CHAPTER LXVII.

The great ground which we occupy in relation to the character of this bill (said Mr. B.) is this: that it is not a bankrupt system, but an insolvent law, perverted to a discharge from debts, instead of a discharge from imprisonment. As such, it was denounced from the moment it made its appearance in this chamber, at the last session, and I am now ready to prove it to be such. I have discovered its origin, and hold the evidence in my hand. It is framed upon the English insolvent debtor's act of the 1st of George IV., improved and extended by the act of the 7th of George IV., and by the 1st of Victoria. From these three insolvent acts our famous bankrupt system of 1841 is compiled; and it follows its originals with great fidelity, except in a few particulars, until it arrives at the conclusion, where a vast and terrible alteration is introduced! Instead of discharging the debtor from imprisonment, as the English acts do, our American copy discharges him from his debts! But this is a thing rather to be proved than told; and here is the proof. I have a copy of the British statutes on my table, containing the three acts which I have mentioned, and shall quote from the first one, in the first year of the reign of George IV., and is entitled "An act for the relief of insolvent debtors in England." The preamble recites that it is expedient to make permanent provision for the relief of insolvent debtors in England confined in jail, and who shall be willing to surrender their property to their creditors, and thereby obtain a discharge from imprisonment. For this purpose the act creates a new court, to be called theinsolvent debtor's court, which was to sit in London, and send commissioners into the counties. The first sections are taken up with the organization ofthe court. Then come its powers and duties, its modes of proceeding, and the rights of insolvents in it: and in these enactments, as in a mirror, and with a few exceptions (the effect of design, of accident, or of necessity, from the difference of the two forms of government), we perceive the original of our bankrupt act. I quote partly from the body of the statute, but chiefly from the marginal notes, as being a sufficient index to the contents of the sections. (Here the speaker quoted eighteen separate clauses in which the bill followed the English act, constituting the whole essence of the bill, and its mode of proceeding.)

This is the bill which we call bankrupt—a mere parody and perversion of the English insolvent debtor's act. And now, how came such a bill to be introduced? Sir, it grew out of the contentions of party; was brought forward, as a party measure; and was one of the bitter fruits of the election of 1840. The bill was brought forward in the spring of that year, passed in the Senate, and lost in the House. It was contested in both Houses as a party measure, and was taken up as a party topic in the presidential canvass. The debtor class—those irretrievably in debt, and estimated by the most moderate at a hundred thousand men—entered most zealously into the canvass, and on the side of the party which favored the act. The elections were carried by that party—the Congress as well as the presidential. All power is in the hands of that party; and an extra session of the legislature was impatiently called to realize the benefits of the victory. But the opening of the session did not appear to be auspicious to the wishes of the bankrupts. The President's message recommended no bankrupt bill; and the list of subjects enumerated for the action of Congress, and designated in a paper drawn by Mr. Clay, and placed on our journal for our guidance, was equally silent upon that subject. To all appearance, the bankrupt bill was not to come before us at the extra session. It was evidently a deferred subject. The friends and expectants of the measure took the alarm—flocked to Congress—beset the President and the members—obtained from him a special message recommending a bankrupt law; and prevailed on members to bring in the bill. It was brought into the Senate—the same which had been defeated in 1840—and it was soon seen that its passage was not to depend upon its own merits; that its fate was indissolubly connected with another bill; and that one must carry the other.

This is an insolvent bill: it is so proved, and so admitted: and to defend it the argument is, that insolvency and bankruptcy are the same—a mere inability or failure to pay debts. This is the corner stone of the argument for the bill, and has been firmly planted as such, by its ablest supporter (Mr. Webster). He says:

"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 that he has become 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. A learned judge has said, that a law on the subject of bankruptcies is a law making provision for cases of persons failing to pay their debts. Over the whole subject of these failures, or these bankruptcies, the power of Congress, as it stands on the face of the constitution, is full and complete."

This is an entire mistake. There is no foundation for confounding bankruptcy and insolvency. A debtor may be rich, and yet be a bankrupt. Inability to pay does not even enter as an ingredient into bankruptcy. The whole system is founded on ability and fraud. The bankrupt is defined in Blackstone's commentaries—a work just issued and known to all our statesmen at the time of our Revolution—"to be a trader, who secretes himself, or does certain other acts to defraud his creditors." So far from making insolvency a test of bankruptcy the whole system supposes ability and fraud—ability to pay part or all, and a fraudulent intent to evade payment. And every British act upon the subject directs the surplus to be restored to the debtor if his effects sell for more than pays the debts—a proof that insolvency was no ingredient in the acts.

The eminent advocate of the bill, in confounding insolvency and bankruptcy, has goneto the continent of Europe, and to Scotland, to quote thecessio bonorumof the civil law, and to confound it with bankruptcy. He says: "That bankrupt laws, properly so called, or laws providing for the cessio bonorum, on the continent of Europe and Scotland, were never confined to traders." That is true. Thiscessiowas never confined to traders: it applied to debtors who could not pay. It was the cession, or surrender of his property by the debtor for the purpose of obtaining freedom for his person—leaving the debt in full force—and all future acquisitions bound for it. I deal in authority, and read from Professor Bell's Commentaries upon the Laws of Scotland—an elegant an instructive work, which has made the reading of Scottish law almost as agreeable to the law reader as the writings of Scott have made Scottish history and manners to the general reader. Mr. Bell treats of thecessioand of bankruptcy, and treats of them under distinct heads; and here is what he says of them:

"The law ofcessio bonorumhad its origin in Rome. It was introduced by Julius Cæsar, as a remedy against the severity of the old Roman laws of imprisonment; and his law—which included only Rome and Italy—was, before the time of Diocletian, extended to the provinces. The first law of the code respecting thecessio bonorumexpresses, in a single sentence, the whole doctrine upon the subject: 'Qui bonis cesserint,' says the Emperor Alexander Severus,'nisi solidum creditor receperit, non sunt liberati. In eo enim tantummodo hoc beneficium eis prodest, ne judicati detrahantur in carcerem.' This institution, having been greatly improved in the civil law, was adopted by those of the European nations who followed that system of jurisprudence. In France, the institution was adopted very nearly as it was received with us. Perhaps, indeed, it was from France that our system received its distinguishing features. The law in that country was, during the seventeenth century, extremely severe—not only against bankrupts (which name they applied to fraudulent debtors alone), but against debtors innocently insolvent. * * * The short digest of the law ofcessioin Scotland, then, is:"1. That a debtor who has been a month in prison, for a civil debt, may apply to the court of session—calling all his creditors before that court, by a summons in the king's name; and concluding that he should be freed from prison on surrendering to his creditors all his funds and effects."2. That he is entitled to this benefit without any mark of disgrace, if (proving his insolvency) he can satisfy the court, in the face of his creditors, that his insolvency has arisen from innocent misfortune, and is willing to surrender all his property and effects to his creditors."3. That, though he may clear himself from any imputation of fraud, still, if he has been extravagant, and guilty of sporting with the money of his creditors, he is, in strict law, not entitled to thecessio, but on the condition of wearing the habit (mark of disgrace); but which is now exchanged for a prolongation of his imprisonment."4. That, if his creditors can establish a charge of fraud against him, he is not entitled to thecessioat all; but must lie in prison, at the mercy of his creditors, till the length of his imprisonment may seem to have sufficiently punished his crime; when, on a petition, the court may admit him to the benefit."5. That, if he has not given a fair account of his funds, and shall still be liable to the suspicion of concealment, the court will, in the meanwhile, refuse the benefit of thecessio—leaving it to him to apply again, when he is able to present a clearer justification, or willing to make a full discovery."

"1. That a debtor who has been a month in prison, for a civil debt, may apply to the court of session—calling all his creditors before that court, by a summons in the king's name; and concluding that he should be freed from prison on surrendering to his creditors all his funds and effects.

"2. That he is entitled to this benefit without any mark of disgrace, if (proving his insolvency) he can satisfy the court, in the face of his creditors, that his insolvency has arisen from innocent misfortune, and is willing to surrender all his property and effects to his creditors.

