may have deserved the pimishment for fraud ; and in this so-
litary case of just retribution, the cries of the ninety-nine in-
nocent sufferers are unheard or unregarded. The obligation
of a contract is sacred. The committee would not recom-
mend a measure calculated to impair it. The uronertv of the
debtor is made liable for its discllarge, in all wel regulated
societies, with .such reservations as aW deemed necessary by
w^nnH'?^^-^'^""^'' '^'^ as Saving immediate relief to the
Tbf^ iu^ 1 '^ > ^""Sether with such implements as will en-
^^cJnL ''^f '^^^^ and_ mechanic to pursue their useful
\ ocations. x he^e reservations were made in the early ages
of the Grecian Republics; and the principle has been hlld
sacreo by municipHl law, by common law, by civil law
r^nnh-i'?^^'^'' ^^""^ '^'^. ^^'-''^P^nty of the commonwealth
lequues, because industry is the life of the countrv
A nation may exist without professional men without a
moneyed capital ; but it cannot eiist, in a civilized staeWtl>
out agricullurists and artisans. But it is of little ava In
son""Tt"Vf^^'"r"^^^^^^'^ - ' -'^ inn'riso^tlfe "per-
son*. The state sustains a loss, the families are ruined and
the creditors are not benefited. When the effects nftlp
debtor are exhausted^. and his debts i4ain urdSted the
world has been divided in sentiment as to the extent if a pe^
cuniary obligation against the personal liberty of the debtor
In ancient Greece, the power of creditors oxL the persons
01 their debtors was absolute; and as in all cases whe% de-
spotic control IS tolerated, their rapacity was boundless They
cat?r o n..^''''^:H^'' '^''''''' '? '"'^^'^'^ t'^^i^' lands lik^
catt.e to perform the service of beasts of burthen and to
transfer to them their sons and daughters, whom I ey export-
ed as slaves to foreign countries. -^ t^xpori
These acts of cruelty were tolerated in Athens during her
RICHARD M. JOHNSON. ' i63
more barbarous state, and in perfect consonance with the
character of a people, who could elevate a Draco, and bow
to his mandates registered in blood. But the wisdom of So-
lon corrected the evil. Athens felt the benefit of the reform,
and the pen of the historian has recorded the name of her
lawgiver, as the benefactor of man. In ancient Rome, the con-
dition of the unfortunate poor was still more abject. The cru-
elty of the Twelve Tables against insolvent debtors, should be
held up as a beacon of warning to all modern nations. After
judgment was obtained, thirty days of grace were allowed, be-
fore a Roman was delivered into the power of his creditor.' Af-
ter this period, he was retained in a private prison, with twelve
ounces of rice for his daily sustenance. He might be bound
with a chain of fifteen pounds weight; and his misery was
three times exposed in the market place, to excite tlie^com-
passion of his friends. At the expiration of sixty days, the
debt was discharged by the loss of liberty or life. The in-
solvent debtor was either put to death, or sold in foreif'-n sla-
very beyond the Tiber. But if several creditors were alike
obstinate and unrelenting, they might legally dismember his
body, and satiate their revenge by this horrid partition.
1 hough the refinements of modern criticisms have endea-
voured to divest this ancient cruelty of its horrors-, the faithful
Gibbon, who is not remarkable for his partiality to the poorer
class, preferring the liberal sense of antiquity, draws this dark
picture of the effect of giving the creditor'pov.'er over the
person of the debtor. No sooner was the Roman Empire
subverted, than the delusion of Roman perfection began to
vanish; and then the absurdity and cruelty of this system be-
gan to be exploded: a system which convulsed Greece and
Rome, and filled the world with misery; and without one re-
deeming benefit, could no longer be endured ; and, to the
honour of humanity, for about one thousand years during the
middle ages, imprisonment for debt was generally aboliHied.
