Chapter 6 THE ANCIENTS AND THE DEBTOR

My thoughts are with the Dead, with them

I live in long-past years,

Their virtues love, their faults condemn,

Partake their hopes and fears,

And from their lessons seek and find

Instruction with a humble mind.

Robert Southey:

"My Days among the Dead are past."

I find this question of the debtor, and our modern method of imprisoning the poorer variety of the genus, in the forefront of any consideration of the problem of the law and the poor, because to my mind it is a clear and classic instance of the way in which it comes about that the law with us is a respecter of persons.

The physiological tutor will take his pupils into the laboratory and cut up a rabbit to show them where their livers ought to be, the microscopist will choose a newt to exhibit to you the circulation of the blood, and in like manner, for my purposes, the debtor seems to me to possess all the necessary legal incidents in him through which one can give an excellent object lesson on the law and the poor. There is no legal mystery about a debtor; he is a common object of our legal seashore, as ancient of lineage as the periwinkle and sometimes almost as difficult to get at. Everyone has in his life at some time or other been a debtor, though not all of us have attained to the dignity of a co-respondent, a mortgagor, a garnishee, a bankrupt or a cestui que trust.

It seems to me that to demonstrate to the man in the street the unfairness of our law of imprisonment for debt is such a feasible proposition, that I have come to regard the subject as very fitting for the citizen's kindergarten education on legal reform. Once understand the history, and the causes of the continued existence, of imprisonment for debt, and its evil effect on right action, conduct and social life, and you will find it easier to diagnose the more obscure legal diseases which are partially the outcome and partially the cause of much real distress among the poor. Carlyle tells us to "examine history for it is philosophy teaching by experience," and, if we take his advice in this matter of imprisonment for debt, we shall, I think, be bound to admit that what is going on among us day by day in the County Courts of this country is in historical fact a relic of a very ancient barbarism.

It is the more extraordinary to me that this relic should still be venerated, since history also makes it clear that teachers, prophets and law-givers of all ages have testified to their sense of the cruelty and injustice of the law which thrusts a man into prison because he does not pay his neighbour what he owes him. I propose, therefore, before I set down exactly what we are doing to-day, to trace the pedigree of our present system of dealing with debtors and show you historically and cinematographically, as it were, how the world has treated its debtors in the past and what the saner men of different ages thought about it at the time. In this way the man in the street of to-day will have the material for forming a sound judgment on the question of what we should do with the poor debtor.

And to begin with the Old Testament. Let us remember with gratitude the remarkable action of Elisha in the matter. Elisha went the length of performing a miracle to pay the bailiffs out. There are many poor widows in the mean streets of our own cities looking down the road for the Elisha of to-day who cometh not. Miracles do not happen nowadays; people don't do such things. Still it is interesting to know that there was imprisonment for debt in Elisha's day, just as there is now-for the poor and only for the poor-and it is encouraging to know what Elisha thought about it.

What happened was this:-

The County Court bailiffs of the County Court of Israel, holden at Samaria, went with a body-warrant to seize the two sons of a poor widow on behalf of a creditor of her late husband, just as they might do to-day.

Fortunately, the deceased had been a servant that did fear the Lord, and Elisha, hearing of the trouble, went down to the house, and in that simple, kindly way that the dear old prophets had of putting little troubles straight for members of their congregations and also no doubt to show the contempt he had for the proceedings of the County Court of Samaria, sent the widow out to borrow empty vessels of her neighbours. These he miraculously filled with oil of the best, and the only pity of it was that there were no more vessels to fill, for Elisha was in form that morning, and was sorry to stop. When it was over he said to the widow: "Go sell the oil and pay thy debt and live thou and thy children of the rest."

I am very fond of that story. I like to believe it really happened. I wish it could happen to-day, for there are many poor women in much the same straits as that poor widow. I have never heard the text referred to in churches and chapels, and I am not surprised. A minister who preached about it would have to explain that he could not do miracles of that kind himself, and if he were to do the next best thing and preach about the iniquity of imprisonment for debt straight from the shoulder-as I am sure Elisha would have done-the respectable credit draper, the pious grocer, and all the noble army of tally-men would get up in their pews and walk out of his church or chapel in disgust.

The days of miracles are past, but if it was worth while for a holy man like Elisha to show what he thought about imprisonment for debt, by means of a miracle, surely, after all these ages, we might have improved that particular piece of barbarism off the face of the earth.

But no. The poor are worse off now than they were then. The bailiffs come for their bodies on behalf of their creditors still. And they look down the road in vain. There is no Elisha.

