In the early laws of every country there will be found greater severity against debtors than at a later period of civilization. The reason is twofold: 1, the want of sufficient intellectual acumen to disr tinguish the degrees of wrong in cases of fraud and of unforeseen accident and misfortune; 2, the actual want of probity in the earlier period of national existence. It is very common to suppose that in a rude state of society there is a greater degree of honesty and fair dealing than in an advanced civilization; but that this is a mistake we need no better proof than the history of the laws of the Germanic nations. There was no lack of personal independence, at least of intrepidity in war, yet in judicial proceedings it was found that no reliance whatever could be placed upon the oaths of parties or witnesses. Thus, instead of producing witnesses who could testify to the fact in question, numerous compurgators or conjurators were called to swear that they believed the statement made by the party who called them; and this was found so uncertain that the trial by combat was preferred as a better mode of determining the fact.
So it is reasonable to infer by analogy that the cruelty exhibited in the early laws of the Athenians, and in the Roman law of the twelve tables, was founded upon the trickery and dishonesty which prevailed at Athens and Rome. The right of the creditor to sell the debtor as a slave was abolished by Solon. The decemvirs of Rome, who professed to follow his legislation, did not conform to it in this particular, but enacted a law more oppressive than the Athenian, or indeed than any of which we have an authentic record, whereby the debtor was subject to be taken by the creditor to his own house, and to be most cruelly dealt with for 60 days, after which he could be sold into foreign slavery. The atrocious conduct of a usurer who undertook to gratify his lust upon a young man who had surrendered himself for a debt of his father, and in consequence of the resistance of the prisoner scourged and otherwise maltreated him, led to an outbreak of the people and the passage of a law by the senate, A. IT. C. 428, by which creditors were prohibited from taking debtors into their own custody, but the right of selling them into slavery still remained. This power seems to have become practically obsolete, and a milder mode of treatment grew up under the emperors.
According to the Institutes of Justinian, a debtor was subject only to loss of property for payment of his debts. The same practice prevailed in England at an early period. Suits were commenced by a summons, and if the defendant failed to appear, process was issued for the attachment of his property; but in actions upon contract no further remedy was given, either at the commencement of the suit or after judgment. In actions for injuries accompanied with force, it was, however, permitted to issue process for the arrest of the person. By various statutes the same remedy was extended to other actions in which there was no force, as actions of account, debt, detinue, and actions on the case. In the court of king's bench, however, the defendant was, without the aid of these statutes, liable to arrest upon process issued for an alleged trespass, and when arrested he was made to answer for any other cause of action. In the court of exchequer jurisdiction was obtained by a similar fiction. Upon recovery of judgment in any action in which an arrest was allowed upon mesne process, a writ could be issued called a capias ad satisfaciendum, whereby the defendant could be arrested and committed to close custody (in arcta custodia); and if he was suffered by the sheriff to be outside of the jail, it was deemed an escape, for which the sheriff was made liable for the whole amount of the debt.
In the United States the same forms of proceeding were introduced, but were gradually modified in advance of the changes in the English practice. In the state of New York it was provided that a capias ad satisfaciendum should not be issued till after an execution against the property (called a fieri facias) had been issued and returned unsatisfied. In 1831 imprisonment for debt upon contract, except in certain cases, was abolished in that state. The exceptions were where fraud had been committed or was intended, in which cases an arrest could be ordered by a judge, to which exception was added, by a statute of 1846, the case of money received in a fiduciary capacity; and by a subsequent statute imprisonment for interlocutory costs was abolished. The principle embraced in these laws was adopted in the code of procedure of 1849. Arrest is thereby prohibited in all civil actions, except in certain specified cases, viz.: in actions for injury to the person or character, or for injuring or wrongfully taking or detaining prop-perty; in cases of embezzlement by public officers, or persons acting in a private fiduciary capacity; for misconduct in office or any professional employment; in actions to recover the possession of personal property, where it is concealed or kept out of the reach of the sheriff; and in cases where the defendant has been guilty of a fraud in contracting the debt or in avoiding payment.
