H. Biglow.

The American monthly magazine and critical review online

. (page 10 of 99)
Online LibraryH. BiglowThe American monthly magazine and critical review → online text (page 10 of 99)
Font size
QR-code for this ebook


doubt not he will fed his anticipationa
fblly realized. C 8. R.



Digitized by



Google



}MX$.



BinfTUQtunMijoirDtbi^



45



JbtT. 4. Cauiuiy on the AhoHHon of frnpritonnterU for DAL PubUAed in the JVeio-
York Evening Poet, and in the Commercial AdnerfMer^ in the year 1017.

A DiiomnHon on Imprieonment for Dtbi, at the Practice exists in the State of JV*e|^
York. B^HowABD. 8vo. pp. 48. JVVie-Forlr. Chaiies Wiley ^ Ck>. 1818.



WHETHER cinl society deriFed ite
origin from any express compact,
•r not, its existence is based upon those
principles which would hare constituted
the ground-work of a voluntary and for-
mal confederation. Man is, undoubtedly,
greg^ous from instinct; and, associations
were probably first entered into, upon the
mere impuls^ of natuiip, without a com-
putation, or even an apprehension, of the
advantages to which such associations
might tend, and in which, in fact, they
have resulted. But though reaton was
Bot consulted in the preliminary inter-
course, by means of which the homan
species has been multiplied and perpetua^
ted, and out of which thecomphcated re-
lations of life have grown ;— it reqiiires,
nevertheless, the per^tion oi reason, to
provide for the well bein^ of an extended
community. To ascertaui the rights aiid
duties of the individuals composing die
bo9y politic, towards each other and to-
wards the state— and to contrive a mode
?^;idly to enforce these, and strictly to
▼indicate those— is at once the most im-
portant purpose of morality, and the most
arduous effort of intellect But it il a
** consummation," not more ** devoutly to
be vrished,** than unlikely to be attained.
Simply to devise the best BMans of pro-
tectmig private interests and of promoting
<he public good, is in itself a stupendous
task— but when, in addition to the intrin-
lic difficulties of the subject, we take into
▼iew the adventitious obstacles, which the
ignorance, and prejudice, and jealousy of
tfhe many throw in the way of tiie lawgiv-
er, and die subtility vrith which his plain-
est enactments are evaded, we shall be-
gin to baye some notion of the hopeless-
Bess of his toiL If even when God, con-
descended to give written statutes to the
Jews, and made his own seleetion of per-
•ons to administer his laws, the current of
justice was still liable to be polluted, and
its^^reat ends wero not unf requently de»
feated, we may well despair of witnessing,
in this worid, a perfect dispensation. Yet
though we cannot prevent wrong, we may
in somiB measuro, mitigate it— ^md though
we cannot eradicate evil, we can, at ]east>
abstain from augmenting it

It is a matter c^ some doubt, whether
the attempt to reduce all die transactions
i|nd comnieice bo^ween men to ixMfi/i



rules, has not, ob the whole, wrousht
mofe mischief than it has mended— whe-
ther the law has not been oftener used as
a buckler to shield the wicked, than as a
sword to avenge the injured. The fond-
ness of mankind for sjrstem leads them in-
to continual absurdities. The merits of
every case rest upon the circumstances
of tluBit case. Witheutknowing these cir-
cumstances, the law undertakes to class
prospectively, from certain indicia^ which
are, perhtms, purely accidental, cases
whichmay beessendallydifierent Would
it not be as safe to entrust an enlightened
tribunal with the power of meting out
equity, from its convictions of right, on
the inve^dgadon of evidence, as to put
every thing at risk, upon a jump-in-the-
daric of the law ? Moral obligation, the
law can neither create nor change. It
does not pretend to do either. It only
essays to apply certam abstract principles
to all cases which may occur of a certain
description, but which cases, though they
may have some quality in common, may
sdlJ be dissimilar in the most important
particulars. Besides a thousand oombi-
Bations may arise, which the law cannot
foresee, and, of course, cannot embrace.
But the code of equity not only fumishea
the invcise remedy for a present griev-
ance, but affiirds specific redress for
every wronr which may be sustained.
These speciuadons are not novels— thou|^
possibly, they deserve moreconsideratioa
than has been bestowed upon them.

