17. Brutus
Hampshire Gazette, 26 September 1787

So I returned and considered the oppression that was done under the sun; and behold the tears of such as were oppressed, and they had no comforter: and on the side of their oppression there was power; but they had no comforter.

The royal Preacher.

Mr. PRINTER, With painful sensibility I have long observed in the generality of the publications on political subjects which have appeared in your paper; and especially those which seem to have been the production of the greatest learning and ability. The grand burden of complaint, is the supposed too great lenity and indulgence which the law hath, in some instances, afforded to the poorer and more indigent part of the community; or such as labour under the infelicity to be in debt. The class of debtors seem to be considered indiscriminately as a vile and worthless part of the species, and as unworthy of the countenance or protection of the laws, and ranked with the most unprincipled and abandoned of the human race. Hence in characterising the late insurgents against the government, it has been frequent to describe them as men of no principle or of desperate fortunes, as the phrase is; as if all men who are in debt, by whatever means they were reduced to such an unhappy situation, were to be, ipso facto, considered as men void of honesty, enemies to good government, and stigmatised as persons of the most infamous character; and instead of pity and commiseration under their misfortunes, deserving of nothing but to be loaded with insult and reproach: though it is a notorious fact that multitudes of these unhappy sufferers were involved in their present difficulties by public and private fraud, or violence, practised under the sanction of law, or by purely providential and unavoidable misfortunes, Hence the tender act, so called, is considered as particularly obnoxious to censure on account of its superabundant lenity to the wretched culprits called debtors, as it secures their property, if they have any, from being taken and sold to the highest bidder; or in other words, for one tenth part of the value; and their bodies from rotting in jail, on condition that they shall under oath exhibit all their property, both real and personal, to the choice of the debtor; and thereby put it out of his power for a debt of 50 l. to ruin an estate of 500 l. as may very supposedly be the case in many instances. And is this too mighty a boon? too liberal an indulgence? too exuberant an act of grace, to the unhappy debtor, who is willing to resign up his property to satisfy the demand of his creditor, at the real and just value? Will nothing satisfy these mild advocates for justice, but five or ten fold the value of the debt? or that the body of the debtor should be arrested and cast into prison, and thereby his innocent family be reduced to starving and distress, by being deprived of his labour and care necessary for their support, till such time as he shall be endowed with a creative or supernatural power, whereby to produce solid coin for the discharge of his debt? And that though he be a person of never so fair a character for probity and integrity, and though his present involved circumstances may be entirely owing to unavoidable misfortunes, or the fraud and injustice of others, or the violation of the public faith? For I must beg leave to suppose, that honesty and misfortune are not incompatible; or that every man who has had the unhappiness to be robbed, plundered or defrauded of his substance, either with or without the countenance of law, whereby he is reduced to difficulties and involved in debt, is not thereby proved to be a knave. And on the other hand, it is also my humble opinion, that there is such a thing as prosperous wickedness; or that men of property, that is, men of large fortunes, and men of probity and honesty, are not phrases of the same import.