Ihey seemed to have understood what, in more modern
times, v/e are less ready to comprehend; that power, in any
cegree, over the person of the debtor, is the same in princi-
ple, varying only in degree, whether it be to imprison, to en-
slave, to brand, to dismember, or to divide his body. But as
the lapse of time removed to a great distance the cruelties
wnich had been suffered, the cupidity of the afiluent found
means again to introduce the system ; but by such slow gra-
dations, that the unsuspecting poor were scarcely conscious
of the change. The history of English jurisprudence fur-
nishes the remarkable fact, that, for many centuries, personal
hbei-ty could not^be violated for debt. Property alone could
De taken to satisiy a pecuniary demand. It was not until the
reign of Henry III., in the thirteenth century, that the princi-
164 GLORY m" AMERICA.
pie of imprisonment for debt was recognised in the land of
our ancestors, and that was in favour of the barons alone;
the nobility agaii^st their bailiffs, who had received their
rents, and had appropriated them to their own use. Here
was the shadow of a pretext. The great objection to the
punishment was. that it was inflicted at the pleasure of the
haron without a trial; an evil incident to aristocracies, but
obnoxious to republics. The courts, under the pretext ot
imputed crime, or constructive violence on the part of the
debtor, soon began to extend the principle, but without legis-
lative sanction. In the eleventh year of the reign of Edward
I,, the immediate successor of Henry, the right of imprisoning
debtors was extended to merchants Jewish merchants ex-
cepted, on account of their heterodoxy in religion and was
exercised with great severity. This extension was an act
of policy on the part of the monarch. The ascendency ob-
tained by the barons menaced the power of the throne; and,
to counteract' their influence, the merchants, a numei ous and
wealth}'' class, were selected by the monarch, and invested
witli the same authority over their debtors. But England was
not yet prepared for the yoke. She could endure a heredi-
tary nobility; she could tolerate amonnrchy; but she could
not yet resign her unfortunate sons, indiscriminately, to the
prison. The barons and the merchants had gained the power
over their victims; yet more than sixty years elapsed, before
Parliament dared to venture another act, recoanisino: the
principle. During this period, imprisonment for debt had,
in some degree, lost its novelty. The incarceration of the
debtor began to make the impression, that fraud, and not
misfortune, had brought on his catastrophe, and that he was,
therefore, unworthy of the ]irotection of the law, and too de-
graded for the society of the world. Parliament then ven-
tured, in the reign of Edward III., in the fourteenth century,
to extend the principle to two other cases ; debt and detinue.
This measure opened the door for impositions which were
gradually introduced by judicial usurpation, and have result-
ed in the most cruel oppression, Parlimicnt, for one hundred
and fifty years afterv.-ards. did not venture to outrage the
sentiments of an injured and indignant people, by extending
the power to ordinary creditors. But they had laid ttie foun-
dation, and an irresponsible judiciary reared the superstruc-
ture. From the twenty-fourth year of the reign of Edward
III,, to the nineteenth of Henry YIIL, the subject slumbered in
Parliament, In the mean time, all the ingenuity of the court
was employed, by the introduction of artificial forms and le-
gal fictions, to extend the power of imprisonment for debt in
cases not provided for by statute. The jurisdiction of the
court called the King's Bench, extended to all crimes or dis-
RICHARD M. JOHNSON. 165
turbances against the peace. Under this court of criminal
jurisdiction, the debtor was arrested by what was called the
writ of Middlesex, upon a supposed trespass or outrage
against the peace and dignity of the crown. Thus, by a fic-
titious construction, the person who owed his neighbour was
supposed to be, what every one knew him not to be, a viola-
tor of the peace, and an offender against the dignity of the
crown 5 and while his body was held in custody for this crime,
he was proceeded against in a civil action, for which he was
not liable to arrest under statute. The jurisdiction of the
court of common pleas, extended to civil actions arising be-
tween individuals upon private transactions. To sustain its
importance upon a scale equal with that of its rival, this court
also adopted its fictions, and extended its power upon artifi-
cial construction, quite as far beyond its statutory preroga-
tive ; and upon the fictitious plea of trespass, constituting a
legal supposition of outrage against the peace ol the kingdom,
authorized the writ of capias, and subsequent im.prisonment,
in cases where a summons only was warranted by law. The
court of exchequer was designed to protect the king's revenue,
and had no legal jurisdiction, except in cases of debtors to
the public. The ingenuity of this court found means to ex-
tend its jurisdiction to all cases of debt between individuals,
upon the fictitious plea that the plaintiff; who instituted the
suit, was a debtor to the king, and rendered the less able to
discharge the debt by the default of the defendant. Upon
this artificial pretext, that the defendant was debtor to the
king's debtor, the court of exchequer, to secure the king's
revenue, usurped the power of arraigning and imprisoning
debtors of every description. Thus these rival courts, each
ambitious to sustain its relative importance, and extend its ju-
risdiction, introd uced, as legal facts, the most palpable fictions,
and sustained the most absurd solecisms as legal syllogisms.
