law to fhorten its continuance in general, as far as is confiftent with public fafety. Where a perfon has been committed on a prefumptive appearance of guilt, if the crime is not of a very heinous nature, he may in most cafes 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 prifoner upon bail; the time of imprifonment before trial, is made as fhort as is confiftent with a fair inveftigation of facts. In this refpect, England is confpicuonfly diftinguished above all other nations, and with justice, is proud of her habeas corpus act, which fo perfectly fecures to her the benefit of these invaluable privileges.

In cafes where imprisonment is ordered as a punishment for delinquency of any fort, the power of inflicting that punishment, as the power of inflicting every other punishment awarded by the law, is taken out of the hands of the person injured, and is entrusted to the judge alone, who is empowered to preforibe the time of its duration, and to determine the condition on which it may be shortened; and who, by being cool and uninterested in the caufe, is fuppofed 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 crime for which it is awarded be fully proved: for it would be highly unjust to inflict a punishment, where there ftill remained a doubt of the guilt.

In general, our laws have alfo cautiously difcriminated between crimes and misfortunes. If one man for example, fhall 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 can be punished as a criminal, it must be proved, that his heart alfo was affenting to the deed: nor can any one

be punished for having fet fire to a houfe, unless it be proved that it was not done by accident, but by design.

The wisdom and equity of thefe regulations will not be difputed: But in regard to debt, all thefe rules are totally overturned, or entirely difregarded. The mere act of having contracted a debt which cannot be eafily difcharged, may no doubt on many occafions, prove prejudicial to the creditor, but it does not, prima facie, appear to be a crime of a deeper dye, than that of fetting fire to our neighbour's houfe, or the depriving a fellowfubject of life. Yet the fimply proving of this fact, without any refpect being paid to the amount of the debt, or the circumstances that occafioned the failure of payment, is deemed a fufficient reafon for withdrawing from the debtor the protection of the judge; for depriving 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 fhall fo incline, without controul, inflict upon him a punishment, that shall be more fevere than death itfelf. And it is in this land of freedom, which boasts of the protection the laws afford to every individual, that fuch things are permitted! Is it in this land, where humanity is univerfally cherished, that such cruelty is tolerated! Is it in this land where freedom is adored, that fuch a horrid fpecies of flavery is fuffered to prevail! It is even fo. And ought we not to he afhamed to vaunt of our freedom, to glory in our fpirit of humanity, or to pride ourselves in the justice of our laws, while this fyftem of legal barbarity is fuffered to exift among us? A debtor may have doubtless become fuch through misfortunes, as well as from a criminal conduct. Why then, fhould he alone be liable to fuffer the fevere punishment of guilt, before even an attempt fhall have been made to prove, that fuch guilt does actually exift? The only apology that can be offered, for our having fo long tolerated fo barbarous a fyftem, is, that the unhappy fufferers are in general fhut

up from public view, and thus have been in a great meafure inadvertently difregarded; and that perhaps, among the efforts that have been made to alter the condition of debtors, the tendency of the measures propofed, have been fufpected, rather as adopted to fcreen 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 refpects, my aim shall be, to protect the innocent from unjust feverity, but not to fcreen the guilty from punishment; and to secure the rights of the creditor, in a way at least more effectually, than they are under the prefent fyftem. How far the following regulations would tend to produce thefe effects, the reader will judge.

1. After a debt has been fairly conftituted by law, let the creditor, as at prefent, be authorised to seize, not only the effects of the debtor wherever they can be found, but his perfon alfo. I believe in England, a creditor is only authorised to take one of thefe, either the perfon or the effects of the debtor; in Scotland, he may lay hold on both if he shall fo incline, and fecure his perfon in jail, until he shall either make payment of the debt, or, if that be not in his power, fhall make a full furrendry of his effects in favour of his creditors. After this is done, the debtor fhall be entitled to be dif charged from prifon, unless in the cafes that shall be afterwards specified.

2. But that no unneceffary delay may take place in regard to this tranfaction, every debtor, thus committed to prifon, fhall be entitled to be carried by a writ of habeas corpus, as foon after his commitment as he fhall incline, before a proper judge, the imprisoning creditor having got due intimation when the furrendry is to be made: where the debtor having declared, that he is

unable at the time to make full payment of his debts, and given answers to fuch queries as his creditors fhall propofe to him, fhall be allowed to make a full furrendry of his effects in favour of his creditors, and in that furrendry he shall specify upon oath the various particulars of thefe effects to the utmost of his powet, intimating at the fame time where they are lodged; a copy of which furrendry fhall be delivered to the creditor.or his agent at the time. And if he or they fhall then declare themselves fatisfied with the furrendry, the prifoner fhall be immediately difcharged. But if the credi tor fhall demand time to examine the act of furrendry, the judge fhall 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 prifon, unlefs he fhall find fureties, for his re-appearance at the time fpecified. And if within that space the creditor makes no objection, the prifoner fhall at the end of the time fpecified, be entitled to a difcharge; the creditor or creditors in the interval of time, having power to cite the debtor before them, to anfwer fuch queries, as they fhall think proper to propose to him.

3. In cafe of enlargement of the prifoner by either of thefe methods, the perfon who arrefted him fhall be bound to pay the prifon dues and all other indifpenfible charges incurred by the prifoner, referving a right to repayment of this out of the debtor's effects, if they fhall amount to fo much, after payment of all his legal debts at the time. But in cafe the effects fhall fall fhort of this, the expence fhall be born, entirely by the creditor himself, and he fhall not be entitled to repayment at any future period.

4. But if, at the time the act of furrendry was made, or at the time fpecified by the judge for that re-appearance of the parties, the creditor fhall make oath before a judge, that he has reason to believe, and is himself convinced, either that the furrendry has not been quite complete and fair, or that the debtor has been guilty

of culpable conduct, he fhall, in that cafe, be entitled
to demand a warrant for detaining the prifoner for the
fpace of
days, until he can be brought to a fair
and open trial, to afcertain 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 cafes, the punishment of which is death; but as there may be fmaller delinquencies which ought not to be allowed to efcape unpunished, though death would be deemed too fevere; thefe delinquencies may be specified by the name of culpable condu&; the punishment for which trefpaffes, might be pillory or imprisonment, or both, at the difcretion of the judge, according to the degree of delinquency proved. The creditor, therefore, fhould be at liberty to bring his action for one or the other trespass, as he should fee caufe. If the affidavit run for a fraud, the culprit fhould be remanded to prifon. But if the accufation went no farther than culpable conduct, the judge fhould be empowered to admit the debtor to bail, on his being able to find fureties to a fufficient amount, who fhall become bound for his appearance at the trial *.

6. In all cafes of this fort, both in Scotland and England, the trial fhall be by jury only.

7. If upon trial, the profecutor fhall fail in his proof, fo as that the jury acquits the prisoner, the judge fhall immediately declare him free at the bar: Nor fhall the debtor after his acquittal be liable to be again incarce→

*It is fubmitted, whether in this cafe it would not be reasonable to require the fureties to become bound for the payment of a fum equal to the amount of the whole debt due to the deponent or deponents, who fhall appear and make oath on this occafion. And that in cafe 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 cafe fhall come in the place of the creditor or creditors whom they have paid, and be entitled to rank among the creditors of the bankrupt for the fum they have paid, and as such, shall obtain a proportional dividend of his effects.

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