THE CAMPAIGN TO ABOLISH IMPRISONMENT FOR DEBT IN ENGLAND 1750 - 1840 A thesis submitted in partial f'ulf'ilment of' the requirements f'or the Degree of' Master of' Arts in History in the University of' Canterbury by P.J. LINEHAM University of' Canterbury 1974 i. CONTENTS CHAPI'ER LIST OF TABLES AND FIGURES • . ii PREFACE . • iii ABSTRACT . • vii ABBREVIATIONS. • •• viii I. THE CREDITOR'S LAW • • • • . • • • • 1 II. THE DEBTOR'S LOT • • . • • . 42 III. THE LAW ON TRIAL • • • • . • . • • .. 84 IV. THE JURY FALTERS • • • • • • . • • . 133 v. REACHING A VERDICT • • . • . • 176 EPILOGUE: THE CREDITOR'S LOT . 224 APPENDIX I. COMMITTALS FOR DEBT IN 1801 IN COUNTY TOTALS ••••• • • • • • 236 II. SOCIAL CLASSIFICATION OF DEBTORS RELEASED BY THE COURT, 1821-2 • • • 238 III. COMMITTALS FOR DEBT AND THE BUSINESS CLIMATE, 1798-1818 . 240 BIBLIOGRAPHY • • • • • • • • • • • • • • • • • • • 242 ii. LIST OF TABLES TABLE I. Social Classirication of Debtors released by the Insolvent Debtors Court ••••••••• • • • 50 II. Prisoners for Debt in 1792. • • • • • 57 III. Committals to Ninety-Nine Prisons 1798-1818 •••••••••••• • • 60 IV. Social Classification of Thatched House Society Subscribers • • • • • • 94 v. Debtors discharged annually by the Thatched House Society, 1772-1808 ••••••••••• • • • 98 VI. Insolvent Debtors who petitioned the Court • • • • • • • • • • • • • • 185 LIST OF FIGURES FIGURE ~ I. Committals for Debt in 1801. • • • • • 47 II. Debtors and the Economic Climate •••••••• • • • • • • • 63 iii. PREFACE Debtors are the forgotten by-product of every commercial society, and the way in which they are treated is often an index to the importance which a society attaches to its commerce. This thesis examines the English attitude to civil debtors during an age when commerce increased enormously. The chronological limits of the study are rather arbitrary, but they roughly circumscribe a period which began with the unquestioned rule of the "old law" over debtors, and ended when the first abolition act had been passed. Within this period I have sought to trace the movement of opinion, the forces by which it was fed, and the legislation in which it was reflected. Such a study has a number of inevitable limitations. In particular, over such a long period no single attitude can receive exhaustive study, and broad generalisations must be made which can be based on a study of only a fraction of contemporary comments on the law. Unfortunately the other alternative of a close study of a shorter period would have presented even more problems for a New Zealand student with limited primary resources. Moreover so little has been published on the conditions of the lower levels of commercial society, that a smaller topic would have lacked any wider perspective within which it might have been evaluated. There are only perfunctory references to bankruptcy and insolvency within available secondary materials on the period, and almost the only iv. commerce described is foreign trade, and industrial manufacturing. This study has in some ways served only to supply a possible general perspective on the treatment of debtors. Research would need to be extended to a far larger literature in order to confirm some arguments. Nevertheless I cannot complain of a lack of primary resources. Over such a long period there was a very substantial amount of material in the Parliamentary Papers and Debates, and the journals and magazines of the period. Through the generosity of the University of Canterbury History Department this was supplemented by a selection of pamphlets on microfilm • .Any study on such uncharted seas is never far from even vaster oceans both alluring and daunting. There are many links whic~might be made with other movements of opinion in the period. Thus although the immediately relevant secondary literature available to me was small, there were many studies within the period which had some bearing on the subject, if only by way of analysis of' parallel movements. I cannot pretend to have mapped or even to have noticed every one of these straits. It is therefore necessary to mention the debts I owe to those who guided me. Fortunately, unlike the insolvent debtors of eighteenth century England, I am not in danger of being imprisoned until I repay these debts, for in that case I too might face a lifetime of confinement. But, like those debtors who sought v. release under the Insolvent Debtors Act, I of'f'er instead a schedule of' my debts and creditors, conscious, as they were, that I risk perjury f'or f'ailing to mention some of those who helped me. My primary debt is to my supervisor, Dr. John Cookson, who suggested the topic, carefully pondered the varied questions I brought to him, and encouraged me to explore some of the links with the wider themes of the period. I am grateful to a number of friends and members of the Law Department who guided me through the jargon of the