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frailty rather than wickedness. Civil society, therefore, cannot, without impoverishing itself, spare to creditors the power of imprisoning their debtors ; and if it could, it cight not. So, the more a State enhances the sanctity of the liberty of its citizens, in their own estimation ; by so much the more it enhances its own power of restraining and punishing crime ; and what is of no less importance, it promotes, by so much the more, a vigorous and healthy ac tion in the body politic. Imprisonment, inflicted as the punishment of crime, loses much of its terror and its force, by the consideration, that it is inflicted indiscriminately upon the innocent, the unfortunate, and the guilty. This circumstance, while it diminishes the ignominy of imprisonment, in relation to the criminal, aggravates it most mercilessly, in relation to the debtor. The first views it with less horror, because he sees it inflicted upon the innocent ; the latter abhors it, because he sees it inflicted upon the guilty. The use of imprisonment, in the case of debtors, is an abuse of it in relation to criminals. Mr. President, liberty is the jewel of a republic ; it is the golden chain which connects life with property : without liberty, property cannot be acquired, or enjoyed ; life, without \berty, is dull mechanism ; it is respiration; it is vegetation ; a condition to which no State should permit any of its citizens to be reduced, but upon the most urgent necessity ; in a republic no such necessity can exist; on the contrary, there is in such a government, a necessity that such a condition should not be permitted to exist ; nothing but the power of defending itself against the ef. fects of crime can justify imprisonment, in a free government. Freedom is a mere illusion, a mockery in any government, which permits the imprisonment of its innocent citizens. Surely, Mr. President, it will not be asserted, by the advocates of imprisonment for debt, that the mere act of being indebted, or of failing to pay a debt, according to contract, is a crime. That there is much perfidy, insin<erity, and even fraud, practised by many debtors, must be admitted by every man of observation. But that all debtors, or even a majority of them, are fraudulent, must be deniel by all, who are not prepared to blush that they are men. Sir, the fact that a majority of mankind are dis. posed to act honestly, in their transactions, is as consoling to the philanthropist, as the fact, that there are some dis. honest and fraudulent, is nortifying. The supposition that all, or that a majority of the citizens of any State, are dishonest, strikes at the root of civil society. The great compact, which binds civil society together, implies confidence in the honesty of its members. This confidence, which sustains the social fabric, which constitutes its foundation, its only basis, runs up through all its mechanism, and governs all its relations; it is matter of as much necessity, to presume honesty in the parties to an individual contract as in the parties to the social compact. That every man shall be presumed to have acted honestly, until the contrary is proved, is a maxim of as much application and force, in the political, as the civil code ; it is na. tural and necessary. If, upon every imputation of guilt, the proof of his innocence was thrown upon the accused, conviction would be the inevitable consequence of impu. tation. Indeed imputation, or rather accusation, would imply conviction. Distrust would, of course, supply the place of confidence, and society would be instantly dissolved. But man is happily so organized, that the path of His interest is the path of his duty. The maxim “that onesty is the best policy,” has the foundation of its truth, in his nic structure. It has the sanction of his judgment, not less than the bias of his nature ; he is naturally
