One of the pleasures of retirement is the opportunity to read long books without the risk that one will have forgotten the beginning long before reaching the end.

I have just finished reading Charles Dickens’s 900-page Little Dorrit for the first time.  She must be one of the most admirable people in English literature.   Reading the book made me want to know more about debtors’ prisons, their role as a mechanism for debt recovery, and what has happened since they were abolished.  I will finish this piece by referring to a case I was involved in as a judge, which gives the lie to those who think that we do not need an overlay of human rights law to supplement the common law if we are to be serious about achieving justice.

This research has been particularly apposite because of some links I have had with Borough High Street in recent years.   The Prisoners of Conscience Appeal Fund, which I chair, used to occupy offices in two of the little alleys off the High Street before it moved to its present home in Lant Street, where the 12-year old Charles Dickens used to stay when his father – and the rest of his family – were lodging in the second Marshalsea prison nearby.  And two weeks ago I went to a Christmas party at lawyers’ offices at 103 Borough High Street, just north of the original site of the Marshalsea prison.

Much of the information in this piece was gleaned from the former London County Council’s admirable Survey of London, Vol XXV, Chapter 2 (Southwark Prisons).

If we go back 600 years in time, a traveller from the City of London would cross Old London Bridge and ride down Borough High Street on his way out of the city. In the straight stretch of road between Newcomen Street and St George’s Church[1] many of the original buildings were inns for the use of travellers between London and the coast. Today’s narrow courts and alleys were first created when tenements were built on either side of the inn yards.  On the west side of the road the tenements backed on to the Bishop of Winchester’s Park, which contained the Clink, the Bishop’s own private prison.  On the east side four prisons – the Marshalsea, the King’s Bench, the County Gaol and the House of Correction – occupied most of the area, with the ground between them closely built up.  In this piece I am concerned only with the Marshalsea.

After passing St George’s Church on their left travellers to Canterbury would continue down the Old Kent Road.  Travellers to Chichester would swing right quite soon and use a road on piles, now known as Newington Causeway, to cross an area prone to flooding on their way down Stane Street to the sea.

The Court of Marshalsea existed as a separate court for the trial of offences committed within the verge of the King’s court between the 13^th century and its abolition and absorption into the Court of Common Pleas in 1842.  Its jurisdiction was soon extended to include imprisonment for debt, and the prison was also used by the Admiralty Court in Southwark for the incarceration of sailors convicted of piracy and other maritime offences. Readers of my essay on the History of Judicial independence will remember that it ranked as an inferior court:

Immunity from suit is often mentioned as one of the buttresses supporting the independence of the judiciary. In Sirros v Moore[2] the Court of Appeal went back to Stuart times to find the guiding rules. In the Marshalsea case[3] Sir Edward Coke made it clear that lower courts would lose this immunity if they strayed outside their jurisdiction.

In that case the judge of the Court of the Marshalsea had awarded a money judgment on a civil debt, and when the judgment debtor did not pay, he had ordered the surety to be arrested and detained for three months. In fact his court had no jurisdiction to entertain the case at all, and the Court of Common Pleas awarded the surety damages for false imprisonment against the plaintiff, against the officer who did the imprisoning, and against the judge himself.

Sixty years later, however, in Hamond v Howall[4] the same court said that this principle did not extend to superior courts.

Although the term Marshalsea Prison occurs from 1294 onwards, for a long time it was also used to refer to the prison kept by the Marshal of the King’s Bench.  In 1373, however, “the good men of the town of Suthwerk” were given a

“licence to build in the high street leading from the church of St Margaret towards the south, a house, 40 feet long and 30 feet wide, in which to hold the pleas of the Marshalsea of the king’s household and to keep the prisoners of the Marshalsea while in the said town, and to hold other the king’s courts.”

