What does it mean to be a prisoner? Most of us today would cite confinement within bars or walls as a defining characteristic. But this was not necessarily the case in the early modern period, when some prisoners enjoyed freedom of movement. Debtors in London’s Fleet and King’s Bench prisons, for example, might lodge in the “rules,” the streets adjacent to the prison. Prisoners for a price could obtain “day writs” to wander even farther afield to meet with lawyers or even return to their estates. The restriction of movement was not, then, always fundamental to being a prisoner. When did it become so?
Perhaps the late 1690s is the moment of transition. In 1697 parliament passed “An Act for the more effectual relief of Creditors in cases of escapes and for preventing abuses in prisons and other privileged places.” The petitions, testimony and pamphlet literature surrounding this bill, and around several other bills aimed at similar ends, give us an intriguing snapshot of a society wrestling with the very definition of “imprisonment.”
It was sympathy for the creditor rather than for the imprisoned debtors that inspired this legislation. Parliament heard from a stream of creditors who had put the people who owed them money into prison, only to find that these debtors could bribe the keeper and then live where they pleased. Elizabeth Leave, for example, told how John Pollexfen was indebted to her for a bond for £200, this being the entire fortune left to her by her father, on which she was entirely dependent. Pollexfen refused to pay, and Elizabeth obtained a writ of execution against him. He was incarcerated in the Fleet Prison,
from whence by continual bribes he obtained his liberty of John Tilly the Warden (the said Mr. Pollexfen having often upbraided your petitioner by saying that none but fools and beggars continued close prisoner and that for 20 guineas he could obtain his liberty at any time, there not being an honest man belonging to the Fleet…) by reason whereof your petitioner is deprived of her said debt, which otherwise she might have received, the said Mr. Pollexfen being well able to pay the same. That your petitioner hath often applied herself to Mr. Tilly to confine the said Mr. Pollexfen but without any effect. So that by those unjust proceedings your petitioner and an aged mother are reduced to a starving condition.
Accordingly, the act passed in May 1697 provided that prisoners “who are or shall be co[m]mitted to the Custody of the Marshall of the Kings Bench Prison or Warden of the Fleet shall be actually detained [within the said Prisons of the Kings Bench and Fleet or the respective Rules of the same] until they shall be from thence discharged by due course of Law.” Prisoners who left the prison before that time were to be considered to have escaped. Creditors of escaped prisoners could obtain satisfaction by sequestering the fees and profits of the marshall or warden. There were penalties for wardens conniving at escapes. Wardens were to be answerable for their deputies, and records were to be kept regarding the conveyance or inheritance of the offices of marshall or warden.[ii]
These provisions, taken together, are stunning for their obviousness to the modern reader. Wardens should be responsible for keeping prisoners. We should know who the warden is. We should know where the prisoners are. People committed to prison for debt should stay in prison. Concepts that seem like no-brainers had to be fought for in 1697.
Why would parliament see a need to take action in the late 1690s? For one thing, there just was more parliamentary action taken on most subjects after 1688, due to more frequent meetings of parliament. In addition, the new regime’s positive stance on commerce may have created sympathy for the plight of the small creditor. The vulnerability of the Fleet’s warden, John Tilly, to accusations of coining and Jacobitism may have encouraged the discussion of corruption as well. Finally, there were conceptual parallels between this act and the more well-known Great Recoinage of 1695. Both were attempts to impose clear definitions, to have words mean what they appear to mean. The purpose of the Recoinage was to make the face value of a coin match its metallic content, to line up signifier and signified. The 1697 Act for the Relief of Creditors, likewise, insisted that a prisoner was a person confined to prison.
