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ART. 4. Cautus, on the Abolition of Imprisonment for Debt. Published in the New

York Evening Post, and in the Commercial Advertiser, in the year 1817.
A Disquisition on Imprisonment for Debt, as the Practice erists in the State of New-
York. By HOWARD. 8vo. pp. 48. New-York. Charles Wiley & Co. 1818.

HETHER civil society derived its rules, has not, on the whole, wrought
or not, its existence is based upon those ther the law has not been oftener used as
principles which would have constituted a buckler to shield the wicked, than as a
the ground-work of a voluntary and for- sword to avenge the injured. The fond-
mal confederation. Man is, undoubtedly, mess of mankind for system leads them in-
gregarious from instinct; and, associations to continual absurdities.' The merits of
were probably first entered into, upon the every case rest upon the circumstances
mere impulses of nature, without a com of that case. Without knowing these cir-
putation, or even an apprehension, of the cumstances, the law undertakes to class
advantages to which such associations prospectively, from certain indicia, which
might tend, and in which, in fact, they are, perhaps, purely accidental, cases
have resulted. But though reason was which may be essentially different. Would
not consulted in the preliminary inter- it not be as safe to entrust an enlightened
course, by means of which the human tribunal with the power of meting out
species has been multiplied and perpetua- equity, from its convictions of right, on
ted, and out of which the complicated re- the investigation of evidence, as to put
lations of life have grown ;-it requires, every thing at risk, upon a jump-in-the-
nevertheless, the perfection of reason, to dark of the law? Moral obligation, the
provide for the well being of an extended law can neither create nor change. It
community. To ascertain the rights and does not pretend to do either. It only
duties of the individuals composing the essays to apply certain abstract principles
body politic, towards each other and to- to all cases which may occur of a certain
wards the state-and to contrive a mode description, but which cases, though they
rigidly to enforce these, and strictly to may have some quality in common, may
vindicate those—is at once the most im- still be dissimilar in the most important
portant purpose of morality, and the most particulars. Besides a thousand combi-
arduous effort of intellect. But it is a nations may arise, which the law cannot
“consummation,” not more “ devoutly to foresee, and, of course, cannot embrace.
be wished,” than unlikely to be attained. But the code of equity not only furnishes
Simply to devise the best means of pro- the precise remedy for a present griev-
tecting private interests and of promoting ance, but affords specific redress for.
the public good, is in itself a stupendous every wrong which may be sustained.
task-but when, in addition to the intrin. These speculations are not novel-though,
sic difficulties of the subject, we take into possibly, they deserve more consideration
view the adventitious obstacles, which the than has been bestowed upon them.
ignorance, and prejudice, and jealousy of But to come to the subject in band. The
the many throw in the way of the lawgiv. social compact, however formed or rati-
er, and the subtility with which his plain- fied, is a beneficial contract :-and the
est enactments are evaded, we shall be- good of the whole is the gist of the bond of
gin to have some notion of the hopeless- union. Men consorted together for their
ness of his toil. If even when God, con mutual advantage. Whether fear or af-
descended to give written sti/utes to the fection incited them, protection in their
Jews, and made his own selection of per- persons and possessions was an indispen-
sons to administer his laws, the current of sible stipulation in their alliance. So-
justice was still liable to be polluted, and ciety undertook to afford this protection,
its great ends were not unfrequently de- and fro the earliest records of history,
feated, we may well despair of witnessing, has been continually occupied in endea-
in this world, a perfect dispensation. Yet vouring to fulfil its engagement.
though we cannot prevent wrong, we may It is the interest of society to conserve
in some measure, mitigate it—and though the rights of its constituents—it is the in-
we cannot eradicate evil, we can, at least, terest of individuals to obey the ordinances
abstain from augmenting it.

of society. No matter how profligate the It is a matter of some doubt, whether community, it must recognize truth, and the attempt to reduce all the transactions must plight itself to observe justice. A and commerce between men to fixed band of robbers can cement itself only by

