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(From the N. A. Review of 1820.]
EXAMINATION OF SOME REMARKS IN THE QUARTERLY REVIEW ON THE
LAWS OF CREDITOR AND DEBTOR IN THE UNITED STATES.
The Quarterly Review for May 1819 contained two articles concerning the United States; one a review of Fearon's * book of travels, and the other a review of Mr. Bristed's book upon the resources of America. The Quarterly Review is, as everybody knows, extensively circulated, and much read in this country; and these articles excited, at the time of their appearance, no small degree of attention. It would be difficult, we imagine, in the same number of pages, to crowd more misrepresentation, or betray more ignorance, than appears in these articles, especially that which we have first mentioned. To the common vaporings of the English presses we pay little attention. These oracles are no more to be regarded, in their vituperations of the government and people of this country, than similar oracles among ourselves, in their abuse of the government and people of England. The leaders of such assemblages as the Manchester mob, and the orators in the palace-yard, find it convenient to inflame the passions of their auditors by declaiming, in terms of high panegyric, of the condition of America; wisely contriving, by a sort of contrast, to breed discontent, and to sharpen the feeling of hatred towards their own government. Other speakers and other writers, finding or thinking it necessary to refute these representations, naturally enough run into opposite extremes, and set off their own condemnation and abuse of America against the extravagant encomiums of their adversaries. All this is in the course of things. It is no more than must always be expected, in a country with such a government, as that of England; and it is of no consequence to us, what is the issue of this little and low strife of temporary politics. We suffer about equally by the commendation of one party and the abuse of the other; and we ought to be regardless of both.
But different, far different, is the case, when a work of established reputation in the literary world professes to discuss our character and condition. When gentlemen and scholars undertake to write about us, we have more interest in what they say, and are less disposed to acquiesoe in misrepresentation and injustice. The writers of the articles in question seem to have considered themselves as speaking about America, but not to America. They do not take the United States into the account of those who are to read their works, and judge of them. They do not look at the reading and thinking, men on this side the Atlantic, as forming any part of that great tribunal of the Public, to which cey acknowledge a responsibility. In this respect, in our humble judgment, they commit an oversight. English scholars, English editors, and English politicians have heretofore felt an unconquerable reluctance to admit the people of this country to a participation of those honors which belong to the civilized world, and the great family of Christian communities. They have been unwilling to see that North America has ceased to be a colony; and still desire to regard her, so far as respects acquirements, talents, and character, like Jamaica, Malta, or the Cape of Good Hope. This attempt, we may be allowed to say, will not succeed. America is entitled to her place among the nations, and nothing can keep her from it. It is in nature, as it appears to be in the purpose of Providence, that a people shall, within a short period of time, exist on this side the ocean, speaking the English language, springing principally from English origin, adopting English laws, and possessing the blessings of many of the most valuable of English institutions, so numerous, that the amount of British population, added or subtracted, would hardly make a sensible difference. Already the United States contain as many people as England, and among them there is, if not as full, yet as respectable a proportion belonging to the reading class. Whatever appears in England, and attracts attention there, in the departments of science, literature, poetry, or politics, appears here also, thirty days afterwards, with uniform regularity. We receive these reviews, wet from the press, and read and reprint and circulate them. We venture to say, that in no part of the Island of Great Britain, London excepted, is reading so general among the population, as in New England. Having thus, as we believe we have, in the United States, a larger reading community, than either Scotland or Ireland, how is it, that America is not to compose a part, and an important part, of that Public, before which a scientific and literary journal, composed and published in the English language, is to stand in judgment ? We would modestly, but firmly, insist on this reasonable participation in the authority and dignity of public opinion. We hold the right, and mean both to exercise and to defend it, of having and of expressing opinions on subjects of science and literature, and respecting those who discuss these subjects.
* The last that we have heard of this author is, that some time last winter a criminal information was moved for against him, in the King's Bench, for a conspiracy to produce a riot, at the election of the Lord Mayor.
