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THERE are two capital faults in our law with relation to civil debts. One is, that every man is presumed solvent. A presumption in innumerable cases, directly against truth. Therefore the debtor is ordered, on a supposition of ability and fraud, to be coerced his liberty until he makes payment. By this means, in all cases of civil insolvency, without a pardon from his creditor, he is to be imprisoned for life :—and thus a miserable mistaken invention of artificial science operates to change a civil into a criminal judgment, and to scourge misfortune or indiscretion with a punishment which the law does not inflict on the greatest crimes.
The next fault is, that the inflicting of that punishment is not on the opinion of an equal and public judge ; but is referred to the arbitrary discretion of a private, nay interested and irritated individual. He, who formally is, and substantially ought to be, the judge, is in reality no more than ministerial, a mere executive instrument of a private man, who is at once judge and party. Every idea of judicial order is subverted by this procedure. If the insolvency be no crime, why is it punished with arbitrary imprisonment? If it be a crime, why is it delivered into private hands, to pardon without discretion, or to punish without mercy and without measure? To these faults, gross and cruel facts in our law, the excellent principle of Lord Beauchamp's Bill applied some sort of remedy. I know that credit must be preserved; but equity must be preserved too; and it is impossible that any thing should be necessary to commerce, which is inconsistent with justice. The principle of credit was not weakened by that Bill. God forbid! the enforcement of that credit was only put into the same judicial hands on which we depend for our lives, and all that makes life dear to us. But, indeed, this business was taken up too warmly both here and elsewhere. The Bill was extremely mistaken. It was supposed to enact what it never enacted; and complaints were made of clauses in it as novelties, which existed before the noble Lord that brought in the Bill was born. There was a fallacy that ran through the whole of the objections. The Gentlemen who opposed the Bill, always argued, as if the option lay between that Bill and the ancient law. But this is a grand mistake. For practically, the option is between, not that Bill and the old law, but between that Bill and those occasional laws, called acts of Grace. For the operation of the old law is so savage, and so inconvenient to society, that for a long time past, once in every parliament, and lately twice, the legislature has been obliged to make a general arbitrary jail-delivery, and at once to set open, by its sovereign authority, all the prisons in England. Gentlemen, I never relished acts of Grace; nor ever submitted to them but from despair of better. They are a dishonorable invention, by which not from humanity, not from policy ; but merely because we have not room enough to hold these victims of the absurdity of our laws, we turn loose upon the public three or four thousand naked wretches, corrupted by the habits, debased by the ignominy of a prison. If the creditor had a right to those carcases as a natural security for his property, I am sure we have no right to deprive him of that security. But if the few pounds of flesh were not necessary to his security, we had not a right to detain the unfortunate debtor, without any benefit at all to the person who confined him. Take it as you will, we commit injustice. Now Lord Beauchamp's Bill intended to do deliberately, and with great caution and circumspection, upon each several case, and with all attention to the just. claimant, what acts of grace do in a much greater measure, and with very little care, caution, or deliberation.
· I suspect that here too, if we contrive to oppose this Bill, we shall be found in a struggle against the nature of things. For as we grow enlightened, the public will not bear, for any length of time, to pay for the maintenance of whole armies of prisoners, vor, at their own expense, submit to keep jails as a sort of garrisons, merely to fortify the absurd principle of making men judges in their own cause. For credit has little or no concern in this cruelty. I
speak in a commercial assembly. You know that credit is given, · because capital must be employed ; that men calculate the chances
of insolvency; and they either withhold the credit, or make the debtor pay the risk in the price. The counting-house has no alliance with the jail. Holland understands trade as well as we, and she has done much more than this obnoxious bill intended to do. There was not, when Mr. Howard visited Holland, more than one prisoner for debt in the great city of Rotterdam. Although Lord Beauchamp's act (which was previous to this Bill, and intended to feel the way for it) has already preserved liberty to thousands; and though it is not three years since the last act of grace passed, yet by Mr. Howard's last account, there were near three thousand again in jail. I cannot name this Gentleman without remarking, that his labors and writings have done much to open the eyes and hearts of mankind. He has visited all Europe, not to survey the sumptuousness of palaces, or the stateliness of temples; not to make accurate measurements of the remains of ancient grandeur, nor to forin a scale of the curiosity of modern art; not to collect medals, or collate manuscripts : but to dive into the depths of dungeons; to plunge into the infection of hospitals; to survey the mansions of sorrow and pain; to take the gage and dimensions of misery, depression, and contempt: to remember the forgotten, to attend to the neglected, to visit the forsaken, and to compare and collate the distresses of all men in all countries. His plan is original ;, and it is as full of genius as it is of humanity. It was a voyage of discovery; a circumnavigation of charity. Already the benefit of his labor is felt more or less in every country: I hope he will anticipate his final reward, by seeing all its effects fully realized in his own. He will receive, not by detail but in gross, the reward of those who visit the prisoner; and he has so forestalled and monopolized this branch of charity, that there will to merit by such acts of benerolence
be, I trust, little room bereafter.