"3. That, though he may clear himself from any imputation of fraud, still, if he has been extravagant, and guilty of sporting with the money of his creditors, he is, in strict law, not entitled to thecessio, but on the condition of wearing the habit (mark of disgrace); but which is now exchanged for a prolongation of his imprisonment.

"4. That, if his creditors can establish a charge of fraud against him, he is not entitled to thecessioat all; but must lie in prison, at the mercy of his creditors, till the length of his imprisonment may seem to have sufficiently punished his crime; when, on a petition, the court may admit him to the benefit.

"5. That, if he has not given a fair account of his funds, and shall still be liable to the suspicion of concealment, the court will, in the meanwhile, refuse the benefit of thecessio—leaving it to him to apply again, when he is able to present a clearer justification, or willing to make a full discovery."

This is thecessio, and its nature and origin are both given. Its nature is that of an insolvent law, precisely as it exists at this day in the United States and in England. Its origin is Roman, dating from the dictatorship of Julius Cæsar. That great man had seen the evils of the severity of the Roman law against debtors. He had seen the iniquity of the law itself, in the cruel condemnation of the helpless debtor to slavery and death at the will of the creditor; and he had seen its impolicy, in the disturbances to which it subjected the republic—the seditions, commotions, and conspiracies, which, from the time of the secession of the people to theMons Sacerto the terrible conspiracy of Catiline, were all built upon the calamities of the debtor class, and had for their object an abolition of debts. Cæsar saw this, and determined to free the commonwealth from a deep-seated cause of commotion, while doing a work of individual justice. He freed the person of the debtor upon the surrender of his property; and this equitable principle, becoming ingrafted in the civil law, spread over all the provinces of the Roman world—has descended to our times, and penetrated the new world—and now forms the principle of the insolvent laws of Europe and America. The English made it permanent by their insolvent law of the first of George the Fourth—that act from which our bankrupt systemis compiled; and in two thousand years, and among all nations, there has been no departure from the wise and just principles of Cæsar's edict, until our base act of Congress has undertaken to pervert it into an abolition debt law, by substituting a release from the debt for a release from jail!

This is thecessio omnium bonorumof Scotland, to which we are referred as being the same thing with bankruptcy (properly so called), and which is quoted as an example for our act of 1841. And, now, what says Professor Bell of bankruptcy? Does he mention that subject? Does he treat of it under a separate head—as a different thing from thecessio—and as requiring a separate consideration? In fact, he does. He happens to do so; and gives it about 300 pages of his second volume, under the title of "System of the Bankrupt Laws;" which system runs on all-fours with that of the English system, and in the main point—that of discharge from his debts—it is identical with the English; requiring the concurrence of four-fifths of the creditors to the discharge; and that bottomed on the judicial attestation of the bankrupt's integrity. Here it is, at page 441 of the second volume:

"The concurrence of the creditors, without which the bankrupt cannot apply to the court for a discharge, must be not that of a mere majority, but a majority of four-fifths in number and value. * * * * The creditors are subject to no control in respect to their concurrence. Against their decision there is no appeal, nor are they bound to account for or explain the grounds of it. They are left to proceed upon the whole train of the bankrupt's conduct, as they may have seen occasion to judge of him; and the refusal of their concurrence is an absolute bar until the opposition be overcome. * * * * The statute requires the concurrence of the trustee, as well as of the creditors. There appears, however, to be this difference between them: that the creditors are entirely uncontrolled in giving or withholding their concurrence; while, on the part of the trustee, it isdebitum justiliæeither to the bankrupt or to the creditors to give or withhold his concurrence. He acts not as a creditor, but as a judge. To his jurisdiction the bankrupt is subjected by the choice of his creditors; and, on deciding on the bankrupt's conduct, he is not entitled to proceed on the same undisclosed motives or evidence on which a creditor may act, but on the ground of legal objection alone—as fraud, concealment, nonconformity with the statute. In England, the commissioners are public officers—not the mere creatures of the creditors. They are by statute invested with a judicial discretion, which they exercise under the sanction of an oath. Their refusal is taken as if they swore they could not grant the certificate; and no mandamus lies to force them to sign."

So much for bankruptcy andcessio—two things very different in their nature, though attempted to be confounded; and each of them still more different from our act, for which they are quoted as precedents. But the author of our act says that bankrupt laws in Scotland are not confined to traders, but take in all persons whatsoever; and he might have added—though, perhaps, it did not suit his purpose at the moment—that those laws, in Scotland, were not confined to natural persons, but also included corporations and corporate bodies. Bell expressly says:

"Corporate bodies are, in law, considered as persons, when associated by royal authority or act of Parliament. When a community is thus established by public authority, it has a legal existence as a person, with power to hold funds, to sue and to defend. It is, of consequence, subject to diligence; and although personal execution cannot proceed against this ideal-legal person, and so the requisites of imprisonment, &c., cannot be complied with, there seems to be no reason to doubt that a corporation may now be made bankrupt by the means recently provided for those cases in which imprisonment is incompetent."—vol. 2, p. 167.

The gentleman might have quoted this passage from the Scottish law; and then what would have become of his argument against including corporations in the bankrupt act? But he acts the advocate, and quotes what suits him; and which, even if it were applicable, would answer but a small part of his purpose. The Scottish system differs from the English in its application to persons not traders; but agrees with it in the great essentials of perfect security for creditors, by giving them the initiative in the proceedings, discriminating between innocent and culpable bankruptcy, and making the discharge from debt depend upon their consent, bottomed upon an attestation of integrity from the officer that tries the case. It answers no purpose to the gentleman, then, to carry us to Scotland for the meaning of a term in our constitution. It is to no purpose that he suggests that the framers of the constitution might have been looking to Scotland for an example of abankrupt system. They were no more looking to it in that case, than they were in speaking of juries, and in guarantying the right of jury trials—a jury of twelve, with unanimity, as in England; and not of fifteen, with a majority of eight to give the verdict, as in Scotland. In all its employment of technical, legal, and political phrases, the constitution used them as used in England—the country from which we received our birth, our language, our manners, and customs, and all our systems of law and politics. We got all from England; and, this being the case, there is no use in following the gentleman to the continent of Europe, after dislodging him from Scotland; but as he has quoted the continent for the effect of thecessioin abolishing debts, and for its identity with bankruptcy, I must be indulged with giving him a few citations from the Code Napoleon, which embodies the principles of the civil law, and exemplifies the systems of Europe on the subject of bankruptcies and insolvencies. Here they are:

Mr. B. here read copiously from the Code Napoleon, on the subjects of bankruptcies and cession of property; the former contained in the commercial division of the code, the latter in the civil. Bankruptcy was divided into two classes—innocent and fraudulent; both confined to traders (commercants); the former were treated with lenity, the latter with criminal severity. The innocent bankrupt was thetraderwho became unable to pay his debts by the casualties of trade, and who had not lived beyond his means, nor gambled, nor engaged in speculations of pure hazard; who kept fair books, and satisfied his creditors and the judge of his integrity. The fraudulent bankrupt was thetraderwho had lived prodigally, or gambled, or engaged in speculations of pure hazard, or who had not kept books, or not kept them fairly, or misapplied deposits, or violated trusts, or been guilty of any fraudulent practice. He was punished by imprisonment and hard labor for a term of years, and could not be discharged from his debts by any majority of his creditors whatever. Cession of property—in French,la cession de biens—was precisely thecessio omnium bonorumof the Romans, as established by Julius Cæsar. It applied to all persons, and obtained for them freedom from imprisonment, and from suits, on the surrender of all their present property to their creditors; leaving their future acquisitions liable for the remainder of the debt. It was the insolvent law of the civil law; and thus bankruptcy and insolvency were as distinct on the continent of Europe as in England and Scotland, and governed by the same principles.

