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and this capital would soon make its appearance in its proper place, from whence it is at present in a great measure excluded by the spurious emulation in trade which exists.
2dly. It is very evident, where persons exceed their capital in trade, that in order to fulfil their own engagements they must necessarily be dependent on the punctuality of others; and if those, on whom they are thus placed, have equally ventured on the stormy ocean of speculation, and are disappointed in the demand of society for their merchandize and adventures--the unavoidable consequence is, that failure recoils on all those who have exceeded their responsibility or capital. The difficulty, therefore, of a creditor using any effective caution against dealing with improvident persons or contracting bad debts, must be obvious; and the remedy, on failure in these cases, may rather be said to belong to the debtor; -for, with privileges like those of the Certificate and Insolvent Acts, it is virtually pronouncing the individual culpable who gives credit; for the remedy (particularly in minor cases) is what is often dreaded being resorted to by the creditor. In Bankruptcy, friendly Commissions (for hostile ones are very rare, as they are seldom worth prosecuting) are the consequence; in lesser cases, the debtorapplies to the Insolvent Act,—which he is enabled to take probably in a similar way, or from the hostility of one creditor out of his whole list, who may vainly expect to find redress from legal proceedings.
The principle therefore which becomes established, from the relaxed state of the Law between debtor and creditor, is this-that the onus against contracting bad debts, is imposed on the creditor, instead of the debtor. How far this is calculated to secure the integrity of trade, to give a wholesome stimulus to industry,—to prevent the abuse of credit, and hence insolvency and its concomital evils, with poverty and misery in its train,-must depend on the testimony which can be afforded by practice, on the weight of various experienced evidence, and must ultimately be determined by the wisdom of the Legislature. But if this be the principle intended to be acted upon, it is only a matter of surprise that forgery itself has not been tolerated, and the onus of distinguishing spurious from genuine notes been thrown on the responsibility of individuals in trade :—the principle is the same, with this difference merely,--that the public would have a chance of ascertaining, in the one case, whether a note was bad or good on the face of it, but in the instance of an accommodation bill, not until it was presented for payment; and the former would be no greater fraud upon the individual, than the latter might be upon the industry of numbers.
3dly. The Law of Debtor and Creditor has not merely relation to the general obligations between man and man in a social state, but it is designed for the especial protection of the industrious classes. The manufacturer who employs a numerous population in any species of industry, may be said in some measnre to be their trustee, and upon his prudence and integrity they look for their wages of that labor wbich they have afforded him.- But can it be expected (if speculation be tacitly and virtually encouraged by Law, and indiscriminate Credit abounds,) that he can distinguish the men who will exceed their resources ? and is he a fit object of punishment for the conduct of those who do violate their contracts ? Το distinguish between the Tradesman and the Speculator does not depend on the opulence, but on the character and other circumstances of the individual — with which he cannot possibly by any representation become sufficiently acquainted. Let his circumstances be what they may, they can afford no criterion to be guided by:-improvidence in commerce may be the more fatal from the abundance of its means :-people are not always satisfied in employing one capital, but in forcing (as it is called) upon society another.
There is much greater chance of preventing mal principle by punishing offenders, than by the unjust and much severer punishment of compelling every man in business to become a commissioner of bankrupt in his own defence, without the means or possibility of becoming acquainted with those circumstances, which it is his object to detect. Besides, it is throwing trade into confusion, and tradesmen into danger. The unprincipled and worthless will not fail to employ every allurement to engage the dealer, and the insolvent man is capable of giving better prices than the honest tradesman, whose dealings are guided by his resources and the natural consumption of the community.
How far Credit, as it is affected. by Law, has been the means of producing apparent opulence on the one hand, and litigation, insol. vency, and poverty on the other; in what degree the prices of commodities, and the necessaries of life in particular, have been influenced by credit and its consequences—from what cause the man of real capital has withdrawn himself from the engagements of trade, and so much genuine capital lies at present unemployed (notwithstanding the rate of ivterest is confined)-in what degree population and the poor-rates throughout the country have alike been influenced by the operation of credit belong to the sacred duties of the Legislature to inquire into; to whose care is committed the protection of industry, and the rectitude of mutual obligations in the intercourse of barter.
Credit formerly was simply convenience---a mere portable method of balancing accounts between man and man. It was always understood that the individual taking credit, had the value to produce-not to seek,--and that personal engagements were totally independent of all contingencies, and their satisfaction not in the least degree uncertain.
The different branches of the subject, and the sources of evidence which ought to be applied to in its investigation, are of themselves astounding. There is hardly any part of our domestic Economy, which is not either more immediately or remotely connected with it; -and the situation and circumstances of this country with relation to the pursuits, productions, character, and policy of other Countries even have their bearings and influence in the inquiry.'
The following evidence might contribute to show the effects of the Law by its alteration on passing the Act of 4th and 5th Ann.
Prior to the 4th. and 5th of Ann, 1705.
The Number of Failures (distinguished in classes.)
Subsequent to the Statute of the 4th and 5th of Ann.