SENATE.]

Imprisonment for Debt.-Navy Lieutenants.

[JAN. 17, 1828.

Mr. B. was as free as any one to concede that the conven- | debtor. This was the head and front of the bill's offend tional and moral laws of society were more powerful than ing. It goes so far as to secure the creditor in his just statutory enactments; and he would put the issue on the rights, and no farther. On these views Mr. B. was content fact, whether public opinion was exercised on this subject to rest his vindication of the bill from the objection that to such an extent as to prevent any abuses of the law of its machinery was complex. imprisonment; and, if it was found that there was, or was likely to be, a single case which required the interposition of the law between the avarice of an unfeeling creditor and the liberty of an honest debtor, he would advocate, to the whole extent of his ability, the passage

of this bill.

It was not necessary for him to inquire whether the number of debtors entitled to relief would be greater or less than had been supposed; for if there should exist any occasion for the operation of the bill, it would be with him a sufficient reason for adopting it. But, any one who had long been engaged in the practice of the law, knew that cases of imprisonment, even of the most honest and deserving men, were not rare; and it was known too, to the profession, that persons are often sued in order to force them, by the difficulty of getting the necessary bail, to a compromise, and to the payment of a smaller sum. Writs were also used to force the friends of the debtor to relieve him from his debt, and the danger of a jail. Even when individuals had given up all their property, and paid nearly all their debts, having, perhaps, given a preference to endorsers, or some other creditors, in conformity with established usage, he was thrown into prison with the expectation that some one of his friends or connexions would pay the debt. An appeal was often made to the father by a ca. sa. against the son; and the last resource of the wife was extorted from her by a ca. sa. against her husband. Mr. B. thought that all creditors could not be restrained in the exercise of their rights by moral considerations. They would extend their means of coercion, from the debtor to those of his connexions, to whom he is near and dear. In Mr. B's opinion, the legal and moral operation of the capias ad satisfaciendum ceased with the debtor; and, to extend it further, with a view to operate on others, was inconsistent with the object of the process, and with the rights of humanity.

It was also objected to the provisions of the bill, that their operation would be attended with trouble to the party plaintiff. The " complicated machinery" of the bill had been much dwelt upon as an argument against it. This objection he would meet on the same principles with which he had met the alleged “innovation" of the bill on the established laws.

The machinery of the bill was the provisions adopted to carry into effect the principle of the bill. If any of the provisions were unnecessary or inefficient for this object, let them be pointed out, and altered or expunged. But the industry and vigilance of the opponents of the measure, had failed in detecting such provisions. The objection is not to the machinery but to the consequences resulting from it. Take this proposition: no debtor who has honestly surrendered his property should be imprisoned; every body grants it. But it is said that some debtors have property locked up in choses in action and bank stock, and therefore the ca. sa. must in every case be retained.

Another objection to the bill had been urged by the Senator from South Carolina, Mr. HAYNE, that the writ of ne exeat, as used in the State of South Carolina, was abolished by the bill. Here Mr. B. showed that, under the laws of England, and those of the States, so far as he knew, excepting the State of South Carolina, the ne exeat was a prerogative writ, and, out of Chancery, was appli ed only to two cases, to wit; alimony and accounts in which Chancery and common law were concurrent. With a few more remarks, showing that the bill pursued that middle path, which equally respected the just rights of creditors, and the personal liberty of debtors, Mr. B. was content to submit the bill to the decision of the Senate.

Mr. SMITH, of S. C. considered that the amendments offered by the Senators from Tennessee and Indiana, embraced some important principles, and he therefore hoped that time would be given for their consideration. The eloquent and able argument just delivered by the Senator from Georgia, in which many new points had been introduced, also rendered it necessary that the opponents of the bill should be heard before the final vote on it was taken. He would move that the bill be laid on the table till to-morrow, not with a view to delay it a moment after 12 o'clock.

The motion was negatived, ayes 17, noes 18.