Having read these extracts from the civil law, Mr. B. resumed his speech, and went on to say that the gentleman was as unfortunate in his visit to the continent as in his visit to Scotland. In the first place he had no right to go there for exemplification of the terms used in our constitution. The framers of the constitution did not look to other countries for examples. They looked to England alone. In the second place, if we sought them elsewhere, we found precisely the same thing that we found in England: we found bankruptcy and insolvency everywhere distinct and inconvertible. They were, and are, distinct everywhere; here and elsewhere—at home and abroad—in England, Scotland, France, and all over Europe. They have never been confounded anywhere, and cannot be confounded here, without committing a double offence:first, violating our own constitution;secondly, invading the States. And with this, I dismiss the gentleman's first fundamental position, affirming that he has utterly failed in his attempt to confound bankruptcy with insolvency; and, therefore, has utterly failed to gain jurisdiction for Congress over the general debts of the community, by the pretext of the bankrupt power.

I have said that this so-called bankrupt bill of ours is copied from the insolvent law of the first year of George IV., and its amendments, and so it is, all except section 13 of that act, which is omitted, and for the purpose of keeping out the distinction between bankrupts and insolvents. That section makes the distinction. The act permits all debtors to petition for the benefit of the insolvent law, that is to say, discharge from imprisonment on surrendering their property; yet, in every case in which traders, merchants, &c. petition, the proceedings stop until taken up, and proceeded upon by the creditors. The filing the petition by a person subject to the bankrupt law, is simply held to be an act of bankruptcy, on which the creditors may proceed, or not, as on any other act of bankruptcy, precisely as they please. And thus insolvency and bankruptcy are kept distinct;double provisions on the same subject are prevented; and consistency is preserved in the administration of the laws. Not so under our bill. The omission to copy this 13th section has nullified all that relates to involuntary bankruptcy; puts it into the power of those who are subject to that proceeding to avoid it, at their pleasure, by the simple and obvious process of availing themselves of their absolute right to proceed voluntarily. And now a word upon volunteer bankruptcy. It is an invention and a crudity in our bill, growing out of the confounding of bankruptcy and insolvency. There is no such thing in England, or in any bankrupt system in the world; and cannot be, without reversing all the rules of right, and subjecting the creditor to the mercy of his debtor. The English bankrupt act of the 6th George IV., and the insolvent debtors' act of the 1st of the same reign, admit the bankrupt, as an insolvent, to file his declaration of insolvency, and petition for relief; but there it stops. His voluntary action goes no further than the declaration and petition. Upon that, his creditors, if they please, may proceed against him as a bankrupt, taking the declaration as an act of bankruptcy. If they do not choose to proceed, the case stops. The bankrupt cannot bring his creditors into court, and prosecute his claim to bankruptcy, whether they will or not. This is clear from the 6th section of the bankrupt act of George IV., and the 13th section of the insolvent debtors' act of the 1st year of the same reign; and thus our act of 1841 has the honor of inventing volunteer bankruptcy, and thus putting the abolition of debts in the hands of every person! for these volunteers have a right to be discharged from their debts, without the consent of their creditors!

Mr. Benton then read the two sections of the two acts of George IV. to which he had referred, and commented upon them to sustain his positions. And first the 6th section of the act of George IV. (1826) for the amendment of the bankrupt laws:

"Sec.6. That if any such trader shall file in the office of the Lord Chancellor's secretary of bankrupts, a declaration in writing, signed by such trader, and attested by an attorney or solicitor, that he is insolvent or unable to meet his engagements, the said secretary of bankrupts, or his deputy, shall sign a memorandum that such declaration hath been filed; which memorandum shall be authority for the London Gazette to insert an advertisement of such declaration therein; and every such declaration shall, after such advertisement inserted as aforesaid,be an act of bankruptcy committed by suchTRADERat the time when such declaration was filed: butnocommission shall issue thereupon,unlessit be sued out within two calendar months next after the insertion of such advertisement, andunlesssuch advertisement shall have been inserted in the London Gazette within eight days after such declaration filed. And no docket shall be struck upon such act of bankruptcy before the expiration of four days next after such insertion of such advertisement, in case such commission is to be executed in London; or before the expiration of eight days next after such insertion, in case such commission is to be executed in the country; and the Gazette containing such advertisement shall be evidence to be received of such declaration having been filed."

Having read this section, Mr. B. said it was explicit, and precluded argument. The voluntary action of the debtor, which it authorized, was limited to the mere filing of the declaration of insolvency. It went no further; and it was confined to traders—to the trading classes—who, alone, were subject to the laws of bankruptcy.

Mr. B. said that the English had, as we all know, an insolvent system, as well as a bankrupt system. They had an insolvent debtors' court, as well as a bankrupt court; and both these were kept separate, although there were no States in England to be trodden under foot by treading down the insolvent laws. Not so with us. Our insolvent laws, though belonging to States called sovereign, are all trampled under foot! There would be a time to go into this. At present, Mr. B. would only say that, in England, bankruptcy and insolvency were still kept distinct; and no insolvent trader was allowed to proceed as a bankrupt. On the contrary, an insolvent, applying in the insolvent debtors' court for the release of his person, could not proceed one step beyond filing his declaration. At that point the creditors took up the declaration, if they pleased, transferred the case to the bankrupt court, and prosecuted the case in that court. This is done by virtue of the 13th section of the insolvent debtors' act of 7th George IV. (1827). Mr. B. read the section, as follows:

"Insolvent debtors' act of 7th year of George IV.(1827)."Sec.13.And be it further enacted, That the filing of the petition of everypersonin actual custody, who shall be subject to the laws concerning bankrupts, and who shall apply by petition to the said court for his or her discharge from custody, according to this act, shall be accounted and adjudgedan act of bankruptcy from the time of filing such petition; and that anycommissionissuing against such person, and under which he or she shall be declared bankrupt before the time appointed by the said court, and advertised in theLondon Gazette, for hearing the matters of such petition, or at any time within two calendar months from the time of filing such petition, shall have effect to avoid any conveyance and assignment of the estate and effects of such person, which shall have been made in pursuance of the provisions of this act:Provided, always, That the filing of such petition shall not be deemed an act of bankruptcy,unlesssuch person be so declared bankrupt before the time so advertised as aforesaid, or within such two calendar months as aforesaid; but that every such conveyance and assignment shall be good and valid, notwithstanding any commission of bankruptcy under which such person shall be declared bankrupt after the time so advertised as aforesaid, and after the expiration of such two calendar months as aforesaid."

"Insolvent debtors' act of 7th year of George IV.(1827).

"Sec.13.And be it further enacted, That the filing of the petition of everypersonin actual custody, who shall be subject to the laws concerning bankrupts, and who shall apply by petition to the said court for his or her discharge from custody, according to this act, shall be accounted and adjudgedan act of bankruptcy from the time of filing such petition; and that anycommissionissuing against such person, and under which he or she shall be declared bankrupt before the time appointed by the said court, and advertised in theLondon Gazette, for hearing the matters of such petition, or at any time within two calendar months from the time of filing such petition, shall have effect to avoid any conveyance and assignment of the estate and effects of such person, which shall have been made in pursuance of the provisions of this act:Provided, always, That the filing of such petition shall not be deemed an act of bankruptcy,unlesssuch person be so declared bankrupt before the time so advertised as aforesaid, or within such two calendar months as aforesaid; but that every such conveyance and assignment shall be good and valid, notwithstanding any commission of bankruptcy under which such person shall be declared bankrupt after the time so advertised as aforesaid, and after the expiration of such two calendar months as aforesaid."

