Debtors Prisons in Early America

Traditionally under English law debtors were dealt with quite harshly.  The goods of debtors were routinely subject to confiscation and distribution to creditors on a pro rata basis on the size of the debt owed.  Debtors could be branded by courts for failure to pay creditors and even subject to mutilation by court order.  Colonial America shared to the full this legacy of being hard on those who failed to pay their bills.  One common way to collect a debt was to bring suit to have a debtor imprisoned until he paid his debt.  This judicial kidnaping proceeded under the assumption that family members would pay the debts of the imprisoned debtor in order to ensure his release.  The debtor was held liable for the cost of his food and lodging while in the prison.

A great deal of outrage was directed towards this pernicious institution.  Dr. Samuel Johnson spoke for many in England and America when he wrote:  “…nor can I look with equal hatred upon him, who, at the hazard of his life, holds out his pistol and demands my purse, as on him who plunders under the shelter of law, and by detaining my son or my friend in prison, extorts from me the price of their liberty.”

Due to the ups and downs of economic fortune all strata of society were potentially subject to debtors prison.  Two of the Founding Fathers, James Wilson, a signer of the Declaration of Independence and the Constitution and one of the first United States Supreme Court Justices, and Robert Morris, who helped finance the Revolution and signed the Declaration of Independence, the Articles of Confederation and the Constitution, both served time in debtor’s prisons near the ends of their life, their predicaments caused by unwise land speculations.  Henry “Lighthorse Harry” Lee, hero of the Revolution and father of Robert E. Lee, also served time in a debtors prison.

States following the Revolution began to impose restrictions on imprisonment for debt, as to duration, the amounts owed that would subject a debtor to imprisonment, etc.  Eventually New York  abolished debtors prisons altogether in 1831, and in 1833 the Federal government abolished imprisonment for debts being ordered by Federal courts.  All the other states, following the lead of New York and the Federal government, abolished debtors prisons soon thereafter.

Published in: on April 16, 2012 at 5:30 am  Comments (8)  
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  1. Debtor’s Prison never made sense to me, but I am thinking about running for congress on a platform of bringing back Stock’s in the Public Square and rotten tomatoes. grin. In Christ, Dennis McCutcheon

  2. I’d vote for that Dennis, at least if the stocks were restricted to corrupt elected officials!

  3. Is debtor’s prison making a comeback of sorts? Some consumer advocates say it is and there is legislation being considered in Illinois to stop the practice:

    Of course, what is happening here is not, strictly speaking, imprisonment for debt, but imprisonment for contempt of court (due to failure to appear for court hearings involving the debt). While it’s certainly possible that particularly unscrupulous bill collectors are trying to trick debtors into incurring contempt citations that trigger arrest, I suspect many of these alleged “debtor’s prison” cases involve people who have ignored repeated attempts to collect debts or made no effort to pay them even in part.

  4. Precisely Elaine. In my experience both Judges and attorneys are usually extremely reluctant to punish any debtor for contempt with jail time. It normally only happens if a debtor simply refuses to come to court after being served with a citation to discover assets, and then a rule to show cause. Then an arrest warrant is issued for them. They can nomally bond out by paying a low bond, usually a hundred dollars. Then a hearing is held. If the debtor is unemployed they are not going to be held in contempt of court. If they are employed and simply refusing to comply with a payment order, they are nomally held in contempt and then given an opportunity to purge themselves of contempt by making payment prior to yet another court date. The claim that this constitutes debtor’s prison is ludicrous to anyone familiar with the system.

  5. Jailed for $280: The Return of Debtors’ Prisons–280–the-return-of-debtors–prisons.html

    As you say these cases are pursued under the subterfuge of contempt of court of failure to appear.

    And Donald, when you say “attorneys are usually extremely reluctant to punish any debtor for contempt with jail time” I’m willing to bet you are willing to bet you’re using yourself & acquaintances as a sample.

    No doubt there is an entire subspecies of lawyers (“the collection bar”?) willing to go to the limit of the law and legal ethics for creditors. Not that there’s anything wrong with that, as they say.

    • Most Collection attorneys Thomas come to court in Illinois with 20-30 cases. Usually they have limited “face time” per case in front of the Judge, who is usually eager to keep the cases moving. Full blown hearings on contempt are time consuming and rare. In 30 years the only time I have ever seen debtors go to jail is on arrest warrants issued for them after they have failed to appear at the initial appearance, citation to discover assets, and rule to show cause. The most effective means to collect a debt is normally to find out where the debtor is working and garnish the debtor’s wages. That is normally what the collection attorney is looking for at the citation to discover assets, that or an agreed court order mandating monthly payments.

      As one judge described the procedure to a pro se creditor in small claim’s court, getting money through small claims is like getting water from a rock. Many debtors are unemployed and many others quickly go into bankruptcy or simply skip and can’t be located. Collection attorneys have to operate on a high volume in order to make a profit, and the less time they have to spend on a file the better for them. Putting someone in jail for non-appearance normally indicates a file for the collection attorney that is either no profit or little profit.

      • Many debtors…. quickly go into bankruptcy or simply skip and can’t be located
        One might almost say that you are making a case for some sort of debtors’ prison. Or more correctly, show why such an arrangement may have seemed sensible until it was tried and its faults became apparent.

      • I see it from both sides Fabio, as I represent both creditors and individuals filing bankruptcy. Many debts are uncollectible since even with the best will in the world the debtor simply lacks the cash to pay and for the foreseeable future will lack the cash. Most collection attorneys won’t waste a lot of time on these type of cases. Then there are debts where the debtor has the cash and is simply being a deadbeat and refusing to pay. In those cases wage garnishments will often produce sufficient funds to pay the debt quickly. I recently collected a debt of $4,000 for a bank where the debtor made over 100K a year. He clearly had the income and refused to pay, and a wage garnishment proved very effective. In another case I had a debtor so broke that she had to hitch a ride to court. I told her to contact me when she found employment and dismissed the citation against her. In debt cases different approaches are needed in regard to the type of debtor. One of the many failings of debtors prisons is that they treated all debtors the same.

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