But to come to the subject inhand. The
social compact, however formed or rad*
fied, is a beneficial contract :— and the
good oftiie whole is the^ of the bond of
union. Men consorted together for their
mutual advantage. Whether fear or af-
i»ction incited them, protectfon in their
persons and possessions was an indispen-
sible stipulation in their alliance. So-
ciety undertook to aiford this protection,
and frtMB the earliest records of histoiy,
has becA continually occupied in endea-
vouring to fulfil its engagement

It is the interest of society to conserve
the rights of its con8tituent»— it is the in-
terest of individuals to obey the ordinances
of society. No matter how profligate die
oonununity, it must recognize truth, and
must plight itself to observe justice. A
faaod of robbers can cement itself only by



Digitized by



Google



46



Imprifonmenl/or Debt.



Mat,



the ties of virtue'— a set of sharpers must,
among^ themselves, prohibit cheating. We
may, therefore, on all g^eneral questions,
presume a free community to act honest-
fyf according to the best of its understand-
ing-. But superiority of natural endow-
ments in the rudest state of society, ami
the accumulaticm of wealth at a more ad-
vanced period, give to individuals an as-
cendency over their fellows. It is always
the aim of those who hare attained an ele-
vation to retain it, and the iniuence which
their present consideration confers, is em-

S loved to give stabihty to their power,
tule and distinction, in process of time,
become hereditary ; and inequality of con-
dition gives birth to inequality of rights.
A system (^'aggression thus conunenced,
is usually pursued, till one part of society
is brought into entire subjection to an-
other. If servitude be rendered too gall-
ing, the oppressed revolt, and some pw-
tion of liberty is redeemed. Having dis-
covered their strength, by preserving a
concert in their measures, Oie governed
are able to check and counterbalance the
usurpation of Uieir governors ; and, ulti-
mately, to repulse their encroachments.
In this strife, opposite forces nearly coun-
teract each other, and the machine of so-
ciety is not drawn widely out of the true
line of its direction. But water may be
cooled below the freezing point without
<»ogealing, — and tynuiny may degrade
its victims below the dignity of men, with-
out driving them to desperation. There
exist governments in which the welfare of
the subject is never weighed against the
wishes of the sovereign, and where the na-
tion is r^BLrded but as the pediment of the
throne. Such governments are supported
by force,^and can be supported, even
in this way, only over a stupid and igno*
rant people. But in more enlightened
countries, where public opinion is, in some
degree, respected and consulted, the rich
have still an undue influence over the
laws, both in their enaction, and in their
administration. It is only in a republic,
where eveiy office is elective, and where
every citizen possesses^ the elective fran-
chise, that we can expect to find the good
of the iohole the paramount principte of
legislation.

A republican government, however,
like every other government, bears hard-
est upon the lower classes. In a com-
monwealth, the people are, indeed, jtbe
nominal sovereig^, but in most cases,
they are incapable of exercising the actual
sovereignty. Unfitted or afraid to think for
themselves, they act as they are acted up-
on; and unfortunately, thqae who coaunu*



nicate the impulseto the nublic mind, are
not always unbiass^ by smister interests.
The multitude is ferocious only when pro-
voked, and formidable only when opposed.
Credulous and fond of being caressed, it
is ever too ready to become Uie dupe of
the designing ; and if, soothed by their
meretricious^folandishments, it suffers it-
self to be lulled in the lap of security, it is
certain to be shorn of its strength, and to
be delivered bound, into the hsm4s of the
Philistines.

Happily a wakeful jealousy prevails in
tiiis country, among the majority of the
people, in regard to any invasion of their
imprescriptiUe rights, which will render
abortive every oipen attempt to infringe
them. The citizens of the United States
will owe their exemption from tiie com-
mon fote of nations, to their superior mo«
ral and intellectual cultivation. Tlie^
know and tiiey appreciate their immum-
ties, and they will neither barter nor aban-
don them. They are aware that the es-
sence of freedom consists, not in the pa-
geant of national independence, but in
the actual enjoyment of civil hberty — and
no arts, and no cajolery, will ever extort
from them the surrender of that' boon,
without which patriotism is but a phan-
tom, and loyalty ceases to be a virtue.

It is a maxim of the English law, that
the king can do no wrong. In republics,
this royal prerogative may be predicated
of Ihe sovereign people. A nation of free-
men cannot trammel itself with any bonds
inconsistent with freedom. It can revoke;
at pleasure, any concession which operates
to its detriment The state is obliged to
consult the good of all its subjecti, and if
it have made a grant to some which pre-
judices others, it is its duty, as w^ as its
right, to annul it In any community
every privilege or exemption is so much
substracted from the coipmon stock, and
is not only directly, but indirectly opprest
sive to those from whom the grace pnn
ceeds— it not only augments their propor-
tion of ordinary burtheUs, but by creatiug
obno^ous distinctions and contrariant in-
terest, it creates new burthens to b^
bom.