This (said Mr. B.) accords with the section of the year before in the bankrupt act. The two sections are accordant, and identical in their provisions. They keep up the great distinction between insolvency and bankruptcy, which some of our judges have undertaken to abrogate; they keep up, also, the great distinction between the proper subjects of bankruptcy—to wit: traders, and those who are not traders; and they keep up the distinction between the release of the person (which is the object of insolvent laws) and the extinction of the debt with the consent of creditors, which is the object of bankrupt systems. By this section, if the "person" in custody who files a declaration of insolvency shall be a trader, subject to the laws of bankruptcy, it only operates as an act of bankruptcy—upon which the creditors may proceed, or not, as they please. If they proceed, it is done by suing out a commission of bankruptcy; which carries the case to the bankrupt court. If the creditors do not proceed, the petition of the insolvent trader only releases his person. Being subject to bankruptcy, his creditors may call him into the bankrupt court, if they please; if they do not, he cannot take it there, nor claim the benefit of bankruptcy in the insolvent court: he can only get his person released. This is clear from the section; and our bill of 1841 committed something worse than a folly in not copying this section. That bill creates two sorts of bankruptcy—voluntary and involuntary—and, by a singular folly, makes them convertible! so that all may be volunteers, if they please. It makes merchants, traders, bankers, and some others of thetradingclasses, subject to involuntary bankruptcy: then it gives allpersonswhatever the right to proceed voluntarily. Thus the involuntary subjects of bankruptcy may become volunteers; and the distinction becomes ridiculous and null. Our bill, which is compiled from the English Insolvent Debtors' Act, and is itself nothing but an insolvent law perverted to the abolition of debts at the will of the debtor, should have copied the 13th section of the English insolvent law: for want of copying this, it annihilated involuntary bankruptcy—made all persons, traders or not, volunteers who chose to be so—released all debts, at the will of the debtor, without the consent of a single creditor; and committed the most daring legislative outrage upon the rights of property, which the world ever beheld!

About two hundred millions of dollars were due from States and corporations to creditors in Europe. These debts were in stocks, much depreciated by the failure in many instances to pay the accruing interest—in some instances, failure to provide for the principal. These creditors became uneasy, and wished the federal government to assume their debts. As early as the year 1838 this wish began to be manifested: in the year 1839 it was openly expressed: in the year 1840, it became a regular question, mixing itself up in our presidential election; and openly engaging the active exertions of foreigners. Direct assumption was not urged: indirect, by giving the public land revenueto the States, was the mode pursued, and the one recommended by Mr. Tyler. In his first regular message, he recommended this disposition of the public lands, and with the expressed view of enabling the States to pay their debts, and also to raise the value of the stock. It was a vicious recommendation, and a flagrant and pernicious violation of the constitution. It was the duty of Congress to provide for the payment of the federal debts: that was declared in the constitution. There was no prohibition upon the payment of the State debts: that was a departure from the objects of the Union too gross to require prohibition: and the absence of any authority to do so was a prohibition as absolute as if expressed in the eyes of all those who held to the limitations of the constitution, and considered a power, not granted, as a power denied. Mr. Calhoun spoke with force and clearness, and with more than usual animation, against this proposed breach in the constitution. He said:

"If the bill should become a law, it would make a wider breach in the constitution, and be followed by changes more disastrous, than any other measure which has ever been adopted. It would, in its violation of the constitution, go far beyond the general welfare doctrine of former days, which stretched the power of the government as far as it was then supposed was possible by construction, however bold. But as wide as were the limits which it assigned to the powers of the government, it admitted by implication that there were limits; while this bill, as I shall show, rests on principles which, if admitted, would supersede all limits. According to the general welfare doctrine, Congress had power to raise money and appropriate it to all objects which might seem calculated to promote the general welfare—that is, the prosperity of the States, regarded in their aggregate character as members of the Union: or, to express it more briefly, and in language once so common, to national objects: thus excluding, by necessary implication, all that were not national, as falling within the sphere of the separate States. It takes in what is excluded under the general welfare doctrine, and assumes for Congress the right to raise money, to give by distribution to the States: that is, to be applied by them to those very local State objects to which that doctrine, by necessary implication, denied that Congress had a right to appropriate money; and thus superseding all the limits of the constitution—as far, at least, as the money power is concerned. Such, and so overwhelming, are the constitutional difficulties which beset this measure. No one who can overcome them—who can bring himself to vote for this bill—need trouble himself about constitutional scruples hereafter. He may swallow without hesitation bank, tariff, and every other unconstitutional measure which has ever been adopted or proposed. Yes; it would be easier to make a plausible argument for the constitutionality of the measures proposed by the abolitionists—for abolition itself—than for this detestable bill. And yet we find senators from slaveholding States, the very safety of whose constituents depends upon a strict construction of the constitution, recording their names in favor of a measure from which they have nothing to hope, and every thing to fear. To what is a course so blind to be attributed, but to that fanaticism of party zeal, openly avowed on this floor, which regards the preservation of the power of the whig party as the paramount consideration? It has staked its existence on the passage of this, and the other measures for which this extraordinary session was called; and when it is brought to the alternative of their defeat or success, in their anxiety to avoid the one and secure the other, constituents, constitution, duty, country,—all are forgotten."

Clearly unconstitutional, the measure itself was brought forward at the most inauspicious time—when the Treasury was empty, a loan bill, and a tax bill actually depending; and measures going on to raise money from the customs, not only to support the government, but to supply the place of this very land money proposed to be given to the States. Mr. Benton exposed this aggravation in some pointed remarks:

What a time to choose for squandering this patrimony! We are just in the midst of loans, and taxes, and new and extravagant expenditures, and scraping high and low to find money to support the government. Congress was called together to provide revenue; and we begin with throwing away what we have. We have just passed a bill to borrow twelve millions, which will cost the people sixteen millions to pay. We have a bill on the calendar—the next one in order—to tax every thing now free, and to raise every tax now low, to raise eight or ten millions for the government, at the cost of eighteen or twenty to the people. Sixteen millions of deficit salute the commencement of the ensuing year. A new loan of twelve millions is announced for the next session. All the articles of consumption which escape taxation now, are to be caught and taxed then. Such are the revelations of the chairmanof the Finance Committee; and they correspond with our own calculations of their conduct. In addition to all this, we have just commenced the national defences—neglected when we had forty millions of surplus, now obliged to be attended to when we have nothing: these defences are to cost above a hundred millions to create them, and above ten millions annually to sustain them. A new and frightful extravagance has broken out in the Indian Department. Treaties which cannot be named, are to cost millions upon millions. Wild savages, who cannot count a hundred except by counting their fingers ten times over, are to have millions; and the customs to pay all; for the lands are no longer to pay for themselves, or to discharge the heavy annuities which have grown out of their acquisition. The chances of a war ahead: the ordinary expenses of the government, under the new administration, not thirteen millions as was promised, but above thirty, as this session proves. To crown all, the federal party in power! that party whose instinct is debt and tax—whose passion is waste and squander—whose cry is that of the horse-leech, give! give! give!—whose call is that of the grave, more! more! more! In such circumstances, and with such prospects ahead, we are called upon to throw away the land revenue, and turn our whole attention to taxing and borrowing. The custom-house duties—that is to say, foreign commerce, founded upon the labor of the South and West, is to pay all. The farmers and planters of the South and West are to take the chief load, and to carry it. Well may the senator from Kentucky [Mr.Clay] announce the forthcoming of new loans and taxes—the recapture of the tea and coffee tax, if they escape us now—and the increase and perpetuity of the salt tax. All this must come, and more too, if federalism rules a few years longer. A few years more under federal sway, at the rate things have gone on at this session—this sweet little session called to relieve the people—and our poor America would be ripe for the picture for which England now sits, and which has been so powerfully drawn in the Edinburgh Review. Listen to it, and hear what federalism would soon bring us to, if not stopped in its mad career:

"Taxes upon every article which enters into the mouth, or covers the back, or is placed under the foot. Taxes upon every thing which it is pleasant to see, hear, feel, smell, or taste. Taxes upon warmth, light, and locomotion. Taxes on every thing on earth, and the waters under the earth; on every thing that comes from abroad, or is grown at home. Taxes on the raw material; taxes on every fresh value that is added to it by the industry of man. Taxes on the sauce which pampers a man's appetite, and the drug that restores him to health; on the ermine which decorates the judge, and the rope which hangs the criminal; on the brass nails of the coffin, and the ribbons of the bride. At bed or board, couchant or levant, we must pay. The schoolboy whips his taxed top; the beardless youth manages his taxed horse with a taxed bridle, on a taxed road. The dying Englishman pours his medicine, which has paid seven per cent., into a spoon that has paid fifteen per cent.; flings himself back upon his chintz bed, which has paid twenty-two per cent.; makes his will on an eight-pound stamp, and expires in the arms of an apothecary, who has paid a license of a hundred pounds for the privilege of putting him to death. His whole property is then immediately taxed from two to ten per cent. Besides the probate, large fees are demanded for burying him in the chancel; his virtues handed down to posterity on taxed marble, and he is then gathered to his fathers, to be taxed no more."

