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SENATE.]

GALES & SEATON'S REGISTER

Imprisonment for Debt.

[JAN. 7, 9, 10, 1828.

that it should be brought up in the shape which the Sena- gislatures, who, it is to be hoped, will soon be induced tor from South Carolina had given to it. He would, how-to engraft its principles on their own judicial system. ever, at any time, vote for it as a distinct proposition. In relation to the objections of the Senator from South Carolina, he would consider whether the bill went too far in restricting the power of creditors over debtors. The gentleman says, that many debtors may have concealed property, bank stock, money, and choses in action, and thereby may be able fraudulently to defeat the claims of their creditors, even after judgment has been rendered against them. But what, sir, is to be done with those debtors who have no bank stock, nor money, nor choses in action? Must they suffer, in hopeless confinement, If debtors because some few rich men may be villains? were proved to be dishonest, the bill provided for their punishment. He did not believe that the debtor part of the community was any better or worse, on the score of morality, than the creditor part. And he would fain know, upon what principle gentlemen assumed the fact, that debtors were dishonest. As many instances of oppression, on the part of creditors, can be enumerated, as The bill provided that of fraud on the part of debtors. the creditor, instead of confining the body of the debtor, upon a presumption that he has property concealed, should first give some kind of evidence of the fraud. Whereas, under the present laws, a creditor may first strip his debtor of all his property, even to his last blanket, and then, to complete his wretchedness, may turn against him, as a villain. But the gentleman also says, that the course It of proceeding is too troublesome to the creditor. would be more convenient for him to put the debtor in jail, at once, upon bare presumption of fraud.

The gentleman says truly, that the bill will scarcely touch that mass of misery which is exhibited by the debtors in our towns and cities. I was in favor of giving them relief in a mode which the gentleman so eloquently recommended last session. I stood by him in support of a bankrupt law, though that law was in opposition to all my former views and prejudices. The gentleman also I have no partiality underrates the importance of the bill, inasmuch as it does not apply to existing contracts. for that feature of the bill. In adopting it, I yielded to the views of my friends who would not vote for a retrospective law. But, must we relinquish legislation, because we, of the present hour, cannot reap its fruits? Must we not legislate for posterity?

Mr. J. pursued the subject still farther, and at considerable length. In conclusion, he said, that the object of the bill was to establish the principle, that crime alone should render a freeman liable to loss of liberty; and he believed that the moral effect of the passage of this bill would, in a short time, cause the abolition of civil imprisonment throughout the country.

Mr. KANE rose to explain some misapprehension, on his part, of the character of the proposition of the Sena tor from South Carolina.

Mr. HAYNE spoke at some length, in reply to Mr. JOHNSON, Mr. VAN BUREN, and Mr. KANE, and concluded by withdrawing his motion for the recommit. ment, &c. for the reason that it would interfere with the bill now before the Senate, for extending the process of United States' courts to the States admitted since the

On motion of Mr. BERRIEN, the bill was postponed to, and made the special order of the day for, Monday next, to which day

The Senate adjourned.

He submitted, whether this sentiment was in accord-year 1789. ance with any principle of morality, or with that equality of rights, in defence of which the honorable gentleman himself had so often raised his voice. In this connexion, Mr. J. begged leave to call the attention of the Senate to the historical fact, that coercion was never, in a single instance, applied to any one of the English Lords, who might become a debtor; and, that no inconvenience had ever resulted to any creditor from their exemption. The consequence of this privilege, in this respect, was, that their creditors took from them pledges of valuables, or relied upon their honor and property. Why cannot the same course be pursued, and with the same success, between creditors and debtors in this Republic, where all are nobles, and all commons; where there is neither patrician nor plebeian?

Let me ask the Senator from South Carolina, continued Mr. J., whether I have not shown to him, that the bill, in relation to the supposition of fraud, gives no more than a fair and equal opportunity to the debtor to exculpate himself from the suspicion or charge? If I am deceived as to this, let the gentleman suggest a better mode in which the object may be obtained.