***, and led by that principle in search of his happi- trol the other.
principle, to regulate his selfish and his social acts, by the will of his Creator, as disclosed in the volunie of nature, brightened by the great torch of revelation. How absurd then is it to suppose, that indebtedness implies guilt ; that the failure to pay a debt, according to contract, imblies fraud? That failures are frequent, is admitted ; and what do they prove? Why, that man is a frail, impotent, short-sighted being ; controlled by circumstances, instead of controlling them ; that his misfortunes are more nume. rous than his crimes; that he is oftener the victim of weak. ness than of wickedness. Why, then, he asked, should the catalogue of his misfortunes be swelled, by superad. ding to the loss of his property, that greatest of all calamities, the loss of his liberty? And why should this last and greatest evil, be aggravated by the imputation of guilt, and consequent ignominy Sir, I have been labouring to shew that guilt ought not to be imputed to debtors; that indebtedness is not a crime ; that the failure of debtors is not, in the general, matter of choice, but of necessity; but, upon the supposition that I am wrong, in all my views, upon this subject, and that to be indebted is a crime ; to whom, let me ask, does it belong to ascertain and punish the offence Surely not to the creditor The public interest requires that every offender should be punished ; and justice requires that the punishment should, in every instance, be proportioned to the offence. Now the guilt of the debtor was incurred, either in contracting the debt, or in failing to comply with his contract. lf in contracting the debt, then the creditor participated equally with the debtor, in the guilt of the transaction; for it takes two, at least, to make a contract—and being equally guilty, should be equally punished; and if imprisonment is a just punishment for the guilt of the debtor, it should be inflicted upon the creditor also 3–and we know, from observation, that the moral guilt of the creditor, if there be guilt in the transaction, is frequently greater than that of the debtor. The credit is always extended in the hope of gain, and not unfrequently of inordinate gain. The debtor, in many instances, is led to contract the debt by the urgency of his wants. The creditor takes advantage of that urgency, to cbtain an extravagant price for his commodity, or an in. ordinate usury for his forbearance ; he usually pays himself, for whatever risk he incurs, in the advantage which he obtains by the contract. For, Mr. President, in almost all contracts, the advantage is on the side of the creditors ; they are the wealthy, and wealth, I repeat, is power. Now, sir, upon the supposition that the debtor has, either in contracting, or failing to pay the debt, committed the crime, can the creditor be safely trusted, to inflict the punishment? In that, as in every other class of offences, there are different degrees of guilt. If the creditor be sympathetic and indulgent, he may not imprison his debtor ; if he be avaricious, and his debtor possesses the neans to bribe him, (and even Cerberus can, as we are told, be soothed by a crumb,) he may forbear to punish him. The man who contracted debt, with the most fraudulent intentions, may escape punishment; may go at large and enjoy his freedom, while the strictly honest, but unfortunate debtor, who is unable, from his poverty, to bribe his creditor; or, whose creditor shall be so callous as to be unmoved by his distresses, may be torn from his family and thrown into a jail. Besides, the debtor and creditor are equal in natural and political rights; as men, and as citizens, they are equal ; their relation of debtor and creditor is accidental. The idea of permitting the creditor to punish his debtor, is at war with their natural and political equality ; of two equal bodies, whether in the natural, moral, or political world, neither can conPunishment can only be inflicted by the
nes: he is social in his nature, and led by that principle, sovereign. Coming from the seat of the sovereign power to regard, in the pursuit of his own happiness, that of his of the commonwealth, its effect is felt, its justice acneighbour: he is religious in his nature, and led by that knowledged, and its power revered ; coming from the Imprisonment for Debt.
[JAN. 10, 1828.
hand of an equal, its effect is lost, and its power contemned and defied. The object of all punishment is reform.— The few are punished, in all wise governments, that the many may be restrained and reformed ; but what reformation has been wrought in this country, or in England, by the punishment of imprisonment for debt, during the last three hundred years 7 To what extent has the guilt of incurring debt been restrained, by permitting creditors to imprison their debtors, during all that time 2. Sir, imprisonment for debt never has, and never will, diminish, much less extinguish, the guilt (if guilt it may be called) of indebtedness. People will incur debt, whenever they can obtain credit ; and credit will always be given when there is a hope to gain by it. When you can extinguish the wants of the debtors, and the avarice of the creditors, you may hope to extinguish debt, and not till then. In fine, you must extinguish society, you must extinguish man, before you can barish this guilt from the world. Sir, if you consider the debtor as a criminal, and imprisonment as the punishment of his crime, you cannot help perceiving, that the punishment is as unavailing as it is unnatural and cruel. But, again, if it is a crime to be indebted, why deprive the debtor of the privilege of every, even the most abhorred, culprit? Why do you invert the presumption of innocence, which shields the accused from punishment, until his guilt is proved, and presume him guilty without proof Sir, when the debtor is imprisoned upon original or mesne process; even the fact of his being indebted, is not ascertained, is not proved, nor does the law require any proof of it, it takes the word of the creditor for that fact; he brings his suit, and directs imprisonment, if bail cannot be obtained, and it is done accordingly. Sir, is there a people on earth, having any love of liberty, any