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the ties of virtue—a set of sharpers must, nicate the impulse to the public mind, are among themselves, probibit cheating. We not always unbiassed by sinister interests. may, therefore, on all general questions, The multitude is ferocious only when propresume a free community to act honest- voked, and formidable only when opposed. ly, according to the best of its understand. Credulous and fond of being caressed, it ing. But superiority of natural endow- is ever too ready to become the dupe of ments in the rudest state of society, and the designing; and if, soothed by their the accumulation of wealth at a more ad- meretricious blandishments, it suffers itPanced period, give to individuals an as self to be lulled in the lap of security, it is cendency over their fellows. It is always certain to be shorn of its strength, and to the aim of those who have attained an ele- be delivered bound, into the hands of the vation to retain it, and the influence which Philistines. their present consideration confers, is em Happily a wakeful jealousy prevails in ployed to give stability to their power. this country, among the majority of the Rule and distinction, in process of time, people, in regard to any invasion of their become hereditary; and inequality of con- imprescriptible rights, which will render dition gives birth to inequality of rights. abortive every open attempt to infringe A system of aggression thus commenced, them. The citizens of the United States is usually pursued, till one part of society will owe their exemption from the comis brought into entire subjection to an mon fate of nations, to their superior moother. If servitude be rendered too gallo ral and intellectual cultivation. They ing, the oppressed revolt, and some por- know and they appreciate their immunition of liberty is redeemed. Having dis- ties, and they will neither barter nor abancovered their strength, by preserving a don them. They are aware that the es, concert in their measuros, the governed sence of freedom consists, not in the paare able to check and counterbalance the geant of national independence, but in usurpation of their governors; and, ulti- the actual enjoyment of civil liberty—and mately, to repulse their encroachments. no arts, and no cajolery, will ever extort In this strife, opposite forces nearly coun- from them the surrender of that boon, teract each other, and the machine of so without which patriotism is but a phanciety is not drawn widely out of the true tom, and loyalty ceases to be a virtue. line of its direction. But water may be It is a maxim of the English ļaw, that cooled below the freezing point without the king can do no wrong. lo republics, congealing--and tyranny may degrade this royal prerogative may be predicated its victims below the dignity of men, with- of the sovereign people. A pation of freequt driving them to desperation. There men cannot trammel itself with any bonds exist governments in which the welfare of inconsistent with freedom. It can revoke, the subject is never weighed against the at pleasure, any concession which operates wishes of the sovereign, and where the na to its detriment. The state is obliged to tion is regarded but as the pediment of the consult the good of all its subjects, and if throne. Such governments are supported it have made a grant to some which preby force,-and can be supported, even judices others, it is its duty, as well as its in this way, only over a stupid and igno- right, to apnul it. In any community rant people. But in more enlightened every privilege or exemption is so much countries, where public opinion is, in some substracted from the common stock, and degree, respected and consulted, the rich is not only directly, but indirectly oppreshave still an undue influence over the sive to those from whom the grace prolaws, both in their enaction, and in their ceeds—it not only augments their proporadministration. It is only in a republic, tion of ordinary burthens, but by creating where every office is elective, and where obnoxious distinctions and contrariant ipevery citizen possesses the elective fran- terests, it creates new burtheps to be chise, that we can expect to find the good born. of the whole the paramount principle of The moral obligations of communities legislation.

and of individuals are the same. Those A republican government, however, rights which individuals could not surrenlike every other government, bears hard- der to the state, the state is not empowerest upon the lower classes. In a com ed to compromit. No man has a right to monwealth, the people are, indeed, the dispose of his life or his liberty, for no nominal sovereigns, but in most cases, equivalent can be offered for either. Crithey are incapable of exercising the actual minals are amenable, in a state of nature, sovereignty. Unfittedor afraid to think for to the individual who suffers by their themse ves, they act as they are acted yp- crimes, in a state of civilization to the on; and unfortunately, those who commu- society which is injured in the persons of