The moral obligations of communities '^
and of individuals are the same. Those
rights which individuals could not surren-
der to the state, the state is not empower-
ed to compromit No man has a right to
dispose of his life or his liberty, for no
equivalent can be ofiisred for either. Cri-
minals are an>eiiab|e, in a state of nature,
to the individual who suffers by their
crimes, in a state of civilization to ths
^iety which is injured in the persons cf



Digitized by



Google



1818.



Jmpriaonmenl for DAt.



47



its members. PiaikdmientB are propor-
tioned to offences; and are intended to
reform by infliction, or to deter b^ exam-
ple. Some offences are justly pomshed by
imprisonment, — some, possibly, are pu-
nishable with death. In the savage state
the injured invidual avenges bis own
wrong, — ^in the social, state the magis-
trates enforce the sanctions of the law
against those who contravene it. Life or
liberty may, therefore, become forfeited
by the commtB8i<Hi of crime, — and in this
way ofily. But the essence of crime is its
purposed and premeditated malice. Po-
verty, though an evil, can hardly be ima-
gined to be either malicious or voluntaiy
- since it acts of itself in the nature of a
punishment to those who incur it. It is,
then, no crime to be poor. Imprisonment,
therefore, or any other penance for pover-
ty is unjust.

It may'be said, however, that debts are
▼oluntanlv assumed, and grow out of be-
nefits conferred — and that if a man under-
takes to pay what he is unable to pay, he
ought to suffer the consequences of his de-
fiiult. If he be made lisJble to imprison-
ment for failure in complying with bis
contracts, the fear of imprisonment will
operate as a salutary stimulus to his ex-
ertions; — and to give efficacy to the mo-
tive, it must be rigidly enforced in cases
of delinquency. Besides it is necessary
to the preservation of credit that men
should give the greatest security in their
power for the performance of their pro-
mises, — and if their liberty be what they
price most, let them pledige that, as the
surest g^arranty of their honesty.

But no one can i^edge that of which he
has not the controul. Men are not the mas-
ters of their lives and liberties, to dispose
of them at their option. They are moral
agents, and are bound to preserve both the
one and the other, as the absolute and un-
alienable gifts of the Deity, to be devoted
to the legitimate ends of rational being.
The only gage they can offisr, for the return
of values received, is, present possessions
or prospects, skill in business, and inte-
grity of character. To these alone Should
the creditor look, as the foundations of his
confidence and the sources of his reim-
bift'sement To the property of debtors
recourse should be directly had, on the
^first occasion of delay or denial of pay-
ment o( just dues, — and fairness of deal-
ing should be compelled by the severest
p^talties for malversation. Whether the
debtor's skill or talent should be held in
requisitioii after the fact of his insolvency
is ascertained, or, in other words, whether
tbe futim acquiutioQf of an iosolventy al^



ter his fiuhire and the complete surrender
of his property, should be liable for his
deficiencies, though not doubtful as a mat-
ter of equity, is questionable as a measure
of expedience. He who cannot calculate •
on the enjoyment of his earnings will
rarely labour with diligence; and one
ever so desirous of redeeming bis reputa-
tion and his losses, if exposed to be ar-
rested in his career, the moment he ac-
quires a sensible motion, must despair of
reaching the goal of his generous ambi-
tion.

Temporary coercion of personal liber-
ty, as the only effectual means of con-
straining the debtor to abide the judgment
of the law, in tbe first instance, and of
compelling him to make a disclosure of
his property, subsequently, the laws of
every civilized community do, indeed,
allow. So salutary a restraint, no friend
of good morals will wisb to remove. We
do not perceive that the writers, whose
essays we have under consideration^ how
much soever at variance on other points,
differ in their sentiments in this respect.
Both admit the necessity of the existence
of a power to imprison debtors, whoomit or
refuse to pay their just debts, till some sa-
tisfaction be made—either by payment,
or by proof of ipability to pay. They db-
sent as to the proper residence of this
power, and as to its mode of application.
CatUiit is in favour of leaving it to be ex-
ercised at the discretion of the creditor, —
Howard would have the proprietjr of com-
mitment, or of the requisition df bail, to
be the subject of judicial inquiry. Cautvs
considers the provision for discharging in-
solvents, taken in execution after final
judgment, from confinement, after a deten-
tion of fourteen days, or of three montlis,
on proof of their insolvency, as a season-
able, and an adequate relief, — Howard
contends that bo roan should be confined
on mesne process, till the justness of tho
plaintifTs claim be shown. Cautus regards
the present system of legfal proceedings,
in the state of New- York, tliough some-
what defective, as nearly as lenient and
fair as legal proceedings can be render-
ed,— Ifot^iEira considers them most un^
equal, despotic, and pernicious. The sym-
pathies of Cauttu are absorbed in the dis-
appointment of the creditor, — the com-
miseration of Howard is awakened only
by the sufferings of the incarcerated^ebt-
or. The conviction left upon cmr mind,
from the mature consideration of the aigu-
ments adduced, in support of the opposite
positkms of the two disputants, is, that
under the prevailing mractice of the laws
of tbe ftat* of New-York, the oases of



