JAN. 11, 1828.] Imprisonment for Debt. [SENATE. fraudulent. Suspicion of debt is not made punishable, | ing their revenue bonds. Other cases mentioned were, and on what principle of humanity and equity can you punish a man on mere suspicion of any crime? The final process is also objected to. What is that process as it standis The creditor may confine the debtor till the debt is paid, or till he is discharged by course of law. The bill confines the debtor until he has surrendered, for the benefit of his creditors, all his property: and can you confine him any longer, except as a punishment? There has been a time when debt was punished; but, in this age, and in this country, no one attempts to justify imprisonment for debt, except as the means of coercion to payment. But what avails coercion, after the property of the debtor is given up? The legitimate object of final process is then attained by the bill. He would also contend and show that this object was more fully attained, than by the existing laws. At present, in every different State, wide limits were secured to persons committed on final process. In the State of New York, the jail bounds extended to the limits of the county. The rich and fraudulent debtor, therefore, goes on the liberties; and lives in ease and independence, wantoning on the property of his creditors. He may, perhaps, for a little while, lay aside his coach, but not always. He was not excluded from society, nor from any luxury which money could procure, and he supposed none of the disgrace of confine. ment. I say, then, said Mr. V. B., that the present law for imprisonment for debt does not apply to fraudulent debtors. One object of the bill is to extend the rigors of confinement to them, and to relieve the honest debtor. It puts the dishonest debtor within the four walls, and keeps him there till disgrace, mortification, pride, and interest, shall compel him to disgorge his ill-gotten wealth. To every case of fraud this provision applies; to the disbursing offi. cer, who is guilty of a double breach of honesty, as an officer and a man; the executor, who has betrayed the most sacred trust that can be reposed by man in his fel lows; to the attorney, who has been faithless to his pro. fession, and to the confidence of the community. If the Senator from Virginia had confined his amendment to the particular case of landholders in Virginia, he would not have opposed it. But he has pushed it to an extent which would destroy one of the best features of the bill. I have, said Mr. V. B., in my mind's eye, many cases wherein creditors are suffering all the evils and distresses of honesty, while their debtors are luxuriating in wealth, within prison limits. There was no wish to apply the provision to Virginia landholders, and he would vote for their exemption, if, as it had been said, it bears harshly on them. He saw, however, no difficulty likely to arise from their case. They could sell or assign their lands, and thereby become entitled to the benefits of the bill. If, after judgment is obtained, they keep their property invested in lands, with a view to defeat the claims of their creditors, the provision would apply to them. Mr. HAYNE had not, he said, the slighest wish to prolong the discussion. He rose merely to state a fact. The Senator from New York says that the provision of the 9th section has no other object than to punish frauds. Now, said Mr. H., if I do not show him that he is mistaken as regards this fact, I will abandon the whole question. The provision is, "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." In all cases this clause is to operate. What are the cases? Disbursing officers. Are all these who are indebted to the Government fraudulent? We have ourselves passed laws for the relief of many of them from their debts to the Government. Merchants, who owe revenue debts, are all these fraudulent? Their property is exposed to the winds, waves, and the ravages of fire, which oftentimes disables them from meet perhaps, properly qualified as fraudulent. But there is another large class of persons to which the clause applies, who are guilty of no fraud; he meant those who keep their property so invested as to prevent its liability to attachment or execution, after judgment is recovered against them. The gentleman from New York, in reciting this clause, used the words "with a view" to prevent, &c. Those words did not appear as a qualification in the bill. If a landholder in Virginia becomes liable to the clause, the gentleman from New York says he may sell his lands. But this cannot always be done immediately, if, indeed, it can be done at all. In Virginia, as well as in other Southern States, lands have been offered for sale over and over again, without finding any bidders. In case the landholder fails to sell, he must go, without bail or mainprize, into close prison. Mr. VAN BUREN explained, and replied to the Sena tor from South Carolina. Mr. JOHNSON, of Kentucky, spoke briefly in opposi. tion to the amendment. In trying to please every body, he said, the committee would please nobody. He be lieved that the bill, in its original form, was more efficient, both for debtors and creditors. The question was then taken by ayes and noes, on Mr. TAZEWELL'S amendment, and decided in the negative, as follows: YEAS.