29

Dec. 31, 1827.]

Public Lands.-Cancelling a certain Bond.

be apportioned to their quality; but this was now im-] possible, since it was not adopted at the commencement. It ought to have been infused into the system at the be ginning: the idea of graduating the price of lands was a pleasing and specious one. self that he opposed; it was the inevitable effect which It was not the project it he looked to. The operation of the measure, which could only be looked upon as a scale of depreciation, would be to delay all sales until the expiration of the five years designated in the bill; and then the same speculations would occur as had taken place in Alabama. The surveys that had as yet been made were merely superficial, and it would be impossible to ascertain the quality of the interior lots. Great misrepresentations have been made to the Western people, in newspapers and pamphlets, asserting that our land system "cost the Government upwards of 33 1-3 per cent. on the amount collected." The official reports from the Treasury, show that the whole expense of selling the nineteen millions and upwards of lands, heretofore sold, including the expense of surveying, was only 3 and 6-10ths per cent. on the amount of the sales: and this was cheaper than our revenue from commerce, which had been estimated at about 5 per cent.

One word more and he should close the few remarks which he designed now to offer. His colleague had noticed the land system in Tennessee. There was formerly an arrangement between the United States an Tennessee, in which it was stipulated that Tennessee, should not undersell the General Government. arrangement went on for several years, until the best This lands in that State were disposed of, as it was more populous than most of the other new States. All the States' lands being sold but the coves in the mountains, and other waste strips, the restriction was removed. He was not long since in Tennessee, and knew that persons were entering such pieces of lands at one cent per acre, which the State was willing to dispose of, because they became, after sale, taxable, like other lands. The plan only operated after the other lands were sold out; and there was nothing plainer, than that, if Tennessee could sell her lands at twenty-five cents, it would operate to increase her population. He should not oppose the introduction of the bill, because it was not customary; but he should, at a proper time, express himself more fully on its merits.

30

[SENATE.

States to cause the reserved Salt Springs, in the State of
The bill to authorize the President of the United
Missouri, to be exposed to sale, was read a second time.
that much explanation was not necessary.
that so much had formerly been said on this subject,
Mr. BARTON, in reference to this bill, remarked,
number of Springs reserved in the State of Missouri,
were 34.
and were in operation. The remainder were consider-
The whole
ed of so small value, as to render it unnecessary to make
Of these, 12 had been taken by the State,
any distinction between them and other territory. There
weak, a section of land, which was now lying waste.
was reserved around each of these Springs, however
The neighboring inhabitants plundered these sections
of their timber; and, if they were not shortly disposed
of, their value would be much injured. It was a fact
that a sufficient number of Springs had been reserved
by the State to prevent a monopoly of the manufacture;
and there was, therefore, no objection to disposing of
these inferior Springs.

The bill was then ordered to be engrossed.
The Senate adjourned to Thursday.

to debate. The Senate adjourned over to Monday.
THURSDAY, DECEMBER 27, 1827.
There was no business transacted this day to give rise

MONDAY, DECEMBER 31, 1827.
The bill to authorize the cancelling of a certain bond
therein mentioned, was read a second time.

tion, which he said would fully explain the object of the
Mr. KING asked for an explanation of the bill.
bill. The petition having been read, Mr. V. E. made a
Mr. VAN BUREN called for the reading of the peti-
few explanatory remarks.

to the bill: Whereupon,
Mr. CHANDLER proposed some questions in relation

from which it appeared that the negroes (39 in number) referred to in the bill, were part of a cargo of negroes Mr. BERRIEN made some additional explanations, found on board a Spanish vessel which was captured by a revenue cutter of the United States, sent into Savannah and libelled for an alleged violation of the slave acts of the United States. to the vessel and cargo, as the property of Spanish subThe Spanish Consul set up a claim The bill was then ordered to a second reading. jects. The Portuguese Consul set up a claim in behalf Agreeably to notice, Mr. NOBLE asked and obtained vateer, sailing under a South American flag, advanced of certain subjects of Portugal; and the Captain of a prileave to bring in a bill for the continuation of the Cumber- another claim. Upon investigation, it was found that the land Road; which he prefaced by remarking, that, un-negroes had been plundered from several Spanish and der the administration of Mr. Jefferson, the first bill for the construction of the Cumberland Road was passed, when Congress clearly held out to the people of the west that it should be continued. now offered called on Congress to redeem the pledge The bill which he then made, and take the preliminary steps towards a continuation of this great public work.

