418. Does anything strike you that you would wish to add upon the subject? Joshua Evans, Esq. No. 6th May 1853.

419. Do you consider that the tendency of the classification of certificates has been to keep bankrupts out of Court?

I do. The great majority, I am sorry to say, so far as I can hear, do not care what class they get, so that they get a certificate, that is, the great mass. It is the man of feeling, who may have committed a very gross error, but who intends afterwards to take care that he does not repeat it, that suffers: these are the men who suffer, and these sort of men will do anything rather than come into Court, where they may have a third-class certificate.

420. Chairman.] The Act of Parliament provides for the non-granting of a certificate, the suspension of it, the granting it upon condition, and recalling it if it has been improperly obtained: as I understand the Act, there is hardly an offence that can be committed that is not already provided for, independently of the classes?

That is so.

421. Does the Act of Parliament in its provisions give you any standard by which you can judicially regulate your mind as to the class which you assign to a man?

Certainly not.

422. Is there no moral standard?

No.

423. No legal or commercial standard? No.

424. The Act says that a man shall have a first-class certificate whose bankruptcy is occasioned by unavoidable losses or misfortunes, such as a sudden fire, which he could not foresee, nor provide against by insurance, that consumed all his property, and other unavoidable things, such as the bankruptcy of a great banker, or a great merchant, with whom he was connected, over which he had no control, and in whom he could properly place confidence; that man would be entitled to a first-class certificate?

So far as that went, he may have done wrong things.

425. I am supposing his conduct such as not to come within any of the provisions of the Act, and therefore that he is entitled to a certificate? Yes.

426. Then his bankruptcy having been wholly occasioned by unavoidable losses or misfortunes, he would be entitled to a first-class certificate?

Yes.

427. That man's conduct, as a man, may not have been as pure and as good as that of the man to whom you are compelled to give a third-class certificate? There may be cases, and I have no doubt there are many cases, in which men who pay little or no dividend will have behaved better than those who pay a larger one.

428. If you take the mere dividend as a criterion; the Act does not allow you to do that?

No.

429. Because a man whose bankruptcy is occasioned by reckless conduct may in the result pay a large dividend; but the man whose bankruptcy is occasioned by unavoidable losses or misfortunes may in the end pay nothing?

Yes.

430. From your own experience, do you know, from the nature of the human mind, and looking at the particular terms of the Act of Parliament, and the nature of the circumstances to which they must always be referring in those cases of the classes, that different minds will come to different conclusions upon the same question?

No doubt.

431. Do you know that it would be the natural and probable tendency of the (196. 3.)

Joshua Evans, Esq. judicial mind in such a case as this to look beyond the mere terms of the Act of Parliament into the man's general conduct?

6th May 1853

Yes, that would be the inclination, I have no doubt.

432. The result of your experience and feeling is against the classification? Entirely.

433. Lord Brougham and Vaux.] You have stated that the classification has a tendency to keep bankruptcies out of Court; is that an opinion of your's formed upon the diminution in the number of bankruptcies since 1849, or upon your general opinion of the tendency of the classification?

Upon my general opinion. I cannot account for the small number, except that the Court is very stringent; and I hope, and believe, that the stringency of the Court prevents people acting as rashly as they used to do. I think that cheap law, and stringent Courts of Bankruptcy, will improve the morality of society more than any thing else.

434. Do you mean the stringency of the Court, independently of the classification of certificates?

Certainly.

435. Chairman.] It has been supposed in some quarters that the different classifications of certificates has had this influence, that where a man in trade, a man of honour, has met with misfortunes, and become a bankrupt, or at least become liable to bankruptcy, his friends have been unwilling to take him into the Bankruptcy Court, because it will expose him to the chance of a second or third-class certificate?

I have no doubt that it would prevent a great number.

436. Lord Overstone.] Is there not a wide field for difference of conduct among insolvents who obtain certificates of one class or the other?

Very wide indeed it is a very difficult question to decide upon certificates: a man will decide differently upon them according as he is in health or out of health, and all that is unavoidable.

437. The object of my question is to ascertain whether there does not exist a field for great difference of conduct on the part of insolvents, who of the one class or the other obtain certificates?

Yes.

438. Is it not important that traders should have some means of being informed with regard to the different conduct of the insolvents who obtain certificates?

I do not think that it signifies to the traders at all about the moral conduct of the bankrupt: when they give him credit, they look to his means, and not to whether he has a certificate of the first, second or third class; indeed they would not ask to see it; if they did, the man would leave them directly. There is great competition; and if the man went to a merchant, and asked him to sell him goods, and the merchant asked him for his certificate, he would very soon walk away; but if the merchant knew that he was a rich man, he would care very little about the class of the certificate.

