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Before Magna Charta, the British kings, who were, as now, re. garded as the sovereign source of political authority in England, exercised the uncontrolled, arbitrary and irresponsible power over the lives and liberties of their subjects. The possession and exercise of such power constitutes the monarch an absolute despot, and his government an absolute despotism. It was the tyrannical exercise of this power, in violation of the unalienable rights of life and liberty, which caused the barons and the common people, who were alike the subjects and victims of it, to unite in opposition to the king, and obliged him to relinquish the power in question. The record containing the wristen agreement of the sovereign to abandon the exercise of the power in question, and which was intended to perpetuate the proof of that truth, is known as Magna Charta: which among other things provides that “no person shall be deprived of life, liberty or property, without due process of law; that no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury," the “due process of law” in criminal cases; that “no person shall be disfranchised or deprived of any of his rights and privileges, unless by the law of the land or judgment of his peers," that is, by virtue of a constitutional law, and the verdict of a jury: and hence, not by the caprice, or at the pleasure of a king or a creditor.
Now, the People, who are the sovereign source of political power in our country, have caused those provisions of Magna Charta to be incorporated in the Constitution of this State; and that too, for the very purpose of interdicting the exercise of despotic and arbitrary power by any branch of our government, over the unalienable rights of life and personal liberty. And although the right of personal liberty were, as before mentioned, violated by the judiciary courts, and in process of time acquiesced in by other departments of the government of Britain, that wrong is no sufficient authority for the existence of the law of imprisonment for debt in this State; inasmuch as the Constitution, when providing for the adoption of some of the laws of England, expressly abrogated and rejected all such as were repugnant to the Constitution; and hence the law of imprisonment for debt never had any legitimate exist. ence in this State, and never can have any constitutional authority while the above quoted provisions of that instrument shall remain, and remain inviolable.
And here your committee will ask, would the Legislature listen one moment to a proposition, couched in express terms, to violate the provisions of the Constitution, or to nullify that palladium of the rights and liberties of their constituents, however many of them might by memorials advocate such measures? Would the Legislature halt one instant in rejecting a proposal to vest the State Executive with the power to imprison at his pleasure any citizen, however free from guile, or however guilty, without any proof of its existence? Would the Legislature ever seriously entertain a thought to give to any individuals who may happen to lose their property by means of theft or robbery, the power to imprison the criminal at their pleasure, and without proof of guilt? Would they ever think of vesting the government, or any department or officer in it, with power to punish for murder, treason, or any other criminal offence, without presentment or indictment of a grand jury-without trial—without proof-without the verdict of a petit jury, or judgment of conviction for the alleged or imputed crime? And will not the same provisions of the Constitution—the same “law of the land”—the same rules of common justice, and the same principles of morality which interdict the grant of such power to the government, or to any public functionary, also equally forbid any legislative grant of such unhallowed power to any individuals, or any class of the community?
If to exercise, at pleasure, absolute and irresponsible power, constitutes a king a despot, the like power, vested in a Governor, would attach to him the same character. A government exercising such despotic power would be any thing but democratic or republican: and to vest such power in croditors, without regard to their intelligence, discretion, humanity or honesty, would be still more odious, inasmuch as it would, in effect, be creating petty despots in every town and village rum-hole in the State; and thus to scatter despotism and misery throughout the land.
Would the Legislature manifest much wisdom, were they to confer office and power indiscriminately on the honest and the dishonest, the intelligent and the ignorant? Ought they not to inquire into the character and capacity of those whom they contemplate to vest even with legitimate and limited power, and who are to be held responsible for the just and discreet exercise of it, and the faithful discharge of their official duties? Do they not inquire, in reference to the proposed incumbent, “is he honest, is he capable ?" And if deficient, in either qualification, would it be wise or just to entrust him with office or with power? Would the Legislature be willing, in express terms, to give to creditors, without regard to their honesty, discretion or humanity, or in the admitted absence of all these qualities, the arbitrary and irresponsible power to imprison, at their pleasure, poor and honest debtors ? Would the Legislature be willing to take the responsibility to give, in express terms, to honest and dishonest creditors, the power to imprison, at their pleasure, even fraudulent debtors, without proof that they are so, or without trial to ascertain their guilt, or any chance to prove their innocence; or to defend themselves against the charge of crime? Would the Legislature, by a particular enactment, authorise in express terms, a fraudulent debtor, who may happen also to be a creditor, to imprison his debtor, honest or dishonest, without proof, or even the pretence of fraud ? Would the Legislature, by a separate statute for such purpose, declare, in express terms, that all their constituents should be liable to be deprived of their personal liberty for debt, at the pleasure of any plaintiff, whose oath would not be taken for the value of one cent in proof of his alleged demand ? Would the Legislature be willing to enact a law authorising in express terms, murderers, thieves, robbers, perjured villains, State prison and penitentiary convicts, who have served their time out, or have escaped from prison or who have got their pardons in their pockets, to imprison, at their pleasure, all their debtors, honest and dishonest, in all cases, without either proof of debt or fraud ? And was not such the law of imprisonment for debt: and would not the repeal of the existing law. be tantamount to express enactments, conferring the odious and depotic powers in the cases just mentioned; and thus be, indirectly vesting the same powers, and producing the same consequences, as if specially authorised by separate and express enactments ? Surely the blood and treasure of the revolution must have been worse than wasted, and the constitution of the political government of this State, intended to protect inviolate the unalienable rights of the people, must have been a work of useless labor, when laws can be enacted, by which the unalienable rights of personal liberty shall be held on the tenure of the pleasure or caprice of every man, honest and dishonest, who may happen, by any means, to become a creditor. And any laws which produce such result, are no better than those would be if enacted for such unhallowed purposes.
