SENATE.]

The Bankrupt Bill.

[JAN. 23, 1827.

ing uniform benefits to all classes of the community, fit to receive them. For what good purpose could the agri. culturist be kept under a load of poverty and distress? and what injury could possibly result from relieving him from difficulties which he could not avoid, and against which his own efforts were unavailing? Why not extend this relief to one class as well as another? He had not expected to speak on this occasion, as he had anticipated hearing from another quarter, in answer to the remarks of the gentleman from North Carolina and had only risen to defend a clause in the bill, in which he, as well as his constituents, felt a great interest.

in England, the bankrupt law extended only to merchants, and the agriculturists had been previously protected; and when a writ of fieri facias issued against a land holder, it was guarded by a salvo contenemento, which secured him against entire deprivation of property, in order that he should not be driven to despair. The cultivated land was, in the opinion of Mr. R. as much the stock of the agriculturist, as goods and wares were the stock of the merchant. Like the merchant, he might be disappointed in his expectations, and some unforeseen disaster might reduce him to poverty. Should he, then, be deserted, and left without any hope of that relief which is held out to him in this bill? He saw no reason Mr. BRANCH, in reply, observed, that his friend from why the agriculturist should not be allowed a similar pro- Kentucky had entirely misconceived him. He [Mr. B.] tection to that granted the merchant. It could not be was a friend of the agricultural portion of the community. said, that the agriculturist did not run equal risks with He represented a plain sort of People, and professed to the trader for it would be recollected, that the agricul- be one of the same class; and he had endeavored to show tural class were, in many instances, in a manner, silent the Senate, that the farmer, the planter, the agriculturist, partners of the merchant; the latter holding large sums and the mechanic, had not the same benefit, according to of their money, which, as enterprising men, they did not the bill now before them, and, hence, that the bill was wish to have lie idle. The merchant often carried on his not uniform. His friend from Kentucky was mistaken, business upon the capital of the farmer, and often, when in supposing that he did not intend to give the farmer the he failed, ruined those who had confided in him. As the same privileges as the merchant. He opposed the prooak in the forest, when it falls, crushes many smaller trees vision of the 93d section, because it was entirely contin in its descent, so the merchant, in his fall, spreads ruin gent, and made the act of Bankruptcy depend on the around him. Thus it would be seen, the agriculturist whim or caprice of the creditor. He believed that Conwas most generally injured by any misfortune that befel gress was alone allowed to pass an uniform Bankrupt law: the merchant, and was thus exposed to all the vicissitudes they had the same right, in that respect, which they had of commerce, although not immediately engaged in it. in respect to naturalization; and, he repeated, that the And so it will always be. The farmer will deposite his pro- bill on the table was not uniform. He wished the privi perty in the hands of mercantile men, because he does lege given unqualified, if at all, to the agricultural pornot like to let it lie idle; and while the winds still blow, tion of the community. If they asked for bread, he hopand the seas are still infested with rocks, he will, in some ed Congress would not give them a stone. He was free degree, share the risks and misfortunes of the merchant; to declare that he could not vote for the bill, with or and if he is ruined, the agriculturist will suffer with him. without this section. The People whom he represented He saw no reason why the provisions of the bill should were in an embarrassed condition-they were, in fact, ne not extend to all classes. If the object was to restore ver more so than at present. They had been borne down the merchant to his freedom; to relieve his mind, and by misfortunes, and still more by the very merchants and give it again that buoyancy which should enable him to bankers for whom this act was to be passed. They had return to his former pursuits with his wonted energies; been oppressed and almost ruined by the operations of the why not give the same benefits to other classes, when Federal Government, which had shut out the only branch misfortune may have placed them in a similar situation? of trade in which they could engage, and had destroyed Such a provision ought to be made especially in this the market for their lumber and produce. If this system country, where all landed property was exposed to exe- was continued, he knew his constituents would severely cution. If the bill was to pass-and he was not yet decid-feel the want of a Bankrupt law, to relieve them from edly in favor of all its parts-although he certainly was convinced of the expediency of the provision in the 93d section-he certainly should not vote for it if that section were struck out. He would not advocate, at any rate, the erection of a superior class, whose happiness and prosperity were to be regarded in preference to those of other Mr. HOLMES said, that, if the objection of the gentleclasses. If this bill was to carry happiness to the mer- man was directed to a want of uniformity-and that want chant, let it carry it also to the agriculturist, the manufac- of uniformity consisted in a distinction between the proturer, and the mechanic. If the bill will produce good vision for the merchants and those for other classes-the effects, let us extend them to all the community. If its adoption of the motion of that gentleman, to strike out effects were not good, then it would the sooner be re- the 93d section, would make it still worse. If the gen pealed, the wider its provisions were extended. He was tleman now complained that its operation upon two disin favor of the universal application of the bill; and be-tinct classes was to be different, certainly, if he struck lieved, although not decided, that the bill ought to pass; out the entire provision for one of them, he rendered the that in framing it, it was but just to include all denomina- bill so far from general or uniform, that it would be totions of persons. tally partial. Uniform it might be ; not, however, as apMr. R. said, that his honorable friend from North Caro- plied to the country at large, but in respect to one class lina had not been very happy in illustrating his motion. only of the community. Mr. H. believed that an uniform He had referred to the naturalization act, and observed, bill was, in its real definition, one which would extend to that we had no right to make it multiform. Now he, [Mr. every class of the body politic. The first Bankrupt bill R.] thought the same; but this fact, in his opinion, ra- that was ever framed in England, did not include any but ther went against, than for, the gentleman's argument. merchants; and the second, which passed in the time of The Constitution required an uniform naturalization law, Elizabeth, did not discharge the debtor; but Congress and an uniform bankrupt law; and he [Mr. R.] should was not bound by the same restrictions. They were rathinterpret its meaning, that our country should be thrown er to make a law applicable to the condition of the counopen for the admission of foreigners of all nations, on try: Any system which should extend to all classes of equal terms-so should he define the word uniform, in its People, and release them from the claims of their creditapplication to the bankrupt system, as including and giv. fors, when unable to pay their debts, was a system of Bank

