A = ^^ = E 1 A = =^ □ I m i r 1 ■ ■ ,. 2 ■ = = X 1 = C1 1 o — c. — ~^^ Z 1 1 i ==■ *■ 1 8 1 ^^= ™ 1 7 = = 3: 1 3 i ■^-^~ 5 1 = ^=C 1 ^— ^ -< 1 " t&JL r the higher crimes, as treason, we have already said, the sov- ereignty claims both life and property, leaving nothing for the private citizen. In smaller offences it was for a long- time the rule that the civil right to sue for the injury the party lias received did not in general merge in the felon v or become destroyed, but was only suspended until he performed his duty to society by an endeavor to bring the offender to justice, and after the party on whom suspicion was lixed had been con- victed or acquitted without collusion, the prosecutor might support an action for the same cause as that on which the criminal prosecution was founded. 12 East 409, 17 Vesey 329. But this doctrine was modified in the case of Jones vs. Clay, 1 Bos. and Pul., 191, where it was held that the Court of Common Pleas will compel a party who has proceeded both by indict- ment and action for the same assault, to make his election upon which he is to rely, and though formerly held that, in general, if the party moved for a criminal information he must abandon any action, that doctrine seems to have been broken in upon by a recent case in the Court of King's Bench, Caddy vs. Barlow, 1 Man. and Byl., 275, where it was held in an action by A, for a malicious prosecution by C, of an indict- ment against A and B, and that a rule for a criminal informa- tion obtained by A, and made absolute, was no bar to the ■actio)' . In New York, any person injured by a felony for which the offender is committed to the State prison can recover damages in a suit against the trustees of the felon's estate. 2 K. S., 700. fly I he act of Congress, March 1T ( .»T, and by that of July. L79S. National and State priority is considered, and certain pre! "fences given in collecting debts, going to show that sov- ereign t;< > reserve certain rights to themselves when contrasted, .with rlie citizei It thus being seen that from treason down to trespass, all through the grades of crime, the State but executes the trust reposed in her by society, as a first duty, by punishing the h^-G9.] Document No. 16. 5 guilty and protecting the innocent, and life, with liberty and property in varied degrees being responsible for this guilt as a corrective, we come directly and fairly to the question before u>. and are prepared to test the constitutional law of exemption j such standard. In the very beginning the Convention not only kept the above principles and rules in mind, but with honorable lenity protects even parties ex contractu by three divisions. 1. The taxes must be paid. % Laborers and mechanics have a lien thereon. 3. The land must have been paid for. All these are -civil matters, and the Convention might have included other liabilities as a matter of grace to creditors, reaching even all debts previously contracted, but as the Homestead was alone the product of stern misfortune and designed as some protec- tion to the debtor, only certain exemptions were to be expected. These are allowed, the State in this its sovereign meeting in convention never tor a moment surrendering a jot of the more essential matters of protection, not simply to one man, but to itself and its citizenship at large, in case of crime. The pro- tection is intended for the poor and honest debtor, not the criminal. Such law would be absurd. It would be offering reward for crime, and what would all other provisions of the ■Constitution or acts of Assembly avail if vice be let run ram- pant and society go to pieces in the general storm of cor- ruption. Therefore, no question need be raised respecting this exemp- tion, as to the State or person wronged, It only relates to debt as such ; and by emphasising the language as it should be, the whole matter becomes plainer, even thereby: " the collection of any debt" the law taking care to say what debts should be exempted, showing that even some civil contracts ought to be regarded, and certainly all those weightier forms of liability which no single convention can have the authority to annul, but which would more correctly require the voice of society at large as previously s:iid. And could we suppose that the Convention thus undertook 6 Document No. 16. [Ses. 1S69-70.. to legislate away the right of self protection by modes hitherto- so certainly and widely recognized, it would be lodged in the persons of the wife and children as trustees of the exempt, sufferers from crime having redress as if no attempt at inva- sion of the sacred and solemn rights of the principal parties in all good government — the State and the wrongful sufferer. I am sure that the Convention never supposed its conduct should be charged with so great departure from all right reason. By examining the old insolvent law of the State, it, in its provisions carried out the like view as here stated, naming debts proper in contradistinction to dues for misconduct or guilt. II. As to the second question, section 5, of Article X, of the Constitution explains itself: After widowhood ceases, the exemption opens to law. Section 8 shows how the children are protected and how long. The reply to the first part of the inquiry settles the whole subject, and which it is hoped may. suffice for answer to the resolution of the House. L. P. OLDS, Attorney General.. ) ) S; SOI