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Imprisonment for Debt.

[JAN. 10, 1828.

mote its prosperity and happiness ; but its most prominent ture ; and yet, if the vanity, or the pride, of our citizens

characteristic is, an ardent love of the dear people and their dearer liberty. Now, Sir, all experience has proved that the love of aristocracy towards the people and their rights, is the love which the tiger bears to the kid, or the wolf to the lamb. No, Sir, it is not from military chieftains that liberty has anything to apprehend. The danger lies in another quorter; it is from the power of wealth, and the unholy aspirations of unchastened am, bition, that she has cause of apprehension. Do you believe, sir, that one hundred thousand bayonets, headed by by the most distinguished military chieftain, could have forced upon England this wretched system of civil imprisonment could have extorted from them, by force, the liberty which was filched from them by guile 2 No, Sir, a people in a state of civil society, enjoying freedom, and animated with the genuine spirit of liberty, have nothing to apprehend from any open assault upon their rights ; it is, I repeat, from the secret, sly, insidious operations of aristocracy, their arch-enemy, that they have every thing to fear. Sir, a republic, in which there is the living and abiding spirit of freedom, has around it a zone of inviolability, a magic cincture, (analagous to that which surrounds and protects matron excellence from the approach of the licentious,) as impenetrable as adamant. Sir, such is the shielding effect of this atmospheric panoply, that neither the republic nor the matron is ever assailed, until they have given indications that they are accessible. Neither the one nor the other is assaulted until they are prepared to yield. When the people of a republic become too effeminate, or too corrupt, for self-government, they invoke, by their very condition, rule from zome other quarter ; and none but a chieftain can accept the invitation, because none but such a character could vindicate his right to rule against other aspirants equally embraced in the invitation. Sir, they cannot deprive a free people of their self governing power ; they can only rule such a people when they have become too corrupt, or too effeminate, to rule themselves. Do you, Sir, does any intelligent man, believe, that the people of Rome possessed the capacity to govern themselves, when Julius Caesar usurped the government of that commonwealth No, Sir, if there had been virtue and vigor enough in the people of Rome for self government, Caesar would not have made the attempt ; or if he had, he would have have lost his head not loome, her liberty. When Caesar was slain, did Rome resume her freedom * No, she had lost the capacity. Sir, it was not the power of arms which enslaved the people of Rome or of England ; it was a very different and far more dangerous power—the sly, insidious, unprincipled, and unceasing power of aristocracy. Rome, too, sir, had her civil imprisonment ; and, by the constant exercise of it, taught her people lessons of vas. salage, which prepared them for the slavery which ensued. Sir, the people of this, or any other Government, will lose their reverence for personal liberty, by seeing, constantly, their neighbors or friends deprived of it. Rome was free while the sentiments of her people were in consonance with the law, which forbade stripes to be inflicted upon a Roman citizen. Sir, liberty is identified with the person of its votary ; it is inseparable from his person; it is, of course, personal ; to preserve it, you must maintain the sanctity of the persons with whom it is identified ; to secure the jewel, you must be careful of the casket which contains it. Sir, to prescrve liberty in a republic, instead of cheapening and degrading it by imprisonment for debt, the highest, the most sublimated notions of personal sanctity should be chcrished and cultivated. It is the province of the real statesman to make the frailties of men, in a state of civil society, subserve the cause of their liberty, their virtue, and their happiness, Pride and vanity rank among the weaknesses of our na.

