would also tend to virtuous and honorable conduct, by giving to men of fair character the advantages they ought to have in obtaining credit."

This question, however, is not left to conjecture. Although we have presented testimony against the beneficial effects of this system-although we have shown that according to the experience and opinion of good and wise men, in every section of our country, this law works not only injustice and oppression to the debtor, but gives no relief to the creditor-although we have proved, as far as negative testimony will, go, that the creditor and the debtor, together with the morals of the community, would be benefitted by the repeal of this law-yet we are not reduced to the necessity of resting our case here; we have clear, incontrovertible testimony-evidence of a positive and conclusive nature, which must forever put this question

at rest.

In relation to this subject, Col. Richard M. Johnson, of Kentucky, remarks "In Kentucky, imprisonment for debt was abolished in in the year 1821: of course, the law repealing it, has been in full force for near ten years, and during a period of pecuniary embarrassment, such as the history of the state cannot furnish a parallel.

"At the commencement it encountered some considerable opposi tion, because a part of the system was not retained to operate on fraudulent debtors; but as it become better understood, its principles more fully developed, and its humanizing effects more completely unfolded, so in proportion, the opposition sunk away by degrees, until almost every murmur of complaint was hushed into silence. At the present time I believe the sentiment of approbation is almost universal among all classes and conditions of society. Indeed we begin to look back with surprise and astonishment, that such a barbarity should ever have existed, or that a republican community should ever have supposed that such a gross violation of personal liberty should ever have been necessary.

"It was confidently asserted, that the abolition of the old system would produce great frauds, annihilate credit, work injustice, and reduce the State to confusion. Time has dissipated these fears, and proved them to have been imaginary.

"I have no hesitation in asserting, from my knowledge in that portion of the State wherein I reside, that since the abolition of im

prisonment for debt, in the State of Kentucky, a million of dollars more have been paid than would have been under a rigorous execution of the laws of imprisonment for debt. The system of credit was never more sound and healthy than at present, and how consoling the reflection that our jails are alone devoted to the confinement of the felon."

We have thus produced facts both of a negative and positive nature, proving conclusively the inutility and inhumanity of the law under consideration. Can the advocates of this system contend for its continuance ? Are they aware that no portion of the civilized world tolerates this law? Are they aware that in the most tyranical government on the continent this practice is not known? And will they believe that the United States of America and the Kingdom of Great Britain are the only countries where men are imprisoned for debt? And yet such is the fact. In confirmation of this opinion we refer to a letter from on eminent lawyer and excellent man, Mr. Duponceau, of Pennsylvania. "In France," says he, "the parties cannot even stipulate in their contract, that on failure to pay they will be liable to imprisonment; it is only admitted when the judge or jury determine it. As to torts, they are of two kinds. Torts vi et armis are criminal acts; the damages to the injured party are a part of the punishment, and imprisonment follows. Other torts come within the rule of unliquidated damages on which imprisonment is in the discretion of the judge.

"The laws of Spain are much on the model of those of France." "I have understood and believe, that the law is general all over the continent of Europe, that imprisonment for debt lies only after judgment, and only in specified cases, particularly commercial, and those in which fraud is involved."

It will be perceived that in France and Spain, and indeed over the whole continent, the capias or other process for personal imprisonment at the option of the party, is not tolerated, either in actions arising ex delicto or ex contractu.

Neither is it known in the dominion of the Great Sultan. It is said that a captain of a trading ship, being not long since in Constantinople, lodged in the house of a seafaring Turk. One day he observed to the Musselman that, in all his walks through the immense city of Constantinople and its suburbs, he had not seen any thing like a jail for imprisonment of debtors. "Christian dog,"

said the disciple of Mahomet, "do you suppose that we are so debased as to copy the Nazarene policy? We take care to strip a debtor of all his property, so far as it will go to pay his just debts; but there we leave him; we instantly turn him loose to begin the world again. The believers in our prophet are above shutting up their fellow men in cages, in order to persecute, starve and torment them. We make a distinction between a man and a rat. I have been in several of the Nazarine [Christian] cities, and never looked at a debtor's prison without horror-as a place where man is degraded to the condition of a rat."

In Pegu, and the adjacent countries, in the East Indies, the laws give the person of the debtor, together with those of his wife and children, into the hands of the creditor, until the debt is paid; but it requires him to treat them with kindness, and show no violence. If the creditor should commit any enormity, as by violating the chastity of the wife, cruelly treating the children, or treat with undue severity the debtor himself, the laws at once cancel the debt.