its members. Punishments are propor- ter his failure and the complete surrender tioned to offences; and are intended to of his property, should be liable for his reform by infliction, or to deter by exam deficiencies, though not doubtful as a matple. Some offences are justly punished by ter of equity, is questionable as a measure imprisonment,-some, possibly, are pu- of expedience. He who cannot calculate nishable with death. In the savage state on the enjoyment of his earnings will the injured invidual avenges his own rarely labour with diligence; and one wrong, -in the social state the magis ever so desirous of redeeming his reputatrates enforce the sanctions of the law tion and his losses, if exposed to be aragainst those who contravene it. Life or rested in his career, the moment he acliberty may, therefore, become forfeited quires a sensible motion, must despair of by the commission of crime, and in this reaching the goal of his generous ambiway only. But the essence of crime is its tion. purposed and premeditated malice. Po Temporary coercion of personal liberverty, though an evil, can hardly be ima- ty, as the only effectual means of congined to be either malicious or voluntary straining the debtor to abide the judgment -since it acts of itself in the nature of a of the law, in the first instance, and of punishment to those who incur it. It is compelling him to make a disclosure of then, no crime to be poor. Imprisonment, his property, subsequently, the laws of therefore, or any other penance for pover- every civilized community do, indeed, ty is unjust.

allow. So salutary a restraint, no friend It may be said, however, that debts are of good morals will wish to remove. .We voluntarily assumed, and grow out of be- do not perceive that the writers, whose nefits conferred—and that if a man under- essays we have under consideration, how takes to pay what he is unable to pay, he much soever at variance on other points, ought to suffer the consequences of his de- differ in their sentiments in this respect. fault. If he be made liable to imprison. Both admit the necessity of the existence ment for failure in complying with his of a power to imprison debtors, who omit or contracts, the fear of imprisonment will refuse to pay their just debts, till some saoperate as a salutary stimulus to his ex tisfaction be made-either by payment, ertions;-and to give efficacy to the mo or by proof of inability to pay. They distive, it must be rigidly enforced in cases sent as to the proper residence of this of delinquency. Besides it is necessary power, and as to its mode of application. to the preservation of credit that men Caulus is in favour of leaving it to be exshould give the greatest security in their ercised at the discretion of the creditor, power for the performance of their pro- Howard would have the propriety of commises,-and if their liberty be what they mitment, or of the requisition of bail, to prize most, let them pledge that, as the be the subject of judicial inquiry. Caulus surest guarranty of their honesty. considers the provision for discharging in

But no one can pledge that of which he solvents, taken in execution after final has not the controul. Men are not the mas- judgment, froin confinement, after a detenters of their lives and liberties, to dispose tion of fourteen days, or of three months, of them at their option. They are moral on proof of their insolvency, as a seasonagents, and are bound to preserve both the able, and an adequate relief,-Howard one and the other, as the absolute and un- contends that no man should be confined alienable gifts of the Deity, to be devoted on mesne process, till the justness of the to the legitimate ends of rational being. plaintiff's claim be shown. Cautus regards The only gage they can offer, for the return the present system of legal proceedings, of values received, is, present possessions in the state of New-York, though someor prospects, skill in business, and inte- what defective, as nearly as lenient and grity of character. To these alone should fair as legal proceedings can be renderthe creditor look, as the foundations of his ed, -Howard considers them most unconfidence and the sources of his reim- equal, despotic, and pernicious. The symbursement. To the property of debtors pathies of Cautus are absorbed in the disrecourse should be directly had, on the appointment of the creditor,—the comfirst occasion of delay or denial of pay. miseration of Howard is awakened only ment of just dues,--and fairness of deal- by the sufferings of the incarcerated debiing should be compelled by the severest The conviction left upon our mind, penalties for malversation. Whether the from the mature consideration of the argudebtor's skill or talent should be held in ments adduced, in support of the opposite requisition after the fact of his insolvency positions of the two disputants, is, that is ascertained, or, in other words, whether under the prevailing practice of the laws the future acquisitions of an insolvent, af- of the state of New-York, the cases of


honest creditors and of honest debtors are affliction with which even the patience of nearly equally pitiable.

