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law to fhorten its continuance in general, as far as is consistent with public safety. Where a person has been committed on a presumptive appearance of guilt, if the crime is not of a very heinous nature, he may in molt cases be admitted to freedom on bail, till it can be ascertained by a fair trial, whether he has been innocent or guilty of the crime laid to his charge. In crimes of a deeper dye, where it is not competent to liberate the prisoner upon bail; the time of imprisonment before trial, is made as short as is consistent with a fair investigation of facts. In this respect, England is conspicuonlly distinguished above all other nations, and with justice, is proud of her habeas corpus act, which fo perfectly secures to her the benefit of these invaluable priyileges.
In cases where imprisonment is ordered as a punishment for delinquency of any sort, the power of inflicting that punishment, as the power of inflicting every other punifıment awarded by the law, is taken out of the hands of the person injured, and is entrusted to the judge alone, who is ernpowered to preloribe the time of its duration, and to determine the condition on which it may be shortened ; and who, by being cool and upinterested in the cause, is supposed to be able, in awarding justice to remember mercy.
In all cafes too, where imprisonment is ordered as a punishment, even the judge himself is not authorized to inflict it, till the erime for which it is awarded be fully proved: for it would be highly unjust to inflict a punishment, where there still remained a doubt of the guilt.
In general, our laws have also cautiously discriminated between crimes and misforturies. If one man for ex. ample, shall have the misfortune to kill another, the mere proving of this fact is not deemed enough to fix !:. upon him the guilt of murder. Before the culprit canli
be punished as a criminal, it must be proved, that his :heart also was afsenting to the deed: nor can any one
be punished for having set fire to a house, unless it be proved that it was not done by accident, but by design.
The wisdom and equity of these regulations will not be disputed : But in regard to debt, all these rules are totally overturned, or entirely disregarded. The mere act of having contracted a debt which cannot be eafily discharged, may no doubt on many occasions, prove prejudicial to the creditor, but it does not, prima facie, appear to be a crime of a deeper dye, than that of setting fire to our neighbour's houfe, or the depriving a fellowfubject of life. Yet the fimply proving of this fact, without any respect being paid to the amount of the debt, or the circumstances that occafioned the failure of payment, is deemed a sufficient reason for withdrawing from the debtor the protection of the judge; for de: priving him of the means of vindicating his innocence before an impartial jury of his countrymen; and for delivering him into the power of an enraged creditor, who may, if he shall so incline, without controul, inflict upon him a punishment, that shall be more severe thán death itself. And it is in this land of freedom, which boasts of the protection the laws afford to every indivi. dual, that such things are permitted! Is it in this land, where humanity is universally cherished, that such cruelty is tolerated! Is it in this land where freedom is adored, that such a horrid fpecies of Navery is fuffered to prevail! It is even so. And ought we not to he ashamed to vaunt of our freedom, to glory in our fpirit of humanity, or to pride ourselves in the justice of our * Jaws, while this system of legal barbarity is suffered to exist among us? A debtor may have doubtless become such through misfortunes, as weil as from a criminal conduct. Why then, should he alone be liable to fufter the severe punishment of guilt, before even an attempt shall have been made to prove, that such guilt toes actually exift? The only apology that can be offered, for our having fo long tolerated fo barbarous a Cyftem, is, that the unhappy fufferers are in general thug up from public view, and thus have been in a great meafure inadvertently disregarded; and that perhaps, among the efforts that have been made to alter the condition of debtors, the tendency of the measures proposed, have been suspected, rather as adopted to screen the guilty offender from punishment, than to protect the innocent fufferer.
In the following hints that I shall beg leave to offer, with a view to introduce into this department of civil polity, fome part of that equity, moderation and lenity, which characterise our laws in other respects, my aim shall be, to protect the innocent from unjust severity, but not to screen the guilty from punishment; and to secure
the rights of the creditor, in a way at least more effec- tually, than they are under the present fystem. How
far the following regulations would tend to produce these effects, the reader will judge.
