JAN. 18, 1828.]

Imprisonment for Debt.-Judicial Process.

[SENATE.

He was not about to travel again through the argu- influence of Christianity. What is the difference? In ments which he formerly urged against this objection. New Hampshire no debtor can be imprisoned, either on But he would take occasion to remind gentlemen, that mesne or final process, unless the demand exceed $13 33. the delays of justice between citizen and citizen was a That goes still further than the present bill to abolish impart of the price which we paid for justice. The Sena-prisonment for debt. In all cases over that sum, debtors tor from New Hampshire assumes that the framers of the can be held to bail on mesne process. So they may by bill took it for granted that judgments were, in every this bill. The only difference is, that an oath and other State, a lien on the property, real and personal, of the formalities are required here, and not there. But there, debtor. The assumption was gratuitous. The laws of in practice, not one debtor in five hundred is committed the States remained unaffected by the provisions of the to prison on mesne process. How stands the difference bill. The gentleman was alarmed by the vast delegation on final process In New Hampshire, every debtor can of power to the District Courts-a power to decide be- be discharged from prison in fifteen days, on a full and tween the claims of citizens of the same State to the pro- fair surrender of his property. By this bill he can be disperty assigned by the debtor. But the bill, he averred, charged on such a surrender and notice before final progave no such power. It provides only for the distribu- cess issues. But there in practice the surrender is usualtion of the property assigned, after the claims of that ly made before the capias is served; and then the debtor property had been adjusted and decided by the proper is not committed; but whenever he is in fact committed, tribunals. The laws existing provided for this case. If the detention continues only fifteen days, and has not, for the cause of action came within the laws of the United many years, exceeded thirty days, unless the debtor wants States, the action would be brought in the United States' further time to adjust his concerns previous to his discloCourts; if not, it would be brought in the State Courts. sure. The principle, then, both there and here, is, that The bill was said to be an insolvent law; and he had the debtor shall not be imprisoned after an honest surrenalready admitted that, to a certain extent, it was. The der of his estate; while there, as well as here, if the disSenator from New Hampshire doubted whether it was closure be proved dishonest and fraudulent, the debtor competent to the United States to enact an insolvent must remain in prison. In both cases, the fair and uplaw. The constitutional power, he thought, could not right debtor is not to be treated as a felon, while the debe doubted. Judicial power is granted by the Constitu- ceiver and knave are to be kept confined till they distion-and is Congress to be restricted in the method of gorge their ill-gotten gains. In this last provision, the exercising that power, by such scruples? He wished present bill is an improvement on our system, as the conthe bill might be charged with the faults that really be finement is restricted, as it should be, in cases of fraud, longed to it, and not with those for which it was in no to the prison walls, instead of the limits of the jail yard. way responsible. Insolvency, said Mr. B. is a part of The other slight differences between the two systems, bankruptcy, and if we have a right to regulate the great-relate entirely to detail. It is not pretended, by my coler subject, we have a right to regulate the less. The league or any body else, that either of them is, in form or Supreme Court had decided that we had this right. Is substance, a bankrupt system. But the system of New this bill, concluded Mr. B., which has such large claims Hampshire is, in essence, an insolvent system, as much as on the Government, and from the moral effect of which this bill; and this is no more unconstitutional in regard so much is hoped, to be sacrificed to a doubt, whether we to debtors committed under process from the United have a power which was never denied to us before? States' Courts, than that is as to debtors committed under Mr. WOODBURY said, he asked the indulgence of State process. Both Governments have an undoubted the Senate a few minutes in reply to the remarks of his right to regulate their own process, and that is the only colleague, concerning the operation of this bill upon power exereised by the present bill. The lien of the New Hampshire. He had not heretofore entered into the creditor does not, it is true, exist there as to either perdebate upon its merits, and certainly, at this late stage, sonal or real estate, till a seizure or levy; but the operashould not in that way trespass. Was the passage of the tion of this bill neither injures nor benefits the people of b: an unusual or unwarranted stretch of power in the New Hampshire in that particular-they are left as before. General Government? Had New Hampshire, or any Indeed, the whole operation of the bill there, if it differ other State, a right to complain that the Legislature, for ed materially from the principle of her present system, the confederacy, when the Constitution was silent, should would be very limited, as it affects only process from the prescribe particular forms of process for its own Courts, United States' Courts, and those are so few, that not five and alter them as experience and reflection should dic-persons in a year, in the whole State, would probably te tate? It must be done from necessity. It had been done avail themselves of its provisions. ever since the organization of the Government; and durng the last quarter of a century an act of Congress had existed, without complaint, which allowed private debtors committed under process from the Courts of the United YEAS-Messrs. Benton, Berrien, Bouligny, Branch, States, to be discharged from imprisonment after a sur-Chambers, Eaton, Foot, Harrison, Hendricks, Johnson, of render of their property. New Hampshire had not been Ky. Johnson of Lou. Kane, King, McKinley, McLane, grieved by the exercise of this power, though in sub- Macon, Marks, Parris, Ridgely, Sanford, Silsbee, Smith tance operating as an insolvent system: because she had of Md. Van Buren, Williams, Woodbury-25. substance, under a form in some respects milder, a similar system of insolvency; or, in other words, a similar ystem of abolishing imprisonment for debt. Mr. W. said, he believed the present bill would prostrate the rights trench deeply on the accustomed privileges of her people, he would oppose its passage as cheerfully as he supported it. But, in truth, the great principle of The bill to regulate process in the States admitted into bill is now the great principle in the system of his the Union since the year 1789, was read a second time. State. The difference existed mainly in details; Mr. WHHTE said, he thought the bill susceptible of im. and though he disliked some of the details of the present provement. I move you, sir, (said he) that it be amended that great principle was too laudable and huby striking out the word "now," in the ninth line, and mae a one to be sacrificed for form. It was a principle inserting in its place, the words" or may be." By this in accordance with the spirit of the age and the genial alteration the Federal process, in each of the States ad

