laws. The commissioners thus appointed will be on their guard not to propose any thing which they may not have considered most thoroughly, since they are directly and personally answerable for the character of the measures recommended; and the responsibility is not an irksome one, since the report is so distinctly and formally made, that the public readily distinguish how far the act finally adopted is the same as that proposed, so that the commissioners are not answerable for what others may project, and they themselves disapprove; whereas in the hurry of ex tempore legislation upon the reports of committees, the public does not always distinguish between the original proposition and the amendments, and the propounders of a law accordingly often have to endure the credit of promoting the enactment of one which they by no means approve. The convenience, public utility, and indeed economy, of introducing important alterations of the laws, or additions to them, through the medium of commissioners, has recommended it to the adoption of the British Parliament, and the reports of this description made at various times, but more especially since a thorough revision and reform of the statutes was undertaken, present more able analyses of the various branches of the laws, and embody a greater mass of interesting facts, enlightened views, and instructive reasoning, than could possibly have been elicited in any other way. Considering the very great advantages of this mode of proceeding in legislation, it is a little remarkable that congress has not adopted it. This might help in disposing of the immense load of still accumulating unfinished business under which it has been staggering for some fifteen years past.

During the last winter session of the legislature of Massachusetts, the subject of the distribution of the property of insolvent debtors, was referred to the Hon. Charles Jackson, Hon. Samuel Hubbard, and John B. Davis, Esq., as commissioners, that they might digest and report a law establishing the rights and obligations of debtor and creditor; and they have recently made an elaborate and very able report, which was which was published by order of the legislature at its late session, with the view of bringing the subject up next winter.

Our readers ought to understand that there are now no insolvent laws whatever in force in Massachusetts, except in relation to the estates of persons deceased; in regard to such the laws

provide for a ratable distribution among their creditors. There is no reason why a like distribution should not be made among the creditors of a living insolvent debtor. The justice and public policy of such a provision is universally admitted. Among all the civilized communities of the world, excepting Massachusetts, New Hampshire, and Maine, such laws are, we believe, in force. If there is any other exception, it has entirely escaped our attention or recollection, and we are confident that it cannot be one of any great weight or authority, since the mass of the civilized world, not excepting countries in which civilization has made little progress, is provided with laws on the subject of insolvency. It would, at first, seem to argue a rude state of legislation, in this corner of the United States, that we have no similar laws. But it would not be just to make any general inference from this one deficiency, which arises from the circumstance that the subject has been proposed under very unfavorable auspices, as the question has not until recently been presented as one in which all the members of the community have a common interest; and the distorted proportions, and partial light in which it was formerly exhibited, gave rise to violent prejudices which could not at once be dissipated. As is usual in such cases, this very defect in our codes had become a subject of great admiration with many, insomuch that they were ready to attribute to it many of the advantages which result from the general state of society in spite of this imperfection, and not in consequence of it. But the frequent agitation of the subject has finally brought men to juster notions, and the equity, expediency, and indeed necessity, of some provision for cases of insolvency among a commercial, or, in other words, a civilized people, is generally acknowledged, and the only remaining discussion is, as to the kind of provision which ought to be made.

In this state of opinion, the subject has been referred to the commissioners above named, and there is reason to believe that their labors will result in the establishment of a law, as much required by the interests of the community, and an equitable regard to the rights of creditors, as by a humane and liberal consideration of the condition of debtors, who, by the insolvency of their debtors or by other misfortunes, find it impossible to meet their engagements.

The following is an outline of the proposed act.

Magistrate. The business of administering upon the estates of insolvent debtors, is given to the judge of probate, who now has a similar jurisdiction in the case of persons deceased. The necessity of creating a new office is thus avoided; nor is there any incongruity in assigning this branch of jurisdiction to this officer, as it is analogous to the others already vested in the same court. But to give facility to the operations of the law, the masters in chancery are authorized to act, in the absence of the judge of probate. s. 1.

Petitioner. A person insolvent, owing at least five hundred dollars, may, upon petition, effect a ratable division of his effects among his creditors. s. 1.

So in case any person arrested on mesne process in any civil action, for the sum of fifty dollars or upwards, shall not give bail, or, if a person shall be actually imprisoned for more than thirty days on mesne process or execution, for fifty dollars or upwards, in any civil action, and shall not give bonds to satisfy the judgment, any one of his creditors, in either case, whose demand is fifty dollars or upwards, may make application to the judge for a distribution of his property among his creditors; and proceedings shall thereupon be had for that purpose. s. 19, 20.

