3 49 JAN. 10, 1828.] cent citizens. Imprisonment for Debt. 50 [SENATE. principle, to regulate his selfish and his social acts, by the will of his Creator, as disclosed in the volume of nature, brightened by the great torch of revelation. How absurd that the failure to pay a debt, according to contract, imthen is it to suppose, that indebtedness implies guilt; blies 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 superadding 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? 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 ought not. Sir, 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 not to be imputed to debtors; that indebtedness is not a Sir, I have been labouring to shew that guilt ought upon the guilty. The use of imprisonment, in the case of crime; that the failure of debtors is not, in the general, debtors, is an abuse of it in relation to criminals. President, liberty is the jewel of a republic; it is the gol-sition that I am wrong, in all my views, upon this subject, Mr. matter of choice, but of necessity: but, upon den chain which connects life with property without and that to be indebied is a crime; to whom, let me ask, the suppoliberty, property cannot be acquired, or enjoyed; life, does it belong to ascertain and punish the offence? Sure. without liberty, is dull mechanism; it is respiration; it is ly not to the creditor! The public interest requires that vegetation ; a condition to which no State should permit every offender should be punished; and justice requires any of its citizens to be reduced, but upon the most urgent that the punishment should, in every instance, be propor. necessity; in a republic no such necessity can exist; on tioned to the offence. Now the guilt of the debtor was the contrary, there is in such a government, a necessity incurred, either in contracting the debt, or in failing to that such a condition should not be permitted to exist; comply with his contract. If in contracting the debt, then nothing but the power of defending itself against the ef- the creditor participated equally with the debtor, in the fects of crime can justify imprisonment, in a free govern- guilt of the transaction; for it takes two, at least, to make ment. Freedom is a mere illusion, a mockery in any go- a contract-and being equally guilty, should be equally vernment, which permits the imprisonment of its inno- punished; and if imprisonment is a just punishment for Surely, Mr. President, it will not be asserted, by the creditor also ;-and we know, from observation, that the the guilt of the debtor, it should be inflicted upon the advocates of imprisonment for debt, that the mere act of moral guilt of the creditor, if there be guilt in the transacbeing indebted, or of failing to pay a debt, according to tion, is frequently greater than that of the debtor. The contract, is a crime. That there is much perfidy, insin- credit is always extended in the hope of gain, and not cerity, and even fraud, practised by many debtors, must unfrequently of inordinate gain. The debtor, in many inbe admitted by every man of observation. But that all stances, is led to contract the debt by the urgency of his debtors, or even a majority of them, are fraudulent, must be denied by all, who are not prepared to blush that they cbtain an extravagant price for his commodity, or an inwants. The creditor takes advantage of that urgency, to are men. Sir, the fact that a majority of mankind are dis-ordinate usury for his forbearance; he usually pays himposed to act honestly, in their transactions, is as consoling to the philanthropist, as the fact, that there are some dishonest and fraudulent, is mortifying. 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. bonesty is the best policy," has the foundation of its truth, The maxim "that his organic structure. It has the sanction of his judg. ment, not less than the bias of his nature; he is naturally selfish, and led by that principle in search of his happiness: he is social in his nature, and led by that principle, to regard, in the pursuit of his own happiness, that of his neighbour : he is religious in his nature, and led by that VOL. IV.-4 L self, for whatever risk he incurs, in the advantage which not imprison his debtor; if he be avaricious, and his deb. SENATE.] Imprisonment for Debt. [JAN. 10, 1828. hand of an equal, its effect is lost, and its power contem-tained amongst men ; a system most happily suited to sened and defied. The object of all punishment is reform. cure the personal liberty and promote the happiness of The few are punished, in all wise governments, that the men, in all the conditions and relations to which they are many may be restrained and reformed; but what reform-incident, in a state of civil society: the only system which ation has been wrought in this country, or in England, by can, without the violation of modesty, exult in the boast, the punishment of imprisonment for debt, during the last "that it is the perfection of reason." three hundred years? To what extent has the guilt of incurring debt been restrained, by permitting creditors to imprison their debtors, during all that time? 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, I, like the gentlemen who oppose me, claim the support of the common law upon this question; the gentlemen 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 Sir, if you consider the debtor as a criminal, and im- the debtor from his family, and immure him in a prison, prisonment as the punishment of his crime, you cannot but it exempted the beasts of the plough from the exe help perceiving, that the punishment is as unavailing as it cution of the creditor, for the support of the family of is unnatural and cruel. But, again, if it is a crime to be the debtor. And in this we see, not only the reason but indebted, why deprive the debtor of the privilege of every, the humanity of that wise system. Sir, it cannot be sup even the most abhorred, culprit? Why do you invert the posed that the creditor, in the contract, contemplated presumption of innocence, which shields the accused from the body of the debtor as the fund out of which his mopunishment, until his guilt is proved, and presume himney was to be made; he surveyed