Job was not tried, and against which it It is not our intention to go into the de- might not have been proof. tail of the practice of the courts in this A radical reform in our jurisprudence state, which would be as disgusting to our is loudly called for. It is vain to atreaders, as fatiguing to ourselves. The tempt to botch all the rents in the threadbare statement of the fact, that all the bare system of the common law, and idle uncouth, arbitrary, and circumlocutory to expect uniforinity or coherence in a forms of the English law proceedings are, piece of patchwork. The honour of our with us, pertinaciously pursued, will con- country, and the interest of every class. vey to the apprehension of every one who of citizens, require an entire new modelhas any acquaintance with the subject, - ling of the civil code of our laws. We and we envy him who has not,-an appal- have, among us, talents adequate to the ling idea of the Odyssean wanderings of task-we only lack boldness to commence the suitors of justice. It is not less a sub- the enterprise. It is not our office to deject of regret than of amazement, that vise a new system, nor do we assume to amiable men are to be found, who are be competent to it. To point out existsane too, and sensible, on every other to- ing inconveniences is, however, in some pic, who yet can adınire and applaud a measure to indicate their remedies. Every system so revolting to common sense, as one is, now, liable to be arrested at the the clumsy chicanery which we have suit of any one, and held to bail in any adopted from the courts of Westminster- amount, or to be committed to prison for Hall. It is mortifying and astonishing not producing satisfactory bail. There that persons of good feelings and good is, to be sure, a provision of law that capacity, can so silence their consciences, no man shall be required to give bail in and so pervert their understandings, as not an exorbitant sum, and an action may be merely to be content with, but to approve, maintained against any person who comthe frivolous ambages, and contemptible mences a vexatious suit;—but in these fictions of our judicial processes.

cases a positive wrong must be suffered The Common Law had its origin in a in the first place, to give a claim for state of things different from that with an eventual and doubtful redress. It which we are conversant, that it is in a should be the object of laws to prevent great degree inapplicable to it;-and the wrongs, rather than to punish them. At artificial reasons, which are deduced from any rate, to punish the accused without exploded institutions, are often directly an inquiry into their guilt, is a precipitate repugnant to the plainest dictates of truth measure, and one for which no subseand justice. The capricious decisions of quent atonement can make amends. the law, however, unjust as they may be, Again, if a man be sued by one to whom are trifling evils in comparison with the he is indebted, for an amount beyond procrastination of its judgment. A greater that in which he is indebted, it is so long damage is often sustained in obtaining before a trial can be obtained, and the justice, than would have been suffered expenses of litigation are so great, that in forbearing to ek it. So complex has he is not benefitted by contesting a claim, the practice of the courts become, and for which there is any foundation, though so inevitable the delay in obtaining legal he should prove the extent of the claim redress, that the boasted concessions of to be unfounded. Indeed, if a man be magna carla, have been virtually frit- sued in the Supreme Court, and be ready tered away. Nulli negabimus, nulli ven to acknowledge his indebtedness, it is demus, aut differemus, jusiitiam vel rectum, doubted whether he would be permitted is the language of this venerable charter; to confess judgment; and as an appearbut, alas, it is daily contradicted in every ance must be entered at the first term, tribunal in our country. No one who has nearly a year may elapse before le can paid the enormous fees on a protracted make default;—then, before judgment can suit will doubt that justice is both delayed be entered up, a dilatory process ensues; and sold and there is many a man, who and after this the creditor has ninety days has been obliged by the failure of his pe- in which to sue out execution. If, after cuniary means to abandon a good cause, all, the debtor be taken and committed that will be bold enough to assert that it in execution, a considerable time may is sometimes denied. Shakespeare, who transpire before he is allowed to prove had had some experience of the ills of his insolvency, and when this fact is life, makes “ the law's delay, and inso- proved, and when he has been discharged lence of office,” the climax of all the pro- as an insolvent, his person is still liable to vocatives to suicide. A law-suit is an arrest on any other demand, even of the