Mr. SMITH, of S. C. was ready to give his views in opposition to the bill now, if he was compelled to do it. But the lateness of the hour, and the exhausted state of the Senate, induced him to move an adjournment. If the motion was not sustained, he would commence his remarks.

THURSDAY, JANUARY 17, 1828.

LIEUTENANTS IN THE NAVY.

The bill to increase the pay of the Lieutenants of the Navy, who have served ten years and upwards, as such, was taken up for consideration.

Mr. HAYNE said, that the bill was best explained by the memorial of the officers; which he read. Mr. H. then remarked on the difference between the pay of the Navy Lieutenants, and that of the officers of corresponding rank in the Army, showing that the pay of the latter was beyond all due proportion larger than that of the former. The Lieutenants of the Navy, many of whom had been 18 or 20 years in the service, and who had families dependent on them for support, received but 751 dollars a year, including rations. The bill proposed to add 211 dollars to their pay, so as to make it altogether, 962 dol. lars; which left it still $183 40 less than that of a Lieutenant of the Army. About ninety Lieutenants would come within the provisions of the bill, and the additional appropriation required to give them each 211 dollars in addition to the sum, at present received by them would be $18,990. Mr. CHANDLER opposed the bill in a few words. Mr. BRANCH would like to hear a reason for the dis Mr. B. denied the consequences. A vast majority of crimination made by the bill in favor of those Lieutenants those who come within the provisions of the bill had no who had served ten years and upwards. Many Lieutenbank stock, nor choses in action, or other property con-ants, who had served a shorter time as Lieutenants, were cealed or withheld. This argument is refuted by stating equally worthy of the proposed increase of pay. Some It asserts a right to use the ca. sa. against all, be- Midshipmen, though not less deserving than others, of cause there is propriety in using it against a few. In promotion, had been kept back, and, of course, were not regard to this case, the bill pursued that middle course now Lieutenants of ten years' standing, though they well which had always been found to be the safest course. deserved to be. This system of partial legislation was reTruth and propriety were ever found between extremes. plete with mischief. The bill gave the usual process to the creditor, on condition that he proved a fraudulent intention on the part of the |

it.

Mr. WOODBURY, in reply to the Senator from North Carolina, explained the principles on which the Commit

JAN. 17, 1828.1

Lieutenants in the Navy-Imprisonment for Debt.

tee had framed the bill. The memorial prayed an increase of the pay of the Lieutenants, Midshipmen, and Surgeons. The Committee was not willing, however, to go the whole length; and they singled out that class of officers whose length of service, and situation in life, seemed most to require some additional pay. The Lieutenants of the Navy did not receive, and ought not to receive, so much nominal pay as the Army Lieutenants. For the Navy officers have prize money in time of war, which, in the course of 20 years, would give to each officer a con siderable sum. The class of Lieutenants which had been selected by the Committee, were advanced in life, and had formed connexions which imposed on them expenses far exceeding the limits of their small salaries. The passed Midshipmen were already allowed an increased salary, The Committee had not, however, gone into the whole subject; if they had, the case of the surgeons would also have been considered.

Mr. SMITH, of Maryland, referred to the memorial as coming from all the Lieutenants; and he could not see the propriety of giving a preference to one class of them. The Army and Navy officers, he said, were not placed on a footing of equal advantages. The cadet was four years supported and educated at West Point, and then commissioned in the Army. The Midshipmen, on the other hand, were for eight or ten years supported by the pittance of nineteen dollars a month.

[SENATE.

