not differ materially in principle from those under the old confederacy, and which had similar effects in injuring the character of our legislation, and in impairing the mercantile credit of the country.

That decision, which was made in 1819, gave a fatal blow to this species of fraudulent legislation. The state legislatures could no longer enact statutes affecting the obligation of existing contracts; and as much doubt was entertained as to their power of passing laws operating prospectively upon future contracts, a very general expectation prevailed, that congress would exercise the authority specifically granted to that body, by passing a general bankrupt act. Until that was done, insolvent debtors were entirely at the discretion of their creditors, and in conformity with the wishes of a large majority of the nation, the president, in his first message to the nineteenth congress, recommended the subject to its particular attention.

At the first session, a bill was introduced into the senate, for the purpose of establishing an uniform system of bankruptcy, but on account of the great length of the discussion on the Panama mission, no time was allowed for the proper discussion of its details, and it was after some debate indefinitely postponed.

At the commencement of the succeeding session, Mr. Hayne, of

South Carolina, who had distinguished himself on a former occasion, as the eloquent and enlightened advocate of a general bankrupt system, introduced, pursuant to notice, a bill similar in its provisions to that which had been already indefinitely postponed.

After several amendments had been made to the bill, which were generally accepted without discussion, a motion was made by Mr. Branch, to strike out the ninetythird section, which authorized proceedings under the statute; upon the petition of creditors against bankrupts not engaged in trade or merchandise. It was, however, provided by this section, that a commission of bankruptcy could not issue in such cases, without the consent of the bankrupt. To this section it was objected by Mr. Branch, that it rendered the law unconstitutional. Congress had only the power of establishing an uniform system of bankruptcy; and as this section extended the benefit of the bankrupt system to agriculturists upon different terms from those applied to the traders, it was not uniform in its operation, and, therefore, was not within the terms of the constitution.

He could not be convinced, but that the only means of rendering the law uniform, would be to strike out that section.

Mr. Rowan thought that section the most valuable part of the bill,

and he saw no reason, why the benefits of the bill should not be extended to all classes. The farmer was ex. posed to risks as well as the merchant, and although in England, where real estate was guarded against a total sale, by a salvo contentmento, the bankrupt law did not extend to the agriculturist,no reason for such distinction existed in this country, where land might be sold under execution. He was not in fayour of all the details in the bill, but he certainly should not vote for it, if that section was left out. He was in favour of the application of the bill to all classes.

Mr. Holmes did not think it necessary that a bankrupt system, in order to be uniform,should be exactly alike in the form of its application, to the different classes of the community. He also considered the 93d section, as the most valuable provision in the bill, and he should vote for it, if that clause was retained, but otherwise not.

Mr. Van Buren said he was in favour of a bankrupt system, and that all the provisions of the present bill, except the 93d section, met his approbation. For that, how ever, he could not vote. It was an insolvent, and not a bankrupt law, and he thought congress had not power to pass such a law. He did not mean to lay down a clear and unexceptionable rule of dis. crimination between a bankrupt

the

certain, that for 300 years, they have been kept distinct in England. They differed in their origin, object and provisions, and were always executed by different tribunals. The object of the one was to afford a summary remedy, for creditors against failing or fraudulent debtors; that of the other, to give relief to insolvent debtors.

The constitution of the United States, had conferred upon congress the power to establish the former; and had left the right, and the duty of passing the latter, to the state governments.

This section of the bill he considered an insolvent law, and if it passed, provided it were within the power of congress to pass such a law, it would deprive the states of the right to pass any law on the subject of insolvency, except by permission of congress. There is no middle ground. If the distinction between bankruptcy, and insolvency be abolished, all state legislation is subjected to the arbitrary supervision of congress. He therefore thought, it was not within power of congress to pass such

the

a law.

He also considered, that it would cause an injurious extension of the patronage of the federal government, and an insupportable enlargement of the range of its judicial power.

state courts, was familiar to all, and that of necessity, would be immediately transferred to the federal

courts.

For these reasons he should prefer the loss of the bill itself, to its passage with the 93d section.

Mr. Berrien did not regard this distinction, which it was said, existed between bankruptcy, and insolvency as material in this discussion. By the terms of the constitution, the power of congress extends to the whole subject, and the power of the states, over any part can at most be only concurrent. But the assertion of such a power, imposes the obligation to define the sphere, within which it may separate. This has not been done. On the contrary, generalities have been dealt in, and the senate has been told of a distinction, well known and uniformly recognised; but it has not been informed, what that insolvency is, over which the states claim exclusive control. the English courts no distinction has been recognised sufficiently distinct, to warrant any limitation of the legislative power, to be derived from it, and such has been the express opinion of the supreme court of the United States.

In

He thought that the regulation of the whole subject, was confined to congress. The power "to establish uniform laws on the subject of bankruptcy," was a power to declare who shall become a bank

rupt, as well as what acts shall constitute bankruptcy, and what shall be its effects both in relation to debtor and creditor.

