Bill for Lessening the Evils of Securityship
[Before June 1779?]
Whereas the laws permitting one person to become bound for another have been found in experience to be of more harm than help to the citizens of this commonwealth, by encouraging merchants and others to extend credits beyond the abilities of their debtors to pay, by giving fatal facilities to thoughtless and unprincipled spendthrifts to continue their extravagant courses till they have not only exhausted beyond recovery their own means of paiment and future subsistence, but expended the fortunes of their friends and relations also, and by overwhelming in the end good men and their families, victims of their own benevolence and of the avarice and dissipation of others: for lessening these evils therefore <by rendering the act of securityship a more solemn warning to the parties>
The General assembly does enact as follows.1
No person shall hereafter be able, within the limits or jurisdiction of this commonwealth, to make his person or property liable for the debt duty, default or undertaking of another; except [for lands by a mortgage and?] the personal chattels whereof he is in possession, nor these otherwise than by a delivery of them in pledge to the creditor.2
Where the laws require security or bail from executors, administrators, guardians, defendants in any plea, recognisors, public officers, or any others whatsoever, a sufficient mortgage of lands or in the case of defendants and recognisors a sufficient delivery of sufficient moveable goods in pledge, to the sheriff or coroner as the case may be, and their successors, for the commonwealth or the creditor shall hereafter be required.
The Judgment respondendum which shall be taken out of the Chancery for foreclosing the right of redeeming the property mortgaged or pledged under this act, shall give notice that, on some day to be named in the subpoena at the will of the plaintiff, not less than month after service of the same and a copy of the bill left with the defendant, the court will be moved for a decree of foreclosure and sale; on which day, or as soon after as may be, the court shall, with or without the appearance, answer or other pleading of the defendant, hear and decide the cause on the bill and other pleadings and exhibits, the depositions and vivâ voce testimony, according to substantial justice, but without delay or indulgence; and if they find cause of foreclosure, shall decree a sale of the lands mortgaged or of the moveable goods pawned within months after the date of the decree.
In like manner a bill for redemption of the lands mortgaged, or action for the detainer of the pawn shall be heard and decided on a day to be named in the subpoena or writ, with equal circumstances of justice and dispatch.
All acts done in evasion of this law shall be void, and not merely voidable.
PrC (DLC); in TJ’s hand. The title is worded as in caption and is in TJ’s hand at top of page. There is no indication of date, and it is uncertain when TJ drew this Bill. Several possibilities suggest themselves: (1) it may have been drawn during the normal course of his legislative activity in order to remedy an obvious evil; (2) it may have been prepared during the course of TJ’s work for the Committee of Revisors and not incorporated, for one reason or another, in their Report; (3) it may have been drawn by TJ sometime after his legislative career had closed and perhaps given to James Madison, for example, to introduce; or (4) it may have been drawn by TJ late in life after his own disastrous experience in becoming security for the debts of another person. Since this is a letterpress copy, it is very unlikely that the Bill was drawn so early as 1779; yet, with several possibilities suggesting themselves, the editors have placed the document at the close of TJ’s Virginia legislative career since that seems the earliest possible date at which it could have been drawn.
At the Oct. 1786 session an Act was adopted whose preamble bore a remarkable similarity to the preamble of TJ’s Bill: “Whereas many persons have been reduced from affluence to poverty, by securityships, and it frequently happens that the security or securitys upon bonds or other obligations, their heirs, executors, or administrators, have been compelled to pay the whole, or the greater part of the debt due upon such bonds or obligations, and in many cases have not been able, by the insolvency of the principal or principals, or a tardy administration of justice, to recover from them or their representatives, the whole or any part of the amount of such debts, whereby the said securities have been involved in great inconveniences, and often times in manifest ruin‥‥” This Act enabled securities so involved to obtain judgment by motion against principals or their heirs, &c. (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 268–70). This, however, was very far from prohibiting securityship except under certain conditions, as was done in this Bill.
1. This form of enacting clause seems never to have been employed by TJ during his legislative career from 1776 to 1779. His usual form following a preamble was: “Be it therefore enacted by the General Assembly.”
2. The letterpress copy is mutilated at the critical part of this paragraph, i.e., in the exception to the general prohibition. The words “lands by a mortgage” are clearly discernible, but it is not certain whether these words were struck out, since the words “the personal chattels whereof he is in possession, nor these otherwise than” are interlined. From the context of the Bill, however, it seems clear that the exception amounted to this: property in lands could not be offered in securityships except by mortgage, and property in personal chattels except by pledge. In the margin TJ wrote the following: “[…] securityships in common transactions between individuals, endorsements of bills of exchange, &c. for executors, administrators, guardians public officers for defendants, in bail common or special, for prison bounds, or replevin by recognisance for the peace, behavior &c.” It is not certain just where this marginal matter was supposed to be inserted in the Bill. The letterpress copy is so poor that no caret, if one ever existed, can be discerned.