their distresses; but they could not consent to such a law as this, which placed one class in a more advantageous situation than others. If the boon was given at all, let it be given freely and unconditionally; and, until that was done, he should oppose the bill.

ruptcy; and he believed that it was not requisite that it should be exactly alike in the form of its application to the different classes. If the object of the bill was effected, it seemed to him to be sufficient.

[SENATE.

debate, should render it proper, he would most cheerfully add his exertion to those of the other members of the Committee, to sustain the position he had advanced. But, said he, when I say I am in favor of a Bankrupt System, I Mr. H. did not think, with the gentleman from Kentuc-mean to be understood as speaking of a Bankrupt System ky, that the oak in its fall crushed only the smaller sap-in the language of the Constitution, and such as was in lings of the forest: he believed it overthrew many a stur- contemplation by the framers of that instrument. All the dy tree in its fall. The large planter, who placed the other provisions of the bill, he said, were of that characproduce of his plantation in the hands of the merchant, ter, and had met his approbation in the Committee. The was a towering tree-and if the merchant with whom he 93d section was not, and had never received his sanction. was connected fell, the planter must fall with him. The It was an insolvent, and not a bankrupt law. It was such planter required extensive credits to carry on his busi-a bill as Congress had no right to pass. He said, he was ness, and his prosperity depended upon the same combi- aware of the ingenuity which had been, and might again nation of events as that of the merchant: why, then, be used, to confound the bankrupt and insolvent systems should he not be relieved when he became involved in -an ingenuity which had before, and might again, emthe same misfortunes ? If the merchant was released af-barrass the question as to the relative powers of the Feter his failure, owing hundreds of thousands, why should deral and State Governments. He was conscious of the the planter be imprisoned, without any provision for his difficulty (difficulty arising from the decisions of the emancipation? Why allow the merchant, after dividing Courts, and the frequency and contrariety of legislation his property among his creditors, to go at large, a free in England) that existed in laying down a clear and unman, if you do not, under the same conditions, give the exceptionable rule of discrimination between Bankrupt same privilege to the planter and the manufacturer? He and Insolvent laws. For the present, at least, he should contended that, if the merchants only were to be protect- not attempt it. He would content himself with the gene. ed, when other classes shared their risks, and were equal-ral declarations-That, for nearly three hundred years, ly entitled to protection, this bill ought never to pass. the two systems had been kept distinct in England: That Bat, as to the clause under consideration, it provided for they differed in their origin, object, and provisions, and a voluntary Bankruptcy. The debtor, followed by his had always, there and here, been executed by different creditors, might resort to this protection: but he was not tribunals: That, at the time of the adoption of the Conobliged to become a Bankrupt without he was willing. If stitution, they were known and distinguished, both in the bill was not uniform, its want of uniformity was en- England and this country, as distinct systems-the one tirely in favor of the agriculturist. In the case of the mer- having for its object to afford a summary and speedy rechant, he was forced to a division of his property, or he medy for creditors against fraudulent or failing traders; forfeited all the advantage promised by the bill: But it the other affording relief to insolvent debtors of all deno was not so with other classes: The matter was with them minations. The Constitution of the United States, he entirely voluntary. He repeated, what he had said be- said, had clothed the National Legislature with power to fore, that the 93d section contained the most valuable establish the former, and had left the right to pass, and provision in the bill and, bad as the bill was, Mr. H. the duty of establishing the latter upon the State Governwould vote for it, if that clause was retained, but certain- ments. The 93d section of this bill, he said, was, upon ly not otherwise. any definition that might be given of the different terms, The yeas and nays on the motion being ordered, an Insolvent law. If it passed, that is, if Congress had Mr. VAN BUREN said, that, as the decision of the im- the constitutional power to pass it, the States had no right mediate question before the Senate would control his to pass any law upon the subject of insolvency; not even course on the final passage of the bill, he felt himself con- to authorize the discharge of debtors imprisoned, upon