|A mid-Victorian depiction of the debtor’s prison at St Briavel Castle. Source: Henry Nicholls’ book “The Forest of Dean”, 1858. Attribution: Henry Nicholls, Public domain, via Wikimedia Commons.
File URL: https://upload.wikimedia.org/wikipedia/commons/c/c9/St_Briavels_Castle_Debtors_Prison.jpg
Until the year 1861, only those who bought and sold goods to make a living – in other words, traders – could be made bankrupt. Others (non-traders) who could not pay their debts were referred to as ‘insolvent debtors’. Debt was a classless crime. Many people from the more ‘respectable’ sections of society found themselves in debtors’ prisons, through gambling or having spent more than they could afford just to keep up appearances.
From the 14th century, if you couldn’t pay your debts, you could end up in prison. If you owed less than £100 and were not trading, your time behind bars could be indefinite. Time in Jail could be avoided by declaring bankruptcy, but as mentioned above, only if you were a merchant or trader, but the cost (£10) could make your eyes water as it was equivalent to as much as 20% of the average annual income for the typical worker in the mid-1800s.
During the 18th and early 19th centuries, more than half of all prisoners were debtors. The number of convicted criminals increased so sharply that the authorities decided that prisons were the best form of punishment. For example, between 1842 and 1857, ninety prisons were built. In some places, there were separate prisons for debtors, but in most local prisons, the debtors were simply kept separate from other prisoners in their own wings. They had more visitors than convicts and were released if they could find someone to pay their debts, for example, a rich uncle or grandfather or if they could earn enough in prison to settle what was owed.
Generally, conditions in prison depended on your standing in society. The warden of the prison would charge for accommodation – prisons were state-owned and subject to regulation but were operated for private profit. If you could afford it, accommodation allowed access to a bar and shop, and even the pleasure of being allowed out during the day, with the potential to earn money to repay debts owed.
Indefinite incarceration was the mode of punishment. Sometimes, the convicts stayed with their families in prison. Family members were free to come and go according to their wishes. Sometimes, even children were born and raised behind bars.
Until the law changed in 1815, debtors could be worse off after a few years in prison than when they entered. It was a very slippery slope – having no money to pay their debts brought them to prison in the first place but then having to pay for their keep put them further into debt. The small amount they could earn in prison was usually not enough to cover their accommodation.
Of course, the concept of debtors’ prison was flawed from the outset. If you were thrown into prison and had no family, you could not earn to repay your debts, which continued to accumulate. Most debtors were left with little choice but to beg for alms from passers-by. Conditions for debtors who couldn’t raise money were appalling, with whole families crammed into overcrowded, cold, damp cells. Both men and women could find themselves imprisoned after falling into poverty.
Prisons in London where debtors were held included Fleet (closed 1842); Farringdon (closed 1846); King’s Bench (closed 1880); Whitecross Street (closed 1870); and Marshalsea (closed 1842).
Wardens were appointed by something called letters patent. Some who became warden were little short of sadistic, and deaths by starvation, exacerbated by appalling conditions, were fairly common. There are records showing some prisoners who managed to repay the debts for which they were imprisoned but were detained because money was owed for food and lodgings. There could even be fees charged for turning keys or taking irons off. When the infamous Fleet Prison closed, two debtors were found to have been there for 30 years.
Over half the prison population in England’s prisons in the 18th and early 19th centuries were in Jail because of debt, and during the same period, some 10,000 people were imprisoned for debt each year.
Imprisonment for inability to your debts only ended in 1869. The Debtors Act 1869, with some exceptions, ceased the practice of indefinite detention for non-payment of debt. In the same year, the Bankruptcy Act established the first statutory regime for preferential debts in bankruptcy, including local and central taxes and wages of clerks, servants, labourers and workers.
The London Gazette
As a statutory requirement, public notices regarding insolvent debtors and bankrupts, informing creditors about proceedings and applications for release, have appeared in The London Gazette for centuries. Queen Anne’s Act to Relieve Insolvent Debtors in 1712 stated that debtors could discharge a portion of their liabilities. One clause required the publication of insolvency notices in The London Gazette.
Of the high-profile individuals imprisoned for debt, perhaps the most notable was John Dickens – father of the author, Charles Dickens. Owing a local baker £40, John Dickens was incarcerated in Marshalsea in February 1824 when Charles was only 12 years old. It clearly had a profound effect on Charles Dickens, who became a keen advocate for debtors’ prison reform. The whole issue of debt and social injustice is a recurrent theme in his work. Little Dorrit is a story about a debtor imprisoned in Marshalsea over such a long-term that his three children grow up there. Dickens also wrote about Marshalsea in David Copperfield and The Pickwick Papers.
Over half of England’s prisoners in the 18th century were in Jail because they owed money they either could not or would not pay. One such prison was Marshalsea – a notorious prison in Southwark, just south of the River Thames in London. It operated from 1373 to 1842. Although it housed various prisoners, including men accused of crimes at sea and political figures charged with sedition, it became known for its incarceration of the poorest of London’s debtors.
