strained miserably to perish in prison, except, in pity, they were relieved." "Relieved! from what? certainly not from the justice or tender mercies of the law of imprisonment for debt, nor from that of their creditors; but from the injustice, inhumanity and oppression of both." Thus stood the law in England about two hundred years since; and such was the opinion at that time prevalent. It may be added, that but for the fiction of law introduced into the courts, of charg ing a man with crime and then trying and imprisoning for debt, the law would not now be found to exist. The King's courts first sold favors and perverted the current of justice: the other courts followed the example; and although the Parliament, the representative of the people, could not for a long time be prevailed upon to sacrifice one of the most sacred rights of the citizen, yet the judges and those appertaining to the court, were constantly selling themselves as instruments in the hands of the rich or vindictive, to trample upon the liberty and life of their fellow citizens. "Alas!" says Roger de Thukesbury, one of the King's justices, "what times are we fallen into? Behold, the civil court is corrupted in imitation of the ecclesiastical, and the river is poisoned from that fountain.” The practice once established, it was found hard to eradicate it.— The people complained of the violation of their rights; they prayed for redress of grievances; they begged for a confirmation of the great charter, but they could not be heard. And why? Because it was not the interest or the inclination of those in whose power the changing of laws was placed. The Parliament, as we have shown, did all that was possible to abolish this practice; but as soon as one means of obtaining money, as soon as one source of bribery and corruption was cut off, the judges devised other means and other resources more effectual-until this continued practice of oppression became in the eyes of many legitimate, and was permitted to be continued without any further question as to its legality or propriety. Custom, long continued usage, has been and is considered a sufficient reason for any act or decision in the courts of England. They are governed by precedent. Many of their decisions are founded on the principle, that what has been once done, or what has been before practiced, is right, even if it was contrary to political or civil liberty. The laws of England are to a greater extent derived from the decision of her courts, than from parliamentary acts; and Parliament has only trampled upon the rights of the people in aid of the assumed authority of courts of justice. The courts were considered a branch of the royal power; and the king clained to be the grand justiciary of the kingdom. His proclamations had the effect of laws-from his decision there was no appeal-and his construction of a law, whether proceeding immediately from himself, or from his courts, was conclusive. Therefore, while venality existed in the aula regia, whilst bribery was countenanced, the rights of the people were violated, and their dearest liberties sacrificed. In the reign of the monarch whose character we have delineated, under his immediate eye, and by his own act and deed, was this law for imprisoning debtors enacted. It is founded on the decision of the king, and originated in the practice of buying and selling justice. It was complained of repeatedly by the people; was repealed by parliament on their representation; declared to be in contravention of their unalienable rights, and diametrically opposed to the charter of their liberties. Notwithstanding all this, the courts, for the purpose of filling their coffers, allowed fictitious actions to be brought, and imprisoned as if for a breach of the peace, when in fact it was for debt. Thus it will be seen, that the people of England never did consent to the establishment of such a law. On the contrary, they protested and complained until the decisions became from long usage, (founded on fiction,) ingrafted in their constitution, and according to their views of custom it became right. Blackstone says, that this practice of commencing suits by fiction, ("to avoid the law,") through custom, still continues in almost all cases, though now by virtue of the statute, a capias may be had upon almost every species of complaint. This custom, founded upon the arbitrary opinions of a corrupt court, was recognised by the colony of New-York, and was practiced upon much in the same manner as in the mother country until the declaration of our independence. The first act that is to be found on the subject was passed on the 17th April, 1784, and provided that debtors in jail at the time of passing the act, on making an assignment and taking the oath, should be forever discharged from their debts. There is also another passed on the 10th May, of the same year, authorising Ely Grove [A. No. 190.] and Bond Grove, to assign their property, before witnesses, which assignment, without oath, was to operate as a full discharge. On the 24th of the following November, the said first act was continued in force as to certain persons enumerated. On the 25th of April, of the next year, the same law as to other certain persons was continued in force. On the 31st March, 1786, an act was passed declaring that “all persons then in prison for debt, fines, &c. whether in execution or other writ, if the sum, exclusive of costs, does not exceed fifteen pounds, were free without requiring any oath." Here was a strong and near approach to abolishing imprisonment for debt. Had the legislature gone a little farther, and said it should apply to all cases in futuro, liberty would have been secured to us in all its essentials; we should then have been as free from the oppressive custom of England, as from her dominion. On the 13th April, 1786, the first general law was passed, which provided that any debtor, whether in prison