« PreviousContinue »
LETTER OF MR. WEBSTER,
ADDRESSED TO REV. LOUIS DWIGHT, SECRETARY OF THE PRISON DISCIPLINE
SOCIETY, ON THE SUBJECT OF IMPRISONMENT FOR DEBT.
Washington, May 2, 1830. SIR, I have received your letter of the 19th of April, asking my opinion upon several questions, all relative to the subject of imprisonment for debt. I am quite willing to express my general opinions on that interesting subject, although they are not so matured as to be entitled to influence other men's judgments. The existing laws, I think, call loudly for revision and amendment. Your first four questions seek to know what I think of imprisonment for small sums.
I am decidedly against it; I would carry the exemption to debts of thirty or forty dollars, at least. Individual instances of evil or hardship might, I am aware, follow from such a change; but I am persuaded the general result would be favorable, in a high degree, to industry, sobriety, and good morals, as well as to personal liberty.
You ask, in the next place, what I think of imprisonment for debt in any case where there is no evidence of fraud. Certainly I am of opinion that there should be no imprisonment for debt, where it appears that no fraud has been practised, or intended, either in contracting the debt or in omitting to pay it. But, then, it seems to me, that, when a man does not fulfil a lawful promise, he ought to show his inability, and to show also that his own conduct has been fair and honest. He ought not to be allowed merely to say he cannot pay, and then to call on the creditor to prove that his inability is pretended or fraudulent. He ought to show why he does not and cannot fulfil his contract, and to give reasonable evidence that he has not acted fraudulently; and, this being done, his person ought to be held no longer. In the first place, the creditor is entitled to the oath of his debtor, and, in the next place, to satisfactory explanation of any suspicious circumstances.
There are two sorts of fraud, either of which, when proved, ought to prevent a liberation of the person, viz: fraud in contracting the debt, and fraud in concealing, or making way with, the means of payment. And the usual provisions of the bankrupt act ought to be added, that no one should be discharged, who is proved to have lost money in any species of gaming; and I should include, in this class, all adventurers in lotteries. Having tendered his own oath, and made just explanation of any circumstances of suspicion, if there be such, and not having lost money by gaming, the debtor ought to be discharged at once; which answers another of your questions; for the detention of thirty days, before the oath can be taken, appears to me wholly useless.
You are pleased to ask whether, in my judgment, Christians can, with a good conscience, imprison, either other Christians, or infidels. He would be very little of a Christian, I think, who should make a difference, in such a case, and be willing to use a degree of severity towards Jew or Greek, which he would not use towards one of his own faith. Whether conscientious men can imprison anybody for
debt, whom they do not believe dishonest or fraudulent, is a questice which every man, while the law allows such imprisonment, must de cide for himself. In answer to your inquiry, whether I have found it necessary to use such coercion, in regard to debts of my own, ! have to say, that I never imprisoned any man for my own debt, under any circumstances; nor have I, in five and twenty years' professional practice, ever recommended it to others, except in cases where there was manifest proof, or violent and unexplained suspicion, of intentional fraud.
Imprisonment for debt, my dear sir, as it is now practised, is, in my judgment, a great evil; and, it seems to me, an effectual remedy for the larger part of the evil is obvious. Nineteen twentieths of the whole of it would be relieved, in my opinion, if imprisonment for small debts were to be abolished. That object I believe to be attainable; and to its attainment, I think, the main attention of those who take an interest in the subject should be directed. Small credits are often given, on the confidence of being able to collect the debt by the terrors of the jail; great ones, seldom or never.
Three simple provisions would accomplish all, in my opinion, that may be considered as absolutely required to a just state of the law, respecting imprisonment for debt in Massachusetts.
