The Complete English Tradesman (1839 ed.)

by Daniel Defoe

For these reasons, and many others, the bankrupt is able to make a better offer upon his estate than the creditors can expect to raise any other way; and therefore it is their interest always to take the first offer, if they are satisfied there is no fraud in it, and that the man has offered any thing near the extent of what he has left in the world to offer from.

If, then, it be the tradesman's interest to accept of the offer made, there needs no stronger argument to be used with him for the doing it; and nothing is more surprising to me than to see tradesmen, the hardest to come into such compositions, and to push on severities against other tradesmen, as if they were out of the reach of the shocks of fortune themselves, or that it was impossible for them ever to stand in need of the same mercy—the contrary to which I have often seen.

To what purpose should tradesmen push things to extremities against tradesmen, if nothing is to be gotten by it, and if the insolvent tradesman will take proper measures to convince the creditor that his intentions are honest? The law was made for offenders; there needs no law for innocent men: commissions are granted to manage knaves, and hamper and entangle cunning and designing rogues, who seek to raise fortunes out of their creditors' estates, and exalt themselves by their own downfall; they are not designed against honest men, neither, indeed, is there any need of them for such.

Let no man mistake this part, therefore, and think that I am moving tradesmen to be easy and compassionate to rogues and cheats: I am far from it, and have given sufficient testimony of the contrary; having, I assure you, been the only person who actually formed, drew up, and first proposed that very cause to the House of Commons, which made it felony to the bankrupt to give in a false account. It cannot, therefore, be suggested, without manifest injustice, that I would with one breath prompt creditors to be easy to rogues, and to cheating fraudulent bankrupts, and with another make a proposal to have them hanged.

But I move the creditor, on account of his own interest, always to take the first offer, if he sees no palpable fraud in it, or sees no reason to suspect such fraud; and my reason is good, namely, because I believe, as I said before, it is generally the best.

I know there is a new method of putting an end to a tradesman's troubles, by that which was formerly thought the greatest of all troubles; I mean a fraudulent method, or what they call taking out friendly statutes; that is, when tradesmen get statutes taken out against themselves, moved first by some person in kindness to them, and done at the request of the bankrupt himself. This is generally done when the circumstances of the debtor are very low, and he has little or nothing to surrender; and the end is, that the creditors may be obliged to take what there is, and the man may get a full discharge.

This is, indeed, a vile corruption of a good law, and turning the edge of the act against the creditor, not against the debtor; and as he has nothing to surrender, they get little or nothing, and the man is as effectually discharged as if he had paid twenty shillings in the pound; and so he is in a condition to set up again, take fresh credit, break again, and have another commission against him; and so round, as often as he thinks fit. This, indeed, is a fraud upon the act, and shows that all human wisdom is imperfect, that the law wants some repairs, and that it will in time come into consideration again, to be made capable of disappointing the people that intend to make such use of it.

I think there is also wanting a law against twice breaking, and that all second commissions should have some penalty upon the bankrupt, and a third a farther penalty, and if the fourth brought the man to the gallows, it could not be thought hard; for he that has set up and broke, and set up again, and broke again, and the like, a third time, I think merits to be hanged, if he pretends to venture any more.

Most of those crimes against which any laws are published in particular, and which are not capital, have generally an addition of punishment upon a repetition of the crime, and so on—a further punishment to a further repetition. I do not see why it should not be so here; and I doubt not but it would have a good effect upon tradesmen, to make them cautious, and to warn them to avoid such scandalous doings as we see daily practised, breaking three or four, or five times over; and we see instances of some such while I am writing this very chapter.

To such, therefore, I am so far from moving for any favour, either from the law, or from their creditors, that I think the only deficiency of the law at this time is, that it does not reach to inflict a corporal punishment in such a case, but leaves such insolvents to fare well, in common with those whose disasters are greater, and who, being honest and conscientious, merit more favour, but do not often find it.