bill, and for which their property is to be thus seized. Here is certainly a direct collision between State authority and the authority of the United States, which ought to be avoided whenever it can be. The act of Congress in this case would be made to repeal or annul pro tanto the law of the State. I do not say that this can in no case be done; but I say that all such collisions ought to be avoided, if possible.

It is proposed that Congress shall prescribe duties to the banks not prescribed by their own charters; and for the violation of those duties thus prescribed by Congress, it is proposed to proceed against them as bankrupts, to sequestrate their effects, and virtually annul their franchises. If this can be done, should it be done without clear and cogent necessity? Without wishing to represent the proposition as extravagant, or speaking of it with disrespect, it seems to me to be bold, if not rash, until a case of absolute necessity is made out. What would become of the bank stock in case of such seizure and sequestration? What extent of depression and fluctuation would attach to it, when such a law should be passed? What would become of the entire circulation of the country, if a general suspension should happen, and all the banks should be thus seized? What would become of the country, creditors and debtors, and of all business, if a general suspension should happen, and all the banks should be placed in the hands of the federal courts, their paper entirely disgraced, and an immediate collection of all their debts attempted to be enforced? What would become of some of the States who own the banks, and of others who derive revenues from them? And how could such immense affairs be administered by the courts of the United States? These difficulties appear to me to be startling. If, indeed, we were quite confident that such a provision would hereafter prevent all general suspensions, we might venture upon the measure. We might expect to be able to deal with here and there an individual case. But this provision is not certain to prevent general suspension in great emergencies or great commercial revolutions. Twice within a few years the banks have suspended, notwithstanding the penalties of their own charters and the laws of their own States. The real truth is, that, in the absence of all régulation or control by Congress, the banks have attempted, and do attempt, regulation by their own concert of action. They make a law for themselves.

A general suspension is the result of a general concurrence, or of a general conviction of the necessity of suspension, on the part of all the banks, or many of them. This has happened, and, in the present state of affairs, may happen again, notwithstanding a bankrupt law. In my opinion, indeed, it is certain to happen, notwithstanding all the bankrupt laws we can pass, until Congress shall do its duty by enacting prospective and preventive remedies; and if it should happen, one of two things must ensue; either Congress would be called together to repeal the law, or an utter and dead stop would take place in the payment of debts, in the concerns of commerce, and, indeed, in all the business of life.

In addition to the charters, it is to be remembered that several of the States have provisions of their own, founded on their own statutes, for proceeding against failing banks. Such banks are put into commission, or under sequestration, by the State courts, and a judicial administration and settlement of their affairs take place. Is our bankrupt law expected to supersede these State bankrupt laws? Are our courts to dispossess the State courts?

Sir, I will not pursue this subject further. I repeat, that, in the part of the country to which I belong, I believe there is a pretty strong disposition to include the banks in the bankrupt law. The people in that quarter apprehend from it no danger to themselves or their own institutions, and they wish to see banks elsewhere coerced, by the most effectual means, to resume and to maintain specie payments. I need not say, that they are among the greatest sufferers by the present most ruinous state of things. They pay, and others do not pay them. They cannot long stand the present state of the currency, and, like them, I am ready to adopt any practical measure, any thing short of convulsive shocks between State authority and the authority of the United States, to relieve it. But I confess, that, for myself, to say nothing of the constitutional points, I see formidable difficulties in subjecting State banks to forfeiture and destruction by an act of bankruptcy. At any rate, if the banks are to be dealt with in bankruptcy at all, their case would require, obviously, very many peculiar provisions, and they should constitute the subject of a bill by themselves. Such a bill should be prospective, the commencement of its operation de

ferred, the act of bankruptcy more clearly determined, provision made to avoid, as far as possible, collision with State authorities, and provision also for superseding the commission, on resumption of payment, or security given. Various provisions of this kind, as it seems to me, would be essentially necessary.