pretensions to freedom, who would submit long and calmly to such a state of things' Again, upon the admission which has been made for the sake of the argument, that debt is scrime, the debtor has a right, under the constitution, “to a speedy and impartial trial by a jury of his peers, from the vicinoge, to be confronted, by the witnesses against him, and to compulsory process, to compel the attendance of witnesses, in his behalf.” But the debtor is imprisoned without jury, without trial, without the proof of witnesses against him, and without the privilege, or power, of adducing proof of his innocence. Now, the debtor is either innocent, or guilty; if innocent, he ought not to be imprisoned ; if guilty, his guilt should be ascertained and established by proof, in the course of a fair, and impartial trial, according to the constitution of his country, before he should be imprisoned ; conviction should, in all cases, precede punishment; but, whether guilty, or innocent, he should not, with or without a trial, be imprisoned by his creditor. Mr. President, we are told by some of the opponents of this bill, that they have a great veneration for the common law, and are unwilling to make the innovation upon it, which this bill contemplates ; that imprisonment for debt, is a common law regulation, which has existed for ages, and been sanctioned by the intelligence of mankind, dur ing all that time; and they urge the long continuance of the rule, as conclusive evidence of its wisdom. Sir, it is certainly true of the common law, that it is a very ancient, and a very wise system, and that its antiquity is no small evidence of its wisdom. But has imprisonment for debt the authority of the common law in its favour 2 Is it of common law origin ' If I believed it was, I, like the gen. tlemen who have advanced the sentiment, should be slow to question its wisdom; I should hesitate before I consented to abrogate it; for 1 consider the common law the most perfect, the most sublimated system of rules, for the conduct of man, in a state of civil society, that is to be found in the history of the world; a system which defines his rights, and regulates his conduct, with a more just regard to his life, his liberty, and his property, than any other, which has ob.
cure the personal liberty and promote the happiness of men, in all the conditions and relations to which they are incident, in a state of civil society : the only system which can, without the violation of modesty, exult in the boast, “that it is the perfection of reason.” Sir, I, like the gentlemen who oppose me, claim the support of the common law upon this question ; the gentiemen will pardon me, when I tell them that they labor under an illusion as to the common law doctrines, in reference to civil imprisonment; it knew of no such thing ; there was no imprisonment for debt by the common law ; that system left the creditor, in relation to his debtor, upon the only ground which he could justly or rationally occupy; the ground on which he had placed himself by his contract ; it gave him access, by execution, to the property of his debtor, but forbade him to profane his person ; it not only did not permit the creditor to tear the debtor from his family, and immure him in a prison, but it exempted the beasts of the plough from the execution of the creditor, for the support of the family of the debtor. And in this we see, not only the reason but the humanity of that wise system. Sir, it cannot be sup: posed that the creditor, in the contract, contemplated the body of the debtor as the fund out of which his moncy was to be made ; he surveyed the condition of his debtor, and inferred his solvency from his possessions, not from his person. The common law rated the personal liberty of the subject above all price. One of its most favorite maxims is, “that the least corporal punishment is greater than the greatest possible amercement.” It would not, therefore, permit the creditor to take the body of the debtor, instead of his property; to violate his contract by the violation of the personal sanctity and liberty of his debtor. It would not permit the debtor, if he were so disposed, to contract for his imprisonment ; still less would it sanction or enforce such a contract. Sir, the liberty of the subject, next to life, was the favorite of the common law ; he could be imprisoned only for crime, and in that case, only by the sovereign power. I repeat, Sir, that imprisonment for debt, so far from being sanctioned by the common law, was unknown to it, and reprobated by its spirit, its analogies, and its principles. The Senators from South Carolina have mistakén, if they will permit me to say so, statutory interpolations into that system, for the system itself." The antiquity of those statutory inroads upon the symmetry of that most excellent system, was well calculated to superinduce the error in:to which these learned Senators have fallen. Sir, if the States in this Union had adopted the cornmon law, the whole common law, and nothing but the common law, imprisonment for debt would have been unknown in our land, and they would have possessed a code of law as favorable to civil freedom as their Constitutions were suited to political liberty. The common law, before it was defiled by statutory innovations, might have been admired as the impenetrable AEgis of civil liberty. But the States, in adopting it, Adopted with it the statutes of England, in furtherance (as they were miscalled) of its provisions; and the great misfortune is, that those statutes, and the judicial interpretations, or rather, in many instances, perversions of them, are mistaken for the common law itself. Sir, it was not until the reign of the third Henry, that civil imprisonment was known or tolerated in England. It had its origin, not in the intelligence of the nation, but in the power and avarice of the barons of England. It was not invoked by the reason of the people, but obtruded upon them by the aristocracy of wealth and title. The barons of that reign. obtained the passage of an act of Parliament, whereby it was ordained “that bailiffs, or stewards, who failed to
5. amongst men ; a system most happily suited to se
account to their lords, if they withdrew themselves, and
Jas. 10, 1828.]