measure,

The Yeas and Nays being called for by Mr. VAN BUREN, on the passage of the bill, it passed by the following vote:

NAYS-Messrs. Barton, Bateman, Bell, Chandler, Chase, Cobb, Dickerson, Ellis, Knight, Noble, Robbins, Ruggles, Seymour, Smith of S. C. White, Willey-16. So the bill passed.

JUDICIAL PROCESS.

SENATE.]

Judicial Process.

[JAN. 18, 1828.

ever this change is effecting by State legislature, for the benefit of suitors in the State courts, suitors in the Fede ral court, held in that State, ought to have the benefit of it. Harmony between the Federal and State processes, it appears to me, is essential to the happiness of the people. A citizen of one State has a demand against a citizen of another State, for a sum of money, and sues for it in the Federal court, where he recovers a judgment. This debt. or has a demand against one of his neighbors for the same, or for a larger sun, for which he sues, as he must do, in his State court, and recovers a judgment. Suppose the le gislature of that State to have abolished imprisonment for debt, some time after the passage of the bill now before you, would it not be thought exceeding hard, that the one might be imprisoned by federal process to enforce pay. ment, while the man thus imprisoned could not use the like process to procure a fund sufficient for his release? Adopt my amendment, and we will continue the harmony with which we commence without any farther legislation by Congress. Reject it, and in a short time we must legislate again, or discord will be produced, and with it heart-burn.

A majority of us appear desirous to abolish imprison. ment for debt, so far as safety to creditors will permit. Adopt my amendment, and you will, without farther trou. ble, continue this work of abolition to every extent it ought to be carried. The Legislature of cach State must neces sarily better know than we can, whether the character of the citizens, and the kinds of property they own, are such as will enable them, with justice to creditors, to blot from their legal codes the capias ad satisfaciendum. If they de ny it in the State Court, it will be denied in the Federal Court likewise, and thus Imprisonment for Debt will be abolished in some States, where it can safely be done. In other States, where from the character of the citizens, and the kinds of property they own, the Legislature believe the ca. sa. cannot be discontinued without doing injustice to creditors, there, as it must be continued as to the State, tribunals, so let it be as to the Federal.

