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SENATE.]

Imprisonment for Debt.

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[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 were enlisted on the side of punctuality, who can doubt Now, Sir, all experience has of what would be the effect? Sir, the punctuality with their dearer liberty. proved that the love of aristocracy towards the people which gaming debts are paid, is proverbial: this puncand their rights, is the love which the tiger bears to the tuality is not the result of civil imprisonment; for those kid, or the wolf to the lamb. No, Sir, it is not from debts cannot be recovered by law; whence, then, I ask, military chieftains that liberty has any thing to apprehend. this remarkable punctuality? Sir, it results from those The danger lies in another quarter; it is from the power proud feelings, from that nice sense of honor, which it is Let us then cherish and promote, in society, of wealth, and the unholy aspirations of unchastened am- the tendency of civil imprisonment to blunt, to vitiate, to bition, that she has cause of apprehension. Do you be- obliterate. lieve, sir, that one hundred thousand bayonets, headed by those sensibilities from which results, so felicitous, may be by the most distinguished military chieftain, could have justly expected. Sir, a senator from S. Carolina [Mr. SMITH] has told us, forced upon England this wretched system of civil imprisonment? could have extorted from them, by force, the that creditors are, in the general, merciful and sympatheThe liberty which was filched from them by guile? No, Sir, tic; and that they do not imprison their debtors cruelly or a people in a state of civil society, enjoying freedom, and unjustly the wealthy, he tells us, are not tyrants. animated with the genuine spirit of liberty, have no honorable senator judges of the feelings of the wealthy thing to apprehend from any open assault upon their from his own humane sympathies. And I am willing to rights; it is, I repeat, from the secret, sly, insidious ope- acknowledge, that there are many, very many instances rations of aristocracy, their arch-enemy, that they have of humanity and charity to be found among the wealthy; every thing to fear. Sir, a republic, in which there is but these can only be regarded as creditable exceptions to the indurating effect which wealth exerts upon the the living and abiding spirit of freedom, has around it a zone of inviolability, a magic cincture, (analagous to that feelings of those who have been long in the possession of which surrounds and protects matron excellence from it. Sir, if you dissect aristocracy, and examine its conthe approach of the licentious,) as impenetrable as ada- stituent parts, you will find the classes of which it is commant. Sir, such is the shielding effect of this atmosphe-posed, avaricious and unfeeling; there may and will be ric panoply, that neither the republic nor the matron is found, in each class, as I have said, numerous and honorever assailed, until they have given indications that they able exceptions; but all classes, even their reverences, are accessible. Neither the one nor the other is assault- where they are upon good establishments, are influenced ed until they are prepared to yield. When the people by the same unfeeling devotion to gain and to dominion, of a republic become too effeminate, or too corrupt, for which characterized the barons, the merchants, the lawself-government, they invoke, by their very condition, yers, the judges, and other nurslings of fortune, of whom rule from some other quarter; and none but a chieftain I have spoken. 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 them. selves, when Julius Cæsar usurped the government of that commonwealth? No, Sir, if there had been virtue and vigor enough in the people of Rome for self government, Cæsar would not have made the attempt; or if he had, he would have have lost his head; not Rome, her liberty.rous and charitable contributions, they threw them into When Cæsar 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.

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; what was the mercy, the sympathy, displayed by their credit. ors? Why, instead of extending indulgence to their unfortunate debtors, and softening their calamities, by gene

their own sufferings to feel for the woes of others. Sir,
Talk not, then, Mr.
the sympathies of the heart come to perfection only when
they are bedewed by its sorrows.
President, of the mercy of creditors; it is cruelty, it is ty
ranny 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 any thing
be more humiliating to the debtors as me, or degrading
to them as citizens?

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 creditThe history of mankind is ors, in the wretched assemblage of lacerated debtors, on the Mons Sacer at Rome? but a history of the unfeeling and oppressive conduct of Rome, too, sir, had her civil imprisonment; and, by the creditors towards their debtors. If you want to find sym constant exercise of it, taught her people lessons of vas-pathy, look for it anong those who have learned from 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 vetary; 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 preserve 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 cherished 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

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 1050 debtors. Now, Sir, upon the supposition that the remain. ing twenty-three States of this Union were no larger than that small State, there must have been 25,200 freemen imprisoned within the United States, for debt alone, with in the last twelve months. Suppose the price of labor to

Jan. 10, 1828.]

Imprisonment for Debt.