-Messrs. Chase, Ellis, Harrison, Hayne, Hendricks, Noble, Robbins, Ruggles, Tazewell, Thomas, White, Willey.—12. NAYS.-Messrs. Barton, Bateman, Bell, Benton, Berrien, Bouligny, Branch, Chambers, Chandler, Cobb, Ea. ton, Johnson of Kentucky, Johnston of Louisiana, Kane, King, Knight, McKinley, McLane, Macon, Marks, Parris, Ridgeley, Rowan, Seymour, Silsbee, Smith of Maryland, Van Buren, Williams, Woodbury.-29. Mr. COBB rose to offer an amendment, but said he would give no pledge to vote for the bill, even if the amendment was adopted. He moved to strike out from the first section the words, "But if the court shall be of opinion that the said allegations are not well founded, it may make an order, to be entered on record, discharging the said bail or security from his or their suretyship. The object of the amendment was, he stated, to relieve the plaintiff from the delay, expense, and embarrassment, of trying the issue on his allegations. The trial would necessarily be inconclusive; for though the judge might decide one way, the jury, on the main issue, might decide in another way The bill, he said, provided for seve ral trials in the same cause, some of them on collateral points. The prospect of so much delay and embarrassment would prevent a plaintiff from prosecuting the most plain and just action. This amendment was opposed by Messrs. JOHNSON of Kentucky, KANE, VÄN BURËN, and BERRIEN, and supported by Mr. WOODBURY. The question being taken on the motion, it was decided in the negative. Mr. NOBLE wished to have time allowed him to examine the bill further, with a view to ascertain its bearing on the Western States. He was under the impression that it would destroy all commercial confidence in the West, and that it was a bold and alarming innovation on the laws, usages, rights, and interests of the Western people. The benefits of the bill were, in his opinion, entirely visionary. It would have no tendency to mitigate the evils resulting from Imprisonment for Debt, but would destroy credit and confidence. He should therefore resist it. He would stand in opposition to it if he stood alone. Notwithstanding the abuse which had been heap. ed upon him by the public press, on account of his oppo. sition to this bill, he should still exert his efforts to prevent its passage. Regardless of consequences, he should withstand the popular current, and discharge his duty. He moved that the bill be postponed to Tuesday next, and made the order of the day for that day. Mr. JOHNSON, of Kentucky, did not hear the reason, he said, which the Senator from Indiana gave for the postponement. Those near me inform me that he wishes to be heard in opposition to the bill. I shall with great pleasure listen to the arguments of the gentleman on the subject of the bill. He does not often detain the House in speaking, and, in respect to my willingness to hear him, I would be content to comply with his request for the postponement. I was not aware that the gentleman had been abused in the public prints on account of his oppo sition to this measure. If he has been misrepresented and abused as he complains, I assure him that I lent no aid to it. The reasons which the gentleman has given for his hos. tility to the bill appear to me to be contradictory. In one breath he says that the bill will not abolish imprisonment for debt, and, in the next, he says it will destroy | commercial confidence. The gentleman objected, too, to the title of the bill, as differing from its character. I shall be very glad to hear his argument on the title of the bill. While he denies, however, that the bill will abolish imprisonment for debt, he declares that it is destructive of the rights of creditors, although it is not to operate on any existing contracts. He wished to give the gentleman an opportunity to express his views; but, as the time which he proposed is distant, I shall vote against his motion for postponement. [JAN. 14, 15, 1828. Mr. NOBLE considered, he said, that he could not withdraw his motion. He wished time to examine the bill in all its bearings, and he should propose amendments which would go to simplify it, and rid it of its complex and heavy machinery. The question on the postponement of the bill to Tuesday was taken, and carried in the affirmative. The Senate then adjourned to Monday next. MONDAY, JANUARY 14, 1828. The Senate spent nearly the whole of