Imprisonment for Debt in Lower Canada, 1791-1840

Imprisonment for Debt in Lower Canada, 1791-1840

Evelyn Kolish*

Imprisonment for debt has passed from the
law of Quebec, but its history remains inter-
esting as a marker on the border between civil
and criminal liability, and as a means of trac-
ing the evolution of debt recovery mecha-
nisms. In the first part of her paper, the
author describes the law relative to impris-
onment for debt in Quebec between 1760 and
1840, contrasting it with the laws of England
and the American colonies. Changes in the
law during this period are placed within the
context of the contemporary public debate,
which pitted Canadian (francophone) ad-
vocates of wide powers of seizure and judicial
sale against British (anglophone) merchants,
who wished to retain imprisonment as a
means of preventing fraudulent bankruptcy
actions. In the second part of the article, the
author examines the prevalence of the rem-
edy by analyzing sheriffs’ records. The dis-
tribution of creditors and debtors is broken
down on the basis of sex, ethnicity and oc-
cupational group. The author concludes that
imprisonment for debt was never more than
a marginal phenomenon in Quebec, espe-
cially when compared with the experiences
of England and the United States. This may
be accounted for by differences in attitudes
towards the institution, and by the wider
scope of the remedy of seizure and sale,
which made imprisonment less necessary
and less useful.

‘article,

Lemprisonnement pour dettes est disparu du
droit qudb~cois, mais son histoire prrsente
encore aujourd’hui un double int6r8t, A la fois
comme indicateur de ]a frontirre entre res-
ponsabilit6 civile et criminelle, et comme 16-
moignage de l’6volution des mranismes de
recouvrement de cr~ances. Dans ]a premirre
partie de
‘auteur resume le droit
concernant l’emprisonnement pour dettes au
Quebec de 1760 A 1840, en le comparant au
droit anglais et am~ricain. Les changements
dans le droit de l’6poque sont 6tudirs A la
lumi~re d’un drbat public qui opposait les
canadiens (francophones), partisans d’une
augmentation des pouvoirs de saisie et de
vente judiciaire, et les marchands britan-
niques (anglophones), qui drsiraient plut6t
garder le mranisme d’emprisonnement pour
dettes afin d’emp~cher les faillites drclarres
frauduleusement. Dans la seconde partie de
l’article, l’auteur 6tudie l’utilisation de ce m6-
canisme au moyen d’une analyse des rap-
ports de sheriffs. L’auteur regroupe les
donn~es sur les cr~anciers et d6biteurs en
fonction de leur sexe, ethnicit6 et occupation.
Lauteur conclut que l’emprisonnement pour
dettes n’ tait, au mieux, qu’un ph~nom~ne
marginal au Quebec, surtout en comparaison
avec rAngleterre et les Etats-Unis. Ceci peut
8tre expliqu6 par les differentes attitudes A
l’endroit de ce m~canisme, et par la plus
grande flexibilit6 du recours de saisie et de
vente, qui a rendu ’emprisonnement moins
n~cessaire et moins utile.

*Of the Montreal Business History Project, McGill University. The author wishes to thank
Jean-Marie Fecteau for the use of figures from his research into the records of the Quebec
prison.

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IMPRISONMENT FOR DEBT

Synopsis

Introduction
I.
II.

The Law and the Debate on Imprisonment for Debt, 1760-1840
Imprisonment for Debt Seen through the Sheriffs’ Returns

Conclusion

Introduction

Very little research has as yet been done in Canada on the history of
creditor/debtor relations, and particularly on the most extreme debt collec-
tion mechanism that the law offered to creditors: imprisonment for debt.’
This paper investigates the history of this phenomenon in Quebec, in the
period from 1791 to 1840.2 As a starting point, the evolution of the law and
of the public debate on the question in Lower Canada is examined in light
of the English and American experiences. The paper then sets the law and
discourse on imprisonment for debt into the context of the actual use of

‘For an overview of these aspects of the law in English Canada, see C.R.B. Dunlop, Creditor-
Debtor Law in Canada (Toronto: Carswell, 1981), c. 5. For studies specifically on imprisonment
for debt in Quebec, one must go back to two 19th-century works: E. Lareau, “De l’empri-
sonnement en matires civiles” (1874) 6 R.L. 84, 277 and (1875) 7 R.L. 379; R. Lemieux, De
la contrainte par corps (Montreal: C. Th~oret, 1896). More recent material is to be found in
chapters on bankruptcy in E. Kolish, Changement dans le droit priv6 au Quebec et au Bas-
Canada, entre 1760 et 1840: Attitudes et reactions des contemporains (Doctoral thesis in Legal
History, Universit6 de Montreal, 1980) [unpublished] [hereinafter Changement]. See also E.
Kolish, “Uintroduction de la faillite au Bas-Canada: Conflit social ou national?” (1986) 40 Rev.
d’hist. de l’Am~ique frangaise 215 [hereinafter “L’introduction de la faillite”].

2The paper will deal briefly with the situation prior to 1791, but will not follow the evolution
of imprisonment for debt in Quebec to its partial abolition in 1849 by An Act to Abolish
Imprisonment for Debt, and for the Punishment of Fraudulent Debtors, in Lower-Canada, and
for Other Purposes, S.L.C. 1849, 12 Vict., c. 42, or on into the Code of Civil Procedure (ss 781
to 833 of the Code of 1867), whence imprisonment in civil matters was finally expunged, except
in cases of contempt of court, in 1966. The period covered by this study is largely dictated by
necessary time constraints, and by the author’s greater familiarity with the evolution of the
civil law prior to 1840.

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[Vol. 32

this legal mechanism, through analysis of empirical evidence in the form
of printed sheriffs’ lists of capias issued,3 of bail granted and of debtors
imprisoned, covering the judicial districts of Quebec and Montreal for the
-years 1813-1828 and 1794-1828 respectively.4 Finally, through a comparison
of the Lower Canadian experience with those of England and the United
States, the paper attempts to increase our understanding of the role of im-
prisonment for debt within the panoply of debt recovery measures (ranging
from attachment of goods to bankruptcy), particularly by considering the
possible impact of social and economic change on the gradual erosion of
the creditor’s right to imprison a defaulting debtor.

I. The Law and the Debate on Imprisonment for Debt, 1760-1840

Imprisonment for debt was not practiced in Quebec during the French
regime. In France itself, imprisonment for debt was less prevalent than in
Great Britain, for the great Ordonnance of 1667 on civil procedure had
abolished general imprisonment for debt, restricting its use to a few specified
categories of debtors. 5 In New France, doubtless partly due to the practical
limitation posed by the lack of prisons, as well as to the socio-economic
circumstances of a settlement colony in the early stages of development, 6

3A capias was a writ of attachment, used either for seizing the goods or the body of a debtor.
One needs to distinguish between two types of capias used in the process of imprisonment for
debt in England and British North America: the capias ad respondendum, used before -trial
(imprisonment on mesne process), theoretically to ensure the debtor’s presence, but in fact, in
England at any rate, largely to initiate actions for debt quickly and cheaply, and the capias ad
satisfaciendum, used after judgment, to coerce the debtor (or his friends and family) to pay
the amount awarded (plus costs).
4These lists were compiled at the request of a legislative committee of inquiry on insolvency
and bankruptcy in 1828. See the Appendix to the Journals of the House of Assembly of the
Province of Lower-Canada, app. M (1828-29).
5Essentially, imprisonment could still be used in the case of debts to the government, com-
mercial debts (i.e., between merchants), damages in excess of 200 francs and for certain debtors
in semi-public positions such as guardians. Women, minors, persons over seventy, the clergy
and members of the military in active service were exempt. For a contemporary r6sum6 of
legislation and jurisprudence in France, see P.JJ.G. Guyot, Repertoire universel et raisonn6 de
jurisprudence civile, criminelle, canonique et b~n~ficiale, vol. 4, rev’d ed. (Paris: Visse, 1784)
at 597-606 (contrainte par corps). For more detail on the evolution of the law on imprisonment
for debt in France, including developments up to the middle of the 19th century, see Lemieux,
supra, note I at 29-42.

6Both the absence of prisons and the existence of attitudes more favorable to debtors than
to creditors are common patterns in North America in the early years of colonization: see P.J.
Coleman, Debtors and Creditors in America: Insolvency, Imprisonment for Debt, and Bank-
ruptcy, 1607-1900 (Madison: State Historical Society of Wisconsin, 1974) for the overall trends
and a discussion of developments in each of the eastern seabord states as far south as Georgia.
See also W.N.T. Wylie, “Arbiters of Commerce, Instruments of Power A Study of the Civil
Courts in the Midland District, Upper Canada, 1789-1812” (Doctoral thesis in History, Queen’s
University, 1980) at 57, 79-80 [unpublished].

