Register of Debates in Congress, Comprising the Leading Debates and Incidents of the First Session of the Twentieth Congress Page: 51
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51
GALES 6? SEATON'S REGISTER
52
SENATE.]
Imprisonment fur Debt.
[Jan. 10, 1828.
hand of an equal, its effect is lost, and its power contem-
ned and defied. The object of all punishment is reform.—
The few are punished, in all wise governments, that the
many may be restrained and reformed ; but what reform-
ation has been wrought in this country, or in England, by
the punishment of imprisonment for debt, during the last
three hundred years ? To what extent lias the guilt of
incurring debt been restrained, by permitting creditors to
imprison their debtor?, during all that time ? Sir, imprison-
ment for debt never has, and never will, diminish, mucli
less extinguish, the guilt (if guilt it may be called) of in-
debtedness. People will incur debt, whenever they can
obtain credit; and credit will always be given when there
is a hope to gain by it. When you can extinguish the
wants of the debtors, and the avarice of the creditors,
you may hope to extinguish debt, and not till then. In
fine, you must extinguish society, you must extinguish
man, before you can bai.ish this guilt from the world.
Sir, if you consider the debtor as a criminal, and im-
prisonment as the punishment of his crime, you cannot
help perceiving, that the punishment is as unavailing as it
is unnatural and cruel. But, again, if it is a crime to be
indebted, why deprive the debtor of the privilege of every,
even the most abhorred, culprit? Why do you invert the
presumption of innocence, which shields the accused from
punishment, until his guilt is proved, and presume him
guilty without proof ? Sir, when the debtor is imprisoned
upon original or mesne process; even the fact of his be-
ing indebted, is not ascertained, is not proved, nor does
the law require any proof of it,—it takes the word of the
creditor for that fact; he brings his suit, and directs im-
prisonment, if bail cannot be obtained, and it is done ac-
cordingly. Sir, is there a people on earth, having any
love of liberty, any pretensions to freedom, who would
submit long and calmly to such a state of things ?
Again, upon the admission which has been made for
the sake of the argument, that debt is a crime, the debtor
has a right, under the constitution, " to a speedy and im-
partial trial by a jury of his peers, from the vicinage, to be
confronted, by the witnesses against him, and to compul-
sory process, to compel the attendance of witnesses, in
his behalf." But the debtor is imprisoned without jury,
without trial, without the proof of witnesses against him,
and without the privilege, or power, of adducing proof
of his innocence. Now, the debtor is either innocent, or
guilty ; if innocent, he ought not to be imprisoned ; if
guilty, his guilt should be ascertained and established by
proof, in the course of a fair, and impartial trial, accord-
ing to the constitution of his country, before he should
be imprisoned ; conviction should, in all cases, precede
punishment; but, whether guilty, or innocent, lie should
not, with or without a trial, be imprisoned by his creditor.
Mr. President, we are told by some of the opponents of
this bill, that they have a great veneration for the common
law, and are unwilling to make the innovation upon it,
which this bill contemplates*; that imprisonment for debt,
is a c.immon law regulation, which has existed for ages,
and been sanctioned by the intelligence of mankind, dur
ing all that time ; and they urge the long continuance of
the rule, as conclusive evidence of its wisdom. Sir, it is
certainly true of the common law, that it is a very ancient,
and a very wise system, and that its antiquity is no small
evidence of its wisdom. But has imprisonment for debt
the authority of the common law in its favour ? Is it of
common law origin ? If I believed it was, I, like the gen-
tlemen who have advanced the sentiment, should be slow
to question its wisdom ; I should hesitate before I consent-
ed to abrogate it; for 1 consider the common law the most
perfect, the most sublimated system of rules, for the con-
*• duct of man, in a state of civil society, that is to be found in
the history of the world j a system which defines his rights,
and regulates his conduct, with a more just regard to his life
his liberty, and his property, than any other, which has ob-
tained amongst men ; a system most happily suited to se-
cure' the personal liberty and promote the happiness of
men, in all the conditions and relations to which they are
incident, in a state of civil society : the only system which
can, without the violation of modesty, exult in the boast,
" that it is the perfection of reason."
Sir, I, like the gentlemen who oppose me, claim the
support of the common law upon this question ; the gen-
tlemen will pardon me, when I tell them that they labor
under an illusion as to the common law doctrines, in re-
ference to civil imprisonment; it knew of no such thing ;
there was no imprisonment for debt by the common law ;
that system left the creditor, in relation to his debtor,
upon the only ground which he could justly or rationally
occupy; the ground on which he had placed himself by
his contract; it gave him access, by execution, to the
property of his debtor, but forbade him to profane his
person ; it not only did not permit the creditor to tear
th; debtor from his family, and immure him in a prison,
but it exempted the beasts of the plough from the exe-
cution of the creditor, for the support of the family of
the debtor. And in this we see, not only the reason but
the humanity of that wise system. Sir, it cannot be sup-
posed that the creditor, in the contract, contemplated
the body of the debtor as the fund out of which his mo-
ney was to be made'; he surveyed the condition of his
debtor, and inferred his solvency from his possessions,
not from his person. The common law rated the person-
al liberty of the subject above all price. One of its most
favorite maxims is, " that the least corporal punishment
is greater than the greatest possible amercement." It
would not, therefore, permit the creditor to take the •
body of the debtor, instead of his property ; to violate
his contract by the violation of the personal sanctity and
liberty of his debtor. It would not permit the debtor, if
he were so disposed, to contract for his imprisonment ;
still less would it sanction or enforce such a contract.
Sir, the liberty of the subject, next to life, was the fa-
vorite of the common law ; he could be imprisoned only
for crime, and in that case, only by the sovereign power.
I repeat, Sir, that imprisonment for debt, so far from
being sanctioned by the common law, was unknown to
it, and reprobated by its spirit, its analogies, and its prin-
ciples. The Senators from South Carolina have mista-
ken, if they will permit me to say so, statutory interpo-
lations into that system, for the system itself. The anti-
quity of those statutory inroads upon the symmetry of that
most excellent system, was well calculated to superin-
duce the error into which these learned Senators have
fallen.
Sir, if the States in this Union had adopted the com-
mon law, the whole common law, and nothing but the
common law, imprisonment for debt would have been
unknown in our land, and they would have possessed a
code of law as favorable to civil freedom as their Consti-
tutions were suited to political liberty. The common
law, before it was defiled by statutory innovations, might
have been admired as the impenetrable JEgis of civil li-
berty. But the States, in adopting it, adopted with it
the statutes of England, in furtherance (as they were
miscalled) of its provisions ; and the great misfortune is,
that those statutes, and the judicial interpretations, or ra-
ther, in many instances, perversions of them, are mistak-
en for the common law itself. Sir, it was not until the
reign of the third Henry, that civil imprisonment was
known or tolerated in England. It had its origin, not in
the intelligence of the nation, but in the power and ava-
ricQ of the barons of England. It was not invoked by
the reason of the people, but obtruded upon them by the
aristocracy of wealth and title. The barons of that reign,
obtained the passage of an act of Parliament, whereby it
was ordained "that bailiffs, or steward?, who failed to
account to their lords, if they withdrew themselves, and
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Gales, Joseph, 1761-1841. Register of Debates in Congress, Comprising the Leading Debates and Incidents of the First Session of the Twentieth Congress, book, 1828; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc30740/m1/30/: accessed April 18, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.