mitted into the Union since September, 1759, will, as to its kind, the matter upon which it is to operate, and the manner of its execution, conform to the process used in the courts of these States respectively, not at the time of the passage of this bill, alone, but in future. As the bill now stands, we adopt for the Courts of the United States the process of these new States; and the rule of process thus settled, will remain permanent, notwithstanding any changes which may be made in the process of the State tribunals. The consequence will be, that in a short time, in some, if not in all of these States, we will have one rule for Federal process, and another for State process, in the same State. This, in my judgment, ought not to be. Whatever is a safe and convenient process, to bring a defendant into a State court to answer to a demand set up against him by a citizen of the same State, and what ever process may be used in the State Courts to compel sa tisfaction of the judgment recovered in such ca e, will probably be the most safe and convenient process to be used in the Federal courts sitting in the same State. This was my impression at the commencement of the session, and the arguments used on the bill " to abolishings and discontent. imprisonment for Debt," and especially the argument of the gentleman from South Carolina, not now in his seat, on the motion made by him to recommit that bill, confirmed this impression. I voted against the passage of that bill, not because I am opposed to abolishing Imprisonment for Debt; but because I then believed this was the bill, by virtue of which that object would be attained, as far as justice to the creditor would authorize. Uniformity in the process to be used in the Federal Courts in the new States, is not intended by the bill, as it now stands. If it passes in its present shape, we will have at once nine different rules, disagreeing each, perhaps, with all the others; but in each the Federal rule and the State rule will be the same in the same State. This will be, in my opinion, as it should be, at the commencement; but as soon as any one of these States by its legislation changes its rule of process, without my amendment, we will have two rules essentially different, in the same State: I do not see that there is any reasonable ground for ap the one for the State, and the other for the Federal Courts. prehension upon my plan. It can but rarely happen that This, in my opinion, ought never to be. Therefore I have the Legislature of any State will ever make laws on the proposed the alteration. With t, there will always be subject of process to be used in the State Courts, which harmony between the State and Federal process, in the the Congress would not approve of, as a rule for the prosame State; and whether they agree or not, with the pro cess of the Federal Court in the same State. We have, cess used in any other State, is of no importance whatever. in the first place, the integrity of character of the mem. The Legislatures of the respective States will always be bers of those bodies. In the next place, they cannot more competent to decide what is the most suitable pro- disregard the interest of the creditor or the debtor who cess to be used within their limits, than the Congress of are suitors in their Courts; and we all know that much the the United States. I put it to every gentleman to say, largest proportion of debts sued for, of necessity, under whether a man living in Maine would be as competent to our systems must be sued for in the State tribunals. Again: decide what species of execution ought to be used in Ten- if, at any time, an unconstitutional law should inadver nessee or in Louisiana, as the same man would be, if he tantly be passed there is the judiciary to check the mishad resided a considerable time in those States, and was chief, and, in addition, Congress will always have the pow legislating for the sake of doing justice between debtorer to legislate upon this subject, and never will fail to and creditor there? He certainly would not be.. That exercise it, if any excess in State legislation should make which would be a very suitable process in one of those it necessary. States, when their habits, their modes of dealing, and the species of property which they owned, were duly considered, might be, and often would certainly be, an inappro| priate and ruinous process of execution in the others, when these things were materially different. If a non resident citizen, or an alien, has always, in any State, exactly the same measure of justice meted to him in the Federal Courts, which a citizen of the State would be able to ob. tain against a citizen of his own State, he obtains every thing which, reasonably, he can desire.

In new States, where the circumstances of the people are continually changing, it will invariably happen that execution laws will be changing likewise; and that which is a good execution law now, in a State, may in a short time be found very unjust, as it relates to debtor and creditor, and require an amendment from the Legislature. When

I am unwilling, Mr. President, to weary the Senate, or fatigue myself, by longer addressing you at this time. The debates pon the other bill have, as I think, fully ex plained this subject, and I now claim the benefit of them in favor of my amendment.

M. VAN BU REN said that it was with reluctance that he differed with his friend from Tennessee, espe cially on a subject on which the experience of that gentleman was so much greater than his own, and still more in relation to a matter in which the new States had not received their share of benefit. It was proposed by this bill to place the States admitted into the Union, since the year 1789, upon a better footing than the others. It was his opinion that it could not be done in justice; nei ther was it possible to effect a system such as the gentle man contemplated. On a former occasion he had ob

JAN. 21, 1828.]

Judicial Process.

