The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1840-05-30

a~su ony hefchAnts and traders, and were only APP
phed 70 debtors at the instance OF their creditors
therefore the inference said be- that traders only
should be regarded subjects OF any bankrupt law 10
be passed by Congress, and that no such law should
give the debtor himself right 10 become bankrup NJ
ms own request or at least that every such Law should
give right 70 the creditor To proceed against his debtor
But Is this the just analogy Is this the Joint of
view in which general resemblance OF our system
and the English system may be supposed TO have been
contemplatedi Clearly NOT, in my opinion. Let Il
be admitted that the trainers ofthe Constitution looked
70 England for general example; they must be sup
posed nevertheless, TO have looked 10 the power Of
Parliament, and not 10 the particular mode in which
that power had been exercised the particular law
then actually existing The true analogy is, AZ il
seems to me, between power and powcr-the power Of
Parliament and the power of Congress; and not be-
tween the power of Congress and any actually exist
ing British statute, which might be, perhaps in many
respects, quite unsuitable to condition
The members Of the Convention did not study the
British statutes examine Judicial decisions to as
certain the precise nature OF the actually existing sys-
tenn Of bankruptcy in England. Still less did the Poo
Pile Of the United States trouble themselves with such
inquiries. All that Parliament possessed and
ercised power Of passing bankrupt laws and OF al
ering andamendng them, from time to time, accord
ing to its own discretion, and the necessities of the
case This power they intended to confer on Con-
ess largely for a9ght tina, appears as they saw il
held by Parliament The early British statutes were
confined to traders; later statutes were con-
fined; and more recently, again, changes have been
made, which bring in very numerous classes of per-
SONS who were not esteemed traders, in England at
the time Of The adoption Of the Constitution of the
United States. may add, that bankrupt laws, pro-
perly called, or laws providing for the cessio bono
rum on the continent of Europe, and in Scotland,
We're never confined to traders and while the mem
bers Of the Convention may be supposed to have
looked TO the example of England il is by means
improbable that they contemplated Also the and
institutions Of other countries There is no reason TO
suppose that il was intended TO tie up the hands Of
Congress to the establishment Of that particular bank
rupt system which existed in England in 1889 and TO
deny 70 il all power of future modification and amend
ment il would be just reasonable to say thar the
United States laws OF copyright Of patents for inven
TONS and many Others could only be transcripts
OF such British statutes the subjects as OK
listed in 1888.
The great object was TO authorize Congress to es-
tabish uniform system throughout all the States
No State could ofitselfestabsh such system; could
only establish system for itself; and the divcrsities
Inconsistencies and interfercnces Of the several State
systems had been subjects of much well grounded
complaint. II was intended TO give Congress the
power to establish uniformity ia this respect; and ii
the English example was regarded, it regarded in
its general character, Of power in Parliament pass
laws the subject 10 repeal them and pass others,
in its discretion, and to deal with the whole sub
ject, from time 10 Time experience or the exigen
cies Of the Public should suggest or require. The
bankrupt system Of England, il existed in 1889,
was not the which had previously existed, nor
the which afterwards existed, that which
exists. At first, the system coercivc, and the
law sort Of criminal law extending 10 all persons,
well traders But changes had taken place before
1889 and other changes and very important changes
have taken place since. The system is now great
ly simplfcd and improved, and it is also made much
more extensive, to those whom it embraces. II is
hardly too much to say that it is preposterous to
tend that to refuse TO ourselves not only the
light Of own experience, and all regard to
peculiar SITUATION but that also TO exclude from
our regard and notice all modern English improve
ments and confine ourselves TO the English bankrupt
laws as they existed in 1883 The power Of Congress
is given in the fullest manner and BY the largest and
most comprehensive terms and forms of expression
and il cannot be limited by vague presumptons Of
reference to other existing codes loose conccures
about the intens of its framers nowhere expressed
minated in the instrument ITSELF any contonpora
neous exposition.
think, them that Congress may pass a law which
shall include persons not traders, and which shall in
clude voluntary cases only, And think further that
the amendment proposed by the honorable member
from New Jersey is in effect, exactly against his own
argument. think il admits all that he contends
against In the first place, he admits voluntary bank
ruptcies and there were none such in England in
1889 This is clear And in the next place. he adj
mits any who will say that he has been concern
ed in trade and he maintains, and has asserted that
in this country any body may say that. Any body,
then, may come under the bill The only difference
is, he must come in under a disguise, in assumed
character. Whatever be his employment occupation,
pursuits, he must come in trader, one who
has been concerned or engaged in trade. The honor
able member attempts distinction between traders
and those who can say that they have been engaged
in trade | cannot see the difference. 1t is too fine
for me- trader is one concerned in trade. and to be
concerned in trade is to be trader What is the diff
ference But if persons may be concerned in trade,
and yet not be traders still such persons not
braced in the English statutes which apply to traders
by name; and, therefore, the gentemans bill would
embrace persons not within those statutes they
stood in 1889
Nh u. q
bill to traders butt embrace every body and yet he
deems it necessary for every person applying TO state
and to swear, that he has been engaged in trade
This seems to me to be both superiuous and objec-
tionabe superfuous, because, if we have right to
bring in persons under one name we may bring in
the same persons under another name by general
description; Objectionable because it requires to
state what may very much resemble falsehood, and
to make oath TO il. Suppose farmer or mechanic
to fail he take oath that he has been engaged
in trade If the objection to bring in others than ira
dcrs is well founded in the Constitution surely
form cannot remove it. Words cannot alter things
The Constitution says nothing about traders Yet
the honorable gentcman's amendment requires all APP
pcants to declare themselves traders; and if they
will but say So and swear so, il shall be received,
and nobody shall contradict it. In other words
fiction, not very innocent, shall be allowed to over
come constitutional objection The gentleman has
been miscd by false analogy. He has adopted an
example which docs not apply to the case, and which
he yet does not follow out. The British statutes arc
confined to Traders but then they contain long list
of persons who il is declared shall be deemed and ia
ken to be traders within the acts. This list they ex-
tend from time to time; and whenever any one with
in it becomes voluntary bankrupt he AYERS, in sub
stance, that he is a trader, within the act of Para-
ment. iii had been necessary, as II is not to follow
this example at ALL the gentemans bill should have
declared all persons traders for the purposes of this
act, and then every body could have made the deca-
ration without improperly, as, England, the appi
cant only states that which the law has made
He declares himself trader, because the law has al
ready declared that he shall be considered trader
His conscience, therefore, is protected. He swears