An Essay Upon Projects

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

  restraint be laid upon the second, that villainy and knavery might

  not be encouraged by a law. That a due care be taken of the third,

  that men's estates may as far as can be secured to them. And due

  limits set to the last, that no man may have an unlimited power over

  his fellow-subjects, to the ruin of both life and estate.

  All which I humbly conceive might be brought to pass by the

  following method, to which I give the title of

  A COURT OF INQUIRIES.

  This court should consist of a select number of persons, to be

  chosen yearly out of the several wards of the City by the Lord Mayor

  and Court of Aldermen, and out of the several Inns of Court by the

  Lord Chancellor, or Lord Keeper, for the time being, and to consist

  of,

  A President, } To be chosen by the rest, and

  A Secretary, } named every year also.

  A Treasurer, }

  A judge of causes for the proof of debts.

  Fifty-two citizens, out of every ward two;

  of which number to be twelve merchants.

  Two lawyers (barristers at least) out of each

  of the Inns of Court.

  That a Commission of Inquiry into bankrupts' estates be given to

  these, confirmed and settled by Act of Parliament, with power to

  hear, try, and determine causes as to proof of debts, and disputes

  in accounts between debtor and creditor, without appeal.

  The office for this court to be at Guildhall, where clerks should be

  always attending, and a quorum of the commissioners to sit de die in

  diem, from three to six o'clock in the afternoon.

  To this court every man who finds himself pressed by his affairs, so

  that he cannot carry on his business, shall apply himself as

&
nbsp; follows:-

  He shall go to the secretary's office, and give in his name, with

  this short petition:-

  To the Honourable the President and Commissioners of His Majesty's

  Court of Inquiries. The humble petition of A. B., of the Parish of

  --- in the Haberdasher.

  Showeth

  That your petitioner being unable to carry on his business, by

  reason of great losses and decay of trade, and being ready and

  willing to make a full and entire discovery of his whole estate, and

  to deliver up the same to your honours upon oath, as the law directs

  for the satisfaction of his creditors, and having to that purpose

  entered his name into the books of your office on the --- of this

  instant.

  Your petitioner humbly prays the protection of this Honourable

  Court.

  And shall ever pray, &c.

  The secretary is to lay this petition before the commissioners, who

  shall sign it of course; and the petitioner shall have an officer

  sent home with him immediately, who shall take possession of his

  house and goods, and an exact inventory of everything therein shall

  be taken at his entrance by other officers also, appointed by the

  court; according to which inventory the first officer and the

  bankrupt also shall be accountable.

  This officer shall supersede even the Sheriff in possession,

  excepting by an extent for the king; only with this provision:-

  That if the Sheriff be in possession by warrant on judgment obtained

  by due course of law, and without fraud or deceit, and, bona fide,

  in possession before the debtor entered his name in the office, in

  such case the plaintiff to have a double dividend allotted to his

  debt; for it was the fault of the debtor to let execution come upon

  his goods before he sought for protection; but this not to be

  allowed upon judgment confessed.

  If the Sheriff be in possession by fieri facias for debt immediately

  due to the king, the officer, however, shall quit his possession to

  the commissioners, and they shall see the king's debt fully

  satisfied before any division be made to the creditors.

  The officers in this case to take no fee from the bankrupt, nor to

  use any indecent or uncivil behaviour to the family (which is a most

  notorious abuse now permitted to the sheriff's officers), whose fees

  I have known, on small executions, on pretence of civility, amount

  to as much as the debt, and yet behave themselves with unsufferable

  insolence all the while.

  This officer being in possession, the goods may be removed, or not

  removed; the shop shut up or not shut up; as the bankrupt upon his

  reasons given to the commissioners may desire.

  The inventory being taken, the bankrupt shall have fourteen days'

  time, and more if desired, upon showing good reasons to the

  commissioners, to settle his books and draw up his accounts; and

  then shall deliver up all his books, together with a full and true

  account of his whole estate, real and personal, to which account he

  shall make oath, and afterwards to any particular of it, if the

  commissioners require.

  After this account given in, the commissioners shall have power to

  examine upon oath all his servants, or any other person; and if it

  appears that he has concealed anything, in breach of his oath, to

  punish him, as is hereafter specified.

  Upon a fair and just surrender of all his estate and effects, bona

  fide, according to the true intent and meaning of the act, the

  commissioners shall return to him in money, or such of his goods as

  he shall choose, at a value by a just appraisement, 5 pounds per

  cent. of all the estate he surrendered, together with a full and

  free discharge from all his creditors.

  The remainder of the estate of the debtor to be fairly and equally

  divided among the creditors, who are to apply themselves to the

  commissioners. The commissioners to make a necessary inquiry into

  the nature and circumstances of the debts demanded, that no

  pretended debt be claimed for the private account of the debtor; in

  order to which inquiry they shall administer the following oath to

  the creditor, for the proof of the debt.

  I, A. B., do solemnly swear and attest that the account hereto

  annexed is true and right, and every article therein rightly and

  truly stated and charged in the names of the persons to whom they

  belong; and that there is no person or name named, concealed, or

  altered in the said account by me, or by my knowledge, order, or

  consent. And that the said does really and bona fide owe and stand

  indebted to me for my own proper account the full sum of mentioned

  in the said account, and that for a fair and just value made good to

  him, as by the said account expressed; and also that I have not made

  or known of any private contract, promise, or agreement between him

  the said (or any body for him) and me, or any person whatsoever.

