The twice-told tale of debt

I owe, I owe, it’s off to jail I go…

Reader Mariann Regan was still confused after Monday’s blog post “When casa is not a house” about the abbreviation “ca. sa.” for the writ used in a suit brought for a debt.1

debt.prison“I still don’t understand why Michael McDaniel was in jail in the first place,” she wrote. “Only how he got out.”

And the answer is a bit of American history that can be confusing, for sure, especially to those of us living in the 21st century.

Because the answer is something that, in that form, hasn’t been around for nearly 200 years.

The debtor’s prison.

Let’s take a look again at the writ — the legal order — that was used to haul Michael McDaniel into jail back in September 1822. It was the writ of capias ad satisfaciendum. And that was:

In practice. A writ of execution, (usually termed, for brevity, a “ca. sa.,”) which a party may issue after having recovered judgment against another in certain actions at law. It commands the sheriff to take the party named, and keep him safely, so that he may have his body before the court on a certain day, to satisfy the party by whom it is issued, the damages or debt and damages recovered by the judgment. Its effect is to deprive the party taken of his liberty until he makes the satisfaction awarded.2

Focus on that language in bold. That was the problem.

If you owed somebody money and couldn’t pay it, that person could sue you for debt, get a judgment from the court, and then get a writ slapping you in jail until you paid the debt. Which, in many cases, the person couldn’t do or he’d have done it already. And the effect was to put large numbers of people in prison simply because they were poor and fell into debt.

A report in 1830 from the Prison Discipline Society in Boston includes numbers that are staggering:

The number of persons imprisoned for debt in the Northern and Middle States is very great.
During the year ending December 30, 1829, there were imprisoned for debt in Concord, N. H., 31; in Taunton, Mass., 126; in Worcester, 271; in Boston, 1211; in East Greenwich, R. I., 80; in Newport, R. I., 78; in Pennyan, N. Y., 103; at Courtland Village, 112; in Buffalo, 338; in the city of New York, in 1828, 3,000; in Philadelphia, during 8 months, ending February 25, 1830, 817; in Baltimore, in 1829, 944. As nearly as we can ascertain from the returns which we have received, the number imprisoned for debt annually is, in Massachusetts, 3,000; in New York, 10,000; in Pennsylvania, 7,000; in Maryland, 3,000; and in the other Northern and Middle States, nearly as above in proportion to the population. …3

In fact, more people were in jail for debt than for committing crimes: “In Worcester, Mass., the debtors were to the criminals as 3 to 1; in Rhode Island, as 4 to 1; in Pennyan, N. Y., nearly as 5 to 1; at Courtland Village more than 8 to 1; at Belvidere, N. J., as 5 to 1; at Flemington, N. J., as 6 to 1; in 17 Prisons in the Northern and Middle States, nearly as 5 to 1.”4

Not to say that the rich and famous didn’t find themselves in trouble — and in debtor’s prison — too. They did. Among them, William Penn, the governor of Pennsylvania.5 And Robert Morris, Jr., a member of the Continental Congress.6

But it was mostly a problem of the poor, and the amount most of them owed was trifling:

In Philadelphia alone, the number of persons imprisoned in eight months, ending February 25, 1830, for less than one dollar each, was thirty. In eleven other Prisons, from which we have heard, there were imprisoned, during the year ending December 30, 1829, for less than one dollar each, thirty-two. …

In thirty Prisons, from which we have heard, there were imprisoned, for more than one and less than five dollars each, five hundred and ninety-five. …

In thirty-two Prisons, from which we have heard, there were imprisoned for more than five and less than twenty dollars, two thousand one hundred and eighty-four. …

In thirty-two Prisons, from which we have heard, the number imprisoned for less than twenty dollars each, was 2841; for more than twenty, and less than $100, — 902. …

In fifty-three Prisons, from which we have heard, the whole number imprisoned for more than one hundred dollars each, was four hundred and sixteen, or only as one to seven, compared with the number imprisoned for less than twenty dollars.7

So Michael McDaniel was just one of many who was hauled off to jail because he hadn’t paid a debt. And one of many who, starting in the early 1800s, started getting out of jail by taking what was called the oath of insolvent debtors.

In the District of Columbia, federal law applied, and a federal statute was passed in 1803 allowing anyone in jail for debt to hand over all of his property to be sold for the benefit of his creditors and get a discharge from jail.8 Many states had similar statutes beginning in the late 18th century.