[SENATE.

be fifty cents per day, and suppose their confinement to creditors, I tell you that the caution on that subject is average only ninety days in each year, the loss is $12,600 unnecessary; your army is reduced to 6,000, while 25,200 per day, and, for the ninety days, it is $1,135,000: but of your citizens have lost their liberty, and are now pining suppose that number, upon an average, to be confined in your prisons. Sir, your creditors, the aristocracy of andually, and for the whole year, then the loss in each the country, are infinitely more dangerous to liberty than year would be $ 4,540,000, and in twenty years would a standing army of any number. Afraid that liberty may amount to the enormous sum of $90,800,000. This loss be endangered by a large standing army!! while you arm is a fair drawback upon the public stock. Is it not enorrous, and sustained without any competent motive on their liberty!! Afraid of the tyranny of a large standing every creditor with the power of depriving his debtors of the part of the Government?-A loss which the Govern- army, while you subject the liberty of your citizens to the ment inflicts, under the influence of the power of wealth, tyranny of exasperated avarice and inflated wealth! You upon the poor and most meritorious portion of the community, and through them upon itself. But the mere the uncertain power of arms, while you subject it to the are careful to secure the liberty of your citizens against loss, in dollars and cents, is but a small part of the evil, certain, the tremendous, the resistless power of avarice ; when compared with the loss of liberty inflicted upon for surely that power is tremendous and resistless, which 25,200 citizens; the derangement in their affairs; the ago-in a free country can imprison twenty-five thousand two ny inflicted upon their families and friends; and last, hundred innocent but unfortunate citizens per annum. though not least, the diminution of reverence produced What, Mr. President, is the practical result of all this care in the public mind, for the liberty of the citizens, by the for the preservation of liberty? Is it not that the wealthy constant incarceration of them, and the consequent ten- and the prosperous are secured in their liberty, and in dency to vassalage. Sir, your jails are schools in which the power of depriving the poor and the unfortunate of the science of slavery is taught, and exemplified by the all they possess worth preserving—their liberty? Sir, imprisonment of debtors. Its effects are only not alarming, the liberty of the citizens of a republic should be subjectbecause they are not seen in the aggregate. Could they be ed to hazard only by their crimes. It should depend, not exhibited at one view, they would shock the public mind, upon the caprice of individuals, but upon the sovereign and awaken the sympathy and indignation of the whole power of the State, and it ought to cost the State the community. The great majority of the people require exertion of its sovereign energies to deprive its humblest but to know in order to do what is right; and if they citizen of his liberty. But, sir, with us, not only can any could but see even the one-half of the misery which is one individual deprive another of his liberty, but there is daily inflicted upon debtors by the merciless rigor of their among us a single individual who can at any time deprive creditors, there would be no difficulty in abolishing im- thousands, I might say millions, of freemen of their liberprisonment for debt. Mr. President, it is strange that the ty. I mean the bank of the United States; it can furnish miseries of the imprisoned should have engaged the nearly all the money which can be beneficially employed attention and awakened the sympathies of the wise and in our commercial and other agencies throughout the good in all countries, and that imprisonment should, not- United States. withstanding, be tolerated by almost all Governments. be indebted for it, either to that institution or to those All who employ or use its money must It is surely no small argument in favor of the abolition of who are indebted for it. It is easy to perceive, not only imprisonment, that the miseries of that condition excited the moral influence of that enormous creditor over its the compassion, and drew forth expressions of tenderness debtors, but the power of actual incarceration, which it towards the imprisoned, from the lips of him who spoke possesses, under the existing laws. It must, or rather as never man spake. "I was sick and in prison, and ye may, and most certainly will, exert whatever imprisoning visited me not," is a language which ought not, when we power it may possess, and choose to exert, through the consider whence it came, to be without its effect, in the instrumentality of the United States' courts; so that a corconsideration of this subject. son ad libitum the citizens of the States who are its debtporate person, created by the United States, may impriors; and thus the liberty of the States, which consists in the freedom of its citizens, may be prostrated in the imprisonment of its debtors to an indefinite extent by this institution. to be without its weight in our deliberations upon the Mr. President, this consideration ought not effect of this bill; nor ought it to be overlooked by those who contend that but few cases can arise in the courts of the United States, to which its benign provisions can apply. 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.

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.

by civil imprisonment? Do we learn from the history of And after all, Mr. President, what is gained to mankind England, that the people were more happy, more wise, more virtuous, or even more punctual, after the introduction 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.

Mr. President, what is the consistency of that legislation, 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 debtor? The laws against usury are as creditable to legislation, as those in favor of civil imprisonment are reproachful to it. The first secures the honest industry of the poor and the enterprising against the merciless encroachments of the rich; and duration which the laws of primogeniture and the The aristocracy of England had motives in the stability the latter subjects the body and the liberty of the poor to doctrine of entails gave to wealth in that country, to the avarice of the wealthy; as if liberty was of iess value swell, by every practicable device, the volume of its importance than property. Sir, why is our standing power; they could promise themselves, in the durable army so small? why are we opposed to having large stand-enjoyment and transmission of the power which wealth ing armies? You tell me that large standing armies are confers, some equivalent, however unenviable it might dangerous to liberty; if you mean any liberty but that of be, for the sacrifices of principle and of feeling which

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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 impaired their happiness, without having at all improved their general condition; without having become more 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 im prisoning 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 victories which have thrown around the nation the halo of glory of which we are all so justly proud. Sir, they are the gunwales and knee 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 consolation, 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.