a strained to state the principles which would govern him process issuing out of their own Courts, otherwise than in the vote he was about to give. He might not, he said, as it might suit the pleasure or convenience of Congress be as sanguine in his expectations of the benefits to be to permit. There was, he said, no middle ground. If anticipated from the establishment of an uniform system the partition wall between Bankruptcy and Insolvency of Bankruptcy, as some of his colleagues of the Commit- was once broken down, all State legislation was subjecttee; but he was not less anxious than they that such a ed to the absolute and arbitrary supervision of Congress. measure should receive the sanction of Congress at the He did not believe that such was the design of the fram present session. He was aware of the serious and imposers of the Constitution He did not believe that such was ing objections that had heretofore been made to the sys- the Constitution. He, therefore, objected to the constitem, and that would always be made, whenever its esta- tutional power of Congress to pass the section referred blishment was attempted. He was sensible of the argu- to. He had before said, that he rose to explain, not to ment that was to be derived from the unfortunate result of discuss, and he would not depart from the course he had the only experiment that had been made upon the subject marked out for himself. He would, therefore, only add, by the Federal Government. He was, notwithstanding, that, in his judgment, the provision contained in the 93d willing to repeat it. He felt so disposed, not only because section, was not within the reasons which induced the he was satisfied that a great proportion of his immediate framers of the Constitution to vest this power of establishconstituents desired it, but because he believed their ing uniform laws on the subject of Bankruptcies, in Conclaim upon Congress for the exercise of its constitutional gress. That it was a power which never ought to be, or powers in this respect, could be sustained on the ground to have been, vested in Congress. That it could only be of policy as well as justice. well and successfully executed by the States, where those who made the Constitution had left it. That its exercise would operate most injuriously upon the system which governed the Union and the States separately. Those mischiefs would, among other things, consist in an injurious extension of the patronage of the Federal Government, and an insupportable enlargement of the range of its judicial power. It was not his purpose to specify. He would only say, that, if this section passed, it would be perfectly idle to think of the sufficiency of one or two, or ten or twenty Commissioners, to execute the law in

Mr. V. B. said, he would not anticipate the subject by making even a general remark in reference to that branch of it at the present moment. His object in rising, was explanation, not discussion. The subject had, moreover, been most ably, as well as discreetly discussed, not only by the able and worthy Chairman of the Committee, but by at least one of his colleagues, at the last session. The state of the public business, and the advanced period of the session, required action, rather than discussion. If, however, the fate of this question, and the course of the VOL. III.-7

many, if not most, of the States. But a still more exceptionable consequence would be, the extension of the jurisdiction of the Federal Courts, and the indispensable necessity of an immediate and great increase of their num ber. The obvious character of this consequence superseded the necessity of detail. The portion of litigation in the different States, arising out of their insolvent laws, was familiar to all, and that would, of necessity, be either immediately or ultimately drawn into the Federal Courts. He was certain that, if the bill passed as it stood, the measure would not stand as long as its predecessor. It was, he thought, improbable, that the States could stand quietly by and see themselves thus shorn of so great and salutary a portion of their powers. The decision of the Supreme Court of the United States would, doubtless, be referred to; of that, he would, for the present, only say, that that high tribunal had not as yet covered the whole ground. He was aware of what, at the moment he was speaking, was going on below. But he would not, for an instant, anticipate farther limitations upon the rights of the States upon this subject. As yet, they had not been restricted by the Supreme Court from passing prospective Insolvent laws. Such was the ninety-third section. Such the States, and the States only, had a right to pass. If Congress acted upon the subject, their act, if acquiesced in, would include a surrender of all State power upon the subject. If it was put to him to decide between being a party in such surrender, or the loss of the Bankrupt bill, he could not, as he viewed the subject, without being false to his trust, hesitate in preferring the latter.

