REMARKS ON THE BILL TO PREVENT FRAUDS COMMITTED BY BANKRUPTS, WITH OBSERVATIONS ON THE EFFECT IT MAY HAVE UPON TRADE. BY DANIEL DE FOE. LONDON: PRINTED IN THE YEAR LONDON: REPRINTED BY CHARLES REYNELL, LITTLE PULTENEY STREET AND PUBLISHED BY J. CLEMENTS, AT 21 AND 22, IN THE SAME STREET. MDCCCXLI. INTRODUCTION. I have more than many times been served so myself." He recurs to the subject in his Essays on Projects,' his Complete Tradesman,' and in other numbers of his Review, and is particularly severe upon the new commissioners of bankrupts, with whom, he says, it was no unusual thing to consume the whole of a bankrupt's estates in feastings and vexatious law-suits, in the profits of which they largely participated, being generally men in the law. Commissions of bankrupt," he says in one of his Reviews, "are such depredations and invasions of common justice, such oppressions upon the sinking fortunes of distressed families, that I cannot think any debtor obliged to the same measures with such people as they are with others. The law of self-defence arms the debtor against these ravenous harpies, as it arms against the assaults of a highwayman or a cut-throat. In short, the English Rogue would be a fool to the horrid collection of villanies practised by these law-tyrants, who revel in the blood of families, and eat up the food of the starving debtors; who sell debtor and creditor for the maintenance of their lusts, and devour, not the widows' houses only, but the widows themselves." In the time of De Foe the laws against bankrupts || refrain vouching this of my own knowledge, since were much more severe than they are at present; insomuch that it was a matter of some hazard for a man to surrender to his creditors unless there had been some previous understanding for a composition. "The cruelty of our laws against debtors," he observes in one of his Reviews, "without distinction of honest or dishonest, is the shame of our nation. I am persuaded, the honestest man in England, when by necessity he is compelled to break, will early fly out of the kingdom rather than submit. To stay here, this is the consequence:-As soon as he breaks he is prosecuted as a criminal, and has thirty to sixty days to surrender both himself and all that he has to his creditors. If he fails to do it, he has nothing before him but the gallows, without benefit of clergy; if he surrenders, he is not sure but he shall be thrown into gaol for life by the commissioners only on pretence that they doubt his oath. What must the man do? If he carries away his effects, he is a knave, and cheats his creditors; if he stays here, he is starved in a gaol, and must end his days by a lingering death. It is certainly the interest of the creditor that, when a debtor has failed, he should come and throw himself into the creditor's hands, and there be safe." In arguing the subject some years afterwards, also in the Review, De Foe observes, with equal judgment and shrewdness," Sometimes I was apt to suggest the following important trifles, viz., That a prison paid no debts; that the more a bankrupt spent the less he had left; and that the less he had, the less the creditors would have at last; that he who had nothing to pay could pay nothing; and that to keep a man in perpetual prison for debt, was murdering men by law." In another of his Reviews, speaking of the frauds committed by bankrupts, he says,-"The evil was indeed grown up to a monstrous height in those days. Nothing was more frequent than for a man in full credit to buy all the goods he could lay his hands on, and carry them directly from the house he bought them at into the Fryars, and then send for his creditors and laugh at them, insult them, showing them their own goods untouched, offer them a trifle in satisfaction, and if they refuse it bid them defiance. I cannot The White Fryars was at that time a sort of sanctuary for criminals and debtors, where broken and desperate men resorted in great numbers, and defended themselves with force and violence against the authorities. The Mint, in Southwark, was another of these sanctuaries. It was in great measure owing to the exertions of De Foe that these nuisances were abated by the act 8 and 9 William III. In the early part of the year 1706 a bill was brought into the Commons entitled 'An act to prevent frauds committed by bankrupts.' De Foe, who appears to have had a considerable hand in forwarding the measure, both by his writings and his personal solicitations, bestows some useful remarks upon it in his Reviews. He observes, that the course then pursued was so far from answering the true intent of the law, that it only increased the number of bankrupts and gave encouragement to frauds. To explain this he endeavours to prove that commissions of bankruptcy (though well designed) were, in their practice, pernicious to trade, destructive to the interest both of debtor and creditor, and a temptation to dishonesty. The law lately made the imprisonment of debtors, without bail or distinction of circumstances," he describes as barbarous and inhuman; unequal in its nature and unjust in practice; ruinous to trade, and tending to increase the number of failures. After duly considering these points, he tells us he shall attempt a display of "the debtor's side of villany," and humbly offers such restraints both upon debtor and creditor as shall effectually prevent, or severely punish, fraudulent cases, without bearing heavily upon honest misfortune. He expresses himself in terms of great severity for against the commissioners of bankrupts, who delayed their proceedings for some private advantage, and often wasted the estate of the debtor in long and vexatious lawsuits. He remarks, with feelings of humanity, that, although bank. rupts were then become the nation's grievance, yet they ought not to be excluded from the nation's care. "The miserable," says he, "are a rent-charge upon the government, which it cannot in justice