The Law and the Poor

by Sir Edward Abbott Parry

It occurs to me that, if I can persuade the man in the street to understand how imprisonment for debt began and continued until it became a great public scandal, and show how in the last hundred years little by little its evil influence and extent have been abated with good results, we shall be making great strides towards the restoration of that liberty in England which in the matter of debt was the citizen’s privilege in the days of Henry III.

But the reason for the absence of imprisonment for debt in these early feudal days is not so satisfactory to modern ears as one could wish. Lord Chief Baron Gilbert, that crisp and accurate lawyer of the eighteenth century, puts it very clearly when he says: “But there was no Capias for the Debt or Damages of a Common Person, because the party having trusted him only with personal Things his remedy was only on the personal Estate, and the King had the Interest in the Body of his subject; and the Lord in his Feudatory or Vassal to be called out to War or to labour for him; and therefore none but the King could imprison him.”

And this seems clear, that the reason a creditor could not imprison a debtor was because in those days a debtor had only a limited interest in his own body. The fighting part of his body belonged to the king, the labouring part of his body belonged to his lord, and the king and the lord were not going to have their rights and property in his body interfered with because the subject and vassal had been foolish enough to run into debt with another subject and vassal who wanted his money.

You will, indeed, find that the whole history of the law and the poor seems to be a long struggling of the poor out of slavery and serfdom where they had a certain guaranteed amount of food and protection from their masters, similar in nature to that given to the ox or the ass or anything that was his, into a state of freedom, so-called, in which they had given up their rights to food and protection without getting any certain rights of wages or the equivalent of wages in return. We are in the middle of adjusting these things to-day, and the story of imprisonment for debt, and why it is retained at the present only for poor people, is a page in the curious English history of social progress.

As long as the debtor was a vassal having certain duties to perform for the lord of the manor his lordship thought him as much worth preserving as the game or venison within the curtilage of his park. It was for this reason you could not take his body in execution. As you may know, when you obtain a judgment in a court of law the next thing to do is to proceed to execution; that is to say, the judge having given you judgment a writ is granted to you whereby you get the sheriff to take your part and seize for you either the goods or body of your opponent. The history of these ancient writs is full of amusing folklore for those who love such things, and we still call them by their old dog-Latin names, not for any scientific purpose, but for much the same reason that the doctors write their prescriptions in hieroglyphics and priests mumble Latin or English—but always mumble—in a cathedral. It is the essence of a profession that it should be mysterious and incomprehensible, otherwise the common herd would not respect it and pay its fees.

And, prior to Henry III., if you got a judgment against your neighbour for money owing by him to you, your remedies of execution were these. By a writ of fieri facias the sheriff could be commanded to seize the goods and chattels of the debtor in satisfaction of the debt. This dear old writ, the fieri facias, affectionately alluded to as the fi. fa. by attorneys, bailiffs and others who have the handling of the fellow, is still with us. I agree that without him the delivery of judgments in courts of law would be mainly of academic and rhetorical interest. For as Gilbert—not William Schwenck, but Sir Geoffrey the Chief Baron—puts it, if a party trusts a man with personal things, then his remedy should be against the personal things of the debtor, and this seems a principle of common law and common sense as just as it is homeopathic. As our latter-day Gilbert would have put it, “the punishment fits the crime.”

But when you come to our other writ, the capias satisfaciendum, or “ca. sa.” as it is written in the absurd legal shorthand of the day, or “body warrant” as it is still termed with brutal accuracy in Lancashire, then you will find that in old days different considerations prevailed. You were not allowed to seize a man’s body for debt, but only his goods. And I am glad to find myself setting forth high Tory doctrine and asking my fellow citizens to return to the earliest common law of the land, for this seems clear that originally, unless the action was for trespass vi et armis, which was in the nature of a criminal matter, there was no remedy against the body of the defendant. The ca. sa. whereby the sheriff was ordered to seize the body of the defendant in execution could not issue at the instance of a successful plaintiff at common law. In other words there was no imprisonment for debt.

Our forefathers recognised what we seem to have partially lost sight of, that as credit could only be given commercially to a man with goods, it was fair and just that his goods should be seized if he did not carry out his contract. But for reasons of their own—no longer sound as reasons to-day, it is true—they refused to allow a man to mortgage his body for goods. Body warrants only issued against criminals or in actions of a semi-criminal character. It will be reassuring to those conservative minds who fear the abolition of imprisonment for debt to remember that there was a time in England when it did not exist, and that if we abolish it to-day we are working on old-fashioned and constitutional lines. Imprisonment for debt has not the sanction of antiquity, and a desire to sweep it away must not be put down to the wild and wicked desires of a political futurist architect, but rather to the pious hopes of one who is in deep sympathy with the best features of the Norman and Early English social institutions of his native land.

To tell the long story of the statutory evolution of imprisonment for debt from the Statute of Marlbridge, 52 Henry III. c. 23, to the Act for the Abolition of Imprisonment for Debt—so-called—of 1869, would be out of place here. It is enough to know that little by little the principle of the right of one man to seize the body of another in an execution for debt became recognised by statutes and by custom until the wrongs it caused reached such a scandalous pitch in the eighteenth century that some reform of it became inevitable.

The more modern contests over its partial mitigation from time to time throw a direct light on the differences of opinion upon the matter of to-day. It will be seen that there have always been two schools of thought among politicians. One school was clear, that to tamper with imprisonment meant ruin to trade; the other held—what I take to be the true gospel—that a man ought not to be allowed to obtain credit on the security of his body.