this day's sitting in the consideration of Executive business. TUESDAY, JANUARY 15, 1828. COLUMBIAN COLLEGE. The bill for the relief of the Columbian College, in the District of Columbia, was taken up. Mr. CHANDLER said that he was uninformed as to the object and character of the bill, and would be glad to hear some explanation of it. Mr. JOHNSON, of Kentucky, had hoped the vigilance of the Senator from Maine would supercede the necessity of making any explanation on this subject to him. The bill had, for several sessions, been before the Senate, and had often been fully explained. Its object was to relinquish to the Columbian College twenty-five or twenty-six thous and dollars, with interest, amounting to twenty-eight or thirty thousand dollars, being a debt due from the col lege to the Government. The relinquishment would reMr. NOBLE replied, that he was happy to learn that,lieve the college of great embarrassment, which would though the Senator from Kentucky was so sensitive on the subject of his bill, he was willing to listen to arguments in opposition to it. His views were not so contradictory as the gentleman supposed. He believed that the bill would help the Western States, poor as they had always been; and the case of the 1900 debtors in New York, who were not to be relieved by the bill, would show that it did not abolish imprisonment for tlebt. The Senator from Kentucky thinks, however, that I have asked for too long a time. I ask, said Mr. N., only for four days; whereas the gentleman has taken six years. The Senator from Kentucky hoped the bill would be decided on, be cause it was his hobby. He, thank God, had no hobbies. He stuck to the people. The people asked no favors from the Government. They had not asked for this bill. The gentleman had often, on this floor, expressed his jealousy of the federal power, and his apprehensions that it would swallow up the States. If he gets this bill through, he will find that the States will swallow up the general Government. He should press his motion. Mr. SMITH, of Maryland, said that he did not under-luntary contributions. Its early receipts did not realize stand that the Senator from Indiana intended to offer any amendment. In that case he may suffer the bill to pass to the next stage, and take an opportunity to express his views on its third reading. Mr. NOBLE replied, that he had an amendment to of fer. He would move that on mesne process the debtor should be discharged on making a surrender of his property, and on final process he should be discharged on making a surrender of his property. Mr. JOHNSON, of Kentucky, said those were the very provisions of the bill as it stood. Mr. CHANDLER moved to lay the bill on the table. On division, 22 rose in the affirmative, and 22 in the negative. The Chair voted in the negative. Mr. BERRIEN said, he hoped the Senator from Indiana would allow the bill to go its next stage, as he had declared his opposition to the whole bill, he would not care to amend it besides, the amendments suggested by him are distinctly the main provisions of the bill. If, however, he insisted on its motion, he should vote with him. otherwise bear it down; involving in its destruction great loss to individuals and a total loss of the debt due to the Government. One portion of the debt was contracted by the Rev. Luther Rice, agent of the college, with the Secretary of the Treasury, for two houses, situated on Greenleaf's Point. Mr. Rice thought he could turn the pro perty to advantage, and he purchased it, giving a lien on it to the Government for security. The Govern ment will therefore get back the property in the same condition in which it was sold. The other part of the debt became due by the assumption, on the part of the college, of a debt which Mr. Thomas L. McKenny owed the Government. Mr. J. was not well acquainted with the particulars of this transaction, but he was inform ed that the arrangement proved to be very prejudicial to the interests of the college; inasmuch, as, for a trifling consideration, it was made responsible for a large debt. He would now show, how the passage of the bill would materially benefit the institution, and how its rejection would ruin it. The institution had been founded by vo anticipations, and its expenditures, which were based on the supposition that the college, in its first years, would have been 100 students, considerably exceeded those re ceipts. The debt which the college owed to individuals, was about one hundred thousand dollars, exclusive of the debt to the Government. The.creditors had agreed to take $ 75,000, and to give up their claims, relying upon the honor of the institution to pay the other portion when it was able. To pay this sum of $75,000, the college had $25,000 in stocks, and could raise $ 50,000 more by individual contributions. This sum had been