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I. The Abuse and Outlawing of Sanctuary for Debt in Seventeenth-Century England

Published online by Cambridge University Press:  11 February 2009

James R. Hertzler
James R. Hertzler
Affiliation:
Goshen College, Indiana
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Extract

On 16 April 1697 King William III of England gave his Royal Assent to a Bill just passed by his Whiggish Parliament, thereby making illegal a custom of very long standing in the history of English law and convention. During the Middle Ages the practice of imprisonment for debt had come into being through statutory enactments and through judicial procedure; parallel to it had grown the use of so-called ‘privileged places’, refuges to which delinquent debtors could flee and evade arrest for debt. While imprisonment for debt persisted as a legal process in England until the middle of the nineteenth century, sanctuary for debtors was legally abolished by this Act of 1697. That this Act was passed by a Whig-dominated Parliament is not without significance, for a substantial element in the Whig Party was the mercantile interest, the group most likely to suffer damage by the flight of debtors to these places of refuge.

Type
Articles
Information
The Historical Journal , Volume 14 , Issue 3 , September 1971 , pp. 467 - 477
Copyright
Copyright © Cambridge University Press 1971

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References

1 Imprisonment for debt was first introduced in statutory form in the later thirteenth century in cases of manorial stewards who failed to account for funds due their masters. It was gradually extended to other categories of debtors, partly through additional statutes, partly through competition between the central courts of King's Bench and Common Pleas for business. The rationale for imprisoning delinquent debtors had at least two dimensions. It was intended as a deterrent to careless borrowing. But it was also viewed as a means of recovering outstanding debts, for the imprisoned debtor might be expected to call on friends, relatives, or his own concealed assets to satisfy the debts and obtain his release from prison. On the history of imprisonment for debt, see Holdsworth, William S., History of English Law (14 vols., London, 1903),Google Scholar especially vols. 1, VI and VIII; Plucknett, Theodore F., A Concise History of the Common Law (London, 1956);Google Scholar and Hertzler, James R., ‘The Reform of Imprisonment for Debt during the Interregnum and Later Stuart Periods’, unpublished University of Wisconsin Ph.D. dissertation (Madison, 1967).Google Scholar

2 8 & 9 Will. 3, c. 27, para. xv. The adverb ‘legally’ before ‘abolished’ is deliberate; while sanctuary was done away by law, in actual fact it continued at various locations in the early eighteenth century, partly because enforcement procedures were inadequate.

3 Numbers 35: II-28.

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11 Sanctuaries existed at many places outside London. Information about them is not so readily available as is the case with London. This study deals almost entirely with London, where the use, and the abuse, of sanctuary privileges was most prevalent.

12 Daniel Defoe gives a sample case in the Review which may very well have been taken from his own personal experience as a dealer in pantiles: ‘But I appeal to all the World, as to the Equity of the case, what the difference is between having my House broken up in the Night to be Robb'd, and a Man coming in Good Credit, and with a Proffer of Ready Money in the middle of the Day, and buying 5001. of Goods, and carry them directly from my Warehouse into the Mint, and the next day laugh at me, and bid me defiance? Yet this I have seen done: I think ‘tis the justest thing in the world that the last shou'd be esteem'd the greater Thief, and deserves most to be hang'd.’ Review, III, 21 (16 Feb. 1706), 81.

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32 P.C. 2/67, fo. 134; 2/69, fo. 668; 2/70, fos. 115, 169; 2/71, fo143. The Savoy was used until about 1702 as a hospital, and at times sick or wounded soldiers were housed there. It apparently also served as barracks for a detachment of troops. Wheatley, H. B., London Past and Present (3 vols., London, 1891), III, 218, 219.Google Scholar

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45 The Post Man, no. 309 (20–22 Apr. 1697).

46 The deplorable case of the poor people in the Mint, humbly offer'd to the charitable consideration of the honourable, the Commons of Great Britain in parliament assembled (c. 1700), Library of Lincoln's Inn, Miscellaneous Pamphlets, 103, fo. 390.

47 The Post Man, no. 276 (11–13 Feb. 1696/7).Google Scholar

48 The case of the shelterers in the Mint (c. 1700), Library of Lincoln's Inn, Misc. Pamphlets, 103, fo. 391. Jailers had the right to demand all sorts of payments for services rendered.

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60 Probably one of the most famous, and certainly one of the largest of the debtors’ prisons, was the Fleet. John Macky, an early eighteenth-century observer, makes this institution almost appear attractive: ‘The House it self consists of Four Galleries one above another, with Eight Rooms of a Side in each Gallery, for the Conveniency of such Prisoners as do not, or cannot take the Liberty of the Rules. There is a handsome Chapel adjoining to it, where Prayers are said twice a day, and Sermons on Sundays and Holidays. Underneath the House is a large Garden, well planted, for the Prisoners to walk in. … There is a Travelling-Market every day of all sort of Provisions; so that you have the cries in the Galleries of every thing, as you have in the Streats. And no Place in London is cheaper than the Fleet. …’ This was not a bad hide-out for debtors who might, through collusion, get themselves informally and temporarily committed to the Fleet before a court could commit them legally and more permanently. Macky, John, A Journey Through England (2 vols., London, 1724), 11, 2, 3.Google Scholar

61 Dawk's News-Letter, no. 504 (7 Sept. 1699).Google Scholar

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63 J. B., , An argument shewing that ‘tis impossible for the nation to be rid of the grievances occasion'd by the marshal of the Kings-Bench, and warden of the Fleet, without an utter extirpation of their present offices (London, 1699), p. vi.Google Scholar

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65 Defoe estimated in 1709 that there were as many as 20,000 persons in danger of arrest for debt who were lurking in privileged places such as the environs of prisons, the verges of court, in the houses of nobility and other sanctuaries. Review, V, 145 (1 03 1709), 579.Google Scholar However, there was an exceptionally high rate of commitment of prisoners to the Fleet Prison between 1697 anc’ 17°o; th's might be interpreted as a result of the attack on privileged places. The rate of commitment ran more than three times that of the early 1690s. Public Records Office, Pris. 1a, 1b, 2, 10.

66 9 Geo. I, c. 29; 11 Geo. I, c. 22.

67 SirBesant, Walter, South London (New York, 1898), p. 242.Google Scholar

68 One might refer to ‘pro-creditor’ reforms, such as the prevention of debtor escapes, which were enacted into law under Whig auspices; in contrast, one might note ‘pro-debtor’ reforms such as the periodic release Acts for insolvent prisoners, most of which were passed by Cavalier or Tory Parliaments.