the alleged "oppressive operation" of the law in question, and again leave them in the power of those who, however inclined to mercy, acknowledge that they "do not know how to discriminate between rogues and honest men;" and therefore ask the Legislature to pass a law to relieve them from the legal obligation to do so, and also from all responsibility for any unrighteous exercise of the power which they crave.

Can there be offered more conclusive and insurmountable objections to the repeal of the existing law, than are furnished by the allegations of the memorialists? Can there be a more solemn and impressive admonition against vesting irresponsible power in the hands of those who disclaim their capability for a righteous exercise of it, and who indiscreetly betray the disposition again to use it for the same purposes for which formerly it was wont to be applied?

In many of the memorials under consideration, it is alleged that the law in question encourages rogues, and enables knaves to escape." If such are the effects of this law, it must be owing to some defect in those provisions of it which relate to fraudulent debtors, and not to those provisions which protect the poor and honest debtor from imprisonment. If the provisions of the law as they relate to fraudulent debtors and their property, are defective, and it is probable they may be so, we say again, alter and amend them: but do not, with a view to punish fraudulent debtors, withdraw the protection which the Constitution and the law in question were intended to give to all men who shall have done no wilful wrong.

But does this law " encourage rogues and enable knaves to escape?" Rogues are first encouraged by giving them credit, and are prompted by the advantage thus given them, to resort to any practicable means to avoid payment and to escape punishment. Why not then destroy the whole credit system, when such are its immoral effects? Why not go back to the original sin, and strike at the root of the evil; and by legislative enactments forbid, under pain of imprisonment, any person to encourage rogues by giving them credit, by which means they are also incited to evade the provisions of the law abolishing imprisonment for debt? As objectionable as the proposed law would be, it would be a far more efficient and appropriate preventive against "encouraging rogues" by giving them credit; and would be also a measure of greater justice than it

would be to repeal the existing law, and again involve the innocent and guilty in one common fate; lest, forsooth, some of the guilty might escape! It is a maxim which is recognized in the judgments of both mercy and justice, that "it is better that an hundred guilty should escape, than that one innocent person should be punished." The memorialists however seem to have adopted the reverse of this maxim as the basis of the credit system: and to hold, as a cardinal principle of trading morality and justice, that all debtors, who, from whatever cause, do not pay, shall be, by law, treated as fraudulent, and made liable to imprisonment, and abandoned to the mercy and justice of their prosecutors, who allege that they will not give credit to a poor man, however honest and distressed, unless they shall have the power to imprison him at pleasure: yet with that power in their hands, will give credit both to rogues and honest men; because, as they acknowledge, they know not how to discriminate between knaves and honest men! And thus it is, in truth, that the law of imprisonment for debt influences the extension of the credit system, through which rogues obtain credit with more facility, and are thus more encouraged to run in debt, and commit fraud, under the old, than they can do under the existing law.

But, say the memorialists, "the present law encourages rogues to commit fraud by concealment of their property and INABILITY TO PAY!" Rogues cannot conceal their property under any provision of this law with more facility than they could do before it was enacted: and should it be repealed, and rogues and honest men be imprisoned as before, rogues would still be rogues and conceal their property, and escape as readily and cheat their creditors, after as before imprisonment. Besides, the regarding of "INABILITY TO PAY" as a fraud, or as evidence of fraud, and good cause for incarcerating the poor, the honest and the unfortunate in prison as criminals, strikingly illustrates the impropriety of repealing the existing law; inasmuch as it not only indicates the use that will be made of the power asked for, should it be again vested in those who attach so little value on the personal liberty of a fellow citizen as to imprison him as a criminal, because of his "inability to pay!

יי!

In some of the memorials under consideration, it is alleged, that "imprisonment for debt was not abolished on account of the horrors of a prison, but because it savored of BARBARISM. It is a fact,"

say the memorialists, "IT DOES savor of barbARISM; but he who gives up his property can save himself from it," that is, from such barbarous imprisonment, "by means of the insolvent laws !!!"

Your committee are of opinion that the present law abolishing imprisonment for debt, is better than the insolvent laws; inasmuch as this prevents acts of barbarity, while the insolvent laws only rescue the victims of barbarous treatment from the power of those who, under the old law, inflicted it, and after the mischief had been done.

If the present law were to be repealed, because rogues sometimes escape through the provisions intended for the discovery of their property, to detect the fraud and punish the fraudulent, why not also repeal all the insolvent laws, because some rogues escape through the door opened for the release of honest poor men, barbarously imprisoned barely because of their "inability to pay?"