439. If traders could renew their transactions with past insolvents, without reference to any moral estimate of their conduct during their previous trading, in what does the great severity of the third-class certificate consist?

In the excessive stigma on the individual; he feels it is like the letter F on a felon; it enables every body to attack him and to abuse him.

440. Why does a third-class certificate involve a more severe stigma than a first-class certificate; is it not because the conduct of the party has been morally more deserving of reprobation?

Of course.

441. Do you think you can justly assimilate the consequences arising from such a cause as that to what you previously called the consequences of the severity of the punishment?

I punish by adjourning the certificate. If one man has behaved very badly, I adjourn him for a year or two, or three years, without protection, and then

that

that protects every body from him; they have no business to trust him without Joshua Evans, Esq. a certificate, and they will not do it; that is the punishment which I give. 6th May 1853

442. Is not the declaration of the Judge of his opinion as to the conduct of the party brought before him in every case more or less a punishment? Of course it is.

443. Does not the severity of that punishment depend entirely upon the extent of the moral delinquency upon which the Judge so comments? His opinion of it, no doubt.

444. When you object, therefore, to the severity of the punishment involved in the third-class certificate, is not that a severity necessarily arising from the moral misconduct of the party, rather than from the act of the Judge, who through that certificate expresses his judgment upon that misconduct ?

No doubt it is.

445. Then the severity of the punishment arises really out of the misconduct of the party, does it not?

Certainly; or out of the supposed misconduct.

446. Can you maintain that there is anything unreasonable, unjust, or injurious to the interests of society in such severe consequences arising directly out of the misconduct of the party upon whom that severity falls?

I have already given my reasons, and I abide by them; I think that it is too severe a punishment in any case.

447. You have stated, have you not, that there exists a great difference of conduct amongst insolvents who obtain the certificates of one class or the other?

Yes, that is so.

448. You stated, did you not, that, in your judgment, few persons, if any, deserve a first-class certificate, and you yourself would rarely give a first-class certificate?

Yes.

449. I presume, therefore, that you think that all insolvents, if entitled to a certificate at all, ought to receive a second-class certificate?

I would not have classes at all; I would punish them, as I said before, by adjourning their certificate, just as if a man has committed a crime you imprison him for a year, or two years, but you do not brand his forehead; he is very immoral, perhaps, but branding his forehead would make him desperate; and I think that a third-class certificate has the same effect.

450. Do not you think that the most formidable shape in which punishment can produce its evil effect, is in the application of a uniform punishment to different classes of criminality?

A uniform form of punishment would be ridiculous; it is not so when I adjourn a man three months without protection, because he has done some comparatively venial things; and then, to another man I give six months, and another man nine months, and another man twelve months, without protection; I adjourn his certificate all that time; and all the time that he is unprotected, he can get no credit; nobody will trust him; sometimes I adjourn it for three years; I think that is the proper way to punish him, not to brand him.

451. How do you distinguish between the objections which you have urged to the system of classified certificates, and those which might be urged against the system of classified punishments which you propose to adopt as a substitute?

When punishment is once inflicted, it is over, and it does not disgrace a man for the rest of his life; he is punished according to his crime.

452. Does not the fact of a man's certificate having been withheld for three years attach to him a recollection of his misconduct through life?

goes

No, it does not; a man is adjourned for three years; then he afterwards on in business, and he is a prosperous man, and nobody knows anything about the adjournment. If there is any dispute in a court of law, and the certificate is produced, there is no stigma upon it; and if he wants to use his certificate for any purpose, it is without a stain; whereas, if you put a third class upon it,

Joshua Evans, Esq. 6th May 1853

it is almost enough to break the heart of a man that has any feeling, if the man gets on prosperously in the world.

453. Are the Committee to understand you to state that, with the trading world, the fact of a man having gained a third-class certificate, will be known and remembered to his injury for the whole period of that man's life; but that the fact of his having had any certificate whatever withheld for three years, will not be retained in the recollection of the mercantile world?

It will be in his recollection; and whenever the certificate is required, whenever it is named, it will be in his recollection; it has the stigma upon it of third class; if it is to be produced anywhere, or wanted, it always is produced with that upon it.

454. Lord Brougham and Vaux.] You consider the suspending of the certificate for three months, six months, or a year, a punishment to the party? A very severe one.

455. Is not the use of all punishment, partly at least, perhaps principally, to deter others from committing a like offence?

No doubt it is.

456. If this suspension for 12 months is wholly unknown, how can it have the effect of deterring others from committing the like offence?