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IMPRISONMENT FOR DEBT

creditors did not use imprisonment as a means of debt recovery. When
driven to the point of using the courts, creditors in New France relied upon
the seizure and sale of goods and of real property, along with the cession
de biens, a process of voluntary judicial assignment for bankrupt merchants
that did not automatically discharge the debtor of his debts, but that pre-
cluded recourse to imprisonment. 7

It was as a direct result of the Conquest, and of the wholesale intro-
duction of English law into the province by the Royal Proclamation of 1764,
that imprisonment for debt made its first appearance in Quebec. In the
present state of research, we do not yet know how often creditors actually
resorted to arrest and imprisonment for debt recovery, nor how many debt-
ors ended up in gaol prior to the mid-1790’s. Probably capias were relatively
rare and imprisoned debtors very few, as there were still no prisons and the
state of economic development was essentially as it had been during the
French regime.8

Nonetheless, such evidence as we have does suggest that the King’s old
subjects (the British community) 9 viewed imprisonment for debt as an es-
sential cornerstone of the debt recovery system. The question of creditor/
debtor relations was hotly debated in the early years of British rule, when
the British merchants in Quebec successfully resisted an attempt by
Attorney-General Francis Mas~res to issue a commission in bankruptcy, on
the assumption that English bankruptcy law had become as much a part of
the colony’s laws as the common law.10 One determined critic argued that
bankruptcy legislation would have a negative effect on

those merchants who have had good Faith enough to trust their Fortunes in
a Province where the only and indeed the best Security they have for such Debts
is the Bodies of their Debtors, the greatest part of whom have a very small, if

7Although the cession de biens was eliminated in the 1770’s and 80’s by the judges of the
Court of Common Pleas on the grounds that the Code marchand had not been registered by
the Conseil sup~rieur, it is clear from the court records of the French regime that the cessions
de biens was alive and well in New France and that its procedure conformed to French practice:
see J.A. Dickinson, Justice et justiciables: La procedure civile d la Prvote de Quebec, 1667-
1758 (Quebec: Presses de l’Universit6 Laval, 1982) at 63. The Code marchand was the common
designation for the Ordonnance sur le commerce of 1673, the royal ordinance which codified
commercial law as it existed in France.

gThe number of writs for the arrest of debtors issued annually in Montreal in the 1790’s was
not high, and the number of debtors imprisoned was, predictably, much smaller- see Figure 1,
below. There is little reason to think that the use of capias would have been much more
prevalent earlier.

9Note that “British” and “Canadian” are used throughout to designate English Canadians

and French Canadians, in accordance with contemporary usage.

‘0See Changement, supra, note 1 at 49-56 for the exchange between Masares and the

merchants.

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[Vol. 32

any, Capital in Trade. Would it be reasonable, to deprive them of a Prerogative
which they enjoy throughout the British Colonies?”

As in the American colonies, the dependance on British creditors had a
visible impact on the attitudes of colonial merchants towards insolvency
and bankruptcy legislation. 12 Also, the costs of English-style bankruptcy
proceedings, both in time and money, as well as the fear of fraud and of a
potential epidemic of bankruptcies in the prevailing precarious economic
situation, led merchants to prefer private arrangements (by means of deeds
of assignment) in dealing with honest insolvents, and to opt for the threat
of imprisonment for the others.

It is then scarcely surprising that the Legislative Council lost little time
in reintroducing the creditor’s right to imprison his debtor after the Quebec
Act swept away civil imprisonment by restoring Canadian civil law in 1774.
The Ordinance on civil procedure of 1777, designed to provide a rough mix
of English and French procedural rules now that Canadian law and custom
was to be dispensed within a British judicial framework, not only introduced
imprisonment on mesne process for debtors owing more than 10 whose
creditors suspected them of intending to abscond, but also introduced im-
prisonment after judgment in cases where the sale of the debtor’s goods,
chattels and lands had not yielded enough to repay the debt. Imprisonment
after judgment was, however, only to be used “for the satisfaction of com-
mercial matters between merchants, as well as of all debts due to merchants
for goods, wares and merchandizes by them sold.” If an insolvent debtor
swore, after one month in prison, that he was not worth 10, his crediter
was obliged to pay 3s. 6p. weekly for his maintenance, in default of which
the court would order the debtor to be released, unless the plaintiff could
prove that the defendant had “secreted or conveyed away his effects to
defraud his creditors.”‘ 13 Debtors resisting seizure or attempting to hide
property could be imprisoned even for debts under 10.

These dispositions differentiated the law on imprisonment for debt in
Quebec from procedures in England, and provided both similarities and
differences with the law in the American colonies. Firstly, in contrast to
England but like most of the American colonies, Quebec allowed creditors
to seize and sell land for debts.14 In fact, imprisonment on final process

I”A.S.”, Letter to the Editor, [Quebec] Gazette (28 January 1768).
12See Coleman, supra, note 6 at 269-70, and also the chapters on individual states.
‘3Ordinance to Regulate the Forms ofProceedings in the Courts of Civil Judicature Established
in the Province ofQuebec, P.O.Q. 1777, 25 Geo. 3, c. 2, arts 4, 37 and 38. See also Ordinance
to Regulate the Proceedings in the Courts of Civil Judicature, and to Establish Trials by Juries
in Actions of a Commercial Nature and Personal Wrongs to be Compensated in Damages,
P.O.Q. 1785, 26 Geo. 3, c. 2.

14See Coleman, supra, note 6, chapters on Virginia and Delaware on the use of writs ofelegit

on the English model (Virginia also adopted a system of replevy bonds, at 203-4).

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IMPRISONMENT FOR DEBT

could only take place after the debtor’s personal and real property had been
seized and sold, and found insufficient (or, presumably, if the debtor had
no property to be seized and sold). Execution against real property was
entirely in accord with French civil law, in which not only were ordinary
actions on unsecured debts normally followed by the seizure and sale of
personal and real property, but where the seizure and sale of real property
was the normal procedure for debts secured by hypothecs (those first cousins
to the mortgage). No doubt this is one of the factors that helps to explain
why Canadien seigneurs, unlike Virginia planters, never even thought of
trying to exempt landed property from seizure and sale for debt. 15

It may be noted that imprisonment on final process did not mean, as
it did in England, that the creditor lost his right of execution against the
debtor’s property. On the contrary, in Lower Canada, execution against prop-
erty preceded imprisonment. Theoretically, at least, this would remove one
of the motives prompting creditors in England to keep their debtors in prison
indefinitely. 16

Until 1838, mesne process in England could be brought against anyone
whose debt was past due and who owed more than the minimum fixed by
statute. 17 In the eighteenth century in the English legal system, warrants for
arrest on mesne process were in fact a common way of beginning an action
for debt recovery.’8 In Lower Canada the right to imprison on mesne process
was dependant upon the debtor being fraudulent, either by hiding or with-
holding property, or by absconding (or being suspected of intent to abscond).
Of course, this difference could easily become meaningless, if the courts
were to simply accept the affidavit of the creditor (or, after 1785, of his clerk

‘5For this aspect of English law, see I.P.H. Duffy, Bankruptcy andInsolvency in London During
the IndustrialRevolution (New York: Garland, 1985) at 64. See also J. Innes, “The King’s Bench
Prison in the Later Eighteenth Century: Law, Authority and Order in a London Debtors’ Prison”
in J. Brewer & J. Styles, eds, An Ungovernable People: The English and their Law in the
Seventeenth and Eighteenth Centuries (New Brunswick, N.J.: Rutgers University Press, 1980)
252, for an excellent diagram of the legal process of debt collection.

16The minimum debt to which mesne process could be applied in England was 10 in superior
and 40s. in inferior courts from 1725 to 1779, then 10 in all courts until 1811, 15 until 1827
and 20 until 1838: see Duffy, ibid. at 63 n. 12.
P7In his sampling of documents from the English King’s Bench, Court of Common Pleas
and Exchequer Court, Francis found that approximately 40 of actions for debt in these courts
were initiated by bailable process (warrants for arrest): see C.W. Francis, “Practice, Strategy,
and Institution: Debt Collection in the English Common-Law Courts, 1740-1840” (1986) 80
Nw. U.L. Rev. 807 at 830.

‘8Figures on judgments for debts over 10 are taken from the author’s study of civil litigation
as shown by the court registers: see Changement, supra, note 1, app. A. These figures only
include cases that went all the way to judgment, not all cases initiated, so that it is not possible
to compare with Francis’ findings of the relative proportion of cases initiated through either
bailable or serviceable process.

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[Vol. 32

or lawyer) as to the size of the debt and of the debtor’s intent to abscond.
The actual figures on the number of warrants for arrest issued, in comparison
to the overall volume of judgments rendered in cases for debt over 10,
suggest that creditors in Lower Canada began to resort more frequently to
arrest to initiate debt recovery proceedings after the turn of the century, and
particularly after 1815 (see Figure 4 below). 19

Perhaps the most interesting feature of the initial legislation on im-
prisonment for debt in Quebec was the stipulation that imprisonment on
final process would be limited to merchants, as well as to those indebted
to merchants for goods purchased. While bankruptcy procedures in England
and some American states20 were limited to merchants in the eighteenth
and early nineteenth centuries, no such limitation applied to imprisonment
for debt, either on mesne or on final process: debtors from all social groups
were liable to arrest. In France, by contrast, imprisonment for debt was
limited to merchants and a few other specificed types of debtors, but it was
not available to merchant creditors against their non-commercial debtors.
The Ordonnance of 1777 was thus particularly favorable to the merchants
and traders of Quebec, allowing them to imprison their insolvent debtors,
of whatever social class, although they could not themselves be imprisoned
on final process for non-commercial debts.