This is the way the English are now taxed, and so it would be with us if the federalists should remain a few years in power.

Execrable as this bill is in itself, and for its objects, and for the consequences which it draws after it, it is still more abominable for the time and manner in which it is driven through Congress, and the contingencies on which its passage is to depend. What is the time?—when the new States are just ready to double their representation, and to present a front which would command respect for their rights, and secure the grant of all their just demands. They are pounced upon in this nick of time, before the arrival of their full representation under the new census, to be manacled and fettered by a law which assumes to be a perpetual settlement of the land question, and to bind their interests for ever. This is the time! what is the manner?—gagged through the House of Representatives by the previous question, and by new rules fabricated from day to day, to stifle discussion, prevent amendments, suppress yeas and nays, and hide the deeds which shunned the light. This was the manner! Whatwas the contingency on which its passage was to depend?—the passage of the bankrupt bill! So that this execrable bill, baited as it was withdouceursto old States, and bribes to the new ones, and pressed under the gag, and in the absence of the new representation, was still unable to get through without a bargain for passing the bankrupt bill at the same time. Can such legislation stand? Can God, or man, respect such work?

But a circumstance which distinguished the passage of this bill from all others—which up to that day was without a precedent—was the open exertion of a foreign interest to influence our legislation. This interest had already exerted itself in our presidential election: it now appeared in our legislation. Victorious in the election, they attended Congress to see that their expectations were not disappointed. The lobbies of the House contained them: the boarding-houses of the whig members were their resort: the democracy kept aloof, though under other circumstances they would have been glad to have paid honor to respectable strangers, only avoided now on account of interest and exertions in our elections and legislation. Mr. Fernando Wood of New York brought this scandal to the full notice of the House. "In connection with this point I will add that, at the time this cheat was in preparation—the merchants' petition being drawn up by the brokers and speculators for the congressional market—there were conspicuous bankers in Wall street, anxious observers, if not co-laborers in the movement. Among them might be named Mr. Bates, partner of the celebrated house of Baring, Brothers & Company; Mr. Cryder, of the equally celebrated house of Morrison, Cryder & Company; Mr. Palmer, junior, son of Mr. Horsley Palmer, now, or lately, the governor of the Bank of England. Nor were these 'allies' seen only in Wall street. Their visits were extended to the capitol; and since the commencement of the debate upon this bill in the other House, they have been in the lobbies, attentive, and apparently interested listeners. I make no comment. Comment is unnecessary. I state facts—undeniable facts: and it is with feelings akin to humiliation and shame that I stand up here and state them." These respectable visitors had a twofold object in their attention to our legislation—the getting a national bank established, as well as the State debts provided for. Mr. Benton also pointed out this outrage upon our legislation:

He then took a rapid view of the bill—its origin, character, and effects; and showed it to be federal in its origin, associated with all the federal measures of the present and past sessions; with bank, tariff, assumption of State debts, dependent upon the bankrupt bill for its passage; violative of the constitution and the compacts with the new States; and crowning all its titles to infamy by drawing capitalists from London to attend this extra session of Congress, to promote the passage of this bill for their own benefit. He read a paragraph from the money article in a New York paper, reciting the names and attendance, on account of this bill, of the foreign capitalists at Washington. The passage was in these words:

"At the commencement of the session, almost every foreign house had a representative here. Wilson, Palmer, Cryder, Bates, Willinck, Hope, Jaudon, and a host of others, came over on various pretences; all were in attendance at Washington, and all seeking to forward the proposed measures. The land bill was to give them three millions per annum from the public Treasury, or thirty millions in ten years, and to raise the value of the stock at least thirty millions more. The revenue bill was to have supplied the deficiency in the Treasury. The loan bill was to have been the basis of an increase of importations and of exchange operations; and the new bank was the instrument of putting the whole in operation."

This Mr. Benton accompanied by an article from a London paper, showing that the capitalists in that city were counting upon the success of their emissaries at Washington, and that the passage of this land bill was the first and most anxious wish of their hearts—that they considered it equivalent to the assumption of the State debts—and that the benefit of the bill would go to themselves. This established the character of the bill, and showed that it had been the means of bringing upon the national legislation the degrading and corrupting influences of a foreign interference. For the first time in the history of our government, foreigners have attended our Congress, to promote the passage of laws for their own benefit. For the first time we have had London capitalists for lobby members; and, mortifying to be told, insteadof being repulsed by defeat, they have been encouraged by success; and their future attendance may now be looked for as a matter of course, at our future sessions of Congress, when they have debts to secure, stocks to enhance, or a national bank to establish.

Mr. Benton also denounced the bill for its unconstitutionality, its demagogue character, its demoralizing tendencies, its bid for popularity, and its undaunted attempt to debauch the people with their own money.

The gentleman from Virginia [Mr.Archer], to whose speech I am now replying, in allusion to the frequent cry of breach of the constitution, when there is no breach, says he is sick and weary of the cry, wolf! wolf! when there is no wolf. I say so too. The constitution should not be trifled with—should not be invoked on every petty occasion—should not be proclaimed in danger when there is no danger. Granting that this has been done sometimes—that too often, and with too little consideration, the grave question of constitutionality has been pressed into trivial discussions, and violation proclaimed where there was none: granting this, I must yet be permitted to say that such is not the case now. It is not now a cry of wolf! when there is no wolf. It is no false or sham cry now. The boy cries in earnest this time. The wolf has come! Long, lank, gaunt, hungry, voracious, and ferocious, the beast is here! howling, for its prey, and determined to have it at the expense of the life of the shepherd. The political stockjobbers and gamblers raven for the public lands, and tear the constitution to pieces to get at them. They seize, pillage, and plunder the lands. It is not a case of misconstruction, but of violation. It is not a case of misunderstanding the constitution, but of assault and battery—of maim and murder—of homicide and assassination—committed upon it. Never has such a daring outrage been perpetrated—never such a contravention of the object of a confederation—never such a total perversion, and barefaced departure, from all the purposes for which a community of States bound themselves together for the defence, and not for the plunder of each other. No, sir! no! The constitution was not made to divide money. This confederacy was not framed for a distribution among its members of lands, money, property, or effects of any kind. It contains rules and directions for raising money—for levying duties equally, which the new tariff will violate; and for raising direct taxes in proportion to federal population; but it contains no rule for dividing money; and the distributors have to make one as they go, and the rule they make is precisely the one that is necessary to carry the bill; and that varies with the varying strength of the distributing party. In 1836, in the deposit act, it was the federal representation in the two Houses of Congress: in this bill, as it came from the House of Representatives, it was the federal numbers. We have put in representation: it will come back to us with numbers; and numbers will prevail; for it is a mere case of plunder—the plunder of the young States by the old ones—of the weak by the strong. Sir, it is sixteen years since these schemes of distribution were brought into this chamber, and I have viewed them all in the same light, and given them all the same indignant opposition. I have opposed all these schemes as unconstitutional, immoral, fatal to the Union, degrading to the people, debauching to the States; and inevitably tending to centralism on one hand or to disruption on the other. I have opposed the whole, beginning with the first proposition of a senator from New Jersey [Mr.Dickerson], to divide five millions of the sinking fund, and following the baneful scheme through all its modifications for the distribution of surplus revenue, and finally of land revenue. I have opposed the whole, adhering to the constitution, and to the objects of the confederacy, and scorning the ephemeral popularity which a venal system of plunder could purchase from the victims, or the dupes of a false and sordid policy.

