"^ IMAGE EVALUATION TEST TARGET (MT-3) // ^ ^CT . Tranaparence Quality of prin Quaiit* in4gaia do I'impression Includea auppiamentary matarii Comprend du metAriel aupplAmantaira Only edition available/ Seule Mition disponible p~| Pagaa reatorod and/or laminated/ Pagaa diacolourad. stained or foxed/ Pegea rn Pagee detached/ r~7| Showthrough/ pn Quelity of print variaa/ r~1 Includea auppiamentery meteriel/ r~1 Only edition avaiieble/ The poai ofti filml Orig bogi thai aton otN firat aion oril The ahal TINI whl< D Pagaa wholly or partially obscured by errata slips, tissuea. etc.. heve been refilmed to enaura the best possible imoge/ Lea pegea totalement ou pertiellement obacurciea par un feuiilat d'arrata, una palure. etc.. ont 4t* filmAoa i nouveeu de fepon i obtenir la maiileure imege poaaibia. diff( enti bog righ roqi met PTI Additlonel commenta:/ LlJ Commentairea supplAmantalraa: Wrinklsd pigsi may film slightly out of focus. Thia Item Is filmed at the reduction retio checked below/ Co document est fiimi au taux da reduction indiqu* ci-daaaoua. 10X 14X 18X 22X 28X 30X y 12X 16X aox 24X 2SX 32X ItM copy fllin«d h&n has bean raproduc«d thanks to tha ganarosity of: liMk Walton Kiltam MMnorial Ubniry Mhomi* UirivwiHy L'axamplaira f ilm4 f ut raproduK grioa A la fl4n«roaltA da: liMk Walton KUImh MMnorM Library IMlMMiic Univtnity Tho Imagaa appaaring haca ara tha bast qoality posalblo consMoring tha oondition and laglblllty of tha original eopy and in kaaping with tha filming contract apaciflcatlont. Original copiaa in printad papar eovara ara filmad baginning with tha front oovar and anding on tha last paga with a printad or llluatratad impraa- slon, or tha back covar whan appropriata. All othar original coplas ara filmad iiaglnnlng on tha first paga with a printad or llluatratad Impras- sion, and anding on tha kMt paga with a printad or iilMStratad imprasslon. Tha last racordad f rama on aach microf icha shall contain tha symbol «^ (moaning "CON- TINUED"), or tha symbol V (moaning "END"), whichavar applias. Las imagas suh^antas ont 4t* raproduitas avac la plus grand soln, compta tanu da la condition at da hi nattat* da I'axampialra film*, at an conformM avac las conditions du contrat da filmaga. Laa axamplairas originaux dont la couvartura an papiar ast ImprimAa sont filmte an commandant par la pramiar pkit at an tarmlnant salt par la darnlAra paga qui comporta una ampralnta d'Imprasslon ou d'lllustratlon, soit par la sacond plat, salon la cas. Tpus las autras axamplairas originaux sont fllmte an common^ant par ia pramlAra paga qui comporta una ampralnta d'Imprasslon ou d'illustratlon at an tarmlnant par la darnMra paga qui comporta una talla ampralnta. Un das symbdas suhrants apparattra sur la damMra iniaga da chaqua microficha, salon la cas: la symbda -»- signifia "A 8UIVRE", la symbol!) ▼ signifia "FIN". Maps, platas, charts, ate, may ba filmad at diffarant raductlon ratios. Thosa too larga to ba antiraly Included in ona axposura ara filmad baginning In tha uppar laft hand comar, laft to right and top to bottom, as many framas as raquirad. Tha following diagrams lllustrata tha mathod: Las cartas, planchas, tabkiaux, ate, pauvant Atra filmAs A das taux da rAduction dlff Arants. Lorsqua la document ast trap grand pour Atra raproduit an un saul cllchA, 11 ast filmA A partir da I'angla supArlaur gaucha, da gaucha A droita, at da haut an bas, an pranant la nombra d'imagas nAcaasaira. Las diagrammas suivants illustrant la mAthoda. 1 2 3 1 2 3 4 5 6 v #AN ESSAY ON THB MIBCHIEVOUS TENDENCY ^ or. >IltfPRISONIN6 FOR BEB% OTHER CIVIL CASES. ^^^"''^''^^ econH StiCtf on. pirti AN APPENBix MVCH ENLAliO^b rx.t-.'i'ft'ff^jX. •* It doth appear, yoa are a worthy judge t . Ton know the law, yoar expoiUioa' >^t^« .mtlauo:i Hath beeii most sound : I charge yon by the ^V|.,, ,1 Whereof yon are a WAll-deienring pillar, Proceed to jodgment : by my sOul I swear, ; '^ There is no power in the tongue of man To alter me : 1 stay here on my bond.^* Merchant of Veniee, Act 4. Sctn»\. ';0d*2f?- •a^r ir^il«i ::'fliv. Sumrnnn jus, snmma'iojuriak '* The object of imprisonment for debt is not intended for the punishment of the debtor, but to compel ^m to #|cbarg» the debt out of property, such as money in thci 'fiiuds, or debts due to him, which cannot be reached by any legal process.**— Notes on Blackstone^s Commentaries by Pro« lessor Christian, Chief Justice of the Isle of Ely, &c ftc« Vol. 3. p. 414. Edition of 1803, HALIFAX, N,S. PRINTED BY J. S. CUNNABELL. 1831. / Mtiv^iffi^ to ihi 'SekiMd ^OUion. /« 11^27 1 baa •t^W (i^l^fl^f (fiel^UoMdg Essay printed and distributed- among tbe Members of tbe Legislatare. My sentiments on the subject have ra- ther gained than lost strength in the interval. I ba?e collected In the jippen^iic materials respecting imprisonmen^t for 4ebt, 'which I trust the reader will find interesting. They will shew that much atten- tion has been paid to the question in neighbouring countries, aiid that the principle of abolisliing this harsh'taw Wgamioig^lirobhd. O^niitrtfiii^jprpiyyments caid only be expected from pevseireriEiff and j^atient efforts. To keepihe nind awa^ ^Tniportant question, and to make it the tO{^ of repeated de- liberation and discussion, is the surest method of arriving at the truth, and of dispelling the prejudices that too often obscure it. M. ti6^,t)ecember, i80j. "nwf^' say the ra- I ting mil en- ring this entfl ient tant de- 1 of ices TO THE MEMBERS OF BOTH BRANCHES OF THE PROVINCIAL LEGISLATURE OF IfOVA-SCOTIA. The writer begs leave most resp^'^ctfully and humbly to dedicate the reflections, which persokxal observation of the cruel operation of certain existing^ laws have sug^sted to him* This Province has to date many valuable improve- ments from the period of the administration of his Excellen- cy Sir James Kempt. If to those ameliorations, the wisdom and zeal of the legislature under his Excellency's benevo- lent and constitutional superintendance should be enabled to add a relaxation of the present laws of debtor and credi- tor, and to introduce confidence and g^oodwill in lien of sus- picion and distrust, -without injuring the bulwarks of mer- cantile credit, but rather giving them additional security, every Nova-Scotian heart would be deeply impressed with gratitude to the rulers of the land for so great a boon. It would be presumptuous in an humble individual to^ propose measures of such moment, but the writer is inform- ed that the question will be brought under discussion, and he has therefore taken the liberty of bringing hit ideas be- fore you in the following pages. Halifax, 1827. ^'m l. .. .. I! ! t:?i!M^?«" .. *n? V-.' -•: - 'n ' i>n aM'ijSWil *; .. ■> ; . J : :■> !;■;:«;=' ■s j '^if.Hi ■4- - • t'> E,s s A y . SK^O'Hti^iltenng on die subject . of Im* ^^nmmm^ may not be ainifa^tb'tafke a reyiefw^tlie kwe b^ tWeeto^d^tor and Creditor before civil imprisonment was known. ' ' 'li%e Itc^b^ws according to the code of ; f»-' frottk them, they could find nothing but their persons to lev> their executions oil In consequence of this the statute of Marlebridge 52, Hen. 3, C. 23, passed in the year 1267 — enacted that in actions of account the debtor should be arrested, or, to use other terms, that he should be treated as criminals alone had been be- fore. This regulation was extended by West- minster the second, 13 £dw. 1, C. 11, passed in 1284t. . This was further extended to actions pf.debt by 35 Edw. 3, C. 17, passed in 1360, and to actions on the case by 19 .Hen. 7, C. 9, passed in 1503. Thus the general principle of English law has remained since the passing of those acts, but it has been so modified from, various causes, that it cannot be (said to press with the extreme hardship on the fjnglishman that oi|e would sup- pose from a casual view^^f the laws. . The whole mercantile body are pro- tected, if not entirely, yet to a very ^eat extent frpm suffering the rigors of impri- sonment in England, by £e statutes i>f jbankriqitcy, they have by thi^ system the . means of obtaining personal freedom, of , wi{Hng pfi* all their oM debts and begin- ^#ing die world again imclc^ir better au- • ||V ..^ /f ) ilW • w f } jpices, unless by some glaring fraud they may have, forfeited the protection of the laws that are intended tor their benefit. •—These laws extend to oTery class of dealer, trader, manufacturer, in fact every one who has any thing to do with buying and selling. Another modifica- tion of those hardships is found in the general and temporary insolvent acts, and besides these the liberality and humanity of a great and wealthy nation and of dis- tinguished individnials,. are often inter- posed to snatch the uMbrtunate victims from the jaws of destruction. — ^Those persons who are not kept out of prison by some of the foregoing means, are . yet in a very different situation from that of prisoners closely con&ied. — Almost ail the gaols in the kingdom give their in- mates some degree of comfort and freo'- jdom, and they can at any time be remov- ed on their own application to the King's Bench in the jnetrppoUs.— -There they have a quarter of the (iity to themselves* v^-/rhey breathe the air and rejoice in th^ light of heaven, and many of them obtain 1 frequent permissions callied day rulei^, ' «iabling tfieiii to visit other parts of the "" (Capital where their ajTaif s may carry them. ; By thelawsof i40werCanada9 thecr<5i- fitlitQr cannot arrest his debtor except upon ^ 4 proof of ^6 laltef ^s int^htiph of abiNsotid** ifig fh>m '6ie reach cff the laws. . By ihe present laws of Nova S^ptm, t!he debtor cah be arrested in any eai^B if^h^r^ the creditor ehooses to swei^ tfiat lye is iitdebtdl to him. ifhe debtor ns tiieft elpiiiely inlj^risoned'; he is sepn^at^ fhiiiifaiisl'Miisiii^ss^ihisfiriends and bis fh- ^14^9 and no oM is permitted to ^be widi liUi esicbpt at stated hours^ a^ a; viiiif^. The Wii^ ofa i^i^k br infihn iW^^ his ehlM orbiis bosom' Mend may ^ish toWa^ oVdr qir to cojRSOle him^ The regtiiatidi]|s ^f^ottr taw forbid in pwc^ce the exertioh ^ th^ir n^il^afl hanbtflfnity, aiK^ even their visits in; th^ ^tifetie a^e by the permis- sion ^ under the discretion of the Jafilor for the thne being. If the iinfoftuliate tli^bitorrei^uii^e legal a^ice and the tisits bf a lawyd* or 6f a physiciatn, there are a ^ousahd ^ii^cantotanc^e^^^ deter thoise of t^i9tr6nge^t nerves^ in the learned profes- sions from mafc^^ visits bnt rarely — ' iSti(b^neiglibbfh^ presence di^nnjiinli] iiilid^ ^^^^ vicinity r pit t^e recepta6t(^^ i^rfj^,-^ihfe j^ jtpp^aipco Ip^^^ the jUmali^s 6^^^ .Qlplie prison, their i:^yoIitii||g ac^ired or sfrefigtben^ bybSd society. All these features of an odiout, policy are so many operating and power-* ful causes to drive far away the voice of reliffion^ of consolation^ of humanity and kindness from a prison. Those who are not informed on this subject, may suppose that we have some reffulation by which the insolvent debtor if honest may protect himself by swear- ing out. We nave, it is true, an Act for the relief of insolvent debtors, but what does it say ? The debtor (after the credi- tor has carried on his suit, tried it,* and got judgment in his favor) may petition to be enlarged, may swear to his honesty and inability to pay, and on his then as- signing his remaining effects and debts to his creditor maybe enlarged, {^ ^Ac cre-r ditor consents^ but not otherwise. The creditor, refusing to liberate him under these circumstances, may keep him there as long as he lives, provided he finds him a few pounds of biscuit per week. . But I shall be told by those who are inclined to keiep up severity against debt- ors, that the creditor will seldoni imprison his debtor when the latter acts an honest ' *The law does not give a prisoner liberty to be present in Court at the trial of bis own Caose, though he may^be brought down by habeu corput al a wit- ness in a stranger's law suit* 1<^ pmi that iso^e^tfai^ il^ r^ir^tl to gi^t^ ftf'bbaible itieam of piiyiiient---t|rat i^« g^-. li^Alhy of {fH)s6ndriS[ leii^ wotthfe^— ^ !