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Few bankruptcies were known in France before the sixteenth century. The great reason is that there were no bankers. Lombards, Jews lent on security at ten per cent: trade was conducted in cash. Exchange, remittances to foreign countries were a secret unknown to all judges.
It is not that many people were not ruined; but that was not called bankruptcy ; one said discomfiture ; this word is sweeter to the ear. One used the word rupture as did the Boulonnais; but rupture does not sound so well.
The bankruptcies came to us from Italy, bancorotto, bancarotta, gambarotta e la giustizia non impicar . Every merchant had his bench ( banco ) in the place of exchange; and when he had conducted his business badly, declared himself fallito , and abandoned his property to his creditors with the proviso that he retain a good part of it for himself, be free and reputed a very upright man. There was nothing to be said to him, his bench was broken, banco rotto, banca rotta ; he could even, in certain towns, keep all his property and baulk his creditors, provided he seated himself bare-bottomed on a stone in the presence of all the merchants. This was a mild derivation of the old Roman proverb— solvere aut in aere aut in cute , to pay either with one's money or one's skin. But this custom no longer exists; creditors have preferred their money to a bankrupt's hinder parts.
In England and in some other countries, one declares oneself bankrupt in the gazettes. The partners and creditors gather together by virtue of this announcement which is read in the coffee-houses, and they come to an arrangement as best they can.
As among the bankruptcies there are frequently fraudulent cases, it has been necessary to punish them. If they are taken to court they are everywhere regarded as theft, and the guilty are condemned to ignominious penalties.
It is not true that in France the death penalty was decreed against bankrupts without distinction. Simple failures involved no penalty; fraudulent bankrupts suffered the penalty of death in the states of Orleans, under Charles IX., and in the states of Blois in 1576, but these edicts, renewed by Henry IV., were merely comminatory.
It is too difficult to prove that a man has dishonoured himself on purpose, and has voluntarily ceded all his goods to his creditors in order to cheat them. When there has been a doubt, one has been content with putting the unfortunate man in the pillory, or with sending him to the galleys, although ordinarily a banker makes a poor convict.
Bankrupts were very favourably treated in the last year of Louis XIV.'s reign, and during the Regency. The sad state to which the interior of the kingdom was reduced, the multitude of merchants who could not or would not pay, the quantity of unsold or unsellable effects, the fear of interrupting all commerce, obliged the government in 1715, 1716, 1718, 1721, 1722, and 1726 to suspend all proceedings against all those who were in a state of insolvency. The discussions of these actions were referred to the judge-consuls; this is a jurisdiction of merchants very expert in these cases, and better constituted for going into these commercial details than the parliaments which have always been more occupied with the laws of the kingdom than with finance. As the state was at that time going bankrupt, it would have been too hard to punish the poor middle-class bankrupts.
Since then we have had eminent men, fraudulent bankrupts, but they have not been punished.