present and the former practice of the Navy, officers were promoted, not in regular succession, according to their several terms of service, but by favoritism. For a signal proof of this, he called the attention of the Senate to the list of Navy Lieutenants which he held in his hand. The individual who stood first on the list was the example to which he referred. Several Lieutenants had been promoted over his head to be Masters Commandant. Was it fair, then, that those promoted at a certain time should have a preference to those who had been as long in the service, but had not been so highly favored by the Government? The qualifications of the junior Lieutenants were, in most cases, admitted to be equal to those of the Lieutenants who preceded them ; and their services were as efficient. But the only question before us, as to any grade or class of officers, was-is it proper to increase their pay? He had no objections to raise the pay, if it was insufficient ; and he, for one, was of the opinion that' their pay, in reference to their services, and to the pay which we allow for services of other descriptions, was too low. As one illustration of this, he would refer to the fact, that a messenger of the Navy Office, whose chief business, he believed, was to carry letters and papers to and from the Post Office, received seven hundred dol. lars-within fifty-one dollars of the sum which we at present allow to a lieutenant of the Navy. Was this a fair graduation of salaries? At home, our officers are entitled to Mr. S. without derogating from the merits of those live in comfort; and, when abroad, should be enabled to Lieutenants who had served for ten years, insisted, that support, in their style of life, the dignity and indepen. other officers of the same grade were quite as meritori-dence of their station. They were, in foreign ports, fre ous. The Midshipmen, he remarked, were also highly quently employed as negotiators, and in the transaction deserving. Before they could be passed, they were ob- of other business, which brought them into communica liged, in their examination, to give satisfactory evidence tion with officers of other navies, and of foreign Govern. of moral excellence, of their seamanship, and of their ac-ments; and it is well known, that, with their small salaquaintance with Naval science. He considered that theries, they could not, without great inconvenience, recipro proposed distinction would be injurious to the service, cate the civilities which they received. Mr. E. did not and moved to strike out the words "ten years and up- wish to encourage extravagance in our naval officers; but, if a messenger was entitled to seven hundred dollars, sureMr. HARRISON regretted, he said, that any distinc-ly those who sustained the honor of their country, as far tion had been made between the lieutenants. The same officers, he thought, should receive the compensation, for they performed similar duties, and underwent similar hardship. The Senator from New Hampshire had said that the leutenants of ten years' standing were growing grey in the service; so are the midshipmen, said Mr. H. without any but a very distant prospect of promotion.

wards."

as that honor was connected with the naval service, were entitled to an increased compensation.

Mr JOHNSON, of Kentucky, was apprehensive, he said, that the discussion which had commenced would oc cupy a great portion of the day, to the exclusion of the bill for abolishing imprisonment for debt, which was the unfinished business of yesterday. He was anxious that the bill should be decided on at an early day, in order that, if it passed, it might go to the other House, with a prospect of being acted on there during this session. He, therefore, moved the postponement of the bill under consideration, with a view to take up the bill for abolishing imprisonment for debt.

The motion was withdrawn, at the request of Mr. BERRIEN, who said that he desired to submit the follow reso

The Senator from Maine [Mr. CHANDLER] opposes the bill for the reason that he apprehends from it future evil to the service. Mr. H. invited the gentleman to give a more distinct and direct objection to the measure. There was no appropriation of public money for which he voted with more pleasure than for the naval service. He felt anxious that the Navy should be maintained; he feared that, unless promotions were accelerated, or the pay in creased, officers of talents would be compelled to aban-lution. don it. He would vote for an additional compensation to all the grades referred to in the memorial. Our naval of ficers bore as high a character for intelligence, gallantry, and urbanity, as those of any country in the world, and they received a smaller compensation. In reply to the mark that fell from the Senator from New Hampshire, Mr. WOODBURY,] that those midshipmen who passed an examination received additional pay, Mr. H. said that the passed midshipmen formed a distinct and separate grade of the service. He hoped the amendment proposed by the Senator from Maryland would be adopted.

Mr. CHANDLER said that there was no evidence of a city of officers to serve the country at the compensa. now allowed. When that was the case, it would be time to think of raising their pay.

MEATON said that, before he should vote for the bill, as it stood, he must hear some reason for the prefergiven by it to one class of Lieutenants. Under the VOL. IV-6

ence

Resolved, That the bill be recommitted to the Committee on Naval Affairs, with instructions to report a bill which shall provide for the increase of the pay of the Lieutenants in the Navy, having regard to the compensation of officers of corresponding rank in the Army: and, also, to provide for the additional compensation of Sur geons in the Navy.

