Of Bankrupts

________________________________________________
_ This chapter has some right to stand next to that of fools, for besides the common acceptation of late, which makes every unfortunate man a fool, I think no man so much made a fool of as a bankrupt.

If I may be allowed so much liberty with our laws, which are generally good, and above all things are tempered with mercy, lenity, and freedom, this has something in it of barbarity; it gives a loose to the malice and revenge of the creditor, as well as a power to right himself, while it leaves the debtor no way to show himself honest. It contrives all the ways possible to drive the debtor to despair, and encourages no new industry, for it makes him perfectly incapable of anything but starving.

This law, especially as it is now frequently executed, tends wholly to the destruction of the debtor, and yet very little to the advantage of the creditor.

1. The severities to the debtor are unreasonable, and, if I may so say, a little inhuman, for it not only strips him of all in a moment, but renders him for ever incapable of helping himself, or relieving his family by future industry. If he escapes from prison, which is hardly done too, if he has nothing left, he must starve or live on charity; if he goes to work no man dare pay him his wages, but he shall pay it again to the creditors; if he has any private stock left for a subsistence he can put it nowhere; every man is bound to be a thief and take it from him; if he trusts it in the hands of a friend he must receive it again as a great courtesy, for that friend is liable to account for it. I have known a poor man prosecuted by a statute to that degree that all he had left was a little money which he knew not where to hide; at last, that he might not starve, he gives it to his brother who had entertained him; the brother, after he had his money quarrels with him to get him out of his house, and when he desires him to let him have the money lent him, gives him this for answer, I cannot pay you safely, for there is a statute against you; which run the poor man to such extremities that he destroyed himself. Nothing is more frequent than for men who are reduced by miscarriage in trade to compound and set up again and get good estates; but a statute, as we call it, for ever shuts up all doors to the debtor's recovery, as if breaking were a crime so capital that he ought to be cast out of human society and exposed to extremities worse than death. And, which will further expose the fruitless severity of this law, it is easy to make it appear that all this cruelty to the debtor is so far, generally speaking, from advantaging the creditors, that it destroys the estate, consumes it in extravagant charges, and unless the debtor be consenting, seldom makes any considerable dividends. And I am bold to say there is no advantage made by the prosecuting of a statute with severity, but what might be doubly made by methods more merciful. And though I am not to prescribe to the legislators of the nation, yet by way of essay I take leave to give my opinion and my experience in the methods, consequences, and remedies of this law.

All people know, who remember anything of the times when that law was made, that the evil it was pointed at was grown very rank, and breaking to defraud creditors so much a trade, that the parliament had good reason to set up a fury to deal with it; and I am far from reflecting on the makers of that law, who, no question, saw it was necessary at that time. But as laws, though in themselves good, are more or less so, as they are more or less seasonable, squared, and adapted to the circumstances and time of the evil they are made against; so it were worth while (with submission) for the same authority to examine:

1. Whether the length of time since that act was made has not given opportunity to debtors,

(1) To evade the force of the act by ways and shifts to avoid the power of it, and secure their estates out of the reach of it.

(2) To turn the point of it against those whom it was made to relieve. Since we see frequently now that bankrupts desire statutes, and procure them to be taken out against themselves.

2. Whether the extremities of this law are not often carried on beyond the true intent and meaning of the act itself by persons who, besides being creditors, are also malicious, and gratify their private revenge by prosecuting the offender, to the ruin of his family.

If these two points are to be proved, then I am sure it will follow that this act is now a public grievance to the nation, and I doubt not but will be one time or other repealed by the same wise authority which made it.

1. Time and experience has furnished the debtors with ways and means to evade the force of this statute, and to secure their estate against the reach of it, which renders it often insignificant, and consequently, the knave against whom the law was particularly bent gets off, while he only who fails of mere necessity, and whose honest principle will not permit him to practise those methods, is exposed to the fury of this act. And as things are now ordered, nothing is more easy than for a man to order his estate so that a statute shall have no power over it, or at least but a little.

If the bankrupt be a merchant, no statute can reach his effects beyond the seas; so that he has nothing to secure but his books, and away he goes into the Friars. If a Shopkeeper, he has more difficulty: but that is made easy, for there are men and carts to be had whose trade it is, and who in one night shall remove the greatest warehouse of goods or cellar of wines in the town and carry them off into those nurseries of rogues, the Mint and Friars; and our constables and watch, who are the allowed magistrates of the night, and who shall stop a poor little lurking thief, that it may be has stole a bundle of old clothes, worth five shilling, shall let them all pass without any disturbance, and hundred honest men robbed of their estates before their faces, to the eternal infamy of the justice of the nation.

And were a man but to hear the discourse among the inhabitants of those dens of thieves, when they first swarm about a new-comer to comfort him, for they are not all hardened to a like degree at once. "Well," says the first, "come, don't be concerned, you have got a good parcel of goods away I promise you, you need not value all the world." "All! would I had done so," says another, "I'd a laughed at all my creditors." "Ay," says the young proficient in the hardened trade, "but my creditors!" "Hang the creditors!" says a third; "why, there's such a one, and such a one, they have creditors too, and they won't agree with them, and here they live like gentlemen, and care not a farthing for them. Offer your creditors half a crown in the pound, and pay it them in old debts, and if they won't take it let them alone; they'll come after you, never fear it." "Oh! but a statute," says he again. "Oh! but the devil," cries the Minter. "Why, 'tis the statutes we live by," say they; "why, if it were not for statutes, creditors would comply, and debtors would compound, and we honest fellows here of the Mint would be starved. Prithee, what need you care for a statute? A thousand statutes can't reach you here." This is the language of the country, and the new-comer soon learns to speak it; for I think I may say, without wronging any man, I have known many a man go in among them honest, that is, without ill design, but I never knew one come away so again. Then comes a graver sort among this black crew (for here, as in hell, are fiends of degrees and different magnitude), and he falls into discourse with the new-comer, and gives him more solid advice. "Look you, sir, I am concerned to see you melancholy; I am in your circumstance too, and if you'll accept of it, I'll give you the best advice I can," and so begins the grave discourse.

