The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1842-03-05

Nsw fORK, March 4, lo0.
10 JAMES GORDON BEssErr, Esa:-
DEAR SIR
The papers of this n,srning inform us that Judge
Bets has decided that the Bankrupt Law is coust-
tutona, toF the reason that Congress is invested
with full powersto pass . Bankrupt Law This de-
cision was not unexpected to me, but the reason as
signed by his honor is by no means satisfactory.
am one of those who believe that the law is nm
constitutional, and with your permission, I win
briefly state my reasons for this belief
l. Congress is prohibited from passing any CT post
fdcfoia II is alleged. however, that this refers m
criminal laws only. ] am not satisfied Of this bnt
admitting such to be the case il proves that the AMI
OF the constitution is directly opposed to laws ha
favor Of the prohibition Of er post jacto criminal
laws, is equally cogent against the justice and pro
pretty Of all other laws containing the retrospective
principle.
The constitution prohibits the States, in their in
dividual capacities, from passing any law mpairinp
the obligation OF contracts. The trainers Of that ip
strument considered the involablity Of contracts a
matter OF such vital importance to the we'll being of
society, that, unwilling to trust the States to pass
the requisite laws the subject they determined to
secure this great object by taking from the States
all power to interfere with, or impair the oblioa.
ton of contracts Wilt be said that this power.
thus taken from The States, was bestowed upon Con-
Press Show me the passage 10 the constitution in
which 1t IS conferred upon that body. The power
to pass uniform laws on the subject of bankrrotcy
does not include authority for making those laws
take effect upon pre-exis.ing contracts There is
the slightest ground for the superstition that The
operation Of those laws Intended to be different
from that Of all other laws; and as it is cutie EVIL
that the spirit, if not the letter, Of the constitution,
- hostile to retroactive laws, we are Yresistably
forced to the conclusion that the present bankrupt
law is unconstitutional.
2. Judge Belts, however, has asserted that the
bankrupt law 10 constitutional, because Congress
hc nnvn N nnttC los al
bankruptcies. In his opinion, then, il can make
but little difference what those laws are and what
they are designed to effect; so long as they are
uniform laws on the subject of banxruptcies,''
they are constitutional Is this correct reasoning
should say not.
All powers conferred by the constitution were in
tended to be exercised within the limits of reason
common sense, and common justice; and any law
passed under an understandable stretch of these DOW.
ers, 10 as unconstitutional though the powers had
been altogether withheld. Let me illustrate this bv
supposing case. Suppose Congress were to pass q
law that from the date Of the act all debtors, rich
and poor, without the payment Of cent to their
creditors. should be forever discharged from their
debts. Would Judge Belts, or any other man in
his senses. deny the unconstitutionaty of such a
law! think not But why would not this law be
constitutional Itwould be 'unlform law on the
subject OF bankruptcies" which Congress has ex-
press authority to pass The reason is obvious-it
would be an uawarrantable exercise of the power
an outrage upon treason ,ustice, and common sense,
and therefore, unconstitutional And this is one of
the reasons why consider The BANKRUPT law uncon-
stitutlo nal-the power under which it was enacted
great as in the have supposed; but still was
abuse, and for that The law cannot be con-
sidered constitutional sT
The question may be asked, whether tie power
has, in point of fact, been abused. To this inter-
rcgatory would reply in the words Of a distn-
guished lawyer, Theodore Sedgwick, Esquire In
his recent speech at the Exchange, he observed -
what does the constitution say about the matter
Itcov, hat To- hall kov~
uniform laws on the subject of bankruptcies
Where are you to 60 TO find the meaning of that
Why to old mother England. Uniform laws ON
the subject Of bankruptcies, had long been known
when our Constitution came into existence, and
there tcee three fundamental essential principles recog-
nised, NOT ONE OF WHICH CAN BE FOUND IN THE PRE-
SENT ACT In the first place, as to the character of
the persons who were 10 be affected by this act
they were to be traders merchants and bankers
only. In the second place to the character of
the proceedings, and who began them: it was pre-
ceedng by the creditor, for the purpose of winding
up the debtors estate-of aresting the progress Of
an insolvent and compelling him to divide his as
sets among his creditors. Aud, astly consent of
portion of the creditors was essential to dis
charge OF the Inso!vent. In no one Of these three
fundamental principles, does the present Bankrupt
law resemble any one of its predecessors. In the
rst place, affecting the whole world, ex-
Tbsn as TO se Of qse
whom begun? BY the creditors? Not at ALL
With a few exceptions. the creditor is to remain
perfectly passive, and allow le Debtor proceed to
surrender or not, as he may see fit. Then again.
as to the consent Of the creditors No such con.
sent is required. To be sure, the creditor NAV po
to a. jury1but on what Not on the question:
whether the debt was improperly contracted, or
whether the person was gambler or reckless
spendthrift Such Bankrupt La,sis equally sfran-
ger in England as in this country"
IL appears, then, that the present Bankrupt Law
bears no resemblance TO any Of its predecessors
and, consequently, is not such one as the Consti-
tuition conemplates The interest OF the creditor is
almost wholly overlooked. and the whole design Of
the trainers Of the law, seems to have been, to
the slightest reference TO the character of the deb
tor, or of the conduct Of which be may have been
guilty. No distinction is made between him who
is stained with fraud, and the unfortunate who has
been upright in all his dealings II matters not that
You can prove the fact Of your debtors having will
fully cheated you, and of his having eecreted pro-
perty which he can receive again the moment he
is discharged; it matters not that you can establish
10 the satisfaction Of jury, that he has defraud
trust funds to his own use; the law, miscalled the
bankrupt law, throws its protecting arm around
him, equally with the poor but honest debtor who
would gladly pay every dollar he owes, and who
Iaments his inability to do justice to his creditors
Will any man say that this law rot enacted ur-
der an abuse OF the power to pass uniform laws on
the subject Of bankruptcies? Is it the height
absurdlty to call such a law bankrupt law, and
then argue that it is constitutional because the
power to pass bankrupt law has been given e
Congress Admit this principle, and all our dearest
rights may be invaded, our property taken from US,
and even oar Liberties abridged BY the Unlimited
abuse of powers conferred by the Constitution.
W.. H. w.