of citizens from being great sufferers by their contracts. In this extensive country, a spirit of conciliation must prevail; and it would not be good policy, Mr. H. contended, for members of Congress to say that they would not favor a law that was not wanted in their own section of country. Mr. H. briefly remarked upon the Constitutional questions that had been raised; he said, it did not appear to him to admit of a serious debate. It has been contended that Congress has no power to pass a bankrupt law that shall have a retrospective effect. Mr. H. thought he might challenge honorable gentlemen to show a bankrupt that gave a certificate of discharge in any other shape. The words of the Constitution are to be explained by the nature of the subject-matter to which they refer, and the general understanding concerning the subject at the time. There existed State bankrupt laws at that period containing this retrospective principle. The English statute of George II. was familiar to the members of the convention; and it declared that every bankrupt should be discharged from all debts owing at the time he became bankrupt. Prior as well as subsequent creditors could avail themselves of the act. The discharge from all future liability is one principal and leading feature in a bankrupt system. This was the usual and common manner in which the power had always been exercised. Under this clear understanding the Constitution was made. The power is given with the single exception that the laws shall be uniform. If the convention had meant to depart from the usual way in which the power had been exercised, they would have expressed such intention. It is not impairing a contract; every contract is liable to the exercise of all Constitutional legislation. Previous to the Federal Constitution each State possessed this power; it is a known attribute of sovereignty; and it is taken from the States by the Constitution, and vested expressly in Congress. Mr. H. concluded by observing, that it appeared to him that it was due to the magnitude of the question; that it was due to the large class of our fellow-citizens, who are distressed by their existing embarrassments, and that it was due to the commercial States to make one other experiment of the system; and if it should not give satisfaction, he thought then that the power should be permitted to revert to the States. When Mr. H. had concluded— H. OF R. documents, not because he intended to make any particular reference to them in the address he was about to submit to the Committee, but because he considered it due to those who had required him to present the petition against the law, which had just been read, to let it be heard. He believed no petition on the subject had yet been read. He was the more desirous the petition which was last taken up by the Clerk should be submitted to the Committee, because the prayer of that petition was in opposition to the opinions he had formed on the subject under consideration; which opinions he meant now to express and to advocate. And as candor required of him this course in respect to the petition, adverse to his sentiments, he thought justice required that the other petition should also be read. Mr. C. said, though he should not particularly refer to these petitions in the course of his arguments, he thought it due to the Committee and to the petitioners to advert to the characters of the petitioners. The Chamber of Commerce was an ancient incorporated institution of the city of New York. Most, if not all those who deserved the name of merchants in the metropolis of the State were its members; certain he was, that he might say most of the respectable merchants of the city belonged to this corporation; its acts were the result of the deliberations of its members; and he believed there was no expression of the sentiments of the merchants of New York which might be so much relied on as the voice of the Chamber of Commerce. On the other hand, Mr. C. begged it might be observed, that he admitted that those whose signatures appeared to the counter petition, many of them, at least, were persons of high character and standing, and among them were certainly some of our most respectable merchants. But he could not but think that this petition afforded evidence, upon the face of it, that it had been signed without much deliberation, otherwise it was hardly possible to believe, that the many men of sense who were parties to it, would have put their names to an instrument so inconsistent in itself, and so inconsistent as to facts The petitioners aver that they anxiously wished for a law which, while it would relieve the honest debtor, would duly secure the creditor. They then proceed to state their objections to the bill under consideration, and because the provisions of this bill do not please them, they presume that Congress cannot frame such a law as ought to be passed; and so come to the conclusion that we Mr. COLDEN, of New York, called for the read- ought to acquiesce in their opinions of our imbeing of the petition of the Chamber of Commerce cility, and not attempt to legislate on this subject. of the city of New York, praying that Congress But it will appear that the petitioners are altowould pass a bankrupt law, and the petition of gether mistaken as to the provisions of the bill certain merchants and inhabitants of the first and now before us; their principal objections are second wards of the city of New York, and their founded in misconceptions of the bill which the vicinity, praying that the bill then under consid-Judiciary Committee has proposed. Mr. C. said eration might not be adopted. The Clerk having read those documents, Mr. C. proceeded to address the Committee. He said he had called for the reading of these 17th CoN. 1st SESS.