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
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.