[SENATE.

tained the opinions of gentlemen from all the States in servations with which he thought it his duty to trouble the the Union, and there were no two that agreed; which Senate, he hoped he might be represented fairly, and that would serve to show the difficulty, if not impossibility of they might be given to the public in the same manner as any such plan. Congress could not pass any such law they were given to the Senate. He imputed, in saying without interfering in some way. Therefore, the law this, no blame to any one. But such was the situation of was formed so as to take a middle course. It was impossi the Reporters, under the present arrangement, that he ble to give up all the power of the Federal Courts without believed it was not possible for them to comprehend the involving the country in confusion. That power ought to remarks of the members. He had been made, in a report be limited to the utmost; but it ought to exist. This act, in a newspaper printed in this city, to offer an amendment if passed, would enjoin upon the United States to conform to regulate process in the States hereafter to be admitted to the laws of the States, not only as they were, but as into the Union. He might have been misunderstood by they might prove to be. The object of the law of '89 others, as he had been by the gentleman from New York, was to preserve the rights of persons coming into court-[Mr. VAN BUREN] also. It was hardly necessary for him so far that act went. But it could not be expedient to now to explain that the interpretation was an erroneous submit that the laws, which each State might pass from one. time to time, should govern the Federal Courts. If Con- Mr BERRIEN remarked, that he hoped no gentleman gress gave up the law of the United States to the different felt desirous of pressing this bill, as it was highly to be States, they ought to know what system they agree to, wished that its provisions should be fully examined before and not, by doing so, subject the jurisprudence of the it passed. It would be improper and impolitic to decide country to everlasting change and uncertainty. He would hastily upon a question of importance equal to that of this suppose a case. A suit might be pending between an in- measure. Its design seemed to be to draw a broad line dividual and the United States, and during the pendency of distinction between the States admitted into the Union of the cause the State Legislature might pass an act inter- previous to the year 1789, and those admitted since that fering with its decision, and calculated to stop proceed-period. The result would be, that the new States would ings until the next Session of Congress. Such interfe- have the power to regulate process by Legislation, from rences would overturn the rights of the Federal Courts. time to time, subject to the supervision of the Supreme He was the last person who would give to the Federal Ju- Court of the United States, while the old States would diciary rights to which it was not entitled. He was, on enjoy no such privilege. Why not, if this is a salutary the contrary, as much convinced as any man, that more provision, equalise, in this respect, the condition of the danger to the powers of the States had been exhibited in different portions of the country? In the old States no the signs of the times," during the last six years, than right existed to regulate process from time to time, by ever before. But he would sustain nothing that would legislation. At first view, without having given the subgo to overturn the legal and legitimate power of the Go-ject much consideration, it appeared to him an unequal vernment, which ought to be guarded and preserved. and partial measure. He, therefore, wished an opportu nity might be had to examine the subject farther than he, as yet, had enjoyed an opportunity to do. And to this end he would move to postpone it to some certain day, or to lay it on the table.

On motion of Mr. HARRISON, it was ordered that, when the Senate adjourn, it adjourn until Monday.

MONDAY, JANUARY 21, 1828.

The unfinished business of yesterday was then taken up, and the bill to regulate process in the States admitted into the Union since the year 1789, being before the Senate, the question recurred on an amendment offered by M. WHITE, to strike out the word "now," and insert the words "may be."

Mr. WHITE remarked, as nearly as our Reporter could hear, that he had no objection to the motion made by the gentleman from Georgia, and would accede to his proposition.

Mr. JOHNSON, of Ky. said, that he considered it his duty to oppose the bill, unless it provided to correct the usurpations which had been exercised by Circuit and District Judges in Kentucky-in fixing upon the State, execution laws, under the title of rules of Court. He would vote for the bill, if he understood that it provided to re

Mr. VAN BUREN observed that, on Friday the Sena tor from Tennessee [Mr. WHITE] happened to be on the floor, explaining his views on this amendment, when he [Mr. V. B.] entered the Senate-and he supposed, from the tenor of that gentleman's observation, that his amend-gulate the process of the United States' Courts by the laws ment was, in its scope, co-extensive with the argument on the bill to abolish Imprisonment for Debt, to which he alluded. I was, said Mr. V. B. in error; and the motion of the Senator from Tennessee. I now learn, does not attempt to take away the supervision of the Supreme Court of the United States but to adopt the laws of the several States in the Circuit Courts, under the supervision, as formerly, of the Supreme Court. The amendment would, perhaps, secure some provisions in favor of those States which they could not otherwise attain; and he had no intention to oppose the bill or the amendment, under their present aspect.