were enlisted on the side of punctuality, who can doubt of what would be the effect Sir, the punctuality with which gaming debts are paid, is proverbial: this punctuality is not the result of civil imprisonment; for those debts cannot be recovered by law ; whence, then, I ask, this remarkable punctuality? Sir, it results from those proud feelings, from that nice sense of honor, which it is the tendency of civil imprisonment to blunt, to vitiate, to obliterate. Let us then cherish and promote, in society, those sensibilities from which results, so felicitous, may be justly expected. Sir, a senator from S. Carolina [Mr. SM1th] has told us, that creditors are, in the general, merciful and sympathetic ; and that they do not imprison their debtors cruelly or unjustly : the wealthy, he tells us, are not tyrants. The honorable senator judges of the feelings of the wealthy from his own humane sympathies. And I am willing to acknowledge, that there are many, very many instances of humanity and charity to be found among the wealthy : but these can only be regarded as creditable exceptions to the indurating effect which wealth exerts upon the feelings of those who have been long in the possession of it. Sir, if you dissect aristocracy, and examine its constituent parts, you will find the classes of which it is composed, avaricious and unfeeling ; there may and will be found, in each class, as I have said, numerous and honor. able exceptions ; but all classes, even their reverences, where they are upon good establishments, are influenced by the same unfeeling devotion to gain and to dominion, which characterized the barons, the merchants, the lawyers, the judges, and other nurslings of fortune, of whom I have spoken. Sir, who has not read of the tithe cases, and who does not know the causes which led to the enactment of the acts of mortmain Sir, it is a remarkable fact, that the laws, which authorized creditors to imprison their debtors, are very few, compared with those which have been enacted to mitigate the sufferings which have been inflicted upon debtors by the unfeeling rigor of their creditors. The great fire, which consumed London, reduced to poverty and destitution many thousand honest debtors; was the mercy, the sympathy, displayed by their creditors Why, instead of extending indulgence to their unfortunate debtors, and softening their calamities, by generous and charitable contributions, they threw them into prison, and continued them in confinement, until they were released by act of Parliament. Shall I refer the gentlemen to another instance of the sympathy of creditors, in the wretched assemblage of lacerated debtors, on the Mons Sacer at Rome 2 The history of mankind is but a history of the unfeeling and oppressive conduct of creditors towards their debtors. If you want to find sympathy, look for it anong those who have learned from their own sufferings to feel for the woes of others, Sir. the sympathies of the heart come to perfecticu only when they are bedeved by its sorrows. Talk not, then, Mr. President, of the mercy of creditors ; it is cruelty, it is tyranny : I speak of it as history exhibits it: but if it were not, is it wise to have our citizens dependent upon the mercy of their creditors for their freedom Can anything be more humiliating to the debtors as mel, or degrading to them as citizens Mr. President, let me repeat, that the strength of a State consists in the number, and its wealth in the industry, of its citizens. I have seen it stated in one of the public prints, that, during the last twelve months, there were imprisoned in the little State of Rhode Island 1 G30 debtors. Now, Sir, upon the supposition that the rennzoining twenty-three States of this Union were no larger than that small State, there must have been 25,200 free minen imprisoned within the United States, for debt alone, with. in the last twelve incinths. Suppose the price of lab or to

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Jax. 10, 1828.]

