Front Page Titles (by Subject) SECTION VIII.: ADVOCATES FOR THE ABOLITION OF IMPRISONMENT FOR DEBT—THEIR ERRORS. - The Works of Jeremy Bentham, vol. 6
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SECTION VIII.: ADVOCATES FOR THE ABOLITION OF IMPRISONMENT FOR DEBT—THEIR ERRORS. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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ADVOCATES FOR THE ABOLITION OF IMPRISONMENT FOR DEBT—THEIR ERRORS.
So completely is the idea of right confounded with the idea of judges’ will in the mind of an English lawyer—so completely is the difference between right and wrong understood by him to be dependent upon that will, that when a practice, howsoever established, happens by whatsoever cause to have been brought under his displeasure,—no notion can he form to himself of any other mode of combating it, than by insisting that it is illegal:—in other words, that it is not established.
Humanity is a virtue which in England, for at least several generations past, has in no class of men been altogether wanting—not even among lawyers.
Among lawyers, accordingly, and in more instances than one, there have been found those, who under the impulse of this motive have raised their voices against this abuse. They have argued against it;—they have complained of it;—they have filled volumes with their complaints. They have argued against it,—but how? By showing the mischievousness, the impolicy of it? Something more or less to this effect:—but so long as the legality of it remained unquestioned, they felt what they could not but feel, how unimpressive would be all arguments drawn from such contemned and neglected sources. Yes, it was illegal. Imprisonment for debt illegal? Then what else is there that is legal? If in this case, practice of justice—practice persisted in century after century, does not make law, in what other instance does it make law? If by its mischievousness the practice of English judges be rendered illegal, in what quarter of the whole field of law will any legal practice be to be found?
Illegal? No: the great grievance is—not that it is illegal, but that it is legal:—not that at the hands of the authors of the mischief a remedy may be hoped for, but that it is hopeless.
Strenuous and persevering has been the contest in this quarter of the field of legislation. Parties have formed themselves upon the ground:—the debtor has had his champion, the creditors have had theirs,—each has chosen his watchword, each has chosen his virtue. Humanity, in her soft colours, decks the breastplate of the debtor’s champion: Justice, in her grave and sombre tints, that of the champion of the injured creditors. In the eye of the man of humanity, all virtue is on the debtor’s side—on the creditor’s, nothing but vice. The man of humanity has neither eyes, nor ears, nor feeling, for anything but the oppression exercised by obdurate creditors, and the miseries endured by naked and famished debtors:—the man of justice has none but for the frauds and prodigality of dishonest debtors, and the depredations committed upon the property of their injured creditors.
All along, and on both sides, in the pictures drawn of vice and misery, there has been but too much truth. In the theories formed for the purpose of accounting for these disastrous phenomena, the same error has prevailed on both sides. In shutting their eyes against the only cause of these disastrous phenomena—in the successful exertion made on both sides to avoid seeing the sole authors, the sole creators, the sole preservers of all this vice and all this misery—both sides have constantly been agreed.
If misery have been produced, it is because on this ground the production of it is the object to which the exercise of power has been directed. If vice have been produced, it is because, whilst the matter of punishment has not been employed in the prevention of it, the matter of reward has, by the hand or under the eye of power, been employed or suffered to be employed in the production of it.
If the blameless debtor from whom, he having nothing, no human power could extract anything, has been consigned to useless suffering, it is because the judge got money by consigning him to it.
If the blameless debtor, in whose instance all punishment is undue, be consigned to a course of suffering more severe, because more protracted, than any which the worst of criminals would have been consigned to under the name of punishment,—it is because it would be requisite to learn, whether he were blameless or blameable, that trouble which the judges have one and all been resolved not to take.
Shall the man be let out of jail?—shall he be kept in? On this ground is the everlasting contest between the man of humanity and the man of justice. “Ah! let him out! let him out!” cries the noble sentimentalist, who gets nothing by his being kept in. “Nay, but he shall be kept in,” says the noble and learned disciplinarian—the value of whose patronage would be diminished in proportion as the population of the jail were thinned.
Seeing him where he is, “Let him out!” says the man of sentiment; for thus far does the force of his optics penetrate. Yes: true enough, if there he be, and have nothing wherewith to pay, nor have done anything for which it is fit he should be punished, the sooner he is let out the better. But do you know whether he have wherewith to pay?—do you know whether he have done that for which he ought to suffer?—and above all and before all, do you know, how and why, he came there?—by whose power, and to, not to say for, whose benefit? These are of the number of those questions which would be invidious, and which are therefore never asked. For in an assembly so polite as the first assembly in the united kingdom, and therefore in the universe, unless it be for a party purpose—a question to which, to a noble person especially, if to boot he be a learned one, it would be impossible to find an answer, and unpleasant to look for one—is of the number of those questions that ought never to be asked. Justice in low places—politeness is the first of virtues in a House of Lords.
Conceive a question of this sort bolted out from one of a coroneted head, by some eccentric tongue,—and by none but a most eccentric tongue would any such question be put; up would start some duke, and lest such impertinence should find approving hearers, move that the people whose liberties are at stake, shall under the name of strangers be driven out.
Of such universal indistinctness of vision, or rather of such blindness—the result of browbeating effrontery on the part of lawyers, and awe-struck ignorance and timidity on the part of the well-meaning among the non-lawyers—the result has been that inconsistency which pervades the whole mass of the wretched piece of legislative patchwork which has bankruptcy for its subject.
The inconsistency, though with so little fruit, has found even lawyers more than one to take notice of it.
By Severus, every bankrupt is considered as a criminal: and out comes a law to squeeze and punish him. By Clemens, every bankrupt is considered as the blameless child of misfortune: and out comes a law for his relief. In the eyes of Severus, the interest of the creditor is everything; he is at all times as spotless as he is injured: what the wicked debtor may suffer is not worth a thought. In the eyes of Clemens, every creditor is an extortioner: stone is the material of which his heart is made; if it break, where is the damage?