I accord, said Mr. J., with the opinion of the gentleman, that the People should be undeceived as to the effect of this bill. He had been made aware by the great number of letters he had received from different parts of the country, that the People were under the impression that the bill would have a general operation, and would also affect But the advocates of the bill had not existing contracts. assisted in creating this impression.

MONDAY, JANUARY 7, 1828.

The Senate were principally occupied to-day in discus. sing the propriety of printing a document from the War Department, containing the names of those officers and soldiers of the Revolution who were entitled to lands. The subject was referred to the Committee on the Judi ciary, to report upon the expediency of the printing, and the manner in which it should be done. Adjourned to Wednesday.

WEDNESDAY, JANUARY 9, 1828.

This day was principally occupied in discussing the propriety of printing certain memorials against an increased tariff of duties.

THURSDAY, JANUARY 10.
IMPRISONMENT FOR DEBT.

The bill to abolish imprisonment for debt came up in
"Shall this bill be
its order, and the question being put,
engrossed for a third reading "" Mr. EATON asked for
the Yeas and Nays, which call was sustained.

Mr. BARTON said that he should only detain the Se nate with a few remarks. This bill proposed to abolish Such a proposition must always imprisonment for debt. A small number of the debtors alone can ever have the be popular, where it was known and where it was not He could not benefit of the bill; and most deeply do I regret, that its known. It was confined to the United States' Courts, principles and application cannot be made co-extensive but it did not meet with his approbation. with the relation of debtor and creditor throughout the believe that the system which was now proposed, would Union. But, if it relieves but one debtor out of a hun- be as good as the one at present in operation; and he dred, it will be well worthy of the benevolence and phi-thought many of the benefits anticipated founded in mere lanthropy of this body. It is, however, to the moral effect speculation. He should, therefore, vote against it. Mr. SMITH, of S. C. was not very sanguine in his of this bill that I attach most importance. It will, in addition to the prevailing character of public opinion on the wishes, and his only object in making any remarks on this subject, have a decisive moral influence on the State Le- bill, was, to discharge his duty to himself and his consti

JAN. 10, 1828.]

Imprisonment for Debt.

[SENATE.

this bill is to restrain the natural cruelty of mankind; and that all men are naturally cruel. I thought not. I believe that pity is the last passion that deserts the human breast. But are creditors always those who act from impure or unchristian feelings? Have we not instances every day where men have gone to prison, leaving their families to enjoy splendid fortunes, which they have wrongfully obtained from others? These are every day affairs. I will allude to some facts which were stated here the other day, facts which were stated openly, and which may serve to illustrate this matter. It was said, in relation to a list of the names of the officers and soldiers of the Revolution, that members of Congress had obtained access to that list, and by making extracts from it, had led to speculations by which the rightful claimants were defrauded of their lands. Now, what would the Senator from Kentucky say, if those purchasers were prosecuted for restitution of the lands thus obtained? Would he shudder, then, at the open prison door? This is often the case; as often, perhaps, as the reverse. I do not intend to offer any amendment. I once, on a former occasion, had the honor to present my views of this subject, which I do not think it advisable now to repeat. Indeed I do not know that I should have said a word upon this subject, had not the Senator from Kentucky alluded to two of our illus. trious public men. One of these was the great statesman, Jefferson, who has gone from among us—the other, General Sumpter, a native of the State I represent. The Senator from Kentucky has said that even Jefferson was liable to be imprisoned for debt in his old age. To make the picture still more revolting, he said that Jefferson was liable to be laid hold of by a constable. But the State which I have the honor to represent, has shown by its conduct since his death, that he could not have been arrested on a writ of capias ad satisfaciendum. But, said Mr. S., I would not have such a man as Jefferson exempt from the operation of the law. He ought to be, and, as a good citizen, he would have desired to be, a sharer in the liabilities as well as the protection of the law. It is but seldom that a good or an honorable man is oppressed by it, excepting in some case where the complex operations of banking institutions produced some evil of such a nature. The gentleman has mentioned General Sumpter, as one who had been subjected to the operation of the present system. But it is not to be supposed that a man who has served his country so well, and so nobly, could be forgotten by that country, whether the state