The 1697 Act for the Relief of Creditors did not represent a new consensus, nor was it effective. It was openly resisted by a novel alliance of prisoners and keepers. Prisoners of the King’s Bench asked Parliament both to preserve the traditional benefit of the “Day rules” that allowed prisoner to attend to their business, and further noted that the court of King’s bench had thought fit to allow the physical “rules” (the area around the prison) to be parts of the prison, “the better to prevent pestilential distempers and other inconveniencies which might be occasioned by the straightness thereof (which in the most prosperous and best times for trade has been found too little to contain a fourth part of the prisoners in the walls thereof).”[iii] The next year, when a bill to make further provisions for the relief of creditors was under consideration by parliament, debtors from the Fleet and King’s Bench submitted a joint petition complaining of the deleterious effects of the previous bill. Their complaint set forth
That the Marshal, and Wardens, have brought into their respective Prisons such Crouds of Debtors, by Rules of Court, and Warrants upon fresh Pursuits, that Five or Six have been frequently locked up in a narrow Room, whereof Two only had the Benefit of a poor Bed, and the rest compelled to lie on the Ground; and that several, who are Artificers, and formerly had the Benefit of the Rules, and supported themselves by their Labour, are now so strictly confined, that some have died for Want, and the Survivors in a starving Condition; their Wives and Families turned a begging, without Hopes of Mercy from their cruel Creditors; neither doth the Marshal, or Warden, distinguish between those who have Effects, and refuse to make a just Satisfaction, and those who, by Losses in the late War, and other Accidents, are incapable; but all promiscuously are clapt up close, without Liberty of discharging even the Offices of Nature with Convenience; and that the present Lord Mayor will not permit the several Persons appointed to go with the usual Badge, Box, and Basket, to crave Alms for their Subsistence, but hath committed them to Bridewell.[iv]
Creditors were not happy either. The 1697 Act was weakened by a series of “excepting” clauses protecting the investments several individuals who held a mortgage on the prison from, so that in reality no creditor was able to collect damages due to them from the escape of a prisoner. A 1699 pamphlet by John Berisford, An Argument shewing that ‘tis impossible for the Nation to be rid of the Grievances occasioned by the Marshal of the King’s Bench and Warden of the Fleet, without an utter extirpation of their present offices, lamented that the “good intent” of the 1697 statute had been “wholly eluded, “and all the mighty advantages which that act was thought to produce prove imperfect and abortive, and our great expectations are dwindled into air.” [v]
So, did this obscure and apparently ineffective legislation matter? The practice of letting prisoners live in the “rules” of the prison rather than behind its walls certainly did not disappear (see my earlier post on Pushing the Boundaries of the Fleet Prison). It is possible that the use of day writs by prisoners to leave prison entirely was curtailed—this is a subject for further research. But results aside, the fact that the conversation about what it meant to be “imprisoned” did happen is a significant event in the history of incarceration. Most histories of imprisonment treat the early modern centuries preceding the late 18th century “birth of the penitentiary” as a homogeneous block. What this evidence suggest is that carceral modernity was not birthed at a single moment, as Foucault would have it. Between the rise of debt imprisonment in the 16th century and the movements for reform at the end of the 18th century there were other attempts to rethink and redefine imprisonment. Even if they were halting, confusing, and probably failed, they deserve closer attention.
[ii] 8&9 Guil. III 3, c. 27 An act for the more effectual relief of creditors in cases of escapes and for preventing abuses in prisons and pretended privileged places. The phrase in brackets was added in a separate schedule, which may indicate that there was some further debate about this point. For a helpful discussion of this law, its context, and other attempts to improve upon it, see Roger Lee Brown, A History of the Fleet Prison, London: The Anatomy of the Fleet (Lewiston: Edward Mellon Press, 1996), chapter 1.
[iii] To the Right honorable the Lords Spiritual and Temporal Assembled in Parliament, The Humble Petition of Several Poore Prisoners within the Prison of the King’s Bench, and the Rules thereof, on behalf of themselves and all other Prisoners within the said Prison and Rules” (10 February 1696-97), HL/PO/10/1/489/1114 (b).
[iv] Journal of the House of Commons: Volume 12, 1697-1699, pp. 201-2 (11 April 1698).
[v] [John Berisford], An Argument shewing that ‘tis impossible for the Nation to be rid of the Grievances occasioned by the Marshal of the King’s Bench and Warden of the Fleet, without an utter extirpation of their present offices (Richard Standfast, 1699), p. 2.