had no lands or tenements, whereby they might be dis. trained upon by the common wit of attachment, should be attached by their bodies.” Sir, I beg the Senate to observe with what caution, and under what limitations, this monster, civil imprisonment, makes its first appear. ace :-none but barons can imprison—and their lordships can only imprison their fraudulent bailiffs or stewards, and them only when they shall have embezzled the money of their lords, and failed to account with them ; and not even then, unless they abscond, having no lands oftenenefits. The reluctance with which the common law yielded to this first encroachment of the power of wealth upon the liberty of the subject, cannot escape the observation of the Senate. It is restrained in its application to a single class of debtors, and that in very special and imposing cases only. It is accorded to but one class of creditors, and when the poverty and paucity of the debtors are considered, in contrast with the number and wealth of the barons, we are led rather to admire the success of the resistance made by the common law against such an assault upon its principles, than to reproach it for yielding to the inroad. The jealousy, too, which it displayed in construing the statute, evinced its strong aversoon to the odious innovation. The judges held the barons to the very letter of the act ; for, if the steward had embezzled the money of his lord, and refused to account, but did not abscond, he could not be imprisoned ; or, \", \aving embezzled the money, refused to account, and absconded, he could not, if he owned but one acre of land, be imprisoned by his lord ; a concurrence of all the requisitions of the act were necessary to authorize the imprisonment. It was vain to urge that the bailiff had enjoyed and abused the confidence of his lord, had embezzled his money, refused to account, and had ab: sconded, he could not be imprisoned if he had left one rood of land ; so regardful was the common law of the liberty of the subject—so averse to violate it. Sir, it was reserved for the power of wealth, in a more active and diffused state, to give more extended effect to this unhallowed innovation upon the liberty of the subject; the wealth of the barons consisted mainly in lands : it was as inoperative as it was unwickly. The love of liberty with which agriculture inspires its practical votaries, was too strong to be extinguished by the sluggish power of baronial wealth public sentinent was not prepared to sanction the perversion of the powers of the government, to the destruction of the liberties of the people. It remained for the more active power of commercial wealth to carry, at a subsequent period, the principle of imprisonment for debt, one step farther than it had been pushed by the influence of the barons. They had obtained the power of imprisoning their bailiffs only. The merchants obtained the passage of an act of parliament, in the reign of Edward the First, authorizing them to inprison their debtors. This matter, Mr. President, was got up and carried through Parliament as a tariff measure. That weak Prince seemed to have entered, nost heartily, into the views of the coalition —yes, Sir, a coalition between the barons and the merchants, to humble the proud spirit of freedom in that country. loy the influence of the coalition, the Parliament taxed the liberty of the subject, to promote the spirit of mercantle enterprize, and encourage merchandize in the kingdom; that was the avowed reason for passing this law. It was in the process of taxing one interest to encourage another, under color of regulating the labor and the interests of all classes tf the community, that the liberty of the debtor was sacrificed to the avarice of the creditor ; the freedom of the poor to the cupidity of the rich. The law obtained by the barons against their bailiffs, backed by the controtrated power of all descriptions of wealth, had, by Pisecret, but unceasing operation upon public sentinent, Prepared it for the enaction of the law in favor of mer