A writer of a periodical paper in the Hampshire Gazette, entitled, Political and Moral Entertainment, signed NUMA, No. 6, seems to discover not a little pain on account of the temporary bar which the legislature have laid in the way, of crowding the jails with multitudes of debtors. He observes, that “In the general opinion it is become dangerous to suffer justice to have its full opperation. And that it must be disguised and restrained to prevent its ruining debtors, and crowding them in multitudes into jails.” Thus it seems that the full opperation of justice, for which Numa manifests so hankering an appetite, is that by which the jails may be crowded with ruined debtors! It does not come up to his idea of justice, that the debt should be paid in full value; but the debtor must be ruined, that justice may have its full opperation, and his body crowded into jail. That justice requires the payment of honest debts, where ability is not wanting, is what no honest man will deny. But that it requires or ever allows the imprisonment of the debtor, who is willing but wants ability to pay his debts, (however the practice may be sanctified by custom or law) is an idea I have yet to learn. I can conceive of but two cases in which justice requires or warrants the imprisonment of a debtor for debt—one is, when the debtor chooses voluntarily to surrender his body rather than his property,—the other, when there is sufficient proof that the debtor is possessed of property, whereby he might pay his debt, but secrets or withholds it with a view to defraud his creditor of his due. But to imprison a debtor, who is either destitute of property for the payment of his debts, or who, though destitute of cash and unable to procure it, yet tenders valuable property for that purpose is, I scruple not to say, repugnant to every idea of justice that deserves the name. If thou hast nothing to pay, says the wise and inspired king of Israel, why should he take away thy bed from under thee? Plainly implying that it would be unreasonable and injurious for a creditor to take away the necessaries of life from his debtor. And the debtor is supposed to have nothing wherewith to pay his debt, notwithstanding he hath a bed, and by parity of reason, other things equally necessary. And it would be injurious for a creditor to take from his debtor the necessaries of life, such as a bed, &c.—how much more so to take his body and confine it in jail, when he had nothing to pay, or was willing to pay in what he had. It is conclusive arguing from the less to the greater. This gentleman has introduced a number of texts of scripture, containing cautions against partiality; even towards the poor in matters of judgment, or in the judicial decision of controversies: such as “Thou shalt not respect the person of the poor,” and “thou shalt not countenance a poor man in his cause,” &c. If by these and other passages of holy writ, which this author hath adduced, he means to prove (as he evidently does) that it is unlawful and unjust for legislators to make such provision by law, that the property of the debtor should not be taken by the creditor in payment of debts, below the real value of it, or that the body of the debtor should not be confined in jail, either when he tenders property, being unable to obtain cash, or when destitute of either, he labours under an egregious mistake, and hath his proof yet to seek; and I should advise him not to seek it in the sacred scriptures, the unerring standard of truth and justice, lest peradventure he seek it where it is not to be found. Our Lord hath plainly taught us the unlawfulness of suing men to the law and casting them into prison for debt, when the neglect of payment proceeded not from the want of will, but ability, in the parable of the servant who took his fellow servant by the throat, who owed him an hundred pence, and cast him into prison. Upon which our Lord informs us, that the lord of that servant was wroth, and delivered him to the tormentors. Do not rich men oppress you, (says St. James) and hale you before the judgment seat? that is, sue you to the law, which is here called oppression; doubtless in cases where the debtor is willing, but wants ability to pay his debts; which is no less evidently oppression, than to punish persons for the neglect or non-performances of any other services which they were naturally unable to perform; or for the performance of which they labour under an absolute impossibility. I wish to be informed by this advocate for the full opperation of justice, whereby debtors may be ruined and the jails crowded: wherein consists the difference, in point of justice and morality, between the legislature’s enjoining it upon a man, under a fine or imprisonment, to overturn a mountain, or walk upon the water; and obliging him under the same penalty to pay a sum of money which he neither hath nor can procure? And especially if his present inability is in consequence of unavoidable misfortune, or public or private injustice?

And here it is scarce possible to pass without some animadversions, that first born of iniquity, the act which empowers the creditor, at his discretion, to confine the debtor in gaol, after he hath been admitted to the oath of insolvency, commonly called the poor man’s oath. The only reason assigned for which is, that the friends of the debtor being moved with sympathy and compassion for the sufferings of their friend, may be thereby compelled to procure his liberation by paying the debt. But what monstrous enormity doth this carry in the very front of it? In point of principle, what is it better than the more expeditious and laconic mode of presenting a pistol to my breast, to oblige me to pay a sum of money which I am under not the least obligation to pay? If I am bound in justice to pay my friends debts, why are they not demanded in a legal process? If I am not, why is such a barbarous method taken, to extort from me what justice does not require? This act appears to be big with a complication of iniquity, as it subjects the debtor to very unjust confinement and deprivation of liberty; deprives himself and family, if he hath any, of the means of livelyhood and subsistence, and the commonwealth of a member, and perhaps a very useful member of society; and as the object or end proposed, is to extort money from a person from whom it is not due, and lastly as the whole depends for justification upon a principle which would equally justify the infliction of any other pains or penalties, which the creditor should judge necessary to answer his purposes were fortune not excepted, if simple imprisonment should prove insufficient to effect it.

