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No. 119.

IN ASSEMBLY,

January 29, 1836.

REPORT

Of the select committee, on the petitions for and concerning the non-imprisonment act.

Mr. Eno, from the select committee to whom was referred the petitions of inhabitants of the counties of Erie, Delaware, Chenango, Otsego, Madison, Dutchess, Onondaga; and also several petitions taken from the files of this House, presented to the last Legislature; and also the bill introduced on notice; all relating to the act entitled "An act to abolish imprisonment for debt and to punish fraudulent debtors," passed April 26th, 1831,

REPORTED:

That the committee have had the subject under consideration, and have examined the bill referred to them.

A

part of your petitioners ask for a total and entire repeal of the act. The most of the petitioners ask for a modification of the act, and such a one, while it preserves its statutary and fundamental principles, will afford an effectual remedy for the collection of

debts.

Deeply impressed with the truth, that many and great inconveniencees are felt by the whole community in consequence of the operations of the present law; yet we are fully convinced, that the evils can be remedied without again having recourse to the barbarous one of imprisonment. It found its way into our statutes from a foreign soil; it dates its origin beyond the period [Assem. No. 119.]

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of our independence, and is not congenial with the spirit of our free institutions. By the Declaration of Independence we proclaimed ourselve a free people; framed our constitution on those principles; denounced the doctrines by which England was governed; and at the same time, adopted this, one of the relics of ancient barbarism.

Imprisonment is only justifiable when it is intended as a punishment for an offence committed, or to prevent the commission of an offence. This, as a maxim, is undoubtedly correct. Is it right, is it true, to call misfortunes an offence, and to punish as a crime, that which no human foresight could avoid? We believe it not only unnecessary, but not demanded or called for by the people themselves.

The object of the act in question undoubtedly was, to give to the honest creditor and preserve inviolate all that is left to him, his personal liberty: To protect him against the tyranny of his creditor; to distinguish between mere indebtedness and fraudulent conduct on the part of the debtor: And while the innocent was protected from unnecessary and unmerited severity, not to screen the guilty, or unable him to escape from the just rigors of the law. The creditor was meant to be left without any other resort than as against the property of the debtor; and at the same time it was the object of the act to prevent and punish any fraudulent intent on the part of the debtor to place his property beyond the reach of his creditor, and every act of his, with respect to his property, .which might impair or weaken the credit or security from that

source.

The humane and liberal provisions of the first part of the title have been fully realized and accomplished; while at the same time no provision is made which effectually secures to the creditor the benefits intended to result from the latter part of the title. Were all honest, there would be no need of laws to coerce the payment of any demand; but laws must be provided for a people, not as they ought to be, but such as they are. Until men become more virtuous and more honest than they have yet been found to be, some coercive measures will be found necessary, to enable creditors to obtain their demands, and to operate as a restraint upon the dishonest and fraudulent part of the community. Intelligent and business men have frequently expressed an opinion, that where

the evasion of discharging honest demands is easily effected, and the debtor can, with such facility exonerate himself from liability, that inducements are held out to obtain credit by false pretexts, the moral obligation of contracts is disregarded. The perpetration of one fraud leads to the commission of another, and he is thus led on step by step to frauds of a more aggravated character. Experience teaches us, that when contracts are easily evaded; fraud committed without the fear of punishment; the just and moral obligation to fulfil contracts is apt to be disregarded; and in fact legal encouragements are held out to commit fraud. The inducement to commit frauds can be lessened, by the difficulties of escaping punishment in the perpetration of them, or of enjoying the fruits of the crime undisturbed.

The committee in proposing a bill upon this subject, have availed themselves of and taken as a model, the act which passed this House the last session. The subject was then very fully and ably considered. To the main principles then introduced, we do not consider that we can propose any thing that would render them more judicious or advantageous to the community: We have therefore, taken up the same and proposed some few amendments thereto; and we do believe, should the same be adopted, it would afford a much better and more efficacious means of enforcing the payment of demands, than can now be done by the existing law, or that could be done by the law as it stood before the act of 1831 was passed. That it will secure to the honest debtor the full and complete enjoyment of his personal liberty; that the inducement which we now think is held out, to commit fraud, will be taken away, by the difficulty of escaping punishment, or of enjoying the fruits of the crime undisturbed.

The greatest defect of the act, and the most difficulties sustained by creditors, are by those whose demands are under one hundred dollars. Where the amount is above that sum, the party has a remedy in chancery. This, however, does not prevent the defendant from disposing of his property before the plaintiff has obtained a judgment. For the collection of debts of a small amount, where the defendant has only a small property, it is seldom available, on account of the unavoidable expense.

Where the demand is under fifty dollars, and the property of the defendant consists of notes, or other choses in action, there is no provision by which he can be compelled to pay his creditor out of