the good faith of contracts and the security of commerce compel the legislator to assure to creditors the persons of insolvent debtors. but i think it important to distinguish the fraudulent from the innocent bankrupt, the former of whom should receive the same punishment as that assigned to false coiners, since it is no greater crime to falsify a piece of coined money, the pledge of men’s mutual[217] obligations, than to falsify those obligations themselves. but the innocent bankrupt—he who, after a searching inquiry, has proved before his judges that the wickedness or misfortune of some one else, or the inevitable vicissitudes of human prudence, have despoiled him of his substance—for what barbarous reason ought such an one to be thrown into prison, and deprived of the only poor benefit that remains to him, a barren liberty, in order to suffer the agonies of the really guilty, and, in despair at his ruined honesty, to repent perhaps of that innocence, by which he lived peacefully under the protection of those laws that it was not in his power not to offend against? laws, too, dictated by the powerful by reason of their rapacity, and endured by the feeble by reason of that hope, which generally glimmers in the human heart, and leads us to believe that unfavourable contingencies are reserved for others, favourable ones for ourselves! men left to their natural feelings love cruel laws, however much, as subject to them themselves, it might be for their individual interest that they should be mitigated; because their fear of being injured by others is greater than their desire to inflict injuries themselves.
to return to the innocent bankrupt. granting that his obligation should not be extinguishable by anything short of total payment; granting that he should not be suffered to withdraw from it without the[218] consent of the parties interested, nor to transfer under the dominion of other laws his industry, which should perforce be employed, under penalties, to enable him to satisfy his creditors in proportion to his profits; what fair pretext, i ask, can there be, such as the security of commerce or the sacred right of property, to justify the deprivation of his liberty? such a deprivation is only of use, when it is sought to discover the secrets of a supposed innocent bankrupt by the evils of servitude, a most unusual circumstance where a rigorous inquiry is instituted. i believe it to be a maxim in legislation, that the amount of political inconveniences varies directly in proportion to the injury they do the public, and inversely in proportion to the difficulty of their proof.
it would be possible to distinguish a case of fraud from a grave fault, a grave fault from a light one, and this again from perfect innocence; then to affix to the first the penalties due for crimes of falsification; to the second lesser penalties, but with the loss of personal liberty; and, reserving for the last degree the free choice of the means of recovery, to deprive the third degree of such liberty, whilst leaving it to a man’s creditors. but the distinction between grave and light should be fixed by the blind impartiality of the laws, not by the dangerous and arbitrary wisdom of a judge. the fixings of limits are as necessary in politics as in mathematics, equally in the measurement[219] of the public welfare as in the measurement of magnitudes.[68]
how easily might the farseeing legislator hinder a large part of culpable bankruptcy, and relieve the misfortunes of the industrious and innocent! the public and open registration of all contracts; freedom to every citizen to consult them in well-kept documents; a public bank formed by wisely-apportioned taxes upon prosperous commerce, and intended for the timely relief of any unfortunate and innocent member of the company;—such measures would have no real drawback and might produce numberless advantages. but easy, simple, and great laws, which await but the signal of the legislator, in order to scatter riches and strength through a nation—laws which would be celebrated from generation to generation in hymns of gratitude—are either the least thought of or the least desired of all. an uneasy and petty spirit, the timid prudence of the present moment, and a circumspect stiffness against innovations, master the feelings of those who govern the complex actions of mankind.
