Page:The New International Encyclopædia 1st ed. v. 06.djvu/45

DEBT.

For discussion of theory of public debt, consult: Adams, Public Debts (New York, 1890); Bastable, Public Finance (London, 1895); for statistics of public debts, Fenn, The Public Funds (London, 1898); Monthly Summary of Commerce and Finance of the Bureau of Statistics of the United States Treasury Department, March, 1901 (Washington). See ;  DEBTOR. In the history of this, as of almost every other branch of law, we may, if we will, trace the march of social progress in general. In primitive society the arrangements for borrowing and lending are rarely such as to enable the citizens to avail themselves with security of their mutual resources, or to assign such limits to the powers of the creditor as either the claims of humanity or his own true interests demand. On the one hand, lending is confounded with alms-giving, and the exaction of interest, and even of capital, is regarded as an act of inhumanity toward the poor. On the other hand, no sooner do the creditor's rights come to be recognized in anything like a legal sense than there seem to be no logical grounds on which any limits can be set to them. If he is entitled to exact the debt at all, he is entitled to seize the goods of the debtor; and if the debtor has no goods, he is entitled to his services. But the possession of his services implies the possession of his person, and the possession of his person implies the possession of his life. Moreover, from the exaggerated notions of the domestic ties which usually prevail in early times, the person of the individual, where that individual is the father of a family, brings along with it that of his wife, his children, and his slaves. The creditor thus becomes the absolute master of the life and liberty of his debtor, and of all those who are dependent upon him. The arrangements of the Mosaic law are an illustration of the manner in which, in the ruder forms of society, the laws of debt thus combine a degree of lenity with a degree of severity which are equally alien to modern views. In this as in many other respects they are typical of the state of society to which they belong, rather than a system peculiar to the Jews. If an Israelite became poor, it was a duty to lend to

him, and no interest was to be exacted either in money or in produce. If he was a foreigner, the case was different, and the taking of interest was legal (Ex. xxii. 25: Deut. xxiii. 19, 20; Lev. xxv. 35-38). When the Sabbatical year arrived—i.e. at the end of every seven years—there was a general remission of debts as between Israelite and Israelite; and the near approach of the year of remission was not to be recognized as an apology for declining to lend to an indigent brother (Deut. xv. 1-11). Pledges, it is true, might be taken, but even here the same humane principles prevailed. The upper millstone was sacred, for to take it would be to deprive the debtor of the means of subsistence. If raiment was the pledge, it must be returned before nightfall, when it might be required for a covering; and the widow's garment could not be taken in pledge (Ex. xxii. 26, 27). In strange contrast to this is the provision (Lev. xxv. 39) that a poor Israelite may be sold to one possessed of substance, even when modified by the special provision that he shall serve as a hired servant, not as a bond servant, and shall be set at liberty when the year of jubilee arrives. Children were often given in pledge (Job xxiv. 9), and ultimately into slavery, in payment of debt (II. Kings iv. 1). In Matthew xviii. Christ refers to the custom of selling the debtor, his wife and children, and all that he had, in payment, rather as a general custom of all nations than as one peculiar to the Jews—the ‘certain king’ being a typical instance of a man of substance.

Both in Greece and in Rome the creditor had a claim to the person of the debtor. Previous to the time of Solon this arrangement had produced consequences at Athens closely analogous to those which afterwards led to the struggles between the patricians and plebeians at Rome; and his abolition of it forms one of Solon's many claims to the character of an enlightened legislator. By the Twelve Tables it was enacted at Rome that if the debtor admitted the debt, or had had judgment pronounced against him for it, thirty days should be allowed him for payment. At the expiration of that period he was liable to be given into the hands of his creditor, who kept him sixty days in chains, exposing him from time to time publicly, and proclaiming his debt. If no one stepped in to release him, the debtor, at the end of that time, might be sold for a slave, or put to death. If there were several creditors, the letter of the law permitted them to cut their debtor in pieces, sharing him in proportion to their claims; but Gellius tells us that no Shylock ever was found in Rome. To treat him as a slave, however, and make him work out the debt, was the common practice; and the children in his power, in accordance with the whole constitution of society at Rome, followed his condition. The Lex Pœtelia ( 326) alleviated the condition of the debtors (nexi) to the extent, at least, of preventing summary imprisonment, and relieving all debtors for the future from being put in chains. There do not seem to have been any public prisons for debtors at Rome, and each creditor, consequently, was the jailer of his own debtor. In this circumstance we probably see the reason of the prominence which was given by the plebeians to a change in the laws of debtor and creditor, on the occasion of their first secession, in 494, and subsequently during the whole course of the struggles between the two orders. 