TO 
 
 MODERN LEGISLATORS, 
 
 AND 
 
 REFLECTIONS ON CHOOSING MEMBERS 
 
 OF THE 
 
 APPROACHING CONVENTION. 
 
 "Anguish of mind has driven thousands to suicide: anguish of body 
 none : this proves that the health of the mind is of far greater consequence 
 than the health of the body, although both are deserving of much more 
 attention than either receive." LACON. 
 
 BY A MEMBER OF THE NEW YORK BAR. 
 
 J. A. FUAKTAS, PRTNTF.U. 
 1846.
 
 UCSB LIBRARY 
 
 CHAPTER I. 
 
 GENERAL OBSERVATIONS. 
 
 In the same degree as the mind is supeiior to the body, is it important 
 that any improvement in things which affect it, should be discussed and 
 adopted, yet, although a man would be immortalized who should discover 
 a new thing affecting the body or its comforts, or convenience?, he will 
 hardly be thanked if he points out an improvement ever so beneficial to 
 the mind the world appreciates that whieh is tangible, and to a great 
 extent that only, and yet our bodies are mainly preserved or destroyed 
 by that which affects the mind. 
 
 The world takes no note of the thousands who die of diseases of the 
 mind but if ten cases occur of yellow fever or cholera, all sympathize, all 
 trembL ; a little reflection nevertheless, will prove that during the last 
 ten years, more have died of the " panic" " the suspension of specie 
 payments," and the " great fires," than of the yellow fever, the cholera, 
 or the small pox. All were struggling to discover antidotes for the 
 cholera, but scarce any one has given a thought of the proper remedy for 
 ruined fortune, crushed hopes, or broken hearts. 
 
 This apathy to that which so deeply concerns the prosperity and hap- 
 piness, nay, to some extent the very existence of every one of us, is one 
 of those unaccountable inconsistencies which has ever existed with the 
 mass of mankind, indeed it seems as if man was ever ready, and ever 
 willing to perform any other labor than the labor of thinking, and hu- 
 man nature seems prone to believe that to better his condition his hands 
 are more useful than his head yet those hands are blind guides without 
 some head to think for them. 
 
 As civilization has marched onward- -the most obvious improvement 
 has been made in almost every branch of science, yet except by abolish-
 
 ing imprisonment for debt, and somewhat limiting capital punishment, 
 it is difficult to discover a corresponding melioration or improvement in 
 the application of the laws to the real state and condition of man ; the 
 law as it was, and as itis to a great extent, seems to be formed and ad- 
 ministered toward men as if they had nothing but bodies to be affected 
 by it and as if its effects could reach no further than bones and mus- 
 cles, but experience has proved, alas, that the barb penetrates deeper, 
 and reaches both nerves and brain. 
 
 If a man is attacked with an alarming illness, his safety and his re- 
 covery becomes the duty of those nearest to him and there is instantly 
 a laudable emulation awakened amongst men to staunch his sudden 
 wound, or to sooth and supply his helplessness- -benevolence seems to 
 flow towards him as a matter of course, as well from the good as the 
 bad ; the physician, pay or no pay, yields his experience and his drugs, 
 the individual into whose hands he falls gives half the loaf of his chil- 
 dren to supply his necessities, and under the penalty of the curse of the 
 whole community dare neither do less. 
 
 But shift the scene ; let the misfortune or the vices of others, or his 
 own want of judgment or more likely still the mis-government of the 
 country, reduce an equally meritorious man to insolvency and ruin 
 let him contemplate the tender partner of his bosom bereft of the com- 
 forts and appliances to which she was born and with which she has 
 been happy : let him feel his inability to continue the education, perhaps 
 the very food of a beloved set of children let him see bright hopes 
 dead ample provision for old age gone forever the world's face avert- 
 ed and his season of manly effort passing, or past if by this time his 
 mind is not sick if the incipient stages of a consumption, or a broken 
 heart are not on him it must be because he has no mind to be affected, 
 and he is therefore a brute ; (of such I am not treating; is the man thus 
 affected less an object of compassion and of tender regard than he to 
 whom the generous Physician so promptly afforded his aid ? Reader 
 let me appeal to your experience of others, if not to what you have 
 felt yourself, as to which of the two patients the most commiseration is 
 due and yet pause and blush for the dissimilar treatment which they 
 receive ; for the disease of the body the treatment is kindness, benevo- 
 lence, pity for that of the mind contempt, insult, extortion and yet 
 the one disease kills even more surely than the other let me ask you how
 
