OF DEBTORS.
The good faith of contracts and the security of commerce compel the
legislator to assure to creditors the persons of insolvent debtors. But
I think it important to distinguish the fraudulent from the innocent
bankrupt, the former of whom should receive the same punishment as that
assigned to false coiners, since it is no greater crime to falsify a
piece of coined money, the pledge of men’s mutual obligations, than
to falsify those obligations themselves. But the innocent bankrupt—he
who, after a searching inquiry, has proved before his judges that
the wickedness or misfortune of some one else, or the inevitable
vicissitudes of human prudence, have despoiled him of his substance—for
what barbarous reason ought such an one to be thrown into prison, and
deprived of the only poor benefit that remains to him, a barren liberty,
in order to suffer the agonies of the really guilty, and, in despair at
his ruined honesty, to repent perhaps of that innocence, by which he
lived peacefully under the protection of those laws that it was not in
his power not to offend against? Laws, too, dictated by the powerful
by reason of their rapacity, and endured by the feeble by reason of
that hope, which generally glimmers in the human heart, and leads us
to believe that unfavourable contingencies are reserved for others,
favourable ones for ourselves! Men left to their natural feelings love
cruel laws, however much, as subject to them themselves, it might be for
their individual interest that they should be mitigated; because their
fear of being injured by others is greater than their desire to inflict
injuries themselves.
To return to the innocent bankrupt. Granting that his obligation should
not be extinguishable by anything short of total payment; granting that
he should not be suffered to withdraw from it without the consent of the
parties interested, nor to transfer under the dominion of other laws his
industry, which should perforce be employed, under penalties, to enable
him to satisfy his creditors in proportion to his profits; what fair
pretext, I ask, can there be, such as the security of commerce or the
sacred right of property, to justify the deprivation of his liberty? Such
a deprivation is only of use, when it is sought to discover the secrets
of a supposed innocent bankrupt by the evils of servitude, a most unusual
circumstance where a rigorous inquiry is instituted. I believe it to be a
maxim in legislation, that the amount of political inconveniences varies
directly in proportion to the injury they do the public, and inversely in
proportion to the difficulty of their proof.
It would be possible to distinguish a case of fraud from a grave fault, a
grave fault from a light one, and this again from perfect innocence; then
to affix to the first the penalties due for crimes of falsification; to
the second lesser penalties, but with the loss of personal liberty; and,
reserving for the last degree the free choice of the means of recovery,
to deprive the third degree of such liberty, whilst leaving it to a man’s
creditors. But the distinction between grave and light should be fixed by
the blind impartiality of the laws, not by the dangerous and arbitrary
wisdom of a judge. The fixings of limits are as necessary in politics as
in mathematics, equally in the measurement of the public welfare as in
the measurement of magnitudes.[68]
How easily might the farseeing legislator hinder a large part of culpable
bankruptcy, and relieve the misfortunes of the industrious and innocent!
The public and open registration of all contracts; freedom to every
citizen to consult them in well-kept documents; a public bank formed by
wisely-apportioned taxes upon prosperous commerce, and intended for the
timely relief of any unfortunate and innocent member of the company;—such
measures would have no real drawback and might produce numberless
advantages. But easy, simple, and great laws, which await but the signal
of the legislator, in order to scatter riches and strength through a
nation—laws which would be celebrated from generation to generation in
hymns of gratitude—are either the least thought of or the least desired
of all. An uneasy and petty spirit, the timid prudence of the present
moment, and a circumspect stiffness against innovations, master the
feelings of those who govern the complex actions of mankind.