And when you come to the New Testament the matter is laid down even more clearly. Matthew vi. 12 has the actual words of Our Lord's Prayer to be, "And forgive us our debts as we also have forgiven our debtors." If the forgiveness of our debtors is a condition precedent to our own forgiveness, most of us are in a parlous state. But is it too much in this Christian country of ours to suggest that, even if the highest ideals of the Master are beyond our attainment, we need not insult our belief by continuing a barbaric pagan system of cruelty which has been singled out for special disapprobation by the Word that we cannot shut our ears to?

You remember the parable of the king that took account of his servants which Matthew sets out in his eighteenth chapter. How a servant owed the king ten thousand talents and, as he had not wherewith to pay, his lord commanded him to be sold, and his wife and children, and all that he had, and payment to be made. Note that in those days the wife and children were actually sold into slavery. We do not do that: we remove the bread-winner, only, to gaol and care for his wife and children in the workhouse. It is encouraging to find this much reform after nineteen Christian centuries.

The servant, you will recollect, pleaded with the king, saying, "Have patience with me, and I will pay thee all." Debtors have not altered much since that date, and the text has a familiar ring in the ears of a County Court judge. The lord of that servant, being moved by compassion, released him and forgave him the debt. This is important to remember, for the servant being forgiven his debt was without excuse for his subsequent contemptible conduct. And, indeed, I have often found that men who have been most leniently treated in their own failures by those in a better position, are themselves most greedy in extorting the uttermost farthing from their smaller victims. Speaking generally, it is not the most desirable class of trader that makes use of the debt-collecting system of the County Court.

The servant of the parable was the meanest of curs. He "went out, and found one of his fellow-servants, which owed him a hundred pence: and he laid hold on him, and took him by the throat, saying, Pay what thou owest." Here, again, we may flatter ourselves on our superior procedure. If this had happened in Lambeth, the servant would not have been allowed to go for his fellow servant with such jubilant audacity. Nowadays everything would be done in legal decency and order. The debt being for a hundred pence, and, therefore, being within the jurisdiction of the County Court, a summons would have to be issued, fees would have to be paid to the Treasury and the Court officials, and a lot of money spent and added to the debt before imprisonment followed. Still the rough-and-ready methods of the earlier centuries were certainly cheaper, and the result was much the same. For we read that, though the fellow-servant pleaded in the same formula, "Have patience with me, and I will pay thee," the creditor of the hundred pence stood firm for his rights and cast his fellow servant into prison till he should pay his due.

And if this had been a repertory drama and not a parable, the curtain had fallen on that scene and one would have come away depressed with the abjectness of human nature and with a cold feeling that the world was a drab uncomfortable place. But the ancient dramatic stories always have a happy ending. There is more of the spirit of the old Adelphi than of the Gaiety Theatre, Manchester, about the parables. The lord hears of his servant's scurvy behaviour and, to the delight of all sane men of child-like and simple faith, the wicked servant is delivered to the tormentors till he shall pay all that was due.

I confess that my legal mind has been haunted with the thought that, the lord having forgiven the servant his debt, it was rather a strong order for him to go back on that forgiveness. Doubtless there was no consideration for the forgiveness, it was nudum pactum, or there may have been an implied contract that the servant should do unto others as he had been done by, but I rather expect the lord and his advisers only considered the justice of their act rather than its technical legal accuracy. But one thing we can rejoice in. There is the dramatic story, and no one can construe it into approval of any form of imprisonment for debt.

I know that many who do not regard the Bible as an authority will not be troubled about this testimony; probably many more who do read the Scriptures for guidance will be pained that anyone should make use of holy words to upset a system that they find so useful in the commercial weekdays of life. Moreover, some will shake their heads and remind me that "the devil can cite Scripture for his purpose." That is true enough. But it will be a very clever devil who can cite any Scripture in support of section 5 of the Debtors Act, 1869.

And I will pass away from scriptural precedents to others which, though to me they possess a less compelling sanction, will perhaps have more weight with men of the world. In the history of ancient Greece the debtor played an important part. Let me remind you what the Archon did.

The particular Archon I refer to is Solon.

Solon knew all about imprisonment for debt, and his evidence on the subject is most convincing. It is well to remember, too, that Solon was a business man-I have this from Grote, who got it, I fancy, from Plutarch. Exekestides, Solon's father, a gentleman of the purest heroic blood, "diminished his substance by prodigality," and young Solon had to go into business; in modern phrase, he "went on the road," and saw a lot of the world in Greece and Asia. I mention this because I am always told that if I knew anything of business I should understand the necessity of imprisonment for debt. Solon was emphatically a business man. Solon was also a poet, which perhaps was his best asset as a social reformer, but he was no sentimentalist if, as some say, when he was a general attacking a rebellious city he ordered the wells to be poisoned to put an end to the strife.

