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he was pressing a new cheese, some of the whey started from the vessel, and leaped into his mouth, and so went into his stomach. The priest smiling a little at the fantastic conscience of the man, asked him if he was guilty of nothing else. The shepherd saying he knew of nothing else that did or ought to trouble him: his confessor, knowing the customs of these people upon the mountains of Naples, asked him if he had never killed or robbed any strangers, passengers ?—“O yes,” replied the shepherd, “very often: but that we do every day.

NOTES

UPON

2

IMPRISONMENT FOR DEBT,

&c.

1. By the present law, a debtor is, after three months' imprisonment, entitled to demand his liberty, upon condition; 1st, that he relinquishes all his property to his creditors : 2dly, that his future property shall continue liable until his creditors are paid : and 3dly, that he has not committed any of the different frauds enumerated in the statute. - The question is whether this law is just ?

2. Why ought a debtor to be imprisoned, and by whom? are questions which every member of the community is entitled to propose to an advocate for imprisonment for debt; because he who advises any restraint upon liberty, ought to be prepared with proof that, taking all things into consideration, such restraint is beneficial to society.

REASONS WHY A DEBTOR OUGHT TO BE

IMPRISONED. 3. The first reason which has been urged in favor of imprisonment for debt is, that imprisonment is a proper mode to compel the debtor to surrender his property for the payment of his debt. Upon this head scarcely any doubt can be entertained. The bird that can sing but wont sing, must be made to sing. The insolvent debtors' bill is founded upon this basis. The relinquishment by the debtor of the whole of his immediate and future property are some of the conditions of his liberty.

4. The second reason which has been urged in favor of imprisonment for debt is, that imprisonment is a proper punishment for the fraudulent conduct of a debtor. Dr. Paley says, “ there are frauds relating to insolvency, against which it is as necessary to provide punishment as for any public crimes whatever: as where a man gets your money into his possession and forthwith runs away with it: or, what is little better, squanders it in vicious expenses: or stakes it at the gaming-table, in the Alley, or upon wild adventures in trade: or is conscious, at the time he borrows it, that he can never repay it: or wilfully puts it out of his power by profuse living : or conceals his effects, or transfers them by collusion to another : not to mention the obstinacy of some debtors, who had rather rot in gaol than deliver up their estates.

5. Upon this head, if a right distinction is observed between breach of trust and fraud, scarcely any doubt can be entertained. The insolvent debtors' bill is founded upon this basis : one of the conditions of the debtor's restoration to liberty being his innocence of the various frauds enumerated in the statute.

6. Different opinions have been entertained with respect to the distinction between breach of trust and fraud. Dr. Swift, in his Voyage to Lilliput, says, “they look upon fraud as a greater crime than theft, and therefore seldom fail to punish it with death; for they allege that care and vigilance with a very common understanding may preserve a man's goods from thieves, but honesty has no fence against superior cunning; and since it is necessary that there should be a perpetual intercourse of buying and selling, and dealing upon credit; where fraud is permitted and connived at, or hath no law to punish it, the honest dealer is always undone, and the knave gets the advantage. I re

member when I was once interceding with the king, for a criminal who had wronged his master of a great sum of money, which he had received by order, and ran away with; and happening to tell his majesty by way of extenuation that it was only a breach of trust; the emperor thought it monstrous in me to offer as a defence the greatest aggravation of the crime ; and truly I had little to say in return, farther than the common answer, that different nations had different customs; for I confess I was heartily ashamed.” · Dr. Paley, on the other hand, says, “the same principle accounts for a circumstance which has been often censured as an absurdity in the penal laws of this and most modern nations ; namely, that breaches of trust are either not punished at all, or punished with less rigor than other frauds. Wherefore is it, some have asked, that a violation of confidence, which increases the guilt, should mitigate the penal. ty? _This lenity or rather forbearance of the laws, is founded on the most reasonable distinction.-A due circum. spection in the choice of the persons whom they trust; caution in limiting the extent of that trust; or the requiring sufficient security for the faithful discharge of it, will commonly guard men from injuries of this description; and the law will not interpose its sanctions to protect negligence and credulity, or to supply the place of domestic care and prudence. To be convinced that the law proceeds entirely upon this consideration, we have only to observe, that where the confidence is unavoidable, where no practicable vigilance could watch the offender, as in the case of theft committed by a servant in the shop or dwelling house of his master, or upon property to which he must necessarily have access, the sentence of the law is not less severe, and its execution commonly more certain and rigorous, than if no trust at all had intervened.”

Dr. Johnson says, “those who have made the laws, have apparently supposed, that every deficiency of payment is the crime of the debtor. But the truth is that the creditor always shares the act, and often more than shares the guilt of improper trust. It seldom happens that any man iinprisons another but for debts which

he suffered to be contracted in hope of advantage to himself, and for bargains in which he proportioned his profit to his own opinion of the hazard; and there is no reason why one should punish the other for a contract in which both concurred.”

7. The law of England is founded upon the distinction stated by Dr. Paley: our maxim is “ Vigilantibus et non dormientibus subveniunt jura.” If, therefore, a man part with his property without any fraudulent representation having been made by the person to whom it is entrusted, and such debtor neglect to pay the debt, it is considered by our law as a mere civil offence, a breach of trust : but, if dominion over the property be obtained through fraud, it is a crime which varies in its magnitude, not according to the value of the property obtained, but according to the greater or less vigilance used by the proprietor: for if, through fraudulent representations, a man obtain total dominion over the property of another, it is a misdemeanour: but if he obtain only a partial dominion, it is a felony: less vigilance being used when a man relinquishes total dominion, than when he relinquishes only a partial dominion.

8. The principle of this distinction seems to be, that society never interferes but to protect itself. Society is too intelligent, and has too much foresight to be alarmed at acts which are committed only by folly. • 9. If this part of the law of England is founded on a right principle, every debtor who, through fraudulent representa. tions, obtains possession of property, ought to be punished for his fraud: but the punishment ought not to extend to subsequent misapplication of the property either from his misfortune or from his misconduct. The limits of this punishment, and the person by whom it ought to be inflicted, are different considerations. · 10. The third reason which has been urged in favor of imprisonment for debt is, that imprisonment is a proper punishment for the protection of public credit.

11. The different opinions which have been expressed upon this subject will, without difficulty, enable any unprejudiced man to judge for himself. Dr. Paley says

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