Although amended from time to time, the same basic provisions applied in the McDaniel case: he was allowed to list his property, hand it over and get out of jail. What was unusual about the case was the fact that he’d already been hauled into jail in 1821 and gotten a discharge from the very debt that this creditor was trying to collect in 1822:

The Petition of Michael McDaniel now confined in close custody in the Jail … humbly represents, that he was released from certain debts due sundry persons by the act of the relief of Insolvent debtors, the 17th day of Sept. 1821 and discharged from the Custody of the Marshall by order of your Associate the Honbl Judge Cranch, that at that time he delivered a schedule of his creditors among whom was one Humphrey Peake, that since then … to wit on the 16 Sept 1822 the said Humphrey Peake has ordered and had executed a capias ad satisfaciendum against & upon your Petitioner for the said debt upon which your Petitioner was discharged as aforesaid, and that notwithstanding your Petitioner has made known and exhibited to the Marshall for the County aforesaid the certificate of his discharge as an Insolvent debtor which is hereto annexed, the said Marshall hath refused and still doth refuse to liberate your Petitioner without receiving his boundage frees which your petitioner as deft: is in no wise bound to pay.9

And the reason why he was freed by the judge after a hearing on the writ of habeas corpus was because that debt had been included in McDaniel’s 1821 discharge: “It appearing to my satisfaction that the within named Michael McDaniel the Petitioner has been imprisoned on account of a debt which was owing and due due before by discharge as an Insolvent debtor. I hereby adjudge and order that the said Michael McDaniel be discharged from his imprisonment.”10

So it wasn’t McDaniel being in jail for debt that was unusual — which is why we should always consider debtor’s prison records with our poorest ancestors. It was really that he was in jail twice for the same debt.


SOURCES

IMAGE: William Hogarth, “The Debtor’s Prison” (1732-1735), via Wikimedia Commons

  1. Judy G. Russell, “When casa is not a house,” The Legal Genealogist, posted 22 July 2013 (http://www.legalgenealogist.com/blog : accessed 24 July 2013).
  2. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 168, “capias ad satisfaciendum.”
  3. Imprisonment for Debt: Fifth Annual Report of the Board of Managers of the Prison Discipline Society,,” The North American Review 32 (April 1831): 490, 492; reprint, JSTOR (http://www.jstor.org : accessed 24 Jul 2013).
  4. Ibid.
  5. See Jim Powell, “William Penn, America’s First Great Champion for Liberty and Peace,” The Religious Society of Friends (http://www.quaker.org/ : accessed 24 July 2013).
  6. Robert Morris: The Dark Side,” Philadelphia Reflections (http://www.philadelphia-reflections.com : accessed 24 July 2013).
  7. Imprisonment for Debt: Fifth Annual Report of the Board of Managers of the Prison Discipline Society,,” The North American Review 32: 492-493.
  8. An Act for the relief of Insolvent Debtors within the District of Columbia, 2 Stat. 237 (3 March 1803); digital images, “A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875,” Library of Congress, American Memory (http://memory.loc.gov/ammem/index.html : accessed 25 Jul 2013).
  9. Petition of Michael McDaniel for a writ of habeas corpus, U.S. District Court for the District of Columbia, Sep 1822; digital images, “Habeas Corpus Case Records, 1820-1863,” Ancestry.com (http://www.ancestry.com : accessed 21 Jul 2013); citing National Archive microfilm publication M434, roll 1.
  10. Ibid., order by Judge Buckner Thruston, 17 Sep 1822.
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4 Responses to The twice-told tale of debt

  1. Jana Last says:

    Judy,

    I want to let you know that your blog post is listed in today’s Fab Finds at http://janasgenealogyandfamilyhistory.blogspot.com/2013/07/follow-friday-fab-finds-for-july-26-2013.html

    Have a great weekend!

  2. I’m happy that such an enlightening and entertaining blog post came from my small question. I really enjoyed reading this post, Judy! Thank you.

    And debt! Oh, yes, I didn’t think of that, but I should have after reading Dickens’ novel “Little Dorritt” and learning about her father stuck in the Marshalsea debtor’s prison. So the New Country had its own “Marshalseas” in the Northern and Middle States, as you catalogue, to my amazement — more in prison for debt than for crime. Wow. So poor McDaniel was dragged into jail twice.

    So “after having recovered judgment” just means after having “got” judgment from the court, and the rest follows. And it’s also fascinating to hear about the “oath of insolvent debtors.” That reminds me somewhat of the IRS claiming your property for unpaid income taxes.

    Now I’m going to look up poorhouses and workhouses to see in what ways they are different. I can hear Scrooge saying, “Are there no workhouses?”

    • Judy G. Russell says:

      It was a great question, Mariann! And these were not only in the northern and middle states — it’s just that the southern states tended to go to the insolvent debtor system a bit earlier.

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