IMPRISONMENT FOR DEBT.
THE object of laws of debtor and creditor is twofold—general, to maintain the credit of the commercial body ; and particular, to protect the creditor from injury. The limits to which the endea- vour of the law should be confined are not difficult to be seen. The business of a creditor—for it is a distinct branch of trade, common to most callings—is to speculate in the probable amount of risk, and to rate it at such a price as will return a profit on the gross amount of transactions. The chief sources of risk are insol- vency, death, and fraud. Fraud is a violation of the general spirit of all law—a breach of contract, an invasion of right which cannot be foreseen or estimated ; and the law properly seeks to defend the creditor against it. In seeking further protection, it has not only failed directly, but has multiplied evils which it was intended to prevent. All rude codes of civil law give the creditor great power over the debtor. At first trade is impeded. The law re- laxed as to its severity, but more complicated in its provisions, the creditor is tempted by a fancied security, opportunity is eagerly offered to the debtor, and a credit which has no solid basis is the consequence. Hence the vast and destructive system of personal credit which prevails in this country, and weighs down the dealer with bad debts, the purchaser with " embarrassed circumstances." No small proportion of creditors and debtors include in their cal- culations of expenditure and receipt supposititious property which has no existence.
The general credit is made up of the sum of the particulars. It has been maintained in this country by public opinion, and a strict sense of personal honour in the British merchant. Let those in- fluences fail, and not all the law in the world would make our credit better than that of America, where the law itself is obliged to yield with the laxity of public opinion. In our own country we may see some significant and warning examples, in " bubble companies," accusations of fraud in manufactures —" devil's dust " and " shoddy cloth "—and in deliberate or reckless bankruptcies like some in the linendrapery trade. The law, by professing to be a better reliance than public opinion, and thus in part superseding it, renders such things possible. Remedies are not to be sought in more law, but in less law. If the private creditor had no protec- tion except against fraud and circumvention, he would look more narrowly into the means of his customer, and he would weed his books of " bad debts." The better scrutiny of the tradesman would make the buyer think rather of what money he had in his purse, than of what " credit" he had; or, if he had no present cash but real prospects of having it in future, a bona fide pledge of faith, a more sparing use of it, and a more punctual performance, would be taught by the necessity of future recourse to the same accommodation. Men would look to each other, not to " the law "; and they would again learn the marketable value of an honest word, now not worth the corner of an " accommodation- bill."
Other nations are before us in some of these matters. The Ko- ran allows the Mussulman creditor to imprison his debtor until in- solvency be proved; and after that the debtor may be made to work if able ; but that sacred law exhorts the creditor to remit the debt as alms. The practice is sometimes yet more lenient than
the code. In Egypt, we believe, in a case of bankruptcy the defaulter is not ruined ; but unlimited time is allowed him, and assistance even is rendered, while he pursues his business for the benefit of his creditors and his own subsistence. Our more hurried system of commerce may forbid such delays ; but there is something in the spirit of such deference for trouble and honesty which we might borrow. We reproach the United States, and justly, with their institution of slavery ; but a person whose impri- sonment in the Queen's Bench for debt, during ten years, reminds us that we deprive Whites of liberty, sends us a document from slaveholding Maryland and Kentucky, which may serve as a lesson. It is an extract of a letter from Colonel R. M. JOHNSON to a mem- ber of the Maryland Legislature- .. Frankfort, Kentucky. 7th March 1843.
" MY DEAR Sin—Your very welcome and kind letter of the 24th has been received. I am very happy to learn that your proposition to abolish imprison- ment for debt has met the sanction of your House of Delegates ; and I pray God that the Senate may do likewise. If they could only have witnessed the good fruits of it in this State for twenty years, there could not be a dissenting voice among good men, not even in a senate of Dracos. • • * * I recom- mend a total abolition of all process that will hold any man to bail for civil ac- tion or injury. About twenty years since, we abolished imprisonment for debt in Kentucky ; and during that period, no human being has been put into pri- son or prison-bound for debt, and no man has ever had to give bail for his ap- pearance : and the experiment has convinced us, that this barbarous and in- famous custom being abolished, it has enabled debtors to pay ten millions of dollars in twenty years, which never would have been paid while the body was
liable to imprisonment. • • • •
" I doubt whether any human being living now in Kentucky would advocate the restoration of this cruel and tyrannical law; and if it should be abolished in Maryland, in less than two years every voice would be raised in its favour, upon principles of good policy and humanity.
" Sincerely your friend, Ru. M. JOHNSON."
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