DEBTOR AND CREDITOR. 



617 



swer to this obligation ; for the value he has received 

 has been absorbed in tliat which he possesses, and 

 constitutes a part of its amount, or, at least, may be 

 presumed to have contributed to it. In short, the 

 property of the debtor may be considered to belong 

 to his creditors, to the extent of their demands. The 

 laws of different countries, accordingly, agree in the 

 principle that the creditor shall have the means of 

 getting possession and disposing of the debtor's pro- 

 perty to satisfy his demands. The sums prescribed 

 for the exercise of this well established and universally 

 acknowledged right, vary considerably in different 

 countries and periods. As long ago as the time of 

 Solon, the necessary implements of 'husbandry were 

 exempted from this right. The civil law makes an 

 exemption of necessary implements of trade and ar- 

 ticles of furniture, and this distinction is adopted very 

 generally, if not universally, throughout the civilized 

 world. The right of the creditor, then, according to 

 the laws and practice of the whole civilized world, 

 does not extend to the whole of the property and pos- 

 sessions of the debtor ; and the exception affords a 

 rule for measuring the extent and force of this obli- 

 gation of debt, in the general estimation of nations ; 

 since, in enforcing this obligation, all the laws in 

 this respect stop at the point where individual suffer- 

 ing commences. Though the law adopts the prin- 

 ciple, that the goods of the debtor, in effect, belong 

 to the creditor, yet it makes a compromise, even of 

 this right, between the creditor, and debtor, and the 

 community ; for the community may be said to be 

 affected by, and to feel, the distresses or good fortune 

 of every one of its members ; and, accordingly, the 

 creditor is here made to compromise his rights as a 

 creditor, out of regard to his obligations as a member 

 of the community. The law says to him, " Though 

 you strictly have a right to the tools your debtor 

 uses, the clothes he and his family wear, and the 

 beds they sleep upon for they may have been pro- 

 cured by the very money or goods from which the 

 debt arose ; yet, on the other hand, you owe some 

 obligations to the community, and the community 

 has some obligations to your debtor ; you shall not, 

 therefore, turn him and his family naked into the 

 streets, even by reclaiming the very articles you may 

 liave sold him." 



Such is the limit which the laws have, by general 

 consent, put to the extent of the creditor's right over 

 the debtor's property ; and, to this extent, every 

 code ought to give as easy, cheap, and expeditious a 

 remedy as can be allowed consistently with a just 

 settlement of the validity and amount of the credi- 

 tor's claim ; and such a remedy it is the object of 

 legislators generally to give. Upon the principle 

 already stated, namely, that the debtor's property 

 belongs to his creditors, to the amount of their 

 claims, it should follow, that when his property is 

 inadequate to the full satisfaction of the debts, all the 

 creditors ought to share it proportionally ; and this 

 has been the practical rule under the civil law, and in 

 all the countries where it has been adopted as the 

 common law. Such Is the practical rule in Eng- 

 land ; and it is a rule so obviously just, and results so 

 directly from the universally received principles, in 

 relation to the rights of creditors, that it is surprising 

 that any country, in the least advanced in civil po- 

 lity, and having made any progress in civilization, 

 should form an exception to such a rule, and permit 



bonorum, and the various laws of insolvency of differ* 

 ent states, of which that has been the model, a pre- 

 ference is usually given to the government as a cre- 

 ditor, which is fully satisfied for its demands before 

 any part of the claims of individual creditors is paid. 

 This preference is just, where the claim of the go- 

 vernment can be viewed in the light of a lien on the 

 property ; and, where this is the case, the giving it 

 a priority to those of creditors who have no lien, is, 

 in fact, only putting the government upon the same 

 footing with other creditors ; for any one, having a 

 mortgage or pledge, is always preferred to the extent 

 of his pledge ; but, where the claim cannot be con- 

 sidered in that light, the preference seems not to be 

 just. Some other claims are preferred, from motives 

 of humanity and general policy, on the same prin- 

 ciple on which necessary articles of furniture, imple- 

 ments of the debtor's trade, and the like, are exempt- 

 ed from seizure. Thus some laws, notwithstanding 

 the insolvency of the estate of a deceased debtor, 

 still allow the full payment of the expenses of his 

 last sickness and funeral, and also assign some arti- 

 cles, of greater or less amount, to the use of his 

 widow and family. Some codes of laws limit the 

 claims of the creditor to the debtor's property for 

 satisfaction. Others go beyond this point. The 

 ancient laws of RoDfe permitted the selling of 

 debtors into servitude for the benefit of their credi- 

 tors ; and such are the laws of modern times among 

 some of the African tribes. Solon remarked upon 

 the inconsistency of laws which exempted the imple- 

 ments of trade, and articles of necessity of the 

 debtor, from the creditor's demand, and yet subjected 

 his body to sale or imprisonment ; and, considering 

 the rights of the debtor, as a citizen of Athens, to be 

 paramount to those of his creditor over his person, 

 he provided against the violation of a citizen's liberty 

 on account of his debts. But the imprisonment 

 of the debtor ought to be allowed as a means of 

 compelling him to surrender his property for the 

 benefit of his creditors ; and, for this purpose, the 

 civil law, and the laws of England permit it, but 

 only until he has made a surrender of all his property, 

 unless he is proved to have acted fraudulently, in 

 which case the imprisonment is continued as a pun- 

 ishment. 



In the article Bankrupt, the interposition of the 

 law to discharge debtors absolutely from all liability 

 to their creditors, on their surrendering all their pro- 

 perty, has been treated of. This interposition has, 

 however, been extended only to cases of insolvent 

 merchants. The insolvent laws, as distinguished 

 from bankrupt laws, apply to debtors who are not 

 merchants, and provide for a ratable distribution of 

 their effects among their creditors, and exempt the 

 person of the debtor from imprisonment, on the sur- 

 render of the whole of his property, but do not dis- 

 charge the debt any further than satisfaction is 

 made by payment. A question very naturally arises 

 why this distinction is made between traders and 

 others. A cultivator or mechanic, in enterprising 

 communities, is scarcely less liable to the misfortunes 

 and disappointments which result in insolvency than 

 traders, and their future industry and unembarrassed 

 enterprise is of no less importance to the community. 

 Why should the future earnings of a former, or con- 

 ductor of any branch of industry, whose insolvency 

 has been occasioned by a drought, a change in the 



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some one creditor, or some few, no more deserving, markets, or the bankruptcy of a merchant wh<jm he 



and perhaps much less so, than the rest, to seize 

 upon the whole property of the debtor, and entirely 

 defeat the claims of the others. 



When the laws provide for a proportionate distri- 

 bution of an insolvent's estate in general, still they 

 reserve some few preferences. Thus, in the cessio 



had trusted, be held for the payment of his debts, to 

 the last farthing, any more than those of the mer. 

 chant ? Is it true that, in other pursuits than those 

 of trade, insolvency is more frequently the conse- 

 quence of fraud, extravagance, or imprudence ? See 

 Bankrupt, Capias, Insolvency. 