Marshalsea Prison, London, 18th century
Picture Credit: Public Domain. This is the Marshalsea in the 18th century, which would make it the first Marshalsea (14th century – 1811). The second existed from 1811–to 1842. The image was published in England in 1878.
Run privately for profit, as were all English prisons until the 19th century, the Marshalsea looked like a University college but functioned as an extortion racket. Debtors in the 18th century who could afford the prison fees had access to a bar, shop and restaurant and retained the privilege of being allowed out during the day, which gave them a chance to earn money to repay their creditors. Apart from those privileged few, everyone else was crammed into one of nine small rooms with dozens of other prisoners, possibly for years even for the most modest of debts, which increased as prison fees accumulated. The poorest faced starvation and, if they fell out with the jailers, torture with skullcaps and thumbscrews was administered.
Much of the prison was demolished in the 1870s, although parts were used as shops and rooms into the 20th century. A local library now stands on the site. All that is left of the Marshalsea is the long brick wall that marked its southern boundary.
During Europe’s Middle Ages, debtors, both men and women, were locked up together in a single, large cell until their families paid their debt. Debt prisoners often died of diseases contracted from other debt prisoners. Conditions included starvation and abuse from other prisoners or mistreatment by the jailers. If the father of a family was imprisoned for debt, the family business often suffered while the mother and children fell into poverty. Unable to pay the debt, the father often remained in debtors’ prison for many years. Some debt prisoners were released to become serfs or indentured servants (debt bondage) until they paid off their debt in labour.
Medieval Islamic Middle East
Imprisonment for debt was also practised in Islam. Debtors who refused to pay their debts could be detained for several months in order to exert pressure on them. If they proved insolvent, they were released before being placed under legal guardianship.
France allows for contrainte par corps, now denominated contrainte judiciaire, for money owed to the State by solvent debtors aged from 18 to 65; its length is limited following the amount of the debt and aims to pressure the debtor to pay his debts – consequently, the money owed stays owed to the State.
In the late Middle Ages and at the beginning of the modern era, public law was codified in Germany. This standardised the coercive arrest (Pressionshaft) and got rid of the many arbitrary sanctions that were not universal. In some areas (like Nürnberg), the debtor could sell (assign) or redistribute their debt.
In most cities, the towers and city fortifications functioned as jails. For certain sanctions, there were designated prisons, hence some towers being called debtors’ prisons (Schuldturm). The term Schuldturm, outside of the Saxon constitution, became the catchword for public law debtors’ prison.
In the early modern era, the debtor’s detainment or citizen’s arrest remained valid in Germany. Sometimes it was used as a tool to compel payment; at other times, it was used to secure the arrest of an individual and ensure a trial against them to garnish wages, replevin or a form of trover. This practice was particularly disgraceful to a person’s identity but had different rules than criminal trials. It was more similar to the modern enforcement of sentences (Strafvollzug), e.g. the debtor would be able to work off their debt for a certain number of days graduated by how much they owed.
In Dutch law, gijzeling (meaning: take in as hostage) can be ordered by a judge when people refuse to appear as a witness or don’t pay off their fines or debts. The imprisonment does not cancel the due amount and interest.
Many of the colonists “shipped” to the British colonies in the Americas were sent because they had failed to pay off debts in England and became “indentured servants” working to pay off their debts over many years in the new colonies. The history of the United States is intertwined with debt and immigrants. Debtor prisons weren’t formally abolished until the mid-19th century.
In part, the colonization of the Americas began with prisoners who were shipped over the Atlantic to ease the burden on Britain’s hopelessly overburdened penal system. US landowners that needed labourers to work their property were happy to assume these indentured servitude contracts as they received nearly free labour in exchange for food and meagre shelter.
From the late 1600s to the early 1800s, debtor’s prisons were purpose-built to jail borrowers who had not paid their dues. These dungeons were made to be as uncomfortable as possible to get reticent borrows to find the means to pay up or to sell their skills for better crumbs. Some ‘famous’ debtors prisons include the Walnut Street Prison in Philadelphia and the New Gaol in downtown Manhattan.
The US Supreme Court banned debtors prisons in 1833.
Fair or Foul?
The 1869 Debtors Act brought an end to debtors’ prisons in the UK. Elsewhere in the world, though, the system persists in various forms. Fortunately, the treatment of debtors has evolved to be more equitable, though time in the clink is still imposed in certain circumstances, for example, where a debtor has willfully defrauded creditors of significant amounts.
Sources, Extracts and Further Reading
In the history of Europe, the Middle Ages or medieval period lasted approximately from the 5th to the late 15th centuries, similarly to the post-classical period of global history. It began with the fall of the Western Roman Empire and transitioned into the Renaissance and the Age of Discovery. Source: https://en.wikipedia.org/wiki/Middle_Ages ↑