Chapter LXXVI: Abolition of Imprisonment for Debt

The philanthropic Col. R. M. Johnson, of Kentucky, had labored for years at this humane consummation; and finally saw his labors successful. An act of Congress was passed abolishing all imprisonment for debt, under process from the courts of the United States: the only extent to which an act of Congress could go, by force of its enactments; but it could go much further, and did, in the force of example and influence; and has led to the cessation of the practice of imprisoning the debtors, in all, or nearly all, of the States and Territories of the Union; and without the evil consequences which had been dreaded from the loss of this remedy over the person. It led to a great many oppressions while it existed, and was often relied upon in extending credit, or inducing improvident people to incur debt, where there was no means to pay it, or property to meet it, in the hands of the debtor himself; but reliance wholly placed upon the sympathies of third persons, to save a friend or relative from confinement in a prison. The dower of wives, and the purses of fathers, brothers, sisters, friends, were thus laid under contribution by heartless creditors; and scenes of cruel oppression were witnessed in every State. Insolvent laws and bankrupt laws were invented to cover the evil, and to separate the unfortunate from the fraudulent debtor; but they were slow and imperfect in operation, and did not reach the cases in which a cold and cruel calculation was made upon the sympathies of friends and relatives, or upon the chances of catching the debtor in some strange and unbefriended place. A broader remedy was wanted, and it was found in the total abolition of the practice, leaving in full force all the remedies against fraudulent evasions of debt. In one of his reports on the subject, Col. Johnson thus deduced the history of this custom, called "barbarous," but only to be found in civilized countries:

"In ancient Greece, the power of creditors over the persons
of their debtors was absolute; and, as in all cases where
despotic control is tolerated, their rapacity was boundless.
They compelled the insolvent debtors to cultivate their lands
like cattle, to perform the service of beasts of burden, and to
transfer to them their sons and daughters, whom they exported as
slaves to foreign countries.

"These acts of cruelty were tolerated in Athens, during her
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 Solon
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 condition of
the unfortunate poor was still more abject. The cruelty 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 before a Roman was
delivered into the power of his creditor. After 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 the compassion of his friends. At the
expiration of sixty days, the debt was discharged by the loss of
liberty or life. The insolvent debtor was either put to death
or sold in foreign slavery 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. Though the refinements of modern criticisms
have endeavored 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
power 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
began to be exploded--a system which convulsed Greece and Rome,
and filled the world with misery, and, without one redeeming
benefit, could no longer be endured--and, to the honor of
humanity, for about one thousand years, during the middle ages,
imprisonment for debt was generally abolished. They seemed to
have understood what, in more modern times, we are less ready
to comprehend, that power, in any degree, over the person of
the debtor, is the same in principle, varying only in degree,
whether it be to imprison, to enslave, to brand, to dismember,
or to divide his body. But, as the lapse of time removed to a
greater distance the cruelties which had been suffered, the
cupidity of the affluent found means again to introduce the
system; but by such slow gradations, that the unsuspecting poor
were scarcely conscious of the change.

"The history of English jurisprudence furnishes the remarkable
fact, that, for many centuries, personal liberty could not be
violated for debt. Property alone could be taken to satisfy a
pecuniary demand. It was not until the reign of Henry III.,
in the thirteenth century, that the principle of imprisonment
for debt was recognized in the land of our ancestors, and that
was in favor of the barons alone; the nobility against 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 baron, without a trial: an evil incident to
aristocracies, but obnoxious to republics. The courts, under
the pretext of imputed crime, or constructive violence, on the
part of the debtor, soon began to extend the principle, but
without legislative 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
excepted, 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 obtained by
the barons menaced the power of the throne; and, to counteract
their influence, the merchants, a numerous and wealthy class,
were selected by the monarch, and invested with the same
authority over their debtors.

"But England was not yet prepared for the yoke. She could endure
an hereditary nobility; she could tolerate a monarchy; 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 recognizing 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 protection of the law, and too degraded for the society
of the world. Parliament then ventured, 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
the impositions which were gradually introduced by judicial
usurpation, and have resulted in the most cruel oppression.
Parliament, for one hundred and fifty years afterwards, did not
venture to outrage the sentiments of an injured and indignant
people, by extending the power to ordinary creditors. But they
had laid the foundation, and an irresponsible judiciary reared
the superstructure. From the twenty-fourth year of the reign
of Edward III., to the nineteenth of Henry VIII., the subject
slumbered in Parliament. In the mean time, all the ingenuity
of the courts was employed, by the introduction of artificial
forms and legal 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
disturbances 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 fictitious
construction, the person who owed his neighbor was supposed to
be, what every one knew him not to be, a violator of the peace,
and an offender against the dignity of the crown; 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 between 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 artificial construction,
quite as far beyond its statutory prerogative; and upon the
fictitious plea of trespass, constituting a legal supposition
of outrage against the peace of the kingdom, authorized the
writ of capias, and subsequent imprisonment, 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 extend 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 jurisdiction, introduced, 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 construing 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 liberty. The
sacred claims of misfortune were disregarded, and, to the iron
grasp of poverty, were added the degradation of infamy, and the
misery of the dungeon.

"While imprisonment for debt is sanctioned, the threats of the
creditor are a source of perpetual distress to the dependent,
friendless debtor, holding his liberty by sufferance alone.
Temptations to oppression are constantly in view. The means of
injustice are always at hand; and even helpless females are not
exempted from the barbarous practice. In a land of liberty,
enjoying, in all other respects, the freest and happiest
government with which the world was ever blessed, it is matter
of astonishment that this cruel custom, so anomalous to all our
institutions, inflicting so much misery upon society, should
have been so long endured."

The act was passed soon after this masterly report was made, followed by similar acts in most of the States; and has been attended every where with the beneficial effect resulting from the suppression of any false and vicious principle in legislation. It is a false and vicious principle in the system of credit to admit a calculation for the chance of payment, founded on the sympathy and alarms of third parties, or on the degradation and incarceration of the debtor himself. Such a principle is morally wrong, and practically unjust; and there is no excuse for it in the plea of fraud. The idea of fraud does not enter into the contract at its original formation; and if occurring afterwards, and the debtor undertakes to defraud his creditor, there is a code of law made for the case; and every case should rest upon its own circumstances. As an element of credit, imprisonment for debt is condemned by morality, by humanity, and by the science of political economy; and its abolition has worked well in reducing the elements of credit to their legitimate derivation in the personal character, visible means, and present securities of the contracting debtor. And, if in that way, it has diminished in any degree the wide circle of credit, that is an additional advantage gained to the good order of society and to the solidity of the social edifice. And thus, as in so many other instances, American legislation has ameliorated the law derived from our English ancestors, and given an example which British legislation may some day follow.--In addition to the honor of seeing this humane act passed during his administration, General Jackson had the further and higher honor of having twice recommended it to the favorable consideration of Congress.