I scorn the bill: I scout its vaunted popularity: I detest it. Nor can I conceive of an object more pitiable and contemptible than that of the demagogue haranguing for votes, and exhibiting his tables of dollars and acres, in order to show each voter, or each State, how much money they will be able to obtain from the Treasury if the land bill passes. Such haranguing, and such exhibition, is the address of impudence and knavery to supposed ignorance, meanness, and folly. It is treating the people as if they were penny wise and pound foolish; and still more mean than foolish. Why, the land revenue, after deducting the expenses, if fairly divided among the people, would not exceedninepence a head per annum; if fairly divided among the States, and applied to their debts, it would not supersede above ninepence per annum of taxation upon the units of the population. The day for land sales have gone by. The sales of this year do not exceed a million and a half of dollars, which would not leave more than a million for distribution; which, among sixteen millions of people would be exactly fourpence half penny, Virginia money, per head! afipin New York, and apicaillonin Louisiana. At two millions, it would be ninepence a head in Virginia, equivalent to alevyin New York, and abitin Louisiana! precisely the amount which, in specie times, a gentleman gives to a negro boy for holding his horse a minute at the door. And for this miserable doit—this insignificant subdivision of a shilling—a York shilling—can the demagogue suppose that the people are base enough to violate their constitution, mean enough to surrender the defence of their country, and stupid enough to be taxed in their coffee, tea, salt, sugar, coats, hats, blankets, shoes, shirts; and every article of comfort, decency, or necessity, which they eat, drink, or wear; or on which they stand, sit, sleep, or lie?

The bill was bound to pass. Besides being in the same boat with the other cardinal whig measures—bank, bankrupt, repeal of independent treasury—and all arranged to pass together; and besides being pushed along and supported by the London bankers—it contained within itself the means of success. It was richly freighted with inducements to conciliate every interest. To every new State it made a preliminary distribution of ten per centum (in addition to the five per centum allowed by compact), on the amount of the sales within the State: then it came in for a full share of all the rest in proportion to its population. To the same new States it gave also five hundred thousand acres of land; or a quantity sufficient to make up that amount where less had been granted. To the settlers in the new States, including foreigners who had made the declaration of their intentions to become naturalized citizens, it gave a pre-emption right in the public lands, to the amount of one quarter section: 160 acres. Then it distributed the whole amount of the land revenue, after deduction of the ten and the five per centum to the new States, to all the old States and new States together, in proportion to their population: and included all the States yet to be created in this scheme of distribution. And that no part of the people should go without their share in these largesses, the Territories, though not States, and the District of Columbia, though not a Territory, were also embraced in the plan—each to receive in proportion to its numbers. So many inducements to all sections of the country to desire the bill, and such a chance for popularity to its authors, made sure, not only of its passage, but of its claim to the national gratitude. To the eye of patriotism, it was all a venal proceeding—an attempt to buy up the people with their own money—having the money to borrow first. For it so happened that while the distribution bill was passing in one House, to divide out money among the States and the people, there was a loan bill depending in the other House, to borrow twelve millions of dollars for three years; and also, a tax bill to produce eighteen millions a year to reimburse that loan, and to defray the current expenses of the government. To make a gratuitous distribution of the land revenue (equal to several millions per annum), looked like fatuity; and was so in a financial or governmental point of view. But it was supposed that the distribution scheme would be irresistibly popular—that it would chain the people and the States to the party which passed it—and insure them success in the ensuing presidential elections. Baseless calculation, as it applied to the people! Vain hope, as it applied to themselves! The very men that passed the bill had to repeal it, under the sneaking term of suspension, before their terms of service were out—within less than one year from the time it was passed! to be precise, within eleven calendar months and twelve days, from the day of its passage—counting from the days, inclusive of both, on which John Tyler, President, approved and disapproved it—whereof, hereafter. But it passed! and was obliged to pass. It was a case of mutual assurance with the other whig measures, and passed the Senate by a party vote—Mr. Preston excepted—who "broke ranks," and voted with the democracy, making the negative vote 23. The yeas and nays were:

Yeas—Messrs. Archer, Barrow, Bates, Bayard, Berrien, Choate, Clay of Kentucky, Clayton, Dixon, Evans, Graham, Henderson, Huntington,Kerr, Mangum, Merrick, Miller, Morehead, Phelps, Porter, Prentiss, Rives, Simmons, Smith of Indiana, Southard, Tallmadge, White, Woodbridge.Nays—Messrs. Allen, Benton, Buchanan, Calhoun, Clay of Alabama, Cuthbert, Fulton, King, Linn, McRoberts, Mouton, Nicholson, Pierce, Preston, Sevier, Smith of Connecticut, Sturgeon, Tappan, Walker, Williams, Woodbury, Wright, Young.

Nays—Messrs. Allen, Benton, Buchanan, Calhoun, Clay of Alabama, Cuthbert, Fulton, King, Linn, McRoberts, Mouton, Nicholson, Pierce, Preston, Sevier, Smith of Connecticut, Sturgeon, Tappan, Walker, Williams, Woodbury, Wright, Young.

In the House the vote was close—almost even—116 to 108. The yeas and nays were:

Yeas—Messrs. John Quincy Adams, Elisha H. Allen, Landaff W. Andrews, Sherlock J. Andrews, Thomas D. Arnold, John B. Aycrigg, Alfred Babcock, Osmyn Baker, Daniel D. Barnard, Victory Birdseye, Henry Black, Bernard Blair, William W. Boardman, Nathaniel B. Borden, John M. Botts, George N. Briggs, John H. Brockway, David Bronson, Jeremiah Brown, Barker Burnell, William B. Calhoun, Thomas J. Campbell, Robert L. Caruthers, Thomas C. Chittenden, John C. Clark, Staley N. Clarke, James Cooper, Benjamin S. Cowen, Robert B. Cranston, James H. Cravens, Caleb Cushing, Edmund Deberry, John Edwards, Horace Everett, William P. Fessenden, Millard Fillmore, A. Lawrence Foster, Seth M. Gates, Meredith P. Gentry, Joshua R. Giddings, William L. Goggin, Patrick G. Goode, Willis Green, John Greig, Hiland Hall, William Halstead, William S. Hastings, Thomas Henry, Charles Hudson, Hiram P. Hunt, James Irvin, William W. Irvin, Francis James, William Cost Johnson, Isaac D. Jones, John P. Kennedy, Henry S. Lane, Joseph Lawrence, Archibald L. Linn, Thomas F. Marshall, Samson Mason, Joshua Mathiot, John Mattocks, John P. B. Maxwell, John Maynard, John Moore, Christopher Morgan, Calvary Morris, Jeremiah Morrow, Thomas B. Osborne, Bryan Y. Owsley, James A. Pearce, Nathaniel G. Pendleton, John Pope, Cuthbert Powell, George H. Proffit, Robert Ramsey, Benjamin Randall, Alexander Randall, Joseph F. Randolph, Kenneth Rayner, Joseph Ridgway, George B. Rodney, William Russel, Leverett Saltonstall, John Sergeant, William Simonton, William Slade, Truman Smith, Augustus R. Sollers, James C. Sprigg, Edward Stanly, Samuel Stokely, Charles C. Stratton, Alexander H. H. Stuart, George W. Summers, John Taliaferro, John B. Thompson, Richard W. Thompson, Joseph L. Tillinghast, George W. Toland, Thomas A. Tomlinson, Philip Triplett, Joseph Trumbull, Joseph R. Underwood, Henry Van Rensselaer, David Wallace, William H. Washington, Edward D. White, Joseph L. White, Thomas W. Williams, Lewis Williams, Joseph L. Williams, Robert C. Winthrop, Thomas Jones Yorke, Augustus Young, John Young.