Where the person of the debtor was, by statute, held sacred,
the courts devised the means of ccnstruing the demand of a
debt into the supposition of a crime, for which he was subject
to arrest on mesne process ; and the evidence of debt, into
the conviction of a crime against the peace of the kingdom,
for which he was deprived of his liberty at the pleasure of the
offended party. These practices of the courts obtained by
regular gradation. Each act of usurpation was a precedent
for similar outrages, until the system became general, and at
length received the sanction of Parliament. The spirit of
avarice finally gained a complete triumph over personal li-
berty. The sacred claims of misfortune were disrei?arded ;
and, to the iron grasp of poverty, were added, the degrada-
tion of infamy, and the misery of the dungeon.
Parliament appeared sometimes to relent, and made seve-
166 GLORY OF AMERICA.
ral efforts to correct the abuses ; but the influence of creditors
and the power of the courts, were too formidable for Parlia-
ment itself; and while a vestige of the system remains, the
oppression will never terminate. The time was. \vhen per-
sonal libert}^ in England was so highly valued, that before the
institution of a suit against an individual, the plaintiff was re-
quired to give real and responsible pledges, to prosecute the
suit with effect; and if the action proved^to be groundless, or
malicious, he was subjected to damages. But ultimately, the
courts, without the authority of statute, broke this common
law barrier against oppression, and for real plcd^res substi-
tuted fictitious names, as John Doe and Richard Roe ; while
upon the mere suggestion or oath of the plaintiff, the defend-
ant may be arrested and imprisoned, before the debt is pro-
ven ; unless he can procure bail for his appearance. Thus
was the whole artifice of the learned benches of England,
with all the authority of the aristocracy, employed for c .litu-
ries to introduce, by the most gradual measures, imprisonn:ient
for debt, even before a people, accustomed to all the abuses
of hereditary power, could be brought under its control.
But when it was established, our ancestors, with the whole
system of British jurisprudence, brought it with them to this
new world. It has been lonsr endured, and its miseries have
been extensively felt. It is this day depriving our countrv of
the industry of many of her citizens, and carrying distress
into their numerous families. But there is evidently a spirit
of reformation awakened in the public mind, and the redeem-
ing voice of the people demands the change.
Public sentiment, like the general tendency of our laws, is
in favour of the unfortunate debtor. It speaks for liberty, and
gives it an estimate above the value of gold. If there is a
country on earth, in which personal liberty has a claim to the
protection of the law, paramount to every other claim, it is
found on these western shores. But while the body, under
any circumstances, is liable to arrest on mesne process, or af-
ter judgment is obtained, whether to coerce a surrender of
property, or to punish for real insolvencv. there is no secu-
rity for liheYty. Till the destinies of fortune shall be subject
to human control, no citizen, however meritorious, is certain
to close his days without being immured in the walls of a
prison. If stolen goods are secreted, the oath of suspicion is
necessaiy to procure a search-warrant; and then the person
suspected is free from arrest, till the propertv is found in his
possession. But in case of debt, the person is liable to be ar-
rested and to be held in custody, even under the mildest in-
solvent laws, till the debtor shall,' on oath, make a surrender
of his effects. The plea of necessary coercion furnishes a
poor apology. Man, held in confinement one hour, by the
RICHARD M. JOHNSON. 167
la'>vful authority of his fellow citizens, is degraded in the
estimation of society, and is liable to lose respect for himtielf
Tlie spirit of freedom, which achieved, and which still sus-
tains our independence, is broken ; and he often sinks into a
state of ruinous despondency; or is urged on to acts of des-
peration. The only safe course is, to destroy the capias ad
satisfaciendum, the writ which takes the body upon a judg-
ment, and as experience may point the necessity of other
measures to secure the surrender of the properly, time w^ill
perfect them. The power of the state legislatures is ample,
and they will not fail to provide the remedy; and the com-
mittee believe it will be most wise to leave that power with
the states. Whatever may be the theory of legislation, the
true character of a system is demonstrated by its effects. If
it renders society more free and happy, it should be retained:
but if it augments the sufferings of the community, without
producing benefits which will more than countervail the evils,
it ought to be abandoned. The spurious origin of this system
is not the leading point on which the committee would dwell;
nor even the generous sympathies which its victims excite.