In examining many volumes of foreign and domestic laws, we have been constantly struck with the imposing fact, that while all nations are enabled to assign a good and sufficient reason for their laws on this subject; not one solitary argument, or one plausible reason, is offered for our own; not one that will bear the touch of truth, or the test of justice.

In consequence of this difficulty presenting itself, it appeared to be our duty to examine into the history of this practice, and trace out the rise and progress of a law, which has taken so deep a hold upon the minds of our citizens. It becomes the more necessary for us to do so, in consequence of the imposing stand we have taken amongst the nations of the world; because we virtually say, "give place I am more holy than thou.”

Believing that we could not do better than trace the origin and progress of this law, for the information of the House, we have undertaken and completed that task; although not with entire satisfaction, still we have become possessed of all the material points of its history. Nothing can be more instructing than the history of the laws and customs of a country, and nothing can yield more satisfaction than the correcting of abuses. The origin of à law frequently shows the spirit of the law itself. The motive which dietated it, is frequently conclusive of its character. By becoming ac

quainted with the character of the lawgiver, tracing the leading features of his life, the objects sought to be attained, and the means used to attain them, we frequently are better enabled to judge of the propriety of laws, than by examining the practices and decisions under them. We shall, therefore, give in a concise manner, the character of the sovereign in whose reign imprisonment for debt commenced, and who, by his depravity and ignorance, overturned the true and correct principles of government. It is a fact well known, that the law which is the subject of discussion, had its origin in England, that it is derived from her authority, and that we know much of its effects, and but little of its beginning; we shall, therefore, be compelled to look to the history of English jurisprudence for the facts we wish to disclose. The history is curious in its incidents, and interesting in all its details.

In examining the foundation of the laws of England, our attention is necessarily drawn to the common law. It has received from commentators on municipal jurisprudence, the highest encomiums that can be bestowed on any thing originating with man. It is declared to be the perfection of reason; and is considered the foundation of the liberties of the people of England.

In the investigation of the common law, as handed down to us, we shall be enabled to show, that the original tendency of all its provisions, was to preserve the liberty of the citizen, and enforce the obligation of contracts.

Under the code of laws last referred to, all actions were required to be founded on an original writ, either optional or peremptory ; or in the words of the lawyers, they were either a “præcipe or a si te fecerit securum." The optional writ or præcipe was in the alternative, commanding the defendant to do the thing required, or show the reason wherefore he had not done it. It was directed to the sheriff, and required him to command the defendant, "justly, and without delay, to render unto the plaintiff the sum of money demanded;" and if he did not do so, and the plaintiff gave sure pledges to prosecute," then to summon the defendant to appear in court and render a reason why he had not done so.

This writ was used where something definite-something certain, was demanded, as for a liquidated debt; to restore the possession of land; to render an account; or, in other words, where the amount claimed was certain, and the payment or restoration with[A. No. 190.]

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held. The defendant was thus at liberty, either to settle with the plaintiff on amicable terms, or answer to the court why he did not. If the plaintiff would not settle with the defendant on fair terms, the law required him to give pledges to prosecute his suit, and to answer in damages for him, if he had not a good cause of action, before a peremptory summons was allowed to issue. "The use of these pledges was to answer for the plaintiff, who, in case he brought an action without cause, or failed in the prosecution of it when brought, was liable to a fine from the court, for raising a false accusation."

The principle here plainly laid down, and equally manifest through all the subsequent proceedings, ís, that every man is presumed to do right, until the contrary appears; an accusation is not taken as true without proof; a charge that a man owes a debt and will not pay, is not received as satisfactory, but requires from the person making the accusation, some security that the charge is true, before the court will interpose its authority. This is the principle by which we should be governed, in all cases where a dispute arises between individuals. The community is very little if at all interested in the controversy; and the presumed innocence of the one should be as much respected as the assertion of the other. On this is founded the right of personal liberty-that liberty which is above all price, and which it is as much the interest as the duty of every community to preserve.

After the service of the præcipe, if the defendant did not either make satisfaction to the party or enter his appearance in court, according to the requirements of the law, he was held to have acted with contempt towards the court. On application, therefore, of the plaintiff, founded on the return of the sheriff, the court would direct a writ to issue against the defendant. This writ was called an attachment, or pone, so called from the words of the writ, " pone per vadium et salvos plegios," put by gage and safe pledges, A. B. the defendant, and issued only in cases of the non-appearance of the defendant, at the return of the original writ, which is evident from its tenor: "why he does not pay to the plaintiff the sum which he owes to him, and unjustly detains from him; and to show wherefore he was not before our justices as he was summoned.”

The sheriff was commanded by this writ to attach the defendant by taking certain of his goods. And if he did not appear, he not