chants ; and the passage of the law in favor of the latter, still farther prepared the public mind for the passage of another law, during the same reign, increasing the power of the barons over their bailiffs. By the last law, the baron, upon the mere failure of his bailiff to account, could, without any thing more or farther on the part of the bailiff, throw him into jail, there to remain in irons, until he should account satisfactorily. But the barons and the merchants were not the only wealthy classes in the kingdom; not the only persons whose wealth entitled them to the power of imprisoning their debtors ; the people had grown familiar with civil imprisonment ; their veneration for liberty had abated, in proportion to the frequency of its profanation; what had at first been resisted by all, as an innovation upon the common law, and a grievous encroachment upon their liberty, was now advocated by all denominations of creditors as a remedial measure. Every creditor asserted his right to the same rigor of remedy against his debtor, that had been accord. ed to the barons and the merchants. The barons and the merchants had no motive to resist, but every motive to assist and second this claim. But still the great mass of the people were unsubdued in their spirit but their love of liberty, although shaken, was not conquered. It was not until the reign of the third Edward, that imprisonment was allowed in cases of debt and detinue. It was extended by an act of Parliament, in that reign, to those actions, and thus the law stood, until, in the reign of Henry the Seventh, when, by an act of Parliament, civil imprisonment was extended to actions on the case. Before this statute none but the barons, the merchants, and plaintiffs, in debt and detinue, could imprison their debtors. But, by this statute, imprisonment was almost indefinitely extended ; none, indeed, could escape after the passage of this act, but the defendants, in actions of covenant and of annuities ; and they were not long indulged with this immunity; for, in the reign of Henry the Eighth, imprisonment was extended by act of Parliament to them ; and thus ended the freedom of the people of England, after a struggle of more than one hundred and fifty years; a struggle as glorious as it was protracted. Mr. President, in what other country was such a conflict ever witnessed ; a conflict between the aristocracy and the people of a State, continued for nearly two centuries, without intermission The assailants never pausing in their pursuit, while any thing was left to be achieved by perseverance ; the assailed never ceasing to resist, while any thing was left them to defend. Sir, when this conflict commenced, the people of England were free : their civil code was the freest and the wisest in the world; their political code was a compound of monarchy, aristocracy, and republicanism. The common law, so far as it related to personal rights, was a purely republican system, and suited the representative principle, which was the republican feature in the political, or organic law of the kingdom ; such was the effect of the freedom of their civil, united with the representative principle of their political code, as to roake their government practically republican, while it was, in theory, a monarchy. It was substantially a republic in the mask of a monarchy, and the strong and protracted resistance made by the people to the encroachments of the aristocracy upon their liberty, by the infliction of civil imprisonment, resulted from the harmony of the principles of the common law, with the representative feature of their government ; and of both with the natural and civil rights of man. The political freedom of England, so far as it depended upon the representative principle in her constitution, still remains, but the civil freedom of that country expired when the statute of Henry the Eighth received the royal sanction ; from that moment every man in England with the ex; ception of the nobles, who never were subject to civil SENATE.]
Imprisonment for Debt.