be fifty cents per day, and suppose their confinement to
average only ninety days in each year, the loss is $12,600
per day, and, for the ninety days, it is $ 1,135,000 : but
suppose that number, upon an average, to be confined
an ally, and for the whole year, then the loss in each
year would be $4,540,000, and in twenty years, would
amount to the enormous sum of $90,800,000. This loss
is a fair drawback upon the public stock. Is it not enor-
mous, and sustained without any competent motive on
the part of the Government —A loss which the Govern-
ment inflicts, under the influence of the power of wealth,
upon the poor and most meritorious portion of the corn-
munity, and through them upon itself. But the mere
loss, in dollars and cents, is but a small part of the evil,
when compared with the loss of liberty inflicted upon
25,200 citizens ; the derangement in their affairs ; the ago-
ny inflicted upon their families and friends ; and last,
though not least, the diminution of reverence produced
in the public mind, for the liberty of the citizens, by the
constant incarceration of them, and the conseq:lent ten-
dency to vassalage. Sir, your jails are schools in which
the science of slavery is taught, and exemplified by the
imprisonment of debtors. Its effects are only not alarming,
because they are not seen in the aggregate. Could they be
exhibited at one view, they would shock the public mind,
and awaken the sympathy and indignation of the whole
community. The great majority of the people require
but to know in order to do what is right; and if they
could but see even the one-half of the misery which is
daily inflicted upon debtors by the merciless rigor of their
creditors, there would be no difficulty in abolishing im-
prisonment for debt. Mr. President, it is strange that the
miseries of the imprisoned should have engaged the
attention and awakened the sympathies of the wise and
good in all countries, and that imprisonment should, not-
withstanding, be tolerated by almost all Governments:
It is surely no small argument in favor of the abolition of
imprisonment, that the miseries of that condition excited
the compassion, and drew forth expressions of tenderness
towards the imprisoned, from the lips of him who spoke
as never man spake. “I was sick and in prison, and ye
visited me not,” is a language which ought not, when we
consider whence it came, to be without its effect, in the
consideration of this subject.
Sir, if barely to have devised the means of mitigating
the sufferings of imprisoned debtors conferred immortality
upon the benevolent Howard, in what estimation ought
the creditors who inflict those sufferings to be held And,
in what estimation ought the legislatures to be held, who
conferred upon creditors the power of imprisoning their
unfortunate debtors, or tolerated its exercise Sir, I feel
some pride in being able to say, that the State which has
honored me with a seat in this body, has washed its hands
of this evil; has, by the abolition of civil imprisonment,
given freedom to her own citizens, and to all who shall
come within her borders.
Mr. President, what is the consistency of that legisla-
tion, which denies, under severe penalties, to the avarice
of creditors, the exaction from their debtors of a cent be.
yond the established rate of interest, and yet permits
them to imprison their debtors’ How can we reconcile,
on the part of legislation, this carefulness of the property,
and carelessness of the liberty of the debto.” The laws
against usury are as creditable to legislation, as those in
invor of civil imprisonment are reproachful to it. The
first secures the honest industry of the poor and the en-
*rprising against the merciless encroachments of the rich;
the latter subjects the body and the liberty of the poor to
to-avarice of the wealthy; as if liberty was of iess value
or orportance than property. Sir, why is our standing
army so small why are we opposed to having large stand-
ing armies You tell me that large standing armies are
dangerous to liberty ; if you mean any liberty but that of

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creditors, I tell you that the caution on that subject is
unnecessary : your army is reduced to 6,000, while 25,200
of your citizens have lost their liberty, and are now pining
in your prisons. Sir, your creditors, the aristocracy of
the country, are infinitely more dangerous to liberty than
a standing army of any number. Afraid that liberty may
be endangered by a large standing army 1, while you arm
every creditor with the power of depriving his debtors of
their liberty ' ' Afraid of the tyranny of a large standing
army, while you subject the liberty of your citizens to the
tyranny of exasperated avarice and inflated wealth ! You
are careful to secure the liberty of your citizens against
the uncertain power of arms, while you subject it to the
certain, the tremendous, the resistless power of avarice ;
for surely that power is tremendous and resistless, which
in a free country can imprison twenty-five thousand two
hundred innocent but unfortunate citizens per annum.
What, Mr. President, is the practical result of all this care
for the preservation of liberty 2 Is it not that the wealthy
and the prosperous are secured in their liberty, and in
the power of depriving the poor and the unfortunate of
all they possess worth preserving—their liberty Sir,
the liberty of the citizens of a republic should be subject.
ed to hazard only by their crimes. It should depend, not
upon the caprice of individuals, but upon the sovereign
power of the State, and it ought to cost the State the
exertion of its sovereign energies to deprive its humblest
citizen of his liberty. But, sir, with us, not only can any
one individual deprive another of his liberty, but there is
among us a single individual who can at any time deprive
thousands, I might say millions, of freemen of their liber.
ty. I mean the bank of the United States; it can furnish
nearly all the money which can be beneficially employed
in our commercial and other agencies throughout the
United States. All who employ or use its money must
be indebted for it, either to that institution or to those
who are indebted for it. ... It is easy to perceive, not only
the moral influence of that enormous creditor over its
debtors, but the power of actual incarceration, which it
possesses, under the existing laws. It must, or rather
may, and most certainly will, exert whatever imprisoning
power it may possess, and choose to exert, through the
instrumentality of the United States' courts; so that a cor-
porate person, created by the United States, may impri.
son ad libitum the citizens of the States who are its débt.
ors; and thus the liberty of the States, which consists in
the freedom of its citizens, may be prostrated in the im-
prisonment of its debtors to an indefinite extent by this
institution. Mr. President, this consideration ought not
to be without its weight in our deliberations upon the
effect of this bill ; nor ought it to be overlooked by those
who contend that but few cases can prise in the courts of
the United States, to which its benign provisions can ap-
ply. Sir, the cases may be innumerable, and whether
they shall or not, depends, unhappily, not upon the will
of Congress, but upon the will of that bank.
And after all, Mr. President, what is gained to mankind
by civil imprisonment 2 Do we learn from the history of
England, that the people were more happy, more wise,
more virtuous, or even more punctual, after the introduc.
tion of civil imprisonment, than before ? Not at all ; so
far as we are furnished with any lights on that subject,
we are led to the contrary conclusion. The people were
at least as punctual, as virtuous, and more happy, before
than since that period. *
The aristocracy of England had motives in the stability
and duration which the laws of primogeniture and the
doctrine of entails gave to wealth in that country, to
swell, by every practicable device, the volume of its
power ; they could promise themselves, in the durable
enjoyment and transmission of the power which wealth
confors, some equivalent, however unenviable it might
be, for the sacrifices of principle and of feeling which