^'' you find a fraudut^^^lbtdil imbr6 ki^ gently' tH^ti ^ b^Qihah tsi^dl^pi^ '^'^, •phei'e Iri-e^ ttMHiy p¥fioj9d cStise^ to cfe tfei" men i(foni incurriijg 4^ ipPTi^^HWr witbotr^ niakbig sticb coniJdct m^ dpfe|6bt ofip^a j^ishmdlit: ii i^ Weed 0m of tfadk etrojfs Wmbhf- Ms com rr^»gRt j^tAs'^ei^^ t n6;!iy riook tp Uie l^W^ ¥aci4.'W^*4)M Voiii ;ki\ow fefe i^BarMter )vfieb.^p^.tr^s1^ '^asfly Ilayp as^c^fsajne^itj^^Or ^^^ aie -•%■) i-k«|**- ii'' 'IJ-'X' 'i*'X- ■ ■■'a* ■■■'•'■ ■-'.I -.-Ki --'i' Ifiiigie Mtiit of frustUjf^^ '0ifdejr to Sjfell fiisterj^' or ^flgpt a I price oif tji^ jsafe tKgja ft inpirf cftiiuicwjs customer wp]i||[4|iti^^^^ ipy cjigippe/^^^ '^f TBi^s he aipy^^^fl^^ ISay 7^' f^'Oh w/ Bjttt some of Ms ^r^^ fe or |r|^ ^^^ may heify^ 0^ to sayem frpm^in^ ia a pr^Qif.^. '^pw p it iiot jaBim^aptJly jpl^ai: that ^ ^bucji |i]isl:^pes Jjie whp giyjeS'trust is i^ idlitt^h :ijr;|1(|^^It a^^ Jje wjp receives ci^ediif? ^^Hi^uTd thie -fee^^^^ *of huviftnily anSi ibp Ift^s of natilr^' bo edptiwuiilly oijLtrJSig^ ""jte^d fi>^g6tfe% Tor the .{^ote^i^iiif iiki- ^pt1)id'$h|;;aiid Ipe^^ n 12 'n u To give the creditor in all cases tfaii 'Irbitrary power of imprisoning tbe indi- Tiduals whom misfortunes, peniaps of tihe most wiexpected and calamitous naturoji tlliVe put in his grasp, is to give pow^jr into hands the most likely to abuse it. Trust imy man with arbitrary power ancl you tempt him to do wrong. But the cre- ditor of an insolvient has additional tein|>t- ationis to err. He is initiiLted at the |o80 of his nioney, and wh<^ he thinks of !^ur pooir debtor, he does hot think of !#» ii9 of a brother man, a fellow citis^en, a let- low countryman, a fellow christiah, biit he thinks naturally of his being instru- mental in taking from him part of Us wealth. He is apt to dislike him on th^t account, and' didiking, more apt to 9us- ^ect him of fraud or misconduct. Is he ^en cool and disinterested ^ough to judge dispassionately of hiis debtor's con- duct ? Suspicion and dislike must sive him a double, bias against the cause of his irritation, and where suspicion has en- tered, every light breath can fan it into a flfmie. The unfortunate, we know, hav0 but few friends, and there are minds so despicable as to rejoice at others' calam- ities, and to take a dark pleasure in heap- ing sufferings on diose who are falling, whether they have resentments to gratify 13 ^%r «wit: Sach may be the €ouh»elbrs'M!|io loi^eft' the ongetiErd creditor^- aiM iitstil ^ ve- 7tidnred ik^foniters into hi&img^tard^d eigr -^^mst the Unfortanafte^-^So kA^ fino lia!ble rto bitor is manf that no wi^e '^teaii:' would wi^h to be trimted; tvithr t»o •^^inilchr|iow:er; Shali Idwr ex^drci^e o£jko kgreait a ^bwer^hen beileft in albkindisof •^iiands ?• ■ loq ■'. • -. , ; .;: .i 3 M^n is an Idfittative animal. Frotn this b^xropensity it baipi^ens, ^tfaat many Tesdrt - id srvisre! nrcfe^cnres merbly becakiBe thfey :^isree" severity" pracWsedf^and they da not eiufficientJy reflect or? bring the maffer • fhonie to their bwn heiarts. , -::•": iEti^siatd tifet many are cletlerred^fitoin •^rrimningin debt b^ the fear of a prisoil^i- -I^rimch doubt the truth of the asserliooi. wif bad d^bts Were : uncommon ocmir- ' Tendfes,'^ it might "bei more probable^ but ?we kno^ that extrayagaiieeand reckless- -ness'are hotto be curedby a jail, nor by Mie fearof gding there. I^qutestion tndbh if you were to punish those vices dapital- toly^-whether you wouid lesson th^ii* pre- Valendcp^l am almost sure you would - not. -^A Ijail toay teach- of footer viciobs " habits^ it i6 but a poor ^^minary forim- f* pitivement of the human tshariicten : ^ W^lxmy be, and^ nbdclubt will be ob- jidcied to ail that the dictates of natural f-ir Si' 14 feeling and ordinary common seiise will suggest, that every institution is liable to be abused, and that one should consider its usefulness and necessity, and not ar- gue from the abuses that it is iiable to, agaiiist its existence. This is reasonable- enough when applied to those regulations which are essential to the well bdng of society. Unless certain powers were en- trusted to the rulers of the coun^, the irregular passions of human nature would break loose and confound the best endea- vors of the worthy for the public good. Unless regulations were made for th^ protection of the different classes of soci- ety, good order and security could not ex- ist, and the arm of labor would be pa- ralyzed. It is quite a different case how- ever, with an institution like that now complained of It is not one of the es- sential requisites of society, because it has been proved in a variety of instances, that society can exist and prosper with- out it. ^ ^ The objections now made are liot pointed at a temporary restraint on the liberty of individuals, whiere there is rea- son to suspect them of an attempt to de- fraud or to elude their creditors. — Such a suspicion should in justice entitle the creditor to claim a temporary restrictipn i' 15 f)f the movements of the debtor^ because he otherwise might be a loser, although «uch suspicions do not fix crime on the debtor, nor is it reasonable to exempt the debtor who is convicted of an attempt to defraud his creditor from the punish- ments necessary to check and prevent so - dangerous a crime. — The only thing I^ coihplain again$t is thatthe creditor whe- ther he does or does not suspect the deb- tor of any impropriety of conduct, is by otir present laws empowered to detahi his debtor in a, close prison for an unKmited^ ^pace of time. This is manifestly too much power to place in the hands of those whose interests or passions may often se- . duce them to make an improper use of it." — The great error of our law is that it confounds the unfortunate with the guilty, ^ — the debtor who is rendered by some casualty insolvent' . with the hardened swindler,^'— both are amenable to ponish- 1 ment, both are piit in the arbitrary power of a disappointed creditor who is at onee'^ their jtidge, jury, and executioner.: ^ . I would not appeal to the passions of my readers, because I feel satisfied that the principles I advocate are founded on a fair view of what is just and expedient inr civilized societies. — I would however j(ay to those who are firmly impressed 16 witbtfae humane principlesof the icfaristiJEiii< rQliffion^ that ifthey are npi quHe satisfied^ of me cruelty of the presenti . system. aat> authorized by the existing lawjS of thisi province, yet if not . satisfied, the othei< way, thcg^ should lean>i^. christians to. theu sideofmerqy and join their humane. en^ji dtoyors to vi^iipe out of ouncode the dark andi suspioious cegulatihiitjusit.lbat the creditor sboidd ibe entiiled'tp sequesn ter the nuuagr due by a third p^ty 4p hia d&btor^ to suspend the receipt of any salary Of wagea that lue may^ efui% t&s^ qussfer his moveables and efib^^-rr<^all this he (^faould bie.aiuthoFized to do as a means of i^ecoverihg what k due io^hkn and in addition, to prevent his Jebtof 17 firoin leaving the country, to imprison him whenever he can show to the satisfaction of a judge, that he would otherwise risk the loss of his debt. . . ^ In addition to this it would be but just to give to the tribunals of justice a large and discretionary power to punish all kinds of criminality in debtors; The debtor who contracts a debt without fair prospects of repayment, is in the eye of moral justice a .criminal. — W^e who sus- pends or neglects payment i^h^n. in his power, is also criminal.— He who endea- vors to hold out to the creditor oir^ the world a false and deceitful view of his af- fairs is also criminal. The extravagant debtor who dissipates in wild speculation or useless expenses the funds oiit of which he ought to pay his debts, and the idle man who will not make proper exertions to earn wherewith to satisfy a just de- mand, are also morally culpable. In those five kinds of crime which debtors may commit, it seems much more equita- ble and I think would be found by expe- rience much more salutary, to commit the execution ef the law in pursuing. the .offenders to the calm and judicious minds of well informed judges, magistrates '. and jurors, than to leave the mighty, engine of arbitrary imprisonment in the powear of *B 2 m f. tfie creditor who in not oidy tti^ fwety bsA thejudge also. ;#;. 'lovr ^ £iusases of insolyjeimy k :al&^0;ip|>peai» conformable to the immutable primGiplfis 4>f julutice that the effects of ^ debtor a^uld he klii!?^dad among alibis creditoxa in proportions according to the ainount orJOieir daims.— i-Nottung can ihe moiie flimpleihan. an arrangement of ;tbi9.lund^ and it at once i¥4>i]M reejtofre the . hpaesi man tolthe .power of pursuing Ins occu- pationsi without the: perpetual anttoyanoe €Kf dunsy the embarrassment and cwretetb- edness of anlundecided situatiqn^ and the iortures of dependence which to rtheiio- nocable mind are worsethan dearth. u rThiswouldlbe opening, a gate^by. which virtue could escape' from tha anraws of misfortune, while Justice would; ward off the' worthless and dishonest, and* prevent tiheir talking advantage of its .occasional lo^ening. The writer is aware that innovations are •dangerous, that they should not be adopt- ^without great deliberation and caution, lest in getting rid !of a known inconveni- ence one may open a door to evils of equal on greater magnitude. cStillit iajta >be borne in mind ^t mankindiare Jn a * pro^essiye state, that ih^r knowledge ^ndj acquirements especially in matters 1» of » moral vor iM>ii^c.al notor^^ IKiwt km i^ftduAlIy Utipxf^Y!