tuents. When gentlemen intended to make a radical | change in existing systems, it was, he thought, incumbent upon them to show some serious evil in the present state of things. He was not sure as to the practicability of abolishing imprisonment for debt at all; but were he in favor of its abolition, he should vote against the bill now before the Senate, because its principal, if not its only effect, would be to deprive the plaintiff of his rights. The plaintiff is to state his case, and to swear that the defendant is about to leave the State, thus encouraging vexations proceedings on the part of the plaintiff. He is moreover bound to state on oath the exact sum due to him. In hundreds of instances, this would be next to an impossibility, where accounts had been of long standing, and had become complicated. But if he cannot do it, he loses his power over the debtor. Then he has to go before a clerk, and make oath of the cause of the action; and this is not safely done without consulting counsel; because if he should state one cause, and it should turn out that another cause existed, he is not to have the benefit of process against the defendant. Before he can proceed to trial, he is to bring his case before a single Judge, who is to decide whether the trial shall proceed. If he pleases, he may discharge the defendant from bail. It is the act of one Judge, unchecked and unaided; and an able jurist has said, that the law of one Judge is the law of a tyrant. All men look differently on the same matter; and as this Judge is to decide upon the statement under oath of the plaintiff, might it not be possible that he should decide wrong, and that the plaintiff should be the sufferer? Then when the Judge has decided that the defendant may be held to bail on mesne process, he has to make investigation, and an affidavit, whether the property of the debtor is concealed. If he fails in his second suit, the costs fall upon him. There were too many affidavits proposed in this new system. The plaintiff must go through a series of them, before he arrives at any security as to the trial. After all this, the defendant comes in, and if the proof is not sufficient, has it in his power to traverse it; and if the jury decide against the plaintiff, the defendant is ever after discharged, and can never be held to bail. This bill, said Mr. S., is, in my view, a one-sided bill. It provides all for the defendant, and nothing for the plaintiff. We know no such principle in our law. It provides for one party as well as another. It deals equal and exact justice to all. We have been told that the present system is cruel, and that our execution law is a disgrace and stain upon our statute book. It might havement made by the gentleman, as to the pecuniary difficulbeen so in the dark ages, because the imprisoned debtors had to support themselves, or depend upon being sup. ported by charity. But in the present age of charity and civilization, every one knows that no such thing exists. The several States have provided against it; and we talk of mere imaginary evils, when we speak of the cruelty of imprisonment, under the present system. The Senator from Kentucky has told us that this law is to protect the debtor from the horrid cruelties of the creditor, and he has paraded before us a list of nineteen hundred prisoners in one State. But has not that gentleman been deceived in the representations that have been made to him? May he not have met with persons willing to exaggerate the cruelties to which he alludes. And if it should be so, it would not be the only time that gentlemen whose meaning was as good as that of the gentleman from Kentucky, had been imposed upon. But supposing there are nineteen hundred, or twice that number of prisoners for debt, in one of the States, are we to suppose that all these, or any very great proportion of them, are hard cases? Are we to suppose that the majority of these imprisonments are made to satisfy vindictive dispositions? Not so. The genius of the country was against it. The People would not allow such an outrage to be perpetrated, against the spirit and feeling of the community. He says, also, that

