origin from any express compact, or not, its existence is based upon those principles which would have constituted the ground-work of a voluntary and formal confederation. Man is, undoubtedly, gregarious from instinct; and, associations were probably first entered into, upon the mere impulses of nature, without a computation, or even an apprehension, of the advantages to which such associations might tend, and in which, in fact, they have resulted. But though reason was not consulted in the preliminary intercourse, by means of which the human species has been multiplied and perpetuated, and out of which the complicated relations of life have grown-it requires, nevertheless, the perfection of reason, to provide for the well being of an extended community. To ascertain the rights and duties of the individuals composing the body politic, towards each other and towards the state-and to contrive a mode rigidly to enforce these, and strictly to vindicate those-is at once the most important purpose of morality, and the most arduous effort of intellect. But it is a "consummation," not more "devoutly to be wished," than unlikely to be attained. Simply to devise the best means of protecting private interests and of promoting the public good, is in itself a stupendous task-but when, in addition to the intrinsic difficulties of the subject, we take into view the adventitious obstacles, which the ignorance, and prejudice, and jealousy of the many throw in the way of the lawgiver, and the subtility with which his plainest enactments are evaded, we shall begin to have some notion of the hopelessness of his toil. If even when God, condescended to give written stadutes to the Jews, and made his own selection of persons to administer his laws, the current of justice was still liable to be polluted, and its great ends were not unfrequently defeated, we may well despair of witnessing, in this world, a perfect dispensation. Yet though we cannot prevent wrong, we may in some measure, mitigate it-and though we cannot eradicate evil, we can, at least, abstain from augmenting it.

It is a matter of some doubt, whether the attempt to reduce all the transactions and commerce between men to fixed

more mischief than it has mended-whether the law has not been oftener used as a buckler to shield the wicked, than as a sword to avenge the injured. The fondness of mankind for system leads them into continual absurdities. The merits of every case rest upon the circumstances of that case. Without knowing these circumstances, the law undertakes to class prospectively, from certain indicia, which are, perhaps, purely accidental, cases which may be essentially different. 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 investigation of evidence, as to put every thing at risk, upon a jump-in-thedark of the law? Moral obligation, the law can neither create nor change. It does not pretend to do either. It only essays to apply certain abstract principles to all cases which may occur of a certain description, but which cases, though they may have some quality in common, may still be dissimilar in the most important particulars. Besides a thousand combinations may arise, which the law cannot foresee, and, of course, cannot embrace. But the code of equity not only furnishes the precise remedy for a present grievance, but affords specific redress for. every wrong which may be sustained. These speculations are not novel-though, possibly, they deserve more consideration than has been bestowed upon them.

But to come to the subject in hand. The social compact, however formed or ratified, is a beneficial contract:-and the good of the whole is the gist of the bond of union. Men consorted together for their mutual advantage. Whether fear or affection incited them, protection in their persons and possessions was an indispensible stipulation in their alliance. ciety undertook to afford this protection, and from the earliest records of history, has been continually occupied in endeavouring to fulfil its engagement.

So

It is the interest of society to conserve the rights of its constituents-it is the interest of individuals to obey the ordinances of society. No matter how profligate the community, it must recognize truth, and must plight itself to observe justice. A band of robbers can cement itself only by

the ties of virtue-a set of sharpers must, among themselves, prohibit cheating. We may, therefore, on all general questions, presume a free community to act honestly, according to the best of its understanding. But superiority of natural endowments in the rudest state of society, and the accumulation of wealth at a more advanced period, give to individuals an ascendency over their fellows. It is always the aim of those who have attained an elevation to retain it, and the influence which their present consideration confers, is employed to give stability to their power. Rule and distinction, in process of time, become hereditary; and inequality of condition gives birth to inequality of rights. A system of aggression thus commenced, is usually pursued, till one part of society is brought into entire subjection to another. If servitude be rendered too galling, the oppressed revolt, and some portion of liberty is redeemed. Having discovered their strength, by preserving a concert in their measures, the governed are able to check and counterbalance the usurpation of their governors; and, ultimately, to repulse their encroachments. In this strife, opposite forces nearly counteract each other, and the machine of society is not drawn widely out of the true line of its direction. But water may be cooled below the freezing point without congealing, and tyranny may degrade its victims below the dignity of men, without 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 nation is regarded 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 ignorant 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 every office is elective, and where every citizen possesses the elective franchise, that we can expect to find the good of the whole the paramount principle of legislation..

