question would still be, How did the people understand it? And this can be decided only by giving their usual acceptation to all words not evidently used in a technical sense, and by inquiring, in any case, what was the interpretation or exposition presented to the people when the subject was under considera

tion.

Bankruptcies, in the general use and acceptation of the term, mean no more than failures. A bankruptcy is a fact. It is an occurrence in the life and fortunes of an individual. When a man cannot pay his debts, we say he has become a bankrupt, or has failed. Bankruptcy is not merely the condition of a man who is insolvent, and on whom a bankrupt law is already acting. This would be quite too technical an interpretation. According to this, there never could be bankrupt laws, because every law, if this were the meaning, would suppose the existence of a previous law. Whenever a man's means are insufficient to meet his engagements and pay his debts, the fact of bankruptcy has taken place; a case of bankruptcy has arisen, whether there be a law providing for it or not.

There may be bankruptcies, or cases of bankruptcy, where there are no bankrupt laws existing. Or bankrupt laws may exist, which shall extend to some bankruptcies, or some cases of bankruptcy, and not to others. We constantly speak of bankruptcies happening among individuals, without reference to existing laws. Bankruptcies, as facts, or occurrences, or cases for which Congress is authorized to make provision, are failures. A learned judge has said that a law on the subject of bankruptcies, in the sense of the Constitution, is a law making provision for persons failing to pay their debts. Over the whole subject of these bankruptcies, or these failures, the power of Congress, as it stands on the face of the Constitution, is full and complete.

And now, let us see how it is that this broad and general power is, or can be, limited by a supposed reference to the English system. The argument is this. The members of the Convention which framed the Constitution, in conferring this power on Congress, must be supposed to have had reference to the bankrupt laws of England; and the bankrupt laws of England, as then existing, embraced only merchants and traders, and were only applied to debtors at the instance of their creditors; therefore the inference is said to be, that traders only should be re

garded as subjects of any bankrupt law to be passed by Congress, and that no such law should give the debtor himself a right to become bankrupt, at his own request; or at least, that every such law should give a right to the creditor to proceed against his debtor. But is this the just analogy? Is this the point of view in which a general resemblance of our system and the English system may be supposed to have been contemplated? Clearly not, in my opinion. Let it be admitted that the framers of the Constitution looked to England for a general example; they must be supposed, nevertheless, to have looked to the power of Parliament, and not to the particular mode in which that power had been exercised, or the particular law then actually existing. The true analogy is, as it seems to me, between power and power; the power of Parliament and the power of Congress; and not between the power of Congress and any actually existing British statute, which might be, perhaps, in many respects, quite unsuitable to our condition.

The members of the Convention did not study the British statutes, nor examine judicial decisions, to ascertain the precise nature of the actually existing system of bankruptcy in England. Still less did the people of the United States trouble themselves with such inquiries. All saw that Parliament possessed and exercised a power of passing bankrupt laws, and of altering and amending them, from time to time, according to its own discretion, and the necessities of the case. This power they intended to confer on Congress, as largely, for aught that appears, as they saw it held by Parliament. The early British statutes were not confined to traders; later statutes were so confined; and more recently, again, changes have been made, which bring in very numerous classes of persons who were not esteemed traders, in England, at the time of the adoption of the Constitution of the United States. I may add that bankrupt laws, properly so called, or laws providing for the cessio bonorum, on the continent of Europe, and in Scotland, were never confined to traders; and while the members of the Convention may be supposed to have looked to the example of England, it is by no means improbable that they contemplated also the example and institutions of other countries. There is no reason to suppose that it was intended to tie up the hands of Congress to the establishment of that particular bankrupt system which ex

isted in England in 1789, and to deny to it all power of future modification and amendment. It would be just as reasonable to say that the United States laws of copyright, of patents for inventions, and many others, could only be mere transcripts of such British statutes on the same subjects as existed in 1789.

The great object was to authorize Congress to establish a uniform system throughout all the States. No State could of itself establish such a system; it could only establish a system for itself; and the diversities, inconsistencies, and interferences of the several State systems had been subjects of much wellgrounded complaint. It was intended to give Congress the power to establish uniformity in this respect; and if the English example was regarded, it was regarded in its general character of a power in Parliament to pass laws on the subject, to repeal them, and pass others, in its discretion, and to deal with the whole subject, from time to time, as experience of the exigencies of the public should suggest or require. The bankrupt system of England, as it existed in 1789, was not the same which had previously existed, nor the same as that which afterwards existed, or that which now exists. At first, the system was coercive, and the law a sort of criminal law, extending to all persons, as well as traders. But changes had taken place before 1789, and other changes, and very important changes, have taken place since. The system is now greatly simplified and improved, and it is also made much more extensive as to those whom it embraces. It is hardly too much to say, that it is preposterous to contend, not only that we are to refuse to ourselves the light of our own experience, and all regard to our own peculiar situation, but that we are also to exclude from our regard and notice all modern English improvements, and confine ourselves to the English bankrupt laws as they existed in 1789. The power of Congress is given in the fullest manner, and by the largest and most comprehensive terms and forms of expression; and it cannot be limited by vague presumptions of a reference to other existing codes, or loose conjectures about the intents of its framers, nowhere expressed or intimated in the instrument itself, or any contemporaneous exposition.