I

ties of that great man, was true or not. The gentleman
says he is poor. His circumstances may have changed,
and his finances have been straightened by some reverse of
fortune; but he has been too much an honor to South
Carolina to be forgotten or neglected by her. And, said
Mr. S., I can assure that gentleman, that if he had been
unfortunate, he never could be subjected to the operation
of a ca. sa. No possible circumstances could produce
such a disaster to a man so much venerated.
His prison
doors would fly open, and his manacles would fall from
his limbs-not through the interference of a deity, but by
the operation of public gratitude. One word more.
have always observed, in speeches upon subjects of this
kind, that the blame of all the cruelty, as it is called, of
the law, is thrown upon the Judges. I, for one, am not
inclined to join in this cry. In matters of meum and tuum,
the Judges have uniformly been right. I believe that the
laws of England have been digested by as learned and as
humane Judges, as those of any country. The lav
seems to me, in its great and general features, to be as
wise and as humane as the fallibility of human nature
will allow. Yet, here we are called upon to break
up the whole system of execution laws, and adopt a new
and undigested system; a system which he believed
would injure the defendant for whose benefit its framers

SENATE.]

intended it.

against the bill.

Imprisonment for Debt.

Under such convictions, he must vote

[JAN. 10, 1828.

for debt is illegal and cruel. He agreed with the gen tleman from Ohio, and must oppose this amendment.

Mr. BERRIEN did not rise, he said, to discuss the sub- Mr. VAN BUREN remarked, that, when an officer of ject at this time; but having invited the aid of this ho- the Government appropriated the money of Government norable body, in maturing the bill, and in remedying its to his own uses, the principle at present acknowledged, faults, in the spirit in which he had made that invitation, authorized an union of equity with law, to effect a distrihe would now avail himself of the suggestions of the Se-bution of his property. This was done to operate as a nator from South Carolina. He would, therefore, offer security. But now it was proposed to carry the princias an amendment to the bill, a proviso that it should not, ple farther, and to allow the United States, for debts conas regards mesne or final process, be construed to affect tracted by individuals who became unable to pay it, to the rights of the United States, in suits brought for the imprison him summarily. It is true, as the gentleman collection of revenue debts. In order to meet another from Georgia says, that it is the policy of the Government objection, he would propose that, when the issue was to assume to itself preferences in the collection of its remade up, according to the provisions of the 6th section, venue. But it was immoral, impolitic, and unnatural, to execution should issue against the body of the defendant, allow imprisonment in order to coerce the payment of as if this act had not passed. debts by persons unable to meet them. If the system now to be established, was to make a distinction between misfortune and crime, as he had hoped it would, then it was inconsistent with it to retain a clause which should still disgrace the statute book with a principle at once immoral, impolitic, and unnatural. He should, therefore, vote against the amendment

Mr. COBB observed, that it struck him that the amend ment proposed by his colleague did not go far enough. There were other suits brought against debtors by the United States, besides those for the collection of revenue debts. He alluded particularly to suits brought against disbursing officers for defalcation, which were the most important suits brought by the Government, and embraced a very large amount. He therefore thought an additional clause should be added to the amendment now offered.

Mr. BERRIEN said that there was no necessity for such a provision, as it was made in another part of the bill.

Mr. HARRISON said, that he objected to the amendment just proposed by the gentleman from Georgia. It would have the obvious effect to place the United States on better footing than other individuals would enjoy. Considering this principle at variance with the tone and spirit of the bill, he would never give it his assent. He was in favor of the bill in its general principles; and even with this provision he might vote for it: but, he did not wish to have it understood that in doing so, he was will ing to make a reservation in favor of the General Govern

ment.