In virtue of the preceding and other concurrent considerations, which might be offered, your committee are induced expressly to declare, that they hold these truths too plain, evident and irrefragible, to require further illustration on this occasion, viz: That to molest any person--to punish him—to "deprive him of his liberty," or of any other “right or privilege,” who shall have done no wilful wrong, nor committed any criminal offence, would be an act of cruelty-a violation of moral principle—the benevolent dictates of humanity—the plainest rules of common justice--the primary objects of civil government, and the righteous spirit of the Constitution of this State. That he who would treat a fellow being in the manner just mentioned, would be a cruel, immoral and unrighteous man. That the law which would authorize such an act, influences the disposition to commit it, and hence would be identified with the iniquitous effects produced by it, and the oppression and misery flowing from it. S ich is the character and such are the consequences of any law by which an honest, unfortunate insolvent debtor may be cast into prison; the most natural and most certain effects of which are, to add oppression to misfortune, to increase the debtor's inability to pay—to distress his family and his friendsto excite the natural feelings of self-defence against oppressionresist it by any means most likely to counteract its movements and disappoint its object: the further effects of which are to impair the motives to honesty, and to lessen the disposition to pay—to cncourage fraud, by creating and increasing the incentives to commit it; and hence too often to influence and mislead honest men to become fraudulent debtors: and thus imprisonment for debt becomes injurious to the debtor, and useless to the creditor.
And your committee further state, that in cases where fraud shall be proved, and where there shall be evidence sufficient to induce a reasonable fear or probability thạt fraud is intended to be committed by a debtor against his creditor; the arrest and detention of such debtor, as a means and with the view to compel a specific performance of his contract, by the discovery and surrender of his property, to be applied to the payment of his debts, and also with the view to convict and to punish him for the fraud, according to “the law of the land,” in criminal cases, is neither unjust in itself, nor inconsistent with the principles and the truths in this report advocated and proved.
And in conclusion, your committee further state, that they have prepared a bill, an abstract or synopsis of which is hereunto annexed, so modifying and amending the existing law, as to make it, in the opinion of your committee, more effectual in its operation to prevent fraud-more sure to detect fraud and to ascertain when it is intended to be committed, and also more certain to discover and obtain the property of the fraudulent debtor, and apply it to the payment of his debts, than any preceding law which has been enacted for such purposes in this State: which bill your committee have directed their chairman to ask leave to bring in, for the consideration of this House, and recommend its adoption by the Legislature.
All which is respectfully submitted.
Abstract of the bill entitled "An act further to provide for the arrest and punishment of fraudulent debtors, and for other purposes.
The bill which the committee report, is framed to meet the objections which are urged against the present law, and to remedy some defects which experience has detected. Without departing from the principle of the act of 1831, which was, to prevent the imprisonment of any citizen for mere inability to pay a debt, the bill endeavors to carry into more full effect another principle of the same act, which was, to compel every debtor to appropriate his property to the payment of his debts: and where probable proof of actual or intended fraud is adduced, to arrest and detain the person of the debtor so long, and no longer than may be necessary to reach his property. The following are the general features of the bill intended to accomplish this purpose.
Where there has been any fraud in contracting the debt, where property is concealed, or fraudulently disposed of, or is intended to be fraudulently assigned, the debtor may be held to bail by an order of the judge of the court in which the suit is brought, and execution may issue against his person, as in actions for wrongs. The defendant in such suit may be exonerated from arrest and imprisonment by assigning all his property, except that exempt from execution.
All dispositions of his property between the time of his arrest and his executing the assignment, are prevented by re[Assem. No. 216.]