Part 205

"In this country [England] the same system was gradually introduced in Plantagenet times. The creditor, who had been previously entitled to seize the goods, or even the land of the debtor, was at last authorised to seize his person. In one sense, indeed, the English law was, in this respect, more irrational than the cruel code of the Jews, or the awful punishment [death and dismemberment or slavery—Gibbon, chapter 44] which the law of the Twelve Tables reserved for debtors. In Palestine the creditor was, at least, entitled to the service of the debtor or of his children, and the slave had the prospect of an Insolvent Debtor's Relief Act in the Sabbatical year. Even the law of the Twelve Tables allowed the creditors to sell the debtor into slavery, instead of resorting to the horrible alternative of partitioning his body. But in England the creditors had no such choice. They had nothing to do but to throw the debtor into prison; and by his imprisonment deprive themselves of the only chance of his earning money to pay their debts. A law of this kind was intolerable to a commercial people. The debtor languished in gaol, the creditor failed to obtain payment of his debt. When trade increased in Tudor times, the wits of legislators were exercised in devising some expedient for satisfying the creditor without imprisoning the debtor. The Chancellor was authorised to appoint commissioners empowered to divide the debtor's property among the creditors. By an Act of Anne the debtor who complied with the law was released from further liability, and was practically enabled to commence life anew. In 1826, a debtor was allowed to procure his own bankruptcy; while in 1831, commissioners were appointed to carry out the arrangements which had been previously conducted under the Court of Chancery. The law of bankruptcy which was thus gradually developed by the legislation of three centuries only applied to persons in trade. No one who was not a trader could become a bankrupt; the ordinary debtor became as a matter of course an insolvent, and passed under the insolvent laws. The statutes, moreover, omitted to give any very plain definition of a trader. The distinction between trader and non-trader which had been gradually drawn by the Courts was not based on any very clear principle. A person who made bricks on his own estate of his own clay was not a trader; but a person who bought the clay and then made the bricks was a trader. Farmers, again, were exempt from the bankruptcy law; but farmers who purchased cattle for sale at a profit were liable to it. The possibility, moreover, of a trader being made a bankrupt depended on the size of his business. A petitioning creditor in bankruptcy was required to be a person to whom at least £100 was due; if two persons petitioned, their debts were required to amount to £150; if more than two persons petitioned, to £200. A small shopkeeper, therefore, who could not hope to obtain credit for £200, £150, or £100, could not become a bankrupt; he was forced to become an insolvent. The treatment of the insolvent was wholly different from that of the bankrupt. The bankruptcy law was founded on the principle that the goods and not the person of the debtor should be liable for the debt; the insolvency law enabled the person of the debtor to be seized, but provided no machinery for obtaining his goods. … Up to 1838 the first step in insolvency was the arrest of the debtor. Any person who made a deposition on oath that some other person was in debt to him, could obtain his arrest on what was known as 'mesne process.' The oath might possibly be untrue; the debt might not be due; the warrant issued on the sworn deposition as a matter of course. But, in addition to the imprisonment on mesne process, the insolvent could be imprisoned for a further period on what was known as 'final process.' Imprisonment on mesne process was the course which the creditor took to prevent the flight of the debtor; imprisonment on final process was the punishment which the Court awarded to the crime of debt. Such a system would have been bad enough if the debtors' prisons had been well managed. The actual condition of these prisons almost exceeds belief. Dickens, indeed, has made the story of a debtor's imprisonment in the Marshalsea familiar to a world of readers. … The Act of 1813 had done something to mitigate the misery which the law occasioned. The Court which was constituted by it released 50,000 debtors in 13 years. But large numbers of persons were still detained in prison for debt. In 1827 nearly 6,000 persons were committed in London alone for debt. The Common Law Commissioners, reporting in 1830, declared that the loud and general complaints of the law of insolvency were well founded; and Cottenham, in 1838, introduced a bill to abolish imprisonment for debt in all cases. The Lords were not prepared for so complete a remedy; they declined to abolish imprisonment on final process, or to exempt from imprisonment on mesne process, persons who owed more than £20, and who were about to leave the country. Cottenham, disappointed at these amendments, decided on strengthening his own hands by instituting a fresh inquiry. He appointed a commission in 1839, which reported in 1840, and which recommended the abolition of imprisonment on final process, and the union of bankruptcy and insolvency. In 1841, in 1842, in 1843, and in 1844 Cottenham introduced bills to carry out this report. The bills of 1841, 1842, and 1843 were lost. The bill of 1844 was not much more successful. Brougham declared that debtors who refused to disclose their property, who refused to answer questions about it, who refused to give it up, or who fraudulently made away with it, as well as debtors who had been guilty of gross extravagance, deserved imprisonment. He introduced an alternative bill giving the Cou rt discretionary power to imprison them. The Lords, bewildered by the contrary counsels of two such great lawyers as Cottenham and Brougham, decided on referring both bills to one Select Committee. The Committee preferred Brougham's bill, amended it, and returned it to the House. This bill became ultimately law. It enabled both private debtors and traders whose debts amounted to less than the sums named in the Bankruptcy Acts to become bankrupts; and it abolished Imprisonment in all cases where the debt did not exceed £20."