DR. PALEY. Whoever borrow's money, is bound in conscience to repay it. This every man can see; but every man cannot see, or does not however reflect, that he is, in consequence, also bound to use the means necessary to enable himself to repay it. “ If he pay the money when he has it, or has it to spare, he does all that an honest man cau do," and all, he imagines, that is required of him; whilst the previous measures which are necessary to furnish him with that money, he makes no part of his care, nor observes to be as much his duty as the other; such as selling a family seat or'a family estate, contracting his plan of expense, laying down bis equipage, reducing the number of his servants, or any of those humiliating sacrifices, which justice requires of a man in debt, the moment he perceives that he has no reasonable prospect of paying his debts without them. An expectation which depends upon the continuance of his own life, will not satisfy an honest man, if a better provision be in his power; for it is a breach of faith to subject a creditor, when we can help it, to the risk of our life, be the event what it will, that not being the security to which credit was given.
I know few subjects which have been more misunderstood than the law which authorizes the imprisonment of insolvent debtors. It has been represented as a gratuitous cruelty, which contributed nothing to the reparation of the creditor's loss, or to the advantage of the community. This prejudice arises principally from considering the sending of a debtor to gaol, as an act of private satisfaction to the creditor, instead of a public punishment. As an act of satisfaction or revenge, it is always wrong in the motive, and often intemperate and undistinguishing in the exercise. Consider it as a public punishment, founded upon the same reason, and subject to the same rules as other punishments; and the justice of it, together with the degree to which it should be extended, and the objects upon whom it may be inflicted will be apparent. 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; for, to say the truth, the first absurdity is in the law itself, which leaves it in a debtor's power to withhold any part of his property from the claim of his creditors. The only question is, whether the punishment be properly placed in the hands of an exasperated creditor, for which it may be said, that these frauds are so subtile and versatile, that nothing but a discretionary power can overtake them; that no discretion is likely to be so well informed, so vigilant, or so active as that of the creditor.
It must be remembered, however, that the confinement of a debtor in gaol is a punishment; and that every punishment supposes a crime. To pursue, therefore, with the extremity of legal rigor, a sufferer, whom the fraud or failure of others, his own want of capacity, or the disappointments and miscarriages to which all human affairs are subject, have reduced to ruin, merely because we are provoked by our loss, and seek to relieve the pain we feel by that which we inflict, is repugnant not only to humanity, but to justice: for it is to pervert a provision of law, designed for a different and a salutary purpose, to the gratification of private spleen and resentment. Any alteration in these laws, which could distinguish the degrees of guilt, or convert the service of the insolvent debtor to some public profit, might be an improvement; but any considerable mitigation of their rigor, under the color of relieving the poor, would increase their hardships : for whatever deprives the creditor of his power of coercion, deprives him of his security; and as this must add greatly to the difficulty of obtaining credit, the poor, especially the lower sort of tradesmen, are the first who would suffer by such a regulation. As the tradesmen must buy before they sell, you would exclude from trade twothirds of those who now carry it on, if none were enabled to enter into it without a capital sufficient for prompt payments. An