subscribed, payable on the condition that the claims of the Govern ment and of individuals against the college, should be relinquished. If, however, an attempt be made to enforce the payment of the debt, the exertions of the friends of the college would be paralysed. He hoped that no opposition would be made to the bill. It would prop up a seminary which would be fruitful of advantages to the cause of educa tion, without in any way impairing the rights of the Govern ment, or calling upon it for a single cent: for, if the Government pushed its claims, those claims must be lost, as well as the claims of the private creditors. Congress, too, was the Legislature for the people (he might call them unfortunate people, for they had no political rights,) of the District of Columbia; and if Congress did nothing to promote the literary institutions of the District, it would not do what the State Legislatures had done in each several State. The proposition to relieve and re-establish the institution by this cheap and easy boon, would not, he trusted, find a dissenting voice. The Congress had been called upon to extend this relief, by the memorial of a number of individuals whose characters were as respectable as the object which they proposed was laudable. Mr. CHANDLER was, he said, friendly to the college, which he hoped would succeed; but he was opposed to the means by which the bill contemplated to relieve the college. He objected to this bargaining, which, it ap; peared, had been going on between the Government and the college. He also objected to the principle that the college, as a party to these bargains, could hold the Government to them, if they proved advantageous, and be released from them if they proved disadvantageous. He doubted not that the gentleman from Kentucky was fully informed as to the facts, in which respect the gentleman had an advantage over him; but he must, however, take leave to protest against what he conceived to be the principle of the bill. Mr. SMITH, of South Carolina, was, he said, in the dark as to the merits of the transactions alluded to by the gentleman from Kentucky; he should, therefore, move to recommit the bill to the Committee on the District of Columbia, with a view to have the facts reported. [SENATE. ment of the bill to Friday next, with a view to examine the case; which motion prevailed. WEDNESDAY, JANUARY 16, 1828. The bill to authorize the purchase of sites, and the erection of Custom Houses at Newport, Rhode Island, and Mobile, Alabama, and for the repair of the Custom House at Newburyport, in Massachusetts, was read a second time. Mr. WOODBURY stated, that the peculiar situation of the ports in question, made it necessary that this appropriation should be made. As to Newport, it had been shewn that there was no fire proof building in the place that could be hired for a Custom House, and hence it was considered necessary for the United States to build. As to the commerce of Newport, the committee had proof before them that, for several years, the amount of the duties had been $60,000 per annum. As to Mobile, those stores which had hitherto been considered fit for hiring, for this purpose, had been consumed in the late conflagration; and those which remained were not considered suitable. The duties collected at Mobile, had, for several years past, averaged nearly $60,000. Hence a Custom House was more needed there than in many ports where they have been established. All that was required in relation to the Custom House at Newburyport, was to repair the building, which had been obtained from a person ndebted to the United States, and for which only a small amount of rent was paid. If required, this building would not only afford accommodations for a Custom House, but the remaining portion might be rented. In some ports the rent of the building was paid by the officers; but in the ports, named in this bill, the rent was paid by the United States. Mr. ROBBINS made some explanations, as was understood, in relation to the Custom House at Newport: when The bill was ordered to be engrossed for a third read The bill declaring the assent of Congress to the renewal of several acts of the Legislature of Maryland, was read a second time. The bill was ordered to be engrossed. Mr. JOHNSON, of Kentucky. They had been reported. Mr. SMITH would then be glad of an opportunity to read the report. He would like to know something of the bargain for the houses, and how the Government being. came a dealer in houses; and he would thank the gentleman to inform him where he could find the report. Mr. EATON said that the committee had not made a detailed report of the case this year; but there was one Mr. SMITH, of Md. said, in explanation, that, prior to last year, and there had been one nearly every year for the adoption of the constitution of the United States, the