Leaving this very important part of the case, another question arises upon the proposed amendment. Shall the bankruptcy act, in its application to individuals, be voluntary only, or both voluntary and compulsory? It is well known that I prefer that it should be both. I think all insolvent and failing persons should have power to come in under its provisions, and be voluntary bankrupts; and I think, too, that, as to those who are strictly merchants and traders, creditors ought to have a right to proceed against them, on the commission of the usual acts of bankruptcy, and subject them to the provisions of the act. But the committee think otherwise. They find many objections to this from many parts of the country, and especially from the West. In a country so extensive, with a people so various, with such different ideas and habits in regard to punctuality in commercial dealings, great opposition is anticipated to any measure so strict and so penal as a coercive bankruptcy. I content myself, therefore, with what I can get. I content myself with the voluntary bankruptcy. I am free to confess my leading object to be, to relieve those who are at present bankrupts, hopeless bankrupts, and who cannot be discharged or set free but by a bankrupt act passed by Congress. I confess that their case forms the great motive of my conduct. It is their case which has created the general cry for the measure. Not that their interest is opposed to the interest of creditors; still less that it is opposed to the general good of the country. On the contrary, I believe that the interest of creditors would be greatly benefited even by a system of voluntary bankruptcy alone, and I am quite confident that the public good would be eminently promoted. In my judgment, all interests concur; and it is the duty of providing for these unfortunate insolvents, in a manner thus favorable to all interests, which I feel urging me forward on this occasion.

And now, Sir, whence does this duty arise which appears to me so pressing and imperative? How has it become so incumbent upon us? What are the considerations, what the rea

sons, which have so covered our tables with petitions from all classes and all quarters, and which have loaded the air with such loud and unanimous invocations to Congress to pass a bankrupt law?

Let me remind you, then, in the first place, Sir,. that, commercial as the country is, and having experienced as it has done, and experiencing as it now does, great vicissitudes of trade and business, it is almost forty years since any law has been in force by which any honest man, failing in business, could be effectually discharged from debt by surrendering his property. The former bankrupt law was repealed on the 19th of December, 1803. From that day to this, the condition of an insolvent, however honest and worthy, has been utterly hopeless, so far as he depended on any legal mode of relief. This state of things has arisen from the peculiar provisions of the Constitution of the United States, and from the omission by Congress to exercise this branch of its constitutional power. By the Constitution, the States are prohibited from passing laws impairing the obligation of contracts. Bankrupt laws impair the obligation of contracts, if they discharge the bankrupt from his debts without payment. The States, therefore, cannot pass such laws. The power, then, is taken from the States, and placed in our hands. It is true that it has been decided, that, in regard to contracts entered into after the passage of any State bankrupt law, between the citizens of the State having such law, and sued in the State courts, a State discharge may prevail. So far, effect has been given to State laws. I have great respect, habitually, for judicial decisions; but it has, nevertheless, I must say, always appeared to me that the distinctions on which these decisions are founded are slender, and that they evade, without answering, the objections founded on the great political and commercial objects intended to be secured by this part of the Constitution. But these decisions, whether right or wrong, afford no effectual relief. The qualifications and limitations which I have stated render them useless, as to the purpose of a general discharge. So much of the concerns of every man of business is with citizens of other States than his own, and with foreigners, that the partial extent to which the validity of State discharges reaches is of little benefit.

The States, then, cannot pass effectual bankrupt laws; that

is, effectual for the discharge of the debtor. There is no doubt that most, if not all, the States would now pass such laws, if they had the power; although their legislation would be various, interfering, and full of all the evils which the Constitution of the United States intended to provide against. But they have not the power; Congress, which has the power, does not exercise it. This is the peculiarity of our condition. The States would pass bankrupt laws, but they cannot; we can, but we will not. And between this want of power in the States and want of will in Congress, unfortunate insolvents are left to hopeless bondage. There are probably one or two hundred thousand debtors, honest, sober, and industrious, who drag out lives useless to themselves, useless to their families, and useless to their country, for no reason but that they cannot be legally discharged from debts in which misfortunes have involved them, and which there is no possibility of their ever paying. I repeat, again, that these cases have now been accumulating for a whole generation.

It is true they are not imprisoned; but there may be, and there are, restraint and bondage outside the walls of the jail, as well as in. Their power of earning is, in truth, taken away. their faculty of useful employment is paralyzed, and hope itself become extinguished. Creditors, generally, are not inhuman or unkind; but there will be found some who hold on, and the more a debtor struggles to free himself, the more they feel encouraged to hold on. The mode of reasoning is, that, the more honest the debtor may be, the more industrious, the more disposed to struggle and bear up against his misfortunes, the greater the chance is, that, in the end, especially if the humanity of others shall have led them to release him, their own debts may be finally recovered.

Now, in this state of our constitutional powers and duties, in this state of our laws, and with this actually existing condition of so many insolvents before us, it is not too serious to ask every member of the Senate to put it to his own conscience to say, whether we are not bound to exercise our constitutional duty. Can we abstain from exercising it? The States give to their own laws all the effect they can. This shows that they

desire the power to be exercised. Several States have, in the most solemn manner, made known their earnest wishes to Con