Digitized by



Google



48



hriprUonmeid for Debt.



Maw,



honest credkon and of hoBest debtors are
nearly equally pitiable.

It u not our iiiteotion to go into the de-
tail of the practice of the courts in this
state, which would be as disgusting to our
readers, as iatiguing to ourselves. The
bare statement of the &ct, that all the
uncouth, arbitraiy, and circufnlocutory
forms of the English law proceedings are^
with us, pertinaciously pursued, will con-
▼ey to the a|:^rehension of every one who
has any acquaintance with the subject,—-
and we envy him who has not,-*an appal-
ling idea of the Odyssean wanderings of
the suitors of justice. It is not less a sub-
ject of regret than of amaj&ement, that
amiable men are to be found, who are
sane too, uid sensible, on every other to-
pic, who yet can admire and a{^ud a
system so revolting to common sense, as
the clumsy chicanery which we have
adopted from thcb courts of Westminster-
Hall. It is mortifyiAg and astonishing
that persons of good feelings and good
capacity, can so silence their consciences,
and so pervert their undentandings, as not
merely to be content with, but to approve,
the frivolous ambages, and contemptible
fictions of our judicial processes.

The Common Law had its origin in a
state of things so different from that with
which we are conversant!^ that it is in a
great degree inapplicable to it;— ^ind the
artificial reasons, which are deduced from
e3q>loded institutions, are often directly
repugnimt to the plainest dictates of truth
anil justice. The capricious decisions of
the law, however, unjust as they may be,
are trifling evils in comparison with the
procrastination of its judgment* A greats
damage is often sustained in obtaining
justice, than would have been suffered
in forbearing to seek it 80 complex has
the practice of the courts beoome, and
so inevitable the delay in obtaining l^^al
redress, that the boasted concessions of
magna corio, have been virtually frit-
tered aivay. MM n^abimui^ muU Mn-
demttf, md difiereimu,judiUam Del rectum,
is the language of this venerable charter ;
but, ahis, it is daily contradicted in eveiy
tribunal in our country. No one who has
paid the enormous fees on a protracted
suit will doubt that justice is both delayed
and so2(^— and tiiere is many a man, who
has been obliged by the fidhire of bis pe-
ounj^ry means to abandon a good cause,
that will be bold enough to assert that it
is sometimes denied. Shakespeare, who
bad had some experience of the ills of
life, makes ** the law's delay, and inso-
lence of office,'* the climax of all the |ho-
rooalifes lb filicide* A lair««ait is an



affliction with which even the patience of
Job was not tried, and against which it
might not have been prooE

A radical reform in our jurisprudence
is loudly called for. It is vain to at-
tempt to botch all the rents in the thread-
bare system of the common law, and idle
to expect uniformity or coherence in a
piece of patchwork. The honour of oor
country, and the interest of every clasi
of citizens, require an entire new model-
ling of the civil code of our laws. We
have, among us, talents adequate to the
task — we only lack boldness to commence
the enterprise. It is not our office to de-
vise a new system, nor do we assume te
be competent to it. To point out exist-
ing inconveniences is, however, in somn
measure to indicate their remedies. Every
one is, now, liable to be arrested at the
suit of any one, and held to bail in any
amount, or to be committed tcprison for
not producing satisfactory baiL There
is, to be sure, a proviuon ot law that
no man shall be required to nve bail in
an exorbitant sum, ioii an action may be
maintained against any person who cgm-
mences a vexatious suit; — but in ^ese
oases a positive wrong must be suffered
in the first place, to give a claim for
an eventual and doubtful redress. It
should be the object of laws to prevent
wrongs, rather than to punish them. At
any rate, to puni^ the accused without
an inquiry into their guilt, is a precipitate
measure, and one for whidi no.subse- ,
qnent atonement can make amends.
Again, if a man be sued by one to whom
he is indebted, for an amount beyond
that in which he is indebted, it is so long
before a trial can be obtained^ and the
expenses of litigation are so great, that
he is not benefitted by contesting a claim,
for which there is any foundation, though
he should prove the extent of the claim
to be unfounded. Indeed, if a man be
sued in the Supreme Ckwrt, and be ready
to aclmowledge his indebtedness, it is
doubted whether he would be permitted
to confess judgment; and as an appear-
ance must be entered at the first term,
nearly a year may elapse before he caa
make defoult ; — ^tben, before judgment can
be entered up, a dilatory process ensues ;
and atter this the creditor has ninety day^
in whidi to sue out execution. If, afte^
all, the debtor be taken and committed
in execution, a considerable time may
transpire before he is allowed to ^rove
his insolvency, and when tbis fact is
proved, and when he has been discbiuged
as an insolvent, his person is stiU liable to
•met on vkj other demand> eren of tke



