Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1841-02-15

| oahkruptcy VI the English law mas, ny long anu
settled usage, received an appropriate meaning,
und has been considered applicable only TO unfor-
tunate traders, who do certain acts which afford
evidence OF an intention to avoid payment oil their
debts"
Sir, the general characteristics Of n bankrupt
law, as contradisiingushed from an nsolvent law,
are that il applies TO particular class of persons,
and not generally to the whole community that
it discharges the contract and is coercive on debt
ors at the instance of creditors; never allowing
the debtor to discharge himself from his debts 1T
his own motion, but only in consequence of the
action of his creditors, leaving it to them to pro
coed against him or not. This is q prominent
feature in the system, and affords protection to
the rights of creditors; for, though single cred.
ior may institute proceeding against the debtor,
yet such proceeding must he for the ultimate ben
EFT OF all, and the community Of interest all have
in 1t is in general sufficient security that it will
not be instituted to the prejudice OF any. These
are the distinguishing qualities of bankrupt law,
as shown by long and settled usage, ny judicial
decisions, and by The concurrent opinions of ele-
Ineninry writer's aud approved commentators
ana cannot he Up thinking that the trainers of the
Constitution, and the conventions which adopted
1t, bad in view laws of this character. Such ap-
pears to have been the understanding of Congress
when the bankrupt law OF $500 was passed; for
that law was framed upon, aud in strict conformi-
7 with these principles.
i But |; is insisted that the constitution author
Zes the enactment Of law, either of universal, or
ot partial nppcation either extending to all per-
sons, whatever may be their occupations in lite,
or only to u particular class of persons that il
allows system of bankruptcy which is purely
voluntary OH the part Of debtors or Il system which
is compulsory at the instance of creditors; in
s'lor', That Congress may PASS law on the sub
Ject, either tnore or less extensive in its OPERATION
as policy or expedcncy may seem to require.
NOW, sir, l have attempted to show, whether
Sl,,lI,
long and uniform course of legislation in those
countries where bankrupt laws have existed by
the law OF clear and established usage resulting
from such legislation, confirmed by an early and
memorable instance Of legislative action in this
country, the power granted by The constitution is
limited 10 certain well known and well defined
objects and purposes and that thus the extent of
the power granted is ascertained, and its limits
1Xed, by the subject matter of the grant ITSELF with
an accuracy and precision sufficient for every
practical purpose.
! Bankrupt laws and insolveni laws, it has been
seen, are essentially different; aud the difference
is very material in this country, since The National
Government possesses the power, and the power
only, TO pass bankrupt laws and The State Gov
ernmcnts the power TO enact insDlvent laws, and
! even laws IN the nature OF bankrupt laws, provi-
ded they do not impair the obligations Of contracts
or Interfere with the provisions of any existing
national bankrupt law. But the power of Con
upon the subject of bankruptcies, 1t would seem
that it cannot conlound the two systems of inso-
vency and bankruptcy. and in that way exercise
powers not exclusively belonging to it, but be
longing to the Suites. lfit may thus extend its
power, then the ris Int Of the States to enact any
law containing regulations ommon TO a bankrupt
law, or even regulations appropriate to an insol-
vent law for the benefit of any class of persons,
may be suspended and completely superseded
law which Is of general and universal app-
cation, operating at the instance and will of the
debtor, though il discharges the contract as well
as the person, and in that particular is so far or
quasi bankrupt law, is not technically, or in any
legal and proper sense, such, but is OF a mixed
character, partaking both of the nature of al in
solvent and bankrupt law. If Congress cannot
pass such u law because il is not properly bank
rupt law, and the States cannot do it because they
are prohibited from passing any law mpairing the
obligation OF contracts the consequence is that all
contracts which cannot be legtmately reached
by bankrupt law, must remain inviolabe n re.
suit certainly COMFORTING well with the principles
of justice and public policy, and, in my npprehen-
sion, by no means 10 be regretted. Butt is set
tied by judicial authority, whether properly or not
it is not material TO inquire that slate may pass
laws of this description, provided they pros
peclive in their operation, and affect only future
contracts made within the State between its own
citizens. And why not then leave it to the States
to act upon all contracts, except such as come
plainly within the true policy and purpose of bank
rupt laws? Is it not right aud Just that liz regard
to all other contracts If not to contracts in gener-
al, laws which go, not TO remedy merely, but to
, the discharge altogether of the obligation of the
contract ITSELF should he prospective?
What is meant by laws of bankruptcy, or laws
upon the subject of bankruptcies, would seem to
5 depend, as have already said, upon the usage,
practice, and understanding existing when the
, Constitution was adopted. This would seem TO
f be The only sound aad safe rule of Interpretation
otherwise the meaning of the constitution, instead
of being fixed aud stable, might be shifting aud
precarious, being one thing to-day and another
, thing Tomorrow But if il he not imperative up
on us TO constrne the constitution in reference 10
usage; il usage is not absolutely to define and
control lis meanlng; if the grant of power is
5 expressed IN terms so general or so wanting in
positive precision, that, upon the mere simple,
naked question of constitutional power, the adj
vocaes of the bill are right in their Interpretation,
so that II you go 10 the extent of their doctrine,
The Judiciary would not he bound TO pronounce
Y your law unconstitutional and void yet one thing
think may be snleI asserted, and can admit of
t no doubt, that, il y0u do 60 TO such extent, you
@ will at least go beyond what was in contemplation
= by the trainers of the constitution. Whether the
Y abstract power exists TO pass the bill in this form,
may he one question whether The power 10 such
n extent ought TO be exercised, can be rightiully
exercised, may he another question quite us nla-
leriai ana important.
/ Mr.. Burke speaking OF the power ofthe British
Parliament, and of the difficulty of giving limits 10
the mere abstract competence OF the supreme
: power observes;
= I" But the limits of moral competence, subject
e ing, even IN powers more indisputnbly soyerign,
{ occasional will To permanent reason, and TO the
steady maxns of faith, justice, and fixed iunda-
mental policy, are perfectly ineligible, and per-
q fecily binding upon those who exercise amy att
/ 'horIty under any name or under any title in the
state
General jurisdiction over n subject may exist,
S ana yet the jurisdiction may be exerted in such
+ way as to be nm abuse, instead Of legitimate ex-
$ ercse OF the power conferred Congress cannot
f violate the spirit inten,iCn, or principles of the
+ Constitution, any more than il can violate its ex-
!, press letter Whatever may he the letter, there
would seem to be little doubt in this case as to the
, intention. Let mo ask, it tho Parliament of Great