1. After a debt has been fairly constituted by law, let the creditor, as at present, be authorised to seize, not
only the effects of the debtor wherever they can be ai found, but his perfon also. I believe in England, a)
creditor is only authorised to take one of these, either the person or the effects of the debtor; in Scotland, he may lay hold on both if he shall so incline, and secure his person in jail, until he shall either make payment of the debt, or, if that be not in his power, shall make a full surrendry of his effects in favour of his creditors. Alter this is done, the debtor shall be entitled to be discharged from prison, unless in the cases that shall be
afterwards specified. 1.2. But that no unneceffary delay may take place in
regard to this transaction, every debtor, thus committed to prifon, shall be entitled to be carried by a writ of habeas corpus, as soon after his commitment as he shall
incline, before a proper judge, the imprisoning creditor i having got due intimation when the surrendry is to be
madę: where the debtor having declared, that he is
unable at the time to make full payment of his debts, and given answers to such queries as his creditors shall propose to him, shall be allowed to make a full surrendry of his effects in favour of his creditors, and in that surrendry he shall specify upon oath the various particulars of these effects to the utmost of his powet, intimating at the same time where they are lodged ; a copy of which surrendry shall be delivered to the creditor or his agent at the time.' And if he or they shall then declare themselves fatisfied with the surrendry, the prisoner shall be immediately discharged. But if the creditor shall demand time to examine the act of surrendry, the judge shall allow him a space of time, not under three days, nor exceeding fix, to examine it. The debtor during that time to be remanded back to prison, unless he shall find sureties, for his re-appearance at the time specified. And if within that space the creditor makes no objection, the prisoner shall at the end of the time specified, be entitled to a discharge; the creditor or creditors in the interval of time, having power to cite the debtor before them, to answer such queries, as they shall think proper to propose to him.
3. In case of enlargement of the prisoner by either of these methods, the person who arrested him shall be bound to pay the prison dues and all other indispenfible charges incurred by the prisoner, reserving a right to Tepayment of this out of the debtor's effects, if they fhall amount to so much, after payment of all his legal debts at the time. But in case the effects shall fall short of this, the expence shall be born entirely by the creditor himself, and he shall not be entitled to repayment at any future period.
4. But if, at the time the act of surrendry was made, or at the time specified by the judge for that re-appearance of the parties, the creditor shall make oath before a judge, that he has reason to believe, and is himself convinced, either that the surrendry has not been quite complete and fair, or that the debtor has been guilty
of culpable conduct, he shall, in that case, be entitled to demand a warrant for detaining the prisoner for the fpace of days, until he can be brought to a fair and open trial, to ascertain whether or not he has been guilty of the crimes laid to his charge.
5. Hitherto, if I mistake not, our law only takes cognizance of frauds in bankrupt cases, the punishment of which is death; but as there may be smaller delinquencies which ought not to be allowed to escape unpunished, though death would be deemed too severe; these delinquencies may be fpecified by the name of culpable conduct; the punishment for which trespasses, might be piilory or imprisonment, or both, at the discretion of the judge, according to the degree of delinquency proved. The creditor, therefore, should be at liberty to bring his action for one or the other trespass, as he should see cause. If the affidavit run for a fraud, the culprit should be remanded to prison. But if the accusation went no farther than culpable conduct, the judge should be empowered to admit the debtor to bail, on his being able to find fureties to a sufficient amount, who shall become bound for his appearance at the trial *... . . '
6. In all cases of this sort, both in Scotland and England, the trial shall be by jury only..
7. If upon trial, the profecutor shall fail in his proof, fo as that the jury acquits the prisoner, the judge shall immediately declare him free at the bar: Nor shall the debtor after his acquittal be liable to be again incarce
* It is fubmitted, whether in this case it would not be reasonable to require the fureties to become bound for the payment of a sum equal to the amount of the whole debt due to the deponent or deponents, who thall appear and make oath on this occasion. , And that in case of forfeiting the bail-bond, the money recovered upon this occasion shall go wholly into the pocket of the deponent or deponents, without communicating it to any of the other creditors; and the fureties in this case shall come in the place of the creditor or creditors whom they have paid, and be entitled to rank anong the creditors of the bankrupt for the sum they have paid; and as such, shall obtain a proportional dividend of his effects.