Digitized by



Google



1818.



ImprtsommmU for DebL



49



same creditoi*8. Hifi future property, too,
Is subject to distrainment on the very
judgment under which he has been dis-
charged. Thus f^ the law seems wholly
levcUed against debtors. But we shall
find that it is hardly less inimical to credi-
tors. A poor debtor may, indeed, be made
the victim of oppression, but a rich one
ctonot be compelled to do justice*. Pro-
perty, whether real or personal, cantoot be
attached on mesne process, and he Who
hiaiB any considerable amount of either, can
easily obtain sureties for his appearance
at Court, or for his continuance on the
jail limits. It is true, that on execution
any visible property n^ay be seized in sa-
tisfaction of the jiidgment, but by the de-
lays of the law, a sufficient interval is af-
forded ei^r to squander cuteU. or to con-
vert them into money or choscs in action,
which are held not to be attachable. An
opulent debtor ibay thus live at his ease,
with a slight sacrifice of his latitude of
excursion, and set all his creditors at de-
fiance. Moreovej^, by a JUdicioUd appli-
cation of his fuUds, he can easily produce
a host of nominal creditors who will ngn
nff^ and entitle him to a complete release,
not only from jail, but from eVery pecu>>
niary claim that exists against him.

A radical roform in our jurisprudence
St the only effectual remedy for tiie mani-
fold evUs with which the land is afflicted
under colour of law. It is time that a free
and thinking, and educated people, had
loosed its uimerstakiding firom the fetters
which were foived, iki the days of igno-
rance, for the draldom of vassals. It is
time that veteran error wei^ stripped of
its integuments, that absurdity Were drag-
1^ from the subterfuge of le^ prindple^
and that the cloak o(prachce were lined
^m the shoulders oreltortion and chi-
cane. It is time, in short, that the swad-
dling clothes of the law were laid aside,
and that truth were suffered to walk forth,
if not in her naked dignity, at l^ist in
decent robed. The scant and jagged
pattern of the common law has, indeed,
been so often pieced and deamed by the
diligent housewifery of the bench and the
legislature, that the original fetbric is not
always to be detected, but it can never be
rendered either convenient or comely for
the present stature of society. What a
diE^gfrace to the state is the boast, which
we have heard from some members of the
bar— that to acquire an acquaintance
(Jbiov^ec^ it does not deserve tobecal)*
ed,) with the practice of the courts, is, in
New- York, the most arduous part of the
study of the professicm ; — in other words,
that it is less difficult fully tp understand

Vol. III.-— No. r T



even the legal merits of a catise, tban to
learn how to bring it under the cogni^
zance of a competent judge. If this be
true, what a waste of mind must such a
prodigious accumulation of rubbish in
the threshold of the temple of justice, an-
nually occasion ? and what a gain of time
and talent Would it be to the omimunity,
. if any direct and ample avenue could be
opened to those port^, which shouUevei^
be both unbarred and accessible ?

It is worth while to calculate the ex-
tent of the pecuniary saving that would
result from simplifying our code, and sub-
stituting rational method for the idle and
arbitrary forms of judicial proceedings.
The labour to be performed would be so
much diminished, that half tibe number of
judges and lawyers, that kre at present
engaged in our Courts, Would be sufficient
for the despatch of business in half the
time that is now consumed in the same
operation. A portion of those gentlemea
of the profession who would be thrown



Online LibraryH. BiglowThe American monthly magazine and critical review → online text (page 10 of 99)