Its ruinous consequences to society, without benefit even to
the creditor, show the necessity of its abolition.
The power of the creditor is generally exerted under feel-
ings of irritation, and to satiate a spirit of revenge. The Ame-
rican citizen, who has bled for his country, or v.'hose penury
has resulted from his father's sacrifices in the cause of inde-
pendence, is reduced to a condition in v'hich he cannot meet,
with punctuality, the claims against him. What is the con-
sequence ? From that moment his liberty is forfeited to the
discretion of his creditor. His patriotism, his integrity of
character, avail him nothing. If he is permitted, in his daily
exercise, to pass the bounds of a prison wall, it is by the for - ,
bearance of another. He is liable to be held in degrading
custody, even under the mildest laws of insolvency, till he
shall have taken the oath prescribed ; and then, like the cul-
prit who has received punishment for his crime, he is dis-
charged from prison. This is the liberty which Am.ericans
enjoy, under the system of imprisonment for debt. Even the
illastiious Jefferson, that patriarch of liberty, and the virtuous
and patriotic Monroe, whose lives were devoted to their
country in its darkest hours, enjoyed their freedom, during
the shades of retirement, not by the protection of the law, but
by the forbearance of their creditors. A citizen cannot, by
contract, consign himself to bondage. He may fix his signet
to the indenture that purports to bind him, but the law will
break the fetter. A man may forfeit his liberty by the com-
mission of crime; the safety of society may require that he
shall be locked out from the world ; but the debtor is not con-
168 GLORY OP AMERICA.
victed of a crime: his liberty is not dangerous to society;
yet, by technical implication, he may be consigned to prison.
The slave, while he toils for his master, contributes to the
nation's wealth, and to the benefit of society. The resources
of a nation consist principally in the industry of its citizens;
and labour, by whatever hands performed, is a contribution
to the public weal. But he who pines a day in prison, drags
out that portion of his life in useless indolence ; starving in
misery, or living upon another's labour, while society is de-
prived of his own. The miseries of the debtor's prison pre-
sent a picture of wretchedness which fancy could scarcely
draw. These miseries are not confined to the prisoner's cell.
They extend, in all their horror, to the iiumble dwelling of his
family. The broken-hearted wife, surrounded v/ith helpless,
suffering children, weeping for the return of an affectionate
father, innocent and ignorant of the fell destiny which dooms
them to a state of untimely orphanage, is driven to despond-
ency, and sometimes to acts of infamy. Nor is the evil ob-
viated by the argument that the mildness of the insolvent
laws furnishes an easy release from confinement. The mo-
ment a citizen enters a prison, at the command of his fellow
citizen, his mind is humbled; and the principle is the same,
whatever may be the duration, whether it can deprive him of
his liberty for a day, a month, a year, or three score years
and ten. Notwithstanding all the boasting of the mildness of
our insolvent laws, our jails are crowded with debtors ; thou-
sands are annually imprisoned for debt in these United States.
These facts amply demonstrate that the existing insolvent
laws do not furnish a remedy for the evil. It must be eradi-
cated by an entire and total abolition.
In the courts of the United States, no security can be de-
manded against groundless or malicious actions, except the
legal costs of suit. But by general practice under the laws,
the simple affidavit of tiie plaintiff that the defendant is in-
debted to liim, is sufficient to consign th.e defendant to prison,
unless some responsible person will befriend him by becoming
his bail. He is not required to state that the obHgation was
incurred by false pretences, nor that the defendant was sus-
pected of an intention to secrete his property, or to withdraw
his person, or to entertain any fraudulent design. Nothing
is required but the plaintiff's oath of debt, to place the liberty
of t!ie defendant beyond the protection of law, and subject
Mm to the favour of an individual to save him from prison.