The bill was read and ordered to a second reading.
The resolution submitted on Friday, by Mr. HEN-
DRICKS, in relation to a cession of the Public Lands to
the States in which they lie, was then considered.

Mr. SMITH, of Maryland, said that, as the Senate was very thin, and as this was an important proposition, he hoped the resolution would be laid on the table until after the holidays.

M. HENDRICKS observed that, he saw no cause for the delay, as no principle was to be settled by this resotion. It was simply a motion for an inquiry, by the Committee of Public Lands.

Mr. SMITH, of Maryland, said that it would be injurious to have an idea get abroad that the lands were to be given away. He therefore urged his motion. Mr. SMITH'S motion was carried, 19 to 12.

Portuguese ships, by a South American privateer. The suits growing out of these claims were prosecuted in different Courts of the United States; and, after the lapse Court, at the last term. The Portuguese claim was reof eight years, were finally decided by the Supreme jected because no owners appeared; and the Spanish claim was reduced in amount to thirty nine negroes. The for the removal of the negroes from the United States. claimants were also required to give bond, with security, The other portion of the negroes was sent to Liberia at adjudicated to the Spanish claimants had formed ties in the expense of the Government. Meanwhile, the negroes this country, and were unwilling to be carried to the West Indies. The petitioner, from motives of humanity sum of $1,500. He had also paid for salvage $ 4,500, to alone, purchased them from the Spanish owners, for the Marshals $6000, and to the Proctors in the different Courts between 2 and $3,000; the aggregate amount er had also offered the negroes to the Colonization Society, for transportation to Liberia, but the funds of the being greater than the value of the slaves. The petitionSociety did not enable them to accept the offer. petitioner, now, therefore, prayed that the bond given

The

31

SENATE.]

GALES & SEATON'S REGISTER

Military Road in Maine.-Imprisonment for Debt.

for the removal of the slaves from the United States may be cancelled, in order that they may remain in a state of mitigated slavery in Georgia, where they are well treated and content.

The bill was then ordered to be engrossed for a third reading.

The Senate adjourned over to Thursday.

THURSDAY, JANUARY 3, 1828.

MILITARY ROAD IN MAINE.
The following resolution, offered on Monday by Mr.
CHANDLER, was taken up for consideration :

"Resolved, That the Committee on Military Affairs be instructed to inquire into the expediency of making a Military Road from the mouth of the Mattawomkiag, where it empties into the Penobscot river, to Mars' Hill, in the State of Maine."

Mr. CHANDLER said that a military post must eventually be established at or near the termination of the All he asked was, road contemplated in the resolution. that the expediency of constructing the road should be inquired into by the committee.

[JAN. 3, 1828.

respected friend, the Senator from South Carolina, would
Mr. SMITH, of South Carolina, observed that, howev-
now give his reasons against the passage of the bill.
er much he might be disposed, on other occasions, to gra-
tify his honorable friend, the Senator from Kentucky, he
was not now willing to go into the discussion of the ques-
tion. Ten years ago, when this subject was before the
Senate, he had joined in its discussion; and he was will-
ing again to give it an examination, but was sorry he
could not this day have the pleasure of gratifying his
friend from Kentucky.

Mr. JOHNSON expressed a wish that the bill would now be ordered to a third reading, and that Monday might be assigned for its discussion and decision.

Mr. SMITH said, that the Senate was now very thin, and thought it proper that a certain day should be assigned for the discussion: he should then take occasion to express his objections to the bill.