[JAN. 10, 1828.
imprisoment) held his liberty at the discretion of his creditors. Sir, I have thus briefly attempted to rescue the common law from the imputation, of having inflicted, or sanctioned the infliction, of civil imprisonment upon the people of England. I have done this by printing to the source whence it originated, and showing the time and manner of its introduction. Sir, the acts of Parliament, to which I have called the attention of the House, are those only which originated and successively extended the power of imprisonment to all classes of creditors and to every species of civil action. I have, Sir, for the sake of brevity, overlooked two statutes, passed in relation to civil imprisonment; not in the spirit of the acts which established it, but to mitigate the rigor of that spirit permit me barely to refer to their import and object: they were, the first, an act requiring the plaintiff to endorse upon the process the nature of his action, and directing the officer to be governed, in the service of the process, by that endorsement, in per mitting or refusing bail to the party arrested. The second was an act to restrain and punish the abuses which were practised by the officers of the law, in carrying into effect the provisions of the first. And, Sir, what were the abuses intended to be restrainca and punished And who were the officers who practised these abuses 2 The officers were lawyers, judges, bailiffs, &c. The abuses were their oppression of debtors, by fraud, corruption, perjury, bribery, and extortion. Sir, they are recited in the preamble to the law ; lawyers Empson and Dudly obtained a conspicuous infamy, and the infamous death of the gallows, for their oppressions and their crimes, in relation to civil imprisonment in the progress of its establishment. There were other persons, distinguished functionaries of the government, to whom it is not necessary to make special reference, who also expiated on the gallows the guilt of their unholy participation in the oppression of the people. Sir, there was, as I have stated, a radical discordance between the civil and political code of England ; but the civil was made, by the power of wealth and of title, to conform to the nature, spirit, and principle of the political ; the spirit of royalty, of nobility, and of the aristocracy of wealth which characterized the government, was infused into and impressed upon the civil code of the country; and it was the misfortune of the United States to adopt that system after it lost all its republican simplicity, and had been polluted, in the manner I have mentioned, by the interpolations of aristocracy. Sir, the States were, when they adopted this system, in a condition not very propitious to deliberate scrutiny. They had, in common with the other subjects of the monarch, from whose tyranny they had but just escaped, beceme familiar with civil imprisonment; they had worn the yoke so long that it had ceased to gall them ; their attention, of course, was not directed by thcir sufferings to the consideration of that subject ; and, if it had been, they had not leisure to consider it and, if they had possessed leisure, they were not in a condition favorable to the scrutinous deliberation which the subject required ; they were but just emerging from their revolutionary struggles; they had achieved their political liberty, formed their free constitutions, and, exhilarated with the joys inseparable from their triumphs, never dreamed of oppression from their civil codes ; never drea:ned that, aitinough they had conquered England, the civil code of England, which they had adopted, might reconquer them. But, Sir, that is not now our condition ; we have leisure for deliberation, and are unexcited and ought to decide whether, while calmly enjoying the political liberty achieved for, and bequeathed to us, by our revolutionary forefathers, we should continue to submit to the oppressions of civil imprisonment which they could not successfully resist. Sir, it has always seemed to me strange that we should
be so willing to adopt, and incorporate into our code, a system which was obtruded upon the people of England by the worst influences of wealth, aided by the most corrupt practices on the part of the functionaries of the government. A system that discolored the history of the times in which it was introduced, not less by the oppressions which it inflicted than by the corruptions and obliquities by which it was propagated and maintained ; a system which, while it is sustained by the power of wealth, is reprobated by the reason and humanity of all mankind. . Sir, what are the benevolent associations throughout England ; aye, all Christendom, for the relief of imprisoned debtors What the daily contributions made by even the poor and the needy, to mitigate the horrors of imprisonment for debt What but the tacit, the unceasing rebellion of reason and humanity against this wretched system Sir, we exult in our government as the freest on earth, and yet there is not a free man within it, who may not be deprived of his freedom, whenever, by any of those innumerable casualties to which all human plans are incident, he shall be rendered unable to meet his engagements. We boast of our free institutions, and yet are continually soliciting and bestowing gratuities to relieve our incarcerated fellow citizens. We refuse to