-32 he would not longer dwell on this subject. He believed it was pretty well understood how petitions of this nature were, or might be obtained, and he trusted he might say without offence, that signatures were often procured by solicitation and persuasion, and were often given with so little consideration, as not to be entitled to much weight in a deliberative assembly. Mr. C. said he would most willingly have forborne the task, for such he considered it, he was then about to perform. It was with great reluctance that he should afford the opportunity of contrasting his talents with those which had already been displayed on the one side and the other in the discussion of this subject. But the bill whose fate was now to be decided, was deeply interesting to his constituents; a great majority of whom, notwithstanding the petitions on the table, he verily believed, anxiously wished that a law of this nature might be passed. Under such circumstances, he did not feel himself at liberty to indulge his inclination to be silent. FEBRUARY, 1822, same side. Mr. C. said that the gentleman from Virginia had contended that, though the Constitution gave Congress power to pass a law which would discharge the person of a debtor, yet it had no power to pass such a bill as that now before us, which exonerated property acquired subsequently to the discharge. Mr. C. said, he should entirely agree with the gentleman from Virginia, that the power to pass the bill before us— -that is to say, a bill discharging the property as well as the person, was expressly given by the Constitution, or that Congress had no power to make such a law. Though he thought the power to pass a bankrupt law might as well be implied from the powers which Congress had to regulate commerce, as the power to grant a bank charter was inferred from any part of the Constitution; yet, he repeated, that he did admit, for the purpose of this argument at least, that there was no such power to pass this law, unless it was expressly given by the letter of the Constitution. that this phraseology was deserving attention, and seems to have been adopted to convey ideas more extended than the expressions which would be the most likely first to occur for granting a limited power to pass bankrupt laws. Had the Constitu tion merely said Congress shall have power to establish bankrupt laws, or all bankrupt laws, even then it would be difficult to say that there was any restriction as to the kind of bankrupt law which Congress might pass. But when the power is to pass laws on the subject of bankruptcies, is it not to be understood that Congress have a right to pass every kind of bankrupt law? Mr. C. said, it seemed to him that this question would be answered by determining the meaning of the word bankrupt, or bankruptcy. However, said Mr. C., the rules of the House may sanction the course which has been pursued by the opponents of the bill, he could not think it was one calculated to attain the objects we ought all to have in view-that is, a full and fair discus- The Constitution has given Congress "power sion of the great principles on which the question, to establish uniform laws on the subject of bankwhether we ought or ought not to pass a bankruptcies throughout the United States." Mr. C. said rupt law, must depend. But instead of being confined at this time to these considerations, we have been, prematurely as he thought, led to an examination of the details and particular provisions of the bill. The objections which have been urged to these, might, for the present, be answered in a word, or in a sentence, at most. Do not, by this motion to strike out the first section of the bill, prevent our going into consideration of what is considered its objectional parts. When it will be proper to discuss these, we may agree to such modifications or alterations of them as will make them acceptable to all. Mr. C. said, he was himself opposed to several of the provisions of the bill. The impropriety of the course which had been pursued might be tested by supposing that he, as a friend of the bill, had proposed an amendment to any section which had been objected to. Would such a proposition have been received? Certainly not. Then it cannot be consistent with a due examination of the subject before us to dwell on objections which might be removed, if an opportunity of doing it were afforded. The only points proper for discussion at this time, were those which had been presented by the honorable member from Virginia, who first spoke in opposition to the bill. That is, whether Congress have power to pass the bill now before us; and if we have the power, whether it is politic or expedient to exercise it at this time. It was true, the gentleman from Virginia had, in some degree, aberrated from the course he had marked out for himself, and seems to have been incapable of resisting the temptation to find fault with some of the provisions of the bill. And, therefore, in following the gentleman from Virginia, Mr. C. said, he should feel himself at liberty to notice some few of the objections to the particular provisions of the proposed law, which had been presented by the gentleman