It is a natural prejudice, that an old country should be unwilling to admit a young one upon any terms of equality. England herself is not thought old enough, nor respectable enough, to assume the port and bearing of an equal in the celestial empire of China; and there are elsewhere, as well as at Pekin, a dislike and scorn for the novi homines. English politicians and English scholars entertain towards us, when we press for admittance into their society and fellowship, something like that feeling, at once scornful and jealous, with which the Earl of Wharton addressed the twelve new peers in the reign of Queen Anne. Yet this prejudice and this reluctance must give way ; this scorn must be subdued, and this jealousy, if it be not, as it ought to be, eradicated, must become silent.
We, of the United States, have numbers and power and wealth, and a growing commerce, and a most extensive country, and, as we may think without vanity, some portion of that intelligence and spirit, which belongs to our more cultivated neighbours. Once for all, then, if we can express ourselves in such a manner as not to incur the imputation of arrogance, we wish to say, that we consider ourselves as forming a part, and a respectable part, of the great public of civilized and Christian nations; having an interest in such subjects discussed before that public, as are not in themselves local or peculiar; with a good right of contribution, as far as our ability admits, to those discussions ourselves; and above all a right to fair dealing and gentlemanly treatment from all who profess to write for the good of this public, and to be answerable to its judgment.
We put forth this claim in behalf of our country; and in behalf of the informed and reading class of its citizens. It is for the English writers to say, not whether it shall be admitted; that question we do not refer to their arbitrament: but whether, on their part, it shall be admitted freely, and with courtesy; or with hesitation, reluctance, ill nature, and ill manners.
We have space at present to take notice of one only of the topics, discussed in these articles. It relates to the American law of creditor and debtor; about which the reviewer has published extracts from Mr. Bristed's book, with comments. Mr. Bristed is an Englishman, by birth and education. He has lived, as it appears, for sometime in the city of New York, and has published a book upon the resources of this country. Some observations were made on that work in a former number of this journal. Referring to these observations, we have now only to say of Mr. Bristed's general character, as an authority, that he is beyond ordinary measure destitute of all accuracy and precision. There are, of course, many important facts collected in this book, and a mass of extracts from public documents, in some degree useful, perhaps, to those who do not possess the same matter in a better form ; but his own opinions, and inferences, and observations upon manners, are not to be received but with great allowance. Mr. Bristed never speaks with any qualification. He has little general, and no intimate knowledge of the state of things in this country, and he speaks only from what lies within his own immediate and confined observation. With him all peculiarities are general truths, and all exceptions become rules. We have hardly patience with a man, who could write such a paragraph, as the first quoted from his book, in the article in the Quarterly Review, which we beg leave to transcribe again, and to proceed to make some remarks upon it.
“ The laws of this country generally favor the debtor at the expense of the creditor, and so far encourage dishonesty.' The number of insolvents in every state is prodigious, and continually increasing. They very seldom pay any part of their debts, but get discharged by the state insolvent acts with great facility, secrete what property they please for their own use, without the creditor's being able to
touch a single stiver. There is no bankrupt law in the United States, and no appeal, in these matters, to the Federal courts ; whence in every state the insolvent acts operate as a general jail delivery of all debtors, and a permanent scheme, by which creditors are defrauded of their property. The British merchants and manufacturers, who have trusted our [our ?] people, doubtless understand this.”
He adds, "that in a single city, New York, more than six thousand of its inhabitants were declared insolvent in one year.”
Now in the first place, almost every matter of fact, asserted in this paragraph, is stated incorrectly and untruly. It is not true, that in every state the insolvent laws operate as a general jail delivery of all debtors ; there being, in a majority of the states, no insolvent law at all.
It is not true, that there is no appeal in these matters, to the Federal courts: on the contrary, there is an appeal, in all cases, from decisions in the state courts, on the insolvent laws of the state, to the Supreme Court of the United States; an appeal, which exists not only theoretically, but practically, and has been resorted to often, and with effect.
It is not true, that the number of insolvents, meaning such as have been discharged under statute provisions, is prodigious in every state, and increasing. In most of the states, as we have observed, there are no such laws, and of course no 'prodigious numbers, who have been, or who can be discharged under such laws. Having now shown how destitute of all correctness and all truth is the foregoing paragraph from Mr. Bristed's book, we proceed to describe the real state of the case.
