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Decisions of the Superior Courts of New South Wales, 1788-1899

Imprisonment for Debt, Rules [1834] NSWSupC 16

imprisonment for debt, rules - imprisonment for debt, gaol conditions - imprisonment for debt, campaign against

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 1 March 1834

Source: Australian, 3 March 1834[1 ]

By order of the Chief Justice, the Clerk of the Court, Mr. Gurner, read the following rule of Court:-

Whereas by reason of the confined limits of the public gaol prison in Sydney, and the crowded state of the apartments assigned for the use and custody of persons confined therein, it is expedient to enlarge the limits of the said prison, by appointing fit and suitable places in the vicinity thereof, to be within the rules of the same.  It is therefore ordered by the Court, that from and after the 1st day of March, in this present year, 1834, the rules of the prison in Sydney shall be comprised within the bounds following - that is to say, all that part of George-street, exclusive of the houses on each side thereof, which lies in front of this prisoner, and leads to Essex-street; so much of Essex street, exclusive of the houses on each side thereof as leads to Prince street; all that part of Prince street which lies between Argyle street at the one end, and the space leading to Charlotte Place, at the other end thereof, together with so much of the open space, called Charlotte Place as leads to St. Philip's Church and the Scots Church, and also all the houses (excepting public houses) on each side of Prince-street, and the said respective Churches.  And it is further ordered, that all tavern and victualling houses, and ale houses licensed to sell spirituous liquors, or of public entertainment, shall be excluded out of, and form no part of the said rules of this prison.  And it is further ordered, that all prisoners who are or shall be committed to the Sydney prison, either upon mesne process, or in execution upon any action or suit, or for contempt in civil process, shall be actually detained within the said prison, or the rules thereof, as hereinbefore limited, and defined, until they shall be from thence discharged by due course of law.

 

Source: Australian, 3 March 1834

 

Imprisonment for debt where there is no intention of flying from the country where it is contracted, and where there has been nothing immoral or fraudulent in the mode of contracting such debt, has always appeared to us an infraction of the laws of nature, and we had as a token of advanced civilization every fresh enactment which places the person of the honest debtor less at the disposal of his creditor.  But at the same time we would be very strict in our application of the term ``honest debtor;" for if there is a shade of fraud or misrepresentation in the transaction from which the debt accrued, or a particle of violence or vindictive feeling in the act for which a party recovers damages against another, or if there is any just reason to suspect that the defendant meditates escape, then we consider corporeal restraint a just and fitting penalty.  On the other hand if the debt arose from improvidence, if there were no concealment of circumstances, and the imprudence of the creditor in giving credit were equal to the improvidence with which it was accepted, then we consider it unjust to fetter the debtors limbs, if he is ready to do all in his power to satisfy the debt.  It would be far more reasonable in our opinion, and more consistent with natural justice to revert to the customs of antiquity, and make the debtor the servant or slave to his creditor for a period proportioned to the amount of his claim, than to lock him up in a Gaol where his life and labour are of no use to any one.

We are nevertheless very sceptical whether the new rule of the Supreme Court which appears in our law Report affixing limits around the Gaol for debtors to be confined within, upon the principle of the Rules of the King's Bench at home, will be found beneficial in this Colony.  We look upon it indeed not in the light of a relief to the debtor upon the principle we have discussed, for in fact it does not touch the question of confinement for debt in the abstract, but as a release from the filth and the horrors and abominations of the Sydney Gaol.  As such we consider the appointing of rules for debtors a humane and merciful regulation.

But regarding it in any other light we prognosticate that it will prove `ere long an intolerable grievance to the honest trader, and a fruitful source of annoyance to the Sheriffs department.  Has it not already been seen that the usual class of debtors in this Colony care not a straw for three months confinement in the Gaol. - that they threaten their creditors with the Insolvent Act, the penalties of which they can readily evade, - and is it likely that if the walls of Sydney Gaol, have no horrors for them, that the circuit of a mile around them will?  We suspect not.  But as the rule is passed we should strongly recommend that what is called the compulsory clause of the insolvent law should be enforced, otherwise we shall see plenty of debtors with ample incomes, derived from sources which the creditors cannot reach, living in luxury, as many of the same class do in London, enjoying the cool breeze in Princes Street, and treating their creditors with ridicule and scorn.