This original site was at what is now 161 Borough High Street, and the prison stayed there until 1811.   Most of the prisoners were debtors, although it continued to house prisoners sentenced by the Admiralty Court throughout its existence.  It had an appalling reputation: in 1718 an anonymous rhymester described it as an “earthly Hell”, and a report of a Parliamentary committee, commissioned in 1729, makes profoundly depressing reading.  It found that the prisoners were tortured with irons, beating and being locked up with human carcasses.  They were confined in so small a space that many were stifled to death in the heat of summer, and those who survived ill-treatment often died of starvation, since the keepers took most off what was given in charity.  When I was taught eighteenth century English history at my prep school I learned all about the Black Hole of Calcutta, but nothing about the Marshalsea.

At that time there were 401 prisoners there, of whom 82 were housed on the Master’s side. They paid £555.2s per annum for their lodging, while the common side prisoners paid £41.12s.

In 1776 the prison reformer John Howard described the Marshalsea as

“an old irregular building (rather several buildings) in a spacious yard. There are, in the whole, near sixty rooms; and yet only six of them now left for common-side Debtors. Of the other rooms – Five are let to a man who is not a prisoner… Four rooms, the Oaks, are for women… There are above forty rooms for men on the Master’s side, in which are about sixty beds; yet many prisoners have no … place to sleep in but the chapel, and the tap-room”.

Prisoners on the Master’s side had the use of rackets courts and of a little back court for skittles, although there was not much room for either.

The King’s Bench Prison had been on a different site to the south of the Marshalsea (its frontage is now occupied by Nos 201 to 205 Borough High Street, close to St George’s Church) until it was moved to a new site in St George’s Fields in 1758.   Its old site was temporarily occupied by the County Gaol, but in 1799 the now empty Gaol was purchased and altered to serve as a prison for the Marshalsea and the Admiralty. In Little Dorrit Dickens describes the building as

“an oblong pile of barrack building partitioned into squalid houses standing back to back, so that there were no back rooms; environed by a narrow paved yard, hemmed in by high walls duly spiked at top.”

It was just as cramped as its predecessor.

On 19 November 1842 the prison was closed for good, and the remaining prisoners transferred either to the King’s Prison (as the King’s Bench prison was now called) or to the Bethlem Hospital, if they were mentally ill The site was sold the following year, when the sale particulars referred to

“the Keeper’s House (a substantial three-storey brick building and eight separate dwelling-houses of brick and slate, the suttling house, the Admiralty prison, a chapel and some paved yards.”

On 31 December 1849 the Court of Marshalsea was abolished by Act of Parliament and its jurisdiction transferred to the Court of Common Pleas.

When Dickens himself revisited the site in 1857, he described in his Foreword to Little Dorrit how he had begun to think that nothing at all remained. However:

Wandering, however, down a certain adjacent ‘Angel Court, leading to Bermondsey,’ I came to ‘Marshalsea Place:’ the houses in which I recognised, not only as the great block of the former prison, but as preserving the rooms that arose in my mind’s eye when I became Little Dorrit’s biographer …

A little further on, I found the older and smaller wall, which used to enclose the pent-up inner prison where nobody was put, except for ceremony. But, whosoever goes into Marshalsea Place, turning out of Angel Court, leading to Bermondsey, will find his feet on the very paving-stones of the extinct Marshalsea jail; will see its narrow yard to the right and to the left, very little altered if at all, except that the walls were lowered when the place got free; will look upon the rooms in which the debtors lived; and will stand among the crowding ghosts of many miserable years.

All that is left today is the long southern wall which marked its border with what is now known as Angel Place, suitably identified by a blue plaque.

Entries in the prison register show that Charles’s father John Dickens was imprisoned at the Marshalsea between February and May 1824 for a debt of £10 .  He had owed a debt of £40.10s to a local baker.  He was originally taken to a local sponging house on 20^th February (shades of Mr Rawdon Crawley in Thackray’s Vanity Fair), but when he was unable to raise any of the money he owed he was arrested three days later and taken to the Marshalsea, accompanied by his son. On 28^th May he declared himself an “insolvent debtor” and agreed to settle all his debts at a later stage: the fact of his imprisonment did not discharge any of the debt.