the last three or four years. He did not think it neces Legislature of Maryland had passed several acts granting sary, therefore, to go into the merits of the case fully. certain rights to the port of Baltimore, for the improveThe only question was, whether the Government should ment of the harbor. After the adoption of the constiturelieve the college from a disadvantageous bargain. The tion, those acts had been renewed by Congress, and this facts were, briefly, that some years ago the Government is the object of the present bill. The grant was two pence had unavailable funds in the Cincinnati Bank. A part of on the ton, which amounted to about $3,000; while $18,000 these funds, which, it seems, were ultimately lost to their had been appropriated by the citizens of Baltimore to holders, were disposed of by the Government to an indi- deepening the channel, for which purpose no assistance vidual for the two houses in question, on Greenleaf's Point. had ever been asked of Congress, while other cities, simiMr. Rice, the agent of the college, purchased the pro-larly situated, had frequently received its aid. perty, giving the Government a lien on it for security. But the contract proved to be a very unprofitable one to the college. Its benefits enured to the Government; for it got security for its unavailable funds, and still holds a Mr. WOODBURY said, that as this was a bill of consid lien on the property. In the second contract, Col. Tho-erable importance, both in point of principle, and the Thas L. McKenney, an officer of one of the Departments, amount of property, he should move its postponement unowed a debt to the Government, which was assumed by til Wednesday week, and that it be made the order for the college, and Col. McKenney was to pay the debt to that day; which was agreed to. the college in instalments, payable from time to time; but it seemed that the college never received but $1000, though their liability to the Government still remained. The institution was formed by private funds without the aid of Government. It was objected to it, that it was sectarian; but, though sectarian in its origin, it was not practice. The subscribers to the relief of the col. ge would not invest their funds while this debt was arging over it. These subscriptions would be paid only Case the college should be able to obtain a discharge from its creditors. It was left to Congress to determine whether, by relinquishing the debt, to re-establish the college, or, in character of a creditor, to break it down. Mr. SMITH, of South Carolina, moved the postpone 10 19 The bill for the relief of the surviving officers of the Revolution, was read a second time. IMPRISONMENT FOR DEBT. The special order of the day on the bill to abolish Im. prisonment for Debt, then recurred. Mr. NOBLE, after some remarks in opposition to the details of the bill, proposed the following amendments: Strike out, in the 5th section, after the word 'rendered,' to the word costs,' and insert the following: "A schedule of his or her whole estate, and take the following oath, which the clerk is hereby empowered to administer: I, A. B., do solemnly swear, or affirm, (as the case may be,) profess and declare, the schedule now delivered and filed, by me subscribed, doth contain, to the best of my knowledge and remembrance, a full, just, true, and perfect account, and discovery of all the estate, goods, and effects, unto me in anywise belonging, and such debts as are unto me owing, or to any person in trust for me, and of all securities and contracts, whereby any money may hereafter become payable, or any benefit or advantage accrue to me, or my use, or any person or persons in trust for me; and that I, or any person or persons in trust for me, have no lands, money, stock, or any other estate, real or personal, in possession, reversion, or remainder, of the value of the debt or debts with which I am charged in execution, or owing to others, and that I have not, directly or indirectly, sold, lessened, or otherwise disposed of, in trust, or concealed, all, or any part of my lands, goods, stock, debts, securities, or estate, whereby to secure the same, to receive or expect any profit or advantage thereof, to defraud or deceive any creditor or creditors to whom I am indebted in anywise however. Which schedule, being so subscribed in the presence of the clerk of the court, shall remain with him, for the information of the creditors of such defendant or defendants." And at the end of section 9, add sections 10, 11, 12, and 13, as follows: [JAN. 16, 1828. with costs of suit; and if such person so summoned shall appear and be sworn, judgment shall be entered for so much of the money, goods, chattels, or estate, as he, she, or they, shall acknowledge to be due, or to be of the property of such defendant, and in his, her, or their pos session, with