_S. Walpole, History of England from 1815, chapter 17 (volume 4)._

DEBT: In the United States.

"In New York, by the act of April 26, 1831, c. 300, and which went into operation on March 1st, 1832, arrest and imprisonment on civil process at law, and on execution in equity founded upon contract, were abolished. The provision under the act was not to apply to any person who should have been a non-resident of the state for a month preceding (and even this exception was abolished by the act of April 25th, 1840); nor to proceedings as for a contempt to enforce civil remedies; nor to actions for fines and penalties; nor to suits founded in torts … nor on promises to marry; or for moneys collected by any public officer; or for misconduct or neglect in office, or in any professional employment. {652} The plaintiff, however, in any suit, or upon any judgment or decree, may apply to a judge for a warrant to arrest the defendant, upon affidavit stating a debt or demand due, to more than $50; and that the defendant is about to remove property out of the jurisdiction of the court, with intent to defraud his creditors; or that he has property or rights in action which he fraudulently conceals; or public or corporate stock, money, or evidences of debt, which he unjustly refuses to apply to the payment of the judgment or decree in favor of the plaintiff; or that he has assigned, or is about to assign or dispose of his property, with intent to defraud his creditors; or has fraudulently contracted the debt, or incurred the obligation respecting which the suit is brought. If the judge shall be satisfied, on due examination, of the truth of the charge, he is to commit the debtor to jail, unless he complies with certain prescribed conditions or some one of them, and which are calculated for the security of the plaintiff's claim. Nor is any execution against the body to be issued on justices' judgments, except in cases essentially the same with those above stated. … By the New York act of 1846, c. 150, the defendant is liable for imprisonment as in actions for wrong, if he be sued and judgment pass against him in actions on contracts for moneys received by him (and it applies to all male persons) in a fiduciary character. The legislature of Massachusetts, in 1834 and 1842, essentially abolished arrest and imprisonment for debt, unless on proof that the debtor was about to abscond. As early as 1790, the constitution of Pennsylvania established, as a fundamental principle, that debtors should not be continued in prison after surrender of their estates in the mode to be prescribed by law, unless in cases of a strong presumption of fraud. In February, 1819, the legislature of that state exempted women from arrest and imprisonment for debt; and this provision as to women was afterwards applied in New York to all civil actions founded upon contract. … Females were first exempted from imprisonment for debt in Louisiana and Mississippi; and imprisonment for debt, in all cases free from fraud, is now abolished in each of those states. The commissioners in Pennsylvania, in their report on the Civil Code, in January, 1835, recommended that there be no arrest of the body of the debtor on mesne process, without an affidavit of the debt, and that the defendant was a non-resident, or about to depart without leaving sufficient property, except in cases of force, fraud, or deceit, verified by affidavit. This suggestion was carried into effect by the act of the legislature of Pennsylvania of July 12th, 1842, entitled 'An Act to abolish imprisonment for debt, and to punish fraudulent debtors.' In New Hampshire, imprisonment on mesne process and execution for debt existed under certain qualifications, until December 23, 1840, when it was abolished by statute, in cases of contract and debts accruing after the first of March, 1841. In Vermont, imprisonment for debt, on contracts made after first January, 1839, is abolished, as to resident citizens, unless there be evidence that they are about to abscond with their property; so, also, the exception in Mississippi applies to cases of torts, frauds, and meditated concealment, or fraudulent disposition of property."

