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the charge of "non-payment of a debt," implies crime, and under what circumstances, and in what degree, a debtor is properly liable to his creditor? It will not be necessary to prove, that indebtedness is not a crime, and that misfortune is not an offence; this is admitted. But we are met with the assertion, that the object of imprisonment for debt is not punishment; that it is intended only as a means of coercing payment. We are not disposed to controvert this point, but are willing to admit that debtors are imprisoned for the purpose of compelling the payment of debt, and the discovery of frauds. That the object is, to compel him to do that which he has not done, and which the creditor asserts he is able to do. The object of imprisonment being thus ascertained, namely, to compel a debtor to pay where he has the ability to do it; we shall find no difficulty in determining when a debtor ought to be imprisoned. He ought to be imprisoned when he conceals, or withholds his property, with the design to avoid the payment of his debts. This charge presents his conduct as dishonest and criminal, and should subject him to punishment. When, however, the ability to pay does not exist, (and it should never be presumed, but proved,) he ought not to be deprived of those priviliges which are the birthright of every man, withouout evidence of crime.

We have stated, that the legitimate object of imprisonment, is to" enforce payment, when the debtor is able to pay." If, however, he has not the means of payment, then the right to imprison does not exist; for the non-payment affords no evidence of moral turpitude or criminal intent, and without such evidence, we have no authority to invade the right of personal liberty. Inasmuch, therefore, as it lays at the foundation of all laws, that crime cannot be presumed ; that you must give satisfactory evidence of guilt; so, in the case of withholding payment of a debt, the ability to pay ought not to be presumed, but proved, and the debtor ought not to be imprisoned until you prove his ability to pay. For by proving that ability, you show a criminal and fraudulent intent, namely, secretly withholding his property from the just demands of his creditors. How does the law of imprisonment now stand, under the system which we have derived from our ancestors? We presume the debtor able to pay, confine him in a jail, and let him remain there for ever, without evidence of moral turpitude, unless he can draw upon the charity of his friends for the means of payment. In the face of this, we have a constitution which says the accused shall enjoy the right to a speedy and public trial, by an impartial jury, where the offence

shall have been committed; shall be confronted with the witnesses against him, and shall not be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; and that he shall be entitled to compulsory process for obtaining witnesses in his favor, and have the assistance of counsel assigned him for his defence. This right, by our constitution, is extended to offenders charged with crimes of every description. Should not a debtor, charged by his creditor with witholding the means of payment, be equally entitled to the privileges of the law? Why is this an exception from all others? Why is an allegation of debt permitted to cover a charge of fraud? And why do all the vindictive, and none of the lenient provisions of the law apply to the debtor? Why is he punished without proof, without public accusation, and without trial by jury? Why is he compelled to be a witness against himself, and why is he not assigned counsel for his defence? What good end is attained by this departure from principle, and upon what ground can we undertake to sustain it? Is it intended as a satisfaction of the debt, or is the debt the price of liberty? Will it bring the prisoner pure and unspotted from the loathsome cell, and bid him go in peace," and sin no no more?" Are there any beneficial consequences flowing from the existence of this law? If there be none, then why without trial, without testimony, without such an accusation as the law contemplates, do you incarcerate him in a jail?

In cases of crime, when the jury find the accused guilty of the offence charged, the law declares, that the punishment shall be in proportion to its enormity; and when the time for which he has been sentenced expires, the convict comes forth from his dungeon, regenerated and renewed. Not so with the debtor, his sufferings avail nothing. After having spent day after day, and year after year; and having been forced by the fears of starvation to be a witness in his own case; and compelled to swear to his innocence or guilt; your laws merely yield him a reluctant consent to enjoy his liberty. They do not, as in the case of crime, give him an equivalent for his sufferings. On the contrary, the expense of the jail, the interest of the debt, and the loss of time, swells the amount of his afflictions, and press him more heavily to the earth than before. If imprisonment be intended to compel the surrender of property, should it not be made to appear that the person sought to be imprisoned has property which he will not surrender. If this should appear, the debtor would be imprisoned for the fraud and not for the debt; for the

offence against law in attempting to deceive, and not for his poverty. In not requiring this, the laws are worse than the inquisition. By this law you presume a man guilty, and will not let him disprove it; you charge him with fraud, and will not "confront him with his accusers," nor allow him witnesses in his own behalf. You punish him without evidence, before trial, before conviction. He is put to the torture, and starved into a compliance with the wishes or designs of his creditor. All this is permitted on the presumption of fraud, and that presumption arising in the mind of one individual. Our criminal code is founded on the principle, "that it is better that nine guilty persons should escape, than that one innocent person should suffer." Shall our civil code contain less liberal principles, when the penalty is the same? Shall a person who is charged with theft be treated with more lenity than he who is charged with debt? Shall the one be presumed innocent and the other guilty; and are we to punish one without the shadow of proof, and acquit the other if there be the least doubt of guilt? If imprisonment be only right, when it is intended as punishment for an offence committed, or to prevent the commission of it, then, under the present system, we punish the innocent and the guilty without dístinction. Nay, do we not punish the innocent and not the guilty? Inasmuch as we do not require proof of fraud, and every man should be presumed innocent until proved guilty.