^ m the ma&isf.of ei^f^^rr ri49nc)e 4cc]uiii)i}at09, 9n4 we lure ilia^ iQ think Ihat Mrbarey^ an evil e3(ist&r in tbfl> distiibuf ipn .of moml JD&tiq^^ it ahmU Im the mm of the ^ise Wd the worthy iit 9eek; for^ .And if it he pQ^sible^ to di»GQ¥er^ ami. apply a ?ei|iedy« When n^e conaifj ^er ltot;the ppsitiQns contended far i^ tbi^ easay are ro^^re generally rems^ed anil acted npon in thp present age^ tljan at any former period9.di$.t they are carried intO' effect already to a certain elxtent in the mother cauntry, and that their eolnplete adoption is at present under diacussion in th^ parliament of Upper Gimada, and ale^o in the Legislature of our great comm^cial neighbor the United (States, we maj^ rea? son^ly conclude, that ihe giubjeet is riot unworthy our attentifMi. We may infer that the age we live in^ n more adaipted to the reception of aii amelt^nrated coda of laws on the subject of debts, that 'tbe opinions of society in general are obtaih- ing) a mofe merciful tendency, and that tbe.mercantijle world generally are satisn fied that the prisfon is not the best m^rk for the price of their goods. The writer will esteem himself happy if his remarks should be found in any way serviceable to the gentlemen wha are called on to legislate for the pro- vince. Whether the views he entertains are generally or partially correct, — ^whe- ther his suggestions may in any degree be worthy of adoption is to him, person- ally, of little moment. He feel» in com- mon with all for the distresses that fall on the victims of misfortune, and if their suf- fermgs can in any manner be alleviated, or th€«r interests and rights protected be- yond the present system, without weak- ening the frame work of society or intro- ducing mischiefs ^eater than those with whibh he sympathizes, he will be more gratified than he can well express. Weak and imperfect as his power is to develope the true features of this part of the law, he relies on the good feeling and gener- osity of the reader to excuse his attempt. The enlightened reader will bear in mind the difficulty that must attend the endea- vor to refute a received opinion however erroneous, and will pardon the attempt of one whose only motive is^that he sin- cerely believes some mitigation of our law of debtor and creditor peremptorily required by every feeling of humanity. im fv PC ABFENBIX. e •1, .7/ ;r UNITED STATES CONGRESS. In Senate— :Tae^da;|r, December tSf 1826. IMPaiSOIfAIBfTT FQH DEBT, ,,„ Bfn, Johnson, of.Keo. rose toaik leave to iotrp- daqei a bill for the AUolition of ImpriionpiQpt for oi lQ.pr^fifjQ>l;iQg,Mr. Ji remarked, thft. if be^werjBi. o^rijng a, prppoiitiQA of a^puUtfMl chajfaptpr to ibe^ c(wi4iei;{ltJon of the JSeo|)ie, hei)ip«ld,qpt lopf^en h^ve pronted, its aidoptjop. It tv'ns a proposilipi^ w^h hft« hpep 8eA9itlQiQecl and approved; b> » me- jority of the Senate at its previowi Ae««ion, Ip^prirM; aopineiit( fordehtii be >eliev«d., had 90 a4Foqate«, in AmeriCiar-7qertai,eJy., nfihe eiOPiog the .geperoiri endn^i benftif b^ept, of, i9afp|iAdi in.apjr, cpviptfy. The. cpa- templatioQ of the idea struck him with as much.lMidi^;! . ror as that of the tortu res o jCthe Spanish InquisitioD» and it was surely as disgraceluTas the continuation of that lys^m Wjas to, ^a|n^ * It was PAual^, pi^P^^ ductive of 'sl^^/aAd t-Mir^ apd wp. 'Sjuch b^mg the view he entertained Pf it, could he return to his coosfcituentil and teU them that iCongresLwoiildaot devise the ways and means necessary for the pr^idser- vaiipn of inaoceiice:?- The cbont^y^ almost with ools voice, called for the meiasure^fhe public press wa» unanimoua in its favor, and orators and ;Stateemen united in denouuciDg it as areJiic of a barbarous agie. It.waF.also a violation of the spiritiof oPr free instii' tution—ofithe Jpleclaration of Independence. It waia aviohitioji of periBonal Hberty'^tt destroyed^ personiil happiness and took from maa his locpmotive pp#er» The system arigioated injudicial usurpation ro Eng- land, whose cPprts had assumed the pPwer upon MEjsiiB raocBSS, to incafcecate an HnfofftuPate indrvi- duai. Bat eKc;n this usurpation was an amelioratiob of (heiiomd practibe in Oijeece and Rottie, whet* 22 Ihe law permilted the lale of the father and hii whole family to latiify a debt. The lyitcm, odioai at it was to freedom and independencei waa lupported by aristocracy and aided hy the vindictive cruelty of unrighteous creditors. It was hostile to the morality •nd the precepts of the Gospel, and was a remnant of barbarism and Gothic cruelty. The obligation of man to his fellow-roan should have its basis on honor und probity, and not upon the pound of flesh. He felt, therefore, that he was discharging an imperative and a sacred duty in calling upon the wisdom and tsiperieoce of Congress to wipe away the stain from this fair page of our legislation, and he hoped that a decision would be had upon its merits, at an early period of the session. The bill was read twice by unanimous consent, and referred to a select committee, consisting of Meaars. Johnson, Berrien, Chambers, Harrison and Ifaton. PARLIJlMEJSrT OF UPPER CANADA, 182«. IMPRISONMENT FOR DEBT. Bill for Aboliihing Imprisonment for Debt. — Se- cond Reading ^(fV .Hi Mr. Rolpu said that in introdiicing this measure to ibe attention of the House, he felt himself called upon to eiplain the objects and provisions of the Bill* He had brought it forward during the laF' aeaision, and the bill he then proposed had«beeu printed for ihe use of members during the recess-- itihad no doubt received their attention— he consi- dered it necessaiv i^ make *his eiplanation as a si« roilar measure v;iii8 !:^ow pendip^ before the Legisla- ture of the Un}t ci ^fUes, tha* he might not be coo- aidered as following l!:e eiample of that Country, and therefore draw upon himself the epithet of De- iiocrat. The Bill now proposed went to do awijF \ ts / I imprii.iiikiCQt for (Jebt^-«BDd to rtUitge all tboie oow io cooQnemiBiQt, on condition of ihoir giviig bail not (o leave the province — it »fforded f^ aecunty of property when there wai any, to the creditor, hot repealed the unjust and arbitrary power, which th» law now gave him over the perion of hii unfortunate debtor, it provided a punishment to be inflicted on frandril»Q' debtorsi at a <;rime against society — it fnu'.<'.'. ^ . i'udas a public offence, but did away with tine tftower of incarcerating a man's body in a jail for tbai vbich might more properly be considered a misfortune. The barbarous practice of imprison- ment for debt had been borrowed by the Ronians from the Grecians, and at one time the Roman law allowed the partition of the man's body for the pay- ment of his debts — this was afterwards abolished, and the debtor was confined in irons. The time was in our own country when the latter practice prevailed — it however was not now the case, but the body was still liable to imprisonment. The law in its present shape was attended with many hardships and cruelties — an unfortunate debtor at th0 institnce of a hard hearted and merciless creditojr might be dragged 60 or 70 miles from his family and be thrown into prison, there to remain cut off from the society of his family and friends, at a time when he most needed their assistance, deprived perhaps of the means of obtaining the. common necessaries of life, not for any offence committed against the peace of society, or the public, but in many cases to satisfy Jhe vindictive feelings of some remorseless creditor— be knew of an instance himself, which existed {kt least it did ex- ist, unless it had been lately relieved,) where a man who. had served hie country for many years, with a wife and seven children, and with seven wounds re- ceived in defence of bis country, had been kept in jail, and punished by a rigorous imprisonment for years, although his case waa one which admitted of doubt whether he really owed the debt or not. The 24, I k* r R 'lifdw^t B'Hl i^ns'sach fin onei as he thought must re* iedaitbend ttfedlT td every humane mitid, for lie cotiBi- ^ted it the height of cruelty and humanity to imp^i- ^on the difbfor who was wrlKug to pay his debits. The Bill offered .no injustice to the creditor, as* it 'gtfire him the security of pn&perty,^nd protected ^he pUVHc against th^ com'missipn of fraud. The! le^s- iature had from time to time pasied laws for the timdior^itlbh of debtors, but had stopped short: in tH^ir b^neVoYebt' intentions. They had provided ^jail Amits— they 6i!ipp)iec|. the imprisoned party with 'an dHdWafiici^ ofiive shilli'ngs per week, when bis me^ni of self dubsidtence were ' exhausted-'the aged w6re reteais6d--atid tn^ieisures had been propoi^ed for' thbse .owitig mo're moderate debts^-these were what he Would term but mors'els of remedies — he w6uld go the full iengib,' and do away with the barbardud cbs- tcdn ofaltoWtog litiy mtin to medsure but the quantum df punishment to be' inflicted when he himself abne wtts tfonceru^i), and thus deprive the country of 'the benefits' of the induistry of th^ debtor, Which wduld alsb enable him the more readily to dischii^rge his debts^he would 'not uttetilipt to justify fraud ujdon finV grouhds-^thie: man who abandoned his fat&ily and left Siem t0sikrve was justly considered a§ a epeeta- (^ledf human Ideprkvity-^nd yet might iVnot happen that fifler \ij/ti^ and rigorous, imprisoriment, at the mercy af his' Creditor, the Debtor had' been driven by 'despair to msike a conveyance of his propi^rty, for the support of those who were mok'e deiar to him thati life, whidh would be considered as legal fra^d, add pleaded tn ektenuatibn for the very man whose cruelty hftd driven him to ))ursub a course, Whiicb ^{id he enjoyed his liberty, bis mibdivould bavete- Vtl^ted dt. The bill wbuld have one good tendency; aff it wbuld' restrain the custom which prevailed tod g^n- etteiliy of e'xte^ding credit, li punii^hed the conceal- liient of property, add the lindue obtaining of credit . as fraud, while it properly withheld a power which ^hiflRl&fiOt \m eairufft^d to the capriqe or igi?arioe^df any individual, and which power was liable to aii3r mhules-^ifi all othi6r Cases the law did not allow any ■tnaa to puniah or awiiu'd the amount of dabage in bn •own case, ^nd why should this be the only exoepttoi *^hoald it be endured that any nian,could at his owlr Insfliace imprison bis fellow creature, during plea^ 8ure«-*-wa8 it not Repugnant to common sense Und liamanity-^It often happened too, that the imprisdiH 4nent was Yisited on the most innocent — ^midfortiiM, sickness, or the injustice of others, might throw M innocent: and honest man on the mercy of an obdu- rate creditor, while the guilty cause of bis misfat^ tmnes escaped : unptinisbed-'-the elements — hurri- cane and tempest^rr-the loss of office,' and with it< tbft loss of bread, might place an unfortunate debter Hi the situation he had described. The law was bar- bardus and should be done away. The Indiaibli were said to.be cruel in War, but fn peace they es- ereiaed no cruelty equal to this. We should gite up old prejudices, and do away with this remniaitit of barbarity. The names of men distinguished fek ieariiinlf and humanity ,"— -Bacon, Black — Eldon — Ellenborongh and Dr. Johnson, could be adduced •aaathorities in favor of this nieasure, as it had re- ceived their sanction. The bill if It should past into a law, would proclaim a jfrt>ilee throughout the province — it would restore many unfortunate and innocenr Alien to their f&milies and friends, and re- flect the highest honor on the legislature* ■ ' ' Mr>. Bidwell^ after the able speech which had been made by the learned gentleman, conciidered ii unnecessary to make any further observations^ — h6 concurred in the opinion, thst it was uiijust and cru- el that any man should be at the mercy of another; and liable to be imprisoned as long as malice might dictnte — he would punish.fraud as a crime, but not visit. the debtor with the hardships which the la^vr ^miy'ih C *-m'-*. a •^j.i — lU - ^ M 'l^ m ^K ■^pr*f«w<*^N^»-^»* 26 '^\ .i now indicted upon him — the practice was barbiroov ■and should be aboli«tied. Mr. C. JoneSf bad opposed the principle of the bill on a former occasion and should continue to do •0^— he considered the creditor was entitled to some consideration, and be belieyed that in most cases the Jionest debtor, always received consideration from Jbis creditor — if the present bill, having a retrospec- tive operation too, should pass into a law, it would produce a serious change in our commercial relati- iOnSy and seriously affect the credit of the country. The bill was reported as amended, and ordered for a third reading on Monday. Mr. M' Bride moved that 600 copies of the peti>- tion of Robert Randall be printed for the use of jnembers. * • » Mr. C. Jones objected, as it was unusoal to print the private petitions of any person— he could not aee the object of the motion unless it was to circu- late what the Petition contained throughout the ' country — he waft surprised that such a motion should 'h^ made. He was followed on the same side by Mr. J. Jones and Mr. McLean. The discussion led to a question of order, and the house was cleared of strangers. 