If any should, from the preceding observations infer that the writer is disaffected to our excellent constitution and the administration of government, he would draw a very false and injurious conclusion; for he avers upon the word of an honest man, that he is and always has been, a firm and strenuous advocate for civil order, and the regular and equal administration of law and justice: and no man detests mobs and insurrections more than he. But he freely acknowledges that he is an enemy to oppression, in whatever shape or form it appears; and that he is not ashamed to plead the cause of the poor and needy, or the weaker and more defenceless part of the community, who are so wretched as to be involved in debt, in this time of unparelled scarcity of money. In which description, he doubts not many of the most worthy characters in the country, and the most respectable and honest citizens, are included. As these are the men, who in such a state of war, confusion and anarchy, from which this country hath lately emerged, in which the most flagrant injustice might be practised under the patronage of authority, and iniquity sanctified by law, who would be most exposed to suffer from the machinations of designing men. Their honesty and integrity would naturally render them incredulous and unsuspicious of fraud and dishonesty in others.

Honest themselves, they thought the world so too:

Feared no deceit, for no deceit they knew.

Unpracticed and inexpert in the crafty and insiduous arts of fraud and knavery, they became a prey to sharpers, speculators and men of intrigue, thousands of whom have accumulated fortunes out of the public wreck and the ruins of their honest neighbours. And being thus plundered of his property, and consequently involved in debt, insult and injury must be added to their otherwise insupportable burdens; and their generous feelings must be wounded, by finding themselves stigmatised in the public papers as men void of principle, enemies to government, &c.

But the writer of these remarks is of the opinion, that thus representing persons of this description, and declaiming against any measures of government, calculated in any degree for the relief of such unhappy sufferers, hath no tendency to remove any prejudices against the government, or to augment the number of its friends.

Nor does he apprehend it good policy, or tending to quiet the minds of the people, under the pressure of their present burdens, to declaim so liberally as hath been done of late, upon the felicity and freedom the inhabitants of the land at present enjoy, in consequence of the late happy and glorious revolution. That this event is indeed wonderful and in some respects glorious, no intelligent person will pretend to deny. And the hand of Heaven is very conspicuous, and justly to be acknowledged in the accomplishment of it. And that future generations may reap the happy and salutary effects of it, is, I trust, the pious wish and hope of every benevolent mind and every friend to his country among us. And I am content that gentleman should paint, in the most lively colours and the most sublime descriptions that a poetic fancy or a visionary imagination can inspire, the future opulent, splended and utopian state of the American empire. And may Heaven grant that generations yet unborn may realize the prediction! But let us not take upon us the Quixotic task, to persuade the present generation that they are really in actual possession of this happy state, in opposition to the combined testimony of all their senses! How ridiculous a part would he act, who should undertake to persuade a man, racked with a fit of the gout, or tormented with an excruciating coroding cancer, that he was in a very easy and happy condition? and to entertain him with harangues upon the eligibleness of his present situation? Equally absurd and ridiculous is it to attempt to persuade those who have been plundered, or defrauded of their property under the sanction or connivance of law, and who hold the small remains thereof, and consequently their liberty, at the will of an insulting domineering creditor, who has accumulated a fortune by the same means by which they have been deprived of theirs; that they are in a free and happy condition, and that the evils of which they complain were merely chimerical, and the effects of a deluded imagination!