Our laws also declare, that punishment shall be in proportion to the enormity of the offence. How is it then, that being suspected of being a fraudulent debtor, places a man in a worse situation than that of a felon? How is it that the one is provided with the necessaries of life, while in prison, and the other left to endure suffering and want without limitation? Let it be remembered by all, that this law in itself provides no means to avert the horrors of starvation. 'Tis true, charity has generally stepped forward and saved the wretch from death, but the effect of this law in the absence of charity would deprive an unfortunate debtor of life.

Suppose a law, like the one under consideration, was now brought for the first time to be acted upon by this legislature: Suppose it was presented here and discussed, and you were told by its advocates, that it had become necessary to presume any man guilty of fraud who owed a debt he did not pay; that no witness should be required to prove his guilt, and none permitted to prove his innocence; that the trial by jury should not be admitted; that punish

ment should not be in proportion to the enormity of the offence, and that the person making the charge of fraud, should be allowed to imprison his fellow at his pleasure; that the writ of habeas corpus should be denied; that the creditor should be at liberty to starve his debtor to death without incurring the penalties of any law, and without being required to assign any reason for his conduct? We ask, what would be the opinion of this house upon such a proposition? By the requirements of this law, no inquiry is made whether a debtor is able or unable to pay. It emphatically brings all on a level, the rich and the poor, the virtuous and the vicious. The iron gripe of the creditor is considered equally legitimate, whether placed upon a fraudulent or an honest debtor. It is sufficient that a debt is due, or even alleged to be due, and all the principles of a free government, all the ties of kindred, all the requirements of honor, of justice and humanity, disappear before this law and sink into insignificance.

We now proceed to the examination of the question which constitutes the second division of this subject, viz. Whether the creditor obtains by the contract, a right to the personal liberty of the debtor, on his failure to pay—or what right the contract gives to the creditor. It must be evident to every man, that the object in making contracts is the accumulation or preservation of property. The law protects the contracting parties in this design as far as the general interests of society seem to require. Contracts may be considered as entered into with this view. If a vendor of property is not disposed to credit the personal responsibility of the purchaser, security, as a matter of course, is demanded; this he is entitled to, and is of every day occurrence; not security for the delivery of the person, but for the payment of the money. If this be not demanded, the presumption is, that the seller is satisfied with the responsibility of the purchaser. It may be likened to a case of insurance: If a merchant is sending goods beyond sea, and does not wish to incur risk, he will apply to an office and have them insured, in which case if the accident occurs which was intended to be provided against, the party has indemnity. If, on the contrary, he does not insure against the risk of the sea, is it not considered a matter of course that he was prepared to encounter it? What does the creditor trust? Does he not trust the ability of the debtor, as the merchant trusts the smoothness of the seas and the efficiency of his vessel? Does he not consent to run the risk of the ability of the debtor to

pay, in preference to the loss of a sale and the consequent profit on his goods. Suppose the debtor from some unforeseen circumstance is reduced to poverty, his goods and his means of payment destroyed, and suppose the vessel of the merchant foundered at sea and the cargo lost: Would not the creditor without security be in the same situation as the merchant without insurance? Are not these accidents among the ordinary occurrences of life; and is it not equally the duty of the creditor by security, and the merchant by insurance, to provide against them? If neither of these occurrences are provided against, will it not necessarily follow, that the risk was taken upon the parties? The creditor trusted to the good fortune of the debtor as the merchant to the prosperity of the voyage. If the one be unfortunate and the other unsuccessful, the loss must rest where the risk was incurred. The debtor promises to pay if he has ability to do so; the creditor agrees to trust to his ability, consequently if the debtor has not the ability to pay, he has not forfeited his promise; neither has the creditor encountered any thing beyond what he agreed to risk. If a man agrees to go to London and dies before he can arrive there, it will scarcely be said he has violated his promise; and is it not equally impossible for a man to pay a debt, when he has nothing wherewith to pay it?

But lest the foregoing reasons may not be considered sufficient to answer the purpose proposed, we will suppose a written contract expressly stipulating that on the failure to pay the sum mentioned therein, the debtor should be liable, at the pleasure of the creditor, to be incarcerated in prison, deprived of the means of life, except what may be derived from the charity of the world, and separated from his wife and children, who look to him for sustenance. Suppose such a contract was exhibited and the penalty sought to be exacted; what would be the decision of that court, or that jury who should be called upon to determine? What would be the feelings of the community towards an individual who would exact so severe, so cruel a penalty? Would not the court declare, that the principles of law were founded on the principles of justice; that cruel and vindictive punishments could not be inflicted; and that the natural, moral, and paramount obligations which are due from an individual to himself and to his country, prevent the execution of so unhallowed an obligation. Courts and juries are aware that there are higher duties, and stronger relations, than those which exist between the debtor and the creditor, and which all well regulated governments will preserve and enforce.

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