When Solon in a time of grand social upheaval was made Archon, he found the poorer population, including particularly the cultivating tenants, weighed down by debts and driven in large numbers out of freedom and into slavery. Let me set down the condition of things in the careful words of Grote lest I appear to exaggerate.

"All the calamitous effects were here seen of the old harsh law of debtor and creditor-once prevalent in Greece, Italy, Asia, and a large portion of the world-combined with the recognition of slavery as a legitimate status, and of the right of one man to sell himself as well as that of another man to buy him. Every debtor unable to fulfil his contract was liable to be adjudged as the slave of his creditor, until he could find means either of paying it or working it out; and not only he himself, but his minor sons and unmarried daughters and sisters also, whom the law gave him the power of selling. The poor man thus borrowed upon the security of his body (to translate literally the Greek phrase) and upon that of the persons in his family."

The words I have italicised are interesting as exactly defining the principle of all imprisonment for debt. A wage earner to-day who runs up bills with tally-men and grocers obtains credit upon the security of his body.

I have heard from the wife of a poor debtor an apt but unconscious translation of the Latin maxim, Si non habet in aere luat in corpore. Her allegation was that a tally-man had said to her husband, "If I canna 'ave yer brass I'll tek yer body." In the north country, among the more old-fashioned bailiffs and their victims, warrants of arrest are commonly known as "body warrants." No doubt the imprisonment of to-day is different in degree from the slavery of debtors in Greece five hundred years before Christ, but it is absolutely the same in principle, founded on the same idea, and worthy to be maintained or abolished by the citizens of this State for the same reasons that were found good by the citizens of Athens.

Thus it is that it is worth while finding out what Solon thought about it. I wish Solon's tract, "What the Archon Saw," had come down to us, and we could have quoted actual instances of the wickedness of imprisonment for debt in his day, but at least we know what he thought of it, and, what is really important to us, what he did. Solon had a pretty wit in titles. He called his bill Seisachtheia, or the shaking off of burdens. The relief which it afforded was complete and immediate. It cancelled at once all those contracts in which the debtor had borrowed on the security of his person or his land; it forbade all future loans or contracts in which the person of the debtor was pledged as security; it deprived the creditor in future of all power to imprison or enslave or extort work from his debtor, and confined him to an effective judgment at law, authorising the seizure of the property of the latter.

This was indeed a shaking off of burdens. For here we find, not only was imprisonment for debt abolished lock, stock and barrel, but a law enacted protecting the land of the cultivator from being seized for debt. This is akin to what in some of our colonies is called a homestead law, and I have always contended that in the interests of the State the few sticks of furniture which a poor man and his wife and children always call "the home" should be protected from arrest for debt, just as the bread-winner's body should be exempt from imprisonment. I could have got along with Solon.

And when one is told the old tale that continues to be put forward by those who wish to retain imprisonment for debt-that the workman will starve for want of necessary credit and that trade will stagnate owing to timid creditors refusing to trade-let us remember with pleasure that that was not what the Archon saw as a result of his beneficial measures. On the contrary, the testimony is overwhelming that there grew up a higher and increasing respect for the sanctity of contracts. The system of credit-giving, and especially of moneylending, assumed a more beneficial character, and "the old noxious contracts, mere snares for the liberty of a poor free man and his children"-the flat-traps of to-day-disappeared. What happened was what will happen here when we abolish this degrading system of giving credit on the sanction of body warrants. What happened in Athens was that, although there were some fraudulent debtors, the public sentiment became strongly in favour of honesty, and it is agreed that the prophecies of Solon's failure were not made good, and "that a loan of money at Athens was quite as secure as it ever was at any time or place of the ancient world." Furthermore, it is acknowledged by the better authorities that what I expect and believe will happen in the mean streets of England when imprisonment for debt is abolished, actually did happen in Athens, and, to use Grote's words, "the prohibition of all contracts on the security of the body was itself sufficient to produce a vast improvement in the character and conditions of the poorer population."

Of course, I am not putting forward "What the Archon Did" as an example to the Archons who Didn't of to-day. The theory of evolution teaches us that in two thousand years the Solon type must have improved, and that the Solon that we see in the latter-day armchair of State must be a far, far better thing than anything that obtained in Ancient Greece. Possibly, the world having no use at all for Solons, the type is extinct. Be that as it may, I am more than ever puzzled since I have studied the records of What the Archon Did. If the world had got so far in the question of imprisonment for debt five hundred years before Christ, why are we where we are now nineteen hundred years since the Master set before us the true doctrine of forgiveness of debts?

