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object? To protect and encourage trade, to support and invigorate commercial credit, by the security offered.
The power “ to establish uniform laws on the subject of bankruptcies,” is of the same character. For the construction of this power, I do not think it necessary to resort to verbal criticism. It does not appear to me that we need inquire, whether the term “bankruptcy" had a definite meaning, to which we are limited, nor whether we are bound to follow the model of the statutes in England, or any state bankrupt laws that may have existed here before the Constitution was framed. For the present purpose, the general spirit and scope of the Constitution furnish a sufficient guide. The design of that instrument was to occupy national ground, and leave the rest to the states. Who are the persons then, that, in the relation of debtor, stand connected with foreigners and with the citizens of other states ? Who are the persons that in the same relation stand connected with domestic and foreign trade, and with the commercial and public credit of the country? The answer will be at once, they are the merchants, the traders, the dealers, by whatever name you may be pleased to call them, whose business it is to buy, and sell, and circulate what is produced at home or imported from abroad. Other persons may contract the same relation, but it is occasionally and by accident only. These (merchants or traders I mean) do so habitually, constantly, and in the regular course of their business. Again, in what other class of citizens has the nation the same sort of interest? I wish not to be misunderstood. The nation has an interest in the prosperity of all her citizens, and of every branch of industry. Agriculture, the essential basis of national strength and wealth, deserves to be cherished and supported. For manufactures, every dày becoming more and more interesting to this country, I trust that much will be done to afford protection and support. I declare myself willing to go as far in measures to support and protect them, as may be necessary-a declara
regulate or to affect the relation of debtor and creditor within the states, upon the comprehensive plan suggested. The argument is, to my mind, decisive, and it brings us back to the ground originally taken, where we may safely stand, assured that we are within the limits of constitutional duty-from which we cannot depart, without the risk of doing what is at once unnecessary and inexpedient, perhaps unconstitutional. The discrimination which is thus indicated by the spirit of the Constitution, and by the theory of our government, is conformable also to the terms used by the Constitution. Bankrupt laws, as distinguished from insolvent laws, have a sufficiently appropriate signification, determined by experience and practice. Their most uniform feature, whatever other differences may have existed, has been, that, in their principal operation, they were usually confined to the commercial class; to that class which is most extensively intrusted with the property of others—which is most engaged in hazardous adventure, and whose good or ill fortune, and, if you please, good or ill conduct, have the most extensive influence. I would not, however, be understood as meaning to give any positive limitation, in this respect, to the power. It is possible that circumstances may arise, which would render a more comprehensive description necessary; and then we should be called upon to say whether the Constitution permitted such a construction. At present this is not the case, the broad line is sufficiently marked between the national ground which the national legislature ought to occupy, and those subjects of internal regulation which may be sufficiently provided for by the state legislatures.
It is certainly true, that the merchant or trader may be, and commonly is, indebted to persons residing in the same state with himself; and it is equally true, that the bankrupt law will operate upon debts of this description, as well as upon debts due in other states, and beyond the limits of the United States. The objection, however, has very little
weight. If this operation were an evil, it would be only an incidental one, such as, in a greater or less degree, belongs to every human system. The work of legislation must be at an end, if it can never go on without the perfect assurance that it will produce pure, unmixed good—that it will precisely accomplish its object, without producing any consequences in themselves to be deprecated. I will not stop to illustrate, for every man will find the illustrations lying in every direction about him. But it is not an evil: it is a part of the object of the bankrupt law, and a part of the result contemplated by the Constitution in conferring the power. The Constitution looks to the mass of commercial dealing—to the character of commercial dealing—to the sum of the relations arising from it, and the sum of the effects produced by it—upon trade—upon credit—upon the nation, and upon society. It regards, also, the entire mass of commercial dealing, not the individuals engaged, as the object of national concern. Is any other discrimination practicable? Suppose you should attempt to exclude creditors residing within the same state with the debtor, one most unjust consequence would immediately follow. You exclude these creditors from a participation in a bankrupt's estate; that is, you divide it among one set of creditors, to the exclusion of another, not less meritorious. Or, suppose you admit them to participate, but upon different terms, say upon the terms of not being barred by a certificate, this would be a discrimination in their favour, both unjust and impolitic, and tending directly to weaken and undermine the foundations of credit; it would be palpably repugnant not only to the policy, but to the very terms of the Constitution, which give us authority to make uniform laws on the subject of bankruptcy.
Still less force is there in that objection which would confine the operation of the law to cases between merchant and merchant, excluding all creditors who are not traders. If the exclusion should be entire; that is to say, if you were to distribute the estate of the bankrupt only among creditors who are traders, giving no part to the farmer, the manufacturer, the mechanic, or others, it would be unjust. If you give them a portion of the estate, without affecting them by the certificate, it is unjust as well as impolitic, for the reason I have before stated. In either case, (and this remark applies to both the objections,) you lose sight of and defeat the very object of the power, which owes its existence in part to the extent and nature of the relations between the merchant and others.
The question which remains for the consideration of the House, is, shall this power now be exercised? I do not mean to contend that, because we find it in the Constitution, therefore we are bound to keep it always in exercise. My honourable friend and colleague (Mr. Hopkinson,) did not say so, and he has been misunderstood by those who have endeavoured to illustrate the extravagance of the position by reference to the power of making war. It is a power to be exercised by Congress in their discretion, with this guide, however, to direct them, that the framers of the Constitution thought it a power fit and proper to be exercised by Congress, and not to be left to the states; they, therefore, supposed it not merely possible, (for a mere possibility would not have afforded a sufficient motive for insertion,) but highly probable that a state of things would exist, rendering an uniform bankrupt system not only convenient, but absolutely necessary. Whatever arguments, therefore, are urged against such a system, simply as such, (and most of the arguments we have heard are of that description,) intended and tending to show that it is at all times, and under all circumstances, an evil; every argument, too, grounded upon the supposed adequacy of state legislation to accomplish the design of the Constitution, is an argument that might, with propriety, have been addressed to those who framed, and to the states when deliberating upon the adoption of that instrument; it is, in truth, an argument