Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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Editor/Trans.
First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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DEBT

I.348.1

DEBT, Imprisonment for, the right granted to a creditor to have his debtor arrested and imprisoned in order to force him to pay his debt. In another sense it is the mere act of arrest and imprisonment for debt.

I.348.2

—It is frequently supposed that the custom of imprisoning men for debt is very ancient. It is traced back, at the very least, to the law of the twelve tables which granted to the creditor an absolute right over the person and the property of his debtor. But the entirely different character of these two things, apparently similar, has not been sufficiently recognized. What the Roman law and the laws of the majority of nations of antiquity granted to the creditor was, a positive right against the person of the debtor; while modern law never accorded him more than a means of constraint, supposed necessary in certain cases to insure to him the recovery of what was due him.

I.348.3

—When slavery existed, man was considered in some respects as a thing, a transmissible value; for in becoming a slave he was liable to be bought and sold. Consequently the person of a debtor might be considered as forming a part of his property, against which the creditor might assert certain rights. It is acting on this principle, that, when the goods of a man were not sufficient to pay his debts, his person was delivered to his creditor. And this was a real taking of possession by the creditor, granted him for the payment of the debt due him; so much so that he was not only empowered to seize his debtor but also to sell him. Roman legislation on this subject was modified several times, now in a severer and now in a more lenient way; but it always remained, as far as we can see, faithful to the same principle. It is also in this sense, we think, that the laws on imprisonment for debt which were in force in France during the first centuries of the French monarchy must be interpreted.

I.348.4

—Still, nothing similar can have existed in Europe since the abolition of slavery. At the present time the creditor has no right except against the goods of his debtor; he has no right against his person. When, in certain cases, the creditor is authorized to have his debtor arrested, the object is merely to force the debtor to employ all the means possible to discharge the debt he owes. Probably imprisonment for debt as practiced in certain countries in our days, is connected by tradition with the custom of antiquity we have just mentioned, and it may be a sort of imitation of it; but it is none the less true that it essentially differs from the ancient law, both in its nature and in its object.

I.348.5

—The question is often asked whether imprisonment for debt, such as is practiced in modern times, is a good and useful measure; whether it be conformable to sound morals, and whether the true interests of society demand it; in a word, whether it should be continued. Opinion on this question has been and still is divided. It is contended, on the one hand, in favor of imprisonment for debt, that not the interest of creditors only, but the interest of commerce in general, demands it, so that credit away be strengthened by granting creditors every possible means of having the debts due them paid. On the other hand, the rights of humanity are appealed to, as well as the interest of public morality, which do not allow that a man should be arrested and imprisoned at the good pleasure of another man, nor that the liberty of the former should be sacrificed to the pecuniary interests of the latter—Unfortunately, political economy does not furnish any principle from which the absolute solution of the question can be drawn, which is more a question of morals and of fact than of political economy Political economy says merely that it is of importance to society that the payment of debts be guaranteed; that this concerns lenders less than borrowers, who would soon find all doors closed against them the moment lenders could no longer rely upon being paid. But should care for this go so far as to sacrifice men's liberty? And, on the other hand, is imprisonment for debt really as good a means to guarantee the payment of debts as is supposed? These are questions which political economy does not solve.

I.348.6

—On this latter point many facts have been alleged, and many contradictory arguments have been produced, without satisfactory results. It has been argued, on the one hand, that the mere threat of imprisonment for debt has often resulted in the debtor's discharging a debt, who without this threat would never have paid it; and this seems to be unquestionable. But it has been objected, and not without reason, that imprisonment for debt has often enabled the hardest creditor to obtain payment, to the detriment of all other creditors, because the imprisonment to which he had recourse compelled his debtor to employ his last resources to satisfy him, while it thus made it impossible for him to discharge his debts to others. Another and apparently still more forcible objection has been raised; it is that imprisonment for debt is, in fact, very rarely resorted to in really commercial matters. When a merchant, it is said, can no longer meet his engagements, he is declared a bankrupt, and he makes an assignment. In such a case, if he has been detected in fraud or bad faith, in France, for instance, he is not subjected to imprisonment for debt, but he is punished according to the bankrupt penal code. If, on the contrary, the bankruptcy is only the result of unfortunate operations, an arrangement is made which frees the debtor, or which gives him time to discharge his debts. In all cases he escapes imprisonment for debt. It is therefore only against non-commercial people that the mode of coercion should be employed. This would answer very imperfectly to the object the law has in view, viz., to render commercial relations more safe, and to favor the development of credit.

I.348.7

—In France, for instance, the question which occupies us has been solved in different ways, according to the times: but never, as it seems to us, with a perfect maturity of investigation. The convention had abolished imprisonment for debt by a decree of March 9, 1793; but it was re-introduced in the year V., by a resolution of the council of the five hundred, and confirmed soon after by the conseil des anciens. It was again abolished, in 1848, under the provisional government; but re established once more in the course of the same year, by the constituent assembly. Those who point to these contradictory solutions do not fail to say, when in favor of imprisonment for debt, that experience at once showed the evil effects of the abolition of imprisonment for debt. The fact is, that experience had been consulted neither in the case of its abolition nor in that of its restoration. In both cases enthusiasm and passion had operated as incentives to action, rather than solid motives.

I.348.8

—In our opinion the question of the legitimacy or the utility of imprisonment for debt is still an open one. Perhaps it will never be solved in a proper manner until a serious inquiry shall have proved exactly how this means has ordinarily been employed, and what have been its effects. The facts which have been gathered up to the present are not in favor of the measure. It results, in fact, from a statistical investigation in the city of Paris undertaken during the administration of M. de Chabrol, that, from 1817 to 1827, almost all the individuals detained for debt in the prison of Sainte-Pélagie, were not merchants, and, moreover, that the greater portion of them had been incarcerated for very small amounts. Parliamentary documents show a similar state of facts for the city of London. It always remains to be discovered, it is true, whether, even with regard to non-commercial persons, the preservation of imprisonment for debt is at all useful; but it will be admitted, at least, that the question is one deserving of a serious examination.

CHARLES COQUELIN.

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