'On the door being opened. . j^^i ; The house adjourned. Monday t Jan, 15. Abolition Bill — third Reading. Mr; Perry, would move the recommitment of the bill, as he considered that some of its provisions in their present shapewere^not calculated to produce ^ good 'effect;r^4i8« the. i bill .now/f tood it did nut go to do, :whftt it pfofesaed-H^it ts^calied ,an at)K)lisbi]&ettt of imprkonmcnt for debt, hut he feared! tha^ where one ^fts jeleased from prisODV it might be the meaiis of Sejadiig'twe or three others tb jail— if bail ccluld not be found the person must go to jail — indictments 27 for fraud could be found in the Quarter Sefisions.but Blust be transferred to the Court of King's Bench for- trial, and the parties might remain in Jail for a twelvemonth. lyfr. lafferty would move to commit the bill to the flames— ^we had already laws enough to make people honest — ^this Bill if it passed would cause the ruin .of many persons, who had entrusted their pro- perty to others-— The example of the United States with respect to the opportunities which they afford to dishonest creditors to evade the payment of their' debts,, was enough to shew that such a Bill as this would work injustice, and be the ruin o^iKiany fami- lies— A late misfortune, had caused him to lose hii all, and it might be; .said that- he was now at the mercy of his creditors — With lionest intentions be had nothing to ^ fear from them, without such a law as thJs-rHe should oppose it, ■ and more ita Mng need three months whence; ^ ' . ; i v^fuvvifi4i*{.,v !. i Captain MaUhewsvfW friendly to the principle of the bill, but thoojgh there were manfy-good points i» it, it bad its defects — By its provisions; a maa*8 whole property might be taken from him for the payment of his debts; and if this was not sufficient to satisfy them, the fruits of after industry might be wrested from him alsb; this he thought inkproper — after a man's all was once taken from him^ he should he free to exercise his industry for the benefit of Ivimself and family, without being liable to be stript a second time — As the Bill, however, contained the desirable object of abolishing imprisonment for debt, he should sfive it his support. , ThelAUomey Generai said, that not having been present when: the principles of this measure were 4iscu8sed, and when its different provisions were debated in. committee, he had not the opportunity ol' knowing how fai. it was supported by the general #eose of the House; or whether there would- l»e any use . in offering, at this late stage, the objyctions M! .p Jl III l«l I «■ ^8 i(rMch h^ eotertained agaiost the bill. If, indM^^ i^ wi^ ooe of thtMe measorea whiph were so often characterized in the home as liberal measures, he thought it most probable^ that h^ might as well sate himself the trouble, and the house the detentiob,-or pointing out the evil«, .Which he was convinced, W4»old result from il in practice ; Indeed, hefelt Jit- t|« encouragement at all events tor that migbt very jieneibly affect the commercial in- terete of the-ceuhtry* r^e had last yeat? proposed « Bill, providing that when a debtor should remain imprisoned beyond twelvef months, for a debt dot ^ceediipg i^20, he should be discharged from con-' 4n^nien|, on account of that debt, leaving his latids iKul goods stUl liable to thercreditor.— So far he tho^gbl w <^ams they ihotight it went; too far; and by ethers,' lieipause it did not.go far enough. . After discussion,^ iipwov^.rilt was adopted^ but was rejected in the o^hor, branch of the l; but would not/ upon the third reading, do more than * stete his objections to the leading principles of the > BiU« and should 'not embarrass the discussion by re*' marking^ on 'ihe several clauses, xilc triiiited ibahi ; '; 29 ■,M." s memben who could not assent (o a Uill so wild in its object, and 80 defective in Us details, woild ii^e ha^e .credit for Jjbss bMinanity than' the hon. .and lealrned ihember who had prtiposed it. No dottbt, as individa'als, they . would feeL the sace compa^onl for^debtors imonored in a prison, though the^ tntght not feel tbemselres at liberty, ai Legislators,' to in- dulj^e, tho^e feelings, so far as to adopt an innoVatir OD wfaiph might he rninoas to the .interests of it^ xonntry, and for which an example had not yet been setjbiy other Legislatures upon whom the'saoyia charge, upon similar grounds, had been frequently urged — That if the present bill passed, aboHshiqg entirely iniprisonment . fojr debt, it would be found, that commerce would be checked, and the monied transactions of the country seriously -affected. - He Would- ask whether the banking institutions, from which so much relief and assistance had ac- crued to individuals, could or would, be so liberal in their accommodation, under so entire a change of circufiistaHces ? Would they venture to lend their capital to persons who, though they might have the means of payment, might set them at defiance ifith impunity ? Could we expect that our merchants would hereafter obtain thie same advances in Lower Canada,' when therr creditors found that thiey had but their character and integrity to trust to; and that -tb^ had no longer the means of' compellibg pay- ment from a dishonest debtor? It had been asked by the- mover of this bill, wbethert he merchant^) In - Lower Canada advanced their money or their mer^ chahdize in the anticipation of having the satisfac- tion of confining their debtor within the walls of a prison ? Certainly not — but that was not a fair and reasonable way of putting the question. The for- eign merchant, he admitted, when he gave the cre- dit, looked to the meatus of the party to pay, and made his advances on the faith of those means ; but then' it jwas necessary he should possess the power c a Bpaaa *30 of ii^»ariog the^hoQeat application of those meatis---* Aflihe law DQw, stood lie had that power — if this bill should pass he would no longer have it. It bad oftepbe^n proposec} in the legislatures of the several l^tat^s of America,, to abolish imprisonment for diebt. )>Ut the proposition had been usually r^gardejd, i|^ one Jncoosistent with the interest of society* And in tl^ij! province, perhaps more than in jili;nost any Oilier, we should doubt the safety of so wide a de^ parti^re from a system , that prevails every wb^re ^IseTTrWe border upon a foreign country, from which etraogere of apparently respectable character, are almoft daily arj^iving among us — every year ; brings Ihomfinds of settlers froid Europe, whose integrity and means must be judged of from appearances. Tb^ credulity of the people of the province, in reposing tonfidepce in strangers, was gfeat, and it was we|l it wai so, as it enabled them to obtain assistance ;Bod overcome their first difficulties ; but too frequently the trader found he had been imposed upoo^ — ^nd if ibis last and most effectual measure to compel e fraudulent person to pay his honest debts no longef existed, he feared that the. whole course of dealing must be, changed j and a very considerable check given to the trade of the country. It was an error to suppose that every person was imprisoned from mere inability to pay-— it Was oflen otherwise ; obstinacy, a litigious, spirit, or a fraudulent disposition, not un- frequently induced persons to suffer a long confine- ment, which, if they could avoid it they would. No profensiooal gentleman could have failed to observe many instances of this,, and all must Jcnow that many an hoTOSt debt bad been .pai^, which, but for these means of compulsion, would never have been paid. He thought besides, the abolition of > imprisonmenjt for debt would, be hurtful to the person dealing, as well iis the person d^^alt with— ^he was convinced, if the fear of this last remedy no longer iippende4)^ i J 31 bill baa reral lebt. M, 3 Aoi any thany personi would embark more beedlesily iii doubtful «peculatioD, and many would, withi less.re- fer?e, exceed tbeir income, Jifld incur expenseis ber yond tbeir ability to meet, ^e sbould look at tbe question in all points of view^ and tf we did, bb,wil# satisfied, it was frnpossible tbe hou/e could pass tliit bill— its iqiperfections were glaring and manlfesi—^ l( pretended to i^fford a protection whicb in trUtli amounted to notbing— it gravely provided tbat (f anV debtor by ■ fraudulent . practices contracted didbt or evaded payment, he sbould be b'eld to bail, or <&0m- mitted for jtbe fraud and subseqt^ently tried for itt and tbat the fraud must be charged in proper leg^l form. — This was all Very well, but surely the Hous^ roust see, that fraud in a moral view, and what th^ )aw designates and treats as fraud, were very dilTer*- ent things — A debtor might shew his creditor enougb money to discharge his debt, and yet refuse to piiy him, and set him at defiance— however dishonest; So the law would be if this bill should pass-^money could not be seized m execution and there would be no fraud. , The bill did not extend tlie bounds of frs^ud as an ofieuce against law— it professed to noak^ no change in that respect. A person mij^ht take up J^lOOp worth of goods, and before the credit expired convert theni into money, and live upon it, boldioig bis creditor at defiance — or before an execution was !»• sued he could sell his personal property, and leave the creditor no remedy — As the law now stood he could be put in jail, and compelled to disgorge — if (his bilt should pass there would be no remedy— ^be cbuld not be punished for iraiid, because ' the law allows him to do so, and this bill does not declare any thing to be fraud which was not fraud before—He pdint'ea out the injurious effectsof the bill, and concluded by expressing his qonfidence that the House cbuld not think iV right to concur in it.