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their property, and been discharged, there had not been received above a penny in the pound upon the average of the debts discharged." This we quote from memory, but our statement is sufficiently exact for our purpose.
We have thus alluded to the experience of England on the subject of insolvent debtors, not by way of an idle retort, but to expose the intrinsic difficulty of the subject, and to shut up the mouths of half-informed, superficial and self-sufficient scribblers and rebukers, on both sides the Atlantic. Would it not be wrong from the facts which we have stated to infer a plausible case of enormous fraud and corruption against English justice? If we were to try our hand at such a paragraph as Mr. Bristed has written and the Quarterly Review has cited against us, might we not say, "England is not a country for a man to recover his debts. All her merchants, who are debtors, are provided for, by what she calls her system of Bankruptcy, a stupendous system, which many of her most eminent lawyers have been honest enough to confess was productive of unmeasured fraud and injustice; and as to all the rest of her subjects who may owe anything, there is the insolvent debtor's court, where anybody may be discharged; and of this court it is enough to say, that during all its existence, although no man can be discharged without surrendering all his property, which the law says shall go to his creditors, yet in truth no creditor ever gets anything. How much the officers of the court get, we do not know; and what becomes of that part which they do not get, we do not know, but we do know that the creditor gets nothing. We forbear. It is hardly fit to write such paragraphs, even for the mere purpose of showing how easily they may be written. It is a dangerous curiosity to commit sins, only to learn or to show with what facility sins may be committed.
An act of the last session of Parliament was intended, we believe, to have continued the insolvent debtor's law to the present session. Owing to mistake, however, the purpose was not effected, and the law is supposed to have expired, and proceedings under it are for the present discontinued. The subject, however, is before Parliament, and it will give us unmixed pleasure if the English government shall be able to adopt such legislation on this equally important and difficult subject as shall satisfy the necessities of its own case, and afford light to the lawgivers of other countries. In the meantime let it not be understood, that the law of creditor and debtor is in a worse state for the creditor in this country than in others. As before observed, some of the states may have occasionally departed, and may still occasionally depart from the dictates of enlightened wisdom on this subject, from a disposition to relieve hardship, and from a vain and illusory hope of finding, in mere remedial legislation, a relief against the pressure of the times, and the stagnation of trade. But the general scope and tendency of our laws is to give creditors full and ample remedies, and to render property of all sorts liable for debts. We may say, indeed, that there is no country in the world, in which a regard for the rights of property is more likely to prevail; for in no country was property ever so equally diffused,
or was so great a portion of the numerical population interested directly in the laws which protect it. We look upon this so equal distribution of property, and to the regard paid to the rights of property in this country, as the great safeguards and security of the commonwealth. Almost every man among us is interested in preserving the state of things as it is; because almost every man possesses property, and while he cannot see what he might gain, he sees clearly what he might lose, by change. We think we may perceive here a fair ground of belief in the preservation of our republican forms of government. It is not less the language of reason than of experience, that property should have influence in the state, whenever such a state of things exists, as that military fame is not supreme. If the tendency of the laws and institutions of society be such, as that property accumulates in few hands, a real aristocracy, in effect, exists in the land. This is not a merely artificial, but a natural aristocracy; a concentration of political power and influence in few hands, in consequence of large masses of property having accumulated in such hands. There is not a more dangerous experiment than to place property in the hands of one class, and political power in those of another. Indeed such a state of things could not long exist. We have seen something like it in the ancient noblesse of France, in relation to whom the attempt seemed to be to make up, in positive power, or artificial distinction, what was wanting in the natural influence of property and character. The generality of these personages, with all their pretensions to rank, and all their blazoning of heraldry, were infinitely inferior in respectability, and in just influence in the state, to hundreds of the untitled but independent landholders of Great Britain. It will be disastrous, indeed, for this latter country, whenever a separation shall take place between the influence, the indirect, but the natural and salutary influence of property, and political influence, or political power. They would not, and as we have already observed, in the absence of direct, military despotism, cannot be long separated. If one changes hands, so will the other. If the property cannot retain the political power, the political power will draw after it the property. If orator Hunt and his fellow laborers should, by any means, obtain more political influence in the counties, towns, and boroughs of England, than the Marquis of Buckingham, Lord Stafford, Lord Fitzwilliam, and the other noblemen and gentlemen of great landed estates, these estates would inevitably change hands. At least so it seems to us; and therefore when Sir Francis Burdett, the Marquis of Tavistock, and other individuals of rank and fortune, propose to introduce into the government annual parliaments, and universal suffrage, we can hardly forbear inquiring whether they are ready to agree that property should be as equally divided as political power; and if not, how they expect to sever things, which to us appear to be intimately connected.
These speculations, however, are beside our present purpose. We mean only to say, that, in the present state of the world, wherever the people are not subject to military rule, the government must in a great measure be under the guidance of that aggregate of
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. Bris-. ted'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.
LETTER OF MR. WEBSTER,
ADDRESSED TO REV. LOUIS DWIGHT, SECRETARY OF THE PRISON DISCIPLINE SOCIETY, ON THE SUBJECT OF IMPRISONMENT FOR debt.
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.