Mr. ROWAN proposed to amend the bill by striking out that portion of the first section which makes the operation of the bill entirely prospective. The bill, he said, in its original shape, embraced all cases of imprisonment After some remarks on the resolution, from Messrs. for debt. It provided for the abolition of imprisonment The Judicial ComSANFORD, NOBLE, and PARRIS, Mr. ROWAN, who in all cases, without reference to the date of the contract objected to the resolution on the ground that the con- upon which suit had been instituted, or to the period struction of a military road, as such, would excite the when the judgment was obtained. He feared, jealousy of our British Canadian neighbors, moved that mittee had so amended it, as to confine its operation to the resolution be laid on the table; which motion was lost. suits instituted, and judgments obtained, upon contracts Mr. HARRISON observed, he could not acquiesce in entered into after the 4th day of July next. the suggestion of the Senator from Kentucky, that the he said, that the restriction of the operation of the bill to designation of the proposed road, as a military road, future contracts, would inflict a greater evil than the one would give offence to the British Canadian Government. which the bill was intended to remedy. The restriction They could not take umbrage at the construction of a mi- having been made by the Judicial Committee, might imlitary road more than at the establishment of a fort or an ply that, in the opinion of that very enlightened organ of arsenal. Both the British and the American Governments this body, there was no distinction between right and rehave made warlike preparations on the frontier. Ships medy-between the law of the contract, and the law of have been built since the late war on the lakes, and mili- the forum; or rather, that the remedial system, which tary posts established. He was not sufficiently well ac-existed at the time a contract was made, entered into and quainted with the localities of the country, to say whether formed a part of the contract; and, of course, that it Such an opinion, coming from so high a the military road contemplated in the resolution was ne- could not be altered, without impairing the obligation of But he was well aware that the Senator from the contract. cessary. Maine [Mr. CHANDLER] was acquainted with those locali- source, might tend to strengthen the erroneous notions ties, and he was disposed to confide in his opinion, as to which were propagated in some of the States, by those the expediency of the road, at least so far as to authorize who were disposed to weaken the power and diminish the He stated, that he believed the General Government. an inquiry on the subject by the Committee on Military rights of the States, in the view to strengthen the arm of the rights of the States, and the rights, liberty, and hapAffairs. piness, of the People of the States, depended, essenIMPRISONMENT FOR DEBT. The bill for abolishing imprisonment for debt, as for- tially, upon maintaining the natural distinction between merly amended, came up as the special order of the day. right and remedy--a distinction which existed most obMr. M'KINLEY was, he said, favorable to the princi-viously in the nature of things, and one which had, until ple of the bill, but submitted to the Senate, whether the 5th section was not at war with the principle of the bill. He, himself, could see no reason why a preference should be given to judgments recovered in another State; and he moved, therefore, to strike out the following section,

The resolution was then agreed to.

to wit:

"Sec. 5. And be it further enacted, That, in all actions brought upon a judgment recovered in another State, it shall be lawful to require bail on mesne process, and the plaintiff may have his execution against the body of the defendant or defendants, as if this act had not passed."

Mr. JOHNSON, of Kentucky, would not oppose the
motion for striking out this section. He was never par-
tial to it, and he had assented to its adoption only in com-
pliance with the expressed wishes of some members of
the Senate.

The amendment was then agreed to.
On motion of Mr. BERRIEN, several verbal amend-
ments were adopted.

Mr. JOHNSON, of Kentucky, rose, and said, that an
opportunity was now offered to those opposed to the bill
to present their views; and he would be gratified if his

lately, been recognised by all jurists. A new doctrine had lately been established by the Courts in Kentucky, both State and Federal, that the legal obligation of a contract consists alone in the remedy. If it would produce consolidation, in its worst aspect. If such should be acquiesced in by Congress, and the States, it was the opinion of the statesmen of this country, it could not be too soon known. It would, he said, supersede the necessity of guarding against encroachments by the GeStates, in relation to other natters, about witch there had neral Government, upon the rights and powers of the been much sensibility displayed. That clause in the Constitution which provides that no State should pass any law impairing the obligation of contracts, would, if it enter into and form a part of the obligation of contracts, were once conceded that the remedial laws of a State throw the States inextricably into the power of the Geneleave them no power worth exercising. It would not be ral Government. It would paralyze them. It would in the power of any of the States, whose citizens might be fighting the battles of their country, to save, by a modification of the remedial laws, the property of those citi

JAN. 3, 1828.]