Common Law. I am also indebted to librarians in the Supreme Court in Christchurch, the Otago University Library, the Victoria University Library and the Alexander Turnbull Library. Particular thanks are due to the librarians in the University of Canterbury, who dragged the massive volumes of the Journals of' the House of' Commons from the basement, and searched f'or even less accessible if smaller works elsewhere. Mr Robert Erwin and Miss Barbara Lyon from the Reference Section were very kind, as was Miss Heather Cox who handled many elusive interloan requests. My thanks also to the Head Librarian for supplying for my use an electronic calculator. Others have assisted in various ways. My friend, Mr. John George of the Economics Department, University of Canterbury, guided the statistical analyses recorded in Appendix Three. My typist, Miss Colleen Taylor, has done an excellent job. Finally my brothers, parents, and f'riends have added vi. figures, proof-read chapters and endured my conversation on the subject over the last year. To all of these persons I am most grateful. The errors must remain mine alone. vii. ABSTRACT In the Common Law of England, a writ of capias could be used to arrest a debtor and hold him on bail or in prison until he was brought to trial, and there­ after until he paid the debt. This thesis studies the development of attitudes to this law in the period 1750 to 1840. At the commencement of this period the law was universally accepted, even if attempts were made to mitigate its harsh effects. By the end of the period, imprisonment before trial had been abolished, and imprisonment after trial had been restricted. This thesis explores attitudes to the old law and investigates the sources of criticism of it in the new moral attitudes of the period and the better informa- tion on the problem. Agitation by pamphleteers is traced. Nineteenth century criticisms of the practice are related not only to compassion but to new attitudes to the function of law, although the former motive is not discounted. Parliamentary reactions to the law are analysed, and there is special attention to reformers in Parliament, dating from Lord Beauchamp in 1780 to Henry Brougham in the eighteen-thirties. The political significance of reform is considered • .An account is given of the social problems caused by imprisonment for debt. The number who suffered such confinement is investigated, and the commercial background to the question. The "trading morality" of commercial parts of society is seen as the chief opponent of reform. viii. ABBREVIATIONS Account of the James Neild, Account of the Rise, Society Progress and Present State of the Society for the Relief and Discharge of Persons Imprisoned for Small Debts, fifteenth edition, London, 1808. Annual Register Bl. Comm. William Blackstone, Commentaries on the Laws of England, Oxford, 1765. Reprinted, London, 1966. Journals of the House of Commons, 1547-1832. Dictionary of National Biography, ed. Leslie Stephen and s. Lee, London, 1908-9. English Historical Review Robertson and Ellis, ed., English Reports, London, 1908. GEC G.E. cfockayni/, The Complete Peerage, ed. G. White, et. al., second edition, London, 1910-1959. Gentlemen's Magazine Holdsworth w.s. Holdsworth, A History of English Law, fifth edition, London, 1942-. London Magazine Law Quarterly Review n.d. date of publication not given. w. Cobbett and T.C. Hansard ed., Parliamentary Debates, London, 1803-. Persons Confined James Neild, Account of Persons Confined for Debt in the various Prisons of England and Wales, London, 1800. w. Cobbett ed., The Parliamentary History of England from the Earliest Period to the Year 1803, London, 1806-1820. Great Britain, House of Commons, Parliamentary Papers. /_Where two page references are given to a report, they refer to the page in the report and in the volume.:;? ix. J. Almon and J. Debrett, ~ Parliamentary Register, London, 1775-1813. State of' the John Howard, The State of' the Prisons Prisons in England and Wales, f'ourth edition, Warrington, 1792. x. Then his lord, after that he had called him, said unto him, 0 thou wicked servant, I forgave thee all that debt, because thou desiredst me: Shouldest not thou also have had compassion on thy fellowservant, even as I had pity on thee? st. Matthew, xviii. 32-3. The text of Thomas Francklin, A Sermon preached in the Chapel, (1774), in support of the Thatched House Society. See p. 101. 1 • CHAPI'ER I THE CREDITOR'S LAW Imprisoning a man because he could not pay his debts! Seen from the vantage point of the twentieth century, the very concept seems barbaric. Twentieth century observers, it is true, think of most of the Common Law and Criminal Law of England in the past as cruel, but imprisonment for debt seems more harsh than other aspects of the Law. Eighteenth century observers would have also admitted that the law fell with a heavy hand upon its victims.