the condition of his guilty without proof? Sir, when the debtor is imprisoned debtor, and inferred his solvency from his possessions, upon original or mesne process; even the fact of his be- not from his person. The common law rated the personing indebted, is not ascertained, is not proved, nor does al liberty of the subject above all price. One of its most the law require any proof of it,-it takes the word of the favorite maxims is, "that the least corporal punishment creditor for that fact; he brings his suit, and directs im- is greater than the greatest possible amercement." It prisonment, if bail cannot be obtained, and it is done ac would not, therefore, permit the creditor to take the cordingly. Sir, is there a people on earth, having any body of the debtor, instead of his property; to violate love of liberty, any pretensions to freedom, who would his contract by the violation of the personal sanctity and submit long and calmly to such a state of things? 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 mistaken, if they will permit me to say so, statutory interpolations into that system, for the system itself. The antiquity of these statutory inroads upon the symmetry of that most excellent system, was well calculated to superinduce the error into which these learned Senators have fallen. Again, upon the admission which has been made for the sake of the argument, that debt is a crime, the debtor has a right, under the constitution, "to a speedy and impartial trial by a jury of his peers, from the vicinage, 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 Sir, if the States in this Union had adopted the comnot, with or without a trial, be imprisoned by his creditor. mon law, the whole common law, and nothing but the Mr. President, we are told by some of the opponents of common law, imprisonment for debt would have been this bill, that they have a great veneration for the common unknown in our land, and they would have possessed a law, and are unwilling to make the innovation upon it, code of law as favorable to civil freedom as their Consti which this bill contemplates; that imprisonment for debt, tutions were suited to political liberty. The common is a common law regulation, which has existed for ages, law, before it was defiled by statutory innovations, might and been sanctioned by the intelligence of mankind, dur have been admired as the impenetrable Ægis of civil li ing all that time; and they urge the long continuance of berty. But the States, in adopting it, adopted with it the rule, as conclusive evidence of its wisdom. Sir, it is the statutes of England, in furtherance (as they were certainly true of the common law, that it is a very ancient, miscalled) of its provisions; and the great misfortune is, and a very wise system, and that its antiquity is no small that those statutes, and the judicial interpretations, or ra evidence of its wisdom. But has imprisonment for debt ther, in many instances, perversions of them, are mistak the authority of the common law in its favour? Is it of en for the common law itself. Sir, it was not until the common law origin? If I believed it was, I, like the genreign of the third Henry, that civil imprisonment was tlemen who have advanced the sentiment, should be slow to question its wisdom; I should hesitate before I consent ed to abrogate it; for I 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 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 account to their lords, if they withdrew themselves, and JAN. 10, 1828.] Imprisonment for Debt. had no lands or tenements, whereby they might be distrained upon by the common writ 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 ance :-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 or tenements. 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 aver sion 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, if, having 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. [SENATE. 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 ba ron, 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 vene. ration 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 imprison. ment 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. Be. fore 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 indulg ed with this immunity; for, in the reign of Henry the Sir, it was reserved for the power of wealth, in a more Eighth, imprisonment was extended by act of Parlia active and diffused state, to give more extended effect to ment to them; and thus ended the freedom of the peothis unhallowed innovation upon the liberty of the sub-ple of England, after a struggle of more than one hun ject; the wealth of the barous consisted mainly in lands : | dred and fifty years; a struggle as glorious as it was it was as inoperative as it was unwieldy. The love of protracted. Mr. President, in what other country was Liberty with which agriculture inspires its practical vota- such a conflict ever witnessed; a conflict between the ries, was too strong to be extinguished by the sluggish aristocracy and the people of a State, continued for power of baronial wealth; public sentiment was not pre- nearly two centuries, without intermission! The assailpared to sanction the perversion of the powers of the go-ants never pausing in their pursuit, while any thing was vernment, to the destruction of the liberties of the people. left to be achieved by perseverance; the assailed neIt remained for the more active power of commercial ver ceasing to resist, while any thing was left them wealth to carry, at a subsequent period, the principle of to defend. Sir, when this conflict commenced, the imprisonment for debt, one step farther than it had been people of England were free; their civil code was the pushed by the influence of the barons. They had ob-freest and the wisest in the world; their political code tained the power of imprisoning their bailiff's only. The was a compound of monarchy, aristocracy, and republimerchants obtained the passage of an act of parliament, in canism. The common law, so far as it related to perthe reign of Edward the First, authorizing them to im-sonal rights, was a purely republican system, and suited prison their debtors. This