The Old and tJie New Debtor.
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THE OLD AND THE NEW DEBTOR. TO run in debt in these days is a subject for light comedy, the burden of many a jest. In early times it was truly a tragic situation. The Roman debtor, as everybody knows, who made default for thirty days in paying up, was handed over to his creditors in execution; and with nice particularity (meant to be humane) the Twelve Tables went on to define the exact weight of the fetters (not more than fifteen pounds!) with which the creditor might load* him. If this discipline failed, the creditor, after sixty days more, might slay or sell him, or, if there were several creditors, they might hew him in pieces among them; and the Roman law, in such a case, was not as precise as the law of Venice about a creditor getting more of the debtor's carcass than was proportioned to his debt. But this carv ing up of the debtor was an expensive luxury, only to be indulged in by a Roman Shylock. The usual and business-like thing was to sell him or keep him as a slave. In the pre-Solonian jurisprudence at Athens things were rather worse, for every debtor unable to fulfil his contract was not only liable to be adjudged as the slave of his creditor, but also his minor sons and unmar ried daughters and sisters, whom the law gave him the power of selling. The Gentoo law of India also gave the creditor power to seize and confine the debtor, his wife, chil dren, and chattels of all kinds; but it is peculiar in providing that before he pro ceeded to these " fierce extremes " he was to try various milder modes of obtaining payment. If speaking to the friends and relations of the debtor proves unsuccessful, "he shall go in person," says the Gentoo Solomon, " and importune for his money" (no novelty this), "and stay some time at the debtor's house without eating or drink ing." If this fails, " he shall carry the debtor home with him, and having seated him before men of character and reputation shall 39
there detain him. Next, a little roguery may be practised; " he shall endeavor by feigned pretences to get hold of some of his goods." After these have been exhausted ineffectually, the creditor " ramps for his money," and may exclaim with Romeo, "Away to heaven respective lenity."
The plan indicated above of staying at the debtor's house without eating or drinking is technically known in India as "doing dharna. The most ingenious form of this debt-collecting process is hiring a Brahmin to do the sitting; for if this sacred person should be starved to death in mute impor tunity before the debtor's door, curses of the most appalling description would alight on the debtor's head. It is as if an English creditor were to employ an archdeacon, or some other dignified ecclesiastic, to dun his debtor. According to the Teutonic codes, again, the insolvent debtor falls under the power of his creditor, and is subject to per sonal fetters and chastisement. Caesar, when he was in Gaul, found Orgetorix surrounded with a retinue of these enslaved debtors of his (obœratos sitos). King Alfred, in his laws, exhorts the creditor to lenity (Thorpe, I. 53). This extraordinary and uniform severity of ancient systems of law to debtors, and the extravagant powers which they lodge with creditors, is re marked by Sir H. Maine. " It often strikes the scholar and the jurist," he says, " as singularly enigmatical; " and he tries to explain it by the theory that the nexum, to take the case of the Roman debtor, was really in the nature of a conveyance and not contract, payment being artificially pro longed to give time to the debtor. Hence the debtor's default was regarded with great disfavor. This is ingenious, but too subtle The explanation is probably much simpler; partly it was indifference to suffering, and partly it was that so long as slavery and