or out, should be discharged from prison or liability, if three-fourths of his creditors should agree to accept of his schedule assigned to them under oath. Since that period, many laws have been enacted, all recognizing the custom of England as legitimate. This State, within a short time past, has exempted females from arrest or imprisonment for any debt arising on contract; and by an act of last session, all persons who served in the army of the revolution are exempted from arrest on either original or final process. In the State of Pennsylvania, by act of 1818; in the State of New-Jersey, by act of 1818; in Florida, by act of 1824; in Connecticut, by act of 1826; females were exempted from imprisonment. In Massachusetts, by act of 1811; and in Maine, by act of 1822, persons can not be arrested where the debt or demand is less than $5. In the State of South-Carolina, by act of 1825, no person can be imprisoned for a debt of less amount than $20. In Kentucky and Ohio, imprisonment for debt, after judgment, is totally abolished. The legislature of Kentucky, in 1821, repealed all laws authorizing a capias ad satisfaciendum to issue for debt. In January, 1827, the ca. sa. was revived so far as to authorise it to issue on any judg ment obtained in any actions of trespass vi et armis, and in actions for words spoken or written, and seduction. This change in Kentucky, places their proceedings much on the rules and principles of the common law. Where judgment is obtained on contract, no ca. sa. can issue; but when judgment is obtained for a breach of the peace, or for acts the tendency of which is immoral and licentious, then the law, to preserve the public peace and good morals of society, will punish the party for the offence committed. It is a matter of some curiosity to examine the many devices which legislators have been compelled to resort to, to bolster up this unjust and oppressive law. It is not a matter of wonder, however, that they have found it necessary to multiply laws for the purpose of sustaining that which is iniquitous in itself. A small departure from principle leads to endless difficulties, and the legislator who expects to get right by a multiplicity of acts, will be like the person who is trying to sustain the first violation of integrity by multiplying falsehoods. The only way is to commence on principle, and when a law is proposed, test it by that standard. Were all our laws founded on principle, we would find them far less in number and much easier understood. In striving to lessen the evils flowing from imprisonment for debt, legislators were driven to enact laws to ameliorate the condition of the prisoner. And nothing can be a stronger proof, says a celebrated English writer, "of the inexpediency of imprisonment for debt, than the introduction of those occasional insolvent laws, which originated merely from the humanity, and compassion of the legislator, for the sufferings of miserable and helpless debtors. They originated in a proclamation of queen Elizabeth; were continued on the same footing by the two first princes of the Stewart race, and assumed the form of law in the first parliament which was held after the death of Charles the First. After the restoration, they became customary; the first that passed appears as the 22d and 23d of Charles the 2d, e. 20. From that period to 1783, no less than twenty-four such acts had received the legislative sanction; sixteen were made during the reign of George the 1st, 2d, and 3d. Whoever considers what have been the consequences of these interpositions, what an opening they have made for fraud, and how constantly they have been perverted to the most infamous purposes, must acknowledge the grievance to be very burdensome which renders them necessary." In almost every state in the Union laws are now in force resembling those of England, and scarcely one that does not make some provisions relative to the property of the debtor; authorising him to have one cow, one horse, one bed, one We do not plough, &c., which shall be exempt from execution. The common law provided that a man's tools, and utensils of trade the axe of a carpenter, the books of a scholar, and the like, should not be liable to execution, because it would disable the owner from supporting his family, and serving the commonwealth in his calling. On paper these laws are alike, but we shall see on examination, that in practice and in principle, they are as far asunder as two propositions can be. By your law, certain articles are exempt from execution, they are considered sacred, no creditor is permitted to lay his hands upon them, no officer can for any cause seize them. By this means, then, you would seem to have provided something for the family of the poor debtor, which will keep them from want; but at the same time you authorise his body to be seized by his rapacious creditor, you allow him to be dragged to prison for one dollar, nay, for the smallest possible sum. Do you imagine there is a wife, or a child, that would not sooner surrender all the property they have, and permit themselves to be reduced to downright beggary, or servitude, before they would consent to see a father, a husband, or a brother, confined within the walls of a prison, or if he is confined there, see him perish for want, or depending on the hand of charity. In supposing that you are doing what the principle on which it is founded proposed, is evidently a mistake; for it is a well known fact that almost any individual, before he would go to prison, or permit himself to starve when there, would either sell every dollar's worth of property he has, or surrender it into the hands of the officer. The only advantage that can be derived from this law is, where a person chooses to abscond, leaving his wife and children in possession of such property as the laws authorise them to keep. The benefits of this law, then, are reduced to this in prac 1 |