Mr. JOHNSON, of Kentucky, said, that he was sorry that the discussion had taken a turn so unexpected and so unhappy, as to bring the mercantile and agricultural interests into collision, and make a party matter between them. He did not suppose that the Committee were disposed to deprive the agriculturists of the benefits of the bill, when they were obliged to bear a share of all the evils which it was to remedy. Mr. J. observed, that he should vote for the bill, if the section under consideration were retained; but he certainly could not, if it were struck out. The gentleman last on the floor was one of the Committee; and it was the first time he had heard that that gentleman's opinion was adverse to this section; and he felt as much regret as surprise at discovering that he was against it. He thought that, if this bill were applied to one class, it should be to another. If they passed this bill to alleviate the sufferings of merchants only, it would be a partial law as regarded the other classes. The vivifying principle ought not to be confined to any privileged order; but the relief and advantage held forth in the bill ought to be general and unconfined, and their good effects he dispensed to the cottage as well as to the palace; and, unless such was the nature of the bill, he could not vote for it.

WEDNESDAY, JANUARY 24, 1827.

The Senate again took up the Bankrupt Bill, Mr. BRANCH'S motion to strike out the 93d section, being

still under consideration.

[JAN. 24, 1827.

If the section under consideration be liable to objection, it must be either

1. Because Congress has no power to pass such a law; or 2. Because it is inexpedient to exercise such power. Let these propositions be separately considered. In examining the power of Congress to pass an act of Bankruptcy, we necessarily refer to the constitutional provision, and the terms of the grant are carefully examincd, with a view to determine its character, and the limits to which it may properly be extended. The result of such an inquiry is, on this occasion, peculiarly satisfactory. The power is as extensive as language can make it. It is at once comprehensive of the whole subject, and exclusive, in its application to individuals, of all other legis lation. It is a power to establish laws on the subject of bankruptcies, necessarily, therefore, embracing whatever belongs to this relation between debtor and creditor; and since it is a power to establish uniform laws on this subject, it excludes, ex vi termini, the idea of any other legislation, which would, in its operation, destroy the uniformity of the system, thus established by Congress. Thus it is in its very terms, an exclusive power, over the whole subject of Bankruptcy, and no less certainly over every part of that subject. Omne majus continet in se minus. What then is Bankruptcy, the right to regulate all the concerns of which, in terms so comprehensive, is thus conferred on the Federal Legislature What are those bankrupt laws, which Congress are thus authorized to es tablish? A bankrupt law may be described to be, a law, by the operation of which, in certain specified cases, a debtor is divested of his property, which is invested in trustees for the benefit of his creditors, and which, having thus stripped him of all means of fulfilling his engagements, discharges him from their obligation, by protecting his person from imprisonment, and his future acquisitions from liability to his existing debts. Its operation, then, is threefold:

It releases the person of the debtor from imprisonment. It subjects his property to the control of his creditors. It discharges the contract, and thereby protects the future acquisitions of the debtor.

This whole power is given to Congress, subject only to one limitation, to which I will hereafter advert-that the bankrupt laws shall be uniform. Even the very limitation of the power, gives to the legislation of Congress its exclusive character. During the continuance of any act passed by them to carry it into effect, all State legislation must necessarily be subordinate. The States may still legislate over that portion of the subject, to which, in the absence of the act of Congress, their constitutional powers would have extended; but in their application to individual cases, the authority of the general law must ne cessarily prevail over that which is local. This results from the provision of the second section of the sixth arti cle of the Constitution, which, with precise reference to State legislation, declares that the laws of the United States, made in conformity to the Constitution, shall be supreme. You have, moreover, a legislative recognition of the principle, in the particular case now under consideration, in the bankrupt law of 1800, the sixty-first section of which provides for the operation, sub modo, of the State insolvent laws; and you have finally, a clear affirmative exposition of the same doctrine, in the deci sion of the Supreme Court, in the case of Sturges and Crowninshield. If this view of the subject be humiliating to those who believe with me, that the preservation of the rights of the States, in their original vigor, is essential to the safety of the Union, the answer is, so the law is written; it is stipulated in your constitutional charter; the compact is registered in the chancery of the nation.