Mr. JOHNSON, of Kentucky, then renewed his motion, and the bill and resolution were postponed until to morrow.

ABOLITION OF IMPRISONMENT FOR DEBT. The bill to abolish imprisonment for debt was taken up as the unfinished business of yesterday.

Mr. SMITH, of South Carolina, opposed the bill, in a speech of some length. He could not suffer the bill to pass to the next stage without accompanying it with his objections. His objections were multifarious, and he should

Mr. BELL said he was opposed to the passage of this bill, and would present to the Senate, very briefly, the reasons which would induce him to vote against it. It was always with reluctance that he consented to change a system of legal provisions which had been a long time in operation, because experience and observation had taught him that the advantages expected from such changes were seldom attained, and that unforeseen evils and inconveniences invariably resulted from them. He would therefore withhold his assent from such innovations, unless where he could clearly see that great advantages would be attained, or serious evils be obviated by them. He had given considerable attention to this sub. ject, but had been unable to discover any such reasons to justify the innovation which this bill, should it become a law, would make in the existing laws of the States.

[SENATE.

|claim, and have a second trial in the ordinary course of judicial proceeding. If judgment is rendered against him, and his property is supposed to be secreted, or so invested that it cannot be levied upon, the plaintiff, by alleging these facts, may require a third trial, and a judicial decision of these questions. After these repeated trials, and this protracted and expensive litigation, the defendant, by an assignment of his property to the Clerk of the Court, for the benefit of his creditors, may liberate himself from imprisonment.

When the plaintiff has pursued the fraudulent debtor through all his windings, and by a most tedious and expensive process has compelled him to make an assignment of his property for the benefit of all his creditors, the plainest principles of common justice require that the plaintiff' should first have his costs repaid him out of that common fund which his unaided exertions have secured. But such is not the provision of this bill. The property assigned is to be ratably distributed among all the creditors, saving to any creditor any lien which he may have acquired, or any priority to which he may by law be entitled."

66

The bill does indeed secure to the prosecuting creditor all his costs in those States where judgments operate as liens on the defendant's property, and it seems to have been framed on the supposition that such was the law in all the States.

He was aware that persons whose sensibilities are easily excited by real or fictitious tales of distress, imagine they see great oppression and injustice in the operation of the existing laws authorizing imprisonment for debt. But no practical evil had resulted from them, as now modified in the several States, so far as they had come under This is an incorrect opinion. Judgments do not ope. his observation. If cases of hardship and oppression have rate as liens, either on the real or personal estate of the occasionally occurred in their operation in some of the judgment debtor in any of the New England States. States, this bill will afford no remedy, because it cannot Shall we pass a law which refuses to the prosecuting control the operation of State laws or State courts. It is creditor in those States the same measure of justice which not even pretended that a single instance of oppression it affords to him in all the other States Can you sup. has occurred under these laws, in suits brought in the pose that they will approve a law thus unequal in its Courts of the United States. And in these Courts alone operation, and partial and unjust as it respects them. can your laws have an operation. The State which he The bill requires them to change their entire system of in part represented, had so modified its laws on this sub- laws, in relation to the effect and operation of judgments, ject, that debtors cannot be imprisoned, either on mesne before they can obtain the same measure of justice which or final process, for small debts. But its Legislature had it affords to the other States. This feature of the bill thought it a wise and correct policy to permit imprison-admits neither of denial nor justification. ment for debt in other cases, as a means of coercing payment from fraudulent debtors, and it often produces this effect. Under these circumstances, he could not give his consent to impose upon the citizens of that State, a law which he believed their own State Legislature would not enact or approve. He would leave legislation on this, and on all other merely municipal concerns, to the State Legislatures; to whom, he thought, they properly belonged, and with whom they may be most safely trust ed. The State Legislatures understand the situation, circumstances, and wants of their own citizens, and what municipal regulations will most conduce to their interests, better, far better, than we do. He did not wish to see two different systems of law in relation to the rights and liabilities of debtors and creditors in operation in different Courts within the same State. It cannot fail to produce great confusion and great injustice.