abolish imprisonment for debt, while we are daily weeping over the miseries of imprisoned debtors. Strange infatuation' ' We would pour out our blood like water, to vindicate our freedom from foreign aggression, and yet cherish domestic tyranny; as if the loss of liberty were not the same, whether inflicted by the Cossacks of Russia or by our creditors at home. How long, Mr. President, is this fatal illusion to last When will the people awaken to a practical knowledge of their rights When will they become convinced that no people can be free, whatever may be the theory of their government, who permit imprisonment for debt When, Mr. President, will they learn that punctuality is not, cannot, be promoted by imprisonment That a jail is not the best school for the inculcation of correct morals When, Sir, let me ask emphatically, will they learn that the fear of corporal punishment, if it operates at all, will make slaves of those on whom it operates ? That it is the motive to action with the abject and slavish only * Sir, let me ask, with increased emphasis, when they will learn that the most effectual way to influence freemen is to address their pride-–to appeal to their conscious selfworth 2 Make punctuality a point of honor with our citizens, Mr. President, and there is nothing within the scope of their utmost energies which they will not achieve to maintain it. In that way, Sir, you will cultivate a sentiment, which, while it promotes punctuality in contracts, much more effectually than imprisonment can do, will form a guarantee for the continuance of our free institutions ; and upon which the country may rely in emergencies, more than upon any physical force which can be arrayed in its favor. Sir, let us not forgethere, and let it never be forgotten elsewhere, that the strength of a fre. government, consists essentially in moral, not in physical force. Sir, let the civil regulations engage the affections of the people, by protecting their rights, and securing them from violence and oppression of every kind. . Let them know and feel that their political condition cannot be improved by the substitution of any other form of government, and they will give perpetuity to their own. They aim to be happy, and once possessed of that form of go. vernment, and that code of laws, which conduce most to the attainment of that great end, they will support--they will perpetuate them. But they cannot be happy in a prison; they cannot be happy under a constant liability to be thrown into prison. Jax. 10, 1828. J
Imprisonment for Debt.
They cannot be happy unless they are free s and they cannot be free while they are liable to be imprisoned for debt. Therefore, Mr. President, it is necessary to the happiness of the people and the perpetuity of our institutors, that imprisonment for debt should be abolished. And, Mr. President, what valid objection—valid, did I say--what plausible objection can be alleged against the abolition of civil imprisonment It is said by one gentleman that this regulation has so connected and intertwined itself with our civil proceedings, that we cannot well foresee the injuries which its repeal may produce. That, not seeing the exact extent of its repeal, he thinks it better to let it remain. He would prefer that the process Haws of the States should be the process laws of the fede ral courts in the States respectively. In the latter sentiment I concur with him most sincerely, and shall unite with him most heartily to carry that sentiment into effect : but in the former, I cannot concur with him. While 1 admit that civil imprisonment has been mixed up with the process laws of the several States, to a very great, even to an embarrassing extent in some of the States, I cannot agree with him, that it is better to let it remain than to attempt its removal ; nor can I concur with him in the reasons which he assigns for declining the attempt to remove it. Sir, although this bill, if it should pass, cannot have the effect to abolish imprisonment for debt in the States, yet it will deny to the General Government the use of civil imprisonment in its courts. This will be a banishment of it from the courts of the United States; and I calculate much upon the moral effect of it in the States. Sir, I cannot agree to the sentiment that an existing evil shall not be removed, lest the removal of it should produce greater; government itself is an evil, and the only one which I would not remove, lest greater should follow. The best test of a good government is, that it is itself the least evil which the people suffer, and the only one which they are obliged to suffer; and that, confiding in it, they may safely remove any, and all others. That, Sir, would be my definition of a good government —of a genuine republic. What would we say of the wisdom of an individual whose face was deformed with a wart, which threatened to become a cancer, who, instead of removing it by the knife, should permit it to remain until it had become a real cancer, and so intertwined its roots with his vital organs as to render excision imprac. ticable he forbore the use of the knife, fearing that its use might produce greater evils, and must expiate his folly with his life. Sir, the destroying power of almost every evil, moral, physical, and political, consists mainly, and somewhat mysteriously, in its continuity. The condi. tion of