It is difficult to ascertain any fixed principle upon which im-
prisonment for debt is advocated. It is regarded by some as
a punishment for a crime ; by others, a mode of coercion ;
by some, a fulfilment of an implied contract; by others,
again, a matter of public policy. If it is a crime, the object
RICHARD M. JOHNSON. 169
of punishment should be the reformation of the offender, and
the prevention of future offences. An offence is against
society ; the guilt of the offender should be ascertained by a
jury; the penalty should be fixed by law, according to the
degree of guilt, and pronounced by the court without con-
sulting the pleasure of an individual. (But in imprisonment
for debt, there is no reformation.) Society is not disturbed
by a criminal act. No guilt is imputed to the debtor. The
law furnishes no penalty. The court pronounces no sentence.
There are no grades of offence. All is left to the discretion
of an individual, and the law operates indiscriminately upon
the fraudulent and unfortunate. If it be a means of coer-
cion, it is inefficacious. It cannot compel the honest man to
pay what he has no means of paying. It places him beyond
the possibility of procuring those means. The dishonest man
will devise a method of placing his property beyond the
reach of his creditors, by preparing himself in anticipation
of the result. He will triumph in the impotence of the laws.
The innocent are always degraded, and often ruined, v,iiile
the guilty escape the punishment which their crimes deserve.
It is not the fulfilment of a contract. No fair construction,
even under all the fictions of law, can justify the conclusion
that a debtor agrees to forfeit his personal liberty to the will
of his creditor. The debtor, as a citizen and free man, is in
all respects equal to his creditor. No contract could deprive
him of personal independence; and in contracting a debt, he
has no intention to compromise his freedom^. A contract upon
such a principle, would be void, both in law and in equity.
In contracting a debt there is a mutual agreement between
the parties, in which both are interested. If a loan, it is for
usury ; if a sale, it is for profit ; if an act of friendship, grati-
tude is the safest pledge for its return, when circumstances
will permit. But in all cases, the ability of the debtor, from
the property which he holds, or may acquire, is the only pro-
per means of payment ; and it is the only legitimate resource
which the creditor can honourably and lawfully anticipate.
If his object is to obtain power over the liberty of the debtor,
it is dark, designing, dishonourable in the extreme, and ut-
I terly unworthy the sanction of law. If his dependence is
' upon the friends of the debtor, by exciting their commassera-
tion, through cruelty, it deserves public reprobation. Lord
Mansfield justly observes, if any near relation is induced to
pay the debt for the insolvent to keep him out of prison, it is
taking an unfair advantage. No credit is desirable in a free
country, predicated upon the imprisonment of the debtor,
and it ought not to be granted upon such considerations.
In a country without a uniform bankrupt lav%^, the cruelty
I of the system is beyond the endurance of freemen. As a
I 15 .
170 GLORY OF AMERICA.
matter of policy, the committee cannot discover either the
wisdom or the justice of the system. To oppress the poor
may well enough consist with the policy of despots ; but to
an American citizen, whose birthright is liberty, it must be
odious. The wealth and prosperity of a nation, the comforts
of society, and the happiness of families, depend upon active
industry, combined with well directed enterprise. Our laws
and institutions recognise no classes. Farmers, mechanics,
merchants, professional men, and the capitalist, are all peers.
The revolutions in property, and distinctions resulting from
industry, virtue, and talent alone, are as certain as the revo-
lutions .of the seasons. They cannot be perpetuated in one
family, nor excluded from another. The poor may become
wealthy, and the rich poor.
The prospect of success invigorates the hands of industiy,
and gives them impetus to the noblest enterprise. To these
exertions, every encouragement should be given ; but when
the cloud of misfortune lowers, to consign its victim to the
prison, is to blast his future prospects, and to fix on his family
the mark of degradation. To maintain that confidence
which is necessary to a fair and reasonable credit, efiectual
remedies should be provided against the property of the
debtor, always reserving from execution such articles as are
necessary for the pursuit of his calling ; but that he may
retain the spirit of useful enterprise, for the benefit of both his
family and the communit}^, those reservations should be care-
fully guarded, and the freedom of his person always -secured.
It cannot be denied that great calamities, both public and
private, have arisen from too much credit seldom or never,
from too little ; and it is equall}' certain that the excess of
credit as frequently proceeds from him who gives, as from
him who receives it.
If imprisonment for debt shall be totally abolished, the
parties will understand the proper legitimate resource for the
fulfilment of a contract. It will then rest upon its proper
basis. The person granting credit will confide in the ability