Mr. BERRIEN said that it was the practice to make a distinction in favor of the Government between debts due to it, and debts due to citizens. The whole history of the Government shewed that every endeavor was made to facilitate the collection of the revenue, until it had become the settled policy of the Government. There was a statute now in force, by which an officer of the Government was empowered to issue a distress warrant on a perfectly ex parte process. It would have been looked upon as highly improper to attempt to innovate upon what has become the established policy of the country; and certainly it would have been inexpedient, in offering a bill containing new principles, to interfere with any facility given to the collection of the revenue, which had become engrafted permanently on our financial system. Mr. BRANCH said that he had a few remarks to make on the amendment proposed by the gentleman from Georgia. He certainly could not agree with him Was it intended to do more in passing this bill than make an experiment? Was it not the moral effect which was designed to be produced? And if so, should the Senate sanction a principle at once partial and unjust? If the example were to produce any benefit, the practice of the plan proposed in the bill ought to begin with the General Government. It was not for Congress to say to the States, Pluck the mote from your eye," and still cherish the beam in its own. Should they, like the profligate divine, say, "Do as I do, and not as I say If, as is said, it is the policy of the Government to assume a privilege which does not extend to other creditors, then that policy ought to be altered. Let our reform begin at home. Let Congress approve, by practice, the declaration which is made in this bill, that imprisonment

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Mr. BERRIEN replied, that, if it were true that the principle heretofore established, and acted upon, by the Government, was merely a species of security, then the argument of the gentleman from New York would be a good one. But it was not so. On the statute book would be found cases which could not apply to individuals, and could not be governed by principles similar to those ap plying to individual parties. He would allude to the law for the better regulation of the Treasury Department, in which it is provided, that a person failing to pay moneys due to the Treasury, may be incarcerated until discharg ed by due course of law. He did not defend this principle; but, in advocating this object, I lay down the proposition that this bill, which is to change the jurisdiction of the United States, may not be obstructed by any attempt at innovation in any of those long established prac tices which have grown into the settled policy of the country. He would not pretend to say, that under the present law there had not been instances of oppression that would have disgraced any country. He was anxious that, in attempting to afford to the People the benefits of this system, in all ordinary cases, it might not be cmbarrassed by any interference with the established regu lations of the finances. If gentlemen were disposed to alter the policy of the Government, let them introduce a bill for that purpose, and, as far as he could go safely, he would go with them. But he would not advocate any such attempt being engrafted upon this bill, which was framed for other purposes. He wished this hill to stand on its own footing, and that it might not be embarrassed by the introduction of propositions and plans not imme diately connected with it.

Mr. VAN BUREN, in reply, remarked that the gen. tleman from Georgia's view of the present system was perfectly consistent with his own. He acknowledged that some preference was necessary in the collection of the revenue, where the transactions were so vast and mul tifarious. The United States was allowed the same privilege over the body that individuals enjoyed, only that the process was more summary. But now, a new era was to be commenced. This bill was to establish a new principle, and to draw a line of distinction between the unfor tunate and the criminal. This was the whole scope of the bill now under consideration. And should they stop short of this object? Should they, in mere cases of debt, where the parties were not able to pay, allow to the United States the liberty of confining the debtor within the four walls of a prison? He hoped not for, if such was the case, it would be a libel on the bill and its advo cates, and convict them of the grossest inconsistency.

Mr. HAYNE rose merely to state the ground upon

.

JAN. 10, 1828.]

Imprisonment for Debt.

[SENATE.

which he should give his vote. At first he had thought to implore the indulgence of the more fortunate, but perwith the gentleman from Ohio; but, upon further reflec-haps greatly less meritorious person, to whom he has, by tion, he rather approved the amendment. He objected the force of circumstances, become debtor, he may escape to the principle and operation of the bill. He first object-imprisonment; or that he may possibly escape, (for a while ed to it as applied to the citizen. If he was defeated at least) by renewing his bond for the debt, with ten or there, he was against it as it would apply to the United twelve per cent. interest, as a moderate equivalent for States, and mainly, because he believed it would dimi- his gracious forbearance. nish the revenue. An unwise rule was by its application made nugatory. And he believed not an individual would go into the Federal Courts, if this bill passed; but would, in preference, go into the State Courts: for, when he went into the United States' Courts, after the defendant had been defeated, the plaintiff could not get possession of half of the property, because it was not attachable. But the United States must go into the Fedcral Cour's, and suffer the same inconveniences, which he believed would result in a great loss of revenue. He could not, therefore, agree with the Senator from Ohio. The question on the amendments offered by Mr. BERBIEN, being then taken, was decided in the affirmative, Ayes 20, Nays 18.