At the formation of the present government in 1787, it was provided by the national constitution, that Congress should have power to establish uniform rules on the subject of Bankruptcy throughout the United States. This power was not exercised until 1798, when a uniform system of Bankruptcy was established by act of Congress. It met with great opposition, arising in a great variety of motives, and was repealed four or five years afterwards. It is, no doubt, to be lamented that a fair experiment was not given to this law. It is a subject on which it seems necessary that there should be some legislative provision ; and notwithstanding the frauds which will be, and are committed under bankrupt_laws, even well administered, and which have led such men as Lord Eldon, and Sir Samuel Romily to express doubts of their general utility, yet we know not any other mode of providing for the cases continually arising in commercial societies, and which call loudly for some provision. After the repeal of the law, however, individual states, acting upon the supposition that as Congress had not exercised thó power, or had discontinued its exercise, of establishing a general law, for the whole country, they had a right to provide insolvent laws as a part of their own local legislation, enacted such laws, and gave them operation. Among others, the state of New York passed an insolvent law, in the year 1811, and, as was to be expected in the first year of its operation, many discharges were obtained under it. It was found that this law not only gave too great facilities in obtaining discharges, but that it led also to fraudulent applications from debtors coming from other states. The law was repealed, we believe, within a year after its enactment; and it was, we suppose, during the period of this very short and extraordinary act, that Mr. Bristed finds his six thousand discharged in one year. Here then is a single act, from which a general law, and a general practice, is unhesitatingly inferred. “The British' merchants and manufacturers who have trusted our people doubtless understand this.' Does Mr. Bristed mean that the credit of American merchants is not good, in England ? It would be new to us, indeed, to hear such a remark. Surely never was, not only all due credit, but all undue credit more easily obtained, than by the American merchants, for British manufactures.
The flippant and off-hand remark, that the laws of this country generally favor the debtor, at the expense of the creditor, is grossly incorrect, and can hardly be pardoned. There may be, among the state legislatures, an occasional relaxation, but to say that the general scope of the laws of this country is to favor the debtor at the expense of the creditor, is absolutely untrue, and calumnious. We still hold, in almost, if not in every state, to the imprisonment of the person for debt; we still hold every man, to be in law capable of paying to the uttermost farthing; and therefore we apply the old principle, solvat per corpus, qui non possit crumena. We discourage marriage settlements, and family settlements, to an extent, in the opinion of some, far too great; our lawgivers and tribunals all look with jealousy on trusts and entailments, and all the various modes of tying up estates, and rendering them inalienable; and all this simply from respect to the rights of creditors.
In most of the states also, the fee simple of the debtor's estate may be taken, to satisfy the creditor, and lastly, we hold, that whatever laws the individual states may pass respecting insolvents, such laws, if they in any manner impair the validity of contracts, are absolutely null and void. We have from the first introduced and maintained this great and salutary, and protecting principle in the fundamental articles of the national government; and yet Mr. Bristed can say, and the reviewers in England can believe, that in this country the laws are generally made to favor debtors at the expense of the creditors! Every well informed man knows the difficulty of legislating on the subject of insolvents; and none better than the eminent living judicial characters in England. We now speak of the insolvent laws, as distinguished from the bankrupt laws; since the insolvent laws which individual states have sometimes enacted in this country, resemble the cessio bonorum of the civil law, and the insolvent laws of England, much more than the bankrupt system of that country:
We wish, before gentlemen in England give credit to such loose calumnies as this of Mr. Bristed's upon the laws for the relief of insolvent debtors in the United States, they would attend to their own case, and to the difficulties which they themselves have experienced on this subject. This would, we think, give some moderation to their fault-finding, and some measure to their language of rebuke. We wish they would consult Lord Eldon, Lord Redesdale, Lord Aukland, Mr. Sergeant Runnington, the late, and Mr. Reynolds, the present judge of the insolvent debtor's court, upon the unavoidable obstacles, and difficulties which lie in the way of uniting