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entrepreneurs proper, the original organizers and promoters of enterprises, are simply the commonplace, idle recipients of permanent profits and the mildly fluctuating temporary profits." The keynote is struck when he says that "the so-called conflict between capital and labor is at bottom a conflict between capital and labor on the one hand, and the owners of opportunities on the other." And he further says: "A wise public policy will encourage to the utmost the development and rewards of personal abilities in the organizers and promoters of business. But the case becomes entirely different when temporary profits have become transformed into permanent monopolies. Now instead of the profits being due to the powerful exertions and abilities of the captains of industry, they are due to certain fixed social relations and rights. The recipients of these incomes may with perfect security become idlers and drones. They abdicate their functions as entrepreneurs into the hands of salaried chiefs and advisers. They are no longer performing the services to society which were performed by their ancestors or predecessors, who organized and developed the business to which they have succeeded."
His recommendations with regard to the proper policy for society to pursue in view of the condition of things into which it is drifting should also have weight with those who are influential in public affairs. "All new economies, new inventions, widening of markets, should be encouraged; and the new profits arising therefrom should go wholly to these marginal entrepreneurs as the reward of their enterprise. But society might care for the permanent profits in entirely different ways without injury to industry. It might appropriate them through taxation, as, for example, taxes on land values, franchises and inheritances, but in any case sufficient margin should be allowed for the wide play and scope of the pure entrepreneur's profits. . . Tax reform should seek to remove all burdens from capital and labor and impose them on monopolies. Public policy should leave capital and labor and business ability free and untrammeled, but endeavor to widen and enlarge the opportunities for their employment."
As already remarked, this work does not deal exclusively with distribution, but is much wider in its scope. It is calculated rather to prepare the way for one that shall be thus limited. It is to be hoped that the author contemplates such a work. He has shown himself peculiarly adapted to perform this service. His admirable candor and straightforwardness coupled with the ability to treat the subject in a scientific way, and especially the courage to utter the conclusions which logic dictates, point to him as the person upon whom this duty naturally devolves. He admits in this work that, as a few other
writers have maintained, there is in this age of science, invention and machinery scarcely any other limit to the power of man to produce wealth than the simple inability of the consumer to obtain it, while no one can deny that vastly more is wanted, nay, needed, than is produced. The spectacle of thousands out of, and seeking, employment is the sufficient answer to the pretension that the world is unwilling to make the effort to supply its wants. The impression widely prevails that through some defect in the social machinery the production of wealth is unduly limited, that the product, such as it is, is misdirected, and that most of the evils of society result from this. What is needed is that a cool, dispassionate, and at the same time scientific analysis of the whole problem be made and its real status be set forth. The problem itself seems to be none other than that of the distribution of wealth.
LESTER F. WARD.
Bankruptcy: A Study in Comparative Legislation. By S. WHITNEY
Columbia College Studies in
This careful comparison of the written laws of Europe and the United States on the subject of bankruptcy is intended chiefly for students and legislators, though the practicing lawyer may consult it to advantage when the European law is in question. The general reflections and observations of the author are accurate and valuable.
There is, on the whole, a great resemblance in the laws of all the countries, arising from the necessities of the subject, without in many instances any borrowing by one code from another, excepting that some of the Latin countries follow the lead of France, somewhat as several of our States look to the initiative of New York in matters of legislation.
One of the most striking differences between all Continental countries on the one hand and England and the United States on the other, is that in the former bankruptcy is treated much more strictly as a fault, and even a crime; which has ceased to be the law in England, and never obtained in the United States. This severity is, we suppose, partly the cause and partly the effect of the social aspects of bankruptcy, which is considered a disgrace in the first-mentioned countries.
In several countries "simple bankruptcy" is punishable as a crime, and this is described by our author (pp. 19, 20) to be where the debtor has been "guilty of serious faults in the conduct of his business, not amounting, however, to actual fraud."
"Dr. Dunscomb is not quite accurate in saying (p. 24) that the English law for the punishment of fradulent debtors (Stat. 32 and 33 Vict., c. 62) embraces the cases corresponding to simple and fraudulent bankruptcy. This law, as its title implies, punishes fraud only, that is, acts done with intent to defraud, of which the jury is to judge, though in some cases it shifts the burden of proof, and requires the debtor to clear himself of the intent if the facts are proved.
The refinement of manners has brought about, as Dr. Dunscomb observes, a constant relaxation of penalties in Europe. This is especially true of England, where, until 1820, a bankrupt who failed to "surrender," that is, to acknowledge the jurisdiction, and submit to be examined, or who did not give up to the commissioners or assignees his books and papers, or who concealed property of the value of £20, was to be punished as a capital felon, without benefit of clergy (Stat. 5 Geo. II, c. 30, 31, modified by Stat. 1 Geo. IV, c. 115). It is hardly necessary to say that Congress, in the first bankrupt law (April 4, 1800, 2 Stats. 19), in copying this section of the English law, mitigated the penalty to imprisonment for from one to ten years. It may, no doubt, be maintained with some plausibility that the laws of our country are now too lenient.