 

Notes

[1 ] ``Rules" was an English concept, inherited from the management of the great debtors' prisons of London.  It was an area surrounding the prisons, in which the prisoners could live while formally remaining prisoners for debt.  Along with insolvency laws, this was a primary way in which the harshness of imprisonment for debt was mitigated.  Debtors in the Rules were able to live almost normal lives, and to earn a living.

 The Australian reported the following on 17 February 1834: ``His Honor the Chief Justice, accompanied by the Sheriff, paid a visit to Sydney Gaol on Friday afternoon.  The object in view it was understood, to be the state of the debtors wards, preparatory to granting rules the same as the King's Bench in England.  The rules here, it is said, will extend the length of Prince-street, including the Scots Church Church [sic] and St. Phillip's Church, so that they may be enabled to attend them."  See also Sydney Gazette, 4 March 1834.

Another way to lessen the law's severity was to allow debtors to leave the gaol for short periods: this was done by prison officials on the lodging of security and was sometimes called a run on the key.  A notice in the Sydney Gazette, 7 May 1827, said that there were now apartments in the Sydney gaol for debtors and that no one may leave the prison without a special rule of the Supreme Court.  This may have referred to a local practice of a run on the key.

Imprisonment for debt was subject to fierce controversy in England in the 1830s, as was known in New South Wales.  The Sydney Herald on 30 May 1833, published an article from an English newspaper on the alleged cruelty of imprisonment for debt of small debtors.   See also Australian, 1 August 1834.

There was debate about it in New South Wales as well.  The Australian reported on 21 October 1829 that it was opposed to imprisonment for debt altogether (and see its issue of 13 November 1829). 

On 25 November 1833, the Australian published a bill for the abolition of imprisonment for debt.  Three days earlier, it had reported that the Solicitor General had introduced the bill; the Australian also discussed the relevant principles.  Chief Justice Forbes was involved in an earlier attempt to reform the law: on 2 February 1828, he sent the governor a draft bill on civil arrest (Chief Justice's Letter Book, State Records of New South Wales, 4/6651, p. 135).  For local legislation, see Australian, 31 March 1825.

In 1834, there was a new rule of court that a debtor imprisoned on the mesne process (before judgment on the merits of the case) was to be charged in execution within one month of judgment, or released: Australian, 4 July 1834.  In 1829, Forbes C.J. made new rules for the gaol, including the treatment of imprisoned debtors and the classification of prisoners: Sydney Gazette, 28 March 1829; Australian, 31 March and 2 April 1829.  On changes to the law in Van Diemen's Land, see Australian 3 February 1827; 12 February 1831.

Civil prisoners often complained about conditions in gaol.  One of their objections was that their female visitors were frisked for liquor: Australian, 7 February 1834.  In 1836, an imprisoned debtor died of illness in Carter's Barracks, which were then used as the debtors' prison: Australian, 25 October 1836.  At times the barracks were grossly overcrowded: the Australian reported on 11 October 1833 (and see 21 October 1833) that there were 42 of them in a place meant for half that.

There were also complaints about the conduct of imprisoned debtors.  In 1831, some of them were found to be so outrageous that some of them were lodged in the "black hole": Sydney Herald, 16 May 1831.

Writs of civil arrest could also be used for other purposes.  For instance, attachments against Patrick Moore, Rose Moore and Peter Dillon for resisting and obstructing the Sheriff's officers in attempting to arrest Peter Moore were made under capias ad satisfaciendum: Australian, 16 September 1834; Sydney Gazette, 16 September 1834.  (This writ was used for imprisonment of judgment debtors.)  The Gazette said that this was the seventh writ issued in the case and that the defendant had used dogs and in one instance a gun to escape capture until he was caught under one of the old ones.

Published by the Division of Law, Macquarie University