The Debates and Proceedings in the Congress of the United States, Seventeenth Congress, Second Session Page: 137
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HISTORY OF CONGRESS.
Imprisonment for Debt.
man who is nominally a debtor to the Govern-
ment, necessarily a public defaulter? I verily be-
lieve that a, great proportion of those who have
been proclaimed to the country and the world as
having squandered the public money and rioted
upon the public funds, are not guilty, at least to
die extent charged. Some can satisfactorily ac-
count for the expenditure when a trial shall be
had. Some have been, like other men, subjected
to inevitable losses and misfortunes; and a few,
although they have faithfully devoted themselves
to the nation, done the State good service, and
received no profit, are yet unable to furnish legal
evidence to account for the balance against them.
Will you place all these beyond the influence of
your law, presume their guilt, and draw a distinc-
tion between them and other debtors? It would
be a violation, not of justice merely, but of the
equal rights of the citizen. The objection, then,
to these exceptions, rests on this obvious principle,
debtors should not be presumed fraudulent, until
fraud be proved; nor stigmatized as guilty until
guilt be established. No distinction should be
made at the commencement of the suit. The
present laws of the States and the Union, make
none, and he did not perceive the justice of the
The simple proposition, which the amendment
suggests, with rcspect to the first process in the
action, is, that bail may be required to secure the
appearance of the defendant to answer the demand.
This being accomplished, no further claim is made
upon his person ; or, if the defendant, being insol-
vent, have not credit to obtain the security, he
may devote his property to that object. In either
case, the legitimate design of the arrest has been
obtained, and imprisonment is unnecessary. In
practice, this provision can create no difficulty.
The honest man can find pledges for his appear-
ance, at any stage of the proceeding. He who
cannot, must have lost the confidence of those
around him, and ought to place his property where
it may satisfy just claims.
But, sir, there is another and more important
process against the debtor, and which the bill abol-
ishes : a process after judgment, to enforce its
payment—the capias ad satisfaciendum.—in com-
mon parlance the ca. sa. When judgment is pro-
nounced, the justice and extent of the creditor's
demand are no longer doubtful. It is liquidated
and established ; arid he has a perfect right to have
it satisfied, and to call upon the power of society
to enforce it against an unwilling debtor, by all
the means which are properly calculated to pro-
duce the effect. The first process, for this purpose,
ought to he directed against the property: that
should be first devoted to the object. But such
writ cannot always be effectual; the property may
he secreted, or of such kind as will be exempt from
-seizure, by any process now known, although the
defendant has an immense amount of it in his
hands and under his control. Even a limited ex-
perience will inform us, that executions against
property are often eluded by those who live most
luxuriously, but who, having no visible estate on
which the officer can levy, may entirely escape
the coercion of the law. if their persons be pro-
tected. Is this right? Ts it just? Is it wise in
government, is it correct in morals, to permit it?
While the debtor, it may be, riots in expensive
pleasures, and enjoys his wealth, beyond the reach
of your law, the creditor, with his family, may be
reduced to the utmost penury and distress, fit ob-
jects for the cxercise of those feelings of compas-
sion, which the honorable members from Ken-
tucky, Virginia, and New York, have lavished so
profusely on the debtor alone. Surely that is a
misguided humanity, which wastes itself upon one
class, in total forgetfulness of the sufferings of
others, though created, perhaps, by the objects of
its benevolence, and in utter disregard of the
claims of justice. If, sir, the body of the debtor is
to be secured from imprisonment, every mode to
reach the whole property should be furnished, or
you will work monstrous injustice: you permit,
without rebuke, the violation of contracts—the
neglect of obligations—the prostration of the very
elements of which civil society is composed.
I would, therefore, continued Mr. S., free the
body then, and then only, when an assignment had
been made, of such kind that every species of
property, real and personal estate, choses in action,
public stocks, every thing by which debts could be
paid, might be controlled and commanded by it,
and the creditor placed in the entire rights of the
debtor, and enabled to secure his claim against
the efforts of concealment and fraud, if such snould
be practised. The third section of the amendment
endeavors to reach this result, by such modifica-
tions of the usual proceedings, as will extend kind-
ness to the debtor, without infringing the not less
sacred rights of the creditor. It leaves the ca. sa.
or writ in the nature of it, untouched: that the
officers may, if necessary, take the body; but di-
rects that the body be not taken, if the defendant
will assign his property for the payment of the
debt. It is only in this, or some similar mode,
that the equal rights of the two parties can be
protected, and honesty and justice maintained.
To maintain them, I would preserve the right to
imprison the body of the freeman, however hu-
miliating the idea may seem. On this point, sir,
I have no peculiar professions to make of human-
ity and feeling, or respect to the person and liberty
of the citizen, as passports to the confidence of the
body I address ; nor snail I be regarded as unmind-
ful of them, because I do not make such profes-
sions. We have two objects to effect, and it is not
wise nor just to permit the one to absorb the other.
Contracts should be held inviolable. No man
should be suffered to escape from their performance,,
until his power to perform had ceased. The de-
mands of justice and honesty should be rigidly
enforced, and if the seizure of the body be neces-
sary to enforce them, the body should be seized.
No relief should be extended, from humanity to
the debtor, until he had done what they require.
And, in order to accomplish this object, imprison-
ment should be retained as one of the most efficient
means. It has been most incorrectly considered
and treated, in this discussiou, as a punishment
for beinar unfortunately in debt, and for not doing
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Gales and Seaton. The Debates and Proceedings in the Congress of the United States, Seventeenth Congress, Second Session, book, 1855; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc30367/m1/67/: accessed December 10, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.