The question of engrossing then recurred, when

Mr. ROWAN said he had not attended to the provisions of the bill in detail. He had the most unqualified confidence in the members of the committee, who had examined and approved them. He was in favor of the object of the bill-the abolition of imprisonment for debt. He was opposed to imprisonment for any civil cause.

The acts of individuals, so far as they are cognizable by the laws, are divided into civil and criminal; criminal acts are those, which are injurious or offensive to the State; to them he would confine imprisonment. It should never be inflicted by any, but the government, and by it, for misdemeanor, or crime only. He did not believe that indebtedness was either a crime or misdemeanor; and upon the supposition that it was either, he would never consent that this punishment should be inflicted, or that the creditor should inflict it. Sir, said he, the relation of debtor ard creditor is an accidental one, which takes place between equals; for in our government all are equal: equally secure in the enjoyment of their lives, their liberty, and their property. This equality lies at the root of republicanism. It is is natural, and the republic was not formed to destroy, or impair, but to preserve and protect it. Hence the explicit guarantees, by the Constitution, of equal rights.

If in the wreck of his fortune, the debtor has been left the means of bribing his creditor, or if some friend or neighbor, moved by the sympathies of a kind heart will become his sponsor for the debt, swelled by the inordinate premium for forbearance, he is graciously permitted to enjoy his liberty yet a little longer. So that the debtor is not barely in as bad a situation, in relation to his credi tor, as he would have been without the aid or protection of the civil institutions; but in a much worse. In a state of nature, he could have resisted any and every encroachment upon his liberty, to the extent of his power, even to the infliction of death upon the assailant. In this he would have been justified by the law of nature; and even now, under our civil code, if any person shall attempt to imprison another, who is not his debtor, he may be resisted even to death. It is the creditor alone, who, by our law, is authorized to imprison. It is he alone, who may reverse the laws of nature with impunity; who may violate them, not only with impunity, but with the sanction and aid of the civil laws, and their machinery. The civil laws, so far from protecting the unfortunate debtor from the blow aimed by the disappointed and exasperated creditor, at his liberty, his peace, and his happiness, lend their vig our to his vengeance, and confer on deeds of private malignity the sanction of public approbation. They point the weapon of private vengeance with the venom of public scorn. Misfortune is treated as crime, even worse (as he should hereafter attempt to shew.) Calamity is aggrava ted by the loss of liberty.

The theory of our government derives all its captivation, (and it has much, very much) from its regard to the equal rights of its citizens, and from its seeming aptitude to maintain and preserve those rights. It proclaims their happiness to have been the great object of its institution; and as the best means of promoting that object, it guarantees to all, and to each, the same enjoyment of life, liberty, and property.

Sir, will any man say that the pledge given in the constitution for the security of the liberty of the citizen, is redeemed in the imprisonment of the debtor portion of the community, by their creditors.

