Body Attachment and Body Execution: Forgotten But Not Gone

William & Mary Law Review Volume 17 | Issue 3 Article 7 Body Attachment and Body Execution: Forgotten But Not Gone Repository Citation Body Attachment and Body Execution: Forgotten But Not Gone, 17 Wm. & Mary L. Rev. 543 (1976), https://scholarship.law.wm.edu/wmlr/vol17/iss3/7 Copyright c 1976 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr NOTES BODY ATTACHMENT AND BODY EXECUTION: FORGOTTEN BUT NOT GONE INTRODUCTION Although the civil processes of body attachment (capias ad respondendur)l and body execution (capias ad satisfaciendum)2 often are perceived as outmoded remedies that have been abolished, these methods of enforcing debts frequently are available to present day creditors. Despite the existence of several legal impediments to the unfettered utilization of these drastic remedies, methods for circumventing the various state constitutional and statutory prohibitions against imprisonment for debt exist. Procedures implemented to effect body attachment or body execution must be measured against the evolving debtor due process standard. After examining the legal history of body attachment and body execution, this Note will analyze the present status of these ancient creditors' remedies. HISTORY OF BODY ATTACHMENT AND BODY EXECUTION Depriving a debtor of his liberty in an attempt to force payment of a debt is a remedy of ancient origin. Any society dependent upon trade and commerce must provide an aggrieved creditor with the means to enforce payment of an overdue obligation to ensure the availability of credit and the concomitant growth of the economy. Recognizing this necessity, early social systems provided redress to the aggrieved creditor by means viewed today as unduly harsh and cruel. The ancient Romans, for example, allowed a debtor to be sold into slavery for defaulting on his obligations.3 If more than one creditor desired satisfaction from the 1. "A judicial writ . . . by which actions at law were frequently commenced; and which commands the sheriff to take the defendant, and him safely keep, so that he may have his body before the court on a certain day, to answer the plaintiff in the action." Bisca's LAw DICTIONARY 262 (4th ed. 1968). 2. "A writ of execution . . . which 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 damages or debt and damages in certain actions. It deprives the party taken of his liberty until he makes the satisfaction awarded." Id. 3. This practice was sanctioned by the Law of the Twelve Tables (451450 B.C.), the [ 543 1 WILLIAM AND MARY LAW REVIEW [Vol. 17:543 debtor, the obligees were permitted to dissect his body, and split it into proportionate shares. 4 Seizure of the corpse of a defaulting debtor was another remedy available in Roman law.' first known compilation of Roman Law. 1 S. ScoTt, THE CIVIL LAW 63-64 (1932). Intended as a comprehensive and concise codification of the customary law of the people, the Tables formed the foundation for the subsequent development of Roman Law. Id. at 8-11. Table III, "Concerning Property which is Lent," provided in pertinent part: Law IV Where anyone, having acknowledged a debt, has a judgment rendered against him requiring payment, thirty days shall be given to him in which to pay the money and satisfy the judgment. LAW V After the term of thirty days granted by the law to debtors who have had judgment rendered against them has expired, and in the meantime, they have not satisfied the judgment, their creditors shall be permitted to forcibly seize them and bring them again into court. LAw VI When a defendant, after thirty days have elapsed, is brought into court a second time by the plaintiff, and does not satisfy the judgment; or, in the meantime another party, or his surety does not pay it out of his own money, the creditor, or the plaintiff, after the debtor has been delivered up to him, can take the latter with him and bind him or place him in fetters; provided his chains are not of more than fifteen pounds weight; he can, however, place him in others which are lighter, if he desires to do so. Law IX After he has been kept in chains for sixty days, and the sum for which he is liable has been three times publicly proclaimed in the Forum, he shall be condemned to be reduced to slavery by him to whom he was delivered up; or, if the latter prefers, he can be sold beyond the Tiber. Id. at 63. 4. Law X of Table II provided: Where a party is delivered up to several persons, on account of a debt, after he has been exposed in the Forum on three market days, they shall be permitted to divide their debtor into different parts, if they desire to do so; and if anyone of them should, by the division, obtain more or less than he is entitled to, he shall not be responsible. Id. at 64. Although a nonliteral interpretation of Law X has led some jurists to the conclusion that the permitted division applied only to the Roman debtor's property, Scott has concluded, on the basis of allusions to the Law by early Roman writers, that "there can be little doubt that its abhorrent features . . . were susceptible of literal interpretation, and that the partition of the body of the unfortunate debtor was entirely dependent upon the inclination of his creditors." Id. at 64 n. 1. 5. "There are also said to be 'abundant traces in Rome, as in Europe until recent times, of an ancient custom of seizing the corpse of a defaulting debtor as a means of enforcing payment from his heirs."' V. COUNTRYMAN, CASES AND MATERIALs ON 1976] BODY ATTACHMENT Debt slavery existed in medieval England as a vestige of ancient Anglo-Saxon law,6 but the practice ended soon after the Norman victory in 1066 at Hastings, apparently because the Saxons employed the remedy too frequently against their Norman conquerors.7 Two hundred years after the disappearance of debt slavery, Parliament and the courts hesitantly began to grant creditors the power to imprison defaulting debtors." The reluctance of the legislature and judiciary to make available the remedies of body attachment and body execution was a function of the medieval social structure, based on a lord-vassal hierarchy, with each vassal owing allegiance to his overlord and with the king at the pinnacle of the system. Because the imprisonment of a vassal for debt would interfere with the services owed to his lord, the remedy was slow to evolve. 9 Notably, however, it was for the benefit of the nobles that the first debt imprisonment statute was passed in 1267. The Statute of Marlbridge ° provided for the issuance of a writ of arrest to bring an accountant before the court to explain any alleged defalcations during his tenure."- Subsequently, in 1285, the lords convinced Parliament to pass the Statute of Westminster 11,12 which permitted body execution against accountants unable to (...truncated)