Why did this particular limitation exist in Quebec? In the absence of
any record of debate or controversy on the question, one can surmise that
in the context of considerable controversy over the introduction of English
rules of evidence and the use of juries in commercial cases, a free hand in
drafting the provisions on imprisonment for debt may have been seen by
the members of the so-called “French Party” as a necessary concession to
the British merchants who were their most vociferous opponents. 2′

19This is a tentative deduction reached by comparing the rise in the number of capias issued
in Montreal to the relative stability of the number ofjudgments on debt recovery in the superior
sessions of the Court of King’s Bench for the District of Montreal (126 judgments in 1795, 122
in 1815 and 159 in 1825). These figures are taken from a sampling of the civil court registers
carried out as part of the author’s doctoral research: see Changement, supra, note 1, app. A.
This deduction is only reasonable if we assume that the number ofjudgments rendered remains
roughly proportional to the number of actions begun. If not, an assessment of the relative use
of normal civil debt recovery proceedings, as compared to suits initiated by arrest, must await
more systematic research in the court records.

20For the situation in England, see Duffy, supra, note 15 at 18-23. in the United States, several
states experimented with similar laws restricted to traders only, but the long-term trend was
for relief laws of broader scope: Coleman, supra, note 6 at 5, 11, 45-47, 188 and 270.

21For a general picture of the political and legal situation referred to here, see A.L. Burt, The
Old Province of Quebec, vol. 2 (Toronto: McClelland and Stewart, 1968), c. 16-17; H. Neatby,
The Administration of Justice Under the Quebec Act, (Minneapolis: University of Minnesota
Press, 1937); H. Neatby, Quebec: The Revolutionary Age 1760-1791 (Toronto: McClelland and
Stewart, 1966), c. 13-14.

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IMPRISONMENT FOR DEBT

There does not appear to have been any opposition to imprisonment
for debt from the Canadian elite or the general population. In fact, there is
no direct evidence at all of how the Canadians felt about it. Junius, a cor-
respondent of the Quebec Herald, asserted that although liability to arrest
for debt “no doubt at first alarmed the Canadians … they however soon
found that restraint subservient to their own interests, by arresting one
another when occasion required it.”22 Junius was not exactly an objective
observer, however, being both an avowed champion of English law (while
a critic of Canadian law) and a proponent of broadening the scope of im-
prisonment on mesne and on final process to apply to all categories of
defaulting debtors, whether or not they intended to abscond, and regardless
of the size of their debt.2 3 He was not the only British commentator, then
or later, who believed that “the dread and horror of a prison” would have
“the most salutary effects” on potential defaulters. 24 It is impossible to
determine whether Canadians shared this belief, although they clearly were
less likely to be involved in the procedure, either as creditors or debtors
(see Figures 1 to 3, below).

Creditor/debtor relations did not become the subject of public debate
again until the 1820’s. Then, for the first time, in conjunction with the
repeated attempts of the Parti canadien to re-introduce the Canadian bank-
ruptcy procedure (cession de biens, which had been eliminated by the courts
in the 1780’s), a current of opinion hostile to imprisonment for debt became
visible.2 5 It seems likely that this public sympathy for the plight of impris-
oned debtors was related to recent increases in their number, with a par-
ticularly high incidence of arrests and imprisonments in 1820 (see Figure
4 below). As was generally the case in reform movements elsewhere, this
sympathy only applied to the honest debtor. Some kind of bankruptcy pro-
vision, allowing the debtor willing to hand over all his property in order to
be freed from prison, was increasingly seen as necessary to avoid “substi-
tuting the punishment due to crimes for those due only to accident or
misfortune”, so that “the Province will no longer be disgraced by bankrupt
laws at once at variance with the principles of common justice and the
diitates of humanity. ’26 There is no way to determine how widespread this

22[Quebec] Herald (30 November 1789).
23For Junius’ general attitude and his other comments on the laws and the administration

of justice see Changement, supra, note 1 at 214-29.

24[Quebec] Herald (15 March 1790). In the issue of 17 May, another correspondent, signing
himself “A Free Thinker”, suggested that the province should revise its law on imprisonment
to be the same as English law, to avoid pushing creditors to perjury (regarding intent to abscond)
in order to apply the terrors of arrest to their debtors.
25For a description of the debate on bankruptcy legislation, see “Ilintroduction de ]a faillite”,

supra, note I at 217-25.

26[Montreal] Gazette (20 December 1823).

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moderately humanitarian attitude had become, although the Montreal Her-
ald, alarmed at what it perceived as a misguided majority opinion, lost no
time in denouncing it and preaching that severe laws were necessary as “an
impulse to enterprise and commercial integrity”. 27

The arguments exchanged by proponents and adversaries of impris-
onment for debt in Lower Canada in the 1820’s and 1830’s differ very little
from those which were being used in England and the United States. Op-
ponents appealed to sentiments of charity by emphasizing the unhealthy
atmosphere of the prisons,28 and the lack of separate prison facilities for
debtors, perforce lodged indiscriminately with criminals. 29 Newspapers de-
scribed individual cases involving the sickness or death of debtors in
prison,30 or cases where creditors kept an insolvent debtor in prison for so
long that the sum of the weekly pension exceeded the original debt.3 1 Op-
ponents emphasized cases where men were kept in prison for extended
periods for relatively small sums, and where their imprisonment left wives
and children without any means of livelihood. 32 In addition to these hu-
manitarian arguments, opponents stressed the futility of imprisoning honest
debtors who were genuinely insolvent, and argued that “society has a claim
on [the debtor’s] industry and the exertions of his moral and physical fa-

27[Montreal] Herald (3 January 1824).
28See Journals of the House of Assembly of the Province of LowerCanada at 130-31 (12
December 1828); Journals of the House of Assembly of the Province of Lower-Canada at 141-
43 (8 February 1830).

29See the speech by Solicitor General C.R. Ogden in the report on the debates in the House

of Assembly, [Quebec] Gazette (I March 1827):

[I]n England insolvent Debtors could be arrested – but what a difference between
the Places of Confinement in the Mother Country and in this Province! There the
Prisoner was sent into the King’s Bench where he might have all kinds of Amuse-
ments; Here, on the Contrary, he was shut up in an infected Prison and under the
same Roof with the most infamous Criminals.

Later in the same report, D.-B. Viger alluded to “a shameful traffick in Liquor which rendered
the Prisons a focus of immorality instead of being a Place of Punishment and Repentance.”
30See the [Quebec] Gazette (4 September 1833), for an editorial on, and report of, the tes-
timony at the Coroner’s inquest into the death of Robert Shortis in the Quebec city gaol. A
petition from Frederick Pearl mentions the death of Samuel B. Sheldon in the Montreal gaol
in April of 1825, after 3 years of imprisonment: see Journals of the House of Assembly of the
Province of Lower-Canada at 142 (8 February 1830).
31Le Canadien (28 October 1840). A letter to the editor signed “P” recounts the case of John
McRhail, a lumber merchant, imprisoned for 400 weeks at a cost to his creditor of100, for
a debt of E45.
32See the petition from debtors in the Montreal gaol in Journals of the House of Assembly
of the Province of Lower-Canada at 110 (29 November 1831); and the speech of D.-B. Viger,
published in Le Canadien (25 November 1835), on the bill that would become An Act for the
More Speedy Relief ofInsolvent Debtors in Certain Cases, andfor a Limited Time, S.L.C. 1835,
6 Will. 4, c. 3, in which he mentions as one of the benefits of the bill, that the final judgment
debtors released on bail could henceforth “se pourvoir mieux A la subsistance de leurs familles.”

1987]

IMPRISONMENT FOR DEBT

culties.”‘ 33 In contrast to merchants who believed that reducing the right to
imprison would encourage men to seek credit beyond their capacity to re-
pay,34 critics of imprisonment suggested that the onus should lie on creditors
to be more prudent in extending credit.35

Petitions to the Assembly pleading for a reduction of the right of cred-
itors to imprison were invariably referred to special committees, and either
stimulated specific legislative proposals, or at least were used to support
such existing projects as the on-going effort to re-introduce cession de biens.
However, during the 1820’s there was stubborn resistance to any major
change in bankruptcy law and in the creditor’s right to imprison, coming
mainly from the Legislative Council and the merchants of Montreal and
Quebec. This resistance stemmed partly from the fear of fraud during bank-
ruptcy proceedings and the belief that the threat of imprisonment was a
creditor’s only effective way of forcing a fraudulent debtor to give up any
property that he might be concealing. This time-honoured distrust of pos-
sible fraud in bankruptcy proceedings was reinforced in Lower Canada by
the absence of registry offices and by the existence of tacit general hypothecs
protecting the interest of married women and minors in the real property
of their husbands and guardians. 36 Local British merchants in particular felt
that these aspects of Canadian law virtually amounted to an invitation to
fraud on the part of dishonest debtors who knew that a portion of their real
property would be preserved in the hands of their wives, even if they them-
selves knowingly contracted debts they were unable to repay. This mistrust
of potentially fraudulent use of tacit hypothecs came up repeatedly in the
legislature and in the newspaper debate on credilor/debtor relations. 37 It is
a specifically Lower Canadian phenomenon, reinforcing the general concern
about fraud common to creditors in England and the United States.

the Province of Lower-Canada at 236 (1 March 1830).