Can it then be supposed, that liberty which ranks in the Constitution as it does in the intelligence of mankind, next to life, and without which life itself is scarcely worth Will it, can it be said, that the practice, under the conenjoying, can, by any law, which does not violate the stitution, conforms to its theory? Sir, we abound in pospirit of the constitution, be subjected to the caprice, the litical liberty, while we are destitute of civil freedom. whim, or the malignity of those who may happen, in the Our political laws, our constitutions, proclaim us the freest ever-varying condition of human affairs, to become credi- people in the world. While our civil laws, so far from tors? The object of all civil regulations is to secure pri- conforming, as they ought, to the nature and principle of vate happiness, from private encroachment. To secure our government, subject us to slavery. Sir, while it is our individuals, from the power of one another. It was to pride to have made our political law-to have framed our promote the happiness of all, by protecting the weak own constitutions, it is our misfortune, and our reproach, against the strong, that government was instituted. But, to have adopted a foreign code of civil law. Our political by permitting the creditor to imprison his debtor, you law is republican; our civil law is monarchical. We won counteract and defeat the great object of the social insti- our independence from England by our valor; asserted our tutions; you surrender the weak, to the strong; for wealth freedom in our constitutions, and then voluntarily became is power, and poverty is weakness; you deprive every her vassal, by adopting her laws. Sir, the most important man, whom accident makes a debtor, of his liberty. In-half of the revolution remains to be achieved. We must stead of appealing to the constitution, and relying upon it conquer her in her code If we do not, she will conquer for the enjoyment of his liberty, he is referred to the ca- us, through that medium. It is true, that, since our indeprice of his creditor. He is told, that, instead of relying pendence, we are not subject as a nation to her laws. But apon the strong arm of his government, for the protection it is as true that distributively as a people, we are still subThis liberty, he must invoke the clemency of that man,ject to them; and imprisonment for debt is one, and not the whom avarice, parsimony, or accident, has clothed with least odious and oppressive of those laws. A law, however wealth, and, under the denomination of his creditor, arm-it might suit the constitution of a government consisting of ed with the power of tyranny. That if his spirits have kings, lords, and commons, but illy suits, he repeated, the been broken by his adversities; if, with the loss of his for-genius and spirit of our republican institutions: a law which tune, he has lost his self-respect, and is prepared hun.bly he considered neither more nor less than a foul blot upon

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the escutcheon of our government; a blot which our interest, no less than our pride, required us to wipe off; one which he hoped would be forever obliterated, by the pag. sage of the bill now under discussion.

Sir, let us look at the practical operation of this thing, on the condition of society. Do not one-half of our citizens, the debtor half, hold their liberty by a courtesy tenure, of the other half? It is worse than a courtesy tenure. In that, there are certain facts, which give certainly to the tenure. But in this, there can be no certain criterion. Who may be debtor, and who creditor, depends upon the ever varying condition of human affairs and human agency. A man may be creditor to day, and debtor to-morrow. We are told, from very high authority, "that riches make to themselves wings and flee away." No man knoweth what a day may produce; no man's condition is exclusively within his own control. If the liberty of the citizen were made to depend upon the constancy of mutation or change in the condition of man, then indeed it would be perpetual. But, as the law now is, no man can make a contract, or incur a liability, without endangering his liberty. He is constrained to transact his business, on the vestibule of the prison of his country.

Sir, can freedom be predicated of any society, in which any one of its members may oppress any other, who shall have been unfortunate? In which the want of success in the honest pursuits of life, shall draw after it the loss of liberty? In which the poor and the unfortunate depend for their freedom, not upon their government, but upon the discretion, or the caprice, of the prosperous and the wealthy? Sir, liberty is the wealth of the poor man; bereaved of the good things of this life, he has nothing else left, with which to console himself; he has no will to make; he has no valuables to bequeath to his children; the fruits of the toil of his life have been exausted in rais ing and educating them; he has nothing but the invaluable, the inestimable boon of liberty to bequeath to them, and he should be enabled to point exultingly to the constitution, and code of his country, and say to his children, in an emphasis of triumph, The freedom which has been the solace and pride of my life, you will find there. Guard it, maintain it, vindicate it at every hazard; when you shall lose it, you will have nothing left worth preserving. Sir, I repeat, that there is, and always will be, in this and every society, a large portion of its members from whom, when you take their freedom, you take their all. What, let me ask, has the honest, but unfortunate man, who has been deprived, by some unfortunate event, or sudden casualty, of the means of meeting his engagements, left, but his liberty to reconcile him to life? What motive has he to fight the battles of his country? How can he be benefitted by her victories? Vanquished or victorious, his condition is the same. The country in which, and the government under which he lives, belongs to the wealthy, not to the poor; he can exclaim, with as much emphasis as Cato did, "this world was made for Cæsar."