"But," says a learned American orator, "the law of imprisonment for debt, is so unrighteous, so inconsistent, and drags so many evils and so much suffering in its train, that it is often indignantly denounced as barbarous. But such an imputation is a libel on barbarous nations. They never incurred the disgrace of such a practice. Neither Goths, Vandals, nor Hottentots, ever had a law to imprison debtors for not doing exactly what they could not do." It is one of the refinements of the arts and sciences of civil government, by which the innocent are punished lest the guilty should escape! It was left for civilized nations to discover and enjoy the exclusive "benefit of the act" of imprisonment for debt. Unenlightened and uncivilized savages, never thought of shutting a man up in prison, and depriving him of the ability to earn subsistence for himself and family, to "encourage his industry," and to compel him to pay his debts, whether able or not: and they never laid claim to the discovery of any utility, expediency, humanity, justice, or moral influence, in such an institution. Acts of cruelty and barbarity inflicted even on any of the brute creation, are deemed in law, indictable offences. Are not acts of cruelty and barbarity committed on human beings also crimes deserving of punishment under the criminal law? If a debtor, who defrauds his creditor of his property, merits punishment, does not that creditor equally deserve to be punished, who cruelly and barbarously deprives of his liberty, "a poor, honest, laboring man, who has no

friends and no credit, and whose family is thereby distressed," merely because he has been so unfortunate as to become "unable to pay" his debts ?*

In the direct opposition to the admissions contained in the memorials on which your committee last commented, numerous other memorials state that there was "but litle cause of complaint under, the old law of imprisonment for debt-that it seldom operated op pressively. That public opinion and the lenity of our fellow-citizens interposed in behalf of honest, industrious debtors" !

Where the use of insolvent laws if no honest and poor debtors had been wrongfully imprisoned? Where the necessity of the numerous statutes which have been enacted from time to time, to relieve insolvent debtors, if there existed "but little cause of complaint," and imprisonment for debt "had but seldom operated oppres sively"? Do not the many legislative enactments which have been interposed to relieve imprisoned debtors, prove that the grievances they were intended to redress, must have been very great and oppressive? Do not the great volume of those remedial statutes furnish a sad commentary on the injustice of imprisonment for debt, and of the danger and imprudence of vesting with the power of imprisonment, those whom interest, disappointment and passion stimulate to apply it to oppressive purposes? The whole history of the law of imprisonment for debt in England and in this State, from the first statute passed on that subject in the 52d year of the reign of Henry III. (1267,) down to the law abolishing imprisonment for debt in this State, bears corresponding and conclusive testimony of the multiform evils and injustice of the law of imprisonment for debt. And your committee have no hesitation in believing that there cannot be found among all the volumes of the English and American statute books, any law, to remedy the iniquitous operation of which there has been so much legislation, and so many laws from time to time enacted.

An English writer, (Burges,) the author of the most learned work ever written on the subject under consideration, remarks, that "nothing can be a stronger proof of the incxpediency of im prisonment for debt, than the introduction of those occasional (insolvent) laws, which originated merely from the humanity and compassion of the Legislature for the sufferings of miserable and

* Statute 8th Eliz. c. 2, was enacted expressly for such purposes. [Assem. No. 216.] 3

helpless debtors. They originated in a proclamation of Queen Elizabeth; they were continued on the same footing, by the two first princes of the Stuart race, and assumed the form of law in the first Parliament which was held after the death of Charles 1st. After the restoration they became customary; the first which was passed appears as the 22d and 23d of Charles 2d, c. 20. From that period to the present time, (1783,) no less than twenty-four such acts have received the legislative sanction. It appears from this, that on an average, a fresh insolvent law has passed every four years and a half: sixteen of which were made during the reigns of George the 1st, 2d and 3d." He who considers well all these interpositions, and also those which have been from time to time resorted to in this country, must be constrained to acknowledge that the evils consequent on imprisonment for debt, must have been very great and numerous.

As an argument in favor of imprisonment for debt, and as a remedy for the abuse of the power of the creditor to imprison his debtor, the memorialists allege "that public opinion and the lenity of our fellow-citizens interposed in behalf of honest, industrious debtors."

This is true; but it is a truth which amounts to the most conclusive argument against vesting power in the hands of those whose abuse of it so constantly and loudly called for the interposition of public opinion in behalf of the honest and industrious poor debtors, to relieve them from the oppressive exercise of that very power with which the memorialists now ask again to be entrusted to them. History informs us that it was public opinion and the humanity of the British common people, which interposed, and obliged the king and Parliament to repeal in succession, and very soon after they were respectively enacted, every statute authorizing imprisonment for debt, because of their incompatibility with the unalienable rights of personal liberty, and the provisions of magna charta, by which they were intended to be protected from executive, legislative and judiciary violation. And it was not until many years after the whole of those laws were repealed, that the rival power, avarice and venality of the courts of king's bench and common pleas, by judiciary management and decisions alone, gradually established, as law, the illegal practice of imprisonment for debt. And it was not until after the lapse of many years, that Parliament ventured by statute 19, Henry VII. c. 9, (1566,) to recognize the prac tice of the courts, and act in concert with their systematic viola