This bill has a very fascinating and popular title; but whatever title may be affixed to it, it is, in reality, in all its important and operative provisions, an insolvent law, and, as such, contains several very objectionable provi. sions. The proceedings under it cannot fail to be very dilatory and very expensive, two of the worst qualities that can belong to a system for the administration of

justice.

The bill provides that the proceeds of the defendant's property assigned to the Clerk of the Court, shall be ratably distributed among the creditors, under such rules for collecting the same, and for calling in the creditors, as the Court shall prescribe. This is a vast and most objec tionable transfer of legislative power to the Judges of the Courts of the United States.

These assignments will often consist of debts due to the insolvent from citizens of his own State, and there will be outstanding claims against him in the same State. it will be necessary to resort to some judicial tribunal for the adjustment of both; but we look in vain to this pill

to ascertain what tribunal it shall be.

We transfer to the Judge the legislative power of prescribing rules for collecting the debts, calling in the creditors, and, I suppose, ascertaining by adjudication the amount of their respective claims.

How is this to be done? Is a commissioner with judicial powers to be appointed to collect the debts and liqui date the claims? or, is this to be done by the District Courts, or by the State Courts? The bill gives us no information on the subject. The legislative power vested in the District Judge, seems to be broad enough to authorize him to prescribe any of these tribunals to perforin

these duties.

By the provisions of the bill, three several trials in the Have we the constitutional power to authorize a Dis. me suit may be had before it is in the power of the trict Judge, or any Judge of a Federal Court, to decide plaintiff to obtain the benefit of the final process by in a civil action between citizens of the same State? We which he is to recover his debt. The defendant, when certainly have no such power, unless in the single case arrested on mesne process, may demand and obtain a trial where the parties claim lands under grants from different on the question, whether he is a debtor, or whether he States. This case is an exception to the general rule, intends to leave the State. When this question is decid-founded on very wise and obvious reasons. It was nevez ed, he may again contest the justice of the plaintiff's the intention of the Constitution to permit the Federal

Judiciary to adjudicate between the citizens of the same State. This power of prescribing rules for collecting the debts of the insolvent, calling in his creditors, adjudicating upon their claims, and distributing the property among the creditors, is a power of no ordinary magnitude; it may involve not only the rights and property, but even the liberty of the citizen.

He could not consent to transfer a legislative power of this magnitude to any Judge.

If we look beyond the title of this bill, we see that in all its important provisions it is an insolvent law.

Has the Constitution invested Congress with the power to enact a law of this character? He believed it has not. No article of the Constitution has been pointed out from which this power can be derived, nor does it contain any such article.

It is true, that the Constitution gives to Congress the power to pass uniform laws on the subject of bankruptcies. This is the only clause of the Constitution which, upon any rational construction, invests Congress with the power of constituting a tribunal to decide between citizens of the same State. And if we have power to pass this bill, it is because it is, within the meaning of the Constitution, a bankrupt law.

It will hardly be contended, that, by passing this bill, we have established a uniform system of bankruptcy throughout the United States. If that is not its legitimate character, it will be passed without any constitutional authority.

[JAN. 18, 1828.

result from the bill? That discrepancy exists already to
a greater degree than it will when this bill has become a
law. At a period when legal science was less improved
than at present, it was difficult to make the State laws
correspond with each other, or to conform the laws of the
United States with them. In all the States, efforts, some
of them successful, had been made to secure the personal
liberty of debtors; and the sanction of the United States
was now proposed to be given to those efforts. Consti-
tutional difficulties had been urged; but Congress was
specifically vested with power to regulate the process of
the Federal Courts. In cases where there were a num-
ber of claimants to a fund placed for distribution, accord-
ing to the provisions of the bill, in the hands of the Fede-
ral officers, there were other Courts in which these claims
could be prosecuted by the several claimants, besides the
United States' Courts. The bill gave to the United
States' Courts the charge of the distribution of the pro-
perty after it had been adjudged to the creditors.
Mr. C. saw, therefore, none of the difficulties which
formed objections to the bill with other gentlemen. Mr.
C. was unwilling, and he thought it improper, that the
creditor should be the sole judge of the measure of coer.
cion which should be applied to the debtor. He was,
himself, in favor of taking this power entirely from the
creditor, and of vesting it in other and more impartial
hands. He believed that the bill was called for by pub-
lic opinion, by the improvements of the age, and by every
freeman whose liberty was jeopardized by debt.