that republic, to which the continuance of an incumbent and obvious evil has become necessary, is greatly to be deplored. Let us then, Mr. President, remove from the fair fabric of our liberty, this cancer, civilionprisonment, which deforms its aspect, and will corrode and destroy its vital structure, unless it be removed. The only plausible ground for the toleration, for a mo: ment, of civil imprisonment, is its alleged coercive effect upon the deator. But that is utterly fallacious ; for either he has, or lie has not, property. If he has, let the creditor levy his fi. fa. upon it and apply the proceeds to the payment of the debt, as far as they will go. If he has no property, then its coercion must be vain, useless, and cruel ; so that, in neither case, can it be necessary, but in both, must be cruel and useless. But here, sir, 1 may be told, that the debtor may have no property except of an equitable character, such as bank stock, bonds, 4. which cannot be seized and sold by a fi. fa. I reply, alter the law in that respect. It is easy to do so, and tach better, and more humane, to subject the equitable effects of the debtor to the execution of the creditor than to subject his body to imprisonment. I am, Mr. President, as clear, that the property of the
debtor, real, personal, and mixed, legal and equitable, should be subjected to the payment of his debts, as that his body should not be imprisoned by his creditor. No man, Mr. President, is a more zealous advocate for punctuality in contracts than I am ; but I rate personal liberty too high to subject it to the casualties to which contracts are necessarily liable. It is not that I love punctuality less, but that I love freedom more. I would, therefore, instantly, reckless of the consequences, abolish imprison. ment for debt. The evil is so much greater than any which could possibly follow its removal, that I would not for a moment hesitate to remove it. indeed upon the supposition that the evils which are predicted would cer. tainly follow, I would invite them, if I could not do better, by the instant abolition of civil imprisonment. For, Mr. President, who would not exchange a greater for a less evil : and any evil, which did not destroy lite, would be less than imprisonment, in my estimation. But, sir, I apprehend no evils from the passage of this bill ; on the contrary, I anticipate great good. What evils are to be apprehended ? None certainly that cannot be removed in like manner, by the legislative arm of the Government. And for what is the annual meeting of the Legislature, but to redress, or remove accruing grievances Sir, this pronenes in the people to bear with the ills that grieve them, rather than encounter those of which they know not, has led to the loss of their liberty, in innumerable instances. Mr. President, the people in every state of civil society, whatever may be their exterior relations, are engaged in an unceasing strife among themselves. The strife is between the wealthy and am. bitious on one side, and all the balance of the people on the other : between the few and the many; the few to live upon the labor of the many, and to rule them; the many to enjoy the fruits of their own labor and to participate in the exercise of the ruling power. The wealth of every country falls eventually into the hands of a few. This wealth is, of itself, power ; office is power ; wealth and office associated, which often happens, is a power difficult to resist. In this conflict the many have the physical force, the few have the moral power. Sir, the few are the aristocracy, the many are the people ; the people are confiding, unsuspicious, and prone to bear with things as they are ; the aristocracy, influenced by the restless spirit of avarice and the ceaseless impulses of unchastened ambition, pursue their unholy purposes with a perseverance that never tires, and with a vigilance that never sleeps. The encroachments of the aristocracy are silent, sinuous, secret, and insidious. The people, busied in the honest pursuits of life, and struggling with its casualties and inquietudes, are without the leisure to detect and often without the power, and too frequently without the inclination, to resist these encroachments upon their rights; they resist only when they are agonized by oppression, and their resistance ceases usually with their sufferings : they never pursue and exterminate the cause of their afflictions. The assailinent of their rights is impalpable and continuous; such was the character of the power and of the operations which were employed for near two centuries in subjecting the people of England to civil imprisonment. Sir, it is this power, no matter under what disguise it may present itself (and it is always masked) which the people of a free government have to fear, more than all the other powers of the earth. Sir, we are told of the danger which civil liberty has to apprehend from military chieftains ; such alarms are the usual stratagems by which aristocracy lulls the suspicion or diverts the attention of the people from its own insidious encroachments upon their liberty. Sir, this aristocracy is a very proteus; it is now a harmless civilian ; at another time it is a zealous Christian, a rigid moralist, a great lover of justice ; again it is a great patriot, influenced exclusively by a pure love of country and a great zeal to pro