Philadelphia, January 10, 1798.
I have attentively considered the letter of the judge of the United States for the district of Pennsylvania, dated the 8th instant, relative to the act of Congress entitled “An act for the relief of persons imprisoned for debt,” which he thinks deficient in many particulars.
1st. He states it as doubtful whether the act vested judicial power in the judge relative to the discharge of insolvents, and assigns for the reason of the doubt that the law requires the proceedings to be had in the jail, and certified to the jailer. This reason creates no doubt in my mind, for judicial authority may be exercised in any place appointed by law, and the certificate to the jailer is requisite to inform him whether the prisoner may be discharged as an insolvent, or is to remain in custody.
2d. The complaint against the law in requiring the judge to go to the jail, and there to execute the business, is well founded. It is unnecessarily degrading and troublesome, and must be very disagreeable. The act should be amended, by authorizing the judge to issue his warrant commanding the jailer to bring the prisoner before him, at some certain time and place to be named in the warrant, and authorizing any parties interested to obtain subpœnas for witnesses from the clerk of the court, requiring their attendance to give testimony then and there. Also in the great cities of Philadelphia, New York, Boston, Baltimore, and Charleston, the judge of the district should have power to appoint two commissioners to do this kind of business, when it shall be inconvenient to the district judge, by reason of other judicial occupations, absence, sickness, or other inability, to act.
3d. It is objected that the act does not require a record of the transactions when the judge himself acts. Certainly the proceedings ought to be recorded in the district court by the clerk of that court, whether done before the judge of the district court or commissioners, and so I understand the law as it now is; for though it does not expressly direct the judge, when he acts, to return his doings to the district court, yet it is implied, from the nature of a court of record, that whatever is judicially done by the court shall be recorded. However, this may be made plainer by an amendment.
4th. It is doubted whether witnesses taking false oaths before the commissioners are punishable for perjury; and considering the expressions of the act of Congress respecting perjury, there seems good cause for this doubt.
5th. It is represented that no provision is made for supplying necessaries to poor persons confined under execution as debtors, or confined as witnesses, to insure their appearance to testify. This defect should be supplied.
6th. A difference of opinion is entertained whether the act before mentioned comprehends debtors to the United States or not. On this question, and on this alone, a committee of Congress applied lately to me for my opinion, which I sent, and of which I take the liberty to transmit the enclosed copy. As I think the fewer the laws the better, if competent to the purpose of society, I deem it advisable to avoid every unnecessary multiplication of legislative acts. If this was the only objection or doubt in the law now under consideration, it might wait for a judicial decision in the Supreme Court; but, as in other respects the law is capable of essential amendments, it will be best that the attention of Congress be called to the whole subject.
With perfect respect, I have the honor to remain, sir, your most obedient humble servant,
Printed Source--American State Papers. 38 vols. (Washington, D.C.: Gales and Seaton, 1831-61)..