Being Glib About Debtor Treatment – some historical and sadly current practices that suggest caution

21 MAR 2009

As news reaches us that a loan shark has been jailed for raping a debtor, a piece of pat commentary in last Thursday’s Times is thrown sharply into focus. I have addressed the issue of loan sharks before and I have addressed the issue of debtors’ prisons before, but some recent comments made by Mr Edward Fennell cannot go unaddressed without some historical analysis. In the context of Howell Jones’s announcement that the firm is going to offer a no win, no fee arrangement for businesses chasing bad debt, Mr Fennell observed:

“Personally, I would favour a return to the old debtors prisons. To judge from the recent Little Dorrit on TV they looked cosy, civilised institutions where romance lay just around the corner.”

Whilst this comment could be taken as a side-swipe at the BBC’s standards of historical accuracy in representing debtors prisons in the recent Little Dorrit adaptation, the advocacy of a return to this method of debtor treatment in the wider sense (and Mr Fennell is not alone in calls for a return to 18th century debtor treatment) is perhaps a little frivolous (even if done in jest) when one considers what that would actually mean and what it did mean for so many thousands of unfortunate debtors who could not seek redress to the bankruptcy laws, not being traders. A few examples will now be given to illustrate why the BBC’s illustration of conditions in the Marshalsea was wrong and why perhaps Mr Fennell should exercise caution when dealing with such issues. I will highlight two key texts that shine a light on this area and also give some brief examples from debtors' prisons that both rebut Mr Fennell’s contention and show why the BBC’s portrayal of the Marshalsea was inconsistent with both the Dickens’ text and historical reality.

Debtors’ prisons existed to compel payment of the sum owed, not as a punishment device. But a mere glance at the historical sources shows that punishment and torture occurred in a great number of cases. Trevelyan opined that seventeenth century prisons were, “the house of misery and misfortune, not of crime.” A plight which one commentator has judged unfortunate, because, “the lot of the criminal in jail was…superior to that of the unfortunate debtor.” Imprisoning for debt was widespread. Metropolitan institutions such as the King’s Bench and Queen’s Bench prisons, Ludgate debtors’ prison, the Marshalsea (of Little Dorrit fame), Newgate prison, the Fleet prison, and the Clink, all have their predecessors in county towns across the country where provincial debtors were often imprisoned in the town gatehouse or in some instances specially constructed debtors prisons. There were also ‘Sponging Houses’, a form of halfway house between debtors’ prison and freedom, where Bailiffs would detain debtors at great expense so as to extract what little money they had left.
One seventeenth century commentator highlighted barbarous practices such as the ravishing of debtors’ wives and daughters (raping in modern parlance), torture, starvation, disease and theft. Pestilence was said to be a serious risk in debtors’ prisons during the mid-sixteenth century.

Conditions it seems did not improve in the eighteenth century with prison keepers being examined by Parliament for gross misdeeds being conducted under their control. Eventually the counter-productive nature of imprisonment for debt was recognised by the legislature (the practice was abolished in 1869). The principal objections levelled at the process can best be seen in a pamphlet published in 1641 where it was observed that imprisonment for debt was:

“1. against the law of God, 2. Against the Law of Man: and the most ancient fundamental Common Laws of this Kingdome. 3. Against the Law of Conscience and Christian Charity. 4. Against the practice of other Countries. 5. against the Creditors owne profit. 6. To the prejudice of the King and Commonwealth.”

Let us briefly examine some of the debtors’ prisons to see why Mr Fennell’s comment is perhaps a tad flippant. Conditions in the Fleet were according to one contemporary chronicler appalling. Debtor prisoners were kept in the prison itself and not in auxiliary buildings. Pitt (discussed below) recounts how his chamber fellows were, “so lousie, that the Vermin Crawled on the outside of their Cloths” and despite public munificence and a survey of the Fleet prisoners conditions did not improve right up until the prisons abolition by the Queen’s Prison Act 1842.

John Dickens (the father of Charles) was imprisoned for debt in the Marshalsea in the early 19th century and it is perhaps because of this that we are most famously aware of the institution. The Court of the Marshalsea’s prison was used as a debtors prison for debtors arrested within twelve miles of the Palace of Westminster, except in the City of London itself. The Marshalsea was situated in the Borough of Southwark. Writing in 1808 Neild opined that in the Marshalsea the, “habitations of the debtors are wretched in the extreme.” It is most probable that such conditions were extant for debtors in the Marshalsea since the sixteenth and seventeenth centuries and were perhaps the catalyst for numerous escape attempts. As with the Fleet, the Marshalsea gaol was abolished and finally closed pursuant to Queen’s Act 1842.