  So help me God.

  Upon this oath, and no circumstances to render the person suspected,

  the creditor shall have an unquestioned right to his dividend, which

  shall be made without the delays and charges that attend the

  commissions of bankrupts. For,

  1. The goods of the debtor shall upon the first meeting of the

  creditors be either sold in parcels, as they shall agree, or divided

  among them in due proportion to their debts.

  2. What debts are standing out, the debtors shall receive summonses

  from the commissioners, to pay by a certain time limited; and in the

  meantime the secretary is to transmit accounts to the persons owing

  it, appointing them a reasonable time to consent or disprove the

  account.

  And every six months a just dividend shall be made among the

  creditors of the money received; and so, if the effects lie abroad,

  authentic procurations shall be signed by the bankrupt to the

  commissioners, who thereupon correspond with the persons abroad, in

  whose hands such effects are, who are to remit the same as the

  commissioners order; the dividend to be made, as before, every six

  months, or oftener, if the court see cause.

  If any man thinks the bankrupt has so much favour by these articles,

  that those who can dispense with an oath have an opportunity to

  cheat their creditors, and that hereby too much encouragement is

  given to men to turn bankrupt; let them consider the easiness of the

  discovery, the difficulty of a concealment, and the penalty on the

  offender.

  1. I would have a reward of 30 per cent. be provided to be paid to

  any person who should make discovery of any part of the bankrupt's

  estate concealed by him, which would make discoveries easy and

  frequent.

  2. Any person who should claim any debt among the creditors, for

  the account of the bankrupt, or his wife or children, or with design

  to relieve them out of it, other or more than is, bona fide, due to

  him for value received, and to be made out; or any person who shall

  receive in trust, or by deed of gift, any part of the goods or other

  estate of the bankrupt, w
ith design to preserve them for the use of

  the said bankrupt, or his wife or children, or with design to

  conceal them from the creditors, shall forfeit for every such act

  500 pounds, and have his name published as a cheat, and a person not

  fit to be credited by any man. This would make it very difficult

  for the bankrupt to conceal anything.

  3. The bankrupt having given his name, and put the officer into

  possession, shall not remove out of the house any of his books; but

  during the fourteen days' time which he shall have to settle the

  accounts shall every night deliver the books into the hands of the

  officer; and the commissioners shall have liberty, if they please,

  to take the books the first day, and cause duplicates to be made,

  and then to give them back to the bankrupt to settle the accounts.

  4. If it shall appear that the bankrupt has given in a false

  account, has concealed any part of his goods or debts, in breach of

  his oath, he shall be set in the pillory at his own door, and be

  imprisoned during life without bail.

  5. To prevent the bankrupt concealing any debts abroad, it should

  be enacted that the name of the bankrupt being entered at the

  office, where every man might search gratis, should be publication

  enough; and that after such entry, no discharge from the bankrupt

  should be allowed in account to any man, but whoever would adventure

  to pay any money to the said bankrupt or his order should be still

  debtor to the estate, and pay it again to the commissioners.

  And whereas wiser heads than mine must be employed to compose this

  law, if ever it be made, they will have time to consider of more

  ways to secure the estate for the creditors, and, if possible, to

  tie the hands of the bankrupt yet faster.

  This law, if ever such a happiness should arise to this kingdom,

  would be a present remedy for a multitude of evils which now we

  feel, and which are a sensible detriment to the trade of this

  nation.

  1. With submission, I question not but it would prevent a great

  number of bankrupts, which now fall by divers causes. For,

  (1.) It would effectually remove all crafty designed breakings, by

  which many honest men are ruined. And

  (2.) Of course 'twould prevent the fall of those tradesmen who are

  forced to break by the knavery of such.

  2. It would effectually suppress all those sanctuaries and refuges

  of thieves, the Mint, Friars, Savoy, Rules, and the like; and that

  these two ways:-

  (1.) Honest men would have no need of it, here being a more safe,

  easy, and more honourable way to get out of trouble.

  (2.) Knaves should have no protection from those places, and the

  Act be fortified against those places by the following clauses,

  which I have on purpose reserved to this head.

  Since the provision this court of inquiries makes for the ease and

  deliverance of every debtor who is honest is so considerable, 'tis

  most certain that no man but he who has a design to cheat his

  creditors will refuse to accept of the favour; and therefore it

  should be enacted,

  That if any man who is a tradesman or merchant shall break or fail,

  or shut up shop, or leave off trade, and shall not either pay or

  secure to his creditors their full and whole debts, twenty shillings

  in the pound, without abatement or deduction; or shall convey away

  their books or goods, in order to bring their creditors to any

  composition; or shall not apply to this office as aforesaid, shall

  be guilty of felony, and upon conviction of the same shall suffer as

  a felon, without benefit of clergy.

  And if any such person shall take sanctuary either in the Mint,

  Friars, or other pretended privilege place, or shall convey thither

  any of their goods as aforesaid, to secure them from their

  creditors, upon complaint thereof made to any of His Majesty's

  Justices of the Peace, they shall immediately grant warrants to the