Oh nomen dulce libertatis! Oh jus eximium nostra civitatis! CICERO.
TO THE IDLER.
As I was passing lately under one of the gates of this city, I was struck with horrour by a rueful cry, which summoned me to remember the poor debtors.
The wisdom and justice of the English laws are, by Englishmen at least, loudly celebrated: but scarcely the most zealous admirers of our institutions can think that law wise, which, when men are capable of work, obliges them to beg; or just, which exposes the liberty of one to the passions of another.
The prosperity of a people is proportionate to the number of hands and minds usefully employed. To the community, sedition is a fever, corruption is a gangrene, and idleness an atrophy. Whatever body, and whatever society, wastes more than it acquires, must gradually decay; and every being that continues to be fed, and ceases to labour, takes away something from the publick stock.
The confinement, therefore, of any man in the sloth and darkness of a prison, is a loss to the nation, and no gain to the creditor. For of the multitudes who are pining in those cells of misery, a very small part is suspected of any fraudulent act by which they retain what belongs to others. The rest are imprisoned by the wantonness of pride, the malignity of revenge, or the acrimony of disappointed expectation.
If those, who thus rigorously exercise the power which the law has put into their hands, be asked, why they continue to imprison those whom they know to be unable to pay them; one will answer, that his debtor once lived better than himself; another, that his wife looked above her neighbours, and his children went in silk clothes to the dancing-school; and another, that he pretended to be a joker and a wit. Some will reply, that if they were in debt, they should meet with the same treatment; some, that they owe no more than they can pay, and need therefore give no account of their actions. Some will confess their resolution, that their debtors shall rot in jail; and some will discover, that they hope, by cruelty, to wring the payment from their friends.
The end of all civil regulations is to secure private happiness from private malignity; to keep individuals from the power of one another; but this end is apparently neglected, when a man, irritated with loss, is allowed to be the judge of his own cause, and to assign the punishment of his own pain; when the distinction between guilt and happiness, between casualty and design, is intrusted to eyes blind with interest, to understandings depraved by resentment.
Since poverty is punished among us as a crime, it ought at least to be treated with the same lenity as other crimes; the offender ought not to languish at the will of him whom he has offended, but to be allowed some appeal to the justice of his country. There can be no reason why any debtor should be imprisoned, but that he may be compelled to payment; and a term should therefore be fixed, in which the creditor should exhibit his accusation of concealed property. If such property can be discovered, let it be given to the creditor; if the charge is not offered, or cannot be proved, let the prisoner be dismissed.
Those who made the laws have apparently supposed, that every deficiency of payment is the crime of the debtor. But the truth is, that the creditor always shares the act, and often more than shares the guilt, of improper trust. It seldom happens that any man imprisons another but for debts which he suffered to be contracted in hope of advantage to himself, and for bargains in which he proportioned his profit to his own opinion of the hazard; and there is no reason why one should punish the other for a contract in which both concurred.
Many of the inhabitants of prisons may justly complain of harder treatment. He that once owes more than he can pay, is often obliged to bribe his creditor to patience, by increasing his debt. Worse and worse commodities, at a higher and higher price, are forced upon him; he is impoverished by compulsive traffick, and at last overwhelmed, in the common receptacles of misery, by debts, which, without his own consent, were accumulated on his head. To the relief of this distress, no other objection can be made, but that by an easy dissolution of debts fraud will be left without punishment, and imprudence without awe; and that when insolvency should be no longer punishable, credit will cease.
The motive to credit is the hope of advantage. Commerce can never be at a stop, while one man wants what another can supply; and credit will never be denied, while it is likely to be repaid with profit. He that trusts one whom he designs to sue, is criminal by the act of trust: the cessation of such insidious traffick is to be desired, and no reason can be given why a change of the law should impair any other.
We see nation trade with nation, where no payment can be compelled. Mutual convenience produces mutual confidence; and the merchants continue to satisfy the demands of each other, though they have nothing to dread but the loss of trade.
It is vain to continue an institution, which experience shows to be ineffectual. We have now imprisoned one generation of debtors after another, but we do not find that their numbers lessen. We have now learned that rashness and imprudence will not be deterred from taking credit; let us try whether fraud and avarice may be more easily restrained from giving it.
I am, Sir, &c.