Prisoners – Civil debtors
Town councils were obliged to provide accommodation in burgh jails for debtors who failed to repay their debt on time. A debtor could be imprisoned on the demand of a creditor in order to compel them to repay the debt or to surrender goods to the same value. Debtors were detained until the debt had been paid and the creditor sanctioned their release. The Act of Grace of 1696 required creditors to pay an aliment for imprisoned debtors who could not maintain themselves, but the costs of imprisoning debtors were often met by burghs.[1] If the debtor escaped, the burgh was liable for the repayment of his debts. A debtor who had been in prison for a month could raise an action of ‘cessio bonorum‘ in the Court of Session and, if he could prove that he had fallen into debt because of misfortune, he could obtain release by dividing his property between his creditors. The prison reformer, James Neild, calculated that in 1809 there were 112 debtors in 32 prisons in Scotland.[2] The number dropped after 1835 when imprisonment was no longer allowed for debts under £8, 6 shillings and 8 pence.[3] Imprisonment for civil debt was generally abolished in 1880.[4]
Evidence of debtors in prison may be found in burgh treasurers’ accounts, such as costs for maintaining prisoners and payments to jailers. The minutes of town councils may also mention imprisoning debtors, along with any surviving tolbooth records. These are mainly held by local authority archives services.
Compilers: SCAN contributors (2000). Editor: Elspeth Reid (2024).
Related Knowledge Base entries
Bibliography
Cameron, Joy, Prisons and Punishment in Scotland (Canongate, 1983)
Walker, David M., A Legal History of Scotland, 6 vols (Green, 1988-2001)
[1] Act anent aliment of poor prisoners, 1696 The Records of the Parliaments of Scotland to 1707 ed. by K.M. Brown and others (University of St Andrews: 2007-2021) 1696/9/139 <http://www.rps.ac.uk/mss/1696/9/139> [accessed 30 Mar 2021].
[2] James Neild State of Prisons in England, Scotland and Wales (John Nichols & Son, 1812).
[3] Act for abolishing, in Scotland, imprisonment for civil debts of small amount, 1835 (5 & 6 Will. IV c.70).
[4] Debtors (Scotland) Act 1880 (c.34).