Montesquieu
 

XII.21 On the cruelty of the laws toward debtors in a republic

A citi­zen has already given him­self a great super­io­rity over ano­ther citi­zen by len­ding him money which the lat­ter has bor­ro­wed only to spend, and which conse­quently he no lon­ger has. What will hap­pen in a repu­blic if the laws fur­ther increase this ser­vi­tude ?

In Athens and in Rome1 it was at first per­mit­ted to sell deb­tors who were una­ble to pay. Solon rec­ti­fied this prac­tice in Athens.2 He orde­red that no one be bodily com­mit­ted for civil debts. But the decem­virs3 did not simi­larly reform the prac­tice in Rome ; and although they had Solon’s rule before their eyes, they did not chose to fol­low it. This is not the only place in the law of the Twelve Tables where we can see the decem­virs’ inten­tion of stri­king at the spi­rit of demo­cracy.

Many times those cruel laws against deb­tors put the Roman repu­blic in dan­ger. A man cove­red with sores esca­ped from his cre­di­tor’s house and appea­red in public.4 The peo­ple were moved by this spec­ta­cle. Other citi­zens whom their cre­di­tors no lon­ger dared detain emer­ged from their dank cells. Promises were made to them which were bro­ken. The peo­ple assem­bled with­drew to the Mons Sacer : they did not obtain the abro­ga­tion of these laws, but a magis­trate to defend them. Emerging from anar­chy, Rome was on the verge of tyranny. Manlius, to court popu­la­rity, was about to free from their cre­di­tors’ hands citi­zens they had redu­ced to sla­very.5 His inten­tions were blo­cked, but the evil remai­ned. Specific laws gave deb­tors means of paying,6 and in the Roman year 428 the consuls brought forth a law7 which sup­pres­sed cre­di­tors’ right to detain deb­tors in ser­vi­tude in their hou­ses.8 A usu­rer named Papirius had tried to cor­rupt the chas­tity of a young man named Publius whom he was kee­ping in irons. The crime of Sextus gave Rome poli­ti­cal liberty ; that of Papirius gave her civil liberty.

It was that city’s des­tiny that new cri­mes confir­med the liberty which for­mer cri­mes had pro­cu­red for her. The attempt of Appius on Virginia put the peo­ple again in mind of the hor­ror against tyrants that Lucretia’s sad end had given them. Thirty-seven years after the crime of the infa­mous Papirius,9 a simi­lar crime10 led the peo­ple to with­draw onto the Janiculum,11 and the law made for the secu­rity of deb­tors took on a new force.

Since that time, cre­di­tors were rather pur­sued by deb­tors for vio­la­tions of the laws made against usury, than deb­tors pur­sued for fai­lure to pay them.

Some sold their children to pay their debts (Plutarch, Life of Solon).

Plutarch, Life of Solon.

It seems from history that this custom was established among the Romans before the law of the Twelve Tables (Livy, first decade, book II).

Dionysius of Halicarnassus, Roman Antiquities, book VI.

Plutarch, Life of Furius Camillus.

See below, ch. xxiv of the book [XXII] on laws in their relation with the use of money.

One hundred twenty years after the law of the Twelve Tables, eo anno plebi Romanæ, velut aliud initium libertatis, factum est quod necti desierunt [‘This year saw the rebirth of freedom of the plebes, with the end of slavery for debts’] (Livy, book VIII).

Bona debitoris, non corpus obnoxium esset [‘The property of debtors but not their bodies would be held liable’].

In the year of Rome 465.

That of Plautius, who tempted the modesty of Veturius (Valerius Maximus, book VI, art. ix). These two events must not be confused ; they were neither the same persons nor the same times.

See a fragment of Dionysius of Halicarnassus in Extracts of Virtues and Vices (Livy, Epitome, book XI, and Freinsheim, book XI).