, 1840-07-04

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or restriction imposed by any other clause.
what, then, is sthe subject of bankrupt.
clest' or, in other words, what are spank
ruPtcles?' 1t is to be remembered that the
constitution grants the power to Congress
by particular or specific enumeration; and,
IN making this enumeration, It mentions bank
ruPtcies as a head of legislation, or as one
OF the subjects over which Congress is to
possess authority. Bankruptcies are the
subject, and the word is most certainly to be
taken IN its common and popular sense; in that
sense IN which the people may be supposed
to have understood 1t, when they ratified the
constitution. And | may remark that 1t is
always a little dangerous, in constituting the
constitution, to search for the opinions or un-
Outstanding of members of the convention
IN any other sources than the constitution
itself, because the constitution owes Its whole
force and authority to its ratification by the
people, and the people judged of it by the
meaning most apparent on Its face. How
particular members may have understood its
provisions, ii it could be ascertained, would
not be conclusive. The question would still
ne, how did the people understand it? Ald
this "an be decided only by giving their usu-
al acceptInn toall words not ey identity used
IN i technical sense, and by inquiring, in any
Case, what was the Interpretation or EXPOSE
ton presented to the people when the SUBJ
ject was under consideration.
Bankruptcies, in the general use and ac-
ceptatIon OF the term, mean no more than
failures. A bankruptcy is a fact. 1t is an
occurrence in the life and fortunes of an in
dlvIdual. When 4 man cannot pay his debts,
we say he has become bankrupt, or has faileI.
Bankruptcy is not merely the condition of n
man who is insolvent, and on whom a bank
rupt law is already acting. This would be
quite too technical an Interpretation. Ac-
cOrding to this, there could never be bank
rupt laws, because every law, if this were the
meaning, would suppose the existence Of 4
previous law. Whenever a mans means are
insufficient to meet his engagements and pay
his debts, the fact OF bankruptcy has taken
place: a case Of bankruptcy has arisen,
whether there be a law providing for it or
not.
There may be bankruptcies, or cases of
bankruptcy, where there are no bankrupt
laws existing. Or bankrupt laws may exist,
which shall extend TO some bankruptcies or
some cases Of bankruptcy, and not to others.
We constantly speak of bankruptcies hap
pening among individuals without reference
to existing laws. Bankruptcies, as facts, or
occurrences, or cases, for which congress is
authorized TO make provisions, are failures. A
learned Judge has said that law on the sub
ject Of bankruptcies, in the sense of the con-
stitution, is a law making provision for cases
of persons failing to pay their debts. Over
the whole subject Of these bankruptcies or
these failures, the power of Congress, as it
stands on the face OF the Constitution, is full
and complete.
And now let us see how it is that this
broad and general power is, or can be, limit
ed by a supposed reference to the English
system. The argument is this: that mem
bers Of the convention, in comforting the
power on congress, must be supposed to have
had reference TO the bankrupt laws of Eng.
land; and the bankrupt laws of England, as
then existing, embraced only merchants and
traders, and were only applied TO debtors at
the instance of their creditors; therefore, the
inference is SAID to be, that traders only
should be regarded as subjects of any bank
rupt law to be passed by congress-, and that
no SUCH law SHOULD give Tie OeOtOT niIlISc!l a
right to become bankrupt, at his own Iequest;
or, at least, that every such law should give
a right TO the creditor TO proceed against his
debtor. But IS this the just analogyl Is this
the point OF view in which a general resem.
blance OF our system and the English system
may be supposed to have been contempla.
ted? Clearly not, in my opinion. Let it be
admitted that the trainers Of the constitution
looked to England for a general example,
they must be supposed nevertheless, to have
looked to The power Of Parliament, and moi
to the particular mode in which that power
had been exercised, or the particular law
then actually existing. The true analogy is
as it seems to me, between power and pow
err: the power of parliament, and the power
of congress; and not between the power Of
congress and any actually existing British
statute, which might be, perhaps, in many
respects, quite unsuitable to our condition.
The members Of the convention did no,
study the British statutes, nor examine judi
cial decisions, to ascertain the precise nature
of the actually existing system Of bankrupt
CIV in England. Still less did the people o
the u. States trouble themselves with such