The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1840-06-25

'na'' ny aaoptihg the expressions, the construc
.ion was also adopted, that we are to look to the
bankrupt laws oil that day in England, in order
10 dehne this power in our Constitution. But
sir the bankrupt system Of England would afford
but very equlvocal rules for that purpose. The
most striking characteristic of that system is its
uWersities and discrepancies, under different
laws, ana during the different periods Of its his
tory. us limitations and its engagements, its
seventies and It's mitigations Of penalties, have
shown themselves in all the varieties of change,
ana have eyinced no other standard of consist
ehcy than the will Of the kingdom The system
mas been changing from the Cessio Bonorun oil
the civil law, through all the dynasties OF power,
down TO the 9th of George Nv. AT the time this
power was conferred by the Constitution other
nations Than Great Britain had bankrupt laws,
though not all after the same model, but VARYING
according to circumstances. Those were, doubt
less, within the knowledge Of the delegates OF
me Convention, and, for aught that appears,
We're referred to, II reference was necessary, for
either precedent or principle in deciding the
point before them.
But that delegation Of power contemplated the
establishment of such laws on the subject OF
bankruptcies as would in future be required in
the progress OF this country for the relief OF in
solvent debtors here and in such manner as
would best comport with the necessities and
merits of the insolvent the course Of business,
The situation, and policy Of the country. The
Convention might have delegated other powers
Tor the establishment Of uniform laws on other
subjects than bankruptcies. Suppose il had
conferred on Congress the power OF establishing
uniform settlement laws throughout the United
States, could il be said that the settlement laws
oil England, at that time, would afford any con
trolling standard for settlement laws for this
country2 Suppose there had been in that Con.
IAN ~. r.. IL
idea OF permanent property in wild beasts yes,
sir, some venerable Nimrod, who had proposed
TO confer on Congress the power of establishing
uniform game laws throughout the United States,
and that provision had been sanctioned, would
II follow as matter Of course that, il any such
laws were to be enacted here, they must be made
confomable TO the game laws of England at
that time, and that they must embrace exactly
the same species of game? No, sir And, be-
SIDES our parks, forests, and manors. would be
found 50 unlike those of England, as TO require
different provisions And il might be thought
humane, at least, TO mitigate the severity of
penalties for the punishment of those game-law
offenders denominated in the English law
poachers And for the same reason that other
laws are TO be adapted TO our condition, Con-
gress Is at liberty TO pass just such uniform bank
rupt laws as the exlgencies of our country may
require, extending them to all persons whose
broken fortunes may involve the exercise Of this
great principle of humanity.
But, sir, why has not this power been more
frequently exercised ? One reason is: those
mistaken analogies which have been so often
run between the bankrupt laws Of England and
those which Congress is authorized 10 establish
here, are calculated TO produce strong aversion
TO the power itself. Hence this jealousy which.
a reference to the bankrupt laws of England has
always awakened, and which first manifested
itself in the Convention that formed the Consti-
tution Roger Sherman, distinguished dele
gate from Connecticut, objected TO this deega-
ton of power. He observed that bankruptcies
Were in some cases punished with death IN
England, and he did not choose TO grant power
by which that might be done here. But Gouver-
neur Morris, another distinguished delegate from
the State OF Pennsylvania, observed that, extern
siye and delicate as the subject was, he would
agree to II, because he saw no danger of its be-
ing abused by the Legislature of the United
States The power was conferred: one vote
only against it, and that given by the delegate
in behalf of Connecticut If Roger Sherman
could entertain those prejudices against this
power, it is not strange that other minds should
entertain them,and be equally influenced by them.
Thus most Of the objections that could be found
or imagined against the English system have
been infused into the idea Of bankrupt law for
the committee, (Mr. Wall,) with all his learning
and experience, finds il difficult 50 to abstract
himself from the British system as not to feel
obliged 10 urge upon the consideration of others
the bankrupt laws of England, as they existed
at the formation of the Constitution, in evidence
of what was meant and intended by the power
delegated in that Constitution Whereas the
only analogy is in the name, except that il was
intended here az well as in England, that bank
ruptcy should be tile of property, by which
property might be transferred by operation of
law.
The limited intercourse between the States
for years after the adoption of the Constitution
was calculated TO foster local feelings and views,
and il would be among the natural suggestions
OF State jealousy that the exercise of this power
(however desirable in some States, and espe-
cIally with those the most commercially might be
prejudicial to others. Besides, the country was
rather agricultural than commercial in its pur-
suits, bearing relations of life not the most likely
to awaken strong and active sympathles in favor
of the insolvent debtor
This consideration naturally secured pre-
ference for State insolvent laws, corresponding
better, as might be thought, with the local CON
Germs Of the day. But the relations Of business
in this country (whcn not disturbed) are greatly
changed and enlarged. The modern facilities
of intercourse have brought all the States to-
gether into common market. The North and
the South are in the constant interchange OF
their products and merchandise, This is cacu-
lated TO give national uniformity TO the rules OF
trade, and induces the necessity Of uniformity IN
the treatment Of the relation Of debtor and ere
ditor and more especially when imperious ne
cessity invokes interference with its existing OBJ
legations between individuals. But still strong
er reason is to be found in the experiment OF a
bankrupt law in 1900. The law, although II
may have been enacted with great care, was
not well adapted in its provisions for the com
mencement of the experiment. II was too com
plicated in its details, and too expensive in its
operations. Before il could be well understood
and hrnu chi into nractical utility many frauds