In early-modern England, imprisonment for debt was a major public issue. With scant procedural protections, a person could be arrested on a creditor’s claim for unpaid debt. If the person actually owed the debt, he could be held in prison for as long as the debt went unpaid, whether or not the debtor actually had the money to pay.^ Networks of propagating arrears could place many persons in prison through no fault of their own. Imprisoned debtors had little opportunity to earn money. As prisoners, they were also poorly positioned to prosecute financial claims that they held against others. The plight of debtors resonated in English literature from the sixteenth century through the nineteenth century — from the pound of flesh in Shakespeare’s Merchant of Venice to Little Dorrit’s imprisonment in London’s Marshalsea’s debtor prison. Imprisonment for debt was a serious threat to liberty, particularly for men. Imprisonment for debt was a state action that occurred with little due process under law.
Creditors’ motives for imprisoning debtors varied. Creditors were concerned about debtors refusing to pay. Creditors lacked effective laws to allow them to seize a debtors’ assets in the event of non-payment.^ Threat of imprisonment was the primary legal tool that creditors used to coerce payment. While imprisoning a debtor could hurt the debtor’s ability to pay sometime in the future, creditors were acutely concerned about debtors hiding assets. Threat of imprisonment could prompt a debtor to reveal or find previously unavailable resources for payment. Threat of imprisonment could also prompt the debtor’s family and friends to give him money that he could give to the creditor. Imprisonment for debt could thus function as legal extortion applied to the debtor’s family and friends. A creditor’s desire to make an impecunious debtor suffer even more than being impoverished could also motivate the creditor to have the debtor imprisoned.
Unlimited imprisonment of impecunious debtors at the will of private creditors exploits for private preferences public institutions of imprisonment. A public determination of justice typically orders punishment in public institutions of punishment. Imprisonment at the will of a private party and for as long as a private party wants is far from any public understanding of justice. Parliamentary laws that required creditors to pay subsistence allowances to their debtor-prisoners held in public prisons point to recognized tension between public and private functions.
Debtor imprisonment has existed throughout history and around the world. England, however, was highly distinctive among early modern jurisdictions not only in imprisoning impecunious debtors at the will of the creditor, but also in having such imprisonment be a common aspect of ordinary life. Debtor imprisonment in England shows the extent that narrow interests can pervert public, democratic institutions of punishment.