It is not only not unknown, but it is exceedingly well known to every body living at the time; every trader that comes to prove a debt does know what is represented; but stigma passes away with time.

457. Lord Overstone.] If certificates are withheld at the discretion of the Judge for various periods of time, is not that substantially in its effects the same thing as a classified certificate?

It is in a degree; but surely if one of us were to commit a crime, it is a very different thing whether we are imprisoned for six months, and let out without a stigma, or have the letter F on our forehead, to pass through the world with it for the rest of our lives; that is my meaning.

458. The notoriety of the disgrace attaching, in consequence of the disapproval of the Judge, constitutes a stigma; and what I wish to ascertain is, how it is that that notoriety which the judicial disapproval communicates expressly by the third-class certificate, conveys a stigma of a more severe kind than when conveyed by the act of long suspending the certificate?

I cannot say any more than I have said.

459. You have stated that, in your opinion, the existence of classified certificates has a strong tendency to keep bankrupts out of Court; how do you connect the cause and effect?

I think if any gentleman here had a son, for example, who was a trader, and had got into difficulties, he would ruin himself rather than let that son come in to get a third-class certificate.

460. Do you think that a cause which keeps insolvents out of the Bankruptcy Court is an objection, or pernicious to the public interest?

Most unjust; there is nothing more unjust than forcing the relations of a party to pay his debts either by any means that you may imagine.

461. In what sense do you use the word "forcing"?

This third-class certificate would be a force upon the parent, particularly upon a mother, to bear anything and endure anything rather than that her son should have a third-class certificate, with a stigma, therefore, for life.

462. Is it pernicious to the interests of society that mere disgrace to their children or their relations should stimulate them to prevent that disgrace becoming known, by preventing the occasion that brings it forth?

I do not know; I think it a great injustice.

463. Would you, therefore, conceal from the public the knowledge of misconduct, rather than suffer the bare publication of it, to induce relations and friends to interfere for the protection of the misdoer?

I not only would not wish to conceal it, but I have always enforced publicity in every thing; I wish every thing done in open day. In my Court I listen to nothing

nothing private; and the only difference between your Lordship and me is this, Joshua Evans, Esq. I would have it published, and have him suffer at the time; and I would have the traders living at his time know that he had been refused his certificate for that time, but I would not keep the stigma on him for life.

464. Will you state upon what grounds it is that you attribute this greater and more durable consequence to the third-class certificate than to the suspension of the certificate for a lengthened period of time; knowing that the disgrace inflicted goes forth to the public in both cases, is it not the fact that the durability of the punishment consists entirely in the impression produced upon the public mind?

The certificate is on parchment, and the certificate will last for 100 years; whatever takes place at the moment will affect the party for, perhaps, as long as the certificate is stayed, that is, for two or three months, or two or three years, and then all will be forgotten.

465. Does not the durability of the punishment which arises from the sense of disgrace once incurred, depend upon the state of the public mind, and not upon the form of the document in which it is certified?

I think not.

466. Chairman.] Are the Committee to understand that you have come to this conclusion, that there are sufficient means of punishment under the Consolidation Act of 1849 to meet all the justice of every case, without going further into examinations which might be gone into with a view to classification? Yes.

467. And that the difficulty of coming to a conclusion upon that qualification is such, that you think it desirable that it should be abolished?

Yes.

468. You are not for abolishing that which is a proper punishment for an offence?

On the contrary.

469. You stated, did you not, that, like all other offences, you would meet it at once with a due portion of punishment, and then let the man go free into the world, as far as he could do so?

Yes.

470. That is, speaking with reference to a much higher offence, and to a time at which men were marked in a very different manner, you would not send out the man again as a free man without property, but with a brand upon him, to tell every body that he had only obtained a third-class certificate?

That is my opinion exactly.

471. Lord Overstone.] Is there not the same difficulty of classification when you have to determine for what number of years you will suspend the certificate, that there is when you have to determine what class you have to give? In some degree there is.

472. Will not that objection as to the difficulty of classification apply to both those cases?

It does, to a great extent.

473. Chairman.] Is there not this difference, that in the first case the Act gives you a rule, which positively defines what shall be the ground of withholding the certificate, and gives you many instances, while in the other, the latter case of classification, you have to go into the very difficult question as to what is an unavoidable loss or misfortune!

There is a clause stating that we are to consider his conduct as a trader; therefore that compels us to look into his conduct.

474. In the certificate you give even more classification; before you give a particular class, you state, as you are bound to do, that, having regard to his conduct under the Commission, and to his conduct as a trader, both before and after the bankruptcy, you have found him entitled to the certificate, and you then proceed to the class?

Yes.

6th May 1853.