^ Mr, HamiUori said, that as he considered soitie of 32 the claasei ofthe bill imperfect, be should vole for iti beios^ recommitted. ., ^ ;, Mr, M^Bridt consid^elrj the principle of the bill to jbegopd ; it did no injnitice to the creditor — Al'the lair now atood, a man might be deprif ed of the op- fiortanity of providing for his family — he knew an in- stance where a person bad saffered a long imprison- ment m^astly,.;and the Attorney General badbeen instrnmental in getting him liberated^-be should sup- j)ort the bill. Jlfr. BtcftveU said, that he drew. a distinction be- tween fraud and misfortiine. > The one was deserving of punishment, and this bill went to, inflict it-r^lo thfs (poontry there was not a bankrupt law for the dis* ^chargeof debtors, and there need be no apprehen- sion of ipj^Hng the rights of creditors by this bill. » ,. .Capiilin' Maiihiwa said,' that confinement for debt was btafbarouSi and particularly so in some'of the jliils in this province— the Niagara jail, for example, be said, was , not fit to keep hogs in ; and he had no fibubt that, iu t^at jail had commenced the aberration •of mind which Gourlay laboured under, from' con- iiQement in its' cells— He himself would rather be spld a slave to the Dey' of Algiers, than go to the cursed cell where Gourlay was confined. Mr. James Wilson thodght ' that the bill should be reheard, the coirntry was already in an awful st9te, and did not require so many bills — few were now iabfe to pay their debts, and it would be better to do something to relieve their distress than be passing so many bills — He would compare this colony to a per- son in the agonies of death, with a weeping family roupdhini— the doctor' is cramming him with pills, and the legislature is cramming the country with bills — this system of bill upon bill would do no good— without time being given, many families might be dri- ven' to distress,' and he saw nothing doing to assist Ib^m — to use a seaman'^s phrase we should lie«s mmm ft Mr, Beard^ley. — The learned morer of. lb« bill btli leA mothibg frntsid on the merits of the queitiop. As to (he remarks of another hbn. gentleman, he ^Wemldackrioirledge, that legal men did sometimes practice imposition, but thoosht. that could be no good reason for running do#n the whole profession. He had heard great complaints of physicians getting paid, first by the government find then by the pe6- Ste^-^IJ^ the lawyer charge more than he ought t6 do le may be punished, but physicians are under no rMlraitots, and make as long bills as they please. Nor i#efe the merchants altogether free from faults, WbOtithey give credit they cnarge more than when they sell for cash, in proportion to the risk the^* suppoise themselves to run — and in 6 months some of them make out accounts, and afterwards add in- 'tetest'Upon interest, until they have the poor debtors •dM^ly in therr j»Qwer. Mr. Hdmilt&n cbiild say nothing that would add 16 the eloqu'ence of the mover, br his arguments in lU^port c^this bill-^ihose who put people in jail, aftef taking alf their property, and who keep them (hiere, noi only tax the unfof'tunate debtors, who hAte nothing to pa}r, but also the generosity of all theit friends, who haVe to collect money for the(r relief, and atone for their misfortunes. In former days kings and emperors were very desirous to msike all men of one religion : — an emperOr (Charles Vth.) tried to make every body Rohian cethblics, but did not succeed — He afterwards abdl- ceted, find w^nt into a monastery, tvhere he trieid the eiperimen.t of milking .clocks and watches*go togetlier : iiit notbeihg successful with those^ mecha- nidat things, he wondered greatly why he eveV could liave eipected to make human beings of one religion. — So it was in regard to law : there was no |.ossibi1ity of gettiug all men to think alike on quei. tibtit of expediency. I 37 bill lop. he aei 6 no iob. ' J&fr. Bidwell reftd, from the Uppef Cnnada Her«ld the opinions of a great many eminent and learned men in various uges of the world,. who bad been op- posed to imprisontiient for debt — among his autbori* ties was the Lord's Prayer. *,' Forgive our, debts as we forgive our debtors." Whether this bill pas- sed or xiot,he was satis^ed that the time would come when imprisonment for. debt would.be. abolished in all ca.villsBed nations. , ^ Mr. C. Jpnes said that the arguments he had heard in favor of the bill ^uriugthe several sessi- ons in. which it had been under consideration, bad not induced him to be in favor of its provisions.-r" If the principle of the bill were adopted. the security* of the creditor would be destroyed — commercial credit, would be at an end. He owntd that the bill bad been brought forward with great ability. — luial- luding to the case .of Jonah Brown, to .which Mr.: R. had ,advectedf he would say thatfthat man, with a perverseness which not one Jn a . hundred would have ihewn^ had refused to pay an honest debt— he owns. much property, and is incarcerated because he will not;allow it to be sold-f-he had made an offer to pay 80, .much, his offer had been received, and then be withdrew it again, and chqse to jemain in jail. Mr, Cp^emansaid that if the bill took a retrofipee- tive view as well as a .prospective one, if it applied to past debts contracted undev ^be law. as it is,. be conld not agree ijvitbit-^as it altere.di the security under which the debt had been cpntracjted ;rrrrbu.t if it was, only prospective in its application ajnd not.cal^ culated to tidce .the people by jsurpri'^e^ he would vote, for it. iMr, C. Jones. , This would not .Weaken his objec- tions, to the bill-r-a man of good .reputation and pro- perty, msgH obtain credit ; and instead of paying at ,the appointed time, might at once.^ell hU pf operty, ', put the money in his pocket, and 9»y it Was all gone. D *tf 38 Sach coDciuct the law would consider no fraud^tbe debtor could not be incarcerated, nor made to give up to his Ck'editor the money he owed him. After several of the clauses had been read—' The Attorney General rose and said he saw a decid- ed desire to pass the bill on the part of the commit- tee. — The ingenuity and eloquence of the hon. mem- ber from Middlesex he was willing to acknowledge ; but could not take the same view of the bill before the committee. — The opinions which bad been read to the committee were, the opinions of great moral- ists ; but were not such as they could be guided by in the present state of society in the province. In re- spect to persons now in jail for non>payment of their debts, he could not support a measure, which would allow them all to quit confinement without satisfying in any degree the claims of their creditors-They had no bankrupt law — no means of compelling debt- ors to discover what they had done with their pro- perty, they had no Equity court in operation — how would the country be left if the legislature were to pass this law — A debtor might sell his estate, and go over to the United States of America, and set his cre- ditors at open defiance — No creditor trusts his debt- or for the secret satisfaction of imprisoning him, but he trusts to that resource to compel him to disclose his effects and pay his honest debts. As to the case of Matthiew Leech, who was incarcerated at the suit of the late Mr. Richmond of Kingston, an honest and just man, the statement of hardship would not be borne out by facts. Mr. Leech would not pay hia just debts, arbitration was offered to him and he re- fused it. Mr. Richmond is now dead, and Mr. ' Leech released from confinement, he having at last compounded with his creditors, and paid them what he could according to his means. Two yearaago he (A. G.) proposed that they should imitate the British parliameDt, in a measure passed twenty years age 39 )pr6?iding that if any person shall remain confined six months in prison, for a debt of j^SO or less, he may be released forever, bat his goods, and the visi- ble property be may afterwards acquire are held responsible. There were, every year, thousands of persons from Europe, with no satisfactory testimonials of character from the country from which they arrived; Many of these persons can easily obtain credit — but if, on trial, the creditor should discover that the per- son be has trusted is of an indifferent character, he has the means in his hands of incarcerating him ; and without a power of arrest these people could obtain no credit. Of late years some of the commercial houses in Montreal who have been pressed by,their creditors have failed. They had not, however, been liarsh to their numerous debtors in this colony, nor are creditors in general in Canada, accused of being severe. There had been cases in which debtors had taken and sold their property, and if this bill passed they could set their creditors at defiance — He had known instances of persons, reputed five or six years ago worth three, four or five thousand pounds, from whom their Montreal creditors would be glad to get five shillings in the pound, although they are still able to pay twenty. If they should pass this bill the numerous frauds that would ensue would cause the people from one end to the other of the province to raise their voices against it, and for a return to the present mode. He thought that if the bill were pas- sed, merchants in Lower Canada and the United States would not trust the province. The provision before the committee said that, if any persons com- mitted any fraud (hey might be indicted for it — but the bill left undefined what fraud was. There are people here who owe £6000 in Montreal, and wha have many little debts due them,to perhaps j£ 10,000. — If this bill pass they may give over shop- keepings 40 and keep the monies theyxollect, seiting their credi" tors at defiance. Th^ oioyet of the bill had said that, becaoae cases of harshness had occurred, this bill was necessary to prevent their recurrence. Such cases were very far from being general— there is'a case of a debtor now inr jail in this district for JS3000 ; he is, very probably^ honest ; perhaps be has' a family who depend npi>n him-^I do not know h6 dan ever pay the half of what he is- iofprisoned for. Hts creditors think he has some means, and hie wont pay anythhig. They say to him, enforce pay- nient of this defotr now- owing ydu,gWe up the lands- yon own, and for which ydu'hBTOsooght no g^^at title, pay ur £6G0 and we will let you go^ If th«» hill wiere [iassed, this persoii would walk out of jail,- and kbep all he has, and his creditor^ could neither indict nor harm him. H^ did not consider it in the power df than during the present session to; provide a remedy for all the evils the abdiition bill would en- tail. Jail: limits aife now allowed and they are am^*' pie, any debtor who could procure two friends to be bail, not for his debt, but for bis honesty, merely for his keeping certain' bounds tiU he had satisfied the debt, might enjoy these limits*-^the learned Attorney General went into the consideration of several clauses of the bill, to a length which otir limits will not al- loW u» to follow — he said that in ell his dealings he never took out thi*ee writs of capias ad satisfaciendum, he was not sure he had taken out two, in all his prac- tice, during a period of fourteen or fifteen years. If they could fancy a state of society free from guilt and free fromcHme, and in which punishment would be unnecessary, such a bill would be a wise and pru- dtot measure, but among the mixed population of this new country no such visibnary expectations could be .