In the excepted cases there may be an arrest by an order of a judge, in which order the amount for which the defendant shall be held to bail is specified; and when there has been arrest upon mesne process, the like remedy in all cases is given upon final process. Females are exempted from arrest in all cases except actions for wilful injury to person, character, or property. The legislation of the state of New York has been followed in other states, and may be assumed in its general features as the prevalent system throughout the United States, in respect to the coercive remedy for the collection of debts by process against the person. - In England important modifications have been made in the laws relating to the collection of debts. In 1838, by statute 1 and 2 Victoria, c. 110, arrest upon mesne process for debts exceeding £20 was abolished, except in cases where proof was made of the intention of the defendant to leave England. Provision was also made for discharge from liability to imprisonment upon final process, upon the surrender by the debtor of all his property for the payment of his debts.
In 1842 (5 and 6 Victoria, c. 116) similar provision was made for discharge from imprisonment for debts under £20; and in 1844 (7 and 8 Victoria, c. 96) arrest upon final process in an action for a debt not exceeding £20 was abolished, except where there was fraud in the contracting of the debt, or a fraudulent attempt to avoid payment, leaving it to the discretion of a judge to order an arrest upon proof of any such fraud. A great amelioration was effected by these statutes. The relief under the previously existing bankrupt laws applied only to a class designated as traders, leaving a large proportion of debtors entirely unprovided for; and the relief itself, even in cases to which it was applicable, was harsh to the debtor, wasteful of the assets devoted to the creditors, and not unfrequently all beneficial effect was defeated by the technical stringency of the statutes and the extreme severity of the courts. Then as to the relief of insolvents, under the act of 32 George II., c. 28 (commonly called the lords act, from the circumstance of its having originated in the house of lords), it was limited to debtors actually in custody upon execution for debts under £100 (afterward extended to £300); and notwithstanding the surrender of the debtor's property as provided by the act, the creditor could still detain the debtor in prison, subject only to the condition that he was to allow 2s. 4d. a week for his support.
The relief afforded by the statutes referred to has been supplemented by others in the same direction, and by the recent changes in the bankrupt laws. (See Bankrupt.) - The several states of the American Union have insolvent laws under the provisions of which, when no national bankrupt law is in force, an insolvent debtor may obtain relief from imprisonment for debt, and in some states may be wholly discharged from the obligation of his debts on making surrender of his property, with the exception of those things which by law are exempt from execution. Cases in which debts were fraudulently contracted, and in which payment is sought to be avoided by fraud, are exempted from these laws; or if provided for, the discharge is generally withheld until after imprisonment for a specified time proportioned to the amount of the debt, and after a judicial finding that the property has been fully surrendered. As to the force of state insolvent laws, important questions have arisen under the clause of the constitution of the United States forbidding the states to pass laws impairing the obligation of contracts.
The conclusions to be drawn from the judicial decisions on the subject may be stated as follows: 1. The states may legislate on the subject of bankruptcy and insolvency, subject to the authority conferred upon congress by the constitution to adopt a uniform system of bankruptcy, which authority when exercised is paramount, and supersedes all state enactments which conflict with the system established. 2. Such state laws as terminate the legal obligation of the debt cannot constitutionally be made to apply to contracts entered into before they were passed, but they may be made applicable to all such future contracts as can be considered as having been made with reference to them. 3. Contracts made within a state where an insolvent law exists, between citizens of that state, are to be considered as made with reference to the law. But such law cannot apply to a contract made in one state between a citizen thereof and a citizen of another state, nor to contracts not made within the state, even though between citizens thereof.
And where the contract is made between citizens of different states, the circumstance that it is to be performed in the state where the insolvent law exists will not render it subject to discharge under such law. 4. If, however, the creditor in any case voluntarily makes himself a party to the proceedings in insolvency, he will be bound thereby, whether his demand would otherwise have come under the operation of the insolvent law or not. - By the laws of most European countries, the cession of the property of an insolvent to his creditors for the payment of debts is not a ground for releasing his future acquisitions from liability for his debts, but only for discharging the debtor from process against his person. In France, the law respecting imprisonment for debt has recently undergone great modification; and in case of commercial debts, the imprisonment is permitted for a limited period only, proportioned to the amount owing. Ecclesiastics, minors, women not engaged in commerce, and septuagenarians are wholly exempt.