Staunton spectator, and general advertiser. [volume] (Staunton, Va.) 183?-1849, 1842-03-17
Mr.. Bcrvien's Speech.

or postponement Of the Bankrupt Law.
Mr.. BaRRIEN proceeded to say, that when
the Senate passed from the consideration o!
this subject yesterday, he had discussed the
question the constitutional authority OF Con-
gress to pass bankrupt law, not limited to
traders merely, but extending to all classes of
the community, and had cndcavored to place
the assertion of that power under the protcc-
ton of the Constitution, of contemporaneous
Interpretation, OF judicial decisions, and of the
concurring opinions of enlightened jurists who
had commented upon that instrument lie
had attempted also to vindicaie the rightful
authority of those judicial decisions, as the
final arbitrament which the Constitution itself
had provided.
He was now, he said, TO discuss the consti-
tutional question in another, aspect. 1t was
objected that the bankrupt law was unconst-
tutional, because it was retroactive, because it
extended to, and discharged contracts which
had been entered into before, as well as those
which shall be entered into after the act be-
gins to operate. 1t is competent, say the OBJ
jectors, to pass bankrupt law which shall re-
lease the future acquisitions of the debtor from
contracts entered into after the passing of the
act, but not from processing contracts. Why
not, Mr.. b. asked; why not F? Does the Con-
stitution forbid it? Is it forbidden by any
principle of good faith-of the inviolablity
of contracts? Do not the interests as well
as the duty of the Government require it?
Is it forbidden by the Constitution Far
from it. The power is asserted in that nstrrl-
ment, both airmativcy and negatively aC-
yfrmatipeiy by the express grant 1.-THE power.
to Congress, to establish Ia,cs on The subject of
bankruptcy, which, in every commercial ma
ton of the world, have been held 10 cover the
whole ground of the relations between debt
or in failing circumstances, and his creditors,
and 10 extend to the discharge of the future
acquisitions of the debtor, from liability to his
contracts, totally regardless of he time at
which they were entered into.-Such is the
nature and effect of these laws, according to
the understanding of civilized nations. If.
then, it were admitted that a bankrupt law so
operating impars the obligation of contracts,
the answer is, that to this extent, and for this
purpose, Congress has power, under the Con-
stitution, to pass laws, impairing the obligation
of contracts. The power is given expressly,
aDfrmatirely.
But it is also given negatively. The obliga-
ton Of contracts, their sacfedness and inviola-
bity, engaged the attention of the trainers of
the Constitution, when they expressly declared
that no State shall pass "any law imparing the
obligation of contracts" The states had sur
rendered the general power to pass bankrupt
laws to the General Government, on high con-
siderations of expediency and necessity. For
all other purposes, contracts ought to be held
i:violable, and hence the inhibition upon the
States toimpair their obligaiion but this power
had been transferred to the General Government,
and that consideration forbade that Congress
should be included in the prohibition. They
were not included, and thus by negaiion as
strongly as by the express grant of the author
ity to pass laws on the subject of bankruptcy,
is this power asserted in the Constitution
Is its exercise forbidden by any principle of
good faith And what is that principle, and
how is it violated by this law? There is a sa-
credness i'll contracts entered into bora fde, both
in the eye of the law and of sound morality
The maxim, fdeS Scrrandd est, is of undisputed
authority, and ought to be universally observ-
ed. Mr.. B. said he would never be found a.
mong the advocates for It's violation. But is
it violated by the provisions of the law under
consideration? contract is an agreement TO
do, or not to do, particular thing. Let us
distinguish between the obligation of a con-
tract and the remedy for its enforcement and
admitting, argument gratia the involabity of
the former, let us consider whether, even indie
pendently of the constitutional grant, the lat
ter is not habtually subjected to the exercise
oi ordinary leSISlutlOi. 10 Dc repllaleu as con-
siderations Of expediency may dictatc.-The
creditor enters into contract, for noncom-
pliance with the terms of which, the law gives
him an action at law. For the purpose of
the argument, will suppose that this right OF
action is, under the law, existing at the date of
the contract, unlimited as to time. Before the
creditor finds it necessary to resort to his
remedy, the Legislature deem it proper to pre-
~bcribe period within which this remedy must
be used, and after which it shall be no longer
available to him. What is this but to say that
the remedy Of the creditor for the enforcement
ofhis contract, which, at the time of entering
into it, was unlimited, shall at the expiration
ola certain time, which the Legislature in its
wisdom prescribes, cease to exist? This pow
er is constantly exercised in the enactment of
statutes OF limitation, not under the precise
circumstances and to the extent here supposed.
because such statutes were already in exis-
tence at the date of the contracts upon which
they are made to operatc.-But the whole
power which is contended for is exerted in
the modification Of them. Who doubts the
power Of the Legislature to modify statute
of limitations by provisions which will apply
to and control all suits brought after its enact
ment, though these he founded upon contracts
which were entered into before such modifca-
Y ton? Here, then, in the exercise of ordinary
legislation, is an interposition by the Govern
ment, an interference with, and withdrawal of
l.