33Petition from the inhabitants of William Henry in Journals of the House of Assembly of
34See the testimony of William Finlay and Andrew Paterson in The Appendix to the Journals
of the House of Assembly of the Province of Lower Canada, app., Minutes of Evidence (24
December 1831).
35See the editorial comment on the death of Robert Shortis in the [Quebec] Gazette (4
September 1833): “[I]f the creditor knew he could not punish by imprisonment, he would not
allow debts to be contracted, or, if contracted, their payment to be long delayed.”
360n the question of registry offices, see E. Kolish, “Le Conseil l6gislatif et les bureaux
37See the amendments to one of the bills on la cession de biens (entitled “An Act to Remove
All Doubts with respect to the Benefit of the Cession of Property, (Cession de Biens) in Certain
cases therein-mentioned”) in Journals of the Legislative Council of the Province of Lower-
Canada at 124 (16 March 1826); the petition of the merchants of Quebec in Journals of the
House of Assembly of the Province of Lower-Canada at 188 (22 December 1828); the speech
by Thomas Lee in the Star and Commercial Advertiser (17 December 1828); the testimony of
William Patton in Appendix to the Journals of the House ofAssembly of the Province of Lower-
Canada, Minutes of Evidence (24 December 1831).

d’enregistrement (1836)” (1981) 35 Rev. d’hist. de l’Am6rique franqaise 217.

REVUE DE DROIT DE McGILL

[Vol. 32

Another reason for the commercial milieu’s resistance to reform was
probably the conviction on the part of merchants and traders that the ex-
isting state of the law was relatively adequate, and that any changes might
well eliminate their privileged use of imprisonment without offering them
any particular new benefits. However, towards the end of the 1820’s, cir-
cumstances began to change. An international economic down-swing in 1825
had brought financial problems to quite a few merchants, and recourse to
deeds of assignment was proving ineffective. At a time when creditors seem
to have become less satisfied with traditional means of debt recovery, the
Assembly moved beyond its earlier proposals for restoring cession de biens,
and proposed more innovative and threatening changes: abolishing im-
prisonment for non-commercial debtors and making discharge an automatic
consequence of cession.

The Assembly’s position on imprisonment on final process of non-
commercial debtors did not augur well for the partisans of a broad right to
imprison:

[T]he imprisonment, by execution, of a debtor not being a Merchant or Trader,
for Goods, Wares, and Merchandize by them sold, is contrary to the Common
Law of the Country, and to the rules of Justice, useless to commerce and
extremely injurious to the other branches of Industry … .38

This was a clear attempt to return to the principles of French law, and to
deprive merchants and traders of the privileged position granted them by
the Ordonnance of 1777. Commercial opposition to the bill was strong. A
spokesman for the merchants accused the Assembly members (who were
mostly professionals) of being motivated by class interests. 39 The Montreal
Committee of Trade organized a petition against the bill, warning the As-
sembly that they deemed “any alteration in the existing laws touching Im-
prisonment for Debt, not only unadvisable but fraught with danger and
injustice to commercial men” unless such a change was a part of more
general legislation on bankruptcy and insolvency.40

In the worsening economic context of the early 1830’s, concern about
potentially disadvantageous piece-meal legislative tinkering pushed the mer-
chants and traders of the province from a simple defense of the old law into
a demand for a commission of inquiry to lay the groundwork for a general
reform covering bankruptcy and insolvency alike. 41 Their petitions, added

38Journals of the House of Assembly of the Province of Lower-Canada at 120 (9 December

1828).

39See Star and Commercial Advertiser (17 December 1828).
40Petition of the Committee of Trade of Montreal in Journals of the House of Assembly of
41See, e.g., the petition published in the [Montreal] Gazette (2 April 1833), signed by the

the Province of Lower-Canada at 160 (17 December 1828).

members of the Committee of Trade and 308 other merchants.

1987]

IMPRISONMENT FOR DEBT

to those of ordinary concerned citizens and of debtors imprisoned in the
gaols of Montreal and Quebec city,42 kept the related questions of bankruptcy
laws and imprisonment for debt before the legislature, so that several bills
dealing with the problem were debated every year from 1830 through 1835.
Most of these bills were lost on their way through the legislative mill, with
especially the more general bills falling victim to partisan conflict over the
choice of the best “national” legal model. 43 The stalemate on bankruptcy
was finally broken by the Special Council during the inter-regnum of non-
parliamentary government after the Rebellions of 1837-1838 and prior to
union with Upper Canada. The new bankruptcy law of 183944 did not,
however, resolve the broader issues of insolvency and imprisonment for
debt, confining itself to bankruptcy procedures (including discharge) for
merchants and traders only, modelled on English bankruptcy legislation.

However, in spite of the obstacles posed by the clash of economic,
partisan and nationalist interests to a general reform, the Assembly and the
Legislative Council had been able to agree on various less extensive meas-
ures touching creditor/debtor relations. Pro-creditor and pro-debtor bills
were passed in roughly equal numbers, the former generally extending pow-
ers of seizure and arrest against absent and fraudulent debtors, the latter
gradually reducing the creditor’s power to imprison.45 Between 1825 and
42Petitions from prisoners, individually or as a group, were presented to the Assembly reg-
ularly from 1825 on: see Journals of the House of Assembly of the Province of Lower-Canada
at 126-27 (5 February 1825); Journals of the House ofAssembly ofthe Province of Lower-Canada
at 27 (31 January 1827); Journals of the House of Assembly of the Province of Lower-Canada
at 130-31 and 159 (12 December 1828); Journals of the House of Assembly of the Province of
Lower-Canada at 141-43 (8 February 1830); Journals of the House of Assembly of the Province
of Lower-Canada at 110 (29 November 1831); Journals ofthe House ofAssembly of the Province
of Lower-Canada at 263 (2 January 1833); Journals of the House of Assembly of the Province
of Lower-Canada at 176 (1 February 1834). Only one petition was found from the general
population (from the inhabitants of William Henry): see Journals of the House of Assembly of
the Province of Lower-Canada at 236 (1 March 1830).
43For details on bills and legislative conflict see “L’introduction de la faillite”, supra, note 1
44An Ordinance Concerning Bankrupts, and the Administration and Distribution of their
45Pro-creditor laws: An Act to Facilitate the Proceedings Against the Estate and Effects of
Debtors, in Certain Cases, S.L.C. 1824, 4 Geo. 4, c. 13; An Act to Facilitate the Proceedings of
Law in Certain Cases therein Mentioned, Relating to Writs of Capias and Attachment, S.L.C.
1827, 7 Geo. 4, c. 8; An Act to Prevent Fraudulent Debtors Evading their Creditors in Certain
Parts of this Province, S.L.C. 1829, 9 Geo. 4, c. 27; An Act to Facilitate the Proceedings against
the Estates and Effects of Debtors, in Certain Cases, S.L.C. 1829, 9 Geo. 4, c. 28; An Act Further
to Suspend Certain Parts of an Act or Ordinance therein Mentioned, and to Consolidate and
Further to Continue for a Limited Time the Provisions of Two Other Acts, therein Mentioned
for More Effectually Ascertaining the Damages on Protested Bills of Exchange, and for Deter-
mining Disputes Relating thereto, and for Other Purposes, S.L.C. 1833, 3 Will. 4, c. 14; An Act
to Prevent Debtors from Wasting or Diminishing the Value of their Immoveable Property under
Seizure, to the Injury of their Creditors, S.L.C. 1836, 6 Will. 4, c. 9.

Estates and Effects, P.O.L.C. 1839 (3d Session, Special Council), 2 Vict., c. 9.

at 226-33; Changement, supra, note 1 at 519-33, 624-38.

McGILL LAW JOURNAL

[Vol. 32

1835, the legislature increased the basic list of goods exempt from seizure,
facilitated bail for debtors arrested by virtue of capias ad respondendum,
exempted debtors of over seventy years of age from imprisonment on final
process, and passed several temporary relief laws granting debtors on final
process freedom within the city (and later, within the judicial district) upon
their finding special bail, due only in the case of their leaving the province
prior to final payment of their debt.46

At the time of the outbreak of the rebellions, therefore, only those
unfortunates whose creditors were paying the weekly alimentary pension
and who could find no one to stand bail for them were likely to spend any
extended time in prison. It was to relieve this poorest and most vulnerable
category of debtors47 that the legislature finally passed an act to grant im-
prisoned debtors freedom on their giving up their property for the benefit
of their creditors; and this act was generally considered to have abolished
imprisonment for debt, even though imprisonment was still applicable to
certain types of debtors, as it had been in the Ordonnance of 1667 and would
be in the Quebec Civil Code.48

II. Imprisonment for Debt Seen through the Sheriffs’ Returns

In the process of debating the question of bankruptcy, insolvency and
imprisonment for debt, the Assembly of Lower Canada requested the sheriffs
of Montreal, Quebec and Three-Rivers to supply it with returns of the
number of capias issued and of debtors who gave bail or were imprisoned,
along with details on the size of their debts and the dates on which they
were arrested and freed. These returns were published in Appendix M of