In regard to poor debtors, however, we may properly claim credit for the fact that Congress passed, as early as 1796, and has ever since maintained, statutes which release such debtors, when honest, by a simple process, now universal in this country, wherever any imprisonment for debt still obtains.
While, as we have said, the laws of the several countries, have a strong general resemblance, there are some particulars of the Continental codes, which may be worthy of consideration by our law makers.
In Belgium, Italy and Spain, the courts may grant a suspension of payments to a trader, who can prove that he is probably solvent, and a majority of whose creditors consent. This is sometimes done with us, out of court, but requires the consent of all the creditors. The expediency of such a law may he doubted (pp. 12, 13, 14).
In regard to preferences, the great stumbling block, in so many cases to the just and equal operation of the law, and which has given rise, in this country, to a great deal of litigation, the knot is cut, in many countries, by dating the bankruptcy back to the proved date of the suspension of payments; but there is danger, in such cases, of avoiding honest transactions. In view of this, many codes provide in much detail, what acts done within a certain period before the declared bankruptcy may be set aside. "Speaking very generally," says our author, we may say that the acts which may be annulled in the
interest of the estate are those done in bad faith, though for a valuable consideration, those done for no valuable consideration, although in a a few cases the presumption of bad faith raised against gratuitous acts is allowed to be rebutted, and finally those of an equivocal character that are presumed to have been done to favor certain creditors to the prejudice of others, such as the payment of a debt before it is due or in an unusual manner, or the granting of a security for a debt previously contracted."
This does not differ, in principle, from the law which obtains with us (wherever we have bankrupt laws), excepting that the presumptions, above mentioned, are, we suppose, conclusive and do not admit of rebuttal. (See on this general head, pp. 40 to 51.)
In many countries it has been found useful to provide some mode for the oversight and regulation of the proceedings by or on behalf of the creditors, in order to hasten the winding up and to advise the syndic (assignee or trustee) in the settlement of the estate. In England, for instance, there may be a committee of creditors, but if none is chosen, the Board of Trade is required to perform the same duties. Similar provision for a committee is found in the laws of Norway, Denmark, Hungary, Austria, Italy, etc. (pp. 57 to 59.)
The abstract of the laws of the United States is necessarily somewhat condensed, because there is at present no general statute binding throughout the country. An abstract is given of our last bankrupt law, and a summary of the features common to the laws of those States which have a bankrupt law. The want of power in the States to make a satisfactory law is well explained. Upon one of the most important of these liabilities, created by unfortunate decisions (against the protest of Chancellor Kent in "Holmes vs. Remsen," 2 John. Ct. 460), that namely which denies to a decree of bankruptcy under a State law the effect of an assignment by the party himself, he remarks (p. 154):
"These difficulties would not arise if the Continental solution of the questions were accepted. According to the Continental theory, the sequestration by the court of the debtor's domicile, is regarded as a judgment transferring all his property to the syndic. This judgment is not per se capable of immediate execution outside the territory in which the debtor resides, but according to the general rules of international private law as recognized in Europe, it being shown that such a judgment was rendered in the debtor's domicile, the court of the foreign country appealed to will authorize the judgment to be enforced in its own territory."
The Early Records of the Town of Providence, Vols. I-IV, printed under authority of the City Council of Providence by HORATIO ROGERS, GEORGE MOULTON CARPENTER and EDWARD FIELD. Providence, 1892-93.
The printing in an accurate and scholarly fashion of the records of so important a town as Providence is an event of sufficient prominence to call for a special mention. Of all the New England States, Massachusetts has been the only one to pay any attention to her local records, and this is the first instance outside of that State where a systematic attempt has been made to perpetuate in print this valuable material. This is the more unfortunate in that in consequence of this lack of material the study of New England town life has been confined largely to the evidence which these printed Massachusetts records have furnished. Theories of municipal origin and development have been based on this foundation alone, and have been for this reason incomplete and unsatisfactory. The records of the New Haven and Connecticut towns still remain in manuscript and are unavailable except to the local student and the antiquarian.
Now, however, Rhode Island has given to the public the most important of her local material, the first, second and third books of the town of Providence, in four admirably printed volumes, on heavy paper and in serviceable binding. To the City Council of Providence, who authorized the publishing of the volumes, and to the Record Commissioners, to whose charge the work was entrusted, every praise is due for their public spirit, zeal and efficient management. The thoroughness of the work of the commissioners can best be appreciated from the following statement:
"The following method has been pursued in making this copy: In the first place, a careful copy of the original was made under the careful direction of the commissioners. They then personally compared this copy, letter by letter, with the original, and, at the same time, with the transcript of 1800, for the double purpose of assisting in the interpretation of doubtful words and also of supplying letters or words, which are wanting or illegible in the original. The copy thus produced being sent to the printer, the commissioners have personally read all the proofs, comparing every letter therein with the original and also with the copy previously prepared by them, and, in every case, receiving and reading revises, until a proof sheet was received in which such vigilance as they were able to exercise could detect no
In the subject-matter thus carefully printed, the student intimate with other town records will notice many familiar topics, furnishing admirable comparative material, and at the same time some less.