The whole difficulty originated in a confusion of ideas, and in not accurately distinguishing between the principal and its incidents of object and mode. The power to pass a law is one thing; the objects to which it shall be applied another; and it is a further consideration, in what manner it shall be exercised. The constitution confers the power. Here it stops. The citizens of the United States are here, as in all other cases, the objects on which that power may be exerted, unless some specific limitation be found in the instrument, while the mode in which it is to be exercised, is left to the discretion of congress. The only limitation to which the power is subject, is, that the laws be uniform ; and the necessary consequence is, that an exclusive power on the part of the states, involves an inconsistency with the grant to congress; and even a concurrent power must be exercised, in subordination to the general law.

The expediency of admitting such a provision into the bankrupt system, is another question; and if bankruptcy be considered a privilege, all are entitled to its benefits.

Perhaps it would be harsh to subject the landholder to the provisions of a bankrupt law, which

would compel him to sacrifice his real estate at a moment of temporary embarrassment, in consequence of his not punctually complying with his engagements. But this section does not contemplate a bankruptcy in the agriculturist, without his assent; and the vicissitudes of the last twenty years, have taught us, that pecuniary distress has not been limited to the mer. chant, but has often pressed heavily upon the farmer and plant

er.

In the mercantile class, credit is more essential. Punctuality is indispensable to its preservation; and the nature of mercantile pursuits, enables merchants to obtain credits far beyond those given to those not in trade, who generally have a greater capital in proportion to their debts. This difference in their situation, justifies the coercive character of the bankrupt act, towards merchants; and shows that it ought not to be applied in that manner to agriculturists.Anxious as he was to relieve the distresses of the mercantile community, he could not consent to legislate for them alone.

extend beyond embarrassments and failures among mercantile men. The border line between that and insolvency, in certain cases, may be not easy to distinguish; but in common parlance, and in technical acceptation, they had distinct meanings. One striking feature was, that a bankrupt system was compulsory on the debtor; an insolvent system was voluntary. One was for the benefit of the creditor; the other for the benefit of the debtor. The compulsory feature is also a distinguishing characteristic in a bankrupt law. Now, this last section is not compulsory, but purports to be for the benefit of the debtor, and depends wholly upon his consent. It is, therefore, strictly an insolvent provision, and whether beneficial in its operation or not, it is not within the natural scope of a system of bankruptcy. He thought that it was not constitutional. If congress could embrace farmers in the act, it could make it compulsory upon them. In this manner, every farmer and mechanic in the country can be subjected, on committing an act of bankruptcy, to have. his property seized and sacrificed, and all his freehold franchises taken away. This, too, although he may be perfectly solvent. He believed it would prove one of the greatest curses ever inflicted on any country. Our farmers were not accustomed to punctuality, nor did they

keep books. By passing this bill, they might be rendered by subsequent amendments, on a single failure, to all the penalties of this bloody system of bankruptcy; and the absence of books, would be considered as evidence of fraud, or if no such inference were drawn, a wide door would be opened to its perpetration.

He feared also the operation of this consent of the agriculturists. It would in time render them liable to the compulsory process of bankruptcy. Besides, if they did consent, he thought that it was not a question solely between them and the United States. The states themselves, had rights; a right of jurisdiction over their territory, and over their citizens; and he inquired, when they had ceded this right to the federal government. If consent of individuals could confer rights upon the national government, subjects and classes would be brought within its power, which were never contemplated by the framers of the constitution. alarming increase of the federal patronage, would take place, if this section went into effect, and he could not vote for it.

An

MR. TAZEWELL objected to the bill itself, as being unconstitutional in its details, and inexpedient; that it increased the patronage of the president in an alarming degree; and that it was an unwarrantable invasion of the rights of the states.

When the former bankrupt law was in existence, he resided in a seaport town, and was concerned in almost every case of bankruptcy, that occurred during its operation; and he assured the senate, that he never knew a solitary case, in which the creditor obtained one cent. The debtor had often a large estate, but by the time it had been filtered through the hands of the commissioners, and the other officers, not a fraction was left for the creditor; the whole had been absorbed in its progress.

MR. HOLMES said, that the object of a bankrupt, and an insolvent system, was the same, the relief of the debtor; and he was in favour of extending that relief to all classes, accompanied with proper restric tions.

MR. HAYNE, who brought in the bill, stated that, deeply convinced, as he was, of the necessity of a bankrupt law, he could not consent to extend the compulsory system to the agriculturist. He was satisfied, however, that such a law could not pass, without the farmers and manufacturers were admitted to a participation in the benefits of the bill. Such was the objection, urged to the passage of the bill proposed in congress several years ago. The representatives of the agriculturists, said that it granted privileges to a particular class. By their opposition, the bill was lost and two bankrupt bills were suc