1. That no imprisonment should be allowed, when the debts, exclusive of costs, did not amount to $ 30.
2. That there should be no necessity of imprisonment for thirty days, as preliminary to taking the poor debtor's oath; nor any longer detention than such as is necessary to give parties notice, and time to prepare for examination; and that a convenient number of magistrates, in every county, should, for the purpose of administering the oaths, be appointed by the government; and that such magistrates should be clothed with such further powers as might be thought expedient, in order to enable them to make a thorough investigation of the fairness or fraud of the debtor's conduct.
3. That in cases where the debtor had been discharged, if the creditor would make oath to newly discovered evidence, proving original fraud, or, to his belief, that the debtor had subsequently received property, and concealed or withheld the same from his creditors, it should be competent to such creditor to have investigation of such charge, and, if made out, to have execution against the person, and if not made out, that the creditor should pay the cost of the proceeding.
Other provisions might doubtless be useful; but if these three alone could be obtained, they would, in a great measure, clear the jails of debtors, and give general satisfaction, I have no doubt, to creditors.
I ought to add that the imprisonment of females in the common jails, for mere debt, is a barbarism which ought not to be tolerated. İnstances of such imprisonment, though rare, do yet sometimes occur, under circumstances that shock every humane mind. In this respect, the law ought, in my judgment, to be altogether reformed.
would, make them better known than they are, to their country; nor could I either strengthen or shake the foundation of character and talent upon which they stand. But of the Judicial branch of the Government, and of the institution of the Supreme Court, as the head of that branch, I beg to say that no man can regard it with more respect and attachment than myself. It may have friends more able-it has none more sincere. No conviction is deeper in my mind, than that the maintenance of the Judicial power is essential and indispensable to the very being of this Government. The Constitution, without it, would be no Constitution-the Government, no Government. I am deeply sensible, too, and, as I think, every man must be whose eyes have been open to what has passed around him for the last twenty years, that the Judicial power is the protecting power of the whole Government. Its position is upon the outer wall. From the very nature of things, and the frame of the Constitution, it forms the point at which our different systems of Government meet in collision, when collision unhappily exists. By the absolute necessity of the case, the members of the Supreme Court become Judges of the extent of constitutional powers. They are, if I may so call them, the great arbitrators between contending sovereignties. Every man is able to see, how delicate and how critical must be the exercise of such powers, in free and popular Governments. Suspicion and jealousy are easily excited, under such circumstances, against a body, necessarily few in number, and possessing, by the Constitution, a permanent tenure of office. While public men, in more popular parts of the Government, may escape without rebuke, notwithstanding they may sometimes act upon opinions which are not acceptable, that impunity is not to be expected in behalf of Judicial tribunals. It cannot but have attracted observation, that, in the history of our Government, the Courts have not been able to avoid severe, and sometimes angry complaint, for giving their sanction to those public measures, which the Representatives of the people had adopted, without exciting particular disquietude. Members of this and the other House of Congress, acting voluntarily, and in the exercise of their general discretion, have enacted laws, without incurring an uncommon degree of dislike or resentment; and yet, when those very laws have been brought before the Court, and the question of their validity distinctly raised, and necessary to be determined, the Judges, affirming the constitutional validity of such acts, although the occasion was forced upon them, and they were absolutely bound to express the one opinion or the other, have, nevertheless, not escaped a severity of reproach, bordering upon the very verge of denunciation. This experience, while it teaches us the dangers which environ this Department, instructs us most persuasively, in its importance. For its own security, and the security of the other branches of the Government, it requires such an extraordinary union of discretion and firmness, of ability and moderation, that nothing in the country is too distinguished for sober sense, too gifted with powerful talent, to fill the situations belonging to it.
[From the N. A. Review of 1820.]
EXAMINATION OF SOME REMARKS IN THE QUARTERLY REVIEW ON THE LAWS OF CREDITOR AND DEBTOR IN THE UNITED STATES.