*The reader will bear m mind that Upper Canada is meant, not Nova Scotia. 41 formed. Id Scotland and England, among a concen- trated and moral population, this experiment had not been found successful, nor 6t for society. He had not imagined that this bill would have been enter twined by a majority of the house, but he perceived ii was so entertained by a large majority ; he did not therefore expect to convince many there present of the improper tendency of the change. Mr, Bidwell said that the extracts he had read to them, were not the opinions of mere moralists — he had quoted the Bill of Rights and Magna Charta,.^ Lord Bacon, Lord Coke, Sir W. Blackstone, Lord Chancellor Talbot and Lord Eldon : these men's opinions were entitled to weight — they wer^ the opinions of men of practical sense and wisdom, nor did he think what was morally wrong must be politi- cally right — the learned attorney general had not examined the bill with attention — if a man intended to leave the province his creditor might require se- curity, and if that security was not given, the debtor might then be imprisoned — the law was unchanged-- the avails of the debtor's industry might be taken afterwards wherever they could be found. He knew a case of a person who was then, and had been for months in jail, at the instance of a creditor, actuated from vindictive feelings. A law affording no relief in such a rase was an unrighteous law and ought to be repealed as a disgrace to the statute book. — The learned Attorney General had said that fraud was not described in the bill — He(IVrr.B.) was of a different opinion, but if it^id not define fraud that might still be done — The learned gentleman is surprised at the change which has taken place in the minds of mem- bers, and lays great stress on his honourable friend's speech ; — it was the effect of conviction, the change would be slow and gradual, but certain and irresista- ble. If the right of imprisonment was a law seldom used, and the learned Attori^ey General bad seen tha Da 42 debtor HnprUoaed ia only one or two cases, during hi& exteosi ve practice of about fifteen years, in this populous district;— thsre could be the less objection to its being taken away. Id one of the States im- prisonment for debt bad been abolished, andin the general legislature the same measure had been ad- irocated by some of their most eminent statesmen. England was a commercial country, and any altera- ' tion in the law there might be attended with confu- sion, but here they were in a new country, where such an experiment could be more safely tried. Mr. Rolph rose and said that the Attorney Gener- al had adverted to instances where property did .actually exists but not so as to be available to the creditor, he (R.) would repeal the law because there was no legal conviction under which a creditor acted in imprisoning his debtor, he merely had an inducement to do so arising out of his suspicions — The learned AltOiO. General would find it provided • ihat the creditor may seize the debtor,and get secu- ■ Ttty for his not leaving the province until he batisfies the judgment, and that there is a lien also on all the debtor's future effects. The learned A. G. had only used one or two writs for imprisonment in bis practice, but had other lawyers issued only one or two ?-^-ln ancient Rome a man was publicly sold for debt it) the market place — When the philanthropic Howard took his first tour to different jails in En- gland, he thought imprisonment had not been so great a punishment;— but put misery where it could be seen, let nothing be done in the dark, from the pillory to vhe gallows. People in confinement for being in dc''t are often removed far from their friends — there was the case of JonahBrown, whose friends, wife, and family are in the Johnstown district, while he is incarcerated here in York. The committee fiiight be told that few had suffered from the inquisi- tion, and that there was no great harm in it j bi|t we 1 p r. 43 * F do not know; — the tribunal is secret and the punisb- ment unseen; a man may perhaps pay a small debt but a large one is more difficult to liquidate. The learned Attrn. Gen. hag said that a small debt ruins no one^ but that a large one might-^The ruin of the creditor would not benefit the debtor. They had mortgages, plenty of them in this province, and it bad been said that one quarter of them belong to the lawyers, one half to the merchants, and, he hoped, the other quarter was owned by the yeomen [here we were out for some time.] The learned Attorney General has supposed 9 or |0 debtors mulish and dishonest, he (Mr. R.^ would suppose 9 ov 10 creditors harsh and tyrannical, who take every advantage of their debtors and place them in jails,-*well knowing they have no means, but to gratify vindictive ieelings-^- Was it right and compatible with liberty that credi- tors should have the discretionary power cf impri- soning or not as they saw fit ? We have been told that this is an ex-post-facto-law, and the Attorney. General had enquired whether we ought to take a. way the remedy without providing a subsistute — He (Mr. R.) took away no remedy, — ^sell the lands, sell property, take goods and chatties— but do not allow the poor and honest man to be placed by his unfeel- ing creditor in a dungeon. If the committee had given debtors the limits of the jail, who would refuse them the limits of the province .^-^if security is given why refuse to extend the limits over the colony ?— the debtor would have the more extensive range, and be able to turn his industry to better advantage, ^nd so pay his debt, The A. G. had said that the moment this law passes, creditors will sweep away their deb- tors^ property. Which is better ? To sweep away a manor to sweep away his goods ! Now the property istaken, and at last the person. There might be cases under the proposed act where a man would say ^' you cannot imprigonme now, 9nd I wont ppy u yoa," but let such a case occur, still it would not be an argument in favor of allowing an innocent man to be put in jail. The Attorney General did not expect to conTincei the mover of the bill that he was wrong ; but he(A. &) thought it would require ^he deliberation of months to frame clauses to render the bill advisable. Suppose a man in difficulty and going to the Uni- ted States — and that he get ball and forfeit his bond — there are many men who though they would have paid their own honest debts, do not care for paying a bail debt. These may put their houses and money and property out of their hands. No man acts with- out a motive, and creditors have no inducement to be tyrants: for if they find their debtors to be honest there can be no advantage in putting them into pri- son, where they can do nothing. He would grant that persons were frequently put in jnil for debt, but they are kept (here at a dollar a week beyond the period at which the debtor becomes convinced they have no property. Let the hon. mover and himself (A. G.) visit these dungeons and let an appeal be made to them to relieve the inmates, and he would go as far as that gentleman ; but he did not wish to be considered as inhuman because he endeavoured to keep in mind, that as a legislator he had duties to perform to creditors as well as to debtors; and could not consider the feelings of the hon. mover of the bill (" whether actually felt or merely avowed") of humanity, as a rule for altering the existing laws in 80 important a matter as confinement for debt. The learned gent, had expressed surprise that he (A. 6.) should have thought it advisable to release small debtors, and not large ones — If he was mistaken in his views he took along with him the whole oftheBri- tish legislature. It was thought in England that a debt of j^SO held out no sufficient inducement to a debtbr to continue fraudulently in jail for more than tix 45 month. It is afterwards taken for granted that he has not the means. Bot^ifthe simvfoi* which he it confined isj^lOOOand if he has comfortable accommo- dations in prison, or the limits, he may remain a year rather than sacrifice his property, when a short confinement will render it safe. How often had theyfolind persons, who in adverse circumstancet^ had forfeited that character and honest principle they had maintained and enjoyed for years. Would it not be easy to point out cases where men who* had formerly obtained thousands of pounds on credit, but who from their conduct, could not now obtain j^lO or j^l5 ? He would answer for it, that in the transfers ^f property which take place in this coun- try, not one' in^ fifty had a mortgage as a security ; but if this bill were to become a law, those who had given credit would be without a remedy. [The A. G. here- instanted a case where a person in York who would not give up his lands was imprisoned, and released as soon he gave up his lands andeffects to pay hisjustdebts, and added, that this law would have allowed the debtor to defy these creditors.] He had not found in the jail of this place many debtors, and experience taught him that in this country ere** ditors weve not cruel — he believed that in the jail of York no person had been confined- for any length of time, with the eitception of that singular debtc? who had remained for yearst. He was opposed- to the abolition of imprisonment for debt in any coun-^ try. Pel ha^ hereafter, the ingenuity of some per- son wot'ld suggest a happy frame of measures, such a» would oblige a.debtor to disclose the true state of his affairs : until then he would defer the abolition •^—No one in England would have advocated this measure, unless combined with proper precautions. There a debtor who gives a dishonest account of his circumstances may be transported for felony, tiiere a man may be declared ft bankrupt and ruined. .In 46 t^irer C&nada a man might be ruined by the pro^ posed law, while his debtors here defy him and li?e ID affluence — la New York^ since the imprudent re- laiation of laws touching contracts^ men might be seen driving their carriages and four, and living in splendor, whose dishonest failures had ruined hun- dreds, but who could not be made amenable to pun- ishmeht, nor their property taken from them. Ab- olition of imprisonment for debt under this bill) he did think, would be dishonest. Mr. Jonas Jones said that in the district of Bathurst there were 12,000 souls, but not one of them was in jail : in the Midland and Johnstown .districts thsre were comparatively few confined for debt--The At- torney Generars argument had been, not that this measure of imprisoning was often used, but that it stood over the debtor as a remedy in the hands of him who had confided his property. As to Mr. Jonah Brown, persons would be found now who would give him j^500 for his property over and above the debt he is confined for. In the dower bill (introdu- ced by Mr. Rolph) there is a provision that the wi- dow