Imprisonment for Debt.

[JAN. 10, 1828.

they made to acquire it; but with us, happily, there is not even that poor incentive. They could hope, while struggling to obtain the power of civil imprisonment, that they and their children could exercise it through a long line of succession; but our constitutions have wisely cut off all hopes of that kind, by placing an irreversible negative upon the aristocratic doctrines cf primogeniture, entails, and of perpetuities of every kind. Our doctrine, that the distribution, division, and mutation of wealth, is the basis of equality and liberty, ought to impress us with the folly and shortsightedness of advocating civil imprisonment ; for, with us, those who, to-day, exercise the power of imprisonment, may, to-morrow, be themselves the subjects of it ; so that in the lapse of a single century, the children of unfortunate imprisoned debtors, may imprison the children of the unfeeling creditors of their fathers. We ought to reflect, that while avarice and the bad feelings of the human heart prompt to imprisonment for debt, it is casualty and misfortune, it is, is short, the destinies, that prepare and furnish the unhappy subjects for the exercise of that cruel and unjust power. So that, Mr. President, upon a rational survey of the human condition, for any one century, it will be found, that the people of a Republic will, by civil imprisonment, have tortured themselves, abridged their liberty, and ampaired their happiness, without having at all inproved their general condition; without having become inore wise, more virtuous, more happy, or more punctual. They will not have gained, but they will have lost; lost greatly ; lost, to the amount of all the sufferings, and all the agonies, which had been thus uselessly and unavailingly inflicted upon them by their exercise of this bad imprisoning power, . But what is greatly more to be deplored, they will have lost their veneration for liberty, which, in all Republics, is the immediate precursor of the loss of liberty itself.

But, Sir, there is another consideration which ought to have great weight in this matter, and that is, that the subjects of civil imprisonment, are generally the most useful and enterprising of our citizens. The people of every State may be divided into those who live upon their capital, and those who live by their labor, or labor for their living. The capitalists are, in the general, indolent, luxurious, and effeminate, possessing neither energy nor enterprise ; they are the wealthy. The laborers, who are the poor, are hardy, resolute, and enterpris. ing ; they fell the forests, subdue the soil, and spread, under the smiles of Providence, plenty over the land ; they make the roads, and cut the canals, which so essen. tially subserve the purposes of commerce and social intercourse ; it is from their toil, and their hardinood, the commerce springs, which enriches the public coffers and sustains the Government. In fine, it is to their valor we are indebted for those victorics which have thrown around the nation the halo of glory of which we are all so justly proud. Sir, they are the gunwales and knce timbers of the vessel of state ; they are the bone and sinew of the state ; they assert, maintain, and preserve that very liber. ty which is so much abused in their very persons. Sir, I do hope, and I rejoice in the hope, that the bill now under discussion, is destined to banish this monster from the General Government, and that the States will follow the example and banish it from their respective Governments; and that, hereafter, the families and relatives of unfortunate debtors will not be compelled by the rigors of unfeeling creditors, and the connivance of the law, to abhor the Government under which they live.