[JAN. 10, 1828.

If a

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 cre. ditors, 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. 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 specches are seldom welcome near dinner hour.

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65

JAN. 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 provision that any one who should be imprisoned should be 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 gentleman from Georgia was, that the provision applied to all persons who so invested their property as not to be subject to execu tion. 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 predicament 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 investigation. But, as the hour had arrived, he would now move an adjournment.

FRIDAY, JANUARY 11, 1828.

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. KING 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. Cahawba were not now navigable, and it was highly deThe waters of the sirable 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 small 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. know whether they had a right to levy a toll for the imThe State wished to provement 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.

VOL. IV-5

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IMPRISONMENT FOR DEBT. up, and the bill to abolish imprisonment for debt being under consideration, on the question of engrossing for a The unfinished business of yesterday was then taken third reading

tion, so as to make the provisions of that section operate Mr. BERRIEN moved an amendment to the sixth sec. not merely prospectively, but upon cases of actual imprisonment; which was agreed to.

the 10th section, by adding, after the word "female," Mr. EATON moved an amendment to the 7th line of "or male of the age of 70 years or upwards."

existing laws, the plaintiff, after obtaining judgment, ac Mr. TAZEWELL referred to the fact, that, under the 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 afterwards 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, obleast in phraseology. vious that the bill, in this respect, required alteration, at

would not have made this objection, had he fully contemMr. BERRIEN said that the Senator from Virginia plated 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." tion of the bill. The bill does not take from the plaintiff his lien on the estate of the defendant, nor does it take This is the objection. But this is not the intenfrom 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 ment, was barred by the assignment. bill. The lien, he said, which was acquired by the judg

Mr. BERRIEN further explained.

Of

Mr. TAZEWELL was not satisfied as to the correctwhat use was the execution against the estate after the ness of the construction of the Senator from Georgia. assignment was made. The property no longer belonged to the debtor, but to his creditors. That is the proper construction, and will be the effect of the bill, unless its phraseology be altered.

the judgment did not give a lien on real estate.
Mr. BELL rose to suggest that, in many of the States,
to the existing state of laws in the Union.
Mr. BERRIEN said that the bill adapted its provisions

left the State laws where it found them. Those laws
Mr. JOHNSON, of Kentucky, observed, that the bill
would regulate the lien given to creditors by judgments.

the bill, a provision for filing interrogatories, with a view Mr. McKINLEY said he found, by the 4th section of to elicit disclosures as to the value of the defendant's property. But he did not perceive that these disclosures ing with regard to the property was to be the result of were to lead to any beneficial end. No order or proceed. the information obtained through the interrogatories. left without any provision as to its distribution. The inThe property being discovered through this process, was quiry, therefore, as to the value, condition, and place of the defendant's property, appeared to him to be nugatory.

from Alabama was natural, considering that, in the State
Mr. BERRIEN said, the inquiry made by the Senator
where he resided, all property, real and personal, was
subject to execution.
only to be extended; in others, they were liable both to
In some States lands were subject
extent and sale. If, upon inquiry, by means of the inter-
rogatories, it is found that the plaintiff has no concealed

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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 execution, 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 property, 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 property withheld by the defendant, is remitted to his original 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 Chancery 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 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 provided that all property discovered by the courts of interrogatories 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 custody 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 represented. 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 debtor landholder must go into close confinement.

[JAN. 11, 1828.

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, imprisonment 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 more efficient, in cases where that process is properly used.

Mr. TAZEWELL said, that the bill purported to mitigate 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 repeal of the ancient laws of the State which he represented.

But

The gentleman from Georgia says, that, after judgment is pronounced against the landholder, he ought to sellthis 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. such, he assured the gentleman, was not the case in Virginia, nor in any other merely agricultural country that he ever heard of But who, he would ask, would purchase the land under such incumbrances as the bill imposed 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 confinement, 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 relinquishes 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. BERRIEN trusted that the motion would not prevail. 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 Mr. VAN BUREN said, that we owe it to the country till he shall make an assignment of his property for the to dispose, without delay, of this subject, which, for six payment of his debts. Is it his fault that he is the inhe-years, has consumed so much of our time. In the first ritor of lands? No; but it is his fault that he withholds discussion on this subject, it was contended that the rights them from his creditors. If the debtor was fraudulent, it of the creditor were impaired by the provisions of the bill. was argued on all hands that he should be coerced by im- it is now said of the same bill and provisions, that they prisonment. Where property was not secured in lands, give too great a power to the creditor over the debtor it was sometimes secured by covering the title; and did Now, Sir, how stands it? The provision objected to, is, not concealment or cover of property present a case of in my opinion, the most salutary contained in the bill, and fraud? In all these cases the present laws enable a debtor both debtors and creditors would probably concur in the to keep his property, and take the benefit of the prison opinion. The provision draws a distinction between debt bounds. He insisted that it was right that debtors, being and crime. 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 pay 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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