Page:The Green Bag (1889–1914), Volume 07.pdf/447

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IMPRISONMENT FOR DEBT. By Benjamin F. Washer. "Behind him stalks Another monster, not unlike himself. Sullen of aspect, by the vulgar called A catchpole, whose polluted hands the gods With haste incredible and magic chains Erst have endured. If he his ample palm Should haply on ill-fated shoulder lay Of debtor, strait his body, to the touch Obsequious (as whilom knights were wont). To some enchanted castle is conveyed, Where gates impregnable and coercive chains In durance strict detain him till, in form Of money. Pallas sets the captive free." — Phillip's Splendid Shilling. WE, living in this country at the day when personal liberty has reached its highest culmination, and where every act — executive, judicial and legislative — is care fully and scrupulously weighed in the balance of individual freedom, can hardly appreciate or fully understand the real meaning and com plete significance of incarceration for debt. To layman and barrister imprisonment of this character is looked upon as one of the humors of modern legal proceedings. We have heard of wandering minstrels or stranded base-ballists languishing in " castle keep " on account of an unpaid obligation; we have witnessed a transient guest within our city taken into custody for a previously contracted hotel account or cigar bill, and have from experience in a representative character come to know the end — the in solvent debtor's oath and liberation. But that this process was ever urged against citizens in all walks and stations of life; that every one who contracted a debt, or assumed a liability became amenable to a criminal prosecution in the event of default, and that nothing but a statement of an ac count unliquidated was necessary to a con finement in prison, and, perchance, death, seems to us as unlikely as it is repulsive. The principle at once impresses us as lack

ing in justice, as being deficient in equity, devoid of all morality and adverse to all policy. Nothing that one can. imagine could so completely wreck commercial credit or un dermine financial transactions as to hold not only the property of an individual subject to his liabilities, but to give to a rapa cious creditor the person of the debtor. It calls into the realm of the business world not only the commercial representative, it makes parties to contracts not only those who have entered into them, but it brings into those transactions the weeping wife, the hungry children and the sympathetic friends and relations of the one whom for tune has denied the ability to pay. By this pernicious system the unfortunate are con demned to further and more terrible misfor tune and to the pangs and sufferings of poverty is added the sting of disgrace. The doctrine of imprisonment for debt is fallacious in its every particular. Under what theory a man unable to meet a matured liability will be rendered capable of liquidat ing the same by being deprived of his freedom and facilities for work is more than modern intelligence can explain. The old lawyers and law makers sought to work out the problem through the medium of fraud. They claimed that he who assumed a monetary responsibility, and failed to meet the same, was guilty of perpetrating a fraud on his creditor. The case may have been wanting in all the elements of fraud. The motive may have been the purest, the inten tions the most honest and fair, the efforts at payment the most strenuous and diligent, but if the final outcome was failure the transaction was fraudulent. What a techni cally perverted meaning! To-day fraud in ! some aspects merits and receives incarccra