Sir, I fear I have fatigued the Senate ; the importance of the question must plead my apology. I will sit down under the corsolation, that I have been advocating the rights of the unfortunate, and under the hope that my feeble exertions in their behalf will not have been unavailing.

Mr. MACON said, that, in the eye of the law and of justice, there was no difference between the debtor and the creditor. They stood on the same ground of right, and deserved protection alike. He never could see into the justice of keeping a man in jail when he had given up all he had. If he did this, what more could be asked of him If he is put in jail, what can he do He can’t work there, to earn a living and pay his debts, unless he happens to be a tailor or a shoemaker. He did not believe that all creditors were hard-hearted, nor that all debtors were fraudulent. They were likely to be faulty and frail, as human beings always were, but that was all.

I don't intend, said Mr. M. to keep you here long, because it is pretty near our dinner hour ; although we have a little time left, because we don’t get our dinners until the other House adjourns. But there are fraudulent creditors, as well as debtors, as the gentleman from Ohio said the other day about some claimants for land. For instance, how many fraudulent men are there who go about shaving notes ; and I am sure, he is as bad who shaves, as he who gets shaved—I should think, worse. Then how many men are there who lend money to young. people, and make a practice of cheating what may be called infants. They say, “Oh, your parents will pay, rather than see you disgraced.” The gentleman from Kentucky has said, that there are 1,900 prisoners for debt in the State of New York. Well, it is said, that, perhaps, most of them are in for frauds. But suppose they are ; ten righteous people might have saved Sodom and Gomorrah ; and if the gentleman from Kentucky gets out ten, that his bill applies to, he’ll do well. I am sorry the gentleman has seen fit to use the names of Jefferson and Sumpter, and tell how poor they were. I do not like to legislate under the influence of names. If a thing is right, let it go for such—if not, get rid of it. I know that gambling is common at the South, and so it is in every other part of the country where I have been. But the gentleman says that gambling debts are always paid. Yes; because they are debts of honor ; and I be. lieve many men would sell their wives' bonnets to pay them. It is said that they are debts of honor. Yes ; be. cause a man who refused to pay them, would be kicked out of the society of his associates, and nobody else will have him : so that he is obliged to make these debts debts of honor. But, it is said that this will operate only in the United States' Courts. Well ; there is just where it is wanted. Every man is known in his own State, and has friends who will go bail for him. Our people from the South chiefly go to New York, and there they can manage pretty well—but it is not so every where. I always thought that Governments were made to be rich, and what the gentleman from Kentucky said to-day, makes me believe it. Why is it, that we can’t touch Bank stock ’ Why, because it is held by the rich. It is a kind of lottery that they deal in themselves. Now, this bill will remedy that, because, if any man puts his money into bank stock, he will be coerced to give it up. We are not much troubled with lotteries at the South, though we have a great deal of horse-racing, and many fine race-horses. And for my part, I am willing that people who have money should bet upon them. The reason why this bill has been opposed on former occasions, was, that the gentleman from Kentucky was so very willing to please every body. And he reminded him of the man who, endeavoring to please all he met, lost his ass for his pains. I recollect he admitted an amendment to go into the bill, and I told him that he would lose it : but he was so anxious to carry it, that he wished to make friends to it by allowing all the propositions that were offered. I told him then that he would lose it, and he did lose it—and I am afraid it will be so now. I did not intend to say so much when I rose, as I know that long speeches are seldom welcome near dinner hour.

Jax. 11, 1828.]

Cahawba Navigation Company—Imprisonment for Debt.