may bring her action against the goods and chat- tels, and failing in that, may place the body in jail; how could that clause be reconciled with the princi- ples of the bill ? Yet the same gentleman had brought them both in, and in the same session too ! Mr. Rolph would as soon allow doctors to make eiperiments on living men, pro bono publico, as to place it in thv<». power of creditors to make experi- ments upon their debtors how much the latter could endure of the horrors of a prison, lefore they give up that property they are or may he supposed, but are not known to possess. Better it were that the seller of property should tuke his mortgage, than that a power should be allowed him of sitting in judg- ement, upon the bare suspicion that his debtor could pay, with power of ijmprispnmejat for the term of 47 he his natural life. If a creditor neglects to take secu- rity, they ought not to confer «. power of imprisoning the debtor on him, as a reward for his neglect. Doctor Lefferty said that if the remote cause of im- prisonment were looked into, it would be found to be the debtor's own fault in taking credit. This said be, is an agricultural country where the merchants de- pend on the growing crops for the payment of the year's credit — this bill would ruin the traders, for it took away the power of the creditors to collect their debts, unless the debtors should be pleased to pay them. Mr, Beardsley offered an objection to one of the clauses, as leaving it in the power of the court to de- cide whether a defendant might or might not tra- verse ; while in the present practice a man might traverse as a matter of course. Mr, Rolph explained. The clause was carried. The bill is to continue in force for four years. The committee rose — the speaker took the chair. Mr, Gordon the chairman reported the bill, the report was recei.'ed, and the bill ordered for a third reading. ke to IMPRISONMENT FOR DEBT. « May, 1827. A document of considirabfe importance has just been laid on the table of the House of Commons — we mean the return ordered by the house of the number of persons confined for debt in the various jails in and around tbe metropolis, and in the several county and other gaols throughout Great Britain 48 and Ireland. The return for Eritflaod is divided in- to three general heads ; the first containiog the number of persons in piison on mesne process ; ;lhe second, that of persona confined on judgment reco- vered ; and the third, those confined for costs onljr. Id the return for Scotland^ >where\ tlie law of debtor and creditor is coDsideraJbly difierent, the distinction of mesne process is not known,, and. in that for Jre- lapd, the three Glasses are not distinguished. The . number of persons confined for, costS' only, is^ncoh- ceivably. small, not exceeding three of four. In the returns for England, the debtors are dlstingui^d — first,, in respect to the time ihey faaye beeq in ptifon, and secondly, in r^speft to t)ie sumarfof vvhich .^b^y have been ai rested. , These, distinctions. are .oqly paitially attended to iii the return; for Irelapd* Ttve document we are noticipg contains, it ovght to be observed, the number of persons in coyifin^m^nf on one particular diy, name^, the 29th, April, .1826 ; and it does not coinprehend any of those who are in custody foicontempt of the Courts of Chancery and Exchequer, not for debts due to the Crown. The total number of persons of every description, in prison for debt, on the day above mentioned, in Great Britain and Ireland, amounted to 3,820 Of these there were in England, • . . 2,860 in Scotland, . . . 216 in Wales .... 74 in .Ireland, . . . 664 Which gives for England' about: 1 for every 3,500 for Wale? one /or every 7.000 an4 of Scotland and Ireland 1 for every 10,000 Of the 3,|56 debtors confined iti Great. ^Btitain, there '. had b^en, on the -;^^;^9 76 From* tbroe to four years bS For longer periods than four years, . 104 Of tbe same debtors there hate b6en im- prisooedi for sums less than £iO . . 936 t^or mns (ess than £60 . 8U , For sums less than £lOO , 538 , For ^100 and upwards . 841 , Of the six btttdfetl mdsigtty^ibufe' IrMh debtors, iFerf nsiifrly fite bunded weref eonfiaed for smhs testf than £cd^ liia toial ntitiiber of debtoirs cotiifiiied in the di(terient prtsons Of the metropolis and its iniihedt- ate yi'dnitt, amotlhtdd, on the day l^efor^ mehtlbn- ed, to et^te^ii l^uddred abd tblily eight, whith were distributed as f6lf6Ws: Bebknra^ P^ if en for London and Middlesex 519 xpe* V leel 4' •••••••« . Sod Hersemoftger-kme County Gaol ... 88 BorougbiCompter,'Southwark, . . . . 16^ King's Benoh, ......... 835 Marsbalaee i . . . , ... . . (50 n> From an Upper Canada newspaper. INSOLVWT DEBTdR& tn the t>r^fl^iit »fal<£ of the laW in tlik proiitice, we know of no field' fdr eterbking th^ diTlnerirtub of tb^rity-^nO' opportunity of btlbging^ into jiiay tUb noBlbt feeDojgii of tbier bilmtiti betirt^vqual to tbtit atfb^ded'byibsblvent'debtori; In other countries, thdy littve insolvent laws— cbaHttible sopietles^ gaol atfoWi^ciesi— and healthy and dotnthodibos a- partiqa^Hts for the reliief and ac that of the vilest felons. The helpless little ones, (if any such he has) who at home were wont to looic up to him alone for food, now become his greatest benefactors, and out of the scanty supplies that were on hand at the time of his arrest, minister 4o his wants, so long as their little store will admit^but when that is ex- hausted, what is to become of the unfortunate pri- soner ? Or where is his helpless family to look for support? The law allows him nothing, and if the keeper of the prison be humane, (which is not at all times the case, although eminently so in this town) his income in this colony does not permit him to indulge his feelings to any great extent in favor of the prisoner, even should actual starvation threa- ten his dissolution. Where is the man, then , in easy circumstances, that has a drop of the milk of human kindness in his composition, who would grudge to give a dollar or two in the year, in order to rescue a fellow man from such a situation and restore him to society and to the bosom of his distressed family? We therefore hope that somethibg will be done to i I t , 1 I II h 51 afford effectual relief to poor unfortunate insolvent debtors, until an insolfent law shall be introduced, and we know of no better way than by forming an insolfent debtors* relief society, throughou^t the pro- vince, whose business it would be to raise funds for such prisoners as were destitute of means — to act as agents in compounding with their creditors, and to adopt such measures as would lead to their speedy: enlargement. How many individuals, useful mem- bers of society, consigned to perpetual imprison- ment for a paltry sum, could thereby be relieved for a mere trifle? This would be doing the good work, nnd doing it in a way that calls aloud. for the imme^ diate* attention of the people of this country, as some of our retiring and other merchants would seem dis- posed to bring the whole of their out-standing ac- counts to a close by the sole aid of the Ca. Sa. ^ We have been led to submit these reflections by a communication which we received from a .poor industrious mechanic named Wilcocks, now conflned in the gaol of this town for the paltry sum of ten pounds. < He has met with severe losses by sickness and otherwise, and has a small , helpless family on the brink of utter ruin, should he not be speedi- ly enabled to pursue his daily labor for their maintenance. He is well known in town as an ho- nest hard-working carpenter, and we hope the in- habitants will reach out the band of humanity to save him from sinking amid ,tbe angry billows of adversity. .. tif? rn* '^■f ■ iff(^-\ I ■•:* V*-**"a-i*i i 6S CHAflACMR OF A pRlSPN. ** A pritOB is » grwiB ip l^ory meq alioe, ^ pl^ce wbdEoin ft niMi for faalfp 4 jefti!e« esp#rieqQe nmy Ivanie more Uw^ tbaii iMe cm «t W«9tiiiiD MtichiaaeK :>* It ii a place that hath more diaeai^s predomi*; nant in it, than at Constantinople in the plague timew ^* It is a little commonwealth although little wealth is common there $ it is a desart, where desert lies Moodwiackt, it is a famous citie wherein are all trades, for here lies the Alchymist thst can rather make ex auro non aurum, than ex nonauro aur,um. > *^lt is as Inn.es of Court ; for herein lawyers in« habit, that have crochets to free other men, yet all their quirks and quidities cannot enfranchise them- 8el?es. **lti8 your bankrupt's banquetting-house. Where he sits feattiDg with the sweet-meats borrowed from eithier men's. tabl«a, 'hauing a voluntary disposition never to repay them againe. ^^ It is a purgatory which doth afflict a man with more miseries then ever he reaped pleasures. ** It is an exile which doth banish a man from all contentments, wherein his actions doe so terrifie him, that it makes a man grdw desperate. ^* To conclude, what is it not ? In a word it is the very idea of all misery and torment ; it conuerts joy into sorrow, riches into pouertie, and ease into dis* contentments.'* fi tl g 53 char^cxer: of a crediijqp. ^\ A creditor bi^th two paire of bands, , ope. of flesh and blood, and , that, Nature gane bim ; another of Iron, and that the lave giiies bim ; bat the on^ is more predbniinant then the other, for mercy goides the^ one and mammon the ptb^er. Bat if be once consider whal bee goetb about to doe«,and that it is the image of God whom he labouretb to deface and oppresse with miseries and calamities ; then the soft- ness of the one doth so operate, that it meets with the hardness of the other, which neaer comes to passe, but when Grace and Mercy kiss Law and jus- '^Thou takest with one clap; of a varlet's hand, from the courtier his honor, from the lawyer bis tongue, from the merchant the seas, from tjie citizen bis credit, from the scboller his preferment, from the husbandman the earth itselfe, and from all men, (as much as thou maist) the brightnesse and warmth of the sunne of heaven. In a word, if nothing will make the stony heart relent, thou in being cruell to thy debtor art worse than the hang man i bee before be strikes begs pardon, thou takest a pride to con- demn where thou maist save.*' If' 7'fu Bishop of Salisbury's Opinion of a Prisou. • " The grave of the living, where they are shut up from the world and their friends, and the worms that gnaw upon them their own thoughts and the gaoler. A house of meagre looks and ill smells, for • ■' E 2 • • •■S4, Ike drink and tobacco are the compound. Plato's court was ^xpr^ed f^oo^ thi^ fsmpv ;, ii^d the per- sons are much about the rame parity that is there. Yop f^ajr-fysk as Menippfis in {iucii^i^, whiph is^ire- Tus,: w^pfe tfep^it^t ^Wfjt the >?gg^F, which t^e )Knj||()t.;rrr4f|^ theyj\r^ f^H su^M ^ j^bp sfime form of ^ |i|id 4t. iwty poverty. Ppiy tci b^ out i^t e(^ows is ^1^ fa^h^Q^iere .a^d a. great indecprum not to be ^hF«§4b?<^^* 1 * M|r^h bfsse^s stjipidity bv haro|ifiart- re^pess, y^t thley feigi^ jt sopietlmes to slip melaect^o- ly, an4 keep pfiT th^^^selyes from .themselyes, and .tj^etpciqeiit of thinking what tl^y bay^ been.