A republican government, however, like every other government, bears hardest upon the lower classes. In a commonwealth, the people are, indeed, the nominal sovereigns, but in most cases, they are incapable of exercising the actual Sovereignty. Unfittedor afraid to think for themselves, they act as they are acted upon; and unfortunately, those who commu

nicate the impulse to the public mind, are not always unbiassed by sinister interests. The multitude is ferocious only when provoked, and formidable only when opposed. Credulous and fond of being caressed, it is ever too ready to become the dupe of the designing; and if, soothed by their meretricious blandishments, it suffers itself to be lulled in the lap of security, it is certain to be shorn of its strength, and to be delivered bound, into the hands of the Philistines.

Happily a wakeful jealousy prevails in this country, among the majority of the people, in regard to any invasion of their imprescriptible rights, which will render abortive every open attempt to infringe them. The citizens of the United States will owe their exemption from the common fate of nations, to their superior moral and intellectual cultivation. They know and they appreciate their immunities, and they will neither barter nor abandon them. They are aware that the es sence of freedom consists, not in the geant of national independence, but in the actual enjoyment of civil liberty-and no arts, and no cajolery, will ever extort from them the surrender of that boon, without which patriotism is but a phantom, and loyalty ceases to be a virtue.

pa

It is a maxim of the English law, that the king can do no wrong. In republics, this royal prerogative may be predicated of the sovereign people. A nation of freemen 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 subjects, and if it have made a grant to some which prejudices others, it is its duty, as well as its right, to annul it. In any community every privilege or exemption is so much substracted from the common stock, and is not only directly, but indirectly oppres sive to those from whom the grace proceeds-it not only augments their proportion of ordinary burthens, but by creating obnoxious distinctions and contrariant interests, it creates new burthens to be born.

The moral obligations of communities and of individuals are the same. Those rights which individuals could not surrender to the state, the state is not empowered to compromit. No man has a right to dispose of his life or his liberty, for no equivalent can be offered for either. Criminals are amenable, in a state of nature, to the individual who suffers by their crimes, in a state of civilization to the society which is injured in the persons of

its members. Punishments are proportioned to offences; and are intended to reform by infliction, or to deter by example. Some offences are justly punished by imprisonment, some, possibly, are punishable with death. In the savage state the injured invidual avenges his own wrong,-in the social state the magistrates enforce the sanctions of the law against those who contravene it. Life or liberty may, therefore, become forfeited by the commission of crime,—and in this way only. But the essence of crime is its purposed and premeditated malice. Poverty, though an evil, can hardly be imagined to be either malicious or voluntary -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 poverty is unjust.

It may be said, however, that debts are voluntarily assumed, and grow out of benefits conferred-and that if a man undertakes to pay what he is unable to pay, he ought to suffer the consequences of his default. If he be made liable to imprisonment for failure in complying with his contracts, the fear of imprisonment will operate as a salutary stimulus to his exertions; and to give efficacy to the motive, 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 promises, and if their liberty be what they prize most, let them pledge that, as the surest guarranty of their honesty.

But no one can pledge that of which he has not the controul. Men are not the masters 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 unalienable gifts of the Deity, to be devoted to the legitimate ends of rational being. The only gage they can offer, for the return of values received, is, present possessions or prospects, skill in business, and integrity of character. To these alone should the creditor look, as the foundations of his confidence and the sources of his reimbursement. To the property of debtors recourse should be directly had, on the first occasion of delay or denial of payment of just dues,—and fairness of dealing should be compelled by the severest penalties for malversation. Whether the debtor's skill or talent should be held in requisition after the fact of his insolvency is ascertained, or, in other words, whether the future acquisitions of an insolvent, af

ter his failure and the complete surrender of his property, should be liable for his deficiencies, though not doubtful as a matter 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 his reputation and his losses, if exposed to be arrested in his career, the moment he acquires a sensible motion, must despair of reaching the goal of his generous ambition.

Temporary coercion of personal liberty, as the only effectual means of constraining the debtor to abide the judgment of the law, in the 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 wish 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, who omit or refuse to pay their just debts, till some satisfaction be made-either by payment, or by proof of inability to pay. They dis sent as to the proper residence of this power, and as to its mode of application. Cautus is in favour of leaving it to be exercised at the discretion of the creditor,Howard would have the propriety of commitment, or of the requisition of bail, to be the subject of judicial inquiry. Cautus considers the provision for discharging insolvents, taken in execution after final judgment, from confinement, after a detention of fourteen days, or of three months, on proof of their insolvency, as a seasonable, and an adequate relief,-Howard contends that no man should be confined on mesne process, till the justness of the plaintiff's claim be shown. Caulus regards the present system of legal proceedings, in the state of New-York, though somewhat defective, as nearly as lenient and fair as legal proceedings can be rendered,-Howard considers them most unequal, despotic, and pernicious. The sympathies of Cautus are absorbed in the disappointment of the creditor,—the commiseration of Howard is awakened only by the sufferings of the incarcerated debtor. The conviction left upon our mind, from the mature consideration of the arguments adduced, in support of the opposite positions of the two disputants, is, that under the prevailing practice of the laws of the state of New-York, the cases of

honest creditors and of honest debtors are nearly equally pitiable.

It is not our intention to go into the detail of the practice of the courts in this state, which would be as disgusting to our readers, as fatiguing to ourselves. The bare statement of the fact, that all the uncouth, arbitrary, and circumlocutory forms of the English law proceedings are, with us, pertinaciously pursued, will convey to the apprehension of every one who has any acquaintance with the subject, and we envy him who has not,—an appalling idea of the Odyssean wanderings of the suitors of justice. It is not less a subject of regret than of amazement, that amiable men are to be found, who are sane too, and sensible, on every other topic, who yet can admire and applaud a system so revolting to common sense, as the clumsy chicanery which we have adopted from the courts of WestminsterHall. It is mortifying and astonishing that persons of good feelings and good capacity, can so silence their consciences, and so pervert their understandings, as not merely to be content with, but to approve, the frivolous ambages, and contemptible fictions of our judicial processes.

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

It

A radical reform in our jurisprudence is loudly called for. It is vain to attempt to botch all the rents in the threadbare system of the common law, and idle to expect uniformity or coherence in a piece of patchwork. The honour of our country, and the interest of every class of citizens, require an entire new modelling 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 devise a new system, nor do we assume to be competent to it. To point out existing inconveniences is, however, in some 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 to prison for not producing satisfactory bail. There is, to be sure, a provision of law that no man shall be required to give bail in an exorbitant sum, and an action may be maintained against any person who commences a vexatious suit;-but in these cases a positive wrong must be suffered in the first place, to give a claim for an eventual and doubtful redress. should be the object of laws to prevent wrongs, rather than to punish them. At any rate, to punish the accused without an inquiry into their guilt, is a precipitate measure, and one for which no subsequent 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 be should prove the extent of the claim to be unfounded. Indeed, if a man be sued in the Supreme Court, and be ready to acknowledge his indebtedness, it is doubted whether he would be permitted to confess judgment; and as an appearance must be entered at the first term, nearly a year may elapse before he can make default;-then, before judgment can be entered up, a dilatory process ensues; and after this the creditor has ninety days in which to sue out execution. If, after all, the debtor be taken and committed in execution, a considerable time may transpire before he is allowed to prove his insolvency, and when this fact is proved, and when he has been discharged as an insolvent, his person is still liable to arrest on any other demand, even of the

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; and the artificial reasons, which are deduced from exploded institutions, are often directly repugnant to the plainest dictates of truth and 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 greater damage is often sustained in obtaining justice, than would have been suffered in forbearing to seek it. So complex has the practice of the courts become, and so inevitable the delay in obtaining legal redress, that the boasted concessions of magna carta, have been virtually frittered away. Nulli negabimus, nulli vendemus, aut differemus, justitiam vel rectum, is the language of this venerable charter; but, alas, it is daily contradicted in every tribunal in our country. No one who has paid the enormous fees on a protracted suit will doubt that justice is both delayed and sold and there is many a man, who has been obliged by the failure of his pecuniary means to abandon a good cause, that will be bold enough to assert that it is sometimes denied. Shakespeare, who had had some experience of the ills of life, makes "the law's delay, and insolence of office," the climax of all the provocatives to suicide. A law-suit is an

same creditors. His future property, too, is subject to distrainment on the very judgment under which he has been discharged. Thus far the law seems wholly levelled against debtors. But we shal! find that it is hardly less inimical to creditors. A poor debtor may, indeed, be made the victim of oppression, but a rich one cannot be compelled to do justice. Property, whether real or personal, cannot be attached on mesne process, and he who has 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 may be seized in satisfaction of the judgment, but by the delays of the law, a sufficient interval is afforded either to squander assets, or to convert them into money or choses in action, which are held not to be attachable. An opulent debtor may thus live at his ease, with a slight sacrifice of his latitude of excursion, and set all his creditors at defiance. Moreover, by a judicious application of his funds, he can easily produce a host of nominal creditors who will sign off, and entitle him to a complete release, not only from jail, but from every pecuniary claim that exists against him.

A radical reform in our jurisprudence is the only effectual remedy for the manifold evils with which the land is afflicted under colour of law. It is time that a free and thinking, and educated people, had loosed its understanding from the fetters which were forged, in the days of ignorance, for the thraldom of vassals. It is time that veteran error were stripped of its integuments, that absurdity were dragged from the subterfuge of legal principle, and that the cloak of practice were lifted from the shoulders of extortion and chicane. It is time, in short, that the swaddling clothes of the law were laid aside, and that truth were suffered to walk forth, if not in her naked dignity, at least in decent robes. The scant and jagged pattern of the common law has, indeed, been so often pieced and dearned by the diligent housewifery of the bench and the legislature, that the original fabric is not always to be detected, but it can never be rendered either convenient or comely for the present stature of society. What a disgrace to the state is the boast, which we have heard from some members of the bar-that to acquire an acquaintance (knowledge it does not deserve to be called,) with the practice of the courts, is, in New-York, the most arduous part of the study of the profession;-in other words, that it is less difficult fully to understand VOL. III.-No. A

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even the legal merits of a cause, than to learn how to bring it under the cognizance 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, annually occasion? and what a gain of time and talent would it be to the community, if any direct and ample avenue could be opened to those portals, which should ever be both unbarred and accessible?

It is worth while to calculate the extent of the pecuniary saving that would result from simplifying our code, and substituting rational method for the idle and arbitrary forms of judicial proceedings. The labour to be performed would be so much diminished, that half the number of judges and lawyers, that are 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 gentlemen of the profession who would be thrown out of employment, by such an abridgement of legal labour, might be usefully occupied in Courts "of the first instance," whose province it should be to grant writs, on due application, against the person or property of debtors, in certain cases, and to regulate the nature and extent of the security to be given by defendants to abide final judgment in the superior Courts,and in cases where a debtor should acknowledge the debt, to receive his confession and the surrender of his property for the benefit of all his creditors, and to appoint an assignee to take charge of his effects, and finally, on proper investigation, to grant him, in its discretion, a complete discharge. Thus would every man's person and property be in the custody of the law; and the discretionary power of creditors being taken away, the number of suits would be very much lessened, by which means, another gain of time to the community would accrue.

It may seem somewhat inconsistent with the eulogium which we have passed upon the spirit and intelligence of our countrymen, that such laws, and such a practice, as, we have described, should be tolerated for a moment among us. But it is only of late that the magnitude of the evil has been felt and comprehended,-and already is the attention of the country roused, and even now are its energies in action, to remove present ills, and to avert impending dangers. In more prosperous days, instances of insolvency were comparatively few, and misfortune was more easily retrieved. Banks, too, as yet were not,those laboratories of ruin had not com