Charles Brockden Brown (1771-1810)
The Man at Home, No. XIII ¹

To be sure! Yet retire for a while: I shall not leap out of the window to escape you. I am weary of my present habitation, and should, in a few days, have put myself within your power. I have not the least objection to this visit, though, I must own, it was somewhat unexpected.

He is gone. Sheriff's officers are seldom so polite; but he knows that I cannot escape him. There is but one inlet and outlet to this room, and as my dinner is preparing, he was not disposed to baulk my appetite. This little interval may be employed in bringing my lucubrations to a close--an earlier close, by far, than I dreamt of, even so lately as this morning. Fourteen days have been spent shut up in this apartment. Many things have occurred to render memorable this voluntary imprisonment, not to myself only, but to the wide world; who, when it shall have an opportunity of perusing the memoirs of Bedloe, will deem the chance that fixed me here, to the last degree, auspicious.

I was somewhat disconcerted by the entrance of this guest. He gave me no warning of his coming, and used no ceremony. He bade me "Good morning:" I returned the salutation, but the abruptness of his introduction, and the strangeness of his countenance, not having seen him before, made me readily suspect his business. This, however, was more fully explained by the paper which he put into my hands, and which, on opening it, I found to be a "Capias ad respondendum."

So; I must now prepare to attend him to the apartment of the debtors. How strange is this procedure? A man has a claim upon me for a certain sum. I refuse to pay it, though I am able; that is, the payment is physically possible. My whole estate consists in public and bank stock. A broker will find a purchaser for these, and furnish me with the whole, or nearly the sum in which I am indebted. By the transfer of this, the obligation is removed. The sale and subsequent transfer, are both of them, not only possible, but easy. I refuse to perform it, however, and such is the consequence. By virtue of this paper, I am immured within iron gates and stone walls. There must I eat, drink, and sleep, and there must I abide in the intervals. The accommodations may not be perfectly convenient; my companions may be disagreeable; confinement may injure my health; but these are incidents of my new condition, and are unavoidable. I have chosen my alternative: I have signed, with my own hand, the decree of my imprisonment. It is, to all intents, and purposes, my voluntary act. If my state is irksome; if I see reason to repent my choice, it is by no means irrevocable. It is still in my power to discharge my debt, and to put an end, in a few hours, to my residence in a gaol.

But this conduct must be voluntary: My property cannot be taken from me. Its nature and existence may be ascertained, but there is no method of wresting it from me, but this.

It is natural to enquire with regard to the equity and efficacy of this procedure. According to the fundamental laws of property, that which is in my possession belongs to another. The public interest requires the observance of these laws and the vesting of property in him to whom it belongs. Means must be used for effecting this purpose. If these means be not efficacious, that alone is a sufficient objection to them. Something beside their efficacy, is necessary to their vindication; but nothing will suffice to justify the use of them, if they be not efficacious. The means which are here adopted is the constraint of the person of the debtor. He is to change the place of his abode. His daily walks are to be circumscribed to an area of forty feet square. He is to lodge and eat in company of those whom accident may have placed in the same condition. Such, and such only, are the means which a creditor is at liberty to use, to enforce the payment of a debt.

Are these means efficacious? It cannot be supposed that they should be universally so. There are cases, in which, no doubt, from a variety of causes, imprisonment may, to the debtor, be more eligible than payment. If the penalty were far severer; if the refractory debtor were condemned to the rack or the galleys for his contumacy, cases are conceivable in which the rack or the galleys would be chosen in preference to payment; but much more so when the penalty is mere imprisonment in its lightest and mildest form. These cases must be allowed to be few in proportion to the rigour of the penalty. The suffering which is annexed to non-payment will influence our choice in proportion to the severity of that suffering: but the conclusion must not therefore be admitted that the most rigorous penalty is the best. We are accustomed to view with indifference the imprisonment of debtors, but we should hardly endure to see them pinioned and carted to the gallows, or even reduced to a state of domestic slavery.

Are these means, lenient and transient as they are, efficacious? If they be so their lenity is advantageous. To gain our ends by means that are precisely adapted to them; that neither exceed nor fall short of the quantity of force required, is an argument of the highest wisdom. But these means, with the exceptions I have just made, must be admitted to be efficacious.

Debts are daily contracted. A sense of honour and interest will occasion the discharge of most of them. Those whose honour is a neutral or powerless principle, or whose interest, instead of exhorting them to punctuality, appears to dissuade them from it, would be negligent, if imprisonment, its inconvenience and its infamy, were not to come in aid. The dread or the endurance of these, when other motives would fail, is commonly found sufficient for the purpose.

This reasoning will be controverted by two kinds of men: those who think imprisonment too slight, and those who think it too severe a penalty. In answer to the first it may be said, that experience proves that this penalty, slight as it is, is efficacious. That the number is very inconsiderable of those whom imprisonment will not compel to pay. That higher penalties will diminish, indeed, but not absolutely annihilate this number. That greater severities, if advantageous in this respect, would be injurious in others, and that these injuries would greatly outweigh the slight additional benefit.