The writer of these remarks is sorry to observe, that in many of the publications on the subject of government, written by its professed friends, there seems to breathe too much of a sanguinary spirit; and that in his humble opinion, an undue and unsalutary quantity of inflammatory matter hath been thrown out, calculated to irritate and exasperate the already too much inflamed and irritated passions of a considerable part of the people, and tending to augment the fermentation which hath so unhappily subsisted among us in months past. A man celebrated for his wisdom hath told us that soft words turn away wrath: and that a soft answer breaketh the bone: but that grievous words stir up strife. If some of our brethren have been so unhappy, through desperation, under the almost insupportable weight of their burdens, and by misapplication of those doctrines respecting the nature, origin, end and design of civil government, the rights of the people, &c. which were so assiduously and zealously taught and inculcated about the beginning of the late revolution, as to be led into some excesses and unjustifiable practices against the government, in which also they might very probably suppose they did but follow the example of their betters of a recent date: will nothing atone for their errors but the severest vengeance? Is no allowance to be made for the strength of temptation, and the errors and mistakes which it was so natural for the ignorant and illiterate to imbibe from the sources abovementioned? It is recorded as important qualifications of the High Priest of our religion, that he could be touched with the feeling of our infirmities, and that he could have compassion on the ignorant and them that were out of the way. And would it not be more consonant to the character of those who profess to be his followers and disciples, to exhibit the same amiable temper, by making the most favourable indulgence for the weakness, errors & infirmities of our erring & offending brethren, than by exaggerating their crimes, inflaming their passions, insulting them in their misfortunes, & raising an incessant cry for public sacrifice & capital punishments?

The writer is free to concede, that a spirit of phrenzy and infatuation hath possessed a considerable body of this State, during the late violent and turbulent proceedings. But he begs leave to dissent from some of our State-Empyries, with regard to the proper method of cure for this disorder. The only remedy, almost which the gentlemen of the faculty prescribe, is phlebotomy, or the most violent exarotics. But it may be presumed that a proper attention is not paid to the prescriptions to the diagnostics, and radical causes of the disorder; nor to the particular constitution of the patients a difference in which all skillful physicians know requires a very different method of application. Allegory apart, it is obvious that the same severity and rigour which might be necessary and efficacious for the suppression of civil insurrections and convulsions in an absolute and monarchial government, and which by age and long establishment, had acquired a sufficient degree of firmness and energy, would have a very opposite effect, in an infant republic, in which the people have just emerged from a state of nature, anarchy, and dissolution; and in which, unwearied pains had been taken to make them sensible of their own prerogatives, as the origin and fountain of power; the creators and annihilators of their rulers; and the grand tribunal to which they are amenable for their administration, and the discharge of their trust. Doctrines however true, yet, (as is said concerning some of the writings of St. Paul) hard to be understood, and extremely liable to misconstruction by the illiterate, and which the unlearned and unstable are in great danger of wresting to their own destruction. To no form of government, does that celebrated maxim, ["]The art of governing consists in not governing too much,” apply with greater propriety, than a republic. And to no republic can it apply with more emphatical energy, than to the commonwealth of Massachusetts, in its present situation, in which the reigns of government by reason of it’s embriotic and convulsed State, are in constant danger of breaking by being strained beyond their proper tone.

The only justifiable end of civil punishments, is the health, and security of the state. Whenever therefore the punishments inflicted, exceed in severity, the degree requisite for the accomplishment, or attainment of this end they become oppressive; and consequently tend to increase the evil, which they were designed to remove, and prevent. The main body of the malcontents appear at present to be returning to their senses; and to be convinced of their error, and the folly and impolicy of their late violent, and unjustifiable measures, whereby it is manifest that the punishments already inflicted are sufficient. If therefore moderate, lenient, and conciliatory measures, should now be uniformly adopted, and pursued, we may reasonably hope, that the consequences would be happy, and prove the lengthening out of our tranquility. The probable effects of the opposite alternative are much to be deprecated, by every well-wisher to the constitution.