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constitutional rights, the judicial department quickly put on the chain before the danger was discovered, and riveted it before there was time to cast it off oprisonment for debt proceeded as uninteruptedly as if it was no infringement upon Magna Charta.”
The practice was founded on a fiction of law, (always used to extend the power of the court.) The writ was issued, setting forth that the party had committed a breach of the peace—that he had broken into the plaintiff’s close vi et armis, which, according to the old common law, subjected the defendant's person to be arrested by writ of capias ; and then afterwards, by connivance of the court, the plaintiff might proceed to prosecute for any other less forcible injury.
“This practice of the courts continued, in defiance of law, as is - the statutes which gave birth to imprisonment for debt had not been repealed, until the statute, 19 Henry 7th, in the year 1466, was enacted, construed and practised on, as if it had been, as it seemed to imply, predicated on a previously existing and unrepealed statute authorising imprisonment for debt. This statute, however, gave countenance to the illegal practice of the judicial courts, and imprisonment for debt continued on without molestation, until its baneful influence had spread human misery far and wide, and was increasing still, when the statute of 8th Elizabeth (1566) was made, to punish those who had, as the law itself stated, “of their own malicious minds, and without any just cause, procured their fellow-subjects to be greatly molested and troubled, by attachments and arrests made of their bodies, only on a mere pretence of debt.” The number of this class of sufferers must have been great, and the number of those who, even at this early period, had used the law of imprisonment for debt for the purpose of oppression, by no means small, when the government deemed it requisite to interpose to arrest the evil.” “This, however,” says Burges, in his consideration on the law of insolvency, “was not the only grievance which called for redress. It was grown to be a common practice for any man who envied the prosperity of his neighbor, who was desirous of putting out of his way a more successful competitor, or who wished to gratify the calls of personal hatred, to cause another to be arrested, at the suit either of some person who in fact did not exist, or of some one who had no cause of action, and who was ignorant of the malicious prostitution of his name. To what length will not the depravity of mankind go, when an unlimited
field for the exercise of their passions is afforded to them; when the municipal law dares to remove the sacred land-marks of the law of nature ? What apology can be made for a practice which thus instantly, as it were, opened the sluices of oppression, fraud and
“Enormous as was the grievance for which a remedy was proposed by the preceding act, it was but a part of the mischiefs which arose from this oppressive practice ; and, consequently, the wholesome operation of the statutes 8th Elizabeth, c. 2, was extremely circumscribed, and confined to a few of the unhappy sufferers.
“The jails became daily more crowded with prisoners; the cries of the unhappy still were heard; the miseries of the people still continued unrelieved. Their cries ascended even to the throne, and the monarch was moved to pity the calamities of her subjects, to restore to freedom and to happiness the honest and the industrious.On the 26th day of April, 1585, she issued a proclamation which, according to the system of those times, was considered as having the force of law; she authorised certain commissioners therein mentioned, to compound controversies and causes between prisoners and their creditors, and such others (who were in reality not ereditors) by whom they were detained or in execution.”
This commission continued in force only until her death. King James 1st, for the purpose of improving upon the charitable provisions of Elizabeth, on the 11th day of November, 1618, declared by a proclamation, “that it had been found by experience, that for want of Elizabeth’s proclamation, or some other charitable course for the relief of such as are truly and indeed poor, distressed and miserable, and want means to satisfy their creditors, had been an occasion to pester and fill the prisons with the bodies of those persons, whose imprisonment could in no way avail their creditors, but rather was an hindrance to the satisfaction of their debts; for that, during the time of their restraints, they were in nowise able to go about or attend to their lawful business, of course consumed themselves and what little they had, miserably, in prison.”
“The proclamation then appointed commissioners, with power to treat, persuade, mediate and procure composition and agreement with the creditors and debtors—some tender consideration being had of the debtors, their wives and children, and unto poor and miserable persons, as had not where with to satisfy their debts—but were constrained miserably to perish in prison, except, in pity, they were relieved.”
“Relieved 1 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 claimed 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,) ingrasted 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.] 4
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 eontract; 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, impri. sonment for debt, aster 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 judgment 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