 many have you personally known after some sad reverse of fortune, to 
 hasten to an insolvent's grave, by the way of the inward gnawings of 
 concentrated and concealed griefs, and hopeless remedy : the more com- 
 mon auxiliary, the bottle the more gradual approaches of consumption 
 or the more prompt application of the pistol, or the briny wave if this 
 be so, benevolence, philanthropy nay, more, common humanity be- 
 yond this, (justice) to such a man. and above all to the innocents depend- 
 ant on him, calls on us all for at least an attempt to apply a remedy. 
 How sadly is the law as it exists, adapted to this purpose the moment 
 a man is thus circumstanced, the signal is given to the minister of the 
 Laws then instead of the consoling kindness of a friend, he receives 
 the unwelcome visit of the tipstaff'. The practising attorney takes the 
 place of the benevolent physician the remnant of his wealth, before 
 barely sufficient to its last cent, to meet the just demands of his creditors, 
 is at once exposed to the additional exactions of taxed costs sheriff's 
 poundages, and the various other tender mercies of the law his name is 
 bawled forth in your public tribunals his inahility (promptly to pay) 
 is spread over the parchments of your Courts the last remnant of credit 
 and of hope deserts him, and he feels himself to be, as he is, a "doomed 
 man" what a paradox is this state of things ? Our country is said to 
 be our parent to her, and her voice as heard in the laws, we look for 
 admonition, direction and protection should we not find emanating 
 from that mother too, somewhat of endurance, somewhat of tenderness, 
 something of relief ? Alas, no such soothing qualities are there ; she 
 contemplates her child already staggering under his load of debts and 
 embarrassments ; she sees that one feather more will break his back, and 
 with a heathen kindness, she promptly gives him a multitude through her 
 ministering angels of the law. What would be said to that Levite, who 
 not content with passing on the other side, should have thrown dust in- 
 to the wounds of the stranger, and thus prevented the Samaritan from 
 binding them up ? 
 
 It is not always sufficient to point out an evil ; the work is then at 
 best but half done and although in so vital and deep rooted a disease 
 as the one in question, a perfect remedy cannot be expected ; yet a few 
 hints may happily set our readers to thinking and improving on the plan 
 now presented. There are many amongst us who are well paid in gold 
 and in honors for doing our thinking for us ; to them then our Chan- 
 cellors, Judges, Statesmen, Legislators, the Members of the next Con-
 
 vention I appeal and respectfully submit the following ideas and sug- 
 gestions : First, a radical change in the principles of our Insolvent Laws : 
 and, Second, a modification and improvement in the application of the 
 law for the collection of debts. 
 
 CHAPTER II. 
 
 ON A PROPOSED CHANGE IN THE PRINCIPLES OF THE INSOLVENT LAWS. 
 