costs as aforesaid; which judgment shall be entered in the name of the marshal of the district, who may thereupon proceed to levy execution, as in other cases, and to dispose of the money, goods, chattels, or estate, so recovered, in the same manner as by this act he is directed to dispose of other effects. "Sec. 12. And be it further enacted, That, where any such garnishee shall not acknowledge the whole money to be due, or all the goods, chattels, or estate mentioned in the schedule to be of the property of the defendant, and in his possession, the marshal, or such defendant, shall be at liberty to claim the residue by legal process; and the former judgment as to such garnishee shall be no further bar in such process, than for so much money, or such goods, chattels, or estates, as the gar nishee is thereby ordered to pay and deliver. said to the plaintiff or plaintiffs, all the residue of the proceeds of the insolvent defendant's estate, shall, under the order of the court, be distributed rateably among the creditors of such defendant or defendants.” "Sec. 13. And be it further enacted, That the marshal "Sec. 10. The lands, tenements, and hereditaments, shall be allowed to retain, out of the effects of such in which shall be contained in such schedule for such use, solvent defendant, before the distribution thereof, and right, and interest, or title, as such defendant shall then before the payment of the amount of the judgment to the have in the same, which he may lawfully part with, re- plaintiff or plaintiffs, all reasonable expenses in recover serving to the wife of such defendant her right of dower ing such money, goods, chattels, and estate as aforetherein, and also all goods and chattels whatsoever in said, for proceeding against a garnishee, as shall be such schedule contained, shall be vested in the marshal judged reasonable by the court. And after such exof the district where such lands, tenements, heredita-penses are paid as aforesaid, and the judgment as afore ments, goods, and chattels, shall lie or be found; and such marshal is hereby authorized, empowered, and required to sell and convey the same to any person or persons whatsoever, at public sale, for the best price that can be got for the same; and the money arising by such sale, Mr. EATON proposed the following, as an amendment: shall be by such marshal paid to the creditor or creditors "Sect. 10. And where any male of the age of sixty at whose suit such defendant may have been arrested. years and more, or where any fernale shall, at the passing And after the delivery of such schedule, and the taking of this act, be in confinement for debt, or in the bounds of said oath, it shall be lawful for said clerk, by his order, upon surety for the prison rules, they shall, on the fourth under the seal of the clerk, to command the marshal or day of July next, be discharged from the said imprison jailor, in whose custody such defendant may be, forth- ment, if confined; or, if under bond to keep within the with to set at liberty such defendant; which order shall prison bounds, they and their securities shall be released be accordingly obeyed, and shall be sufficient to dis- and discharged from the stipulations and liabilities concharge and indemnify such marshal or jailor against all tained in any bond given for said prison bounds: Provided, escape, escapes, action, or actions whatsoever which shall if the creditor shall, on or before the first day of July, or may be brought or prosecuted against him or them, make oath, before the clerk authorized to issue execuby reason thereof. And if any action shall be commenc- tions, which shall be retained on the files of his office, ed against such marshal or other officer, for performing that he verily believes the debtor has concealed or dispos his duty in pursuance of this act, he may plead the gene-ed of his goods and effects, with a view to defraud his ral issue and give this act in evidence. creditors; or has covertly so disposed of them, as that they cannot be reached by ordinary process of law; a notice of which said proceedings shall be served on the debtor, and be traversable in the mode herein before provided for, then, and in that case, the party imprisoned or in the bounds, shall not be discharged, in virtue of any of the provisions of this act, until said traverse shall be acted upon. "Sec. 11. When any defendant shall be discharged pursuant to this act, and the schedule subscribed and delivered in by such defendant, shall contain money due to such defendant, or of goods, chattles, and estates, or estates to him belonging, or in the possession of any person or persons for his use, in that case the clerk of the court with whom the schedule is directed to remain shall immediately issue a summons against each of the persons named as debtors in such schedule, and