As part of my avowed intention to explore the experience of financial anxiety during the 1840s, my eye was attracted to this little morsel in the Port Phillip Herald of 10 May 1842:
SHARP PRACTICE. A rather novel mode of obtaining the payment of a debt from an insolvent, has just come under our notice. A gentleman of our acquaintance, whose change of fortune from affluence to indigence occasioned him so much excitement as to materially effect his intellect, and to leave him at times in a state of perfect imbecility, was a few days since arrested by the Deputy Sheriff at the suit of a Sydney creditor. Having found the necessary bail he was allowed to occupy a tenement within the Rules. He had not been many days in confinement before his spirits were so materially afflicted as to bring on the malady before alluded to, and under which, we regret to state, he still labours. In this fit of nature he proceeded to the wharf, but in less than half an hour returned to his prison, thus stepping out of the limits laid down for his safe incarceration. Having been seen outside the Rules, a party acting as agent for the Sydney creditor, forthwith instructed his solicitor to write to his bail, informing them that as the debtor had exceeded his limits he should hold them liable for the account of the debt and costs, which are very considerable. Now, for the honor of the Province, we hope such a case will never be brought before a court of justice, for sharper practice we never, in the whole career of our colonial experience, heard of…. An application is about being made to the Judge to release the unfortunate man from confinement upon the score of insanity, and if his Honor has the power, who can doubt his will to extend such an act of mercy?
Well, I’m now mid-way through June 1842, and I haven’t seen any public applications of mercy to the Judge, but perhaps such things did not occur in open court. I, at least, do wonder about his will to extend such an act of mercy. Perhaps he’d decide that this was another case of dishonesty and dissembling that he had to “sift to the bottom”: but, then again, perhaps not. It was exactly this unpredictability that made his courtroom even more anxious than it had to be. Which Judge Willis would be sitting today?- merciful Willis? or avenger Willis?
A number of things to remark on here:
1. The Port Phillip Herald is being particularly kind in their reportage of this case. Certainly, they have not held back at all when insolvents have absconded, or indulged in their own “sharp practice” to avoid their debts. Perhaps the key lies in that this is a “gentleman of our acquaintance” rather than a speculator, embezzler or rascal, as they could have just have easily designated him.
2. This is one of the first references I have found to insanity caused by insolvency. There are certainly references to insanity and suicide:indeed, the very next issue of the Port Phillip Herald referred to the putrid bodies washing up against the wharf at the end of Elizabeth Street. (I wonder if it was, in fact, this gentleman? I haven’t seen any further mention of him.) There are many coronial inquests into women, in particular, throwing themselves into the Yarra. I wonder what stories lie there.
3. Although there was a strong belief in “British justice”, legislation particularly prior to the 1850s varied between colonies and was not necessarily the same as in England. This was true of the Insolvency Act in New South Wales, which differed from the English insolvency laws in many fundamental respects. The legislation was drafted by Justice Burton in 1841and allowed all debtors to take advantage of bankruptcy provisions. Instead of imprisonment, as under the English act, debtors’ assets were distributed to their creditors, allowing them to resume business quickly. Unlike the English law, the legislation did not emphasize morality- possibly because it was drafted at a time when many otherwise ‘moral’ people were facing insolvency. Imprisonment for debt was abolished in NSW in 1843 (i.e. after this vignette), predating similar changes to the English law by 26 years. Justice Willis, however, was critical of Burton’s legislation (perhaps because it was Burton’s legislation and not his own???) and preferred the English approach.
4. The ‘rules’ were instituted by Justice Willis almost as soon as he arrived in Port Phillip, initially in response to the severe overcrowding in the very small jail. Rather than being sentenced to jail, minor offenders, bail applicants and insolvents, could be ‘confined to the rules’, which took up quite a large area of the built-up area of central Melbourne.
Bear in mind that at this time, the major development was located mainly along the Collins Street and Elizabeth Street area, rather than eastward along Swanston Street which, although probably regarded as the main thoroughfare through Melbourne today, was almost bushland in the early 1840s. Confinement to the rules was often not a particular hardship: many people who were declared insolvent actually lived in the area, although it appears that our belaboured gentleman didn’t as he had to rent a ‘tenement’ specially.
5. Finally, we have to trust to our own empathy and imagination to flesh out this little vignette. We can imagine him standing on the river bank, watching the river swollen with winter rains, weighing up his options, torn between loyalties and honour, then turning away and walking along the unpaved streets back into the rules again.
The Resident Judge of Port Phillip 