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ment will spare no efforts, nor lose any opportunity, to remove the evil, through the agency of negotiation and argument; but I trust that the Government will not go a step beyond.
It would be, at best, but to injure ourselves in order to spite others. I hope that some more suitable occasion may be presented to go fully into this important subject before the termination of the session.
On the Bankrupt Bill, delivered in the Senate, June
MR. CALHOUN said : It was impossible to listen to this discussion, without being struck with the difficulty of the subject, and the number and delicacy of the questions involved. The relation of creditor and debtor was, indeed, the all-pervading one in our country, and ought not to be touched without much deliberation and caution. This bill, and the amendment proposed, taken together, embrace this universal relation, almost to its utmost extent and minutest ramification, and ought to be examined with corresponding care and attention.
I was at first inclined to favor the bill : but the discussion and reflection have brought me to the conclusion that it is unconstitutional, and therefore could not receive my support, if there were no other objection. The power of Congress is restricted by the constitution, to establishing laws on the subject of bankruptcies. That is the limit of its power. It cannot go an inch beyond, on the subject of this bill, without violating the constitution. Thus far all must be agreed.
After full and deliberate investigation, I cannot regard this bill as one on the subject of bankruptcy. It relates, in my opinion, to another, but connected subject, not embraced in the constitution—that of insolvency, miscalled voluntary bankruptcy-as I hope to be able to establish.
In order to understand the ground on which my opinion rests, it will be necessary to premise---what none have denied or can deny—that, at the time of the formation of the constitution, there existed, both in this country and in England, from which we derived our laws, two separate systems of laws, growing out of the relation of creditor and debtor; the one known as the system of bankruptcy, and the other of insolvency.
The two systems had existed together in England for centuries, and in this country from an early period of our colonial governments. It would be useless to waste the time of the Senate in accumulating proof of a fact beyond controversy. This very bill, and the only one ever passed by Congress on the subject of bankruptcy, bear internal evidence of the fact. The decisions of judges recognize the distinction, and elementary works place them under distinct heads, and in separate chapters. The distinction is one neither of form nor accident. The two systems, in commercial communities, naturally grow up out of the relation of creditor and debtor, but originate in different motives, and have different objects, which give different character and genius to the two.
The system of insolvent laws grew out of the debtor side of the relation, and originated in motives of humanity for the unfortunate but honest debtor, deprived of the means of paying his debts by some of the various unforeseen accidents of life, and, in consequence, exposed to the oppression of unfeeling creditors. Their object is to relieve him from the power of his creditors, on an honest surrender of all his property for their benefit.
Very different are the motives and objects in which the laws of bankruptcy originated. They grew out of the creditor side of the relation, and form a portion of the mercantile or commercial code of laws. Their leading object is to strengthen the system of commercial credit, with the view of invigorating and extending commercial enterprise ; and we accordingly find that the system commenced in the commercial republic of Venice, and has been confined exclusively, so far as my knowledge extends, to commercial communities. Though growing out of the same relation, and to that extent connected, the two are as different in genius and character as the different aspects of the relation out of which they grow. The one looks to credit and the creditor interest, and the other to the debtor, and the obligations of humanity towards him, when, without demerit on his part, he is utterly deprived of the means of meeting his engagements.
It is true, indeed, that the insolvent system, in its humanity for the debtor, is not unmindful of the interest of the creditor; neither does the bankrupt system, in guarding the interest of credit and creditors, forget that of the debtor. But this, though it has, to a certain extent, blended the two, and caused some confusion in practice, cannot obliterate the essential and broad distinction between them. Nor is it necessary, with my object, to trace the history of the legislation in relation to them in this country and England, with the judicial decisions, in order to show that the two systems, though blended and confounded in part, have, nevertheless, retained their distinctive features. It is enough for me that there were, when the constitution was adopted, two separate systems, known both to our laws and the English, such as I have described
I next assert, that the members of the convention that framed the constitution could not have been ignorant of the fact, that there were two such systems, known by the names of bankrupt and insolvent laws. The convention abounded with able lawyers, many of whom were among the most distinguished and influential members of the body, and could not but be as perfectly familiar with the whole subject as we now are, after this long and able discussion.
Now, Sir, I ask, is it to be supposed, that if they intended to delegate to Congress power over both systems, these able and cautious men, so familiar with the distinction between them, would not have included both by name? And is it not conclusive, that in not doing so, and in limiting the grant to bankruptcy alone, it was their intention to grant that only, to the exclusion of insolvency ? Do we not feel, that if we were framing a constitution, with our present knowledge of the subject, such would be our course? If we intended to grant both, would we not insert both ? And would not the insertion of bankruptcy only, be intended to exclude insolvency ? The conclusion appears irresistible. How is it met ? By admitting (for it cannot be denied) that such would be the case, if the words of the constitution are to be taken in their legal sense ; but it is asserted that our constitution was made for the people at large, and on this assumption it is inferred that it ought to be interpreted, in all cases, accoruing to the ordinary meaning of the words used, and not in their legal sense. Having arrived at this conclusion, it is next contended, that, according to their ordinary sense, bankruptcy and insolvency are convertible terms, and of the same meaning; and it is thence inferred that the framers of the constitution intended to comprehend both under the foriner.
I might well deny both the premises and conclusion. It might be easily shown that in many cases the words of the constitution must be, and have been constantly taken in their legal sense, and that, according to the established rules of construction, they ought to be so taken in this. It might be also shown that they are not convertible, in common use; that insolvency is the general term, and includes bankruptcy. But I deem all i his unnecessary. I admit, for the sake of argument, both premises and conclusion, but deny the application. Taken unconnected with other words, insolvency and bankruptcy may be admitted to have the same meaning, and that the one may stand for the other; but that is not this case. In the constitution, bankruptcy stands in connection with law, which, attaching itself to it, fixes its meaning. Now, Sir, I assert, however the terms bankruptcy and insolvency may be confounded, standing alone, no one-no, not the most uninformed, confounds bankrupt laws with insolvent laws. They never call the insolvent laws of the States bankrupt laws. They may not be able to draw the distinction with any precision, but they know that they are not the same.
But admit that there is doubt. I ask, what is the rule of interpretation to be applied to the constitution in case of doubt? It is a fundamental principle that Congress has no right to exercise any power whatever that is not granted by the constitution. To do so would be an act of usurpation, and, if knowingly done, a violation of oath. Hence, in cases of doubt, it is a just caution to take the words in their limited sense, and not in their broad and comprehensive—a rule at all times considered as essential to the safety of the constitution by those of the State Rights creed. Apply it to this case, and the controversy ceases. Let me add that there are few subjects, in reference to which it is more necessary to apply the most rigid rules of construction, than to that of the all-pervading relation of debtor and creditor.
It is one on which the slightest encroachment is dangerous, and might, in its consequences, draw into the vortex of this Government the whole of that vast relation in its fullest extent, and with it the entire money transactions of the Union, as will be manifest in the sequel.
If, after what has been said, doubts should still exist, they may be removed by turning to another provision of the constitution, standing in close connection with this. I have