Mr. TAZEWELL said, that he would merely suggest to the friends of the bill. that a question would naturally arise as to what was to be done with the unfortunate being who happened to be imprisoned. They had made T. that any one who should be imprisoned should e deprived of the benefit of the prison rules, and go within the walls of a prison. He felt this proposition perhaps a little more than others, because he had a few days since made some remarks on the operation of the law on his own State, and on the method of obtaining process on landed estates. But the answer of the gent}oman from Georgia was, that the provision applied to all persons who so invested their property as not to be subject to execution. Against them the capias ad satisfaciendum was to operate. Thus, every person in Virginia to whom his predecessors have left landed property, would be subjected to imprisonment in close jail, for no other crime than for being the heirs of their fathers. They would be placed in this predic, ment for no crime of their own, but for the law under which they happen to live. He rose to ask the gentleman whether this was the operation they intended to give the bill. Mr. BERRIEN thanked the Senator from Virginia for his aid, and his suggestions. It was in no idle or insincere spirit that the aid of his coadjutors had been asked. I shall take every means in my power to consider these suggestions. All the attention I can give them, they shall claim from me. But I must state, that the object aimed at by the friends of this bill in its plan and details, is to relieve all but those who fraudulently withhold their Property from their creditors. He felt disposed to give full consideration to the condition of the Virginia landholders, and it should be a subject of his closest investi. gation. But, as the hour had arrived, he would now move an adjournment.

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CAHAWBA NAVIGATION COMPANY. Mr. VAN BUREN, from the Committee on the Judiciary, reported a bill granting the assent of Congress to an act of the Legislature of Alabama, incorporating the Cahawba Navigation Company, without amendment. Mr. KiN G remarked, that, in explanation of this bill, he would merely say, that the Legislature of this State, considering it incumbent on them to obtain the assent of Congress—in which he, [Mr. K.] did not agree with them—to improve the waters within its limits, had instructed him to introduce this bill. The waters of the Cahawba were not now navigable, and it was highly desirable that the obstructions in that stream should be removed. It was therefore proposed to raise a toll upon the navigation, for the purpose of defraying the expense. Mr. CHANDLER said that he did not know upon what ground the consent of Congress was asked. Mr. KING further explained, that the Cahawba was a sonall stream running through Alabama, the navigation of which was necessary to enable the citizens of that State to transport their cotton to market, and bring back the necessary articles of merchandise. The State wished to know whether they had a right to levy a toll for the improvement of this stream, and to obtain the assent of Con. gress to the enterprise. Mr. VAN BUREN said that the same bill passed the Senate last year, but did not pass the House. It involved no new principle. The compact between the United States and the new States had restricted the latter from levying tolls on the streams within their limits ; and it had been customary, from time to time, to give the assent of Congress to the collection of a toll on waters not previously navigable, to defray the expense of the improvement of their navigation. The bill was then ordered to be engrossed,

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The unfinished business of yesterday was then taken up, and the bill to abolish imprisonment for debt being under consideration, on the question of engrossing for a third reading— Mr. BERRIEN moved an amendment to the sixth sec. tion, so as to make the provisions of that section operate not merely prospectively, but upon cases of actual imprisonment; which was agreed to. Mr. EA'I'ON moved an amendment to the 7th line of the 10th section, by adding, after the word “female,”, “or male of the age of 70 years or upwards.” Mr. TAZEWELL referred to the fact, that, under the existing laws, the plaintiff, after obtaining judgment, ac quires a lien on the estate of the defendant; which lien has precedence of those subsequently obtained, and enti. tles the plaintiff to be paid before those creditors who af. terwards obtain judgment are paid. But this bill takes away the lien, and reduces the plaintiff, after he has encountered all the costs and trouble of a suit, to the same level with all the other creditors. - It was, therefore, obvious that the bill, in this respect, required alteration, at least in phraseology. - - Mr. BERRIEN said that the Senator from Virginia would not have made this objection, had he fully contemplated the provisions of the bill. The case presented was this: A vigilant creditor prosecutes a suit, and compels the debtor to an assignment of all his property, and then the negligent creditors, without cost or trouble, come in, sharing rateably in the fruits of the first plaintiff's vigilance. This is the objection. But this is not the intention of the bill. The bill does not take from the plaintiff his lien on the estate of the defendant, nor does it take from him his priority in the distribution of that estate. This construction, Mr. B. said, would be found correct, on reference to the provisions of the bill. Mr. TAZEWELL did not think that the Senator from Georgia had put a right construction on the words of the bill. The lien, he said, which was acquired by the judgment, was barred by the assignment. Mr. BERRIEN further explained. Mr. TAZEW ELL was not satisfied as to the correct. ness of the construction of the Senator from Georgia. Of what use was the execution against the estate after the assignment was made. . The property no longer belonged to the debtor, but to his creditors. That is the roper construction, and will be the effect of the bill, unless its phraseology be altered. Mr. BELL rose to suggest that, in many of the States, the judgment did not give a lien on real estate. Mr. BERRIEN said that the bill adapted its provisions to the existing state of laws in the Union. Mr. JOHNSON, of Kentucky, observed, that the bill left the State laws where it found them. Those laws would regulate the lien given to creditors by judgments. Mr. McKINLEY said he found, by the 4th section of the bill, a provision for filing interrogatories, with a view to elicit disclosures as to the value of the defendant's property. But he did not perceive that these disclosures were to lead to any beneficial end. No order or proceed. ing with regard to the property was to be the result of the information obtained through the interrogatories. The property being discovered through this process, was left without any provision as to its distribution. The inquiry, therefore, as to the value, condition, and place of the defendant's property; appeared to him to be nugatory. Mr. BERRIEN said, the inquiry made by the Senator from Alabama was natural, considering that, in the State where he resided, all property, real and personal, was subject to execution. . In some States lands were subject only to be extended; in others, they were liable both to extent and sale. If, upon inquiry, by means of the interrogatories, it is found that the plaintiff has no concealed


