Thoughts on the Bankruptcy Bill
[ca. 10 Dec. 1792]
Extempore thoughts and doubts on very superficially running over the bankrupt bill.
The British statute excepts expressly farmers, graziers, drovers, as such, tho they buy to sell again. This bill has no such exception.
The British adjudications exempt the buyers and sellers of bank stock, government paper &c. What feelings guided the draughtsman in adhering to his original in this case and departing from it in the other?
The British courts adjudge that artists may be bankrupts if the materials of their art are bought, such as shoemakers, blacksmiths, carpenters, &c. Will the body of our artists desire to be brought within the vortex of this law? It will follow as a consequence that the master who has an artist of this kind in his family, whether hired, indentured, or a slave, to serve the purposes of his farm or family, but who may at leisure times do something for his neighbors also, may be a bankrupt.
The British law makes a departure from the realm i.e. out of the jurisdiction of British law, an act of bankruptcy. This bill makes a departure from the state wherein he resides, (tho’ into a neighboring one where the laws of the U.S. run equally) an act of bankruptcy.
The Commrs. may enter houses, break open doors, chests, &c. Are we really ripe for this? Is that spirit of independance and sovereignty which a man feels in his own house, and which Englishmen felt when they denominated their houses their castles, to be absolutely subdued, and is it expedient that it should be subdued?
The lands of the bankrupt are to be taken, sold &c. Is not this a fundamental question between the general and state legislatures?
Is Commerce so much the basis of the existence of the U.S. as to call for a bankrupt law? On the contrary are we not almost merely agricultural? Should not all laws be made with a view essentially to the1 husbandman? When laws are wanting for particular descriptions of other callings, should not the husbandman be carefully excepted from their operation, and preserved under that of the general system only, which general system is fitted to the condition of the husbandman?
MS (DLC: Madison Papers); entirely in TJ’s hand; undated, but recorded in SJPL between 3 and 10 Dec. 1792: “thoughts on bankrupt bill.” PrC (DLC); overwritten by a later hand. Enclosed in TJ to Madison, [ca. 10 Dec. 1792].
The dating of this document and TJ’s covering note to Madison is conjectural. It is clear that the date of 3 Dec. 1792 cannot safely be assumed from SJPL, where TJ incorrectly recorded under that date Edmund Randolph’s 5 Dec. 1792 Opinion on Offenses against the Law of Nations. Circumstantial evidence, moreover, makes a date earlier than 10 Dec. 1792 unlikely, if not impossible. On 21 Nov. 1792 the House of Representatives appointed a committee chaired by William Loughton Smith, the South Carolina Federalist, to draft a bankruptcy bill. A supporting petition from South Carolina merchants was read in the House on 3 Dec., and Smith submitted a bill “to establish an uniform system of bankruptcy throughout the United States” on 10 Dec., the earliest date a text would have been available to TJ if he had not seen a preliminary draft. After two readings, the House that day referred the bill to the Committee of the Whole for consideration on the second Monday in January 1793, but no further action was taken on it (JHR description begins Journal of the House of Representatives of the United States, Washington, D.C., 1826, 9 vols. description ends , i, 623, 631, 636). For Republican opposition to national bankruptcy legislation on the grounds that such laws would accelerate the anglicization and commercialization of American society, see Drew R. McCoy, The Elusive Republic: Political Economy in Jeffersonian America (Chapel Hill, 1980), 178–84.
1. At this point TJ canceled “farmer.”