The Charlotte journal. [volume] (Charlotte, N.C.) 1835-1851, 1842-02-17

cate, as boon granted by his creditors
A better view Of this subject has been taken
in England certaiuly bankruptcy is moi al
this day so considered in the United States.
Here the exeriion of the authority couter.
red by The constitutional grant, to establish
laws on the subject Of bankruptcy, is an
exercise OF the protective power Of the Go.
serLment Its right so to inlerpose will
be hereafter more particularly consider.
Cd. Assuming, in this part Of the argu
ment, tba, the allowance of the certificate,
results from that interposition, and Is not
boon conferred by the creditor, there is
on obvious propre,y 10 leaving the question
Of its allowance to be decided by the impair
ttal judgmen, Of The Judicial officer of the
Government, rather than 10 permit 1t TO be
dependent on The caprice Of the creditor.
The very same power, differing only in
degree, would be exeried By provision
that certificate Of discharge might be
granted by the assent Of any portion Of the
creditors less than the whG!a. Thus the
Government assuming, under its constitu.
iional grant Of power, the right to gran, the
certificate, prescrbes the general terms Of
IFS allowance, and fly con6des the applica.
ton Of them 10 its own judicial officer.
The same observation is applicable to
the appointment Of assgnees. 10 lieu Of
the remedy allowed to each individual
creditor against the property Of the debtor,
or 60 moch as will satisfy his claim, the
Government assumes upon itself the task
Of making ratable distribution Of all his
property among all bis creditors. 1t IS Fl;
tina. it should selec. lis own agents in per.
forming this Office, yet the wishes Of cred.
itors will no doubt be consulted in their
selection.
/! is next said, that this Law ought to be
amended so as to include banks. Waving
the question Of constitutional poirer, Mr.. B.
said the actual condition O! the country
seemed, in the view Of many, TO present an
insuperable objection to such an amendment.
He believed that public opinion was grad.
ually becoming more favorable to it, but he
thought it would, at this moment, be i'm.
practicable TO pass general bankrupt law,
which included banks in lite operation, and
was, therefore, unwilling to subject it TO the
hazards Of such connection. lie consld
cred it better TO take tho sense of Congress
on this subject by separate bill.
/ In fine, on this branch of the subject, Mr..
D. said the bill was practicable, and capa.
BILE of being carried into beneficial opera
ton, as gentlemen would discover, if they
would leave it undisturbed for few days.
Nay, it was already in operation, w,bou,
the aid Of legal process, or the assistance
of judicial officers. The very fact Of ITS
existence Oh the statute book, even though
lts legal operation was postponed, had oil
ready, as be had been informed, produced
many compromises, beneficial alike to debt
or aud creditor. 1t was practicable, he
said, md therefore i, was Objectionable to
Its opponents. |. was obnoxious, not mere.
ly per Sc, 10 and by itself, bu, per nos, in,
and through us-uo; merely as bankrupt
law, but as Wing measure, as measure
Of The ertrd session, as one of a system of
measures, all Of irhich must be repealed, or
even tiro reios of Wing President will
have los. their chaf;n.
Second point. Mr.. B. said he would next
examine the question of the constitutional |
power of Congress 10 pass this law. The
objections 10 Il were various. He would
meet them all in the assertion Of the follow.
ing propositions That Congress has
power to pass bankrupt lew, not limited
10 traders, but extending TO all classes of
The community; not merely compulsory on
the debtor, for the benefit Of The creditor
alone, and to be pu, in operation solely at
his option but also voluntary, for the ben
eft of the debtor. and TO be called into &c.
tirity at his separate ,rill law which
shall discharge the person of the debtor and
his future acquisitions, as well from con.
tracts made before as from those made Of.
ter the lar which shall empower compe.
tent judicial tribunal TO gran, the ccrfif.
cate of discharge, nth or uithot the
consent of oil, or Of any Of his creditors.
10 short, that the uhole subject of the rela,
tons between debtor fdiling 10 pay his
debts and his creditors is, by the CoDs:itu
ton, contided to Congress, with single I
limitation.
The general power (Mr. B. said) is not
questioned. 1t is written in broad letters
on the face Of the Constitution. But il is |
contended tina; bankruptcy is technical
term, derived from the English law, having
a fixed Interpretation in that system Of
which must be conformed TO
here. The fact and the consequence are
both denied. The objection is, that bank
ruptcy, as contrudis,ingushed from insol
vency, is limited to traders, is compulsory
on the debtor, applied solely at the option
Of the creditor, and discharges the contract;
while insolvency, extending to all classes
Of the community, can only be put in oper.
alton at the instance of the debtor, and is
limited TO bis discharge from Imprisonment.
No such distinction exists. Bankruptcy
was borrowed from the civil law, which did
not recognise it. The commission of the
Pr:ntor extended 10 luna.cs and ptotIigates
as well as to debtors, and was granted al
the instance of relations as well as cred |