from Virginia, and other gentlemen who had addressed the Committee on the It had been justly said by the gentleman from Virginia, that Blackstone gave us no definition of the word bankrupt. He merely describes those who may become obnoxious to the English bankrupt laws, and points out the consequences of such liability. Neither would the English statutes assist us in our search for a definition. For he who might be a bankrupt at one time, according to the English law, was not so considered at another. Thus, the statute of Henry VIII., which was entitled "a law against such as do make bankrupt," applied to all persons. The statute of Elizabeth confined the application of the bankrupt law to traders. A subsequent statute of James extended it to scriveners. A law of Queen Anne absolved the subsequently acquired property, as well as the person, of a discharged bankrupt and a statute of George III. extended their then numerous bankrupt laws to bankers, brokers, and factors; so that we cannot appeal to the English statutes for the definition we are in search of, unless we should be willing to admit that the word bankrupt must. at all times, mean whatever the British Parliament shall please to say shall be its signification. Mr. C. said that we must, in this case, as in all FEBRUARY, 1822. The Bankrupt Bill. H. OF R. others where the meaning of a word in our lan-tablish laws which relate to those who are in debt guage was in question, inquire as to its etymol- beyond the power of payment, or who fraudulently ogy, its definition by lexicographers, and its use avoid payment of their debts. by authors. The honorable member from Virginia had expressed an aversion to such references, as having an appearance of pedantry. But, Mr. C. said, he knew not in what other channels the inquiry might be pursued, and hoped it would not be thought there was any ostentation in a reference to mere initial books. Etymology, he admitted, was an uncertain, and often a fallacious, guide to the meaning of words. But where it happened to give a corresponding meaning with that derived from other sources, as in the present case, it might be taken into account. The word bankrupt was probably first applied to money-dealers. They, we may suppose, transacted their business on counters or benches. When they failed, were unable to pay their debts, or absconded, their counters were probably removed, or broken up; and therefore those who had occupied them were said to be bankrupt. If we have ascertained the meaning of the term bankrupt, there seems an end to the argument on this point. For Congress have power to pass all laws on this subject, as well laws which discharge the subsequently acquired property of the debtor as his person. It cannot, with any reason, be said that Congress has less than plenary powers in this respect; and it would seem absurd to contend that the very general and comprehensive words of the Constitution conveyed to Congress only the lowest grade of authority which a legislative body can exercise on this subject—that is, to exonerate only the person of the debtor. But, though we should in vain appeal to the statute law of England, or of our own country, for the definition of the term bankrupt, yet we may refer to them to ascertain the sense in which the word was used by the framers of the Constitution; and, when we find that every law which existed in Europe, under the name of a bankrupt law, not only enabled the insolvent debtor to obtain a discharge of his person, but an exoneration of his subsequent acquisitions, can it be supposed that, in our Constitution, the term was used in a more restricted sense than it was used in all contemporaneous laws? Mr. C. said these considerations had brought his mind to the most satisfactory conclusion, that, by the letter of the Constitution, power was given to Congress to pass the bill now under the consideration of the Committee. But he would ask the indulgence of the Committee while he attempted to show, by another argument, which appeared to him perfectly conclusive, that Congress had the power in question. The dictionary definition of bankrupt, as will appear by that of Dr. Johnson, which I now see in the collection of books made for your use in this hall, and which must be admitted to be as of high authority as any other that could be appealed to, defines a bankrupt to be "one indebted beyond the power of payment." This definition evidently implies that, in the opinion of the author, the word bankrupt was not limited in its signification by any statuteable provisions; and we shall see, by again recurring to the statute of Henry VIII., that the word bankrupt had been adopted in our language, and had a precise signification before that statute was passed, and, of course, antecedently to any English statute on the subject. Mr. C. here read an abstract from the statute of Henry VIII., It must be admitted that, previously to the adopto show that the word bankrupt was not mentioned tion of the Confederation and the present Constituin the body of the law. That merely provided tion, the United States were respectively free and punishment for those "who craftily obtained the independent sovereigns, having all the powers and goods of other men, and fled or kept their houses, attributes of sovereignty which ever belonged to not minding to pay their debts, but consumed the any people on earth. They then unquestionably 'substance obtained by credit, for their own pleas- had power, in