Mr. BERRIEN said, I should have been gratified if the opponents of this bill had selected some point of attack, which would have permitted us to enter at once on the discussion of the merits of the system: such a course was recommended by considerations applicable to the economy of our own time, and to the fair and full examination of the important questions which we are called upon to decide. Gentlemen have deemed it advisable to adopt a different mode of proceeding. It is our duty to acquiesce, and it becomes appropriately mine, to explain, as briefly as I may, the reasons which have influenced the Gentlemen seek to escape from it, by asserting that the committee, in recommending this provision to the Senate.provisions of the section which it is proposed to strike out

belong properly to an insolvent law-that the power to regulate insolvencies is retained by the States, and that this act invades it. To this the answer is brief, but, as it seems to me, satisfactory.

[SENATE.

The power "to establish uniform laws on the subject of Bankruptcies," is a power to declare who shall become bankrupt, as well as what acts shall constitute bankruptcy, and what shall be its effect, both in relation to debtor

We inquire, first, what is an insolvent law, as contra-and creditor. distinguished from a bankrupt law? By the terms of the We are told that this term, although it is not defined grant, the power of Congress extends to the whole sub- in the Constitution, was a term of definite signification in ject. The power of the States over any part, can at most the statute law of England, from whence we have borrowthen be only concurrent. But the assertion even of such ed it, and that to the English statutory interpretation we a power imposes the obligation to define the sphere with- must look to determine the limit of the power thus conin which it may operate. The obligation becomes more ferred on the Congress of the United States. It is a some imperative, when it is said that the power of the States to what startling proposition to suppose it to have been inregulate insolvency is exclusive, and therefore to be sub-tended that an American Congress, in the exercise of a tracted from the general power of Congress over the power like this, should be limited to the actual cotempo. subject of bankruptcy. What is that limit beyond which rary experience of a foreign nation, whose laws on the Congress may not go, in the exercise of the general specific subject had been variant at different periods; power, because of the rights retained by the States were, at the moment of the adoption of our Constitution, Gentlemen have not defined it. They are aware of its extremely imperfect; were daily undergoing change undifficulty, and deal therefore only in generalities. They der the action of the judicial powers; and were destined, tell us that between the two systems, (as they denominate at no distant period, to thorough revisal by its own legis. them,) of bankruptcy and insolvency, there is a known and lature. Independently of these considerations, we an obvious distinction, well understood, and uniformly re-swer that the meaning of the term has not been fixed and cognized in our legislation; but they do not tell us what uniform in the statute law of England. Commissions of that insolvency is, over which they claim for the States an Bankruptcy, borrowed from the civil law, where they exclusive control. With a view to the limits of Federal were not in their origin exclusively confined to traders, and State legislation, the subject would not be without were, by the first statute against English Bankrupts, exits difficulties, if the question were made to depend on tended to all classes of the community who committed the the interpretation of this term. acts specified in the statute; and if, at a later period, and at the precise period of the adoption of our Constitution, they were confined to traders, the modification was in fluenced by considerations which cannot exist under the political institutions of this Confederacy. Besides, if the rule in England is to limit the exercise of the power in relation to the persons to whom it is to be applied, why does it not also control us when we come to specify the acts which shall constitute bankruptcy? This is not for a moment pretended. Yet in both cases the obligation of the rule is the same.

Lord Mansfield once said that a man might be insolvent without being a bankrupt, and might be a bankrupt and yet pay 25 shillings in the pound-intimating, therefore, that insolvency was, what, in common parlance, I believe it is understood to be, that condition of a debtor in which his estate is unequal to the payment of his debts. In a more recent decision in the Common Pleas, the Court say a trader is insolvent when he fails to keep his general days of payment, and he is not less so because his affairs may afterwards come round. And, in the case before referred to, the Supreme Court of the United States have said, substantially, that the line of partition between bankrupt. cy and insolvency is not marked with sufficient distinctness to derive from it a limitation of the legislative power. The decisions of that high tribunal are entitled to respect. They are authoritative, so far as, in the exercise of their Constitutional powers, they have decided that a given subject is beyond the control of the legislative power-because, since the interpretation of the laws is confided to them, and, so long as it is confided to them, and since with them precedents are binding, future legislation on the same subject would be merely futile. But speculations affirming the power of Congress in reference to any particular subject, in anticipation of its exercise, are mere obiter dicta, of value doubtlessly as the opinions of eminent Jurists, but affording no rule for our conduct, except as they may coincide with our own judgments. The opinion expressed in the case referred to, derives some additional weight, from the consideration, that the distinction, if it could have been clearly marked, might have facilitated the labors of the Court in the decision of the principal question.