Imprisonment for Debt.

[SENATE.

zens from sacrifice by the Sheriff, in their absence-to | exist that there is a clear and well-settled distinction be. save their families from being unhoused and reduced to the extremest want. Mr. R. insisted, that the great object of the State Legislatures was, to mitigate the evils inflicted upon the People, by great and unforeseen changes in the state of things. That, while a State would be restrained by its wisdom from changing its remedial system upon light or ordinary occurrences, it ought to possess the power to do so in instances of great national calamity; and does, he insisted, possess this power, and will exercise it, whenever its interests and its happiness will be promoted by its exercise, or rather, whenever, by its exercise, great suffering and misery can be avoided. He referred to the practice of the States during the last war. There was not, he believed, one of them that did not, during that period, soften the rigor of its remedial system. And he insisted that much distress had been avoided by the exercise of this power during that period; and who, said he, then contended that those alterations were unconstitutional-that they impaired the obligation of contracts? Mr. President, said Mr. R., we are very much influenced by the force of circumstances. If this erroneous sentiment were even adopted in peaceful and prosperous times, it would be rejected in times of great public calamity. But it is only in times of public calamity, that the remedial laws, which had been accommodated to times of prosperity, would be thought rigorous. It is only then that they would require to be so changed, as to suit the changed condition of society. The wisdom of all legislation consists in suiting the laws to the condition of the People; when that condition shall be altered, the laws ought to be so altered as to fit the change. This power of altering the remedial laws upon great emergencies, was so essential to the States and to the prosperity and happiness of their citizens, that he was unwilling to see it questioned even by implication. He hoped, therefore, that the advocates of the prospective operation of this law had been influenced by what they considered reasons of expediency. That they had not predicated the alteration upon their belief of a want of power to alter the remedial laws in relation to existing contracts. If they should place it on the ground of expediency, and not of constitutionality, he should feel but little concern for the success of the amendment; which he had proposed rather to elicit the sentiment of the committee, than on account of any great concern about its import. He was, he said, in favor of the abolition of imprisonment for debt-but he did not believe that much would be gained by the passage of this bill.

tween the power of legislation over existing laws which affect the contract, and those which merely regulate the remedy. But that question does not arise here. So far as he understood, the section, in its present form, was adopted, not from want of power, but of will, to make the provision retrospective. In the opinion of the committee, it was expedient to leave the remedy on existing contracts, and other causes of action, to the regulation of the laws under which they originated. The inference which the Senator from Kentucky apprehended, could not, therefore, he thought, be deduced from the provisions of the bill as reported by the Committee. But if this were so, the argument in support of the amendment attached to such an implied concession by this House, an importance which did not belong to it. The States, in the exercise of Legislative power, cannot be controlled by the acts or concessions of this House. Within the li mits of their constitutional charters, the whole array of Federal legislation is incompetent to such a purpose; and, whenever, in the exercise of their respective powers, in their application to individuals, a difference of opinion as to the extent of those powers shall occur, there is a common arbiter to which such controversy must be referred. He resisted the amendment, therefore, because it was founded on views not justified by the provision to which it was applied; and because the argument urged in its support seemed to him to attach an undue importance to the acts or declarations of this House, in their supposed influence on the constitutional powers of legis. lation in the several States. The restriction in the scction did not concede a want of power, but resulted from a want of will on the part of the committee to render the bill retroactive. It was in their view a mere question of expediency, and neither does nor can effect the legisla tive power of the States, or of the Union. He trusted, therefore, that the amendment would not prevail.