against such others as are therein said to have possession of any goods, chattels, or estate of the property of the defendant, reciting the sum of money he or she is charged with, or the particular goods, chattels, or estate said to be in his or her possession, and requiring him or her to appear at the next court, and declare on oath whether the said mo. ney, or any part thereof, be really due to such defendant, or whether such goods, chattels, or estate, or any of them, be really in his or her possession, and are the property of such prisoner; and if the person so summoned shall fail to attend accordingly, or to show good cause for his nonattendance, it shall be lawful for the court to enter judgment against every such person for the moneys, goods, chattels, or estate, in such schedule mentioned, together "Scc. 11. And be it further enacted, That in all cases where the administering of any oath shall become neces sary, if the witness or person offering to swear, shall have any scruples of conscience, it shall be lawful for him to affirm; which said affirmation shall have the same effect, and, if false, be subject to the same pains and penalties which appertain to the taking a false oath." Mr. BERRIEN did not purpose, he said, to discuss the amendments, nor to go fully into the subject of the bill.But he thought that the manner in which the bill had been discussed, by reference to particular amendments, was not the most favorable mode to promote the success of the bill. He should, at this time, content himself with suggesting some few ideas, which, in his opinion, were decisive in favor of the bill, in opposition to the amendments. The bill provides that after a judgment JAN. 16, 1828.] Imprisonment for Debt. [SENATE. or decree is obtained by the plaintiff, the defendant may ment for debt was given to creditors, as a punishment relieve himself by making an assignment of all his pro- for withholding property, or as a means to enforce the perty for the benefit of his creditors, and provides a mode surrender of concealed property. In punishing debt the for testing the fairness of the assignment. In lieu of this, law confounds it with guilt; as a punishment of fraud the amendments substituted a provision, vesting in the then it is ineffectual and improper, for its exercise is creditor at whose suit the judgment or decree is obtain- capricious and indiscreet. The bill asserts a limit beed, an absolute property in the defendant's effects to the yond which the power of the creditor shall not go. If amount of his claim, and then divides the remainder rate-imprisonment be used as a means of coercing a fraudu ably among the other creditors. This was the precise lent debtor, the propriety of applying such coercion to subject already discussed on the objection of the gentle- any particular case must depend on the proof of the fraud. man from Virginia, Mr. TAZEWELL,] made under a If fraud be not proved, the principle does not apply, for wrong impression as to the effect of the bill. The it is not reasonable to imprison those who have not conamendments provided no mode of testing the validity cealed property. Take then imprisonment for debt as and fairness of the assignment, and afforded opportuni-you will, you will find that the rights of creditors go far ties for fraud. Try the principle by applying it to a case. beyond the principles on which they are based. Does Suppose A to be indebted to certain persons: B, who this bill secure creditors from fraud, and withhold from may or may not be a creditor, is suffered, by collusion them the means of oppression? if so, it secured to crediwith A, to obtain a judgment and conveyance of his pro-tors all the rights to which they were entitled, and reperty. A then takes the oath, and his creditors are stored the exercise of them to proper limits. In mesne cheated. This would not happen under the provisions process, unless you have reason to apprehend that the of the bill. The amendment of the Senator from Indiana defendant intends to abscond or withdraw from the jufurther proposed to substitute an arbitrary and summary risdiction of the court, you have neither right nor motive process for the right of trial by jury. The allegations of to arrest him. If you charge crime, the party is arrestfraud are to be tried and decided by a judge instead of a ed but not committed. The magistrate is bound to look jury. It seems to me, said Mr. B. that the amendments into circumstances, and if the charge be not supported will fail of their intended effect, and that they have not by proof, the party is entitled to a discharge. Why should been deliberately considered by their movers. What the law make debt, and even the suspicion of debt, more protection does this tribunal, proposed by the amend- criminal than murder? The bill, therefore, required that ments, offer to the