same creditors. His future property, too, even the legal merits of a cause, than to is subject to distrainment on the very learn how to bring it under the cogni. judgment under which he has been dis- zance of a competent judge. If this be charged. Thus far the law seems wholly true, what a waste of mind must such a levelled against debtors. But we shall prodigious accumulation of rubbish in find that it is hardly less inimical to credi- the threshold of the temple of justice, antors. A poor debtor may, indeed, be made nually occasion ? and what a gain of time the victim of oppression, but a rich one and talent would it be to the community, cannot be compelled to do justice. Pro- if any direct and ample avenue could be perty, whether real or personal, cannot be opened to those portals, which should ever attached on mesne process, and he who be both unbarred and accessible? has any considerable amount of either, can It is worth while to calculate the exeasily obtain sureties for his appearance tent of the pecuniary saving that would at Court, or for his continuance on the result from simplifying our code, and subjail limits. It is true, that on execution stituting rational method for the idle and any visible property may be seized in sa- arbitrary forms of judicial proceedings. tisfaction of the judgment, but by the de- The labour to be performed would be so lays of the law, a sufficient interval is af- much diminished, that half the number of forded either to squander assets, or to con- judges and lawyers, that are at present vert them into money or choses in action, engaged in our Courts, would be sufficient which are held not to be attachable. An for the despatch of business in half the opulent debtor may thus live at his ease, time that is now consumed in the same with a slight sacrifice of his latitude of operation. A portion of those gentlemen excursion, and set all his creditors at de- of the profession who would be thrown fiance. Moreover, by a judicious appli- out of employment, by such an abridgecation of his funds, he can easily produce ment of legal labour, might be usefully a host of nominal creditors who will sign occupied in Courts “ of the first instance," off, and entitle him to a complete release, whose province it should be to grant writs, not only from jail, but from every pecu- on due application, against the person or niary claim that exists against him. property of debtors, in certain cases, and

A radical reform in our jurisprudence to regulate the nature and extent of the is the only effectual remedy for the mani. security to be given by defendants to abide fold evils with which the land is afflicted final judgment in the superior Courts, – under colour of law. It is time that a free and in cases where a debtor should acand thinking, and educated people, had knowledge the debt, to receive his confesloosed its understanding from the fetterssion and the surrender of his property for which were forged, in the days of igno- the benefit of all his creditors, and to appoint rance, for the thraldom of vassals. It is an assignee to take charge of his effects, and time that veteran error were stripped of finally, on proper investigation, to grant its integuments, that absurdity were drag- him, in its discretion, acomplete discharge. ged from the subterfuge of legal principle, Thus would every man's person and proand that the cloak of practice were lifted perty be in the custody of the law; and from the shoulders of extortion and chi- the discretionary power of creditors becane. It is time, in short, that the swad- ing taken away, the number of suits would dling clothes of the law were laid aside, be very much lessened, -by, which means, and that truth were suffered to walk forth, another gain of time to the community if not in her naked dignity, at least in would accrue. decent robes. The scant and jagged It may seem somewhat inconsistent with pattern of the common law has, indeed, the eulogium which we have passed upon been so often pieced and dearned by the the spirit and intelligence of our country: diligent housewifery of the bench and the men, that such laws, and such a practice, legislature, that the original fabric is not as, we have described, should be tolerated always to be detected, but it can never be for a moment among us. But it is only of rendered either convenient or comely for late that the magnitude of the evil has been the present stature of society. What a felt and comprehended,—and already is disgrace to the state is the boast, which the attention of the country roused, and we bave heard from some members of the even now are its energies in action, to rebar—that to acquire an acquaintance move present ills, and to avert impending (knowledge it does not deserve to be call- dangers. In more prosperous days, ina. ed, with the practice of the courts, is, in stances of insolvency were comparatively New-York, the most arduous part of the few, and misfortune was more easily restudy of the profession ;-in other words, trieved. Banks, too, as yet were not, that it is less difficult fully to understand those laboratories of ruin had not comVOL. III.No.


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