Imprisonment for Debt.

[Jax. 11, 1828.

property, he is exempted from the operation of the ca.
sa. but if it be found that he has property, and seeks to
withhold it, the operation of the ca. sa, revives as to him.
The result of the interrogatories, then, will be, that, in
those States where land is subject to execution, the party
can take out execution against it, if the defendant has
any: and in those States where land is exempt from exe-
cution, the party plaintiff may take out an execution
against the body of the defendant. In regard to personal
property, also, the plaintiff, after the discovery of the pro-
perty, may have recourse to it, or, if it be withheld, to
the body, which he may commit to close confinement.
The plaintiff, therefore, in case of the discovery of pro-
perty withheld by the defendant, is remitted to his origi-
nal remedy, as if this bill had not been enacted.
Mr. McKINLEY was not satisfied with the explanation.
If the plaintiff incurs the expense and trouble of a Chan-
ccry suit, to ascertain whether the defendant has proper.
ty, is it proper that the proceeding should there stop
Ought not the creditor to have the power of securing, in
some way, the debt due to him How many debtors,
After final process, find means to evade their debts, and
retain their property 2. The interrogatories were in the
nature of a bill of discovery; and he was in hopes that
they were intended for the double purpose of securing
the rights of the creditor and the debtor.
Mr. BERRIEN intended, when up before, to add, in
answer to the Senator from Alabama, that, if the bill pro-
vided that all property discovered by the courts of inter-
rogatories should be given up to the plaintiff, it would
conflict with the laws of those States where lands are not
subject to execution for debt.
Mr. TAZEWELL should not, he said, say any thing in
relation to the effect of the bill on those creditors who
have gone through with its double process. He had now
risen to offer an amendment to the bill, by striking out
the 9th section, which provides “that in all cases where
the body of any person shall be subject to imprisonment
by the provisions of this act, such person shall be deprived
of the benefit of prison bounds, and kept in close citstody
until discharged by due course of law.” He had already
stated the effect which the provision would have in one
State, Virginia; and gentlemen from other parts of the
country would apply it to the States which they repre-
sented. The effect of the provision in Virginia would be
to incarcerate every landholder sued in the courts of the
United States. To inherit land in a State where land was
exempted from execution, was made a crime; and the
debuor landholder must go into close confinement.
Mr. BERRIEN trusted that the motion would not pre-
vail. The principle of the bill is to secure to the honest
debtor exemption from imprisonment. Let us take a case
and see how the bill will apply to it. A debtor has land
in a State where land is not subject to execution ; he keeps
his property in this manner invested, in order to debar the
creditor from his claim ; and the plaintiff is then, by this
bill, remitted to his original remedy by a writ of capias
ad satisfaciendum. Then comes in the 9th section of the
bill, providing that the debtor shall be kept in custody
till he shall make an assignment of his property for the
payment of his debts. Is it his fault that he is the inhe.
ritor of lands 2 No; but it is his fault that he withholds
them from his creditors. If the debtor was fraudulent, it
was argued on all hands that he should be coerced by im.
prisonment. . Where property was not secured in lands,
it was sometimes secured by covering the title; and did
not concealinent or cover of property present a case of
fraud? In all these cases the present laws enable a debtor |

to keep his property, and take the benefit of the prison bounds.