Mr. President, what is gained to creditors by the incarceration of their debtors? The debtor is not employed in reducing, by his labor, the amount of his debt. He cannot be sold, hired, or disposed of for money, in any way whatever; and what is gained to the public by his imprisonment? The volume of industrious exertion, upon which the general welfare depends, from which the public prosperity results, is diminished in proportion to the number of persons imprisoned; and should the United States be engaged in war, its strength would be diminished in the same proportion; so that while the unfortunate debtor would be deprived of his liberty, and of the society of his family and friends, and while his family might be deprived, not only of the comfort and protection, which his presence gave them, but of the sustenance which his labor afforded, neither his creditor nor the public would be at all benefitted. The majesty of the government

[JAN. 10, 1828.

would have been degraded, by the employment of its process, in the gratification of the malignity of the creditor. He might perhaps, by torturing the sympathies of the friends or relatives of the debtor, succeed in wringing from them the amount of his debt. But is it just to allow him to extort from their agonized sensibilities the debt of their unfortunate friend, a debt for which they never received any consideration, which they never contracted to pay, and to the payment of which, they were under no legal or moral obligation? Sir, the charities of life, and the sympathies which sweeten its most endearing relations, should not be exposed to the experiments of extortion, which the unsated or exasperated avarice of creditors might choose to make upon them. Government, instead of lending its energies for purposes so unholy, should elicit, cherish, and protect, those kindly workings of the human heart, which, as they are above all moneyed estimation, should be exempt from moneyed exactions. Sir, we have heard of instances, in which the rights of interment were denied by the creditor to his unfortunate debtor, who had died in custody, until the debt had been wrung from the fresh, but credulous sorrow, of his surviv ing relatives. But, Sir, the effect of imprisonment upon debtors themselves is greatly to be deprecated. It has an humbling effect. It has a demoralizing effect. In every Republic, where the will of the people is this governing power, as it must be in all such governments, and as it ought to be in every government, care should be taken not to pollute its sources. Every individual in the Repub lic should feel a constant, and proud consciousness, that his will formed a constituent and justly proportioned part of the governing volume. But when he is torn from the bosom of his family, and of society, and thrown into prison, denied the power of either managing his own or parti cipating in the concerns of the public, he is placed in an unnatural state, his faculties rust for the want of employ. ment. He may, he must be inactive, but he cannot be idle. The means of useful or virtuous actions are denied him. The motives cease with the means. He either be comes spiritless and languid, or wicked and vindictive. If the former, when enlarged, he is useless. His mind has lost its elasticity, its spring, its pride. He is, at best, during the balance of his life, an inefficient harmless being. If the latter, he brings, when enlarged, the vices of the prison into the bosom of society, and propagates them there. He is mischievously busy, and vindictively active, during the balance of his life. The prison has lost its terrors with him; he fears it less now in its legitimate use, as a punishment for crime, than he did at first, as a confinement for debt: and he is more likely thereafter to be a criminal, than a debtor. Sir, our citizens should not be made too familiar with our prisons; the government needs for the restraint and punishment of crime all the ideal as well as real horrors of the prison.

Let it not, Mr. President, be overlooked, that, for the punishment of all the crimes which can be perpetrated, civil society has but the life, the liberty, and the property of the offender, upon which it can display its punishing energies. It inflicts death for the perpetration of treason, murder, and the other more atrocious crimes. It inflicts confinement, with or without hard labor, for shorter or longer periods, as the punishment for all the subordin ate crimes; and, God knows, they are numerous and grie vous enough. The government is under the necessity of economizing its criminal fund. It consists exclusively in its power over the life and liberty of the citizen. It can act upon the property of its citizens efficiently, in restraining and punishing misdemeanors and minor offences. Fines and amercements should be employed exclusively as punishments, or rather as the animadversions of go. vernment, upon all the acts of its citizens, which, though reprehensible and injurious, do not amount to crime, and are denominated misdemeanors; which are the result of

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