 The changes I propose, embrace, mainly, a more extensive use of the 
 trial by Jury ; the adaptation of some of the principles of the bankrupt 
 laws of Great Britain, and above all, a principle of protection instead of 
 persecution. First, I premise that unless an honest man's faculties have 
 become palpably impaired either by his pecuniary disasters or by bad 
 habits, he is the most fit person to continue in the management of his 
 own affairs, provided this can be done with a proper regard to the safety 
 of his creditors, himself and his family. Hence, upon its being ascer- 
 tained that a man cannot meet his engagements as they become due, he 
 should be protected in the use and management of his properly, and 
 against suit, annoyance, or expense, by presenting a true statement of his 
 affairs to a proper officer, who, for the benefit of his creditors, should 
 take from him proper security for the application of the property under 
 his direction, with the power of devoting to him a certain allowance so 
 long as his services were beneficial or requisite, or if deemed more fit, 
 that the property be placed with certain experienced trustees, to be so 
 applied and used as they, under the direction of the officer, might de- 
 cide ; or the like exemption might be extended in point of time only : or 
 it might be combined with the condition of paying so much per cent, 
 periodically, until the debt was dscharged, or the property might be 
 taken at once, and the debtor set free ; and if the debtor on the one 
 hand, or the creditor on the other, were dissatisfied with the equitable di- 
 rections of the officer or trustees, then a Jury should be interposed' 
 whose verdict should furnish the rule. 
 
 The privilege of instituting this process should belong also to the 
 creditor upon any act of bankruptcy being committed, and perhaps in 
 other cases which will suggest themselves.
 
 The effect of these provisions would be, that an honest man could go 
 on with his business, collect his outstanding dues to the full payment of 
 his creditors, and to the saving, in most cases, of a surplus for himself 
 or his family. The benefits to him would be such that the concealment 
 of any part of his property would be against his interest, as it would 
 decrease his ability to procure the required security, and detract from the 
 officer's confidence in his fitness to continue in the management of his 
 affairs : if his family expenses had been extravagant or unadapted to his 
 estate, the restricted allowance would at once reduce it to a prudent and 
 healthy standard. By the interposition of a Jury, that kind of business 
 knowledge which, in every vocation, is more or less a mystery, would 
 be brought to the aid of the Judge and fitly applied to the case in hand ; 
 arguments and reasoning to the Jury upon the details of each case could 
 be gone into, and the propriety of this or that course fairly investigated 
 and determined on. It will be seen in all this, that an honest man, under 
 the worst of circumstances, would have a chance to enjoy a little peace 
 of mind, to pay his debts, and retrieve his fallen estate ; thus the credi- 
 tor would get his debt, and the communily have a valuable and a tried 
 man preserved to them and his family ; thus protecting the community 
 from the pauperism of the children of the debtor, if not sometimes of the 
 creditor, too : in other words, in proportion as a man was honest and 
 unfortunate, should the application to him of the law be tender, liberal 
 and merciful. It should be made his interest to be frugal, industrious 
 and honest ; but as the law stands, it is, I fear, his interest to be the re- 
 verse. 
 
 It is a singular fact, that, in some of the features of the foregoing, there 
 is a striking analogy to the doctrine of extents, which has fallen into dis- 
 use or been exploded from the law. This was an ancient writ by which 
 the property of a debtor was taken from him, and its income applied to 
 his debts until they were paid, when it was given back to him. At this 
 day, under the Spanish laws, there is a similar regulation. So far, at 
 least, the laws of this enlightened age are more barbarous than those of 
 our crude forefathers, or of other nations on whom we look as vastly 
 inferior to us in intelligence.
 
 CHAPTER III. 
 
 ON THE MODIFICATION AND IMPROVEMENT IN THE APPLICATION OF THE 
 LAW, FOR THE COLLECTION OF DEBTS. 
 
