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bert; the ordinance of 1673 was a wise law, and sufficient for the period in which it was made: people, in France, then began to turn their attention to commerce; it was, as it were, in its cradle: every thing just brought into existence requires simple regulations. A very small part of the population in France were engaged in commerce; the morals of the merchants were pure; the progress of business slow; the course of speculations confined. Since that period, commerce, by rapid advances, has changed the morals of men, and the destiny of states. Transporting the sceptre of dominion to the place where it established the power of credit, it has become one of the greatest objects of the study of legislators, and of the ambition of nations.
This extent, this importance, this activity of commerce, requires, at the present day, a legislation at once more vigilant, and which offers greater security: reflection suffices to make this perceived, and it has been demonstrated by melancholy experience.
Our ancient laws were confined to the prescribing of forms to the insolvent debtor, the non-compliance with which was not attended with any danger to him; imprisonment of the person was the only security to creditors.
Transactions took place without any superintendence of the public authority; which only showed itself to give sanction to contracts, in which dishonesty had taken advantage of innocence or necessity.
Bankruptcy, which was considered only as a nisfortune, as long as fraud was not proved, left the bankrupt independent in the management of his property.
The carelesness of creditors, who were without guide and support, forced them into a state of dependence upon the debtor.
The assignees (syndics) chosen, in the first moments of failure, sometimes by fictitious creditors, often by the friends or relations of the insolvent, almost always by a small number of creditors present, who were bought over at the expense of the absent, and who disguised the malversations of the insolvent, and the real
situation of his affairs, they thus forced the hopeless creditors to accept of a disadvantageous compromise, the effect of which was to save the bankrupt from disgrace, deprive his victims of three fourths of their property, and leave the debtor in possession of the means of displaying an insulting luxury.
If no compromise took place, in consequence of the resistance of some justly irritated creditor, an assignment was made ; but the liquidations were intrusted to men who found it their interest to protract them without end; no authority superintended them, and the creditors, weary of interminable delays, at length renounced a hope, which no reparation supported.
I shall not speak of the various and often contested rights of creditors, of those of wives, who, after having promoted the luxury and embarrassment of their husbands, placed under their own names, sheltered from all pursuits, the spoils which they had carried off from their victims: an orator more learned and eloquent than I am, has undertaken to expose to you the deficiencies in our laws on that subject, and the means which we have thought proper to take to remedy these abuses.
Public order was equally insecure as private property. The law knew only misfortune or dishonesty ; it presumed misfortune; it was necessary to prove fraud: the creditor was charged with this proof at his own expense; it was natural that he should be more concerned about his property than his vengeance ; in spite, then, of the severity of the law against fraudulent bankruptcies, nothing has been more rare than its application, and assuredly nothing was more encouraging than this impunity.
After having, gentlemen, exposed the faithful picture of the abuses which exist, a picture the truth of which we do not believe can be denied, I must explain to you the system of the new law which we propose, in order to put it in your power to judge whether, as we venture to flatter ourselves, it presents a sufficient remedy for those disorders, a protection sufficiently vigilant to creditors, a restraint sufficiently powerful against misconduct and fraud, and a security sufficiently solid for public order.
The legislator, in undertaking a law of so serious a nature, finds himself at first placed between two rocks, which he ought equally to avoid ; that of being too severe against misfortune, or too lenient towards dishonesty : therefore, the first question which has engaged our attention, and the solution of which serves as a basis to the whole system of the law, is the following:
Ought a merchant who fails in complying with his engagements, and stops payment, to be, from bis failure, presumed fraudulent, or considered as unfortunate, until the truth be made known by an examination of his books, and credits ?
We have already made known to you all the abuses of the ancient law, which, considering the insolvent only as unfortunate, left him independent, assured to him almost impunity, and frequently obliged the creditors to sign, at his pleasure, his discharge, and their ruin.
On the other hand, it would have appeared very rigorous to consider every failure as a crime, and to drag before the criminal tribunals every merchant whom the misfortune of the times, or the force of circumstances, should have rendered incapable of fulfilling his engagements.