The picture painted by Pitt in his 1691 tract on the state of debtors’ prisons, The Crye of the Oppressed, is primarily an account of conditions in regional debtors’ prisons. Addressed to the Lords and Commons of Parliament, the text was written towards the end of the seventeenth century by a debtor imprisoned in the Fleet, Moses Pitt. The tract was a response to the “most gracious” Act For Relief of Poor Prisoners for Debt or Damages, which received Royal assent in 1690, in the second year of the reign of William III and Anne. In his 164 page tract, “as full as tragedies as pages”, Pitt provides an exposition of the state of debtors’ prisons during the reign of William III. Motivated by a Christian desire to better the country, the text contains a powerful denunciation of the lamentable condition of debtors’ prison throughout England and is remarkable for its objective analysis considering its author’s position as an imprisoned insolvent debtor, that most “miserable and oppressed subject.” The text itself provides a fascinating insight into debtors’ prison throughout the country and is enlivened with twelve copper plates depicting scenes within some of the prisons discussed. Pitt carefully describes how the imprisoned debtors “groan under…starving conditions…and…great oppressions” in their impecunious confinement. The tract is constituted from testimony of imprisoned debtors in the gaols featured. Pitt discovered some sixty-five debtors’ prisons in England and Wales during his attempts to raise money to finance a new Bill to relieve the plight of insolvent debtors.

Writing in April 1808 James Neild, as part of his work for the Society for the Discharge and Relief of Persons Imprisoned for Small Debts throughout England and Wales, gives a vivid depiction of Appleby debtors prison in the County of Westmoreland. Neild describes the prison layout, which was used for imprisoning both felons and debtors. The debtors had fireplaces in their ‘three good rooms’ and a day room where divine service was performed. There was only one courtyard in the prison which meant that men and women prisoners could mix ‘promiscuously together in the day-time.’ The debtors had no kitchen and had to prepare their meals on the stone steps leading up to their quarters. No allowance was made for the debtors, but there was a pump in the courtyard. A description of the gaol published one hundred and seventeen years previously describes the gaol as being, “but eight yards long, and four and a half in breadth, without any chimney, or place of ease”. Pitt’s tract includes a copper plate of some prisoners in Appleby ‘starv’d others poysond’ and Pitt’s correspondents allege that one seventy year old prisoner, John Watson, had no sustenance for several weeks save for bread and water.

The debtors’ prison at Bury St. Edmunds, Suffolk, receives particularly close treatment in Pitt’s treatise and Neild also reserves eight pages to its elucidation. Neild’s depiction of the gaol relates however to that of a new structure situated at the end of the South Gate, being nearly a mile from the town’s centre. Debtors in the prison had an allowance in 1805 providing a daily ration of a pound and a half of bread and a weekly ration of one pound of cheese and Neild suggests that their living conditions were relatively comfortable, certainly compared with the seventeenth century exposition given by Pitt of conditions in the gaol around 1691. Indeed, Neild concludes his exposition of the Bury St. Edmund gaol in 1805 by stating, “This Goal (sic) does honour to the County, and is superior to most in this Kingdom.” This is in stark contrast to the picture painted by Pitt in the late seventeenth century. There we find a prison where criminals lodged together with debtors, where the turnkeys ravished (raped) the debtors’ wives and daughters and where thumbs screws and iron pothooks were frequently visited upon the hapless insolvent.

Thomas Morgan was placed in Liverpool debtors’ prison in approximately 1690 for the sum of eleven pounds debt. He was a ‘Chrurgeon’ whose practice had fallen on hard times after he had become lame. Unhappily, his wife came down with the fever and his children with the pox at about the same time as his financial decline. During his year and a quarter confinement Morgan had no bedding or sustenance allowance and was forced to catch mice to stave off starvation. Such privations were not restricted to Morgan, but were also extended to his wife, who upon complaining about Morgan’s confinement with felons and highwaymen was herself imprisoned under close confinement and was restricted from obtaining access to her husband. She and her three month old child also received no allowance and survived solely on the charity of her neighbours. Thomas Row, the gaoler of Liverpool debtors’ prison did not remedy the alleged ill treatment that Morgan had received but instead beat him and put him in irons.

Debtors in seventeenth century Oxford resided in either the Castle gaol or the City gaol. There is evidence of a petition for relief from Oxford prisoners in 1687 which states that the prisoners are, “very poor and… forced to undergo great want and suffer great calamities.” The use of the clog was not restricted to the Fleet (where it cost 100l to remove), it was also used in Oxford Castle gaol.
Rothwell debtors gaol in the county of Yorkshire contained in the year 1688, upwards of twenty prisoners, including one William Hall. The Gaoler at Rothwell, Samuel Brogden, on occasion locked up the debtor prisoners in a ‘close hole’. When so confined the prisoners were only allowed to, “ease themselves…but when the said goaler(sic) pleaseth.” Perhaps more seriously it is alleged that “the goaler(sic) doth Beat and Bruise the poor Prisoners in a most Cruel and Bloody manner.”
There are many, many more examples of the sort of treatment that has been highlighted above. What has been given provides a general flavour of what occured. Are these the kinds of conditions Mr Fennell seeks to resurrect? Fortunately there exists a set of prison bars, a pillory, manacles, a whip and a wooden clog in the Muir Hunter Museum of Bankruptcy. I am prepared to act as gaoler for the day to Mr Fennell to see if he really does think that debtors’ prisons should be reintroduced. He is correct to point out that the BBC got it wrong, but we should perhaps talk more seriously about such issues.

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