Those who voted in the negative, are:

Nays—Messrs. Julius C. Alford, Archibald H. Arrington, Charles G. Atherton, Linn Banks, Henry W. Beeson, Benjamin A. Bidlack, Samuel S. Bowne, Linn Boyd, David P. Brewster, Aaron V. Brown, Milton Brown, Joseph Egbert, Charles G. Ferris, John G. Floyd, Joseph Fornance, Thomas F. Foster, Roger L. Gamble, Thomas W. Gilmer, William O. Goode, Samuel Gordon, James Graham, Amos Gustine, Richard W. Habersham, William A. Harris, John Hastings, Samuel L. Hays, Isaac E. Holmes, George W. Hopkins, Jacob Houck, jr., George S. Houston, Edmund W. Hubard, Robert M. T. Hunter, William Jack, Cave Johnson, John W. Jones, George M. Keim, Edmund Burke, Sampson H. Butler, William Butler, William O. Butler, Green W. Caldwell, Patrick C. Caldwell, John Campbell, William B. Campbell, George B. Cary, Reuben Chapman, Nathan Clifford, Andrew Kennedy, Thomas Butler King, Dixon H. Lewis, Nathaniel S. Littlefield, Joshua A. Lowell, Abraham McClellan, Robert McClellan, James J. McKay, John McKeon, Francis Mallory, Albert G. Marchand, Alfred Marshall, John Thompson Mason, James Mathews, William Medill, James A. Meriwether, John Miller, Peter Newhard, Eugenius A. Nisbet, William M. Oliver, William Parmenter, Samuel Patridge, William W. Payne, Francis W. Pickens, Arnold Plumer, James G. Clinton, Walter Coles, John R. J. Daniel, Richard D. Davis, John B. Dawson, Ezra Dean, Davis Dimock, jr., William Doan, Andrew W. Doig, Ira A. Eastman, John C. Edwards, John R. Reding, Abraham Rencher, R. Barnwell Rhett, Lewis Riggs, James Rogers, James I. Roosevelt, John Sanford, Romulus M. Saunders, Tristram Shaw, Augustine H. Shepperd, Benjamin G. Shields, John Snyder, Lewis Steenrod, Thomas D. Sumter, George Sweney, Hopkins L. Turney, John Van Buren, Aaron Ward, Lott Warren, Harvey M. Watterson, John B. Weller, John Westbrook, James W. Williams, Henry A. Wise, Fernando Wood.

The progress of the abuse inherent in a measure so vicious, was fully illustrated in the course of these distribution-bills. First, they were merely to relieve the distresses of the people: now they were to make payment of State debts, and to enhance the price of State stocks in the hands of London capitalists. In the beginning they were to divide a surplus on hand, for which the government had no use, and which ought to be returned to the people who had paid it, and who now needed it: afterwards it was to divide the land-money years ahead without knowing whether there would be any surplus or not: now they are for dividing money when there is none to divide—when there is a treasury deficit—and loans and taxes required to supply it. Originally, they were for short and limited terms—first, for one year—afterwardsfor five years: now for perpetuity. This bill provides for eternity. It is a curiosity in human legislation, and contained a clause which would be ridiculous if it had not been impious—an attempt to manacle future Congresses, and to bind posterity through unborn generations. The clause ran in these words: That if, at any time during the existence of this act, duties on imported goods should be raised above the rate of the twenty per centum on the value as provided in the compromise act of 1833, then the distribution of the land revenue should be suspended, and continue so until reduced to that rate; and then be resumed. Fallacious attempt to bind posterity! It did not even bind those who made it: for the same Congress disregarded it. But it shows to what length the distribution spirit had gone; and that even protective tariff—that former sovereign remedy for all the wants of the people—was sacrificed to it. Mr. Clay undertaking to bind all the Congresses for ever to uniform twenty per centum ad valorem duties. And while the distribution-bill thus undertook to protect and save the compromise of 1833, the new tariff-bill of this session, undertook to return the favor by assuming to protect and save the distribution-bill. Its second section contained this proviso: That if any duty exceeding twenty per centum on the value shall be levied before the 30th day of June, 1842, it should not stop the distribution of the land revenue, as provided for in the distribution act of the present session. Thus, the two acts were made mutual assurers, each stipulating for the life of the other, and connecting things which had no mutual relation except in the coalitions of politicians; but, like other assurers, not able to save the lives they assured. Both acts were gone in a year! And the marvel is how such flimsy absurdities could be put into a statute? And the answer, from the necessity of conciliating some one's vote, without which the bills could not pass. Thus, some Southern anti-tariff men would not vote for the distribution bill unless the compromise of 1833 was protected; and some distribution men of the West would not vote for the anti-tariff act unless the distribution bill was protected. And hence the ridiculous, presumptuous, and idle expedient of mutually insuring each other.

This session is remarkable for the institution of the hour rule in the House of Representatives—the largest limitation upon the freedom of debate which any deliberative assembly ever imposed upon itself, and presents an eminent instance of permanent injury done to free institutions in order to get rid of a temporary annoyance. It was done at a time when the party, called whig, was in full predominance in both Houses of Congress, and in the impatience of delay in the enactment of their measures. It was essentially a whig measure—though with exceptions each way—the body of the whigs going for it; the body of the democracy against it—several eminent whigs voting with them: Mr. John Quincy Adams, William C. Dawson, James A. Pearce, Kenneth Rayner, Edward Stanly, Alexander H. H. Stuart, Edward D. White and others. Mr. Lott Warren moved the rule as an amendment to the body of the rules; and, in the same moment, moved the previous question: which was carried. The vote was immediately taken, and the rule established by a good majority—only seventy-five members voting against it. They were:

Messrs. John Quincy Adams, Archibald H. Arrington, Charles G. Atherton, Linn Banks, Daniel D. Barnard, John M. Botts, Samuel S. Bowne, Linn Boyd, David P. Brewster, Aaron V. Brown, Edmund Burke, Barker Burnell, Green W. Caldwell, John Campbell, Robert L. Caruthers, George B. Cary, Reuben Chapman, James G. Clinton, Walter Coles, John R. J. Daniel, Wm. C. Dawson, Ezra Dean, Andrew W. Doig, Ira A. Eastman, Horace Everett, Charles G. Ferris, John G. Floyd, Charles A. Floyd, William O. Goode, Samuel Gordon, Samuel L. Hays, George W. Hopkins, Jacob Houck, jr., Edmund W. Hubard, Charles Hudson, Hiram P. Hunt, William W. Irwin, William Jack, Cave Johnson, John W. Jones, George M. Keim, Andrew Kennedy, Thomas Butler King, Dixon H. Lewis, Nathaniel S. Littlefield, Joshua A. Lowell, Abraham McClellan, Robert McClellan, James J. McKay, Francis Mallory, Alfred Marshall, Samson Mason, John Thompson Mason, John Miller, Peter Newhard, William Parmenter, William W. Payne, James A. Pearce, Francis W. Pickens, Kenneth Rayner, John R.Reding, Lewis Riggs, Romulus M. Saunders, William Slade, John Snyder, Augustus R. Sollers, James C. Sprigg, Edward Stanly, Lewis Steenrod, Alexander H. H. Stuart, Hopkins L. Turney, Aaron Ward, John Westbrook, Edward D. White, Joseph L. Williams.

The Roman republic had existed four hundred and fifty years, and was verging towards its fall under the first triumvirate—(Cæsar, Pompey, and Crassus)—before pleadings were limited to two hours before theJudices Selecti. In the Senate the speeches of senators were never limited at all; but even the partial limitation then placed upon judicial pleadings, but which were, in fact, popular orations, drew from Cicero an affecting deprecation of its effect upon the cause of freedom, as well as upon the field of eloquence. The reader of the admired treatise on oratory, and notices of celebrated orators, will remember his lamentation—as wise in its foresight of evil consequences to free institutions, as mournful and affecting in its lamentation over the decline of oratory. Little could he have supposed that a popular assembly should ever exist, and in a country where his writings were read, which would voluntarily impose upon itself a far more rigorous limitation than the one over which he grieved. Certain it is, that with our incessant use of the previous question, which cuts off all debate, and the hour rule which limits a speech to sixty minutes (constantly reduced by interruptions); and the habit of fixing an hour at which the question shall be taken, usually brief, and the intermediate little time not secure for that question: with all these limitations upon the freedom of debate in the House, certain it is that such an anomaly was never seen in a deliberative assembly, and the business of a people never transacted in the midst of such ignorance of what they are about by those who are doing it.