matter, Mr. President, was the representative principle, which was the republican gup and carried through Parliament as a tariff measure. feature in the political, or organic law of the kingdom; That weak Prince seemed to have entered, most heartily, such was the effect of the freedom of their civil, united into the views of the coalition ;-yes, Sir, a coalition be- with the representative principle of their political code, tween the barons and the merchants, to humble the proud as to make their government practically republican, while spirit of freedom in that country. By the influence of it was, in theory, a monarchy. It was substantially a rethe coalition, the Parliament taxed the liberty of the sub-public in the mask of a monarchy, and the strong and ject, to promote the spirit of mercantile enterprize, and protracted resistance made by the people to the enencourage merchandize in the kingdom; that was the croachments of the aristocracy upon their liberty, by the avowed reason for passing this law. It was in the pro-infliction of civil imprisonment, resulted from the harmo cess of taxing one interest to encourage another, under ny of the principles of the common law, with the reprecolor of regulating the labor and the interests of all classes sentative feature of their government; and of both with of the community, that the liberty of the debtor was sa- the natural and civil rights of man. The political freerificed to the avarice of the creditor; the freedom of dom of England, so far as it depended upon the repreThe poor to the cupidity of the rich. The law obtained sentative principle in her constitution, still remains, but by the barons against their bailiffs, backed by the con- the civil freedom of that country expired when the stairated power of all descriptions of wealth, had, by tute of Henry the Eighth received the royal sanction ; secret, but unceasing operation upon public sentiment, from that moment every man in England with the exprepared it for the enaction of the law in favor of mer-ception of the nobles, who never were subject to civil SENATE.] Imprisonment for Debt. 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. [JAN. 10, 1828. 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. ments. 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 aggres sion, 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? 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 sta- Sir, what are the benevolent associations throughout tutes, passed in relation to civil imprisonment; not in the England; aye, all Christendom, for the relief of impris spirit of the acts which established it, but to mitigate the oned debtors? What the daily contributions made by rigor of that spirit; permit me barely to refer to their even the poor and the needy, to mitigate the horrors of import and object: they were, the first, an act requiring imprisonment for debt? What but the tacit, the unceasthe plaintiff to endorse upon the process the nature of ing rebellion of reason and humanity against this wretched his action, and directing the officer to be governed, in system? Sir, we exult in our government as the freest on the service of the process, by that endorsement, in per earth, and yet there is not a free man within it, who may mitting or refusing bail to the party arrested. The senot be deprived of his freedom, whenever, by any of those cond was an act to restrain and punish the abuses which innumerable casualties to which all human plans are inciwere practised by the officers of the law, in carrying in-dent, he shall be rendered unable to meet his engageto effect the provisions of the first. And, Sir, what were the abuses intended to be restrained and punished? And who were the officers who practised these abuses? 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. Make punctuality a point of honor with our citizens, They had, in common with the other subjects of the Mr. President, and there is nothing within the scope of monarch, from whose tyranny they had but just escaped, their utmost energies which they will not achieve to become familiar with civil imprisonment; they had worn maintain it. In that way, Sir, you will cultivate a sentithe yoke so long that it had ceased to gall them; their ment, which, while it promotes punctuality in contracts, attention, of course, was not directed by their sufferings much more effectually than imprisonment can do, will to the consideration of that subject; and, if it had been, form a guarantee for the continuance of our free instituthey had not leisure to consider it; and, if they had pos- tions; and upon which the country may rely in emergensessed leisure, they were not in a condition favorable to the cies, more than upon any physical force which can be scrutinous deliberation which the subject required; they arrayed in its favor. Sir, let us not forget here, and let it were but just emerging from their revolutionary strug-never be forgotten elsewhere, that the strength of a fre gles; they had achieved their political liberty, form-government, consists essentially in moral, not in physical ed their free constitutions, and, exhilarated with the force. joys inseparable from their triumphs, never dreamed of Sir, let the civil regulations engage the affections of oppression from their civil codes; never dreamed that, the people, by protecting their rights, and securing them although they had conquered England, the civil code of from violence and oppression of every kind. Let them England, which they had adopted, might reconquer know and feel that their political condition cannot be them. But, Sir, that is not now our condition; we have improved by the substitution of any other form of govern leisure for deliberation, and are unexcited and ought to ment, and they will give perpetuity to their own. They decide whether, while calmly enjoying the political liber- aim to be happy, and once possessed of that form of go. ty achieved for, and bequeathed to us, by our revolu-vernment, and that code of laws, which conduce most to tionary forefathers, we should continue to submit to the the attainment of that great end, they will support--they oppressions of civil imprisonment which they could not will perpetuate