In the absence of a clear and practical distinction between insolvency and bankruptcy, and in the general power given to Congress over the latter, then, is to be found the answer to the exclusive claim of the States, to legis late concerning the former. But gentlemen who have failed to tell us what insolvency is, believe that they are able to say, with confidence, what bankruptcy is not. The section under consideration performs all the offices of a bankrupt law; but they object that such a law cannot legitimately extend to the non-trading classes. We ask, in reply, where is the limit in the Constitution? It contains no definition of the term "bankruptcies." The .gulation of the whole subject is confided to Congress.

Again, it is said, that a settled distinction between insolvency and bankruptcy is, that the former is voluntary, the latter coercive-that proceedings under insolvent acts originate at the instance of the debtor, while those under the bankrupt laws are commenced by the creditor, and that, forasmuch as the provisions of this section require the consent of the debtor, therefore it is not a bankrupt law. To this I answer, that, if the power of Congress to extend the system, beyond the trading class, has been established, their discretion must be competent to regulate the mode of its application. We have on this precise question, the affirmative opinion of the Supreme Court, in the case so often referred to in this debate; and I add that voluntary bankruptcy is now provided for, even in the statute law of Great Britain. I admit that if we are tied down to the statutes of the British Parliament, existing cotemporaneously with the adoption of our Constitution, voluntary bankruptcy did not exist in England. But ask if the existing British Statute is less a Statute of Bankruptcy, properly and technically so called, because it permits the proceedings to be originated by the debtor? In truth, sir, it seems to me, speaking with the utmost respect for those who differ from me, that there is a confusion of ideas on this subject, from which the whole dif. ficulty originates. We do not distinguish with sufficient accuracy, between the principal and its incidents of object and mode. The power to pass a law is one thing; the objects to which that power shall be applied is another; and a third and distinct consideration is, the mode in which it shall be exercised. The constitutional grant confers the power. There it stops. As in all other cases, the parties to the Constitution, citizens of the United States, or persons liable to the jurisdiction of its laws, are the objects on which that power may be exerted, unless some specific limitation is found in the instrument, while

I

SENATE.]

The Bankrupt Bill.

[JAN. 24, 1827.

the mode in which it is to be exercised is left to the dis- they have for the last twenty years been subjected, pecucretion of Congress. The power thus granted was sub-iary distress has not been limited to the merchant, but jected to one, and only to one limitation. The laws on has often pressed heavily on the agriculturist: since inthe subject of bankruptcies must be uniform. What other stances are unhappily too frequent, in which individuals was necessary? What other could co-exist with this? of this class are involved in debt, without power to extri-. A power in the States to legislate on any part of the sub-cate themselves, by the most strenuous and unremitted ject, if exclusive, would destroy the uniformity of the exertion; can it be doubted that they will receive with system, to ensure which, was the reason for vesting the gratitude the benefits conferred by this bill? And why power in the Federal Legislature; and even if concur- should they continue in durance? The creditor derives no rent, would produce a like result, unless it operated in benefit from their suffering. The community is deprived subordination to the general law. of the efficient exertions of a portion of its citizens.