Mr. BERRIEN regretted, he said, but he did not complain, that the Senator from New Hampshire had postponed his objections to the bill to a time when the Senate was exhausted by constant and long continued debate on the subject. The Senators opposed to the bill had, in its earlier stages, been pressed to bring forward their objections to it. He hoped he would be excused in making a very brief reply to the argument of the Senator from New Hampshire. The first objection of that gentleman was, that the bill would introduce a system into the several States discordant with the jurisprudence of those States. He would ask the gentleman to reconsider this argument, and say whether the evils which he predicted would result from the bill. The State tribunals are regulated by the State laws; and it belongs to the Legislature of the Union to establish tribunals for carrying into effect the laws of the Union. The gentleman's complaint is then directed to the system under which we live. The discordancy to which he objects exists in the Constitution of the country. The process of the United States' Courts was, by the act of 1789, made to conform to the process of the several States, as it at that time existed. But the process of the United States' Courts no longer conforms to that of those States which have altered their laws in this respect; and, of course, the law of '89 does not extend to those States which have since been admitted into the Union. A discrepancy must, therefore, necessarily exist between the process of the Courts of the United States and of the several States.

There are several other objections to the provisions of this bill, but he would not take up the time of the Senate by stating them. Those which he had already stated presented, to his mind, insuperable objections to the bill. Mr. CHAMBERS said he was a member of the committee which reported the bill, and he greatly regretted his absence during the discussion of it. Being, however, in favor of the bill, he begged leave briefly to offer his views in regard to it, and to throw out some suggestions in answer to the arguments just advanced by the Senator from New Hampshire. Mr. C. denied that the bill was an innovation it was in accordance with the improvements of jurisprudence which had of late years been made in every State of the Union: it was in unison with the spirit of the age. In the State of which the honorable member who last spoke was a representative, imprisonment for debt had been abolished in all cases except those where property was fraudulently withheld. This was the very substance and object of the bill before us. But the gentleman objects to the delays incident to the provisions of the bill. He would be happy to hear and to act upon the suggestion of any feasible mode of lessening the delay, or of rendering the results more certain. That the system was perfect, he did not believe; nor was perfection to be attained by the first experiment. In law, as well as in other departments of science, a system could be formed only by long and careful observation and experiment. There might be imperfections in the details of this law, but if its principle was good, those details would soon be corrected. Mr. C. was not surprised that a wide difference of views should exist in this To the objection urged against the title of the bill, it body as to any measure of a legal character: for the sys- was not necessary for him to reply: for the title formed tems of jurisprudence prevailing in the different States no essential part of the bill, and did not, in any way, conwere widely different. It was not to be expected, there- trol its provisions. If it was considered inapt, he would fore, that gentlemen would at once relinquish their pre-consent to its modification. It was said that the bill was judices, and concentrate their views. He, like the Sena- an insolvent system. So it was, to a certain extent : but tor from New Hampshire, had been brought up a lawyer, the whole force of the bill was not spent upon that object. and was attached to the particular legal usages to which He would agree that the bill was an act to relieve from he had been accustomed. compromise of conflicting imprisonment, or the danger of imprisonment, those opinions was necessary in regard to the details of this debtors who made a full and fair surrender of their probill; and compromise, he remarked, was the basis of our perty, and to render more efficient the existing laws for Constitution and of all our legislation. The Senator from the coercion of fraudulent debtors. It was also objected New Hampshire objected to the introduction into his by the gentleman from New Hampshire, that the proviState of a new system of laws. Will this consequencesions of the bill delayed the administration of justice.