He stated that the abolition should be by the States, and that the execution laws of the States should be the execution laws of the United States; that the only law which Congress ought to pass upon the subject of executions, should be a law adopting those of the States; that the United States should have no execution laws peculiar to itself, except those which related exclusively to its revenue. The cases, he said, which this law, if it passed in either aspect, could embrace, would be comparatively so few, that he felt concerned only about the moral effect which its passage would have upon the public mind. He repeated again, that the execution laws of the country must be enacted by the States, and adopted, so far as they are needed, by the United States.

Mr. BRANCH said, that the inference which had alarmed the Senator from Kentucky, was not justified. The States were forbidden, by the Constitution, to pass laws impairing the obligation of contracts; and no act of Congress could either give that power to the States, or deprive them of it. He did not conceive that the power of the States could be, in any way, affected by our legis. lation. The means of coercion which were placed in the hands of the creditor, was, he contended, a part, and an essential part, of the contract. Right was not worth a stiver without a remedy. Congress, he said, had, un. doubtedly, the power to make this bill retrospective. The question was, whether it was expedient to exercise that power. For his own part, though warmly in favor of the principle of the bill, he would not vote for it, if it was to operate on existing contracts.

Mr. KANE rose in support of the amendment. He thought, with the Senator from Kentucky, that the restriction ought to be done away with. It was due to the consistency and impartiality of this body, to render the law uniform in its operation upon all contracts, whenever and wherever made. Congress, he declared, never estab'ished the law of imprisonment for debt. The process acts of 1789 and 1792, provided that the United States' Courts should use the process of the several States, subject to alteration whenever occasion required. In some Mr. BERRIEN said, in reply, that the object of the of the States, a debtor cannot be held in prison; in other amendment was to render the provisions of the section States he can. This renders the United States' process retrospective. As the bill stood, they were limited to different in different States. A uniform rule should, in Contracts which should be entered into, or causes of ac- his opinion, be established. There was no limitation to Son which should originate, after the fourth of July next. the power of Congress over contracts; nor did he think, The amendment would extend them to all contracts and with the gentleman from Georgia, that it was inexpedi Causes of action, whenever they originated, or may orient to exercise the power vested in us over the subject.

Mr. ROWAN agreed with the member from Georgia, that Congress had no power to alter the laws of the States. His idea was this: that the moral power of a law

35

SENATE.]

GALES & SEATON'S REGISTER

Case of Francis Larche-Abraham Ogden-Imprisonment for Debt.

of Congress would often induce the State Legislatures to concur in an opinion expressed in that law as to a constitutional point, &c.

After some further remarks from Messrs. BRANCH and ROWAN, Mr. R., at the solicitation of his colleague, withdrew his amendment.

FRIDAY, JANUARY 4, 1828. CASE OF FRANCIS LARCHE. The bill for the relief of Francis Larche, of New Orleans, was read a second time, and considered as in Committee of the Whole.

[JAN. 4, 1828.

The United States was not answerable for this last detention, because the owners might have effected an insurance against capture by foreign power. They had neglected to do it, probably because they did not anticipate a long detention of the vessel at the port by the officers of the United States. The Committee had fixed upon the sum of $ 1,000 as a remuneration, upon the hypothesis that the United States were answerable for damages resulting from the detention of the vessel twentyfour days. The Committee allowed 5 or $600 for the detention for twenty-four days; which, with the interest, amounted to $1,000. But, if the Senate thought that the United States were answerable for the further detention, eight or nine days after, the sum allowed should be con

Mr. RUGGLES said, that this bill had, two or three times, passed the Senate, but had never been finally act-siderably increased. ed on in the other House. The circumstances of the claim are these. The negro slave of the petitioner was impressed into the service of the United States during the last war, and was employed in the transportation of baggage. Whilst in this service he was killed by a cannon ball from the enemy. These facts had been proved to the satisfaction of the Committee, and, as slaves were recognized as property by the laws, the petitioner was, in the opinion of the Committee, entitled to relief.

Mr. CHANDLER asked, whether other slaves, killed under like circumstances, had been paid for by the Go. vernment?

Mr. RUGGLES, in reply, said he had no recollection of a similar case at present; no claim, to his knowledge, had been made upon the Government for compensation for slaves impressed into the service of the United States, and killed while in that service, and he was not aware that any similar case had ever occurred.

