DEBT, IMPRISONMENT FOR

DEBT, IMPRISONMENT FOR. The practice of imprisoning debtors generated persistent calls for legal reform throughout much of the eighteenth and nineteenth centuries. The incapacity of the law to distinguish between cases of outright fraud and instances of mere economic misfortune led to a search for more equitable remedies. Imprisonment because of economic misfortune seemed a cruel and ineffective practice, limiting one's liberty and productivity, leaving women and children to care for themselves and creditors empty-handed. Accordingly, the practice was subject to humanitarian and utilitarian criticisms in both Britain and America until it was abolished in the middle of the nineteenth century.

The origins of imprisonment for debt in English law can be traced to a series of statutes enacted during the thirteenth century. Creditors were empowered with the right to arrest delinquent debtors before trial in order to ensure their presence in court. When a creditor invoked this right over the debtor's person, however, he could not claim a right to the debtor's assets. Still, the legal process made it easier for a creditor to arrest the debtor than to seize his property, especially when the indebtedness extended to more than one creditor. During the sixteenth and seventeenth centuries, the enclosure of the commons and an increasingly dynamic conception of property as a commodity significantly expanded the practices of lending and borrowing. Bankruptcy legislation was enacted to protect "traders" but for most people loans continued to be secured by the threat of imprisonment. By the eighteenth century, debtors' prisons were so overcrowded as to justify a plan by James Oglethorpe to establish the colony of Georgia as a refuge for honest debtors.

Debtors in the British North American colonies generally fared better than did their contemporaries in England. An abundance of land and a shortage of labor fostered an economic necessity and an ideological preference for debtors to maintain their productivity. In many northern colonies, they often were allowed to enter into agreements of servitude in lieu of going to prison. Institutionally as well, the advantages favored debtors. Most cases were tried in local courts, where they could count on a sympathetic and familiar jury, especially when the charges were brought by nonresident creditors. Furthermore, the absence of traditional jails made imprisonment a difficult business. Debtors sentenced to imprisonment were often released on bail or simply restricted within the confines of a specified locale (that is, a farm, precinct, or county) that was designated as "the prison bounds." For those who were incarcerated, however, prison conditions were exceedingly poor and life was particularly harsh.

During the eighteenth century, an extensive "debt culture" developed in the colonies that involved a complex web of local and European creditors and increased the sources of financial pressures on colonial debtors. Small farmers who borrowed from local creditors either to begin or sustain their agricultural production soon found themselves vulnerable to the vicissitudes of the Atlantic economy. Increased land speculation and migration into western lands also exacerbated many debtor-creditor relations to the point of crisis. By the eve of the American Revolution, colonial courts were backlogged with debt cases that demanded immediate and expedient remedies for both local and British creditors. Arrests and imprisonment increasingly evoked a strong popular backlash. In response to these pressures, some courts allowed debtors to assign all of their property to their creditors instead of going to prison.

American independence did not resolve the debt crisis. In many respects, the vast amount of popular indebtedness posed fundamental problems for republican government. Shays's Rebellion (1786–1787) was the most notorious protest against the execution of debts in the early Republic, and it encouraged popular support for the Constitutional Convention in Philadelphia. While new ideas of individual liberty often contradicted the condition of dependence inherent in indebtedness, they also encouraged the abolition of debtors' servitude and made imprisonment seem a harsher punishment than it had been perceived to be earlier. Several states included provisions opposing the imprisonment of honest debtors in their constitutions, while both state legislatures and courts continued encouraging the assignment of property as a form of relief from imprisonment. In 1811, Massachusetts became the first state to prohibit the imprisonment of petty debtors. Over the next four decades, most other states followed suit, making exceptions in cases of fraud, alimony, or child support. The crusade to abolish debtors' prisons also garnered strong public support from Freeman Hunt and Hezekiah Niles, influential newspaper editors and ardent reformers.

In the end, however, imprisonment for debt was abolished not by an organized reform movement but, instead, by substantial changes in commercial practices and the corresponding legal revisions to support an emerging national economy. The transition from an associational marketplace to a monetary one, the development of business corporations, and new methods of lending all made the practice of imprisonment anachronistic. American legal systems supported these new commercial activities and endorsed creditors' practices of attaching property by prior contract, exemplified by the mortgage and conditional sales contract. Correspondingly, state legislaturesenacted stay laws, homestead exemptions, married women's property acts, and bankruptcy laws to protect debtors from abject poverty. During Reconstruction the states that still maintained debtors' prisons replaced them with modern bankruptcy and insolvency statutes, signifying the triumph of new legal and social relationships between debtors and creditors.

BIBLIOGRAPHY

Coleman, Peter J. Debtors and Creditors in America: Insolvency, Imprisonment for Debt, and Bankruptcy, 1607–1900. Madison: State Historical Society of Wisconsin, 1974.

Freyer, Tony A. Producers versus Capitalists: Constitutional Conflict in Antebellum America. Charlottesville: University Press of Virginia, 1994.

Friedman, Lawrence M. A History of American Law. 2d ed. New York: Simon and Schuster, 1985.

Lester, V. Markham. Victorian Insolvency: Bankruptcy, Imprisonment for Debt, and Company Winding-up in Nineteenth-Century England. New York: Oxford University Press, 1995.

Christopher M.Curtis

See alsoBankruptcy Laws ; Married Women's Property Act, New York State ; Prisons and Prison Reform ; Shays's Rebellion ; andvol. 9:Shays's Rebellion .