46The relevant statutes are, respectively: An Act to Continue Two Acts therein mentioned for
Preventing the Seizure of Certain Articles, S.L.C. 1833, 3 Will. 4, c. 11. (the two acts are An
Act to Exempt from Seizure in Satisfaction of Certain articles therein mentioned, S.L.C. 1831,
1 Will. 4, c. 4, and An Act to Exempt from Seizure in Satisfaction of Judgment, the Bedding
and Necessary Wearing Apparel of Debtors, S.L.C. 1829, 9 Geo. 4, c. 3.); An Act to Alter and
Amend Certain Parts of an Ordinance Made and Passed in the Twenty-Fifth Year of the Reign
of His Late Majesty King George the Third, Intitled, “An Ordinance to Regulate the Proceedings
of the Courts of Civil Judicature, and to Establish Trials by Juries, in Actions of a Commercial
Nature, and Personal Wrongs, to be Compensated in Damages, in What Relates to the Issuing
of Writs of Capias ad respondendum and to Special Bail, S.L.C. 1825, 5 Geo. 4, c. 2; An Act
to Exempt Septuagenary Persons from Imprisonment for Debts, in Certain Cases, S.L.C. 1827,
7 Geo. 4, c. 19; An Act forAffording Relief During a Limited Time, to Insolvent Debtors, S.L.C.
1827, 7 Geo. 4, c. 7; An Act to Afford Relief During a Limited Time, to Insolvent Debtors,
S.L.C. 1832, 2 Will. 4, c. 1; An Act for the More Speedy Relief of Insolvent Debtors in Certain
Cases, and for a Limited Time, S.L.C. 1835, 6 Will. 4, c. 3; An Act to Afford Relief During a
Limited Time to Insolvent Debtors, S.L.C. 1835, 6 Will. 4, c. 4.

47This was the opinion of Judge Meredith, cited by Lemieux, supra, note 1 at 54-55.
48Arts 2271-2277 C.C.L.C. as rep. An Act to amend the Civil Code, S.Q. 1897, 60 Vict., c.

50, s, 38; and also arts 781-795 C.C.P(1866) as superseded by arts 832-852 C.C.P(1897).

1987]

IMPRISONMENT FOR DEBT

the Journal of the House ofAssembly of Lower Canada in 1828, and provide
a good source of data with which to build up a realistic assessment of the
nature and extent of imprisonment for debt in the colony. The time periods
covered and the nature of data given are not the same for the three cities;
consistent comparison is therefore not always possible. The exact titles of
the various lists are given in an appendix to this paper, along with anno-
tations as to the limitations of the information given in each.

Although this paper limits itself to descriptive statistics in its analysis
of the data in the sheriffs’ returns, it is nonetheless expected that a clearer
picture of the reality of imprisonment for debt in Lower Canada will
emerge.49 Specifically, the paper examines the data on gender and ethnicity,
the numbers of debtors involved globally and over time, the relative pro-
portion of writs leading to bail or to imprisonment, the size of the debts,
the length of time spent in prison, the proportion of use of imprisonment
on mesne and on final process, and the incidence of multiple writs for a
given debtor or repeated use of the mechanism by a given creditor.

As might be expected, the data on sex show that very few women were
implicated as debtors in the process of imprisonment for debt. Out of 2 755
writs issued in Montreal from 1794 to 1828, only 25 named female debtors, 50
and only 6 women had actually been imprisoned there. In Quebec, the
involvement of women seems to have been equally minimal. This may well
explain why the Assembly never bothered to propose legislation exempting
women, as several American states did, even though such an exemption
existed in Ancien regime French law.5′

The data on the ethnicity of debtors and creditors is more surprising,
at least at first glance. Imprisonment for debt in Lower Canada appears to
have been a predominantly British phenomenon, both in terms of creditors
using the mechanism and of debtors caught up in its toils. Figures 1, 2 and
3 illustrate the distribution of ethnic groups in terms of writs issued, bail
granted, and debtors imprisoned in Montreal from 1794 to 1828. Note that
85% of writs named British defendants, while only 13% named Canadians. 52

on D Base III.

49The statistical analysis was not sophisticated; it was limited to standard functions available
501n fact, there were only 20 different women on the list, as two of them were named on
more than one writ. Gender was determined on the admittedly imperfect basis of first names.
Where only initials were indicated, it was assumed that the debtor was male.

6 at 45, 52, 62, 64, 68, 73, 77-78, 119, 138, 149, 155, 177, 224, 235, 243 and 257.

51On the question of exemptions for women in the United States, see Coleman, supra, note
52Ethnicity was determined simply by the most probable origin of the name of the debtor
or creditor, with all the potential for error that this implies. In those lists including both first
and last names, when the ethnicity of the first name appeared to differ from that of the surname,
ethnicity was assigned according to the first name. Names neither British or French in ap-
pearance were classified as “other”.

REVUE DE DROIT DE McGILL

[Vol. 32

FIGURE 1

DISTRICT OF MONTREAL

ETHNIC DISTRIBUTION OF WRITS

ANNUALLY, 1794-1828

–

–

–

–
–

220
200
180
160
140
120
–
100 –
80
–
60
40
20

–

–

–

/,9

Z British

Canadian

FIGURE 2

DISTRICT OF MONTREAL

ETHNICITY OF DEBTORS RELEASED ON BAIL

ANNUALLY, 1811-1828

1987]

IMPRISONMENT FOR DEBT

Proportions are essentially the same for bail, while they differ somewhat for
imprisonment, with a higher percentage of Canadians among the imprisoned
debtors (22% Canadian, 75% British). There does not appear to be any long-
term trend in these relationships over time.

FIGURE 3

DISTRICT OF MONTREAL

ETHNIC DISTRIBUTION OF IMPRISONMENT

ANNUALLY, 1794-1828

70 –

60

50

40

30

2010 –

British

E: Canadian

I-I Other

In Quebec city, the overall proportions are almost identical to those in
Montreal. In addition, some of the lists supplied by the the sheriff of Quebec
city also named the creditors, so that the inter- and intra-ethnic dimensions
of the phenomenon emerge. As Table 1 indicates, in the majority of cases,
creditor and debtor were from the same ethnic group, as was indeed the
case in general civil litigation in Lower Canada.53 Interestingly enough,

TABLE 1
B/B
71%
76%
69%

C/C B/C
4%
4%
6%

7%
3%
7%

C/B
12%
8%
12%

Writs
Bail
Jail55
however, in inter-ethnic cases, Canadians were more frequently the plaintiffs
than were the British (in contrast to the general situation in civil litigation).
In fact, Canadians used the threat of imprisonment more frequently against
their British debtors than against debtors of their own ethnic group. 54

53About 88% of cases were intra-ethnic in Montreal, and 71% in Quebec city: see Changement,

Totals
454
118
204

supra, note 1, app. A at 709.

54Ibid. at 709 and tables 11 and 12.
55This is based on list #11

imprisoned in Quebec. There is no data on creditors for other debtors.

(Appendix, below) and includes less than half of the debtors

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McGILL LAW JOURNAL

[Vol. 32

The predominance of intra-ethnic cases is not surprising, as Dickinson’s
study of the Pr~vot6 de Quebec has already shown that there was a marked
tendency for litigants in New France to be drawn from the same geographic
area and social group.56 Links between creditors and debtors in pre-indus-
trial North America were also still largely personal in nature, so that one
would expect relatively few cross-ethnic credit links, with the possible ex-
ception of professionals and retail merchants. This was especially so in the
countryside where there might well be no other option.

Country merchants, dealing essentially with a land-owning farming
community, were unlikely to see the threat of imprisonment as relevant to
their debt collection problems. 57 One must not forget that imprisonment
for debt was only an option for debts of over 10 due to merchants and
traders, so that it would be unavailable for small debts, which constituted
the vast bulk of the work of the circuit courts in rural areas.58 One also
suspects that the use of such a mechanism, so contrary to Canadian custom,
would have been very ill-received among the rural population, which was
overwhelmingly Canadian.

Indeed, .as Figures 1 to 3 show, Canadians do not seem to have been
as involved with the imprisonment mechanism as their demographic pres-
ence would justify. This was true even in urban areas, where they made up
over half the population for the period under examination. The reasons for
this are doubtless partly socio-economic. The British population was over-
represented, in terms of its demographic weight, both in commerce and in
artisanal activites. 59 If the main victims and users of imprisonment for debt
are to be found among small retailers and artisans, as has been suggested
for England, 60 then one would expect a greater British presence. Still, the
occupational imbalance between the two ethnic groups in Montreal and
Quebec is not large enough to account for the massive British dominance
in the sheriffs’ returns on imprisonment for debt.

56See Dickinson, supra, note 7, c. 7-8.
570n the problems of rural merchants and debt collection, see A. Greer, Peasant, Lord, and
Merchant: Rural Society in Three Quebec Parishes, 1740-1840 (Toronto: University of Toronto
Press, 1985) c. 6.
58See Changement, supra, note 1, app. A, table 3, rows marked “T” for “Tourne” (Circuit

court).

