refusal or neglect, and which secures to creditors as between themselves an equitable share of such of the debtor’s assets as may be available for the payment of his liabilites. These are the objects which the bankruptcy laws have primarily in view. Another object, which has not always been so fully recognized as it might appear to deserve, has marked the most recent legislation, namely, the fostering of a higher tone of commercial morality and the protection of the trading community at large from the evils arising through the reckless abuse of credit and the unnatural trade competition thereby engendered. It must be admitted that these objects are of a somewhat conflicting character, and wherever the state has interfered with the view of securing an efficient system of bankruptcy legislation the task has been found to be extremely difficult. Not only have the conflicting interests of the debtor and his creditors to be taken into account, but the method to be adopted in dealing with his property has also given rise to much conflict of opinion, and to a lack of uniformity and consistency in the legislation which dealt with it. The debtor’s property was naturally regarded as belonging to the creditors, but it could not be distributed among them until it was realized, and until their respective right and interests were determined by competent authority. In some cases claims to rank as creditors are of doubtful validity. In others the creditor holds securities, the value of which requires investigation, or he claims a preference to which he may or may not be legally entitled. Creditors have thus conflicting interests as between themselves, and are therefore incapable of acting together as a homogeneous body. Hence the necessity for calling in the aid of professional assignees or trustees, solicitors and other agents, who made it their special business to deal with such matters, exercising both administrative and quasi-judicial functions, in return for the remuneration which they receive out of the property for their services. Professional interests, which are not always identical with the interests of the debtor or the creditors, are thus called into existence, and these interests have from time to time exercised a powerful influence in shaping the course of legislation.
While the law of bankruptcy has therefore been largely the product of commercial development, it has necessarily been of slow and gradual growth, tentative in its character, and subject to oscillation between the extremes of conflicting interests according to the temporary and varying predominance of each of these interests from time to time. No intelligible grasp of the principles which underlie the history of bankruptcy legislation in England, and no satisfactory explanation of the fluctuating tendencies which have marked its progress, are possible without bearing these considerations in view.
Bankruptcy in England.
The subject was originally dealt with in the sole interest of creditors; it was considered fraudulent for a debtor to procure his own bankruptcy. Thus the earliest English statute on the subject, 34 & 35 Henry VIII. c. 4 (A.D. 1542), was directed against fraudulent debtors, and gave power to the History.lord chancellor and other high officers to seize their estates and divide them among the creditors, but afforded no relief to the debtor from his liabilities. Subsequent legislation modified this attitude and introduced the principle of granting relief to the bankrupt with or without the consent of the creditors, where he conformed to the provisions of the bankruptcy law, and under the act of 1825 the debtor was allowed himself to initiate proceedings. Since 1542 about forty acts of parliament have been passed, dealing with the many aspects of the subject, and slowly expanding, modifying and building up the highly complex system of administration which now exists.
The courts exercising jurisdiction originally, consisted of commissioners appointed by the lord chancellor. But in 1831 a special court of bankruptcy was established, consisting of six commissioners with four judges as a court of review, and official assignees attached to the court Court of 1831.for the purpose of getting in the distributing the bankrupt’s assets. Non-traders were originally excluded from the bankruptcy court, and a special court called the “court for relief of insolvent debtors” was instituted for their benefit, in which relief from the liability to imprisonment could be obtained on surrender of their property, but they were not discharged from their debts, subsequently-acquired property remaining liable. Both of these courts were subsequently abolished, non-traders were permitted to obtain the benefit of the bankruptcy laws, including a discharge, and in 1869 the system of official assignees was swept away, and a new court of bankruptcy created with one of the vice-chancellors at its head as chief judge, and a number of subordinate registrars or inferior judges under him. This court has also now been abolished, and the business is administered by a judge of the high court specially appointed for the purpose by the lord chancellor, with registrars of the high court, who deal with the ordinary judicial routine of bankruptcy procedure in the London district, while similar duties are performed by the county-court judges throughout the country.
But the questions which have proved the most difficult to deal with, and which more than any others have been the cause of fluctuating and inconsistent legislation, have undoubtedly been those relating to the share which the creditors ought to have in the administration Rights of creditors.of the proceedings, and to special arrangements effected between a debtor and his creditors under conditions more or less beyond the control of the court. These two questions are largely intermixed, and the history of English legislation on these points and its results throw much light on the causes of the failure of the many attempts which have been made by the most eminent legal authorities to bring the law into a satisfactory condition. The right of creditors to exercise some control in bankruptcy over the realization of the debtor’s property through an assignee chosen by themselves was recognized at an early date, but this right was exercised subject to the supervision of the court which investigated the claims of creditors and determined who were entitled to take part in the proceedings. Provision was also made for the interim protection of the debtor’s property by official assignees attached to the court, who took possession until the creditors could be consulted, and under the supervision of the court audited the accounts of the creditor’s assignee. So long as this system continued substantial justice was generally secured; the claims of creditors were strictly investigated and only those who clearly proved their right before a competent court were entitled to take part in the proceedings. The bankrupt was released from his obligations, but only after strict inquiries into his conduct and under the exercise of judicial discretion. The accounts of assignees were also strictly investigated, and the costs of solicitors and other agents were taxed by officers of the court. But the system was found to be cumbrous, to lead to delay and too often to the absorption of a large part of the estate in costs, over the incurring of which there was a very ineffective control. Hence arose a demand for larger powers on the part of creditors, and the introduction into the bankruptcy procedure of the system of “arrangements” between the debtor and his creditors, either for the payment of a composition, or for the liquidation of the Acts of 1825, 1831, 1842, 1849. estate free from the control of the court. At first these arrangements were carefully guarded. Under the act of 1825 a proposal for payment of a composition might be adopted only after the debtor had passed his examination in court, and with the consent of nine-tenths in number and value of his creditors assembled at a meeting. Upon such adoption the bankruptcy proceedings were superseded. Dissenting creditors, however, were not bound by the resolution, but could still take action against the debtor’s subsequently-acquired property. These powers were not found to be sufficiently elastic and the act failed to give public satisfaction. Attempts were made by the acts of 1831 and 1842 to remedy the defects complained of by a reconstitution of the bankruptcy court and its official system. But these measures also failed because they were based on the assumption that judicial bodies could exercise effective control over administrative