of the States. He had thought, that, if Congress had con. fidence in the States, and believed that they could be trusted, the Federal Courts might be guided by the laws of the several States. There never did exist, since the creation of the world, a greater system of usurpation than that which had been practised in Kentucky, by the assumption of Judges, to pass execution laws. [He here alluded to the laws of Draco and Solon; but our reporter could not catch the manner in which they were introduced.] He cared not whether the laws adopted by the Judges were good or not. That was not the question. Whether good or bad, if forced upon the people in a tyrannical or unconstitutional manner, he should always raise his voice he was going to say he should raise something else; but he would not-against them, in duty to himself and his constituents.

Mr. WHITE said that it was so far from his wish or design to press his bill upon the Senate, that he should not now urge it if the members had scruples as to its expediency. Though he was anxious for the passage of this bill, he did not wish to urge it against the judgment of any Mr. KANE said, that he should regret the postponeember, without giving ample opportunity for investiment of this bill for a single day, and he hoped the gen ating its merits. He thought this measure of great im tleman from Georgia would not press a postponement. prtance to the New States, whose situation was pecu- It was true, if the amendment of the gentleman from Ten. Jar, and had been desirous of being clearly understood nessee prevailed, it would establish different regulations upon it. But he was so unfortunate as to have been en- in the old and the new States. But this did not present tirely misapprehended in the few remarks he had made an objection to the bill, of a serious nature; for, that dison Friday. If any account was ever given of the few ob- tinction might easily be removed, by a modification of the

Judicial Process.-Lieutenants in the Navy.

Mr. BERRIEN said that he had not the slightest objec Mr. HARRISON moved the postponement of the bill tion to the progress of the bill. For himself, however, he (being the next in order) for the gradual reduction of the desired a fuller inquiry into its merits and bearing. The duty on Imported Salt, on account of the absence of a Sengentleman from Illinois had certainly proposed an import-ator, who took an interest in the proposed measure; but, ant alteration in the amendment, which he had declared before any question was taken on his motion, he withdrew himself ready to offer. But, however simple the question it, at the request of might be, still it was a question, and required the greatest deliberation. If they were to do away the inequality of its operation, and give to the old States the same provisions that were extended to the new, a difficulty remained. The power extended by the bill to the Federal, Courts, was entirely illusory. Laws might be enacted to regulate processes, but they might be altered by the Supreme Court, and no limit was placed to this power of alteration. He thought that, if the system was adopted at all, the Supreme Court ought to be invested with a supervising power, with limitations-in the first place, from altering the march of suits, so as to make their progress more rapidly

and thirty-six who had served five years, and who would be excluded from the benefits of the provision for an equal number of years. therefore, in his opinion, be hard and unequal; as it The operation of the bill would, would be perceived that there were a number of lieutenants who would not be entitled to the increase, and yet who had served nearly as long as those who would have the benefit of this bill. Many junior officers were employed in the same service, and placed on an equal footing with those who were a few years their seniors; and the result would be, that, when they were in ports to gether, they would not be equal in respect to pay, and the one would be able to enjoy comforts beyond the reach of the other. This would be peculiarly galling to the younger officers, in cases where they should happen to mess together. All such causes of discontent and complaint ought, if possible, to be avoided; and he felt assured, if the bill should pass, its partiality, in this respect, would be severely felt. There could not possibly be devised a plan more certain to depress the spirits and wound the pride of a spirited officer, than this. Mr. H. said, he had determined to vote for the bill as it was reported. But he should, upon further reflection, do it with great reluctance, and only under a conviction that nothing better could be obtained: and he gave his friend from Maine fair warning, that, should the proposition to amend the bill not succeed, so as to include all the lieutenants of the Navy, in the proposal for an increase of pay, he would not cease to urge it with all his efforts, and would bring forward a proposition to that effect, until the junior officers should be placed upon the same footing as those who had served a longer term of years.