abandon, and I cannot but think it is an error in the morality of our public conduct rather to study punishment than prevention." De Foe highly approved of the bill before the House, especially those clauses which gave encouragement to honest but unfortunate men to close their accounts betimes, and sheltered them from vexatious prosecutions. He insists strongly upon the injustice of the law that obliged the debtor to surrender his books and effects, without the certainty of their being accepted by the creditors, in order to his discharge. Whether his arguments had any influence or not, a clause to this effect was added to the bill, and De Foe urges its acceptance with all his might, combating the objections that were likely to be urged against it. He argues very justly, that we are not to forego the benefit of good laws because there are knaves in the world who will evade or break them. In his pointed manner he says, "As for fraudulent bankrupts, let them die the death of a thief, as they deserve; highwaymen and robbers are a sort of gentlemen compared with them; but to punish the poor man who is ruined by them in an equal manner, is just as if you should make it felony to be robbed, and hang the passenger with the highwayman." To It appears that some of the members opposed the bill on account of the retrospective part, and there were strong reasons to suspect them of being influenced by personal motives. such De Foe says:" It is very hard to make men more criminal because they fell into the pit a year or so before their neighbours. This is singling out some men from the rest, and making a difference of persons where there is no difference of crime." De Foe had a strong impression that this clause was opposed by some persons with a particular view to himself; and he attended in the lobby of the Peers with the intention of proposing that his own interests should be sacrificed to this provision rather than that he should stand in the way of so useful a measure. His real, which is in itself small, it would be but a weak argument against the bill, since some to whom he owes thirteen times as much gave their attendance daily at the House to declare their willingness to have it pass. And, lastly, such is my sincere zeal for the public benefit of this clause, and my just concern for the number of families that will be relieved by it, that I attended at the House of Lords myself, ready to have declared my willingness to be excepted out of it rather than so necessary a bill should have been lost for want of my being removed out of the way."" The bill having passed the Lords, received the royal assent the 19th of March. It is highly praised by De Foe, who calls it one of the best bills passed by parliament since the Habeas Corpus Act. The only clause to which be objected was that which empowered the commissioners to withhold from the bankrupt his certificate without assigning a cause for it; a discretion which he considered too important, when viewed in connexion with the dependent situation of the sufferer. A considerable point, however, was gained by the act, even with respect to the commissioners, whose power was curtailed, and the duration of their proceedings greatly shortened. "If you will now keep your sittings at taverns," says he, "drink burgundy, have your fish dinners, and spend from ten to twenty pounds a day, you are welcome, for now it must be out of your own pockets. Now, three or four sittings will get in a bankrupt's estate, and the business will be over. Cominissions will no more be a standing pension of twenty or thirty pounds a year; which, to some gentlemen that are nanied perhaps in fifty commissions, was an object of some importance, and enabled them to raise estates by the shipwreck of their neighbours." When the passing of the bill had rendered serious argument no longer necessary, De Foe employed one of his Reviews in a clever banter upon those who had opposed it from interested motives. Although he avoided personal reflection, yet one of the citizens took up the cause of his brethren, and threatened to cane our author for what he had written on the subject. A man of De Foe's personal courage was not to be daunted in this way. To this hero he says:"I take the liberty to tell him, he talks more with his tongue than he will attempt with his hands, and that such impertinence deserves no notice till he has put it in practice; for which, on the least hint to the author, he shall never want an opportunity." own account of this admirable conduct of his runs thus: "I will not be positive how far this may affect one particular gentleman, who, in respect to himself, I forbear to name, and who has a relation in either House of Parliament; who, as I am informed, pursues this bill to destroy it, merely as he thinks it will be of service to the author of this paper, against whom he has a legal, though no equitable, demand. But, as I am credibly informed he has expressed himsel something plainly by the mouth of his said rela-the part he had taken in this affair, as well as of tives in this case, I humbly make him this offer. 1. That waiving his advantage of law, which was obtained when the author was embroiled in a public disaster and not able to defend himself, he is ready to come to a hearing in equity of the justice of his debt, and to give him good security to stand by the award. 2. That if his debt be After the rising of parliament De Foe published his thoughts upon the matter in the following pamphlet, which exhibits an able review of the whole subject, and contains the substance of what had been published in the Review. Most of De Foe's political enemies approved highly of his general labours upon the subject of trade, to which they were desirous that he would confine himself. An exception to these, however, was the author of a pamphlet bearing the following title: Observations on the Bankrupts' Bill; occasioned by the many false misrepresentations * Review, III, 122. |