THE word prison connotes crime; a place of punishment and detention where misdeeds are expiated and penalties enforced. A certain sense of shame attaches to all who have been committed to durance; for according to the old law, the “natural inherent right of liberty cannot be surrendered or forfeited unless by the commission of some great or atrocious crime.” This doctrine was coeval in one country at least, England, with the foundation of the constitution. Yet the seclusion and detention of individuals who had done no wrong, was long the rule in most civilised countries, and many prisons, which are to all intents and purposes non-criminal, have existed and been constantly filled with unfortunate persons guilty of no real offence against the law.

Of these there have been two principal classes: The debtors—those who had become bound to others for the repayment of moneys lent or goods purchased—and the prisoners of war,—combatants captured in the field whom the conqueror was entitled to hold in diminution of his enemy’s strength while hostilities continued. In both cases the right exercised is that of the strongest and in neither is it defensible, nor has it been always carried out fairly or humanely. The full acceptance of the principle, however, has called many large prisons into being which have gained great notoriety, and a description of them and the methods pursued forms the contents of this volume.

The British, essentially a commercial people, sought very early to control the relations between debtor and creditor, and ancient practice greatly favoured the latter. Every assistance was given him for the recovery of what was due him. His right to it was so amply acknowledged that the law went farther and decreed that the debtor who could not pay in cash was liable in person, so his services were attached to work out the debt and he was adjudged a serf or slave to the master he could not otherwise satisfy. The principle was derived from the Mosaic law by which the defaulter might be sold into bondage with his family, his wife and his wage-earning children. It was the same in ancient Greece and Rome, where the creditor had a claim to the person of his debtor. Solon abrogated this procedure, but it long held in Rome under very barbarous conditions. When judgment was pronounced there against a debtor, he was allowed thirty days to liquidate, but if at the end of that period he was still unable to pay, he was handed over to his creditor, who might keep him in chains for sixty days and make public exposure of him proclaiming his failure, with permission finally to sell him or put him to death. There were no public prisons for debtors in old Rome and the creditor acted as his own gaoler until milder methods ruled that the right of private imprisonment was intolerable. Nor was it permissible in feudal times, when men were continually called upon to bear arms for their lord and their valid effective strength would have been reduced by locking them up in gaol.

Imprisonment for debt had its origin in the wish to foster and protect trade. The creditor was permitted when he had proved his debt to recoup himself by laying his debtor by the heels. Yet in England the practice was held by jurists to be an undoubted invasion of the “Bill of Rights.” It was distinctly laid down that no court of justice, whether at common law or statute law, possessed the power to deprive an individual of his personal liberty for anything less than serious and atrocious crime. Still the right was usurped and exercised by specious means. Sellon says in his “Practice,” “They obtained jurisdiction by a mere fiction over actions of debt, detinue and causes of a like nature.” The judgment pronounced in English courts against a debtor was merely to the effect that he should pay the debt and costs, and it was incidental thereto that “if he does not pay an execution will issue against his property.” But no mention of imprisonment was included in the judgment, for which there was, in fact, no authority.

This immunity from personal arrest remained in force in England long after Magna Charta, but a change was introduced by a statute generally known as that of “Marlbridge,” which enacted as a remedy against absconding bailiffs and stewards that if any went off with the rents they had collected for their employers, their bodies might be attached when caught and they themselves held to serve to make good the loss. A second statute called that of “Acton Burnell” (11th Edward I), allowed merchants to arrest their debtors for acknowledged breaches of contract. The practice was excused by the plea that traders were very constantly foreigners and very likely to run out of the kingdom. As time passed the chicanery of the law was further called in to protect the creditor and the debtors’ offence was held to be a fraudulent act, a delictum or offence injurious to the plaintiff or a contempt of the court originally moved to recover the debt. The rule then was that the creditor should make a sworn affidavit against his debtor and that the court should summons him to appear and answer the claim. If he neglected to attend, the disobedience justified a presumption against him and the sheriff was ordered to distrain his goods so as to force him to come into court. If this procedure also failed, the defendant’s conduct was construed into contumacy and a writ of capias was issued for the seizure of his person.

Herein there was clearly a great stretch of power and an unlawful interference with personal liberty, yet the procedure was acquiesced in on account of its general convenience. Still the public suffered in its broad interests and the debtor was undoubtedly damnified and afterward horribly ill-used. When the arrest was made, too often arbitrarily, he was hurried off to gaol where he might be kept in durance almost indefinitely with small hope of enlargement. He was in much worse case than the prisoner charged with a crime, for no proper provision was made for his support and maintenance. While the supposed lawbreaker got the county allowance, such as it was, the debtor might starve. The latter was no doubt entitled to claim his “groats,” fourpence per diem, from his creditor, who was slow to pay, and did so only under compulsion enforced by legal process, a costly matter generally beyond the means of the insolvent and necessitous debtor. To die within the walls was easier than to obtain release, even if he could show that he had been wrongfully locked up. It cost money to prove that he did not owe the debt; a suit at law must be begun and carried through, and legal process was an expensive undertaking wholly beyond his means. This was so well understood that a recognised and not uncommon form of charity was the donation and bequest of moneys for the assistance of poor debtors.

Many are the painful details of the misusage of debtors, and of the power given to one class of the community to oppress the other. The laws relating to debtor and creditor in England were for centuries unsound, illogical and unequal, and productive of untold misery to enormous numbers of innocent people. The great debtors’ prisons of England will live in history rivalling in their callous neglect and distinctly inhuman treatment the more notorious receptacles used by high-handed and cruel tyrants for the coercion of their helpless subjects. The irresponsible despotic ruler who cast all who offended him into dark dungeons and hermetically closed oubliettes, condemning them to a lingering and acutely painful death, was no worse than the callous judge who, enmeshed by complex, senseless machinery, consigned harmless people to gaol for unlimited terms and under the most irksome conditions, because unable to meet the smallest and not always the most righteous pecuniary demands. It was not until John Howard laid bare the secrets of the prison houses that the whole story was revealed or the unjust sufferings of the debtor class fully realised.

The status of military prisons the world over has been an indictment upon humanity. In England, the Hulks and Dartmoor; in France, Verdun and Bitche; in Russia, Peter and Paul and the SchlÜsselburg; in the United States, Libby Prison, Andersonville and Fort Delaware are sad examples of the cruelties of war. Idleness, starvation and homesickness conspired to make the wretched captives prefer death or daring escape to indefinite torture.