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.

Imprisonment for debt was extraordinarily high in England in the late seventeenth and early eighteenth centuries. Writers, including knowledgeable public figures, variously claimed the total number of prisoners for debt to be between 5,000 and 100,000. Much of this spread in estimates plausibly resulted from differences in definitions of prisoners. Writing in 1709, Daniel Defoe estimated England to have more than 65,000 “prisoners at large, under the expensive license, and precarious, dear-bought liberty of gaolers and keepers of prisons,” “shelterers, and such as lurk in the rules, verges, and allowed privileges of prisons, palaces, houses of nobility, or under protections and listing of soldiers, etc. and such new fashioned shifts, as place them a little out of reach of the law,” and “close prisoners or sundry sorts for debt, in all the several gaols of this Kingdom.” The last category of “close prisoners” he estimated at “above 5000.”^ As these prisoner categories indicate, institutions of imprisonment varied greatly.

Estimates of the total number of prisoners in seventeenth and eighteenth century England must consider quasi-legal forms of imprisonment. Sheriffs and bailiffs preferred to keep prisoners in lock-ups that they controlled, known evocatively as “sponging houses.” In sponging houses prison-keepers could extract as much money as possible from debtors. Defoe in 1725 counted 119 sponging houses in London, as well as five different types of court officials’ “officers houses.”^ Three sponging houses belonged to the King’s Bench.^ The proprietor of the King’s Bench was paid one shilling per person per night for prisoners lodged in its sponging houses. The Fleet also had three adjoining sponging houses. One of those held 26 prisoners.^ In 1692, ten sponging houses surrounded London’s Wood Street Compter.^

Adjoining the King’s Bench and the Fleet prisons were areas known as the rules. Prisoners could purchase license to live within the rules rather than within the prison building itself. In 1716, a writer estimated the total number of prisoners for debt at 60,000. He observed that the King’s Bench and the Fleet have:

“rule{s} appointed each of them, our courts well knowing, that the bare prison houses could not at some times contain the tenth part of the prisoners, except they would stow them like faggots upon one another.”^

In the late eighteenth and early nineteenth centuries, prisoners in the rules amounted to about 20% of prisoners within the King’s Bench and Fleet prison buildings themselves. The number of prisoners in the rules, and subject to similar licenses, probably were difficult to count. Prisoners of that sort may been much more numerous before the late eighteenth century.

The number of court cases concerning debt was roughly eight times higher in 1670 than in 1800. Measures of court activity indicate that court activity rose sharply from 1550 to 1670. Court activity then declined sharply from 1670 to 1750. It rose slightly from 1750 to 1800. Cases in advanced stages in the courts of Common Pleas and King’s Bench fell from about 40,000 in 1670 to about 10,000 in 1800. In conjunction with these aggregate case trends, the share of actions at common law for debt in the courts of Common Pleas and King’s Bench fell from about 85% in 1640 to about 32% in 1750.^ These trends broadly suggest that the number of debt proceedings was roughly eight time greater in 1670 than in 1800.

A reasonable estimate for prisoners for debt in England in 1670 is 15,000. This estimate includes all debtor-prisoners held in specific buildings, including sponging houses and facilities associated with court officials. It also includes debtor-prisoners who bought a license to geographically limited freedom without clearing their legal status as prisoners. Debtors held within public facilities of imprisonment (not including sponging houses, officers’ houses, etc.) numbered about 2,500 around the year 1800. If the number of debtor-prisoners was eight times greater in 1670, they would total 20,000 in 1670. A well-informed barrister noted in 1650 that some estimated the number of debtor-prisoners at over 20,000, but he preferred the estimate of 12,000.^ In 1622, a knowledgeable pamphlet writer on imprisonment for debt estimated prisoners in London to number 3,000 to 4000, “with the greatest part for debt.”^ Debtors in England other than in London plausibly numbered somewhat more than twice as many as in London. Such an estimate (10, 000 debtor-prisoners in England) was added to a similar pamphlet in 1641.^ Aggregate debt case trends suggest that the total number debtor-prisoners increased from 1622 to 1670.^ A wide variety of evidence attests to concern about the large number of prisoners for debt. Overall, 15,000 debtor-prisoners in 1670 is a reasonable estimate given the available evidence. The number of debtors in prison on average in any year from 1620 to 1720 was probably above 10,000.

The prevalence of imprisonment for debt in England about 1670 was roughly double the prevalence of imprisonment for any reason in 2009 in England and worldwide. The population of England in 1670 was about 5 million. With an estimated 15,000 debtor-prisoners in 1670, England had 300 imprisoned debtors per 100,000 of population. The imprisonment prevalence figure for all types of imprisonment in England and Wales in 2009 was about 150. The prevalence of imprisonment worldwide in 2009 was also about 150 prisoners per 100,000 of population. About three-fifths of countries currently have an imprisonment prevalence below that level.

In England in the seventh and eighteenth centuries, married men with children were highly disproportionately represented among imprisoned debtors. Imprisonment for debt probably was a common aspect of ordinary life for married men with children. Today the same is true for imprisonment generally for black men in the U.S.^

Imprisonment for debt primarily affected men. Throughout eighteenth-century England, about 95% of prisoners for debt were men. About two-thirds of those were married men. Those men had on average about three children each. Many pamphleteers complained bitterly about the imprisonment of men’s bodies for debt. They repeatedly pointed to the hardships imprisonment caused for a debtor and his wife and children. That wasn’t merely a gender stereotype invoked for sympathy. Having a wife and many children increased a man’s financial obligations and increased the cost of attempting to elude creditors. Having a wife and children surely increased men’s risk of imprisonment for debt.

Imprisonment for debt significantly affected the ratio of men to women among prisoners. In England and Wales about 1780, the ratio of men to women among debtors in well-defined public prisons was about fifteen to one. The ratio of men to women among criminal offenders in those prisons was about five to one. The ratio of men to women in prison was three times greater for debtors than for criminal offenders. Imprisoned debtors in1780 accounted for about half the total number of prisoners. Hence overall, about eight men were in prison per woman in prison. The greater bias toward men in debt imprisonment significantly increased the over-all bias toward men among prisoners. The gender roles encoded in family roles and law directly contributed to highly disproportionate imprisonment of men.

Compared to circumstances in 1780, bias toward imprisoning men was much greater in England in the late seventeenth and early eighteenth centuries. Imprisonment for debt in early modern England was extraordinarily high — higher than total imprisonment prevalence in 60% of countries across the world in 2008. The much higher anti-men bias in debt imprisonment relative to criminal imprisonment meant that the over-all anti-men bias in imprisonment was much higher. In early-modern England, the imprisonment sex ratio was probably about fifteen men in prison for every woman in prison.

The extraordinary regime of debt imprisonment in early modern England no longer exists, but bias toward imprisoning men has increased. English law no longer imposes sex-discriminatory debt disabilities on men. Criminal law in action, however, has shifted against men. In England and Wales today, the ratio of men to women in prison is higher than it was in early modern England. Current policy initiatives focus on reducing the number of women in prison. Their success will push the ratio of men to women in prison even higher.