Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1841-02-15
SPEECH OF MIR. PRENTIss OF WI
ON THE BANKRUPT BILL,
Delivered in the U. S. Senate June 90, 1910.

ON The
Delivered in the U. s. Senate, June %, 1910.
Mr.. President: | have listened with close
and very particular attention 10 the discussions
on this exceedingly important subject. have
been anxious | may say, sincerely anxious, IL
form right opinion upon it an opinion not only
satisfactory to myself now, but such an opinion us
l may be able 10 approve of hereafter AS my
views however, after all have heard said, after
mature and very mature reflection, differ some"
what from those of gentlemen with whom am
accustomed to agree on most occasions, II seems
to be due from 10 state fully and distinctly, yet
as concisely as may be, the grounds upon which
feel constrained TO act.
Sir, much has been said here MS 10 the true
meaning of the clause in the constitution, which
confers upon Congress the power TO establish idwS
upon The subject Of bankruptcies Some gentle
men have gwen to the clause somewhat restrict
ed sense others have assigned it Il more enlurg-
ed operation. Some have insisted that The clause
ought to be construed according to the common,
popular acceptaton of the word bankruptcy; 9th
'ers, that it should be interpreted according TO the
legal, technical meaning of the term. Some
would give to Congress, through the medium of
bankrupt laws, n general power over contracts
between creditors and debtors of all classes 9TH
ers, observing distinction between the different
classes, or between commercial and other debts,
would confine the power within certain limits
Sir, that bankrupt laws and insolvcnt laws have
existed for long period OF time, MS different and
distinct systems, the one intended specially Tor The
relief of Debtors the other for the benefit OF credi
tors well as for the relief of debtors, or rather
for the benefit of creditors with incidental, but
ample relief to deb ors, presume no one will de.
ny. lnsovent laws, | suppose. had their origin in
the cessio bonorum of the Roman law The cessio
bonorum, we all understand, extended to all per-
SONS; but it only exempted the debtor from I'M
prisonment. Ii did not discharge the debt, or eX-
empt the future acquisitions OF the debtor. And
] take it that the laws upon this subject which
prevail in most parts of the continent Of Europe,
are TO this day substantially the same as the ceSsio
bonOrum of the civil law, and are no more extern
sive in their operation. They do not discharge
the contract, but the person oay.
To this extent, presume no one will hesitate
to say, that it was right and fit TO afford relief
For there could have never been any other legiti.
mate object of Imprisonment, than 10 coerce the
debtor 10 apply the means IN his possession TO the
payment of his debts; and when he was willing to
do that, Justice as well as humanity required That
he should be released at least from personal re-
strant. Such was the relief afforded by the ces-
$40 bonorum Of the civil law; and the principle l
take il, has been adopted and acted upon, in some
form or other, in every civilized country. Laws
Of this character aud with this Limitation, under
the name of insolvent laws have existed for a
early period in this country. In the State rep
resent, i, is made an article of fundamental law,
incorporated into lis constitution, that "tle pei son
of a debtor where there is no strong presumption
Of fraud shall not be continued in prison after de-
lyerng up and assigning over, bona de, all his
state, real and personal, in possession, reverson,
oil remainder, for the use of his creditors"
In the progress Of trade and commerce, and for
tile encouragement 81 advancement Of these great
interests, the system bankruptcy was introduced;
a system which, in the course of time, though not
originally, went beyond the discharge of the per-
sou, and discharged the contract ITSELF This sys-
TEN was intended to apply to persons engaged in
the hazardous undertakings OF trade & commerce;
undertakings, which, from their very nature, ex-
posed those employed in them to unforeseen and
unavoidable misfortunes, 10 sudden and accidental
losses, which no human prudence could guard a.
ganst. And we find that, according 10 the course
Of English legislation, bankrupt laws have been
confined TO merchants and traders and have acted
on debtors only at the instance of creditors; the
object being 10 compel fraudulent or unwilling
debtors to surrender up their property in satisfac-
ton of their debts. Such was certainly the case
for long period of time anterior to 1889, and for
many years subsequent for, it is to be observed
that the addition TO the list of bankrups OF inn
keepers and wharfingers in the reign of George
iii, and of scrveners, bankers, brokers, and fac
tors in previous reigns, all of whom, il is to be no
ticed, were dealers either in goods or moneys
was nothing more than an extension of the law &c
persons who, in the progress and changes of bust
ness, had in fact become traders, or, us the law
books say, were looked upon traders, as they
made merchandise of money, as other merchants
do of goods. So that, down 10 the reign of Geo
Nv. at least nearly forty years after the adoption
of the constitution, as well as for long space o
time Previous bankrupt laws existed as n system
by ITSELF totally distinct from insolvent laws, and
was well known and understood rs such.
Sir, when the Constitution was adopted, the
power to pass bankrupt laws was probably under
stood as power necessary to the full and com
pete execution Of the power TO regulate com
mcrce-as ancillary 10 that power; and it wa
probably understood that the power would be cX
ercised in reference to persons connected wit.
matters of trade and commerce. This appears t.
be fairly nferrible from the commentary on thi
clause of the constitution contained in the FEEDER.
alist. In the Add number of that work, written h,
Mr. Madison, It is said:
'"Ihe power of establishing uniform laws o
bankruptcy is SO intimately connected with b
regulation of commerce, and will prevent so ma
ny frauds, where the parties or their property ma
lie or be removed into different States that the ex
pedency of it seems not likely 10 be drawn il
question"
The eminent writer of this commentary looked
upon bankrupt law as connected with trade nm,
commerce and it Is evident that he considered
rs applicable to persons engaged in those pursui
JUS means 10 be employed by Congress to pr
prevent fraud and injustice, aud secure equal
and reciprocity in commercial and mercantile
concerns, by enabling creditors, in defiance o
partial or unjust State legislation, and in gum
mary and speedy way, to compel Their lraudulen
or failing debtor to surrender up his property il
satisfaction of their Claims in whatever State
might be situate, and whatever might be the reg
uialions OF any state upon the subject
The great commentator on English law define
a'bankrupt TO be-" trader who secretes himself
or does certain other acts tending to defraud hi
credltors;' and, after observing that the laws o
bankruptcy are considered as laws calculated fo
e the benefit and security Of trade and commerce
and founded on the principles of humanity tt
the debtor well as justice TO the creditor, h,
adds, -" But still the laws of England are caui
tious of encouraging prodigality and extravaganza,
by this indulgence to debtors; and thereforevihe,
ALLOW the benefit of the laws of bankruptcy tc
none but actual traders since that set Of men are
generally snenkino tne only DersOns liable IN me-