59Although they made up only 33% and 50% of the population of Quebec city and Montreal
respectively in 1831, the British made up 55% and 65% of the businessmen, and 39% and 55%
of the artisans: see R. Rudin, The Forgotten Quebecers: A History of English-Speaking Quebec,
1759-1980 (Quebec: Institut qufbfcois de recherche sur ]a culture, 1985), c. 3 at 82, citing E
Ouellet, “Structures des occupations et ethnicit6 dans les villes de Qu6bec et Montral” in
Etlements d’histoire sociale du Bas-Canada (Montr6al: Hurtubise H.M.H., 1972) 177.
60See B. Kercher, “The transformation of imprisonment for debt in England, 1828 to 1838”

(1984) 2 Australian J. Law and Society 64; Duffy, supra, note 15 at 379, table 6.5.

19871

IMPRISONMENT FOR DEBT

Different attitudes towards imprisonment for debt in the two ethnic
groups may well be of considerable importance. Possibly Canadians were
still more deeply rooted than their British fellow subjects in the informal
ties of family and social authority structures and felt less need for judicial
solutions. However, Canadians made good use of the other legal mechanisms
of debt recovery available to them, as an analysis of general civil litigation
has shown.61 It seems more likely therefore that social custom and legal
tradition, which made imprisonment for debt familiar to the British and
unfamiliar to the Canadians, go a long way in explaining the dominance of
British names in the sheriffs’ returns.

What about the overall extent of imprisonment for debt in Lower Can-
ada? Figure 4 shows the evolution of the numbers of writs issued, of debtors
released on bail, and of debtors imprisoned in Montreal, from 1794 to 1828.
The three time series coincide fairly well in their fluctuations. Note that
there are relatively few cases annually prior to the sudden peak in 1811,
and that there is an overall rise in numbers from 1815 through to 1826,
after which numbers drop to a much lower level. Without further research
in the court and prison records, it is impossible to say whether this drop
was temporary or represented a long-term trend. The highest peak was hit
in 1820, with 240 writs issued and 77 debtors imprisoned.

DISTRICT OF MONTREAL

WRITS ISSUED, BAIL, IMPRISONMENT

FIGURE 4

ANNUALLY, 1794-1828

200

150

100 –

50

50 AImprisonment

Writs

A

61About 70 of the 3 088 debt recovery cases in the samples were at the suit of Canadian

plaintiffs. For the figures, see Changement, supra, note 1, app. A at 719, tables 9 and 10.

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REVUE DE DR OIT DE McGILL

[Vol. 32

It is tempting to explain the peaks in 1811 and 1820 by the impact of the
international business cycle, although in that case one wonders why there
is no similar peak in 1825-1826. There has possibly been a tendency to
underestimate the impact of local factors on the solvency of colonial busi-
nessmen and artisans, as Robert Sweeny has illustrated in his analysis of
the Bank of Montreal’s contested promissory notes in the 1820’s. 62 Only
detailed research on a trade-by-trade and industry-by-industry basis is likely
to reveal the economic reasons for the major fluctuations in the issuing of
capias. However, another potential explanation lies in the massive flow of
British immigration following 1815. Since the risk of giving credit is greater
in a population in flux than in a smaller, close-knit community where lenders
and borrowers are well known to one another, it would not be surprising
to see the influx of British settlers reflected in an increase in the use of
imprisonment for debt. Note however that the inflow of British immigrants
continued unabated into the 1830’s, which cannot be said of the number of
capias issued.

Figures 5 and 6 illustrate the breakdown of the writs issued in terms
of the eventual result. In Montreal, slightly less than one third of the debtors
against whom writs were issued ended up in prison and about the same
proportion were released on bail, mostly without being imprisoned. Slightly
more than 40% of the cases ended in some other way: principally, one
suspects, either through immediate settlement of the debt, or through the
sheriffs inability to find the debtor. These two possibilities were certainly
of prime importance in the English experience. 63

Although the sheriff’s returns from Three-Rivers are too restricted to
constitute a significant sample, they do provide at least a suggestion of the
fate of writs leading neither to bail nor to imprisonment. Out of the 7 writs
of capias ad respondendum issued in Three-Rivers between May 1827 and
October 1828, one debtor paid immediately, one paid two days after his
arrest, one was released on bail, three could not be found and one stayed
in prison and was eventually jailed on final process. 64

62R.C.H. Sweeny, Internal Dynamics and the International Cycle: Questions of the Transition
in Montreal, 1821-1828 (Doctoral thesis in History, McGill University, 1985) [unpublished].
63See Francis, supra, note 17 at 831-32.
64See Journals of the House of Assembly of the Province of Lower-Canada, app. M (12 De-

cember 1828).

1987]

IMPRISONMENT FOR DEBT

FIGURE 5

OVERALL RESULTS OF WRITS ISSUED
DISTRICT OF MONTREAL, 1811-1828

25.3% Bail only

6.5% Jail & Bail

Q< 26.1% Jail Only 42.2% Other FIGURE 6 OVERALL RESULTS OF WRITS ISSUED DISTRICT OF QUEBEC, 1822-1828 26.0% Bail Ib 44.9% Jail 260 29.1% Other McGILL LAW JOURNAL [Vol. 32 This breakdown of the outcome of capias issued addresses directly the question of the efficacy ofimprisonment for debt as a means of debt recovery. The proportions shown in Figures 5 and 6 do not provide a direct answer to the question of how many of the credit6rs involved recovered their debts. However, if the situation in Lower Canada was similar to the English ex- perience, the most common pattern among the debtors who could be located was payment on, or shortly after, arrest. 65 Many of the debtors jailed would have obtained their release either through paying their own debt or through having it paid by family, friends, or business relations - and occasionally by religious or charitable individuals or organizations. 66 This is especially likely for those who did not remain in prison for any extended period of time. As Figures 7, 8 and 9 indicate, over a third of the debtors imprisoned RELATIVE DURATION OF IMPRISONMENT (IN DAYS) MONTREAl., 1795-1828 FIGURE 7 e P1^ 6.2% Unknown 27.6% 32-182 k P 35.4% <7 g 20.8% 8-31 6.8% 183-365 3.2% >365

65See Francis, supra, note 17 at 830-32.
66Although there was no Lower-Canadian equivalent to the Thatched House Society, there
is reason to believe that members of the Catholic clergy at least visited imprisoned debtors
and occasionally paid their debts or provided funds to’help pay for food and clothing: see a
letter signed “An Englishman” in Le Canadien (13 December 1817).

1987]

IMPRISONMENT FOR DEBT

FIGURE 8

DURATION OF IMPRISONMENT (IN DAYS)

DISTRICT OF MONTREAL, 1795-1828

1795-1806 1807-11 1812-16 1817-18 1819-20 1821-22 1823-24 1825-26 1827-28
183-365 LI] >365

l 8-31 El 32-182 [

5 Unknown

< -7 FIGURE 9 DURATION OF IMPRISONMENT (IN DAYS) DISTRICT OF QUEBEC, 1814-1828 r - - - 1814-17 1818-19 1820-21 1822-26 1827-28 El Unknown M <7 D 8-31 M 32-182 0183-365 M >365

REVUE DE DROIT DE McGILL

[Vol. 32

were released within a week, over half were released within a month, and
over three-quarters were released within six months. There does not appear
to have been any tendency for the average duration of imprisonment to rise
or fall consistently over time.67 Consequently, one could assume that a
considerable number of the creditors whose debtors were imprisoned re-
ceived payment.

From defendants released on bail, creditors would not be able to get
the speedy payment that was often their motive for resorting to writs of
capias rather than to ordinary litigation for debt.68 However, since bail in
Lower Canada (as in England) was twice the amount of the debt, defendants
released on bail would very likely still be able to pay, if not in a lump sum,
then at least gradually over time.

Overall, looking back at Figures 5 and 6, the majority of writs were
likely to be successful in obtaining payment, on the assumption that cred-
itors recovered their debts from most of the third of the debtors bailed, plus
perhaps from half of the debtors imprisoned, or from those neither bailed
nor jailed. Quite possibly more than half of the imprisoned debtors paid
up, as Clinton Francis found that in England close to 90% of debt actions
begun by arrest resulted in settlement before final judgement. 69 From the
point of view of debt recovery, imprisonment for debt in Lower Canada
appears to have been relatively effective in action, not to mention the uni-
measurable effect of its very existence as a deterrent to potential defaulters.

The question of the effectiveness of debt actions initiated through arrest
brings up the related question of the relative use of imprisonment on mesne
and on final process. The lists for Montreal, both for writs issued and for
defendants released on bail, are all cases on mesne process. Unfortunately,
separate lists of capias ad satisfaciendum issued were not supplied for Mon-
treal, and the list of imprisoned debtors does not make the distinction

67Note that average durations of imprisonment were not calculated. It is possible that a
tendency to shorter average duration might emerge if the exceptional cases of imprisonment
over a year were excluded.

68See Francis, supra, note 17 at 830-31.
69Ibid. at 831 n. 87.