The Debtors Act 1869 abolished imprisonment for debt. Instead, it introduced the Judgment Summons procedure by which if a debtor defaulted in paying a judgment debt, he could be required to attend court to be examined on oath as to his means and to show cause as to why he should not be committed to prison (for a term not exceeding six weeks) for his default.   After serving that term, he could not be committed to prison again for the same debt, although other methods of execution remained open, at least in theory, to the judgment creditor.

I remember being instructed to appear for the judgment creditor from time to time on the hearing of judgment summonses in the late 1960s, in the days before they were abolished.  A suspended committal order tended to be the outcome unless the debtor could show that he really had no means at all.

The Administration of Justice Act 1970 abolished this procedure in civil cases, while empowering the courts to make attachment of earnings orders in appropriate cases.[5]   When he asked Parliament to implement this reform the Lord Chancellor (Lord Gardiner) said:

“An order committing a debtor to prison can be made only where it is proved to the satisfaction of the court that the debtor has been able to pay, but has failed to pay. The judges have, of course, done their best, in difficult circumstances, to exercise this jurisdiction humanely. However, as the [Payne] Committee showed, conditions in the courts really do not give them a chance to distinguish between the persistent, dishonest debtors and those who are merely inadequate. The persistent, dishonest debtors may often be clever enough to avoid actually going to prison, while those who are inadequate suffer from their inability to manage their affairs. The sanction of imprisonment serves little purpose and it contributes to the overcrowding of our already overcrowded prisons. This is, I believe, the only country in Western Europe where imprisonment for ordinary civil debt has been retained.”

The procedure was, however, retained as a method of enforcing maintenance orders made by a family court. The Lord Chancellor justified this distinction in this way:

“The case for distinguishing between maintenance payments and other civil debts can be put very simply. Unfortunately, there are men who, for one reason or another—it may be bitterness—will do anything they can to avoid paying maintenance. Mr. Justice Payne and two members of his Committee, who supported him in recommending that the sanction of imprisonment should be retained for the enforcement of maintenance and comparable orders, said in their Report at paragraph 1039:

‘The selfishness and irresponsibility by which he [a man responsible for paying maintenance] is motivated are, in our view, no less morally reprehensible and socially damaging in their effects than many offences against the criminal law in respect of which the courts’ power to pass a sentence of imprisonment is not questioned’.

I fear that it follows that to be able to send to prison someone who is determined to avoid his obligations may be the only practicable way of enforcing the court’s order.

There is another practical difficulty, because a man living, say, in a council house with a wife and children is not going to give up his home and move in order to avoid paying a debt of £20, whereas a man whose home has already been broken up for whatever cause and who may as well live here as live there, may all too easily change his employment and move without notice for the sole purpose of avoiding the continuing payments of maintenance.”

And this is where I came in. In Mubarak v Mubarak[6] we were concerned with the question whether the procedure that was being used at that time was compliant with the requirements of the Human Rights Act 1998, which had just come into force.  Since it muddled up a means inquiry (in which the debtor could be a compellable witness) with committal proceedings (in which he could not), since no reference was made to the criminal standard of proof (required under the 1998 Act because committal to prison was a possibility) and since it reversed the burden of proof (placing on the debtor the burden of showing cause why he should not be sent to prison), there was no way in which the procedure could be held to be ECHR-compliant.

Since that time, the procedural defects have been rectified, and very recently the Court of Appeal upheld an order by a High Court Judge pursuant to the Debtors Act 1869 requiring the husband in the long running saga of Prest v Prest[7] to pay over £360,000 within 12 weeks or to go to prison in default of payment.

 

[1] The church is opposite Borough Underground Station on the Northern Line.

[2] [1975] QB 118.

[3] The Marshalsea Case 10 Co Rep 68b; (1613) 77 ER 1027.

[4] Hamond v Howall 2 Mod 218; (1674) 86 ER 1035.

[5] In the county courts the county court judge tended to have to take the judgment summons list, which had the disadvantage of his being unavailable to hear substantive contested trials, for which a deputy had to be enlisted, sometimes with very unsatisfactory results. But that is another story.

[6] [2001] 1 FLR 698

[7] [2015] EWCA Civ 714.