To those who imagine imprisonment too heavy a sentence, it may be urged that every thing which endears or dignifies human existence depends upon the sacredness of property; that government is instituted for no beneficial purpose but this; that this purpose requires not merely that I should be maintained in the possession of a thing, but likewise, that I should be restored to that possession when it is infringed. From the properties of money, and the nature of commerce or exchange, it not seldom happens, that a sum to which I have a just title, may be actually possessed by another. One of the most momentous ends of government is neglected or subverted if means be not provided for taking this sum out of his possession, and placing it in mine. Means suitable to this purpose are not merely useful to the state, they are essential to the existence of human society.

There are two ways of doing this. The ministers of law may intrude by force into the debtor's coffers, and literally take from them the sum that is owing. It has however adopted another method. Motives are set before the debtor, which induce him to open his coffers and count out the sum himself. To pay or withhold is submitted to his own choice; but his choice is influenced by annexing a penalty to his refusal. If this penalty do not influence his choice, it ought not to be denounced. Another must be chosen which will possess more influence. The penalty must be encreased till it answer the end. The dungeon, or wheel, or scaffold are not awarded against refractory debtors, merely because a lighter sentence is sufficient, and every man's experience will prove the sufficiency of a lighter sentence.

If nothing less than scaffold, dungeon, or wheel would answer this end, it ought to be employed. The charge of inhumanity or cruelty would be absurd. The penalty is terrible, but, in order to avoid it, he has only to perform an act of justice. If, rather than perform this act, he embraces the alternative, it follows that this alternative, terrible as it is in itself, and terrible to others, is not terrible to him.

Debtors may be divided into two classes; those who are able but not willing, and those who are willing but not able to pay. These remarks apply only to the first kind of debtors. In what manner shall we treat the disabled or insolvent debtor? With regard to him there is no alternative. A penalty may be annexed to his non-payment, but to elude or incur this penalty is not a manner of choice. With regard to him that state of the case is materially changed. If his imprisonment be just, it must be just for reasons widely different from those by which we justified the restraint of able, but reluctant debtors.

Imprisonment, in cases of utter inability to pay, has found few advocates among enlightened reasoners. The laws of our country have abolished, in many cases, though not in all, this species of imprisonment; yet the equity of this procedure is liable to some doubt. I wish the justice of the laws which govern us, to be, in all cases, demonstrable and clear; but I am somewhat apprehensive that, for insolvent debtors to enjoy exemption from imprisonment, is not incontestibly just.

The true principles of punishment are evident. The safety of men in a social state is liable to be infringed by the lawless selfishness of individuals. This selfishness is to be restrained, and the general safety be maintained, by the best means in our power. For this end we must annex certain consequences to such actions as are subversive of the general safety. We must denounce penalties and suffering against him that performs them.

These penalties are designed to operate in one way, to prevent the commission of such actions. To contemplate any other end; to inflict evil because evil is the suitable companion of vice; to torment criminals, because, as criminals, they deserve to be tormented, is iniquitous and absurd. This absurdity, at least in an human agent, is deducible not less from philosophical, than from religious principles. It is as readily admitted by the assertor of the doctrine of moral necessity, as by him who denies it. Our motive must be simple and unmixed; vengeance should actuate us neither wholly nor in part. The efficacy of the penalty, to hinder the commission of that against which the penalty is denounced, is the proper and sole criterion to which we are bound to conform.

With respect to murderers, their execution, and with regard to insolvent debtors, their imprisonment are parallel cases. The murderer cannot recall his act, nor the debtor pay his debt. The equity of their punishment must therefore stand upon the same ground. It is just inasmuch as it tends to prevent the destruction of life and the infringement of property: So far as it is ineffectual to this, or as it promotes any other end, it is indisputably unjust. By this standard alone must be measured both the one and the other.

All will admit the tendency of the denunciation of punishment, to deter murderers and robbers from the perpetration of their crimes. It will not be as clearly seen how the award of imprisonment tends to diminish the number of insolent debtors. And yet it is evident that, if men may become insolvent by incontrolable accidents, a shipwreck for example, or casual fire, or through the fault of others, they may likewise become insolvent through their own fault.

That a man may do what he will with his own, is a specious, but fallacious principle. The fallacy is still more glaring of the maxim which should assert a man's right to do what he will with another's. What I borrow and what I owe is not my own, but it is subject to my control. Whatever power I may rightfully possess over that which is truly my own, I cannot have the same power over that which accident has indeed placed in my possession, but which rightfully belongs to another. It is a merciful statement which admits that insolvent debtors have become such by using what is another's as if it were their own; but even from this concession it would follow that insolvent debtors are criminal since their power over the property of others is by no means the same as over their own property.

To relinquish these views, which may be accused of being too rigid and refined, it is sufficient to observe that insolvency may arise from various sources, and, that crimes, as well as follies may produce it. It is no doubt proper that distinctions should be made between fraud and negligence, between the insolvency that flows from misfortunes and that which flows from knavery. It cannot be denied that the foresight of punishment has a tendency to prevent the commission of fraud as well as of murder, and consequently to prevent fraudulent insolvency.

I feel myself disposed to enter more particularly into this topic, but my dinner has been just placed before me: When I have passed some time in a prison, I shall be more qualified to judge respecting this subject.

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Notes

[1] "The Man at Home, No. XIII" appeared in the Weekly Magazine of Original Essays,April 28, 1798.