Sidor som bilder

said that the bankrupt system grew out of the commercial policy, and made a part of it. The provision I refer to is that which grants to Congress the power of regulating commerce. This grant carried with it several others, as connected powers, such as that of coining money and regulating the value thereof; fixing an uniform standard of weights and measures ; and we accordingly find these, with the power of establishing laws of bankruptcy, all grouped together, and following, in close connection, the parent power of regulating commerce ; just where we would expect to find it, regarded in the light I do, but not, if taken in the broader and more general sense of insolvency, in which it would comprehend far more than what relates to trade, and what, under our system, belongs to the mass of local and particular powers reserved to the States.

So irresistible does the conclusion at which I have arrived appear to me, that I have been forced to inquire how it is that any one in favor of a strict construction of the constitution could come to a different, and can find but one explanation. We are in the midst of great pecuniary embarrassinent, suddenly succeeding a period of several years of an opposite character. There are thousands, who, but a short time since, regarded themselves as rich, now reduced to poverty, with a weight of debt bearing them down, from which they can never expect to extricate themselves, without the interposition of Government. The prevailing opinion is, that the legislatures of the States can apply no remedy beyond the discharge of the person, and that there is no other power that can give a discharge against debts, and relieve from the burden, but Congress. That so large and enterprising a portion of our citizens should be reduced to so hopeless a condition, makes a strong appeal to our feelings, of which I am far from being insensible. It is not at all surprising, that, under the influence of such feelings, judgment should yield to sympathy; and that, under the impression there is no other remedy, one should be sought in a loose and unsafe construction of the constitution; and hence the broad construction contended for. I appeal to the candor of my State Rights friends, who differs from me on this occasion, if what I state is not the true explanation. If I mistake not, it might be safely asserted that there is not one among them who would yield the power to this Government, if he believed the State legislature would apply a remedy. I, on my part, neither assert nor deny that they can ; but I do assert, that if the States cannot discharge the debt, neither can Congress.

I hold it clear, if by discharging the debt be meant releasing the obligation of a contract, either in whole or in part, that neither this Government nor that of any of the States possesses such a power. The obligation of a contract belongs not to the civil or political code, but the moral. It is imposed by an authority higher than human, and can be discharged by no power under heaven, without the assent of him to whom the obligation is due. It is binding on conscience itself. If a discharged debtor had in his pocket the discharges of every government on earth, he would not be an honest man, should he refuse to pay his debts, if ever in his power. In this sense, this Government is just as powerless to discharge a debt as the most inconsiderable State in the Union.

But the subject may be viewed in a different light. It may be meant that Government is not bound to lend its aid to a hard and griping creditor, in the cruel attempt to coerce the honest but unfortunate debtor, who has lost his all, to pay his debts, when it is utterly beyond his power. Certainly not ; and, in that sense, every Government has the right to discharge the debt, as well as the person. They both stand on the same ground. It is a question of mere discretion, when and in what manner the Government will give its aid to enforce the demand of the creditor ; but, thus regarded, State legislatures are just as competent to discharge the debt, under their insolvent laws, or, in the absence of our legislation, under their bankrupt laws, as Congress itself. In proof of what is asserted, I might cite the laws of many of the States, and my own among others, which discharge the debt as well as the person, as far as the suing creditors are concerned—the constitutionality of which, as far as I know, has never been questioned. It would, indeed, be a violent and unreasonable presumption, to suppose that, in granting the right to establish laws of bankruptcy, the States intended to leave Congress free to discharge the debt, and at the same time imposed on themselves an obligation to forbear the exercise of the same power in the case of insolvency or bankruptcy, should Congress decline to exercise the power granted. Nor can such be the intention of the provision in the constitution which prohibits the States from passing laws impairing the obligation of contracts. The history of the times amply proves that the prohibition was intended to apply to stay laws, and others of a similar description, which State legislatures had been in the habit of passing, in periods like the present, when a sudden contraction of our always unstable currency, had succeeded a wide expansion, and when large portions of the community, with ample means, found themselves unable to meet their debts; but who, with indulgence, would be able to meet all demands. The objects of all these laws were either to afford time, or to protect the debtor against the hardship of paying the same nominal amount, but in reality a much greater, in consequence of a change in the standard of value, resulting from a contraction of the currency. As plausible as was the object, experience had proved it to be destructive of credit, and injurious to the community, and hence the prohibition. To extend it beyond, and give a construction which would compel the States, whether they would or not, to lend their aid to the merciless creditor, who would reduce to despair an innocent, but unfortunate debtor, with

Vel. 111.-33

out benefit to himself, and thereby to render him a burden to himself and society, would be abhorrent to every feeling of humanity, and principle of sound policy. It is impossible for me to believe that such was the intention of the constitution, Nor can I be reconciled to a construction which must have the effect of enlarging the powers of this Government, and contracting those of the States, in relation to the delicate and all-pervading relation of debtor and creditor, by throwing on the side of the former the powerful considerations of humanity and sympathy for a large and unfortunate portion of the community.

Having now established, I trust, satisfactorily, that the framers of the constitution, in restricting the power of Congress to establishing laws of bankruptcy, intended to exclude those of insolvency, it remains to be shown that this bill belongs to the latter class, and is, therefore, unconstitutional. And here I might shift the burden of proof to the other side, and demand of them to prove that it is a bankrupt, and not an insolvent bill. They who claim to exercise a power under this Government, are bound to exhibit the grant, and to prove that the power proposed to be exercised is within its limits—to show, in this case, what a law of bankruptcy is—how far its limits extend—that this bill does not go beyond ; and, in particular, that it does not cover the ground belonging to the connected power of insolvency reserved to the States. Till that is done, they have no right to expect our votes in its favor. The task is impossible. Every feature of the bill bears the impress of insolvency. The arguments, urged for and against it, demonstrate it. Have its advocates uttered a word, in urging its passage, in favor of credit or creditors ? On the contrary, have not their warm and eloquent appeals been in behalf of the unfortunate and honest debtors, who have been reduced to hopeless insolvency by the embarrassment of the times? And has it not been attacked on the ground that it would

be ruinous to credit, and unjust and oppressive to creditors ? Every word uttered on either side, proves that it belongs to the class of insolvent laws, and is, therefore, unconstitutional. As such, it cannot receive my support, were it free from other objections.

But as decidedly as I am opposed to the bill, I am still more so to the amendment proposed as a substitute by the minority of the committee. It contains a provision in favor of insolvent debtors, similar to that of the bill ; and is, of course, liable to the same objections. But it goes much further, and provides for a comprehensive system of compulsory bankruptcy, as it is called ; that is, as I understand it, bankruptcy as intended by the constitution. As far as the provisions of this portion of the bill are limited to individuals, I admit its constitutionality, but object to it on the broad ground of expediency.

It is impossible for any one to doubt, who will examine the history of our legislation, that there must be some powerful objection to the passage of laws of bankruptcy by Congress. No other proof is needed than the fact, that although the Government has been in operation for more than half a century, and the power is unquestionable ; yet, in that long period, notwithstanding the numerous and strenuous efforts that have been made, but a single act has passed ; and that, though limited to five years, was repealed before the expiration of the time. If we inquire into the cause, we shall find it, in part at least, in the genius of our institutions, and the character of our people, which are abhorrent to whatever is arbitrary or harsh in legislation, than which there is nothing, in its wide range, more so than the laws of bankruptcy. They give the creditors the most summary and efficient process against the debtors, of which we may be satisfied, by looking into the provisions of this amendment. On the mere suspicion of insolvency, or fraud, one or more creditors, to whom not less than five hundred dollars is due, may take


« FöregåendeFortsätt »