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it will follow that this act is now a public grievance to the nation, and I doubt not but will be one time or other repealed by the same wise authority which made it.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 pounds 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 pounds in getting in my estate by a statute, which I offered to surrender without it, I’ll reckon that 500 pounds 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