It

I am content to rest the power of Congress to extend a If this objection to this section were urged in behalf system of bankruptcy to the non-trading classes, on the of the mercantile classes, I should feel somewhat more reasons which I have thus briefly stated. I will not seek difficulty in meeting it. But to them I would say, that the to enforce them, as I might do, from the consideration that application of a various rule to them and to the non-tradthe principle of equal justice lies at the foundation of ouring classes, is justified by the diversity of their occupasocial institutions that laws operating in terms, exclu- tions. i Of the profession to which they have devoted sively on one class of the community, are inconsistent with themselves, credit is the essential principle. To its prethe genius and the spirit of our political association; that servation, the strictest punctuality is indispensable. The if bankruptcy be considered as a privilege, all are entitled nature of their pursuits enables them to obtain credits far to participate in its benefits; if as a crime, the great rules beyond those which are accorded to non-traders, who of criminal justice must be equal in their operation on all have more of capital in proportion to their debts. classes of your citizens; and that, if viewed, as it in fact would be unjust, therefore, to subject the latter to the deserves to be, as a regulation for the mutual benefit of coercive application of a rule, not demanded by the indebtor and creditor, tending to the advancement of jus-terests of their creditors, nor applicable to the ordinary tice, to the promotion of individual happiness, to the in- course of their transactions. crease of the productive energies of the country, our con- In reference to the influence of this provision on the stitutional powers and obligations must be co-extensive rights of the States, I have already said, that the legislawith the causes which call them into action. tion of the States may still be exercised within its constiIf the power to extend a bankrupt law to the non-trad-tutional sphere, although it must operate in subordination ing classes of the community has been ascertained, and to this act. But the Senator from New York, who partiif the views which I have taken of the nature and effect cularly urges this objection, acquiesces in the propriety of the system be correct, it would seem that the inquiry, of a Bankrupt law limited to merchants. To him, therewhether it shall be so extended, would refer itself rather fore, I propose this question: If the clause under consito our duty than to our discretion; that it can scarcely be deration be stricken from the bill, how much of those considered as a question of mere expediency. I am con- rights, which he is so solicitous to guard, will be preservtent, however, to meet our opponents on this ground. 1 ed? Then, as now, the States would be entitled to pass have a single remark to make in advance. The powers laws discharging from imprisonment, which would opeconferred by the Constitution were not given to lie idle.rate beyond the limits of the act by their own force, and It was not the object of the framers of that instrument to within those limits by the provisions of the 78th section. create a splendid pageant for the admiration of theorists Is this humiliating to his State pride? The objection itin political science, but to institute an efficient Govern- self concedes, that they must so operate in relation to trad, ment, vested with powers limited in their nature, but ers. The principle, then, is yielded. supreme within the sphere of their operation, which should, by the active exercise of those powers, contribute to the happiness of this great and growing Confederacy. As a rule of evidence, therefore, the burthen of proof is with our opponents, who deny the expediency of exercising a given power. I will, however, briefly consider this question.

The objections to the expediency of this measure may be considered, with reference,

The objection of want of uniformity has been sufficiently repelled by the Senator from Maine. The uniformity required, is among the several States.

I will only further add, that, believing Congress possess the power to extend the benefits of a Bankrupt System, I believe it is their duty to do so; and that, for myself,

anxious as I am to relieve the distresses of the mercantile community, I will not consent to legislate for them alone, until, by the decision of a majority of this House, I shall

1. To the non-trading classes, on whom it operates di-be inhibited from extending the benign influences of this rectly.

2. To the mercantile community.

3. To the States, whose rights it is said to assail.

system to all classes of the community.

Mr. JOHNSON, of Kentucky, rose to state a fact, in order that the few words that had dropped from him yester In considering this section in its operation on the non-day, might not be misapprehended. He had not intendtrading class of the community, there is one answered, in stating that he never, until that moment, knew of which is decisive of all the objections which they may be the opinion of the gentleman from New York, to imply supposed to entertain. The question is between a Bank- that there had been any improper concealment on his rupt law, with or without this clause. As to them, this part. He [Mr. J.] had only met once or twice with the provision is beneficial, or at their option it is no law. It Committee, and had, in fact, no opportunity of learning is to them, as if it did not exist. They have only to say, that gentleman's views on the bill. In making his rein the spirit of the Barons of England, we will not change marks yesterday, he had intended nothing more than to the law, and the operation of this section, as to the indi-express his surprise, mingled with regret, that the gentlevidual refusing, is at an end. The Senator from North man should have opposed the section upon which he [Mr. Carolina is in error, in supposing that there is any differ-J.] had placed great value. He had not intended to cast ence between the modes of proceeding against the mer-any censure on his learned colleague; nor was it his prochant and the agriculturist, which is not favorable to the vince to complain of any opinion that he might see fit to latter. The creditor must first move in both cases, but the express assent of the non-trading debtor, is necessary to subject him to the provisions of the act. Since, from the character of our People, and the vicissitudes to which

advance. He would further remark, that the Committee had, from the beginning, been divided upon this section; and had agreed to report the bill without coming to a decision upon it, leaving each individual member to express