^' , \ < I » '^' • ■ A • ' . i " ' • - , . .. Apr^spnisabouieofca^re, , , A place where none can thrive,' . A touchstone true to try a friend^ « ' ' A^raveforone aliver Soaetimes a p^ace of right, . Soqietimes a place qf wrong; SoQietimes a pl9ce of rogues and thierei,. And honest men among. ^f-f % i '. . . . Sir WHliatn Herbert* 8 Case^ i6y Eliza, in the Exche- quer, in Error, Coke* a Reports' L. 3,fo, 1 1. Resolved, That at common law (except in specie al cases) neither land nor body were liable to exe- cution iii debt or daabi^es reco?ered, hut execution was to be done by Fieri facias or Levari fadcu of l)is goods an4 chattels and profits grov^ipg upon bis liind, but in debt J>rought against one;, i^ heir^ hfs land was liable to ej^ecution, because the pt&intiff had no other reiAedy ; for the goods belong to the •^ r 'M 65 'B r- e. e- le of NTS be ■ Pv« ^'^■^ l«- nd .ff= executors, bn( Ae ItcA^n^fSpioMv^^ lao^ of tlie Kiog;'9 debtor ov 9ccpinyp^p^ wi)^<^ le to execution. Bpt |9 all «ct« vi ^t «iniii8 wbere . 9 capiat lyetb In procetp, Uteris lifter JQ4f(i^nt i^c^iphisad 9atl«facien- dani lyetb,^ ap^ th^. Kieg ^ball b^yc^ a capias pro fine, ancliii $^ci^ paneis |b? 6w, (the jpireaerTer of peace) ,4a|d^0tetb tbebo^y to iieprisoi^B'eci^, aqd by Marie- brijl^ef^ Cr s;3 aoid. «ye8t|nT % c. 11. k capias was gvv- ^ ID ap accprnpi, tb^ process before beipgaqis- tl>lfiB ^nlipite) ap4 by 25 % 3. c. 174 tbe same pro- cess^trep |n debt as in accoupt^ for before this act the body was not liable to execution as aforesaid. Cimop, Miltiadis filiusy Atbeniensis, doro adnie^ dum initio qsus e^t adplescepti^e. Nam cpip pater- ejps litem aestimataip populo soWere non potuisset, i S ^*?mque ^ansam ip yip^uliil publicis dacesfisset ; «.^vB i>eadepi custqdia tep^haturn ni^que lag^ibus A- tneulenslum emitti pqterat,' nls^pecpniam, qua pater •multatus efset^ solvisset, £(p. Com. Nep. in i^ita Ci-^ monis. . Mercy to Debtors eiyoined.Kor«D,C. 2, vol. 1. p. 49. *62 «en. 3, 12^7. tl3 Ed. 1. 1284. JtS^O. He- > r ci^ ce- ion of bis hfs tiff the 'M IMPRISONMENT fOft DEBT. * In answer to a letter from Mr^ Cook, Chairman of a Copimfitee iP N6w York on the subject of abo- lishing imprisonment for Debt, Col. K. M. John- son, of Kentucky, addressed the gratifying statements that are here apnexed. In Kentucky, tbe system was adopted in the win-^ t'^ 56 ters of 1821-2 ; of course it has been in full oper- ation about nine yekrs, and during a period of pecu- nary embarrassment, sucb as' the history of the State cannot fnirnish a parallel. ' At the commencement it encounteried some considerable opposition, because a part'bf thr system was not retained to operate up- on fraudulent debtors. But as it became better un- derstood,' its principles more fully developed, and its bunianizin^ effects moire completely unfoMed^ so, in proportion, the opposition sunk away by degrees, till almost every inurmurof complaint was hushed into silence. At the present time I believe, the sentiment of approbation is almost uniirersal among all classes and conditions of society. Indeed we begin to look back with surprise and astOnishmenV that such a barbarity should ever have existed, or that a republican commnntty should have supposed that a gross vioUtion of piersohal liberty should ever have been necessary. ' In attempting to abolish imprisonment for debt, the great error arises from a reluctance to give up the whole system. It is jeo- pardized by attempting to retain a part to punish the fraudulent debtor. This sentiment has produced several ineffectual altemps in our State Legislature to revive theCa. Sa. upon the suggestion, or proof offrsud. But that body wisely refused the propo- sition, from a well grounded opinion, that the unfor- tunate debtor would, in course of time, fall a victim to this odious practice in all its cruelly. Let fraud be defined and punished as a violation of the Crim- inal Code. Let the friends of this measure keep steadily in mind, that nothing will save the honest debtor, but a total and unqualified repeal of the bar- barous policy. I am induced f.o believe that Ken • tucky is the only country on iihe globe, where the debtor cannot under any circumsiancts^ be imprison- ed for debt. It was confidently asserted, that the abolition of the old system would produce great **■ ^ fraadf , aDiilbilate credit, work iojaitice, asd redoccr the state to confasioik. Time haa diiaipated these feara, and proved them to bfl?e been imaginary. I bave no hesitation in asserting, from my knowledge witbw that portion of the State wherein 1 reside, that since the abolition of imprisonment for debts, in the 3tate of Kentiieky, a million of dollars more have been paid than would have been under a rigorou9 execution of the laws of imprisonment for debt. The system of credit « was never more sound and healthy : and now consoling the reflection that our jails are alone devoted to the confinement of the fe- lon. How much desolation of tbe heart has been pre- vented by this humane system ; the cries of the famished children are n<^more heard in our happy land, the lamentations of the. wife are no longer heard at the iron-grated windows of our prisons. Nor do we any longer see the degrading spectacle of the felon and the debtor confined to the same bed of straw. ' . I have merely glanced at this subject, tbe argu-* tnents ;a its favor are inexhaustible. lam extremely gratified that this matter is to be brought before the Legislature of the great State of New-York. It belongs legitimately to the State to act upon the subject ; as aiaw of Congress would be confined to a very few and limited cases ; the great reason why I have relaxed my efibrts before that body for the last two years, is, a settled convic- tion that Congress would pass no law at this time^ but what would place tbe citizens of Kentucky in a worse condition^ All that tbe l^tates caii reasonably |re9uire,is that the laws of the several States should ;govem theprocesaof the Federal' Courts. Witb sentiments of great respect, your fellow citi-* "zen. Richard M. Johnson. 58 In compliance with the judicious recommendation of GoF. Lincoln to the Legislature of Maatachuaetttt this subject has come under .the consideration « of that body. In a debate on the bill introduced for the purpose of meliorating the present system, Mr. J^lake of Boston, and Mr. Baylies of Taunton, made the follo%v^«ii( remarks :*- ■ Mr. Blf ! said the first section contained a pro- vision whi. .1 enlisted in most other States, and it was extraordinary it had never been established in this. For want of it, a man's property, to, any amount, might be attached, on a charge of Debt., and ruin brought on him. This section provided that the plaotiff, before a writ could be issued in his favor, must swear that he believed the defendant owed him the amount fo; which he claimed the attachment. The severe laws, agf»inst debtors which existed in ancient times, he said, were enacted because it was then unusual and unnecessary to get into debt — and (he debtor was, therefore considered a criminal — but now nearly every body was more or less in debt, credit was the system of business, the system of the government. Mr. Baylies called the attention of the house to the third provision of the bill, exempting females from imprisonment for debt. This exemption, he said, depended on principles which did not ap- ply to other cases. Females possessed no] civil^ rights. They could not come into this Hall to le-' gislate for themselves ; nor had they any part in the choice of those by whom the laws are made — > and yet we inflicted upon them every severity of, our laws. It was, too, a greater hardship for a fe- male than for a man to be imprisoned. Their sen- sibilities were more acute, their sex more tender ; and they were, therefore less able to undergo the punishment. From their position in society, the disgrace of imprisonment was tenfoitd greater to them r J % I' 69 I-',. f X I tbiiii to us, ' The law of imprisoDnnent might, in ma- ny cases, fall gently^^on a man ; but it was always severe to> the single or the widowed ' female. He implored the house to erase the barbarism from their statute book.' He would not say that the. imprison- ment of females was a case of frequent occurrence ; but he had personal knowledge of the: fact, that wo- men, respectable women, women with large families, had been dragged to the jails of the State for debt. -The outrage, he doubted not, would often be repeat- ed. The cause of it was, that the creditor might, in this way,' wring the amount of his demand from the friends or relatives of the female debtor. - W ..s it 'good policy in us to reward avarice and cruelty, at the expense of the humane and generous ? 'The following' resoluti^ ~**, on the same subject, have been introduced into the legislature of New York. Resolved, That in the opinion of thi^ House, the laws in relation to imprisonment in civil suits, should be modified in the manner following : Ist. Soasnot to authorise the imprisonment of any female on mesne or final process in any civil court. 2d. So as not to authorise the imprisonment of any person for a debt or demand, less than ten dollars. 3d. So as to require the plaintiff in every. action for any demand, to make oath to the amount claimed, and the justice of the same, before bail shall be de- ) lll^th. If the party arrested deny the justice of the claim ; then compel the plaintiff to give security fox the payment of all costs and damages to the person arrested, provided it shall appear that the action was groundless and vexatious. 5th. So as to authorise the immediate discharge of every debtor arrested on mesne or final process, who ahall make oath that he possesses no property 60 X' 'or tneant whakvcr, by which he cm iditfy in whole ^rio pitrt>:|the debteir deUiand for ftte reeorery oC ^hicb fpoh firecMs ehall hiive ifitied. (Hi 16th. So Mr to tiHhoriie the inlnediate^ditoherge of eoy dehlniH flo f^rretted e* afbnMekt, Wiho hefiog •praperbr, efaaU nakfr^nith, tfast'he!helief>et the lame ;it iDsnnNsteiitifbr ilKtil»yflieiit ofraH4ebtt« iwd who thell make evt and deiiter aodepoath toe prosper .offioeiv to be naned for that porpoae, od ataigDnent of all hit eatate^ both* real' and peitonal, acconipaDi- •ed • by a liat of hie oreditonv and ttheiri reipeotif e de- 7lhi St»*arfo:ppeieeDttheiaiiiio£i ofeey exeoutioii / in the nature of ecapiaa ad gatit&cleadeaai tmleas' the ctiredttor shall make oath^ wbicb'sbaU be endora- •ed upon said preceii^iii tobatanceasrfollbfMy; / That he. hat reason' apd dee» v^ertlybeliere the defbndant hafi property conceeled^tSD that an! execu- tion cannot be levied upon it ; and that there is tfo other way of getting .pessession ofstfcli property, 8th. So at! tb^ protvide for the punisbiftent of any person by impHsoMniot ie the slate priftoii for a ' term^of years^ who shall befound guilly of fraid or ^pe^ory iniproovrhpg Ins discliargib > . 9th. In all judgments founded on tortt where -tliero ^ f»aii^ieindeKe:o|ai«mdralilyr^ shall be the difty of the offiosr so to haToit^expreasediiti theeteeutioot and'toeoch casirtttliMf staltate is net inteoded tO ap- •is.> :U, i 'l.»i, '(lili? FINIS. X' tf ^'J: