I HAVE read your observations on the laws of Britain, respecting imprisonment for debt; and your general principle I approve of. But there are several particulars in your new plan with which I cannot agree.

In your note upon Doctor Smith, it is very juftly observed, that the fearchers of truth only are not of fended at accidental difference of opinion in those who have the fame object in view. On this account you are now troubled.

To detail these observations is not here intended; it is merely to make a few remarks upon what you fay about the costs of the debtor's trial. In article 4th are these words: "If a creditor fhall make oath before

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a judge that he has reason to believe, and is himself "convinced that either the surrendry has not been quite "complete and fair, or that the debtor has been guilty "of culpable conduct," he shall undergo a trial: And, in article 7th "That if upon this trial the debtor "fhall be acquitted, the creditor fhall be liable for the cofts, without recourfe."

Suppofe that this regulation fhould take place, what would most likely enfue? You are not to be told, that where there is one debtor from misfortune, there are many from bad conduct and villainy. Now, confider who in general will be the fubjects of these trials: It will not furely be those who have suffered through miffortune, but those of the latter clafs. The former may indeed fometimes meet with them, though very feldom; becaufe, having nothing to fear, they will at

once make a candid difclofure, and fo fave the neceffity of a trial. But the latter, knowing themselves fo be villains, will prepare themselves for a trial, by concerting themfelves in fuch a manner that no difcovery can be effected. They will be glad of an opportunity of intimidating their other creditors from fimilar attempts to detect them, by the expence thofe incur who may have had the courage to attempt it; efpecially as they know, that even though they are detected, the punishment falls, not upon them, but upon their creditors, the expence being, according to your plan, to be deducted from the common fund, before any divifion takes place. This affertion is not at all weakened by the creditor's claim for the original debt continuing against the debtor till difcharged; because the idea of fraud pre-fuppofes a determination in him never to pay more than his original furrendry, and, of courfe, it is of no moment to him how that is appropriated.

There is indeed an evident propriety in putting a check npon wanton litigation of creditors; because, otherwife they might confume the debtor's whole effects in fruitlefs, nay malicious law-fuits. But it is not on this account that you would subject them in costs; it is from compaffion to the debtors and you have made no diftinction betwixt unfortunate and intended fraudulent debtors, to each of whom I have already fhewn the iflue of the trial may be equally favourable. Neither have you diftinguished betwixt creditors, who only wish to come at the truth, and thofe who act upon different principles. You have not confidered that a creditor is entitled to put what queftions he pleases to his debtor; and that if thefe queftions be fair and pertinent, in whatever way the trial ends, the debtor ought to be liable for cofts, on account of his contumacy in refufing to anfwer, and of courfe making a trial neceflary. As to whether thefe cofts fhould be deducted, before a dividend, or be an after claim against the debtor, I do not now intend to confider.

To conclude-Ruinous confequences would in all probability refult from this part of your plan: For, fuppofing the debtor to be proved a villain, no punishment, is on accountof his obftinacy in forcing a trial, to be inflicted on him; whereas the very trial itfelf, instead of being, which you furely would with it, a terror ta villainous or obftinate bankrupts, would alone be to be dreaded by the honeft creditor, who, from the punishment to be inflicted upon him, if he fails in inftructing guilt, would very frequently rather fubmit to a lofs, by which his circumstances may perhaps be only wounded, than ventue' upon that by which they may be altogether destroyed.

Thefe are my reafons for difapproving of that part of articles 4th and 7th of your obfervations. I have been free, but I hope not unpolite; and I therefore hope that you will excufe the freedom.

Remarks on the above.

CENSOR.

So far is the writer of the obfervations on imprison ment for debt from being offended with the above remarks, that he thinks himself much obliged to Cenfor for ftating them. He has no hypothefis to fupport, nor any other wish than to contribute all he can to correct an evil which he thinks loudly calls for a remedy; and he will view thofe who point out improprieties wherever they exift, as his true friends.

Frivolous and vexatious profecutions are perhaps the greatest grievances to which a free people can be fubjected. In this country, at leaft, they tend more to check the invigourating spirit of freedom among the poor, than any other caufe whatever they ought therefore to be guarded againft, unless in cafes where it can be very clearly proved they cannot be dispensed

with.

VOL. II.

I

The regulations alluded to are all intended to render fuch profecutions unneceffary; and if they fhall be rendered unneceffary, the adopting them ought to be attended with difficulties. It was this principle that fuggefted the regulations.

Had a man, after having suffered bankruptcy, been allowed to enter into life, and to brave his creditors with as much ease as at prefent, the objection ftated by Cenfor would have been admitted as of great weight. But the cafe would be greatly altered in this refpect, should the proposed regulations be adopted. What temptations could a man have to lay plans for becoming a fraudulent bankrupt, when he knew that never afterwards could he enjoy a fingle meal, or have the property of any article whatever that might not be taken from him at the pleasure of any of his creditors, or those to whom they might confign their debts. But it is obvious, that were thefe regulations adopted, every creditor would have it in his power to feize the whole goods of the debtor wherever they can be found, and apply them to his own use. Even his clothes are exprefsly included: for although he cannot be ftripped naked, yet all fuperfluities might be taken away as often as they could be found upon him. The money in his pocket, watches, and other trinkets, muft go; and his clothes might be exchanged for those of a coarser and lefs valuable fort, whenever it was thought proper. Would any man who knew that nothing could fecure him against meeting with thefe indignities, except a general conviction of his integrity, lay plans for becoming a fraudulent bankrupt? I fhould fcarcely think he would. This is the check provided against the diforder, and not the profecutions that hang over his head. The fear of fuch profecutions at prefent, we know, are

fmall.

In this point of view, therefore, it seems that there can be little reafon for thinking there would be often occafions for profecutions of any fort; and the point

to be aimed at is, to guard the innocent from distress wantonly inflicted.

Cenfor perhaps has paid lefs attention to the effects of a jury, in trials of this fort, than the writer of this article. It is believed that where a debtor has an intention to defraud his creditors, though he may be able to order matters fo as to keep legal proof out of fight, yet it would fcarcely be in his power fo to conduct himself as not to give reafon to fufpect him of foul intentions, and that fufpicion would be a very fufficient reason for the jury giving a special verdict; in which cafe he could not fay how long he might be detained, or what chance there would thus be given for difco. vering his villainy, not by one trial, but by many trials, to which he might thus be subjected t. Perhaps no device was ever yet adopted by which a villain would have a lefs chance of efcaping detection, than by this risk of many fucceffive trials, in which the evidence that came out upon one trial, would often ferve as a clue for conducting thofe that were to follow. Thus would a fraudulent bankrupt be environed with difficulties on every fide, that could fcarcely be over. come, while the honest and unfortunate only could be protected. With thefe fears hanging over him, who would not guard against this evil? But if fuch care is taken that fraudulent bankrupts fhould not escape, is it not equally neceffary to guard the unfortunate from arbitrary oppreffion?

This provifion gives a debtor a power he does not poffefs at prefent; and therefore fome check ought to be provided against the wanton exertion of this power. The circumstance laid hold of by Cenfor is the very check that was thought neceffary to provide in this cafe. In regard to fwindling, which approaches the nearest to fraudulent bankruptcies, no check is provided by the law at prefent. If the accufer fails in his proof, he must pay all his expences; and what is worse, the prifoner must be finally discharged, fo as never afterwards to be liable to a profecution for that crime. However ftrong the prefumptions were against him, no room is left for a future inve igation; and if he once gets free, he has nothing to fear, although the profecutor fhould afterwards obtain the clearest proof of his guilt.