No doubt the license of debate has been greatly abused in our halls of Congress—as in those of the British parliament: but this suppression of debate is not the correction of the abuse, but the destruction of the liberty of speech: and that, not as a personal privilege, but as a representative right, essential to the welfare of the people. For fifty years of our government there was no such suppression: in no other country is there the parallel to it. Yet in all popular assemblies there is an abuse in the liberty of speech, inherent in the right of speech, which gives to faction and folly the same latitude as to wisdom and patriotism. The English have found the best corrective: it is in the House itself—its irregular power: its refusal to hear a member further when they are tired of him. A significant scraping and coughing warns the annoying speaker when he should cease: if the warning is not taken, a tempest drowns his voice: when he appeals to the chair, the chair recommends him to yield to the temper of the House. A few examples reduce the practice to a rule—insures its observance; and works the correction of the abuse without the destruction of debate. No man speaking to the subject, and giving information to the House, was ever scraped and coughed down, in the British House of Commons. No matter how plain his language, how awkward his manner, how confused his delivery, so long as he gives information he is heard attentively; while the practice falls with just, and relentless effect upon the loquacious members, who mistake volubility for eloquence, who delight themselves while annoying the House—who are insensible to the proprieties of time and place, take the subject for a point to stand on: and then speak off from it in all directions, and equally without continuity of ideas or disconnection of words. The practice of the British House of Commons puts an end to all such annoyance, while saving every thing profitable that any member can utter.

The first instance of enforcing this new rule stands thus recorded in the Register of Debates:

"Mr.Pickensproceeded, in the next place to point out the items of expenditure which might, without the least injury to the interests of the government or to the public service, suffer retrenchment. He quoted the report of the Secretary of the Treasury of December 9, 1840; from it he took the several items, and then stated how much, in his opinion, each might be reduced. The result of the first branch of this reduction of particulars was a sum to be retrenched amounting to $852,000. He next went into the items of pensions, the Florida war, and the expenditures of Congress; on these, with a few minor ones in addition, he estimated that there might, without injury, be a saving of four millions. Mr. P. had gotten thus far in his subject, and was just about to enterinto a comparison of the relative advantages of a loan and of Treasury notes, when"The Chair here reminded Mr. Pickens that his hour had expired."Mr.Pickens. The hour out?"TheChair. Yes, sir."Mr.Pickens. [Looking at his watch.] Bless my soul! Have I run my race?"Mr.Holmesasked whether his colleague had not taken ten minutes for explanations?"Mr. Warren desired that the rule be enforced."Mr.Pickensdenied that the House had any constitutional right to pass such a rule."TheChairagain reminded Mr. Pickens that he had spoken an hour."Mr.Pickenswould, then, conclude by saying it was the most infamous rule ever passed by any legislative body."Mr.J. G. Floydof New York, said the gentleman had been frequently interrupted, and had, therefore, a right to continue his remarks."TheChairdelivered a contrary opinion."Mr.Floydappealed from his decision."TheChairthen rose to put the question, whether the decision of the Chair should stand as the judgment of the House? when"Mr.Floydwithdrew his appeal."Mr.Dawsonsuggested whether the Chair had not possibly made a mistake with respect to the time."TheChairsaid there was no mistake."Mr.Pickensthen gave notice that he would offer an amendment."TheChairremarked that the gentleman was not in order."Mr.Pickenssaid that if the motion to strike out the enacting clause should prevail, he would move to amend the bill by introducing a substitute, giving ample means to the Treasury, but avoiding the evils of which he complained in the bill now under consideration."

"The Chair here reminded Mr. Pickens that his hour had expired.

"Mr.Pickens. The hour out?

"TheChair. Yes, sir.

"Mr.Pickens. [Looking at his watch.] Bless my soul! Have I run my race?

"Mr.Holmesasked whether his colleague had not taken ten minutes for explanations?

"Mr. Warren desired that the rule be enforced.

"Mr.Pickensdenied that the House had any constitutional right to pass such a rule.

"TheChairagain reminded Mr. Pickens that he had spoken an hour.

"Mr.Pickenswould, then, conclude by saying it was the most infamous rule ever passed by any legislative body.

"Mr.J. G. Floydof New York, said the gentleman had been frequently interrupted, and had, therefore, a right to continue his remarks.

"TheChairdelivered a contrary opinion.

"Mr.Floydappealed from his decision.

"TheChairthen rose to put the question, whether the decision of the Chair should stand as the judgment of the House? when

"Mr.Floydwithdrew his appeal.

"Mr.Dawsonsuggested whether the Chair had not possibly made a mistake with respect to the time.

"TheChairsaid there was no mistake.

"Mr.Pickensthen gave notice that he would offer an amendment.

"TheChairremarked that the gentleman was not in order.

"Mr.Pickenssaid that if the motion to strike out the enacting clause should prevail, he would move to amend the bill by introducing a substitute, giving ample means to the Treasury, but avoiding the evils of which he complained in the bill now under consideration."

The measure having succeeded in the House which made the majority master of the body, and enabled them to pass their bills without resistance or exposure, Mr. Clay undertook to do the same thing in the Senate. He was impatient to pass his bills, annoyed at the resistance they met, and dreadfully harassed by the species of warfare to which they were subjected; and for which he had no turn. The democratic senators acted upon a system, and with a thorough organization, and a perfect understanding. Being a minority, and able to do nothing, they became assailants, and attacked incessantly; not by formal orations against the whole body of a measure, but by sudden, short, and pungent speeches, directed against the vulnerable parts; and pointed by proffered amendments. Amendments were continually offered—a great number being prepared every night, and placed in suitable hands for use the next day—always commendably calculated to expose an evil, and to present a remedy. Near forty propositions of amendment were offered to the first fiscal agent bill alone—the yeas and nays taken upon them seven and thirty times. All the other prominent bills—distribution, bankrupt, fiscal corporation—new tariff act, called revenue—were served the same way. Every proposed amendment made an issue, which fixed public attention, and would work out in our favor—end as it might. If we carried it, which was seldom, there was a good point gained: if we lost it, there was a bad point exposed. In either event we had the advantage of discussion, which placed our adversaries in the wrong; and the speaking fact of the yeas and nays—which told how every man was upon every point. We had in our ranks every variety of speaking talent, from plain and calm up to fiery and brilliant—and all matter-of-fact men—their heads well stored with knowledge. There were but twenty-two of us; but every one a speaker, and effective. We kept their measures upon the anvil, and hammered them continually: we impaled them against the wall, and stabbed them incessantly. The Globe newspaper was a powerful ally (Messrs. Blair and Rives); setting off all we did to the best advantage in strong editorials—and carrying out our speeches, fresh and hot, to the people: and we felt victorious in the midst of unbroken defeats. Mr. Clay's temperament could not stand it, and he was determined to silence the troublesome minority, and got the acquiescence of his party, and the promise of their support: and boldly commenced his operations—avowing his design, at the same time, in open Senate.

It was on the 12th day of July—just four days after the new rule had been enforced in the House, and thereby established (for up to that day, it was doubtful whether it could be enforced)—that Mr. Clay made his first movement towards its introduction in the Senate; and in reply to Mr. Wright of New York—one of the last men in the world to waste time in the Senate, or to speak without edification to those who would listen. It was on the famous fiscal bank bill, and on a motion of Mr. Wright to strike out the large subscription reserved forthe government, so as to keep the government unconnected with the business of the bank. The mover made some remarks in favor of his motion—to which Mr. Clay replied: and then went on to say:

"He could not help regarding the opposition to this measure as one eminently calculated to delay the public business, with no other object that he could see than that of protracting to the last moment the measures for which this session had been expressly called to give to the people. This too was at a time when the whole country was crying out in an agony of distress for relief."

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