The man is in too much trouble not to want counsel, so he thanks him, and he goes on:- "Send a summons to your creditors, and offer them what you can propose in the pound (always reserving a good stock to begin the world again), which if they will take, you are a free man, and better than you were before; if they won't take it, you know the worst of it, you are on the better side of the hedge with them: if they will not take it, but will proceed to a statute, you have nothing to do but to oppose force with force; for the laws of nature tell you, you must not starve; and a statute is so barbarous, so unjust, so malicious a way of proceeding against a man, that I do not think any debtor obliged to consider anything but his own preservation, when once they go on with that." "For why," says the old studied wretch, "should the creditors spend your estate in the commission, and then demand the debt of you too? Do you owe anything to the commission of the statute?" "No," says he. "Why, then," says he, "I warrant their charges will come to 200 pounds out of your estate, and they must have 10s. a day for starving you and your family. I cannot see why any man should think I am bound in conscience to pay the extravagance of other men. If my creditors spend 500 pounds in getting in my estate by a statute, which I offered to surrender without it, I'll reckon that 500 pounds paid them, let them take it among them, for equity is due to a bankrupt as well as to any man, and if the laws do not give it us, we must take it."

This is too rational discourse not to please him, and he proceeds by this advice; the creditors cannot agree, but take out a statute; and the man that offered at first it may be 10s. in the pound, is kept in that cursed place till he has spent it all and can offer nothing, and then gets away beyond sea, or after a long consumption gets off by an act of relief to poor debtors, and all the charges of the statute fall among the creditors. Thus I knew a statute taken out against a shopkeeper in the country, and a considerable parcel of goods too seized, and yet the creditors, what with charges and two or three suits at law, lost their whole debts and 8s. per pound contribution money for charges, and the poor debtor, like a man under the surgeon's hand, died in the operation.

2. Another evil that time and experience has brought to light from this act is, when the debtor himself shall confederate with some particular creditor to take out a statute, and this is a masterpiece of plot and intrigue. For perhaps some creditor honestly received in the way of trade a large sum of money of the debtor for goods sold him when he was sui juris, and he by consent shall own himself a bankrupt before that time, and the statute shall reach back to bring in an honest man's estate, to help pay a rogue's debt. Or a man shall go and borrow a sum of money upon a parcel of goods, and lay them to pledge; he keeps the money, and the statute shall fetch away the goods to help forward the composition. These are tricks I can give too good an account of, having more than once suffered by the experiment. I could give a scheme, of more ways, but I think it is needless to prove the necessity of laying aside that law, which is pernicious to both debtor and creditor, and chiefly hurtful to the honest man whom it was made to preserve.

The next inquiry is, whether the extremities of this law are not often carried on beyond the true intent and meaning of the act itself, for malicious and private ends to gratify passion and revenge?

I remember the answer a person gave me, who had taken out statutes against several persons, and some his near relations, who had failed in his debt; and when I was one time dissuading him from prosecuting a man who owed me money as well as him, I used this argument with him:- "You know the man has nothing left to pay." "That's true," says he; "I know that well enough." "To what purpose, then," said I, "will you prosecute him?" "Why, revenge is sweet," said he. Now a man that will prosecute a debtor, not as a debtor, but by way of revenge, such a man is, I think, not intentionally within the benefit of our law.

In order to state the case right, there are four sorts of people to be considered in this discourse; and the true case is how to distinguish them,

1. There is the honest debtor, who fails by visible necessity, losses, sickness, decay of trade, or the like.

2. The knavish, designing, or idle, extravagant debtor, who fails because either he has run out his estate in excesses, or on purpose to cheat and abuse his creditors.

3. There is the moderate creditor, who seeks but his own, but will omit no lawful means to gain it, and yet will hear reasonable and just arguments and proposals.

4. There is the rigorous severe creditor, that values not whether the debtor be honest man or knave, able or unable, but will have his debt, whether it be to be had or no, without mercy, without compassion, full of ill language, passion, and revenge.

How to make a law to suit to all these is the case. That a necessary favour might be shown to the first, in pity and compassion to the unfortunate, in commiseration of casualty and poverty, which no man is exempt from the danger of. That a due rigour and restraint be laid upon the second, that villainy and knavery might not be encouraged by a law. That a due care be taken of the third, that men's estates may as far as can be secured to them. And due limits set to the last, that no man may have an unlimited power over his fellow-subjects, to the ruin of both life and estate.

All which I humbly conceive might be brought to pass by the following method, to which I give the title of _

Read next: A Court Of Inquiries

Read previous: A Charity-Lottery

Table of content of Essay Upon Projects


GO TO TOP OF SCREEN

Post your review
Your review will be placed after the table of content of this book