England Distinctive for Early-Modern Debt Imprisonment

face of a prisoner

The early-modern English practice of imprisoning defaulting debtors at the will of the creditor was distinctive in comparative law. A lengthy English petition to the King and Parliament, published in 1622, declared that under the civil law of ancient Rome:

Qui vult cedere bonis, Liberatus est a Debito {Relinguish your estate, and be free from debt}

The petition further observed:

In Germany, France, Italy, Spain, and the Low Countries; No man is detained in prison for Debt, above a year and a day, as all they who have observed the Laws and Customs of those Countries can certify. In which time the Creditors have power to take, seize, and sell all the estate of the Debtor, which being done, the Wives Dower is first taken out for the relief of her and her children, the rest is divided among Creditors as far as it will go, and so the Debtor is freed from those Debts for ever, and in a year and a day his body is set at liberty to begin the world anew.^

The petition stated that imprisonment for debt was also strictly limited in Islamic lands. Those jurisdictions had:

no practice of Imprisonment of mens bodies above three months for Debt, unless the Creditor will maintain the Debtor, his Wife, Children, and Family, which is never known.^

By this description, Islamic debt law, compared to European debt law, showed more inclusive concern for welfare. Islamic law provided for maintenance of the husband (under English law, the person legally responsible for familial debt) as well as family other than wife and children. About a century later, another English writer provided a more detailed, country-by-country account showing the distinctiveness of English imprisonment for debt.^ This legal distinctiveness was a practical public concern because a large number of persons were imprisoned for debt in England.

Leave a comment (will be included in public domain license)

Your email address will not be published. Required fields are marked *