_J. Kent, Commentaries on American Law; edited by O. W. Holmes, Jr., volume 2 (foot-note)._

"In many states the Constitution provides (A) that there shall be no imprisonment for debt: Indiana. C. 1, 22; Minnesota. C. I, 12; Kansas. C. B. Rts. 16; Maryland. C. 3, 38; North Carolina. C. 1, 16; Missouri. C. 2. 16; Texas. C. 1, 18; Oregon. C. 1, 19; Nevada. C. 1, 14; South Carolina. C. 1, 20; Georgia. C. 1, 1, 21; Alabama. C. 1, 21; Mississippi. C. 1, 11; Florida. C. Decl'n Rts. 15.

(B) That there shall be no imprisonment for debt (1) in any civil action on mesne or final process, in seven states: Ohio. C. 1, 15; Iowa. C. 1, 19; Nebraska. C. 1, 20; Tennessee. C. 1, 18; Arkansas. C. 2, 16; California. C. 1, 15; Oregon. C. 1, 15; Arizona. B. Uts. 18.

(2) In any action or judgment founded upon contract, in three states: New Jersey. C. 1, 17; Michigan. C. 6, 33; Wisconsin. C. 1, 16.

(C) In six, that there shall be no person imprisoned for debt in any civil action when he has delivered up his property for the benefit of his creditors in the manner prescribed by law; Vermont. C. 2, 33; Rhode Island. C. 1, 11; Pennsylvania. C. 1, 16; Illinois. C. 2, 12; Kentucky. C. 13, 19; Colorado. C. 2, 12.

… But the above principles are subject to the following exceptions in the several states respectively:

(1) a debtor may be imprisoned in criminal actions: Tennessee.

So (2) for the non-payment of fines or penalties imposed by law: Missouri.

So (3) generally, in civil or criminal actions, for fraud: Vermont, Rhode Island, New Jersey, Pennsylvania, Ohio, Indiana, Illinois, Michigan, Iowa, Minnesota, Kansas, Nebraska, North Carolina, Kentucky, Arkansas, California, Oregon, Nevada, Colorado, South Carolina, Florida, Arizona.

And so, in two, the legislature has power to provide for the punishment of fraud and for reaching property of the debtor concealed from his creditors: Georgia. C. 1, 2, 6; Louisiana. C. 223.

So (4) absconding debtors may be imprisoned: Oregon. Or debtors (5) in cases of libel or slander: Nevada. (6) In civil cases of tort generally: California, Colorado. (7) In cases of malicious mischief: California. (8) Or of breach of trust: Michigan, Arizona. (9) Or of moneys collected by public officers, or in any professional employment: Michigan, Arizona."

_F. J. Stimson, American Statute Law: Digest of Constitutions and Civil Public Statutes of all the States and Territories relating to Persons and Property, in force January 1, 1886, art. 8._

DEBT: End----------

DÉCADI OF THE FRENCH REPUBLICAN CALENDAR.

See FRANCE: A. D. 1793 (OCTOBER). The new republican calendar.

DECAMISADOS, The.

See SPAIN: A. D. 1814-1827.

DECATUR, Commodore Stephen. Burning of the "Philadelphia."

See BARBARY STATES: A. D. 1803-1805.

In the War of 1812.

See UNITED STATES OF AMERICA: A. D. 1812-1813; 1814.

DECCAN, The.

