The Evening Star WEDNESDAY, NOVEMBER 13, 1872.

Evening Star, Issue 3038, 13 November 1872, Page 2

The Evening Star WEDNESDAY, NOVEMBER 13, 1872.

The violent reaction from the severity of our old law of imprisonment for debt, is but part and parcel of a larger movement against the severity of the ancient code generally. It is less than a century ago that there were thirty or forty slight offences for which a man could be hanged, and the extreme disproportion. of punishment to the degree of criminality, produced its natural effect in creating a sympathy with the accused, the effects of which were most mischievous. When death was the penalty for trifling thefts, juries refused to convict, and by comparison with the cruelty of the laW, a criminal, though plainly deserving some punishment, came to be regarded much in the light of a martyr. With laws so harsh and so repugnant to humane feeling, it was vain tp hope they would be gong-

rally respected, and the just detestation of their cruelty unconsciously extended to the principles of honesty and fair dealing they were intended to uphold. A similar and equally misplaced sympathy has been evoked by the unnecessary rigor ot the past law affecting debtors, 0 and though the tide of opinion is beginning to turn, we still experience the effects of this feeling, though every ground on which it might be justified has long since been removed. It lias been remarked —and, as tar as our experience goes, with perfect truth—that the occasions on which the sympathies of an audience have been invoked on behalf of a debtor are innumerable; whilst the whole library of dramatic composition may be searched in vain for a single instance ot a creditor being deemed a proper object tor commiseration. And even now those who incur losses by the default of others are generally regarded with indifference; whilst those who inflict them too often are held as entitled to respectful consideration. This appears to us to be fundamentally wrong. To obtain the woods of others, the produce of their

industry, and to make away with them, is enough in itself to establish at least a presumption of misconduct. Exnerience shows that such losses rarely

take place without much that is culpable ; and the onus of proof naturally rests with those who have inflicted an injury rather than with those who suffer from it. The law, however, instead of requiring a man to show his insolvency to be the result of misfoitune, entirely absolves him from that duty, and grants a discharge, unless the creditors succeed in proving fraud or recklessness almost tantamount. And in general it is held that the fact of tiie money being gone —being consumed in one way ©r other —terminates the business, the law not concerning itself to inquire how it was got rid of, or to punish any degree of extravagance or recklessness that may have occasioned the insolvency. The concealment of property by a bankrupt has, it is true, always been regarded as justly punishable, but is there any great distinction between reseiving the property of creditors for future use, and consuming it on the spot ? It seems to us that the fact of the insolvency being real, or, in other words, the money being gone end nothing to show for it, so far from being held to entitle the applicant to ft discharge, constitutes ot itself a strong prima facie case against him. We have said that we consider the onus of proof should rest with the debtor—--1 that it is for him to establish his freedom? from blame, not for the creditors to prove misconduct. We hold this on two grounds : First, because of its naturalness. What more reasonable

than that he to whom a trust is committed should account for it, and if unable to do so, at least to give the reason why ? And, secondly, because ' ■<, from misfortune is always in possession ,o£ the means of proving the fact j whilst in cases of fraud the creditor does not occupy a corresponding position, for the requisite proofs arc not accessible to him. Where all evidence bearing on the subject is necessarily in the hands ol the accused, and where a strong presumption has been established against him, it surely is not a straining of justice to reverse the ordinary procedure, and call upon him to vindicate his innocence; and this more especially when, as at present, the strongest guilt is subjected to no penalty, and where t)xe party nominally seeking protection himself, Is in reality but endeavoring to deprive his creditors of the protection which the law provides for them towards recovering their own. One argument used in favor of the laxity of the existing law is very extraordinary. It is represented that advantage results from its punishing traders for their want of caution in granting credit, mid thus makes them more cautious in future.. J3y this reasoning, it would seem that to he too good-natured or confiding, to be deceived by a smooth, plausible rogue, were so heinous an offence as to be justly punishable by the confiscation of property ; whilst the deliberate obtaining of goods without intention to pay for them, without power to pay for them, and living in idleness upon the proceeds of other people's industry, were so venial an offence as to call for no penalty whatever—nay move, that it should confer upon the delinquent the privilege of complete legal absolution from all prior indebtedness. Speaking of the absurd argument used in favqr of the laxity of the present law as likely to prove a beneficial check upon the imprudent giving of credit, it has been admirably observed by John Stuart Mill .that ha worse mode of compassing that object could scarcely be invented than to permit those who have been trusted by others to cheat and rob them with impunity. The law does not generally select the vices of mankind as the appropriate instrument for inflicting chastisement on the comparatively innocent. When it seeks to discourage any course of action, it docs so by applying induce-

ments of its own, not by outlawing those who act in the manner it deems objectionable, and letting loose the predatory instincts of the worthless part of mankind to feed upon them. Jf a man has committed murder, it condemns him to death ; but it does not promise impunity to anyone who may kill him for the sake of taking his purse. The offence of believing another’s Avoid, even rashly, is not so heinous that, for the sake of discouraging it, the spectacle should be brought home to every door of triumphant rascality with the law on its side mocking the victims it has made. Besides, it is idle to expect that even by absolutely depriving creditors of all legal redress the kind of credit which is considered objectionable would be very much checked. Rogues and swindlers are still the exception among mankind, and people will go on trusting each other’s promises.”