On Bankruptcy

Notes Of An Argument

December [?], 1858

Legislation and adjudication must follow and conform to the progress of society.

The progress of society now begins to produce cases of the transfer for debts of the entire property of railroad corporations; and to enable transferees to use and enjoy the transferred property, legislation and adjudication begin to be necessary.

Shall this class of legislation just now beginning with us be general or special?

Section Ten of our Constitution requires that it should be general,

if possible. (Read the section.)

Special legislation always trenches upon the judicial department; and in so far violates Section Two of the Constitution. (Read it.)
Just reasoning—policy—is in favor of general legislation—else the Legislature will be loaded down with the investigation of smaller cases—a work which the courts ought to perform, and can perform much more perfectly. How can the Legislature rightly decide the facts between P. & B. and S.C.
It is said that under a general law, whenever a R. R. Co. gets tired of its debts, it may transfer fraudulently to get rid of them. So they may—so may individuals; and which—the Legislature or the courts—is best suited to try the question of fraud in either case?
It is said, if a purchaser have acquired legal rights, let him not be robbed of them, but if he needs legislation let him submit to just terms to obtain it.
Let him, say we, have general law in advance (guarded in every possible way against fraud), so that, when he acquires a legal right, he will have no occasion to wait for additional legislation; and if he has practiced fraud let the courts so decide.