CHAPTER XXXII

NATIONAL BANKRUPTCY

I have, since I have been in the Senate, taken great interest

in the passage of a bill for a system of National Bankruptcy.

The Constitution gives Congress power to establish a uniform

system of Bankruptcy. The people of Massachusetts, a commercial

and manufacturing State from the beginning, have always desired

a Bankrupt law. They were large dealers with other States

and with other countries. Insolvent debtors in Massachusetts

could not get discharge from their debts contracted in such

dealings. The Massachusetts creditors having debts against

insolvents in other States found that their debtors under

the laws of those States either got preferences or made fraudulent

assignments which they could not detect or prevent.

On the other hand, the bankruptcy laws have always been unpopular

in many parts of the country. The Democrat who strictly construed

the Constitution did not like to see this power of Congress

vigorously exercised. The National Courts, who must administer

such laws, were always the object of jealousy and suspicion

in the South and West. The people did not like to be summoned

to attend the settlement of an estate in bankruptcy, hundreds

and hundreds of miles, to the place where the United States

Court was sitting, in States like Texas or Missouri. The

sympathy of many communities is apt to be with the debtor,

and not with the creditors, who were represented as harpies

or vultures preying on the flesh of their unfortunate victims.

A good example of this prejudice will be found in an extract

from the speech of Senator Ingalls, of Kansas. He said in

defending what was known as the equity scheme:

"The opposition arose first, from the great wholesale merchants

in the chief distributing centres of the country. They have

their agents and attorneys in the vicinity of every debtor,

obtaining early information of approaching disaster, and ready

to avail themselves of the local machinery of State courts

by attachment or by preferences, through which they can secure

full payment of their claims, to the exclusion of less powerful

or less vigilant but equally meritorious creditors. Naturally

they want no Bankrupt law of any description.

"Second. From the disabled veterans of the old army registers;

from the professional assignees and wreckers of estates, who,

by exorbitant fees and collusive sales of assets to convenient

favorites, plundered debtor and creditor alike and made the

system an engine of larceny and confiscation.

"Third. From those who desire, instead of a system for the

discharge of honest but unfortunate debtors upon the surrender

of their estates, a criminal code and a thumb-screw machine

for the collection of doubtful and desperate debts. They

covet a return to the primitive practices which prevailed

in Rome, when the debtor was sold into slavery or had his

body cut into pieces and distributed pro rata among his creditors.

"Fourth. From those timid and cautious conservatives who

believe that nothing is valuable that is not venerable.

"Like the statesman described by Macaulay, they prefer to

perish by precedent rather than be saved by innovation. They

adhere to ancient failures rather than incur the risk of success

through venture and experiment.

"Fifth. From Boards of Trade, Chambers of Commerce and other

ornamental organizations who, being entirely uninformed on

the subject, permit themselves to become the conduits through

which the misrepresentation and animosity of avaricious creditors

and rapacious attorneys are discharged upon Congress and the

country."

I had moved in the Senate, in 1882, a bill favored by the

merchants and manufacturers of Massachusetts, which was largely

the work of Judge John Lowell, of the United States Circuit

Court, one of the most accomplished lawyers of his day, as

an amendment to a bill which Mr. Edmunds, Mr. Davis and Mr.

Ingalls had reported as a Subcommittee to the Senate Judiciary

Committee, and which had been reported from that Committee

to the Senate.

The Lowell Bill was on my motion substituted for the report

of the Judiciary Committee, by a majority of three. This

bill was extensively discussed in June and December. But

I was unable to secure its passage. It passed the Senate,

but it did not get through the House.

I have had the Parliamentary charge of all Bankruptcy measures

in the Senate from that time. After the failure of the Lowell

Bill, the Boards of Trade and Chambers of Commerce, and other

like associations throughout the country, took up the matter

very zealously by employing an able lawyer, the Hon. Jay

L. Torrey of Missouri, to present the matter in the two Houses

of Congress. He was thoroughly acquainted with the principles

and history of Bankruptcy laws in this country and England.

But he had no compromise in him. He insisted on the Bill

which he drew, which was a modification of the Lowell Bill,

without being willing to make any concession to objection

or difference of opinion in Congress, or out of it. He said

he would have a perfect law, or none at all. The measure

as he drew it was apparently very austere and harsh to the

debtor. It enumerated a large number of offences for which

the debtor was to be punished by fine and imprisonment, and

by a denial of his discharge. Mr. Torrey's provisions were

not very unreasonable. But they made it seem as if the Bill

were a penal code for the punishment of fraudulent debtors.

A simple provision that any debtor who wilfully should make

false answer to any question lawfully put to him by the Court,

or who wilfully concealed or attempted to conceal any property

from his assignee should lose his discharge and be punished

with a proper and moderate punishment, would have answered

the whole purpose. I take some blame to myself for not insisting

more strenuously upon modifying Mr. Torrey's measure. But

he constantly visited different Senators and Representatives

and came back to me with glowing accounts of the prospects

of the Bill, and of their promises to support the Bill. He

was also the agent of the business organizations of the country

who had passed resolutions in favor of the measure as he had

drawn it. It seemed to me therefore that if I should get

the Bill amended and then it got lost, I should incur the

great reproach of having obstinately set up my judgment against

that of this large number of the ablest men in the country,

who were so deeply interested in the matter. So the Bill,

though brought up and pressed Congress after Congress, failed

until Mr. Torrey enlisted in the Spanish War.

I then introduced a Bill in a softened and modified form.

It was attacked in that form by Senator Nelson of Minnesota,

a very excellent lawyer and gentleman of great influence,

in the Senate. He succeeded in having the Bill modified

and softened still more. The Bill then passed and went to

the House which, under the leadership of the Judiciary Committee,

substituted the original Bill.

Mr. Nelson and I, with Mr. Lindsay of Kentucky, were put on

the Conference Committee in the Senate, with Mr. Henderson,

afterward Speaker, Mr. Ray of New York, now Judge of the

U. S. District Court, and Mr. Terry of Missouri, on the part

of the House. We struggled nearly the whole winter. Mr.

Nelson and Mr. Ray took the burden of the contest upon their

shoulders. Their attempts at compromise reminded their brethren

of the old scientific problem--"What will happen when an irresistible

force encounters an immovable obstacle." But both gentlemen,

each exceedingly firm in his own opinion when he thought he

was in the right, were wise and reasonable and conscientious

men. So at last they agreed upon the present Bankruptcy

Bill, which became a law July 1, 1898. It was on the whole

satisfactory to the country, except for one clause in it, which

was interpreted by the United States Supreme Court in a manner

contrary to the understanding and expectation of the framers

of the Bill.

A law was passed February 7, 1903, correcting this and some

minor defects. It is hoped, though we cannot be sure in

such a matter, that a permanent system of Bankruptcy, so

essential to all commercial, indeed to all civilized nations, is

now established, and will be maintained in the United States.

Autobiography of Seventy Years, Vol. 1-2 · 第 32 / 40 章