them. successfully resist. Sir, it has always seemed to me strange that we should 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? But they cannot be happy in a prison; they cannot be happy under a constant liability to be thrown into prison, JAN. 10, 1828.] Imprisonment for Debt. [SENATE. instantly, reckless of the consequences, abolish imprison- They cannot be happy unless they are free; and they debtor, real, personal, and mixed, legal and equitable, cannot be free while they are liable to be imprisoned for should be subjected to the payment of his debts, as that debt. Therefore, Mr. President, it is necessary to the his body should not be imprisoned by his creditor. No happiness of the people and the perpetuity of our insti- man, Mr. President, is a more zealous advocate for punctutions, that imprisonment for debt should be abolished.tuality in contracts than I am; but I rate personal liberty And, Mr. President, what valid objection-valid, did I too high to subject it to the casualties to which contracts say--what plausible objection can be alleged against the are necessarily liable. It is not that I love punctuality abolition of civil imprisonment? It is said by one gentle-less, but that I love freedom more. I would, therefore, man 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 laws 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 I 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, 1evils are to be apprehended? None certainly that cannot cannot agree with him, that it is better to let it remain be removed in like manner, by the legislative arm of the than to attempt its removal; nor can I concur with him Government. And for what is the annual meeting of in the reasons which he assigns for declining the attempt the Legislature, but to redress, or remove accruing griev to remove it. Sir, although this bill, if it should pass, ances? Sir, this pronenes in the people to bear with the cannot have the effect to abolish imprisonment for debt ills that grieve them, rather than encounter those of in the States, yet it will deny to the General Govern- which they know not, has led to the loss of their liberty, ment the use of civil imprisonment in its courts. This in innumerable instances. Mr. President, the people in will be a banishment of it from the courts of the United every state of civil society, whatever may be their exteStates; and I calculate much upon the moral effect of it rior relations, are engaged in an unceasing strife among in the States. Sir, I cannot agree to the sentiment that themselves. The strife is between the wealthy and am an existing evil shall not be removed, lest the removal of bitious on one side, and all the balance of the people on it should produce greater; government itself is an evil, and the other: between the few and the many; the few to the only one which I would not remove, lest greater should live upon the labor of the many, and to rule them; the follow. The best test of a good government is, that it many to enjoy the fruits of their own labor and to partiis itself the least evil which the people suffer, and the cipate in the exercise of the ruling power. The wealth only one which they are obliged to suffer; and that, con- of every country falls eventually into the hands of a few. fiding in it, they may safely remove any, and all others. This wealth is, of itself, power; office is power; wealth That, Sir, would be my definition of a good government and office associated, which often happens, is a power -of a genuine republic. What would we say of the wis difficult to resist. In this conflict the many have the dom of an individual whose face was deformed with a physical force, the few have the moral power. Sir, the wart, which threatened to become a cancer, who, instead few are the aristocracy, the many are the people; the of removing it by the knife, should permit it to remain people are confiding, unsuspicious, and prone to bear until it had become a real cancer, and so intertwined its with things as they are; the aristocracy, influenced by routs with his vital organs as to render excision imprac- the restless spirit of avarice and the ceaseless impulses of ticable? he forbore the use of the knife, fearing that its unchastened ambition, pursue their unholy purposes with use might produce greater evils, and must expiate his a perseverance that never tires, and with a vigilance that folly with his life. Sir, the destroying power of almost never sleeps. The encroachments of the aristocracy are every evil, moral, physical, and political, consists mainly, silent, sinuous, secret, and insidious. The people, busied and somewhat mysteriously, in its continuity. The condi- in the honest pursuits of life, and struggling with its cation of that republic, to which the continuance of an in-sualties and inquietudes, are without the leisure to detect cumbent and obvious evil has become necessary, is greatly and often without the power, and too frequently without to be deplored. Let us then, Mr. President, remove the inclination, to resist these encroachments upon their from the fair fabric of our liberty, this cancer, civil im-rights; they resist only when they are agonized by opprisonment, which deforms its aspect, and will corrode pression, and their resistance ceases usually with their and destroy its vital structure, unless it be removed. sufferings; they never pursue and exterminate the cause The only plausible ground for the toleration, for a mo- of their afflictions. The assailment of their rights is imment, of civil imprisonment, is its alleged coercive effect palpable and continuous; such was the character of the upon the debtor. But that is utterly fallacious; for either power and of the operations which were employed for he has, or he has not, property. If he has, let the cre-hear two centuries in subjecting the people of England ditor 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 crucl; 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, &c. 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 much 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 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 appre hend 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. |