He insisted that it was right that debtors, being and crime.

been recognised by the Circuit Court of the United States,
sitting in that State, as that law had been enacted prior
to the formation of the Constitution of the United States.
The prison bounds in Virginia, therefore, extended to
fines issuing on process of the United States' courts, which
was not the case in other States.
The only means of enforcement is close confinement.
In the cities, particularly where, with money, society and
amusements could be found within the bounds, imprison-
ment is nugatory to the rich. They may, with thousands
in possession, live in ease and luxury, in a merely nominal
confinement. This bill not only mitigates imprisonment
for debt, in cases where the debtor is honest, but it has
the further effect to render imprisonment inore efficient,
in cases where that process is properly used.
Mr. TAZEWELL said, that the bill purported to miti-
gate or abolish imprisonment for debt; and also to render
such imprisonment infinitely more severe. It made the
inheritance and possession of land criminal, and punished
it as such and, perhaps, (if it was so, he should like to
have it avowed,) it has the further purpose to force a re-
peal of the ancient laws of the State which he represented.
The gentleman from Georgia says, that, after judgment
is pronounced against the landholder, he ought to sell–
this might do in a State where a large amount of money
is circulated, and where there is a great demand and
ready sale for land ; and such was, perhaps, the case in
the State of Georgia: if it was so, he was glad of it. But
such, he assured the gentleman, was not the case in Vir.
ginia, nor in any other merely agricultural county that
he ever heard of But who, he would ask, would pur-
chase the land under such incumbrances as the bill in-
posed on it It is to be sold subject to all the claims of
all his creditors; and who will buy before the amount of
these claims are ascertained and fixed In the first place,
the debtor, under this law, though guilty of no fraud, nor
folly, is imprisoned, and denied bail; he would relieve

himself by the sale of his land, if he could sell it, but that

necessarily requires time ; and, moreover, nobody will
purchase the land, for reason of the lien on it. His anxiety
for the preservation of faith in contracts was as great as
that of the Senator from Georgia. Fides servanda est,
was a maxim which should prevail in all public and pri-
vate transactions. Personal liberty was valuable ; but it
would be purchased at too dear a price, if acquired at the
expense of good faith. He asked for the ayes and noes
on his motion to amend. -
Mr. BERRIEN rose to make a single suggestion. If a
defendant have property not liable to execution, but bound
by the judgment, it is said that he will be subject to close
Čonfinement, unless he sells or assigns his property. This
difficulty did not in fact exist. If the property was suffi-
cient to meet the debt, it could be sold : for what would
hinder purchasers from taking it at a fair price, in which
the liens should be included? Whenever he relinquisines
his property to his creditors, that moment he is free. . If
he does not relinquish it, the plaintiff is restored to his
original rights.
Mr. VAN BUIREN said, that we owe it to the country
to dispose, without delay, of this subject, which, for six
years, has consumed so much of our time. In the first
discussion on this subject, it was contended that the rights
of the creditor were impaired by the provisions of the bill ;
it is now said of the same bill and provisions, that they
give too great a power to the creditor over the debtor.
Now, Sir, how stands it? The provision objected to, is,
in my opinion, the most salutary contained in the bill, and
both debtors and creditors would probably concur in tile
opinion. The provision draws a distinction between debt
It subjects no one to imprisonment except

able but unwilling to pay their debts, should be coerced those who, having the ability, want the inclination to Po: by close confinement, whatever may be the laws of the their just debts. The bill provides that no one should States. The insolvent law of Virginia had, he believed, be imprisoned on mesne process, except those who are

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