virtue of their sovereignty, to pass ure against all reason, equity, and good con- such a law as that on our table, or any other law 'science." It is well known that, anciently, there not forbidden by the laws of God. But it has were no titles given to their acts by the Parliament been determined by an authority, not inferior or itself. The titles were nothing more than the en- subordinate to our own, that the individual States dorsement of the clerk, in forming which he was have not now this power. The supreme judicial determined by the substance of the bill. So, in tribunal, whose decrees cannot be questioned on this case, having found that the act contained pro-earth, have said that the States have parted with visions against fraudulent and insolvent debtors, he endorsed upon it that it was "a law against such persons as do make bankrupt"-the word bankrupt was not found in any part of the bill. It cannot be doubted, then, that this word, bankrupt, has, at all times, had a meaning independent of legislative enactments, and did mean, and does yet mean, one in debt beyond the power of payment, according to the definition of Johnson; and one who fraudulently avoided payment, according to its application in the title to the statute of Henry VIII. Hence we may derive a definition of bankruptcy; and, as Congress have power to establish | been dissipated. all laws on that subject, they have power to es this power. Where, then, is it gone? If you say that it is not surrendered to Congress, then you must say that a power, which originally belonged to the States, has passed from them, merely in virtue of their having confederated; and yet, strange as it may appear, it must be contended that this power is not vested in the Confederacy, or touched by the instrument of confederation. Sir, said Mr. C., if the power be not in the particular States, nor in the United States, I hope some of the gentlemen who are opposed to the bill will have the goodness to tell us by what process it has But another ground has been taken by the gen tlemen who oppose the bill. Admitting, they say, that the power in question be expressly given to Congress by the letter of the Constitution, yet Congress should be restrained by a paramount authority-that is, by moral obligation; that the laws of morality forbid us to pass a law, by means of which a debtor may be exonerated from the payment of his debt without the consent of his creditor. Sir, said Mr. C., I am not disposed to inquire how far a provision of the Constitution might be controlled by considerations of this nature, and it seems to me to be taking a ground which must be very unexpected now to tell the people that the Constitution which they have given us is not to be considered as the supreme law of the land, because its precepts are, in our opinion, a violation of the laws of God. I think our constituents will be very likely to inquire whether we are so superior to those who framed the Constitution as to be better judges than they were of the obligations of morality. The moral law is the same at all times and in all places. It arises from the general sense of mankind as to what is right and what is just. Laws by which a debtor, who honestly surrenders all his property, may be discharged from the debt, so far as respects legal obligation, have existed from great antiquity. I do not say in the most remote times, because there was a time when some barbarous laws permitted the creditor to sell his unfortunate debtor, and even his family; yet more humane laws, such as that I am now advocating, had existence in very early ages. In Europe, they have been coeval with the extension of commerce. In this country, which was then the colonies of England, her insolvent law of 1755, which discharged both the person and property of the debtor, was adopted by most of the colonies. Since the Revolution, such laws have been in force in most of the States; and the bankrupt law of 1800, though it was partially repealed in less than three years, has been in operation nearly a quarter of a century, and some thousands of adjudications have been rendered upon it by the venerable men who have successively filled the bench of your Supreme Court and other seats of justice. Can we believe that all mankind have heretofore been insensible to the force of moral obligation? Can we believe that the legislators, lawyers, and judges, of so many ages and so many centuries, have been so insensible of moral obligation as to pass, advocate, and support, laws by which it has been violated? But it is not correct to say that a bankrupt law, like that which we are now considering, does discharge the debt or abrogate the contract, without the consent of the creditor or obligee. Every contract is made in subordination to the laws of the country. It must be understood by the parties that a contract shall be enforced only so far as the laws may permit, and that it may be released or discharged pursuant to provisions which may be made by law. Legislatures may, and frequently do, discharge the legal obligation of a contract, when there can be no question as to the continuance of the moral duty it continues to im FEBRUARY, 1822. ''pose. Take, for examples, contracts that are barred by the statutes of limitations, and all that class of contracts which are affected by the statutes of frauds-as, for instance a promise to pay the debt of another, not reduced to writing; a contract by parole to convey lands, and others of the