MVB, Speech on imprisonment for debt bill, 7 April 1818

MVB Speech on imprisonment for debt bill, 7 April 1818

Sketch of the debate in the Senate on Tuesday last on the bill "to abolish imprisonment for debt and to prevent frauds against creditors."

Mr. Van Buren said, that it had long been his opinion that imprisonment for debt was cruel, oppressive, impolitic and unnecessary—that this opinion was the result of practical observation, and of much experience and reflection.— Such, too, had been the opinion of liberal and enlightened men in modern times, and in consequence of the manifest injustice and impolicy of the system, it had been so much modified and relaxed by preceding legislatures, that it had become the mere skeleton of what it was as to any beneficial effects, and yet it retained in many cases all its severity and oppression. He did not at this time intend to enter into a full examination of this odious relic of antiquity—to trace its origin or detail its history—or to shew with minuteness its evils and absurdities—such an attempt at this stage of the bill, was unnecessary. But as he drew the bill, and was also chairman of the committee by whom it was reported, it was proper for him to explain its provisions and to point out the mischiefs which it was intended to remove.

Mr. Van Buren then proceeded to explain the several sections of the bill in their order. The first section, he observed, was intended to make a proper discrimination between persons who are guilty of no crime but poverty and misfortune, and those who are prosecuted for acts in their nature fraudulent and criminal. We boast of the liberality of our laws and the mildness and equity of our civil regulations, and yet we tolerate a system which applies the same rule and inflicts the same penalties upon those who are unable to pay their debts without any imputation of fraud, and those who are convicted of murdering the reputation—assailing the person—or destroying the property of their neighbors. If a man is poor, you imprison him—: he is a villain who has defrauded or slandered you, you can do no more. He was surprised that a rule so unjust could have existed so long. He was surprised that a proper line of distinction had not long since been drawn between misfortune and fraud. The first section of the bill makes that distinction. It exempts from imprisonment on execution and from the necessity of giving bail on arrest, all persons who are prosecuted for debt merely. But it excepts from this privilege the officer or advocate who retains the money of his client—the person who has imprisoned or assaulted you—the assassin of your reputation—the wilful and malicious destroyer of your property—and these persons ought to be excepted. They are entitled to no favor and worthy of no indulgence.

The second section declares that such persons when taken on execution shall be confined to the walls of the gaol, and shall be debarred from the liberties of the gaol yard.— By your law as it now stands, a defendant when taken on an execution, if he can procure bail for the limits, may roam at large and laugh at his opponent. In many cases this extension of the liberties is wrong, and leads to great abuses; but in the cases last mentioned it is a mockery upon justice. A villain seduces the daughter of his friend—he is prosecuted—an indignant and high minded jury find an honorable and exemplary verdict—he converts his property into money—goes upon the limits and triumphs with impunity in the success of his crimes. This section will remove such a libel upon our jarisprudence. It permits imprisonment where it is proper and necessary for the ends if justice and the benefit of society, and in those cases it makes it what it ought to be—real, rigorous and effectual. The bill having accomplished those great and important objects, goes on to protect creditors. Though they have no claims upon their persons, they are entitled to the property of their debtors. By our existing laws a man may remove his goods out of the state and the creditor has no remedy. The bill permits the creditor on proof of such intention to remove or to conceal property, to attach the effects and to sequester the demands of the debtor. It may be said that this provision may be abused; that it puts in the hands of the creditor too much power and authority. The subsequent sections will remove these objections. The debtor whose property is attached, if he can prove to the satisfaction of the judge that the allegation of the intended removal or concealment is unfounded, is restored to the possession of his property and the incumbrance is removed. But even if he is unable to disprove this charge, the bill directs a supersede as to the attachment on his giving bail for the production of the goods in case a judgment shall be recovered against him. This will remove every objection. It is as easy for a man to procure bail for his property as for his person. Our present laws require such security, and so great is the force of custom that no one objects to it. Mr. Van Buren proceeded to shew from the different sections of the bill that the attachment could not be abused.

There is another feature of the bill which is vastly important and which will remedy a striking defect in the common law—you can now upon execution only reach the tangible property and the person of the debtor. His stocks, his notes, his book debts, are not liable to execution. He goes upon the limits—hires the best house in town—draws his dividends; collects his bonds, and sets you at defiance. The bill to remedy this glaring defect, provides an attachment where an execution is returned nulla-bona, and enables the creditor to reach these choses in action which are now exempt from execution.

The last provision of the bill is not less important nor less imperiously demanded. Fraudulent conveyances and judgments are frequently resorted to; and yet there is no law punishing such crimes as they deserve. Every attempt to put a stop to these practices has hitherto proved ineffectual. The bill before the Senate, will suppress them. It renders the parties liable to indictment, and upon conviction exposes them to fine and imprisonment. Mr. Van Buren stated that when that section should be reached he intended moving an amendment which should make such acts felonies, punishable by imprisonment in the state prison.

Mr. Van Buren concluded by observing, that in framing a bill which altered so materially an old and established system—one which custom, habit and prejudice had conspired to sanction and confirm; and which aimed at the suppression of evils and abuses which experience has shewn to be frequent and alarming, it could not be expected that defects were entirely avoided. He would willingly unite in any alterations or amendments, which the experience or reflection of others might suggest. He had avoided discussing the absurdity and oppression of imprisonment for debt, because he did not believe that any gentleman would seriously defend it. If, however, such an attempt should be made, he should hold himself pledged to defend the principle of the bill and to shew that his opinion was supported by reason, humanity and justice.

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Mr. Van Buren, to bring up the question, proposed an amendment to the first section, excepting non-residents, who might be sued in this state, though he stated that he should vote against it.

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Mr. Van Buren had no wish to press the bill, but the session is drawing to a close, and there is no bill before the Senate more worthy of consideration than this is: Was willing to rise and report in order to give gentlemen an opportunity of examining the bill minutely and reflecting on its provisions, and hoped his friend from the eastern district (Mr. Tibbetts,) would be able, after due consideration, to shew that in one case out of twenty imprisonment had effected any useful object; and hoped he would array all his objections to the bill, when he would pledge himself to convince him that this bill would be better for creditors than any system which has yet been devised.

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