The Complete English Tradesman (1839 ed.)

by Daniel Defoe

I do acknowledge, if there is an evident fraud, if he can detect the bankrupt in any wicked design, if he can prove he has effects sufficient to pay his debts, and that he only breaks with a purpose to cheat his creditors, and he conceals a part of his estate, when he seems to offer a sincere surrender; if this be the case, and it can be made appear to be so—for in such a case, too, we ought to be very sure of the fact—then, indeed, no favour is due, and really none ought to be shown.

And, therefore, it was a very righteous clause which was inflicted on the fraudulent bankrupt, in a late act of Parliament, namely, that in case he concealed his effects, and that it appeared he had, though upon his oath, not given in a full account of his estate, but willingly and knowingly concealed it, or any part of it, with design to defraud his creditors, he should be put to death as a felon: the reason and justice of which clause was this, and it was given as the reason of it when the act was passed in the House of Commons, namely, that the act was made for the relief of the debtor, as well as of the creditor, and to procure for him a deliverance on a surrender of his effects; but then it was made also for the relief of the creditor, too, that he might have as much of his debt secured to him as possible, and that he should not discharge the debtor with his estate in his pocket, suffering him to run away with his (the creditor's) money before his face.

Also it was objected, that the act, without a penalty, would be only an act to encourage perjury, and would deliver the hard-mouthed knave that could swear what he pleased, and ruin and reject the modest conscientious tradesman, that was willing and ready to give up the utmost farthing to his creditors. On this account the clause was accepted, and the act passed, which otherwise had been thrown out.

Now, when the poor insolvent has thus surrendered his all, stript himself entirely upon oath, and that oath taken on the penalty of death if it be false, there seems to be a kind of justice due to the bankrupt. He has satisfied the law, and ought to have his liberty given him as a prey, as the text calls it, Jer. xxxix. 18., that he may try the world once again, and see, if possible, to recover his disasters, and get his bread; and it is to be spoken in honour of the justice as well as humanity of that law for delivering bankrupts, that there are more tradesmen recover themselves in this age upon their second endeavours, and by setting up again after they have thus failed and been delivered, than ever were known to do so in ten times the number of years before.

To break, or turn bankrupt, before this, was like a man being taken by the Turks; he seldom recovered liberty to try his fortune again, but frequently languished under the tyranny of the commissioners of bankrupt, or in the Mint, or Friars, or rules of the Fleet, till he wasted the whole estate, and at length his life, and so his debts were all paid at once.

Nor was the case of the creditor much better—I mean as far as respected his debt, for it was very seldom that any considerable dividend was made; on the other hand, large contributions were called for before people knew whether it was likely any thing would be made of the debtor's effects or no, and oftentimes the creditor lost his whole debt, contribution-money and all; so that while the debtor was kept on the rack, as above, being held in suspense by the creditors, or by the commissioners, or both, he spent the creditor's effects, and subsisted at their expense, till, the estate being wasted, the loss fell heavy on every side, and generally most on those who were least able to bear it.

By the present state of things, this evil is indeed altered, and the ruin of the creditor's effects is better prevented; the bankrupt can no more skulk behind the door of the Mint and Rules, and prevent the commissioners' inspection; he must come forth, be examined, give in an account, and surrender himself and effects too, or fly his country, and be seen here no more; and if he does come in, he must give a full account upon oath, on the penalty of his neck.

When the effects are thus surrendered, the commissioners' proceedings are short and summary. The assignees are obliged to make dividends, and not detain the estate in their own hands, as was the case in former days, till sometimes they became bankrupts themselves, so that the creditors are sure now what is put into the hands of the assignees, shall in due time, and without the usual delay, be fairly divided. On the other hand, the poor debtor having honestly discharged his part, and no objection lying against the sincerity of the discovery, has a certificate granted him, which being allowed by the Lord Chancellor, he is a clear man, and may begin the world again, as I have said above.

The creditor, being thus satisfied that the debtor has been faithful, does not answer the end of the act of Parliament, if he declines to assent to the debtor's certificate; nor can any creditor decline it, but on principles which no man cares to own—namely, that of malice, and the highest resentment, which are things a Christian tradesman will not easily act upon.

But I come now to the other part of the case; and this is supposing a debtor fails, and the creditors do not think fit to take out a commission of bankrupt against him, as sometimes is the case, at least, where they see the offers of the debtor are any thing reasonable: my advice in such case is (and I speak it from long experience in such things), that they should always accept the first reasonable proposal of the debtor; and I am not in this talking on the foot of charity and mercy to the debtor, but of the real and undoubted interest of the creditor; nor could I urge it, by such arguments as I shall bring, upon any other foundation; for, if I speak in behalf of the debtor, I must argue commiseration to the miserable, compassion and pity of his family, and a reflection upon the sad changes which human life exposes us all to, and so persuade the creditor to have pity upon not him only, but upon all families in distress.