On motion of Mr. RUGGLES, the blank was filled with $800, and the bill was ordered to be engrossed for a third reading.

CASE OF ABRAHAM OGDEN.

The bill for the relief of Abraham Ogden, and others, was read a second time, and considered as in Committee of the Whole.

Mr. WOODBURY said he was instructed by the Committee on Commerce to move that the blank be filled with $1,000. Before the question was taken, he wished the report accompanying the bill to be read. The report having been read,

Mr. SMITH, of South Carolina, said, that before the He recollected a correquestion was taken on the bill, he should be glad to have an opportunity of examining it. sponding case formerly before the Senate, in which he took an active part. He did not care for the amount, but the principle involved in the bill he considered highly important. This affair grew out of a project of benevolence. We undertook to feed the sufferers by the earthquake at Laguira; and, like most other projects of that sort, it had been productive of little good to any party. He did not think the claimant entitled to compensation. But, in order to examine the facts, he would move to postpone the farther consideration of the bill until Friday next.

Mr. WOODBURY assenting to the motion, the bill was accordingly postponed.

IMPRISONMENT FOR DEBT.

The bill for abolishing Imprisonment for Debt was taken up, as the unfinished business of yesterday.

Mr. HAYNE had not intended, he said, to participate in the discussion of the bill, but he was constrained to state his views in relation to it, by the circumstance that, in his former remarks, he had been erroneously supposed to have expressed himself in favor of the bill, as it now stood. He was in favor of the principle of the bill, but was opposed to its provisions. It might be made to assume a form in which it would meet his approbation, but he dic not think it probable that such a form would be given to it. The only principle of the bill was this: it deprives the creditor of the power which the common law gave made to apply only to suits him, to hold the body of the debtor, after he had surrendered his property; and this

brought in the courts of the United States.
He was perfectly willing to adopt this principle, but he
was not willing to abolish the process of capias ad respon-
dendum and capias ad satisfaciendum.

Mr. WOODBURY said he would explain the facts and grounds on which the Committee rested the bill. The petitioners claimed compensation for the detention of their vessel, which was chartered by the Government. He was aware that demurrage could not be recovered unless specified in the charter party. The decisions were contraHe would beg leave also to remark, that the object and dictory on the subject, but the balance of them was against the admission of the claim. But, on principles of equity, purport of the bill was wholly different from what its title But it did not apply its provisions to a single the person who does the wrong is answerable for it. The expressed. It was called a bill to abolish imprisonment vessel was freighted by the United States to transport a for debt. quantity of provisions to Laguira; she was there detained case of existing debt, and affected no contracts except twenty-eight days in unloading; she might have been un- those that should be formed after the 4th of July next, laden by lighters; and it was customary at that port to and only that part of them which should be sued in the use lighters for this purpose, as the ships could not be Courts of the United States. Of the whole number of brought to the wharves. It was the duty of the United debtors now confined, or in danger of being confined, in States to have unladen her in the manner usual at this jail, not one would be relieved by this bill, and not more port. If this had been done, she would have been un-than four or five, perhaps, even if it were made retroloaded in four days, instead of twenty-eight. He was spective. Of those contracts which may arise after the aware that the Consul of the United States had given rea- fourth day of July next, not one in a hundred will be af sons for not using the lighters. It was convenient for him fected by this bill. These remarks he did not make to to keep the ship as a store ship, and lighters were scarce, depreciate the bill; he knew that Congress had not the in consequence of the large quantity of shipping in the power to legislate for the States in this case; but he wish. port. Two days after the ship was laden, the pacificating ed it to be understood by the people generally, many of army entered Laguira, and the ship was seized. This whom had misconceived the purport of the bill, that it seizure occasioned a further detention of nine days, when would not afford, to any extent, relief to debtors. The the vessel was given up. The gross loss suffered by the bill was nothing more than an act to regulate process, in certain cases, in the United States' Courts. owners was 5 or $ 6,000.