debtor? If he comes at the summons, the plaintiff, before he could hold the defendant to bail, he is deprived of the right of trial by jury; if he does should make oath that the defendant is about to leave not come, he is to be considered as contumacious, and the country, &c. and should give reasonable proof judgment is to be forthwith entered against him. For of the fact. This was no new principle. It had always what purpose was this amendment? To prevent the been extended to those who were charged with crimes. practical operation of the 5th section of the bill. Among But it was said that there was a second trial, a second the many arguments relied on, in opposition to the bill, series of oaths, allegations, and issues. Whenever there was one which had ever been urged against reform-the is doubt, said Mr. BERRIEN, the law gives the benefit of dangers of innovation. Mr. B. did not fear innovations. the doubt to the citizen defendant. The citizen was To guard against their danger, it was only necessary to not, by any principle, bound to prove his liberty, but his consider existing laws or institutions, in comparison with accusers were bound to prove their right to deprive him the improvements proposed. In this case the obligation of his liberty. Unless, therefore, gentlemen are preparwas imposed upon us to consider the existing law, and ed to deny this principle, they cannot object to the prothe practicability and expediency of the proposed sub-visions of the first section. stitute. The remaining section, which it was necessary for Mr. The suggestion then, amounted only to this, that we B. to animadvert upon at this time, was that which regushould consider the practical effect of the measures lated the mode of proceeding after judgment. The exwhich we adopt, and, as he must be permitted to say,isting law authorizes execution either against the body it applied to every exercise of legislative power, as well or the property of the defendant. The bill gives a pro. as that now under consideration. It surely was not in- cess to the creditor, and another to the debtor; the obtended to be maintained that the fear of change should jects of both of which are to secure the creditor in the arrest our march in jurisprudence, and rivet upon us for possession of the debtor's property, if he has any, which ever the errors of our ancestors. No one was prepared he refuses to surrender; and, if he has none, to secure to advocate civil imprisonment in the abstract. The the debtor in his right to personal liberty. In one profears of many were alarmed by the suggestion that the cess, the creditor may mean that the defendant has conevil was affiliated with our laws, and could not be rudely cealed property; the creditor appears before the court cut off, without deeply wounding those laws themselves, to contest the allegation; and, according to the result, and the bare possibility of such a result, in their opinion, the debtor is imprisoned or not. In the other process, put an end to the argument. He, therefore, begged the debtor may make an assignment of his property, and gentlemen to point out the precise provisions of the bill the creditors may appear to contest the fairness of the to which they objected. If they concurred in the prin- assignment; and, according to the result, the debtor is ciple, they had a right to call in question the practical liable to imprisonment or not. In either case, if the operation of the bill; but let them not denounce it, in debtor proved fraudulent, the plaintiff resorts to his origeneral terms, as an innovation. In Mr. BERRIEN'S opin- ginal remedy. But the debtor who is proved to be ion, an undue importance had been attached to the bill, fraudulent, is deprived of the benefit of prison bounds. both in and out of Congress. The effect of this had The objection to this part of the bill is made upon an been to increase the opposition to the measure. The assumption that public opinion will interpose itself be. bill was extremely limited in its operation. Few debtors tween the creditor and the debtor, and restrain the formwould come within its scope. It was true that, within er from oppressing the latter. It is conceded that the the sphere of its operation, it takes from the creditor the imprisonment of an innocent debtor is cruel and unneengine of oppression and extortion, but he would fear-cessary, but it is attempted to exempt the principle conessly assert that it also greatly added to the means of ceded from any practical operation, by an assumption cercing payment of debts, where there was property that the moral influence of public opinion was so powerthe hands of the debtors. He would ask, what is the ful as to prevent such imprisonment. Gentlemen say Principle on which the rights of creditors rest? Imprison- there is no case in which honest debtors are imprisoned. |