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indirect but salutary influences, of which property is an essential ingredient; along with other ingredients, doubtless, of intelligence, public spirit, and high and fair character. And that as in this country almost the whole people partake of the blessings of property, so must they also partake in the desire to protect property, and of course the laws which furnish that protection. The evils and difficulties which exist among us, in regard to insolvency, belong to the subject itself, and are not confined to our community. The highly commercial state of the world has elevated two subjects of legislation, in our day, to a very great degree of importance. One respects the prevention and punishment of those crimes which are committed on property, such as theft, forgery, &c. which have increased, in late times, far more than the more violent offences, such as murder, and assault, and the other crimes which spring from passion, revenge, or cruelty. The other respects the provisions necessary to be made relative to insolvents, and the proper degree in which there may be a mitigation, in certain cases, of the ancient rigor of imprisonment for debt. These important subjects are full of inherent difficulties. None of the ancient codes furnish examples which can be safely followed, because such a state of society as exists now existed in none of the ancient states. The systems adopted among the modern nations are not yet satisfactory to themselves. In France, we know that these subjects have lately attracted much consideration. In Holland, a revision of the whole system is before a commission appointed for that purpose. In England, one of these subjects, the reformation of the criminal code, is before a committee of the House of Commons, at the head of which is Sir James Macintosh. The bankrupt laws are, or lately have been, under investigation before another committee, and the insolvent debtor act is receiving great attention from some of the principal men in either House of Parliament. In our own country, we know that Congress has for two sessions discussed a proposed system of bankruptcy, and that several of the state legislatures are desirous, as far as their power extends, to make just and wise provisions on the subject of insolvency, in case the power of Congress to establish a bankrupt system shall not be exercised. Intelligent men, we trust, will thus see, that the law of creditor and debtor in the United States is not such as to cast that imputation on the character of our legislation, which Mr. Bristed's book would authorise, and which the Quarterly Reviewers would confirm and circulate. If our code be not perfect, neither is the code of any other nation perfect; and whatever ignorant or prejudiced men may write or may believe about us, those who have sense and candor will distinguish between what is inherent in a difficult subject, and what is the result of unskilful or dishonest legislation.



Washington, May 2, 1830.

SIR, I have received your letter of the 19th of April, asking my opinion upon several questions, all relative to the subject of imprisonment for debt. I am quite willing to express my general opinions on that interesting subject, although they are not so matured as to be entitled to influence other men's judgments. The existing laws, I think, call loudly for revision and amendment. Your first four questions seek to know what I think of imprisonment for small sums. I am decidedly against it; I would carry the exemption to debts of thirty or forty dollars, at least. Individual instances of evil or hardship might, I am aware, follow from such a change; but I am persuaded the general result would be favorable, in a high degree, to industry, sobriety, and good morals, as well as to personal liberty.

You ask, in the next place, what I think of imprisonment for debt in any case where there is no evidence of fraud. Certainly I am of opinion that there should be no imprisonment for debt, where it appears that no fraud has been practised, or intended, either in contracting the debt or in omitting to pay it. But, then, it seems to me, that, when a man does not fulfil a lawful promise, he ought to show his inability, and to show also that his own conduct has been fair and honest. He ought not to be allowed merely to say he cannot pay, and then to call on the creditor to prove that his inability is pretended or fraudulent. He ought to show why he does not and cannot fulfil his contract, and to give reasonable evidence that he has not acted fraudulently; and, this being done, his person ought to be held no longer. In the first place, the creditor is entitled to the oath of his debtor, and, in the next place, to satisfactory explanation of any suspicious circumstances.

There are two sorts of fraud, either of which, when proved, ought to prevent a liberation of the person, viz: fraud in contracting the debt, and fraud in concealing, or making way with, the means of payment. And the usual provisions of the bankrupt act ought to be added, that no one should be discharged, who is proved to have lost money in any species of gaming; and I should include, in this class, all adventurers in lotteries. Having tendered his own oath, and made just explanation of any circumstances of suspicion, if there be such, and not having lost money by gaming, the debtor ought to be discharged at once; which answers another of your questions; for the detention of thirty days, before the oath can be taken, appears to me wholly useless.

You are pleased to ask whether, in my judgment, Christians can, with a good conscience, imprison, either other Christians, or infidels. He would be very little of a Christian, I think, who should make a difference, in such a case, and be willing to use a degree of severity towards Jew or Greek, which he would not use towards one of his own faith. Whether conscientious men can imprison anybody for

debt, whom they do not believe dishonest or fraudulent, is a question which every man, while the law allows such imprisonment, must decide for himself. In answer to your inquiry, whether I have found it necessary to use such coercion, in regard to debts of my own, I have to say, that I never imprisoned any man for my own debt, under any circumstances; nor have I, in five and twenty years' professional practice, ever recommended it to others, except in cases where there was manifest proof, or violent and unexplained suspicion, of intentional fraud.

Imprisonment for debt, my dear sir, as it is now practised, is, in my judgment, a great evil; and, it seems to me, an effectual remedy for the larger part of the evil is obvious. Nineteen twentieths of the whole of it would be relieved, in my opinion, if imprisonment for small debts were to be abolished. That object I believe to be attainable; and to its attainment, I think, the main attention of those who take an interest in the subject should be directed. Small credits are often given, on the confidence of being able to collect the debt by the terrors of the jail; great ones, seldom or never.

Three simple provisions would accomplish all, in my opinion, that may be considered as absolutely required to a just state of the law, respecting imprisonment for debt in Massachusetts.

1. That no imprisonment should be allowed, when the debts, exclusive of costs, did not amount to $30.

2. That there should be no necessity of imprisonment for thirty days, as preliminary to taking the poor debtor's oath; nor any longer detention than such as is necessary to give parties notice, and time to prepare for examination; and that a convenient number of magistrates, in every county, should, for the purpose of administering the oaths, be appointed by the government; and that such magistrates should be clothed with such further powers as might be thought expedient, in order to enable them to make a thorough investigation of the fairness or fraud of the debtor's conduct.

3. That in cases where the debtor had been discharged, if the creditor would make oath to newly discovered evidence, proving original fraud, or, to his belief, that the debtor had subsequently received property, and concealed or withheld the same from his creditors, it should be competent to such creditor to have investigation of such charge, and, if made out, to have execution against the person, and if not made out, that the creditor should pay the cost of the proceeding.

Other provisions might doubtless be useful; but if these three alone could be obtained, they would, in a great measure, clear the jails of debtors, and give general satisfaction, I have no doubt, to creditors.

I ought to add that the imprisonment of females in the common jails, for mere debt, is a barbarism which ought not to be tolerated. Instances of such imprisonment, though rare, do yet sometimes occur, under circumstances that shock every humane mind. In this respect, the law ought, in my judgment, to be altogether reformed.


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