THE Quarterly Review for May 1819 contained two articles concerning the United States; one a review of Fearon's book of travels, and the other a review of Mr. Bristed's book upon the resources of America. The Quarterly Review is, as everybody knows, extensively circulated, and much read in this country; and these articles excited, at the time of their appearance, no small degree of attention. It would be difficult, we imagine, in the same number of pages, to crowd more misrepresentation, or betray more ignorance, than appears in these articles, especially that which we have first mentioned. To the common vaporings of the English presses we pay little attention. These oracles are no more to be regarded, in their vituperations of the government and people of this country, than similar oracles among ourselves, in their abuse of the government and people of England. The leaders of such assemblages as the Manchester mob, and the orators in the palace-yard, find it convenient to inflame the passions of their auditors by declaiming, in terms of high panegyric, of the condition of America; wisely contriving, by a sort of contrast, to breed discontent, and to sharpen the feeling of hatred towards their own government. Other speakers and other writers, finding or thinking it necessary to refute these representations, naturally enough run into opposite extremes, and set off their own condemnation and abuse of America against the extravagant encomiums of their adversaries. All this is in the course of things. It is no more than must always be expected, in a country with such a government, as that of England; and it is of no consequence to us, what is the issue of this little and low strife of temporary politics. We suffer about equally by the commendation of one party and the abuse of the other; and we ought to be regardless of both."
But different, far different, is the case, when a work of established reputation in the literary world professes to discuss our character and condition. When gentlemen and scholars undertake to write about us, we have more interest in what they say, and are
*The last that we have heard of this author is, that some time last winter a criminal information was moved for against him, in the King's Bench, for a conspiracy to produce a riot, at the election of the Lord Mayor.
less disposed to acquiesce in misrepresentation and injustice. The writers of the articles in question seem to have considered themselves as speaking about America, but not to America. They do not take the United States into the account of those who are to read their works, and judge of them. They do not look at the reading and thinking men on this side the Atlantic, as forming any part of that great tribunal of the PUBLIC, to which they acknowledge a responsibility. In this respect, in our humble judgment, they commit an oversight. English scholars, English editors, and English politicians have heretofore felt an unconquerable reluctance to admit the people of this country to a participation of those honors which belong to the civilized world, and the great family of Christian communities. They have been unwilling to see that North America has ceased to be a colony; and still desire to regard her, so far as respects acquirements, talents, and character, like Jamaica, Malta, or the Cape of Good Hope. This attempt, we may be allowed to say, will not succeed. America is entitled to her place among the nations, and nothing can keep her from it. It is in nature, as it appears to be in the purpose of Providence, that a people shall, within a short period of time, exist on this side the ocean, speaking the English language, springing principally from English origin, adopting English laws, and possessing the blessings of many of the most valuable of English institutions, so numerous, that the amount of British population, added or subtracted, would hardly make a sensible difference. Already the United States contain as many people as England, and among them there is, if not as full, yet as respectable a proportion belonging to the reading class. Whatever appears in England, and attracts attention there, in the departments of science, literature, poetry, or politics, appears here also, thirty days afterwards, with uniform regularity. We receive these reviews, wet from the press, and read and reprint and circulate them. We venture to say, that in no part of the Island of Great Britain, London excepted, is reading so general among the population, as in New England. Having thus, as we believe we have, in the United States, a larger reading community, than either Scotland or Ireland, how is it, that America is not to compose a part, and an important part, of that PUBLIC, before which a scientific and literary journal, composed and published in the English language, is to stand in judgment? We would modestly, but firmly, insist on this reasonable participation in the authority and dignity of public opinion. We hold the right, and mean both to exercise and to defend it, of having and of expressing opinions on subjects of science and literature, and respecting those who discuss these subjects.
It is a natural prejudice, that an old country should be unwilling to admit a young one upon any terms of equality. England herself is not thought old enough, nor respectable enough, to assume the port and bearing of an equal in the celestial empire of China; and there are elsewhere, as well as at Pekin, a dislike and scorn for the nori homines. English politicians and English scholars entertain towards us, when we press for admittance into their society and fellowship, something like that feeling, at once scornful and