 It has often occurred after a severely contested trial betwixt two fair 
 men, that one or the other has remarked to me, that if he had known 
 such and such a fact had existed, on the other side, or if he had suppo- 
 sed he was hound to do this, or that, he never would have brought or 
 defended the suit, in other words, I have seen that nine-tenths of the 
 contests between decent men grow out of an entire misapprehension, or 
 partial ignorance of certain facts on the other side ; to a good man it 
 must certainly be painful that such a controversy should exist, to the 
 serious injury of both ; indeed there is scarce a litigated case where the 
 suitors on both sides could not at the threshold, and generally where 
 they would not have been willing to give up and soften down some of 
 their strict rights on both sides ; for prompt pay on one side, and to es- 
 cape from anxiety and toil on the other. The asperity which half the 
 time leads one man to sue another should have some safety valve at 
 which to escape, instead of being tediously, uselessly and sometimes in- 
 juriously pent up, and then worked off by the action of the machinery 
 of the law and not unfrequently by the collapsing of a flue. Three 
 quarters or more of the suits now tried would be settled in an hour if 
 each side could learn in a manner somewhat to be relied on, the law and 
 the facts applicable to their own and the other side. To attain this end 
 let a new and preliminary Tribunal be established before which the 
 parties about to litigate, should be heard on their oaths, with discretion 
 in the judge to call in witnesses on important points where the parties dif- 
 fered in point of fact. Compel every man to cite his neighbor here, be- 
 fore he be allowed to sue elsewhere, and let the adjudication be only ad- 
 visary, and not binding. But at the same time let several penalties be 
 visited on the man who after refusing to listen to this advice, plunges his 
 neighbor into law, and is found to be in the wrong. It would be found 
 that whenever two honest men disagreed, half an hour before this tribu- 
 nal would settle the case, send both away satisfied, and what is also 
 important, generally good friends. Such a court would save hundreds 
 of thousands of dollars per year to this community ; it would dispense
 
 9 
 
 with the services and salaries of three-fourths of our present judges, spare 
 the present cruel sacrifice of the time of jurors and witnesses in attend- 
 ing court, and by preventing litigation save the morals of the communi- 
 ties from thousands of perjuries which now infect it. Many a man is 
 willing to gain a cause through the misrepresentations of weak or wilful 
 witness, who if put to his own oath, would from pride alone disclose 
 the truth. 
 
 Suppose a man like Ex- Judge Edwards to be the Judge of such a 
 Court, where would two decent men be found who would set up either 
 of their wills or judgments against his advisary decision, with all the 
 facts before him, and the aid of his learning, integrity, and knowledge of 
 human nature: if either did, and the Judge in the end should be 
 found to be right, the obstinate party would be sure to be sent to a crimi- 
 nal judge, and from him to receive a good natured admonition " to get 
 out stone for six months." 
 
 The justice of this Court should also be administered gratis. Indeed 
 the principle of the exaction of taxable costs and statute fees is of more 
 than questionable propriety throughout. It has struck me often, as a 
 disgusting spectacle, to see a Judge receive a dollar for yielding a matter 
 of common justice to a suitor ; and I have known a Judge decide a mo- 
 tion at Chambers one way, but because the party in whose favor it was 
 made would not pay the dollar for his order, he reversed his decision and 
 received the dollar from the other side ; putting the change on the ground 
 of the change ; a state of things in itself demoralizing and pernicious. 
 The Constitution has said, "justice shall neither be bought nor sold," and 
 although the provision had not probably in view as large a scope as the 
 words literally cover, yet here, as in other parts of that sacred instru- 
 ment, the words seem to have a strange oracular applicability ; litiga- 
 tion would vastly become lessened if there were no costs to be paid by 
 the parties to Judges and practising Attorneys. Nor to the worthy, in- 
 telligent and talented, (and hence the only part of the profession which 
 is not a nuisance,) would this state of things be an injury. Their expe- 
 rience and observation must have taught them, if they have ever reflected 
 on it, that it is for the good which they did their clients or others that 
 they have been best paid, and that the lawyers who have become rich , 
 have, almost without exception, become so from the gratitude and libe- 
 rality of their clientage, rather than from the trash wrung from the hard 
 hands of their unfortunate opponents.
 
 UCSB LIBRARY 
 
 10 
 
 Our Jaws and their application need remodelling to suit the advancing 
 intelligence of the age, but let the innovators beware how they entrust 
 the blacksmith to mend a watch, or a politician to establish a code of 
 morality. 
 
 COUNCILLARIUS.
 
 A 000 669 244 6