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

  • James R. Hertzler (a1)
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.

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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), especially vols. 1, VI and VIII; Plucknett, Theodore F., A Concise History of the Common Law (London, 1956); and Hertzler, James R., ‘The Reform of Imprisonment for Debt during the Interregnum and Later Stuart Periods’, unpublished University of Wisconsin Ph.D. dissertation (Madison, 1967).

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.

4 Cox, John Charles, The Sanctuaries and Sanctuary Seeders of Medieval England (London, 1911), pp. 14.

5 SirSmith, Hubert L., The History of East London (London, 1939), pp. 140, 141.

6 The Mirror of Justices, Publications of the Selden Society, VII (London, 1895), 34.

7 In order to secure the arrest of the delinquent debtor the creditor had to apply to a court for a writ of arrest. The most important of these were the writ capias ad respondendum, which commanded the sheriff to attach the body of the accused and hold it to insure the debtor's appearance in court, and the writ capias ad satisfaciendum, which required the sheriff to keep the debtor in prison until complete satisfaction was made for the debt, for costs, and for damages to the plaintiff.

8 Cox, , op. cit. pp. 107–9.

9 Trevelyan, G. M., England in tie Age of Wycliffe (London, 1909), p. 94, from Rotuli parliamentarii, ii, 369, iii, 37.

10 Bell, Walter George, Fleet Street in Seven Centuries (London, 1912), pp. 277–93.

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.

13 Trevelyan, , op. cit. pp. 8991, 95.

14 Wyclif, John, The English Worlds of Wyclif Hitherto Unprinted, edited by Mathew, F. D. (London, 1902), p. 221. This is not simply a case of Wyclif toadying to the powerful Lancastrian faction that protected him, but is rather in line with his broader attacks on clerical privilege.

15 2 Rich. 2, Stat. 2, c. 3.

16 32 Hen. 8, c. 12; 1 Jac. 1, c. 25, para. 7.

17 Birch, Walter (ed.), The Historical Charters and Constitutional Documents of the City of London (London, 1887), pp. 143, 144.

18 21 Jac. 1, c. 28, para. 7.

19 Corporation of London Record Office, Journals of the Court of Common Council, Journal 40, fos. 3, 4.

20 Certaine petitions presented by the lord maior and commonalty of the Citie of London to the Honorable House of Commons, shewing the great inconvenience of protections, priviledge, and priviledged places (London, 1641), pp. 4, 5.

21 Good summaries of attempted legal reform in the Interregnum can be found in Holdsworth, History of English Law, VI, 412–28;James, Margaret, Social Problems and Policy during the Puritan Revolution, 1640–1660 (London, 1930), pp. 326–38; and Niehaus, C. R., ‘The Issue of Law Reform in the Puritan Revolution’, unpublished Ph.D. dissertation at Harvard University (1957).

22 Christie, W. D. (ed.), Letters Addressed from London to Sir Joseph Williamson, Publications of the Camden Society, New Series, VIII (2 vols., Westminster 1879), 1, 52.

23 The Loyal Impartial Mercury, no. 2 (9–13 June 1682).

24 Public Record Office, Privy Council Register, 2/71, fos. 143, 144. Hereafter, P.C.

25 Borgman, Albert S., Thomas Shadwell, His Life and Comedies (New York, 1928), pp. 212, 213.

26 Ibid. p. 58.

27 One of Dryden's most famous poems, ‘MacFlecknoe’, is a direct, personal satire on the Whiggish dramatist and poet.

28 Shadwell, Thomas, The Dramatic Worlds of Thomas Shadwell, esq. (4 vols., London, 1720), IV, 214, 236.

29 Shadwell, , op. cit. IV, 280.

30 Borgman, , op. cit. p. 216, quoted from Spence, Joseph, Anecdotes, Observations, and Characters of Booths and Men (London, 1820), p. 43.

31 Corporation of London Record Office, Repertories of the Court of Aldermen, Repertory 91, fos. 26, 27. Hereafter, Repertories.

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.

33 Historical Manuscripts Commission, Thirteenth Report, Appendix, pt. v, The Manuscripts of the House of Lords (London, 1892), p. 21.

34 Repertories, 101, fo. 40.

35 Kerr, R. J. andDuncan, J. C., The Portledge Papers (London, 1928), pp. 113, 114;Luttrell, Narcissus, A Brief Historical Relation of State Affairs (6 vols., Oxford, 1857), II, 259, 260.

36 Historical Manuscripts Commission, The Manuscripts of the House of Lords, new series (London, 1903), II, p.

37 The Post Man, no. 180 (2–4 July 1696).

38 Journals of the House of Commons, XI, 646.

39 8 & 9 Will. 3, c. 27, para. xv.

40 The Post Boy, no. 309 (27–29 Apr. 1697).

41 Review, IV, 25 (8 Apr. 1707), 100.

42 The Tatler, no. 66 (10 Sept. 1709).

43 Ward, Edward, The London Spy (London, 1927), p. 125.

44 Journals of the House of Commons, XXI, 257; see also undated petition, The case of the several landlords of White-Friers, the Savoy, Salisbury Court, Ram-Alley, Mitre Court, Fuller's Rents, Baldwin's Gardens, Mountague Close, the Minories, Mint, Clinks, and Deadman's Place, in the name of themselves, and the rest of the houses within those places, B.M., T. 100 (50).

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).

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.

49 Dawk's News Letter, no. 353 (20 Sept. 1698).

50 The London Post (27–29 Mar. 1700).

51 The Flying Post (28–30 Mar. 1700).

52 The English Post (14–16 Oct. 1700).

53 The Tatler, no. 66 (10 Sept. 1709).

54 The Post Man, no. 331 (12–15 June 1697).

55 Journals of the House of Commons, XV, 147.

56 Miege, Guy, The Present State of Great Britain (London, 1707), p. 198.

57 Baston, Thomas, Thoughts on Trade (London, 1716), pp. 111, 112.

58 13 Car. 2, Stat. 2, c. 2.

59 Journals of the House of Commons, XI, 643.

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.

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

62 The Post Boy, no. 1032 (25–27 Dec. 1701).

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.

64 Journals of the House of Commons, XIV, 284, 351.

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. 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.

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.

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