same nature. All these, with whatever solemnity they may be made, are of no legal obligation, however they may be binding in conscience. So it is with contracts which may be affected by a bankrupt law. The Legislature interposes, and says how far the creditor shall have the aid of severity to enforce his demand. He shall not use it for the mere purposes of oppression. When the debtor surrenders all, no more shall be required of him-no human law can require more. If there were a contract to supply the waters of a spring, and by the act of God the source were to be dried up, who would say the obligor ought forever to live in misery and poverty, because he could not fulfil his obligation? The idea that every member of a community is a party to its laws, and gives his consent to their enactment, is not novel, but has been sanctioned by tribunals whose opinions we are accustomed to respect. When vessels bound to Russia were embargoed in the English ports, previously to the rupture between these two countries, I think about the year 1807, it was decided that English subjects who had made insurance on these vessels against restraints and detentions of all Governments whatever, could not recover, on account of this detention, of their own Government, because they, as subjects of Great Britain, must be considered as parties to the act which caused the detention; and no one could be permitted to found a claim of this nature against another, upon his own act. Mr. C. said, he was not sure that he was entirely correct in his statement of these decisions as to the date or the facts, not having had it in his power to refer to any book, and being obliged to rely on his memory, after a lapse of many years from the time he had seen a report of the English cases; but he was sure he was right as to the principle adopted by the English courts. At the same time it was right to mention that, in some of the cases which grew out of the embargo and restrictive laws of this country, the abovementioned decisions of the British tribunals had been questioned in some of our own courts. But, if this doctrine can be entertained in the British monarchy, where the representation of the people is but a mockery, on how much firmer basis must it rest in this country, where every individual of society is not only theoretically a party to every law, and by his immediate representative consents to every enactment? Is not a citizen who, by his member in this House, votes on the passage of a law, as much a party to that law as if he were one of a pure democracy, and a law were enacted by the voices of a majority of the assembled members of a Government of that description? It seems to me that the answer to this question must be in the affirmative, and that, when we resolve Governments to this element, that is, the will and assent of the people, the mind 1001 FEBRUARY, 1822. HISTORY OF CONGRESS. The Bankrupt Bill. does not hesitate to admit that every citizen must It has been said, that though Congress can pass But, if there be any solidity in the argument I Mr. C. said, he would not trespass on the time of the Committee by attempting to offer further arguments on this branch of the subject. He would now ask their attention for a short time, while he noticed the objections which had been urged to the passage of the bill at this time, as being impolitic and inexpedient. The honorable member from Vermont, on his left, admitted that there was a large class of worthy respectable men, whose characters were unimpeachable, and their prudence irreproachable, who were by misfortune reduced to poverty, and even to want. These, the honorable member admitted, had strong claims for relief; but he would not grant it to them because there were persons who, during our late war, had been engaged in a smuggling trade with the enemy on our borders, and because there were others who had, some many years ago, violated the restrictive laws then existing, by trading with foreign nations and these might avail themselves of a bankrupt law. He hoped he might be permitted to say, consistently with the respect which he sincerely felt for the honorable gentleman from Vermont, and for the ability he had displayed on this occasion, that this was as extraordinary an instance of the influence of local and partial causes, as he had ever met with. Is it possible that we are not now to pass this bill, which, if it becomes a law, is to have an effect on ten millions of people-which is to relieve thousands of honest and industrious citizens from wretchedness and oppression-which is to shield the unfortunate and punish the fraudulent-which is to give stability to commerce at home, and redeem the character of the nation abroad;-is it possible, he inquired, that we are not to pass this law, because there may be on our borders some few smugglers or illegal traders, who may pervert its provisions as respects their own cases? If we are to have no laws but such as may never 1002 H. OF R. be rendered subservient to the designs of the crafty and fraudulent, our legislative duties would be very circumscribed, and our code would be comprised in a very small compass. tertained so vain a supposition as that, by its enactment, all fraudulent bankruptcies would be preBut, sir, the friends of this bill have never envented, or that it could be so framed that its provisions might not be abused. perfect, if we should, so far as we are able, com- mont, he spoke under correction of the gentleman |