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 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 in
getting in my estate by a statute, which I offered to surrender without
it, I’ll reckon that £500 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
_A Court of Inquiries_.
This court should consist of a select number of persons, to be chosen
yearly out of the several wards of the City by the Lord Mayor and Court
of Aldermen, and out of the several Inns of Court by the Lord Chancellor,
or Lord Keeper, for the time being, and to consist of,
A President, } To be chosen by the rest, and
named every year also.
A Secretary,
A Treasurer,
A judge of causes for the proof of debts.
Fifty-two citizens, out of every ward two; of which number to be
twelve merchants.
Two lawyers (barristers at least) out of each of the Inns of Court.
That a Commission of Inquiry into bankrupts’ estates be given to these,
confirmed and settled by Act of Parliament, with power to hear, try, and
determine causes as to proof of debts, and disputes in accounts between
debtor and creditor, without appeal.
The office for this court to be at Guildhall, where clerks should be
always attending, and a quorum of the commissioners to sit _de die in
diem_, from three to six o’clock in the afternoon.
To this court every man who finds himself pressed by his affairs, so that
he cannot carry on his business, shall apply himself as follows:—
He shall go to the secretary’s office, and give in his name, with this
short petition:—
To the Honourable the President and Commissioners of His Majesty’s
Court of Inquiries. The humble petition of A. B., of the Parish of —
in the —
Haberdasher.