With regard to those greater and more conspicuous economical frauds,
or malpractices equivalent to frauds, of which so many deplorable
cases have become notorious--committed by merchants and bankers
between themselves or between them and those who have trusted them
with money, such a remedy as above described is not available, and the
only resources which the present constitution of society affords
against them are a sterner reprobation by opinion, and a more
efficient repression by the law. Neither of these remedies has had any
approach to an effectual trial. It is on the occurrence of
insolvencies that these dishonest practices usually come to light; the
perpetrators take their place, not in the class of malefactors, but in
that of insolvent debtors; and the laws of this and other countries
were formerly so savage against simple insolvency, that by one of
those reactions to which the opinions of mankind are liable,
insolvents came to be regarded mainly as objects of compassion, and it
seemed to be thought that the hand both of law and of public opinion
could hardly press too lightly upon them. By an error in a contrary
direction to the ordinary one of our law, which in the punishment of
offences in general wholly neglects the question of reparation to the
sufferer, our bankruptcy laws have for some time treated the recovery
for creditors of what is left of their property as almost the sole
object, scarcely any importance being attached to the punishment of
the bankrupt for any misconduct which does not directly interfere with
that primary purpose. For three or four years past there has been a
slight counter-reaction, and more than one bankruptcy act has been
passed, somewhat less indulgent to the bankrupt; but the primary
object regarded has still been the pecuniary interest of the
creditors, and criminality in the bankrupt himself, with the exception
of a small number of well-marked offences, gets off almost with
impunity. It may be confidently affirmed, therefore, that, at least in
this country, society has not exerted the power it possesses of making
mercantile dishonesty dangerous to the perpetrator. On the contrary,
it is a gambling trick in which all the advantage is on the side of
the trickster: if the trick succeeds it makes his fortune, or
preserves it; if it fails, he is at most reduced to poverty, which was
perhaps already impending when he determined to run the chance, and
he is classed by those who have not looked closely into the matter,
and even by many who have, not among the infamous but among the
unfortunate. Until a more moral and rational mode of dealing with
culpable insolvency has been tried and failed, commercial dishonesty
cannot be ranked among evils the prevalence of which is inseparable
from commercial competition.