Imprisonment for Debt. In regard to creditors to a less amount, the proposed act provides, that no person shall be arrested on mesne process or execution, in any civil action, for any debt contracted after the act shall go into operation, the principal of which, without interest or costs, shall be less than fifty dollars.' s. 22.

The question at what value personal liberty shall be estimated, is one that has been much considered, and there is very considerable variety of decision in different codes. No question is made whether the creditor shall be satisfied out of the property of the debtor, whether his debt be large or small. The only question is, what amount of debt shall justify the creditor int depriving the debtor of his personal liberty, or, in other words, at what value his liberty shall be estimated. As the depriving of a criminal of his liberty, for a greater or less length of time, is the only punishment imposed for almost every species of crime short of murder and some few others of the most heinous description, and as imprisonment, even for a short time, is considered to be a severe punishment, in a country where personal

liberty is highly prized by every citizen, it ought not to be inflicted at the will of any creditor for any trifling debt, however justly due. There is nothing essentially belonging to the nature of indebtedness, which proprio vigore brings with it the liability to imprisonment. A creditor has not, as such, any property in the debtor's person. It is a striking inconsistency and absurdity, in a people who glory in liberty, and would be ready to vindicate it with their lives, yet to permit one citizen, at his own will and pleasure, to imprison another for sixty days at least, and, in particular circumstances, for a much longer time, for the sum of five dollars. The existence of any such right is at war with the very first principles of our constitutions, and can be accounted for, only from the well known difficulty of overcoming inveterate habits. As far as the detention of the person of the debtor is a necessary means of securing what is the creditor's right, namely, an appropriation of his property for the payment of his debts, it is justifiable, but all beyond this, is abuse and a relict of barbarism of the right claimed by savages of inflicting pain and injuries with impunity. The proposed bill accordingly gives the right of arrest for the purpose of securing the debtor's property for the benefit of his creditors. It provides, as do the laws of most of the states, that the debtor may be discharged on giving up his property, and the arrest of his person is proposed only as the means of getting possession of this.

Should any foreign government authorize the wanton arrest or impressment of our citizens, even for a short time, it would be considered a great indignity, and we should be ready to wage war to put a stop to such a proceeding; and yet it is permitted between citizens; and solvent persons, at ease in their parlors, or riding at their leisure for air, exercise, and fine prospects, are too apt not fully to appreciate the inconvenience of being shut up in a prison for some one, two, or six months, without being chargeable with any crime, or perhaps with any thing more than an inevitable misfortune, and without the satisfaction of thereby benefiting the community or any member of it. It would undoubtedly be considered very strange, if the law permitted a creditor, according as the fancy should take him, to crop his debtor's ears, or give him ten stripes, but what is the difference between permitting this, and permitting the imprison

ment of a man for sixty days for no conceivable motive in the world but to inflict useless punishment and disgrace? It is true that very few creditors are disposed wantonly and unnecessarily to put their debtors to inconvenience, but the question is whether the law shall give the power to those who are so disposed.

Taking possession of the debtor's property. On a petition being made by the debtor or a creditor, and the fact of insolvency within the conditions of the act being established, an officer, called the messenger, is to be authorized to take possession of all the debtor's property, excepting what is exempted by law from attachment. s. 1, 19.

Meeting of creditors - Choice of assignees. A meeting of the creditors is then to be called, at which the judge presides, and the creditors having exhibited proofs of their debts, proceed to choose assignees, according to the vote of a majority in value. s. 2.

The commissioners, in their exposition of motives and reasons, say, 'The choice is given to the greater part in value of the creditors, on the principle that questions affecting property only, ought to be decided with reference to the amount of property, and not to the number of persons who hold it.'

The debts, to be proved, and on which dividends are to be made, are all those due and payable from such debtor at the time of the first publication of the notice' of issuing the warrant to take possession of the debtor's property. Interest is to be discounted on those not on interest and payable at a future day. s. 3.

One difficulty in constructing a law of this description, is the provision respecting contingent liabilities, as policies of insurance underwritten by the debtor, bottomry and respondentia bonds on which he is obligor; in regard to which the proposed act provides that the claims arising upon them may be allowed in case the contingency on which a claim arises, happens before the making of the first dividend; and a similar provision is made for the case of the debtor's being liable to any surety or subsequent endorser of any bill of exchange or promissory note, who may, as such, have paid the money on account of which his claim arises, before the first dividend. s. 3.

All claims on the debtor may be presented and proved, for goods 'wrongfully obtained, taken, or withheld by him, whereby his estate may have been benefited, to the extent to which his