Very often a failure is like a shipwreck, of which fate can only be accused : commerce bas its storms as well as the ocean; the events of the world, the course of politics, war, peace, famine, abundance even, produces unforeseen changes, gives sudden commotions to commerce, and baffles its wisest calculations ; often, indeed, a merchant deceived in his confidence, and overwhelmed at once by the bankruptcy of others, is compelled himself to fail in his engagements, which he thought he was certainly able to meet.
These just and powerful considerations, gentlemen, ought strongly to fix the attention of the legislator, and induce him equally to avoid a severity too inflexible and an indulgence too dangerOUS.
It has therefore been deemed proper to consider every person failing in trade, not as guilty-not as a man innocent, but as a debtor whose conduct requires a rigorous examination, and a solid security
In every failure there exists a misdemeanor, since there has been a violation of engagements and of property. He who has committed this misdemeanor may have been led into it by misfortune, by misconduct, or by dishonesty.
If by misfortune, he ought to be protected; if by misconduct, he ought to undergo correction ; if by dishonesty, he ought to be given up to all the severity of criminal judicature.
The misfortune ought to be shown by the insolvent; the misconduct proved by the creditors or the public, the fraud prose cuted by the public authority.
In every case the insolvent no longer ought to have the disposition of his estate ; it is the pledge and property of his creditors; he ought not even to have the liberty of his person until an examination into his conduct affords a presumption of his innocence.
As long as his creditors are unknown, have not proved their debts, as long as the absent creditors have not had an opportupity of establishing their claims, the management of his estate, the examination of his papers, the conducting of liis business, should be intrusted to disinterested hands, named by the tribunal of commerce, and under the superintendence of a judge of that tribunal. The creditors, as soon as they are known, ought to have a voice in the choice of men to be charged with their inte rests : they are made acquainted with all the proceedings, all the details in the administration of the affairs of the insolvent; the commissioner calls them together and identifies them; no composition can be concluded between them and the debtor, but by the voice of the majority, combined with a majority in amount equal to three fourths of the debts.
If no composition take place, the creditors, all assembled, all identified, informed by the accounts which an impartial administration shall bave exhibited, shall appoint assignees (syndics) who, under the superintendence of the commissioner and the authority of the tribunal, shall make a prompt liquidation and an equal dividend,
During the progress of these operations, the commissioner, the agents, the assignees, are bound to make known to the magistrate
of safety all the circumstances of the failure; the latter may of his own accord obtaio the necessary information, and whenever there appears to him any indications of misconduct, or fraud, he must call the insolveut before the correctional tribunal, or sumenon him before the criminal tribunal.
Such, gentlemen, is the general spirit of the system of the law, which his majesty orders us to present to you; we believe that its useful results will be,
First, to offer to creditors a solid guaranty, a protection active and vigilant; a certainty either of terminating their affairs by a just composition, or of obtaining a prompt liquidation.
Secondly, to repress scandalous luxury, and the imprudence of bazardous speculations, by the fear of the name of bankrupt, and the correctional penalties which await a bankruptcy from mis. conduct.
Thirdly, to ensure the punishment of dishonesty, and to alarm it by useful examples.
Fourthly, in fine, to offer to every honest and unfortunate merchant, the means of extricating himself from the uncertain and cruel situation in which the ancient legislation left him, and to preserve at least his honour in losing his fortune ; for even the rigour of the law affords a certain security for probity, and every merchant, whom imperious circumstances shall have reduced to the necessity of not fulfilling his engagements, will no longer be confounded with the imprudent man who has gambled with the money of his creditors, or the rogue who has stolen it. The bonest but unfortunate merchant, after having undergone all the rigours of the forms which I have just mentioned, and after having seen his books, his credits, his papers, his conduct, submitted to a superintendence so active, so impartial, so rigid; the liquidation of his affairs effected without the agents, the assignees, the commissioners, the creditors, the public being able to find the least cause to summon him before the tribunals, may confidently demand esteem and pity; he may even preserve the hope, by completing his payments, if any circumstances should afford him the means of doing it, of obtaining a restoration, the more honourable because we have endeavoured to render it more difficult.