display | more...
A debtor’s prison was a place where people were incarcerated for, you guessed it, not being able to pay their debts/rents/taxes/etc.

The principle of a debtor’s prison can be traced to England. In 1601, The Poor Law was enacted that basically assigned the responsibility of the poor to local parishes. In order to accommodate the growing number of poor, the parishes built workhouses to employ them on a profitable basis. Sounded like a good idea at the time but it didn’t take long for the workhouses to absorb every type of person that was charged with a crime. The workhouses soon were overcrowded and conditions had deteriorated along with the growing workhouse population.

Along came the Poor Law Amendment of 1834 which attempted to standardize the treatment of the poor throughout England. The local parishes were grouped into unions and these unions assumed responsibilities for the workhouses. The law also provided that no relief could be given to any able-bodied persons in their own homes. Any person that had their own home and was seeking relief had to live in the workhouse. Conditions remained harsh and degrading. For the best description of these conditions I recommend Great Expectations by Charles Dickens. It describes his own experience in a debtors prison as a child. It wasn’t until the latter part of the 19th century that true reform had begun. By the first half of the 20th century, social welfare services and programs were put in place that eventually replaced the workhouse system.

On a side note, and, maybe this deserves a separate node but this is what the eminent Samuel Johnson had to say regarding the subject of debtor’s prisons. All are excerpts from the Johnson Idler #22 from September 16, 1758. In my ever so humble opinion and probably because I’m up to my ears in debt, the sentiments ring true. Without further ado…

Debtor’s Prison

“The confinement… of any man in the sloth and darkness of a prison, is a loss to the nation, and no gain to the creditor. For, of the multitudes who are pining in those cells of misery, a very small part is suspected of any fraudulent act by which they retain what belongs to others. The rest are imprisoned by the wantonness of pride, the malignity of revenge, or the acrimony of disappointed expectation.”

“Since poverty is punished among us as a crime, it ought at least to be treated with the same lenity as other crimes: the offender ought not to languish at the will of him whom he has offended, but be allowed some appeal to the justice of his country. There can be no reason why any debtor should be imprisoned, but that he may be compelled to payment: and a term should therefore be fixed, in which manner the creditor should exhibit his accusation of concealed property. If such property can be discovered, let it be given to the creditor; if the charge is not offered, or cannot be proved, let the prisoner be dismissed.”

”It is vain to continue an institution which experience shows to be ineffectual. We have now imprisoned one generation of debtors after another, but we do not find that their numbers lessen. We have now learned, that rashness and imprudence will not be deterred from taking credit: let us try whether fraud and avarice may be more easily restrained from giving it.”

On the subject of bankruptcy and debtor’s prison – Johnson had this to say.

“Those who made the laws have apparently supposed, that every deficiency of payment is a crime of the debtor. But the truth is, that the creditor always shares the act, and often more than shares the guilt, of improper trust. It seldom happens that any man imprisons another but for debts which he suffered to be contracted in hope of advantage to himself, and for bargains in which proportioned his own profit to his own opinion of the hazard: and there is no reason, why one should punish the other for a contract in which both concurred.”

In 17th and 18th Century England, if you failed to pay your debts, you could be thrown in jail. To make matters worse, you were expected to pay for your food and clothes in jail. Thus, debtor's prison was often a death sentence: a particularly cruel and drawn out death by exposure and starvation. While this supposedly served as a deterrent, and gave creditors some emotional satisfaction, it did not repay the debt, and took a man out of the labor force.

This was of little concern in early industrial England, but out in the colonies, labor was too valuable to waste by imprisoning workers. It became important to devise practical schemes for debtors to "work off" their debt (indentured servitude). The colonies also instituted minimal bankruptcy protections, to allow debtors to keep their liberty and the bare means (shelter, clothing, tools and so forth) necessary to remain gainfully employed.

Gradually, at the edges of European conquest and development, there emerged a consciousness that economic activity involves risk. Businesses fail, even gold mines don't always "pan out". The more lenient attitudes in the colonies would itself encourage immigration, where in addition to being judicially deported to America or Australia, people would simply flee to the colonies to avoid creditors and the terrible spectre of debtors' prison.

In the United States, the solution to bankruptcy was to flee westward, to wherever the frontier happened to be. First, "gone to Kentucky", then "gone to Texas" and finally "lit out for the Territories" became synonomous with insolvency.

The gradual development of bankruptcy law can be seen by comparing the Constitutions of the early States with the later, Western states. The original colonies and the federal Constitution did not prohibit imprisonment for debt, indentured servitude, or slavery. In Western states and territories settled after the Civil War, State constitutions flat out prohibit imprisonment for debt. (Perhaps similar developments can be observed by comparing English law, and the laws of the West Indies, with 19th century Tasmanian or Australian law.) This took time: at the federal level in the United States, there was no permanent bankruptcy statute until 1898: about the time that the United States ceased to have a wilderness "frontier".

The New Mexico constitution, drafted in 1911, contains a typical provision outlawing debtors' prison: "No person shall be imprisoned for debt in any civil action.". N.M. Const. , Art. II, § 21. (Making it a constitutional provision makes it much harder for the law to be changed. There are no such protections at the federal level, and technically all it would take is an act of Congress to bring back debtors' prisons).

Note the limitation to civil actions. You can still be jailed for failure to pay fines imposed to punish criminal activity, and for contempt of court. Contempt, civil or criminal, however, requires proof of willful intent: you have the money but refuse to pay. Inability to pay is a defense, and just being poor is not a crime.

Log in or register to write something here or to contact authors.