I think, then, that Congress may pass a law which shall include persons not traders, and which shall include voluntary cases only. And I think, further, that the amendment proposed

by the honorable member from New Jersey is, in effect, exactly against his own argument. I think it admits all that he contends against. In the first place, he admits voluntary bankruptcies, and there were none such in England in 1789. This is clear. And in the next place, he admits any one who will say that he has been concerned in trade; and he maintains, and has asserted, that in this country any body may say that. Any body, then, may come in under the bill. The only difference is, unless he is bonâ fide a trader, he must come in under a disguise, or in an assumed character. Whatever be his employ ment, occupation, or pursuit, he must come in as a trader, or as one who has been concerned or engaged in trade. The honorable member attempts a distinction between the traders and those who can say that they have been engaged in trade. I cannot see the difference. It is too fine for me. A trader is one concerned in trade, and to be concerned in trade is to be a trader. What is the difference? But if persons may be concerned in trade, and yet not be traders, still such persons were not embraced in the English statutes, which apply to traders by name; and therefore the gentleman's bill would embrace persons not within those statutes as they stood in 1789.

The gentleman's real object is, not to confine the bill to traders, but to embrace every body; and yet he deems it necessary for every person applying to state, and to swear, that he has been engaged in trade. This seems to me to be both superfluous and objectionable; superfluous, because, if we have a right to bring in persons under one name, we may bring in the same persons under another name, or by a general description; objectionable, because it requires men to state what may very much resemble a falsehood, and to make oath to it. Suppose a farmer or mechanic to fail; can he take an oath that he has been engaged in trade? If the objection to bring in others than traders is well founded in the Constitution, surely mere form cannot remove it. Words cannot alter things. The Constitution says nothing about traders. Yet the honorable gentleman's amendment requires all applicants to declare themselves traders; and if they will but say so, and swear so, it shall be so received, and nobody shall contradict it. In other words, a fiction, not very innocent, shall be allowed to overcome an unconstitutional objection. The gentleman has been misled by a false analogy.

He has adopted an example which does not apply to the case, and which he yet does not follow out. The British statutes are confined to traders. But then they contain a long list of persons who, it is declared, shall be deemed and taken to be traders. within the acts. This list they extend, from time to time; and whenever any one included within the list becomes a voluntary bankrupt, he avers, in substance, that he is a trader, within the act of Parliament. If it had been necessary, as it is not, to follow this example at all, the gentleman's bill should have declared all persons traders for the purposes of this act, and then every body could have made the declaration without impropriety, as in England the applicant only states that which the law has made true. He declares himself a trader, because the law has already declared that he shall be considered a trader. His conscience, therefore, is protected. He swears only according to the act of Parliament, if he swear at all. But as the provision stands here, it calls on every one to declare himself a trader, or that he has been engaged in trade, not within the particular meaning or sense of any act of Congress, but in the usual and popular acceptation of the word.

Suppose, Sir, a cotton-planter, by inevitable misfortune, by fire or flood, or by mortal epidemics among his hands, is ruined in his affairs. Suppose he desires to make a surrender of his property, and be discharged from his debts. He will be told, You cannot have the benefit of the law as a cotton-planter; it is made only for traders, or persons engaged in trade. Are you not a trader? No. I am no trader, and was never engaged in trade. I bought my land here, bought my hands from Carolina, have bought my stock from Kentucky, and raised cotton and sold it. But I never bought an article to sell again. I am no trader. But you must swear that you have been engaged in trade; you must apply, not as John Jones, Esquire, cottonplanter, on the Red River, but as Mr. John Jones, trader, at his storehouse, at or near the plantation of John Jones, Esquire. And so John Jones, the cotton-planter, must either remain as he is, excluded from the provisions of the law altogether, or sneak into them under a disingenuous fiction, if it be not something

worse.

This attempt, therefore, Sir, to avoid a supposed difficulty, encounters two decisive objections. In the first place, there is