See INDIA: THE NAME; and IMMIGRATION AND CONQUESTS OF THE ARYAS.

DECELIAN WAR, The.

See GREECE: B. C. 413.

DECEMVIRS, The.

See ROME: B. C. 451-449.

DECIUS: Roman Emperor. A. D. 249-251.

DECLARATION OF INDEPENDENCE (American).

See UNITED STATES OF AMERICA: A. D. 1776 (JANUARY-JUNE), and (JULY); also, INDEPENDENCE HALL.

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DECLARATION OF PARIS, The.

"At the Congress of Paris in 1856, subsequently to the conclusion of the treaty, which ended the Crimean war [see RUSSIA: A. D. 1854-1856], a declaration of principles was signed on April 16th, by the plenipotentiaries of all the powers represented there, which contained four articles: 'First. Privateering is and remains abolished. Second, The neutral flag covers enemies' goods, with the exception of contraband of war. Third, Neutral goods, except of contraband of war, are not liable to capture under an enemy's flag. Fourth, Blockades, to be binding, must be effective—that is to say, maintained by a force really sufficient to prevent access to the coast of the enemy.' The adherence of other powers was requested to these principles," and all joined in signing it except the United States, Spain, and Mexico. The objection on the part of the United States was stated in a circular letter by Mr. Marcy, then Secretary of State, who "maintained that the right to resort to privateers is as incontestable as any other right appertaining to belligerents; and reasoned that the effect of the declaration would be to increase the maritime preponderance of Great Britain and France, without even benefiting the general cause of civilization; while, if public ships retained the right of capturing private property, the United States, which had at that time a large mercantile marine and a comparatively small navy, would be deprived of all means of retaliation. … The President proposes, therefore [wrote Mr. Marcy] to add to the first proposition contained in the declaration of the Congress of Paris the following words: 'and that the private property of the subjects and citizens of a belligerent on the high seas shall be exempted from seizure by public armed vessels of the other belligerent, except it be contraband.' … Among the minor states of Europe there was complete unanimity and a general readiness to accept our amendment to the rules"; but England opposed, and the offered amendment was subsequently withdrawn. "Events … have shown that … our refusal to accept the Declaration of Paris has brought the world nearer to the principles which we proposed, which became known as the 'Marcy amendment for the abolition of war against private property on the seas.'"

_E. Schuyler, American Diplomacy, chapter 7._

ALSO IN: _F. Wharton, Digest of the International law of the United States, chapter 17, section 342 (volume 3)._

_H. Adams, Historical Essays, chapter 6._

See, also, PRIVATEERS.

DECLARATION OF RIGHTS.

See ENGLAND: A. D. 1689 (JANUARY-FEBRUARY).

DECLARATION OF THE RIGHTS OF MAN, French Revolutionary.

See FRANCE: A. D. 1789 (AUGUST-OCTOBER).

DECLARATORY ACT, The.

See UNITED STATES OF AMERICA: A. D. 1766.

DECRETA, Roman imperial.

See CORPUS JURIS CIVILIS.

DECRETALS, The False.

See PAPACY: A. D. 829-847.

DECUMÆ.

See VECTIGAL.

DECUMATES LAND.

See AGRI DECUMATES, also ALEMANNI; and SUEVI.

DECURIONES.

See CURIA, MUNICIPAL, OF THE LATER ROMAN EMPIRE.

DEDITITIUS. COLONUS. SERVUS.

"The poor Provincial [of the provinces of the Roman empire at the time of the breaking up in the fifth century] who could not fly to the Goths because his whole property was in land, hunted to despair by the tax-gatherer, would transfer that land to some wealthy neighbour, apparently on condition of receiving a small life annuity out of it. He was then called the Dedititius (or Surrenderer) of the new owner, towards whom he stood in a position of a certain degree of dependence. Not yet, however, were his sorrows or those of his family at an end, for the tax-gatherer still regarded him as responsible for his land. … On his death his sons, who had utterly lost their paternal inheritance, and still found themselves confronted with the claim for taxes, were obviously without resource. The next stage of the process accordingly was that they abdicated the position of free citizens and implored the great man to accept them as Coloni, a class of labourers, half-free, half-enslaved, who may perhaps with sufficient accuracy be compared to the serfs 'adscripti glebæ' of the middle ages. … Before long they became mere slaves (Servi) without a shadow of right or claim against their new lords."

