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

any class, ameDabe 10 the law. The stat.
ute Of Elizabeth is confined TO persons en-.
gagged in merchandise but, before The
adoption of our Constitution, the provisions
of that act had been extended by Judicial
Interpretation TO all persons, OF whatever
class, buying and selling for profit. So the
English bankrupt law was not confined TO
professional traders /; and II is equally GER
tain that man might be declared lnsolsent
OF tue instance Of his creditors, as any fnsn
may convince himself by reading the STAT.
ute 80, George 2, commonly called the
Lords act Neither part of the PROPOSE.
lion, therefore, is true in point of fact
The attempted distinction between bank
IUplcy and insolvency does not exist. Eur,
if II were so, the conclusion would not fol.
low. The proposition is, that the ample
power given to Congress TO establish laws
on the subject Of bankruptcy is confined 10
the establishment of such lars as were az
eriSteace in England at The date Of The
grant. Can any thing be more prspos,er-
Gus! This would be TO deny TO Us the
RICH, to avail ourselves Of the progress of
: legal science. This particular branch Of
legal science has advanced in England and
elsewhere. In Great Britain a commits.
sion, combining distinguished Intelligence
with perseyerlng industry, after five years
laborious research, has detected and ex.
posed the errors of the bankrupt system as
it bad existed there for centuries. She
has corrected the errors Of her own system.
! Are we conslitutiona!ly bound TO adhere 10
theml Mr.. B. said. protest, sir, against
this slavish subsection TO the bygone errors
Of any nation. II could never have been
designed by the trainers Of our Constitution.
We broke the chains of our colonial vassal.
age in vain, if We are to riyei them anew,
and by our own act.
! But there is an obvious, palpable fallacy
in The proposition. Ii coniounds principal
aud incident, the details which belong TO
the exercise Of The pouer, with the grant Of
The pouer itself The power granted is
10 establish ldtrS on the subject of bankrupt
cy 10 regulate the relations betueen fail
ing debtor and his creditors, subject to
single limitation, that of uniformity. This
is the principal, and it is irreyocable. As
the Constitution left it, it must remain while
tina, Constitution exists; bat all else is incl.
dent, detail, not prescribed by the Consti.
tuition, but necessarily confined 10 the dis
cretlon of Congress, because time, and
circumstances not TO be foreseen aud pro.
vided for, would require their modification.
In passing bankrupt law, Congress has ID
determining
!. What classes Of persons shall BIO in
clUded within the act.
?. What acts of such persons shall con.
stitute bankruptcy.
g. What shall be the rule of distribution
Of the bapkrupt's effects.
a. What shall be the effect Of the certifi.
cate.
5. VIVA, shall be the mode Of proceeding
TO ascertain The act Of bankruptcy, enforce
the distribution, and obtain the certificate.
These are details. The power TO regu.
late them is necessarily incidental to the
principal power, which is the power to
establish law Of bankruptcy. Are We
bound to follow the English statutes in oil
these particulars? not ia all, 10 nhich2
Are we obliged TO incorporate the penalties
of the statute OF Elizabeth in an American
bankrupt law?
The argument for which am contend.
ing is strengthened by the pords of the
grant. These are peculiar" 10 establish
laws on the subject of bankruptcy, which
shall be Uniform throughout the L. States"
Was ever charter more ample? The
,cloie saGject" of bankruptcy is commit.
ted TO the discretion of Congress, with
single llmtstion. Where is the power 10
fake from the constitutional grant by add.
ing 10 the constitutional limitation? Er.
presto est ereluSio Il:erias. The Consti-
tuition gives to Congress the power to
establish lars on the subject Of bankruptcy.
Whs, laws : Those of England, Of France,
of the other States Of the Continent, or
laws devised by an American Congress?
Dir. BERRrEN said, the reasons assigned
for the limitation TO traders IN England
grew out Of their own peculiar condition
and institutions, and we're wholly inapplica-
BILE here. He proposed 10 explain this di.
versiiy Of condition. He then stated, as
striking fact, that New York, in ratifying
the Constitution, had Instructed her Sena-
WI uAiu W piOpOcet uS dA
amendment, to this particular grant OF pow
err, lis limitation TO traders, which was not
adopted, and cited Jour. Conv.. supplement,
436.
This, he said, proved two thing:
l. The proposal TO limit proved The cor
temporary Interpretation Of the ertent of
The grant, and that il was capable Of being
applied to oil classes Of the community.
.. The rejection of this proposal proved
that it pds not deemed proper so to limit il.
But why (Mr. B. asked) should the con.
ven,ion have confined itself to the English
rule of bankruptcy. or have resorted alone
10 her statutes for the Interpretation of tho
ERIN! Her laws and institutions are Justly
entitled to respect, Of which no American
awyer could if he would divest hmself--.