1987]

IMPRISONMENT FOR DEBT

between those on mesne and on final process. For the city of Quebec, how-
ever, this distinction was made. From 1814 to 1822, only 10 out of 168
prisoners were held on final process. From 1822 to 1828 however, 75 debtors
were imprisoned on final process and 204 were on mesne process. This
would seem to suggest an increased use of arrest on final process, not only
in absolute terms but also proportionately. More research is needed to con-
firm or deny the existence and extent of such a trend.70

There was, of course, some overlap between the two types of impris-
onment, with a certain number of debtors arrested initially on mesne proc-
ess, and then again after judgment. Presumably these debtors were mostly
genuine insolvents, unable to pay their debts, although some may have been
simply unwilling to pay. However, as Lower Canadian law provided for the
seizure and sale of both real and moveable property, solvent debtors were
less likely to choose to remain in prison rather than pay their debts, expe-
cially as Lower Canada had no specific debtors’ prisons nor any equivalent
to the “Rules”. 71

The size of debts and the duration of imprisonment are important
features in evaluating the effectiveness of imprisonment for debt and the
links (if any) between the discourse concerning this legal procedure and the
reality of its operation. The duration of imprisonment was discussed briefly
above. Note that very few debtors were imprisoned for more than one year,
although these few unfortunates were generally used as examples in the
campaigns against imprisonment for debt. In Lower Canada, for instance,
the record for imprisonment was held by one Frederick Pearl, an American
held in Montreal for just over four and a half years at the behest of creditors
in Connecticut. Pearl was an assiduous writer of petitions asking for changes
in the bankruptcy and insolvency laws, and his case was discussed in debates
in the House of Assembly.72 It may well have influenced the legislature in

70Limited evidence has been uncovered that supports the interpretation of increased use of
imprisonment on final process. In his sampling of the Quebec prison records, J.-M. Fecteau
found that 37 of the 165 debtors imprisoned between 1832 and 1834 had been arrested by
virtue of capias ad satisfaciendum: see “Vers une 6tude de la crise des appareils de r6pression
au Bas-Canada: La prison de Qu6bec, 1814-1834” (Dpartement d’histoire, Universit6 du
Quebec al Montral, 1980) app. E [unpublished].
7’In the King’s Bench Prison in Southwark and the Fleet Prison in the City of London, the
area surrounding the prison for several square miles was known as the “Rules”. Debtors could
purchase the right to live in the Rules and still be legally considered to be in prison: Innes,
supra, note 15 at 256; PH. Haagen, “Eighteenth-century English Society and the Debt Law”
in S. Cohen & A. Schull, eds, Social Control and the State: Historical and Comparative Essays
(Oxford: Martin Roberson, 1983).

72See Journals of the House of Assembly of the Province of Lower-Canada at 27 (31 January

1827) and 130 (12 December 1828).

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[Vol. 32

its decision in 1827 to allow debtors on final process to go free on bail within
the city limits, provided that they submitted a full list of their property as
a safeguard against fraud.73 In any case, Pearl was one of the prisoners who
used the act to obtain their release, although that did not stop him from
continuing to beg the Assembly to enact bankruptcy legislation.

However, Pearl’s case was not truly ideal as a basis for emotionally
persuasive arguments against imprisonment for debt, for his debt, at 4700,
was also one of the largest in the lists. The most pitiful cases were those of
debtors who owed very little, especially when they were confined for long
periods of time. What was the profile of the size of debts in Lower Canada?
Figures 10 through 14 illustrate the overall number of debtors, grouped into
several intervals of debt size for Montreal and Quebec, and also show the
distribution of the size of debts over time.74

FIGURE 10

SIZE OF DEBTS (IN POUNDS)
MONTREAL, 1794-1828, WRITS

54.4% 0-49

15.4% 49-99

11.4% 100-199

10.1% 200-499 C 4.5% 500-599

tk,2.2% 1000-1999 Vk71.9% ,2000

73An Act for Affording Relief during a Limited Time, to Insolvent Debtors, S.L.C. 1827, 7

Geo. 4, c. 7.

74The intervals were modelled on those used by Duffy, supra, note 15 at 371 (table 2.1).

1987]

IMPRISONMENT FOR DEBT

FIGURE 11

SIZE OF DEBTS (IN POUNDS)
QUEBEC, 1822m1828, WRITS

r

64.5% 0-49

o

16.1% 49-99

t

8.4% 100-199

z5.9% 200499wC- 2.9% 500-999

e-2.0%

1000-1999

1&

0.2%

-12000

FIGURE 12

SIZE OF DEBTS (IN POUNDS)

MONTREAL, 1794-1828, PRISONERS

O

54.1% 0-49

15.8% 49-99

PA 11.4% 100-199

e

9.1% 200-499

f

_ 5.5%

500-999

fk

2.4%

1000-1999

f

1.7% 12000

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[Vol. 32

FIGURE 13

DISTRIBUTION OF AMOUNTS (IN POUNDS)

OWED BY IMPRISONED DEBTORS, MONTREAL

1795:18061807-11 1812-16 1817-18 1819-20 1821-22 1823-24 1825-26 1827-28

N Unknown E

0-99 Z 100-199 ED 200-499 E– :,500

FIGURE 14

MULTIPLE DEBTS

QUEBEC, 1822-1828, WRITS

1

2

>2

Cred./Debt.

D Oebt./Cred.

1987]

IMPRISONMENT FOR DEBT

Clearly, most debts were on the lower range of the scale, over half being for
amounts under 50. More than 80% of the debts were under 200, and a
liitle less than 4% were over 1000. One must bear in mind that debtors
were not imprisoned for small debts, as the minimum amount at which
imprisonment became possible was 10; however, there were a few isolated
cases when amounts were under 10, possibly cases on final process where
the debtor had been able to reduce his debt to under 10, but not to pay it
off entirely. Ten pounds represented a considerable sum of money for the
times, when a handsome wag for a highly skilled journeyman was 1 12s.
6p. current per week, or 52 a year (plus room and board),75 and the annual
stipend of the Chief Justice of the province was 1500.76

Generally, the minimum amounts owed by imprisoned debtors were
just above the 10 level, while the maximums varied greatly, from a few
hundred to several thousand pounds. As Figure 13 shows, there does not
appear to be a long-term trend towards higher or lower debt sizes.

The discrepancy between the size of the debt and the length of time
the debtor spent in prison was one of the most illogical and offensive aspects
of imprisonment for debt, and consequently a sure target for abolitionists. 77
This discrepancy is highly visible in the sheriffs’ lists. Although no statistical
analysis was carried out, the lists of prisoners for Montreal and Quebec were
sorted by size of debt and time in gaol. In all the time intervals used for
Figures 13 and 14, the results of sorting showed no visible link between
duration and the size of debts. Large, small or intermediate debts could all
equally result in short, medium or long periods of imprisonment. While An
Act for Affording Relief, during a Limited Time, to Insolvent Debtors78 al-
lowed debtors held on final process to get out of prison on bail, those who
could not raise bail (most often the completely insolvent debtors) were still
left to the mercy of their creditors. As was mentioned earlier, the plight of
this group of debtors was alleged to be the main reason for the law of 1849
more or less abolishing imprisonment on final process.

One last aspect of the Lower Canadian experience of imprisonment for
debt emerging from an analysis of the sheriffs’ returns is the relatively low
incidence of multiple debts or of recurrent use of arrest by a creditor.

7 5These amounts come from notarized hiring contracts cited in Sweeny, supra, note 62 at
139 and 154.
76See Journals of the House of Assembly of the Province of Lower-Canada, app. M, no. 16
(31 January 1825).

77See, e.g., the petition from the prisoners at Montreal Journals of the House ofAssembly of

the Province of Lower-Canada at 110 (29 November 1931).

78Supra, note 46.

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[Vol. 32

As Figure 14 shows, the majority of defendants had only one creditor,
and the majority of creditors used arrest as a means of debt recovery only
once. In Montreal, out of a total of 2 138 debtors, 81% had writs taken out
against them by a single creditors, 12.5% had two creditors, and 6.5% had
anywhere from three to eight creditors. In Quebec, the comparible propor-
tions were 80%, 11%, and 9%. As for the creditors, on whom we have data
only for Quebec City, out of a total of 454 writs, 261 plaintiffs (79%) used
this procedure only once, while 47 used it twice (14%) and 23 plaintiffs (7%)
were more regular users, with anywhere from three to seven writs issued
on their initiative. This data suggests that for most creditors, a recourse to
arrest was an exceptional event, rather than a regular part of their arsenal
of debt-collecting techniques. Why was this so? Was it less successful a
technique than might appear? Or did it suffice to use it only noce to make
the threat of imprisonment function well on other debtors, in the relatively
small communities of Montreal and Quebec prior to 1830? One can only
surmise, although it seems clear that most creditors were not regularly using
imprisonment for debt as a preferred way of collecting debts through the
courts, or as a regular way of speeding up payments from debtors whose
capacity to pay was not in doubt.

Conclusion

This analysis of the evolution of the law and of the debate on impris-
onment for debt in Lower Canada, as well as an examination of its actual
operation, suggest that it was a relatively marginal phenomenon in com-
parison with the experiences of England and the United States. It appears
marginal in terms of the numbers of debtors imprisoned over time, of the
numbers of debtors in prison compared to the overall prison population,
and of the number in prison at any given moment. Literature on impris-
onment for debt in ,England and in the United States mentions thousands
of imprisoned debtors, overcrowded debtor’s prisons, and, in England, the
dominance of debtors in the overall prison population. 79 At the time that
they submitted their returns to the Assembly, the sherriffs reported only one
debtor currently imprisoned in Three-Rivers, five in Montreal, and ten in
Quebec. In Quebec city, according to the prison records, debtors only made
up about 7% of the prison population from 1814 to 1816, 12% from 1823
to 1825, and 8% from 1823 to 1834.80 In spite of obvious differences in the
7″See Duffy, supra, note 15 at 64-70. The average debtor population of the King’s Bench in
London was 700; the total number of imprisoned debtors in England and Wales in 1818 was
approximately 8,238. In 1805, criminal committals were about as frequent as committals for
debt, although the relative proportion of criminals rose sharply thereafter, and criminals con-
sistently outnumbered debtors in prison from 1815 on. See Coleman, supra, note 6, whose
state by state discussion of the American situation makes frequent reference to high levels of
arrest and imprisonment, as well as prison crowding.