Mr. WOODBURY said, that he should not have expressed himself further upon this subject, had he not been misunderstood. It was considered by the committee, that, after long services in the Navy, at that time of life when the judgment was matured, and the officer like ly to have formed connexions which would increase his expenses, it was merely equitable that he should receive an increased compensation. In the Army, after having served for such a space, an officer was entitled to a brevet rank, by the mere force of time. There was no such advancement in the Navy, and this additional compensation would supply, in a measure, its place. It was said that there were individuals as meritorious among the junior officers as among those who had served longer. This might be, and probably was, often the case. But, in the Army, no such principle as this was acknowledged, as an officer there received his brevet rank merely on account of the length of his services. The principle, on the contrary, was the same in the Navy as in the Army. A midshipman, for instance, was, after having served for a certain number of years, entitled to a warrant as post midship. This was given him by the force of time alone. He could not even be examined until a certain time had passed. So, in the English Navy, the surgeons were entitled to a certain increase of pay after a certain time of service, and depending on nothing else. The committee, however, did not rely entirely on theory, in relation to this subject. They had received a letter from the Secretary of the Navy upon this topic, in which he recommended that an increase of pay should be given to lieutenants who should have performed ten years of faithful service. This letter was not communicated to the committee until after they had reported this bill, with which it accorded exactly, and shewed that the views of the Department corroborated fully those taken by the commit. tee. Since this bill had been before the Senate, a memo. al from the surgeons of the Navy had been received, which was now under the consideration of the committee; and he thought it a distinct subject which ought to be allowed to stand on its own merits.

man.

VOL. IV.-7

[SENATE.

As to the

from Georgia, to recommit the bill, with the design of Mr. HAYNE said that the proposition of his friend premature. The whole subject of the medical depart providing for the surgeons of the Navy, was, he thought, ment of the Navy was now before the Committee on Naval Affairs. It was very desirable that measures should be taken to induce men of talents and high character for science to go to sea in that department. The subject of compensation, it was true, would be a matter of grave consideration; but that did not embrace all the objects which the committee, in forming their plan on this subject, had in view. They had, therefore, reserved that subject to be provided for by a separate bill. present bill, he wished it to pass for the benefit, and in consideration of the merits, of the lieutenants alone. And, while he was up, he would say a few words in relation to it. I agree, said Mr. H. with my friend from Ohio, that the present pay of this valuable class of officers is inadequate to their comforts or their services; and I do not agree with my friend from Maryland, in the motion which he has made. To the bill as it was reported, I will allow I had sation should not extend to all. To the elder officers it some objections. But I think that the increased compen was due, in order that they might have the means of liv. ing according to their rank. The committee were of this opinion, sustained by that of the Department. So far he disagreed from his friend from Maryland, that he would not accept that gentleman's proposition, unless he should be convinced that the bill, as reported, could not be obtained. Hampshire, that, throughout the Navy, the pay ought to He thought, with the gentleman from New opinion was, that the pay ought to be progressive; so be arranged according to the time of service. His own much after five years' service; an increase after ten; and so on. of pay which would always induce the officers to perform He should be in favor of giving an increase their duty with zeal and fidelity. This would be done most effectually by fixing an advance of pay at a certain period, to be the reward of faithful services. He did not doubt that all performed their duties now; but he would ask, whether it could be supposed that an officer who had served twenty years had no more claim to gratitude and reward from his country, than one who had served only five years? It was not doubted that time and service would have ripened their talents. Time also generally changed their condition. Becoming older men, they naturally formed connexions, and probably had wives and families to support. It is true that, for a young officer, the pay is sufficient. I say, therefore, said Mr. H. that a necessity does not exist to increase the pay of all the lieutenants in the service. But, if it is allowed that the present pay that it ought to be increased as a longer term of service is sufficient for the younger grades, I contend fixes their character and increases their usefulness. In the Army, if length of service did not entitle the officer to an increase of pay, it gave him an advanced rank; and he believed, that, from the increased expense to which they were exposed at home and abroad, the older officers were entitled to further pay. But, if he could not get that, he was willing to take up with the proposition of the gentleman from Maryland.

Mr. CHANDLER did not need the warning voice of the gentleman from Ohio to convince him that the measure would be persevered in. belief before, and he now repeated it, that this was only Mr. C. had expressed his one step towards a general system of high pay. No doubt it would be followed up until every officer in the Navy would share in the increase. The brevetted officers of the Army had been referred to. But he believed it would be found that they had no increase of pay in consequence of their brevets, unless they were given a separate com mand. If it were necessary that the pay of some of the