The Roman laws against the debtor upon which we have ultimately modelled our own were equally harsh and would nearly satisfy the moneylender or tally-man of any age. Upon notice, a debtor had thirty days in which to discharge his debt. If he did not do so his creditor carried him off in chains. Note, however, that he was not a slave, but his creditor had to keep him in chains for another sixty days, during which time he had to bring the debtor out on three successive market days to give his friends an opportunity of paying up and releasing him. The creditor had also to provide the debtor with a pound of bread a day. In these socialist days we take that burden off the creditor's shoulder and a generous State feeds the imprisoned debtor at the cost of the community. On the third market day, if the debtor's friends were still backward in coming forward, the debtor was killed and thrown into the Tiber, or his body was divided among his creditors, which was the only dividend they received. If there was any market for him he was sold into slavery. It seems that in the very early days of Ancient Rome each creditor had a right to carve his pound of flesh from off the debtor. Portia's point against Shylock:

... nor cut thou less, nor more,

But just a pound of flesh:...

was foreseen and provided for in the drafting of the Twelve Tables. It is enacted in the Third Table: "After the third market day the creditors may cut their several portions of his body: and any one that cuts more or less than his just share shall be guiltless." Unless, therefore, the laws of Venice amended or repealed the Twelve Tables, Shylock's case seems to have been wrongly decided. What is at least curious is that the ancient idea of debtor and creditor law embodied in those ancient statutes should be the foundation of one of the most popular plays in the English language.

Some good people have found a difficulty in understanding Shylock's outlook on life and cannot comprehend why a creditor should enjoy killing a debtor. But, after all, it is equally strange why a creditor should take pleasure in imprisoning a debtor. Yet to-day thousands of debtors go to prison because they have not means to pay their creditors. The difference between killing and imprisoning a debtor is a difference in degree only. The principle is the same. The object of the creditor is, perhaps, in the first place, to get repaid his debt; when he finds this is impossible the death or imprisonment of the debtor merely satisfies his desire for revenge. The ancient Romans were, in one way, a more practical people than ourselves, for they threw the costs of this revenge direct upon the creditor, whereas we throw it upon the taxpayer. If this particular impost were made upon me in any direct manner it would almost persuade me to be a passive resister.

I am glad, however, to remind you that in historical times at all events the Romans did not carry out the law of the Twelve Tables to its uttermost cruelty. The popular way of dealing with a debtor seems to have been to sell him into slavery and then to credit him in your ledger with the price he fetched-less the out of pockets-much as we do to-day when we issue execution against chattels. In later years the slavery of debtors was abolished and imprisonment much like our own was substituted, but the Romans never had a lawgiver as wise and powerful as Solon to get rid of imprisonment for debt altogether. And the Roman imprisonment for debt in some shape or other runs through the social systems of the Middle Ages, being harsh in one place and less cruel in another, and mitigated at one date and aggravated at another. Always we find a feeling among the more thoughtful of mankind that it is in itself a harsh and cruel system and a desire among at least a few to help the victims of it in their distress.

Fynes Moryson, who was in Rome in 1594, tells us of a practice which then prevailed in the Pope's State which might be introduced into Protestant England to-day in a lively belief that it would be in accordance with the tenets of the Christian faith and a certain hope that it would relieve many a poor wretch in misery and despair. "If," he writes, "a man be cast into prison for debt, the judges after the manner visiting frequently those prisons, finding him to be poor, will impose upon the creditor a mitigation of the debt, or time of forbearance, as they judge the equity of the case to require, or if by good witnesses they find the party so poor as really he hath not wherewith to pay his debt they will accept a release or assignment of his goods to the creditor and whether he consent or no will free the debtor's body out of prison."

At all periods of time we find the same uneasiness in the minds of rulers and governors about keeping a poor man in prison for debt when he cannot pay. The governors of English gaols will tell you that 90 per cent. of the debtors lying in prison to-day for civil debt, rates, maintenance or bastardy orders and small fines are too poor to pay. Yet here in England our legislators cannot even get as far as the Papal State of the sixteenth century in an exercise of charity to the poor and distressed. Pending the abolition of imprisonment for debt, a Home Office visitation with power to release the really unfortunate on the lines of the practical experiment which Fynes Moryson wrote home about three hundred years ago would be something to be going on with.

This, however, is a matter which is concerned with methods of reform. But, before we deal with amendments of the law, it is necessary to trace clearly and accurately the evolution of imprisonment for debt in England, in order that we may understand how and why it exists to-day as a law that can only be put in force against the poor.

* * *