80Fecteau, supra, note 70, cites these figures from the records of the Quebec prison.

1987]

IMPRISONMENT FOR DEBT

overall size of populations concerned, the magnitude of the phenomenon
in Lower Canada seems to have been of a much lower order than in England
or the United States.

Various factors account for this effect. The relative reluctance of Ca-
nadian creditors to resort to imprisonment for debt is clearly one of these
factors. Also, the broader applicability of seizure and sale, especially against
land, as well as the fact that notarized accounts of debts and promissory
notes were automatically secured by general hypothecs doubtless account
in part for the differences between English and Lower Canadian practice.
Imprisonment for debt was less prevalent because it was less necessary or
useful. Probably the relative cost of proceedings in ordinary actions of debt
was also a factor, although there has not yet been any analysis of court costs
in Lower Canada to make comparison possible with the findings of Clinton
Francis. 81

The evolution of the law and the use of imprisonment did, however,
follow the general pattern seen in the United States and Upper Canada,
with low use in the early years of colonization and increasing use with the
expansion of commercial activites. Debate on the question of abolishing
imprisonment for debt first appeared in Lower Canada in the 1820’s. This
was a decade when such proposals were very much in the forefront in
England and in the United States, although there is little to suggest that the
movement in Lower Canada was inspired by similar movements elsewhere.
It was in fact rather a mild movement, closely linked to nationalist efforts
to bring back the old Canadian procedure of cession de biens. This is not
surprising, in view of the limited extent to which imprisonment for debt
was used for debt recovery in Lower Canada.

To a limited degree, the Lower Canadian experience sheds light on the
various interpretations advanced as to the role of imprisonment for debt.
In contrast to the English situation described by Paul Haagen in his analysis
of the English experience, 82 there is little or no likelihood that imprisonment
for debt might have played a significant role in Lower Canada as an ingre-
dient in supporting patterns of deference and dependence towards the “rul-
ing class” (as a sort of pale reflection of the criminal law). Nor does the
process appear to have been demonstrably supported by the internal eco-
nomic logic of the courts, the judicial “marketing” of a cheap and speedy
debt recovery package, such as Clinton Francis found for the English courts.

A potentially more plausible interpretation is the one which sees the
gradual movement away from imprisonment for debt towards comprehen-

81Supra, note 17.
82See Haagen, supra, note 71 at 235-38.

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REVUE DE DR OIT DE McGILL

[Vol. 32

sive bankruptcy legislation as a result of the depersonalization of credit
relations due to the growth of financial institutions in the course of
industrialization. 83

The first banks in Lower Canada appeared in the decade following the
War of 1812, and many of the members of the committee of trade that
petitioned for reforms in the law of debt leading to bankruptcy legislation
were on the boards of either the Bank of Montreal or the Quebec Bank.
The criticisms of imprisonment for debt emerged as part of a campaign for
bankruptcy legislation, and general civil imprisonment on final process was
abolished exactly one decade after a bankruptcy act was passed. If this
interpretation is valid, however, one wonders why some form of impris-
onment for debt, at the discretion of the judge rather than of the creditor,
carried on well into the twentieth century, in Quebec, Canada, the United
States and England.

In the final analysis, it would appear that imprisonment for debt ap-
peared and grew in importance over time in Lower Canada because, as was
true elsewhere, it was genuinely effective in many cases, and was perceived
by British merchants especially, at least until well into the nineteenth cen-
tury, as an important last resort in the debt collection process and by its
very existence as a support of commercial integrity. A movement for the
abolition or, more accurately, for the restriction of imprisonment for debt
emerged in a period of economic and demographic growth during which
the incidence of imprisonment rose, emphasizing the inequities of civil
imprisonment while at the same time undermining its effectiveness; and
this occurred in the context of a colony with two national legal traditions,
the older of which was hostile to general civil imprisonment.

83See for instance Coleman, supra, note 6 at 287-93; and J. Cohen, “The History of Im-
prisonment for Debt and its Relation to the Development of Discharge in Bankruptcy” (1983)
29 U. Chi. Law School Record 5.

1987]

IMPRISONMENT FOR DEBT

LIST OF THE SHERRIFS’ RETURNS ON IMPRISONMENT

FOR DEBT PRINTED IN APPENDIX M OF THE JOURNAL OF THE

APPENDIX A

HOUSE OF ASSEMBLY OF LOWER CANADA (1828)

1. << List of the Writs of Capias ad Respondendum issued out of the Court of King's Bench, for the District of Montreal, directed to the Sheriffs of the said District, between the first day of January One thousand and seven hundred and ninety four, and the twentieth day of October One thousand eight hundred and twenty eight, and the Names of the Persons againts whom such Writs have issued, and the Amounts demanded by each; made in obedience to the Order of His Excellency the Administrator of the Gouvernement. >

(2,755 entries: dates, given and family names of defendants, amounts)

2. << List of the persons arrested under and by virtue of Writs of Capias ad Respondendum, issued out of His Majesty's Court of King's Bench for the District of Montreal, and who have been admitted to Bail by the Sheriff of the said District, between the first day of January, One thousand eight hundred and eleven, and the twentieth day of October, One thousand eight hundred and twenty-eight, made in obedience to the order of His Excellency the Administrator of the Government. (682 entries: dates, given and family names of defendants, amount of bail) 3. << List of persons imprisoned for Debt in Gaol of the District of Montreal, in virtue of Writs issued out of His Majesty's Court of King's Bench for the said District, between the first day of January One thousand seven hundred and ninety four, and the twentieth day of October One thousand eight hundred and twenty eight, with the Amount demanded of each and the dates of their comittal imprisonment and discharge, made in obedience to the order of His Excellency the Administrator of the Governement. >

(878 entries: dates jailed and freed, given and family names of defendants,
amounts)

4. List of Persons who have been admited to Bail under the Act 7th Geo.
4th chap. 7th, in the District of Montreal, made in obedience to the order
of His Excellency the Administrator of the Governement. >

(4 entries: date of bail, given and family names of the defendants’ amounts)

5. List of the Persons now confined for debt in the gaol of the District of
Montreal, the amount demanded of each, made in obedience to the order
of His Excellency the Administrator of the Governement.

McGILL L4W JOURNAL

[Vol. 32

(5 entries: date commited, given and family name of defendant, nature of
writ, amount)
The above 5 lists were signed, L. Gugy, Sheriff.
6. < A Return of Writs of Capias ad Respondendum directed to the Sheriff of the District of Three-Rivers, since the 3d May 1827, (the day the present Sheriff came into office,) to the 20th October 1828. >>
(8 entries: date of writ, given and family names of plaintiffs and defendants,
dates of committal and release, amounts, remark)
7. A List of the number who have been taken into Custody on Capias ad
Respondendum for debt, and admitted to Bail or imprisoned.>

(2 enti ies: names)
8. < A Return of Writs of Capias ad Satisfaciendum, for Debts, from the third of March, One thousand eight hundred and twenty-seven, (the day the present Sheriff came into office) to the twentieth of October, One thou- sand eight hundred and twenty-eight; shewing the number and names of persons who have been confined under Writs of Capias ad Satisfaciendum, for Debt, those who have been admitted to Bail, under the provisions of the Provincial Statute, 7th Geo. IV. CaP 7. - Shewing the number and names of persons now confined in the Gaol of the District of Trhee-Rivers, with the cause of their detention, and also shewing the number of those who have received Alimentary Pensions. >
(8 entries: dates of writ, committal, and release, given and family names of
plaintiffs and defendants, amount of debt and alimentary pension, remark)
The preceeding three lists signed J.G. Ogden, Sheriff.

9. (List of the number of Writs of Capias ad Respondendum issued out of
His Majesty’s Court of King’s Bench, addressed to me between the 23d
November 1822 and 20th October 1828, inclusive.>
(454 enries: last names of plaintiffs and defendants, amount)

10.
(191 entries: first and last name of debtor, dates of arrest and release, nature
of writ, amount)

1987]

IMPRISONMENT FOR DEBT

11. < List of Cases wherein the Defendants having been arrested under Writs of Capias ad Resondendum were admitted to Bail on their Arrest, or were imprisoned between the twenty-second November One thousand eight hundred and twenty-two, and twentieth October One thousand eight hundred and twenty-eight. In the following Cases Defendants being arrested, were committed to the Common Gaol of Quebec, and afterwards released in various ways. >
(204 entries: last names of parties)
12. << In the following Cases the Defendants were arrested and being ad- mitted to Bail by me, were released without having been committed to the the common Gaol. >
(118 entries: last names of parties)
13.