The Makarov case, concerning a statute providing for the incarceration of an employer for failing to pay wages, contains a good synopsis of the debtor imprisonment history.
In Virginia the system of imprisonment for debt was abolished in 1849, when the predecessor to Code § 8-400, which [Page 384] prohibits issuance of a writ of capias ad satisfaciendum, 2 was enacted. Code 1849, ch. 188, § 2 at 716; Report of Revisors of Virginia Code, 1849, at 838-43; Kidd v. Virginia Deposit Co., 113 Va. 612, 615, 75 S.E. 145, 146 (1912). A majority of the states, by specific constitutional provision, now prohibit enforcement of commercial obligations by imprisonment for debt; criminal penalties are not permitted against "the honest but insolvent debtor." Note, Imprisonment for Debt: In the Military Tradition, 80 Yale L. J. 1679, 1679 (1971). The United States Constitution contains no express provision against imprisonment for debt, but the federal district courts follow the laws of the various states in which they sit wherein imprisonment for debt has been abolished. 28 U.S.C. § 2007 (1964).
[1] Likewise, there is no explicit proscription in Virginia's Constitution against imprisonment for debt. 3 But it is nevertheless established in this State that a person may not be imprisoned, absent fraud, for mere failure to pay a debt arising from contract or for mere failure to pay a judgment for a debt founded on contract. See Code § 8-400; Overstreet v. Commonwealth, 193 Va. 104, 111, 67 S.E.2d 875, 879 (1951); West v. West, 126 Va. 696, 699, 101 S.E. 876, 877 (1920); Rinehart & Dennis Company, Inc. v. McArthur, 123 Va. 556, 563, 96 S.E. 829, 831 (1918). See also Code §§ 8-569, 8-576. Contra, Smith, The Constitutionality of Bimonthly Pay Day Laws, 16 Tenn. L. Rev. 940, 948 (1939-1941). There is no doubt that imprisonment of poor debtors offends fundamental principles of justice in today's ordered society. Indeed, as early as 1849 imprisonment for debt in Virginia was regarded "as inconsistent with the liberal and enlightened spirit of the age." Report of Revisors, supra, at 843.
2 A "capias ad satisfaciendum" is defined as a writ of execution commanding 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." Black's Law Dictionary 262 (Rev. 4th ed. 1968).
3 Accordingly, the cases here relied on from other jurisdictions decided under specific constitutional prohibitions for incarceration for debt are of slight value.
Makarov v. Commonwealth, 217 Va. 381, 383-384, 228 S.E.2d 573, ___ (1976)


Richard E. Dixon
Attorney at Law
Fairfax, VA 22030
703-691-0770
fax 703-691-0978

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