to their creditors at whose instigation they had been imprisoned, although this was not required or authorised by law. Fees were also payable to the town clerk in process of ailment under the Act of Grace and jail fees were claimed to cover the expense of fire, bedding, light and attendance on prisoners.

A copy of the regulations of the jail of Inverness followed this statement.

The report gives the number of debtors imprisoned, the place of imprisonment for each county and the amount of the debt. The Scottish counties (pp. 30-35).

"to inquire into the subject of imprisonment for debt by county court judges."

The Committee considered the Debtors Act, 1869 and the Bankruptcy Act, 1869, and found that the law in England was unnecessarily severe on those owing small sums. There was much divergence of opinion over the question whether imprisonment for debt should be abolished altogether. In Scotland, imprisonment for civil debt for small sums, i.e. under £100 had been abolished. The Scottish law of arrestment of wages, however, which applied to labourers, farm servants, etc. deterred these people from incurring debts.

George Anderson, M.P. for Glasgow (pp. 37-47), had introduced a Bill for the abolition of arrestment. This Bill was modified and the Arrestment of Wages Limitation Act, 1870, stated that wages under 20 shillings a week should not be arrestable. Mr. Anderson reported "one of the greatest effects my bill has is to emancipate the poor female population from arrestment of wages." Factory girls were perpetually in debt and their wages, therefore, often arrested.

The Committee recommended that imprisonment for debt should be completely abolished.

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"The Select Committee ... have considered the said Bill ... and made amendments thereto: and have amended the title, as followeth: A Bill to abolish imprisonment for debt, and to provide a better punishment of fraudulent debtors in Scotland, and for other purposes."

The Committee recommended severe statutory penalties for specific frauds. They recommended that imprisonment for civil debt should cease and a form of compulsory bankruptcy should take its place.

The Committee disliked the use of imprisonment for failure to support an illegitimate child or children. They also criticised the Act of Grace which made a creditor responsible for the aliment (i.e. feeding and upkeep) of his or her debtor if the debtor had no means of supporting himself in prison. If the creditor failed to provide aliment the debtor was discharged.

Calvin S. Alston, Acting Governor of Glasgow Prison (pp. 108-113), was in favour of abolition. Glasgow Prison housed more civil debtors than all the other Scottish prisons put together. He believed imprisonment for debt carried a greater stigma in Scotland than in England and had a detrimental effect on the habits and morality of the debtors. Penniless debtors were forced to pick oakum alongside the common criminals in return for prison food, while those with concealed funds could have meals sent in from restaurants and every other luxury except spirits, wine and tobacco! "Literary men have books and then they have all the papers of the day. We have a hall where they can meet and read, and they are also allowed to play at draughts and chess... Outside we have a little square where they play at 9 pins" (para. 2046).

Hubert Gray McLennan, an ironmonger who had been in Edinburgh Prison for debt (pp. 114-124) told of several sad cases, including an apprentice, still in his teens, imprisoned for breaking his contract, a man who died soon after his release as a result of damp conditions and a young man sued for breach of promise by a vindictive lady who passed the prison each day to gloat and make "overtures of hostility."

Appendix no. 5: Statistics of imprisonment for debt in Glasgow (pp. 152-154).

"ordered that the Civil Imprisonment (Scotland) Bill be read a second time, and committed to a Select Committee."

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The Committee was mainly concerned with the question of alimentary debtors, i.e. those who failed to maintain their wives and families. They decided that imprisonment for non-payment of alimentary debts should not be abolished but amended. Any sheriff or sheriff-substitute should commit anyone who deliberately failed to pay aliment to prison for up to six weeks or until the debt was paid. Imprisonment should not, however, be a substitute for repayment. The warrant of imprisonment could be renewed at intervals of not less than six months against the same person concerning the same sum or sums of aliment. The Committee thought that failure to pay alimentary debts should not be classed as a crime but as a breach of civil obligation.

The question was further complicated by the fact that debtors had the right to claim aliment from the creditor whilst they were in prison. In practice, this often meant that when a man was imprisoned for failing to maintain his illegitimate child, the mother of the child became liable to pay more of the father's weekly aliment in prison than she was entitled to for the child. Cases of failure to pay alimentary debts very rarely arose between husbands and wives.

It was suggested that the state, rather than the creditor, should be liable to provide for the maintenance of a debtor whilst in prison. Some witnesses suggested that alimentary debtors should be treated as criminals whilst in prison and should, therefore, be required to work. The Committee recommended that those imprisoned for debt should be subject to the prison rules applicable to prisoners committed for contempt of court.