74. Brutus
Hampshire Gazette, 5 December 1787

Since Numa has done me the honour of some animadversions, on my publication in number 56, of this paper, I should think myself wanting in respect to so sensible an antagonist, as well as in justice to myself, should I suffer his observations to pass without due acknowledgement.

He observes that he feels himself unhappy that I have mistaken his ideas in the passage I quoted, and attempted to answer.

Whether I have been so happy as to apprehend his idea or not, I shall not take upon me possitively to determine. But that the sense in which I understood the passage is far from being strained, and unnatural, if it be not sufficiently manifest already, I trust will appear so from the following remarks. The passage refered to is “That in the general opinion it is become dangerous to suffer justice to have its full operation. It must be disguised, and restrained, to prevent its ruining debtors, and crouding them in multitudes in gaol.” What he calls restraining and disguising justice, whereby it was suffered to have its full operation, I took for granted, to be the tendry act; as this is the only impediment in the way of crowding debtors into gaol. And as Numa hath not disavowed the sentiment, I presume I have so far not mistaken his ideas. The construction I put upon the passage was, “that it seems the full operation of justice, for which Numa manifests so hankering an apetite, is that by which the gaols 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 and his body crowded into jail, that justice may have its full operation.” In reply to which, Numa alledges that, “in observing that others thought it needful not to suffer the full operation, lest debtors should be ruined, &c. he was far from supposing it a necessary consequence, that he wished the events to take place.” I am sensible he says it is the general opinion that it is become dangerous to suffer justice to have its full operation, &c.—That it was the general opinion that there should be a tendry act, as an expedient to prevent the property of debtors, being taken vastly below the value of it in the payment of debts, or their bodies confined in gaol, while they are willing to turn out property of equal value for that purpose, being unable to obtain cash, is freely conceded. But would Numa have us to understand, that because a tendry act was generally supposed necessary, for the reasons above mentioned; it is therefore the general opinion, that the full operation of justice should be disguised and restrained? Could any intelligent person suppose, when he says, “that it is the general opinion, that it is become dangerous to suffer the full operation of justice to take place, but that it must be disguised and restrained (that is, by the tendry act) lest debtors be ruined,” &c. That he meant to represent it, as the general opinion, that the tendry act was a restriction and disguise of justice? or that those who were in favour of it, and judged it a wise and necessary expedient, considered it as an unjust act? Particularly, can we suppose, that he designed to represent it, as his opinion, that the General Assembly, in passing the above act, considered it in this light? Sure-to suppose this to be his meaning, is so extravagant a supposition, as hardly to consist with that good sense, of which Numa appears to be possessed: nor would it very well comport with the reverence and respect for government, of which he sometimes makes such an appearance; and for the want of which he hath seen fit to pass a censure upon me. I think it therefore sufficiently evident, that the plain, obvious sense, in which every rational person, must understand Numa, in the passage under consideration, and which is dictated by candour itself, is that in the general opinion it was necessary that there should be a tendry act; which in his opinion was a restraint upon the operation of justice. If the idea which Numa would wish to have understood, by the passage in question, is that it is the opinion of those who approve of the tendry act, and particularly of the legislature, that it is a restraint upon the operation of justice, and that it was enacted, and approved under that view; I trust he will be kind enough to make a more explicit avowal of the sentiment in some future publication. But if he chooses the other alternative, viz. that the tendry act, though considered as a just and reasonable provision, by the people in general, and General Assembly in particular, is nevertheless in his humble opinion, a restraint and disguise of justice, and calculated to obstruct the full operation of it, &c. it may doubtless be expected that in compliance with his acknowledged obligation, he will ask pardon of the public.

Numa chooses to evade giving his opinion upon the question, whether it be right to imprison debtors, that are willing, but want ability to pay their debts, by asking another question. If the sentiment of Brutus, says he, be just in the mind of the Legislature, why did they not alter the standing laws, to conform them to it, rather than suspend them? A very concise and easy mode of getting rid of questions, when a satisfactory solution might be attended with difficulty, which a person may be sensible will not be easily obviated; consistent with preconceived opinions. But then it is a little unlucky, that the question, which Numa hath prudently substituted in the place of that which he chooses to evade, hath no relation to the subject under consideration. The question in debate is, whether the law which impowers creditors to confine debtors in gaol, who are willing, but unable to pay their debts, is a just law?—Instead of which he inquires what is the opinion of the legislature in this matter? And with an air of triumph, and as what he seems to suppose, a sufficient confutation of my opinion, gravely asks, if the opinion of Brutus be just in the mind of the Legislature, why did they not alter the standing laws, to conform them to it, rather than suspend them? But does Numa need to be informed, that the legislature are liable to err? or are not infallible? And consequently whether a law be right and just in itself, and whether it be so in the mind of the legislature, are very different and distinct questions. Is it not sufficiently obvious to the weakest capacity, that it being once admitted as a principle, that the judgment of the legislature, concerning the equity or iniquity of a law, is the criterion whereby we are to determine whether it be just or unjust, would effectually supersede all enquiry with regard to the justice or injustice of any law whatsoever: For the very existence of a law, is a sufficient indication, that the legislature considered it as just; which upon the principle Numa hath advanced, in the above question, proves it to be so. And consequently on this principle it appears impossible an unjust law should ever exist. And thus the justice of the tendry act itself, which is so severely reprobated by Numa, is on his own principles effectually vindicated and established! The public may therefore judge, with what consistency or decency he could declare (as in his 11th number) that he shall not subscribe either to the morality, constitutionality or good policy of that act.

The sense of those passages of scripture, cited by me in my former publication, appears so obvious at first view; and the remarks which Numa hath made upon them, so evasive, that I conceive it needless to spend further time to set them in a clearer light.

Numa observes, that “the mode of selling property to the highest bidder, hath been long practised, and as long a ground of complaint;” that is, it can plead prescription. A very forceable argument in justification of any law or custom, which can plead antiquity in its vindication. An argument, however, which operates with equal force and energy, in favour of burning Protestants at the stake in Roman catholic countries! He further adds “But legislatures have not been satisfied of the evils attending it, as to abolish it by standing laws.[”] But does Numa really suppose, that the existence of a law proves it to be just? If so why doth he not subscribe to the justice of the tendry act? For the legislature have not been so sensible of the evils attending it, but that they have seen fit to enact it, and to continue it from time to time. But says he, “those who have made the complaint, have not been so happy as to devise a preferable method of answering debts, to render this unnecessary. If Brutus would do this, he would do an acceptable service to the public.” But how surprising is this observation! Is it not a most palpable beging the point in question? Hath not Numa been sufficiently informed, that an act, whereby creditors should be obliged to take the property of debtors, at its real and just value, in the payment of debts, is in the opinion of those who make the complaint, a method of answering debts, much preferable, to that of selling the debtors property to the highest bidder? Till Numa hath proved the contrary, he hath therefore no occasion to call upon Brutus to devise another.