_T. Hodgkin, Italy and her Invaders, book 1, chapter 10._

With the "increase of great estates and simultaneous increase in the number of slaves (so many Goths were made slaves by Claudius [A. D. 268-270], to give one instance, that there was not a district without them), the small proprietors could no longer maintain the fruitless struggle, and, as a class, wholly disappeared. Some, no doubt, became soldiers; others crowded into the already overflowing towns; while others voluntarily resigned their freedom, attached themselves to the land of some rich proprietor, and became his villeins, or coloni. But this was not the chief means by which this class was formed and increased. … After a successful war these serfs were given … to landed proprietors without payment; and in this way not only was the class of free peasants diminished or altogether destroyed—a happier result—the slave system was directly attacked. The coloni themselves were not slaves. The codes directly distinguish them from slaves, and in several imperial constitutions they are caned 'ingenui.' They could contract a legal marriage and could hold property. … On the other hand, the coloni were like slaves in that they were liable to personal punishment. … A colonus was indissolubly attached to the land, and could not get quit of the tie, even by enlisting as a soldier. The proprietor could sell him with the estate, but had no power whatever of selling him without it; and if he sold the estate, he was compelled to sell the coloni along with it. … The position of these villeins was a very miserable one. … These coloni in Gaul, combined together, were joined by the free peasants still left [A. D. 287], whose lot was not less wretched than their own, and forming into numerous bands, spread themselves over the country to pillage and destroy. They were called Bagaudæ, from a Celtic word meaning a mob or riotous assembly; and under this name recur often in the course of the next century both in Gaul and Spain."

_W. T. Arnold, The Roman System of Provincial Administration, chapter 4._

DEEMSTERS.

See MANX KINGDOM, THE.

DEFENDERS.

See IRELAND: A. D. 1784.

DEFENESTRATION AT PRAGUE, The.

See BOHEMIA: A. D. 1611-1618.

DEFTERDARS.

See SUBLIME PORTE.

DEICOLÆ, The.

See CULDEES.

DEIRA, The kingdom of.

One of the kingdoms of the Angles, covering what is now called the East Riding of Yorkshire, with some territory beyond it. Sometimes it was united with the kingdom of Bernicia, north of it, to form the greater kingdom of Northumbria.

See ENGLAND: A. D. 547-633.

{654}

DEKARCHIES.

See SPARTA: B. C. 404-403.

DEKELEIA. DEKELEIAN WAR.

See GREECE: B. C. 413.

DELATION. DELATORS.

Under the empire, there was soon bred at Rome an infamous class of men who bore a certain resemblance—with significant contrasts likewise—to the sycophants of Athens. They were known as delators, and their occupation was delation. "The delator was properly one who gave notice to the fiscal officers of moneys that had become due to the treasury of the state, or more strictly to the emperor's fiscus." But the title was extended to informers generally, who dragged their fellow-citizens before the tribunals for alleged violations of law. Augustus made delation a profession by attaching rewards to the information given against transgressors of his marriage laws. Under the successor of Augustus, the sullen and suspicious Tiberius, delation received its greatest encouragement and development. "According to the spirit of Roman criminal procedure, the informer and the pleader were one and the same person. There was no public accuser, … but the spy who discovered the delinquency was himself the man to demand of the senate, the prætor or the judge, an opportunity of proving it by his own eloquence and ingenuity. The odium of prosecution was thus removed from the government to the private delator."

_C. Merivale, History of the Romans, chapter 44._

See, also, ROME: A. D. 14-37.

DELAWARE BAY: A. D. 1609. Discovered by Henry Hudson.

See AMERICA: A. D. 1609.

DELAWARE BAY: The error perpetuated in its name.