صور الصفحة
PDF
النشر الإلكتروني

Blackstone inclines strongly to this latter intimation, saying, that the word is derived from the word bancus, or banque, which signifies the table or counter of a tradesman, and ruptus, broken; denoting thereby one whose shop or place of trade is broken and gone. It is observable that the first statute against bankrupt is against such persons as do make bankrupt' (34 Hen. 8, ch. 4), which is a literal translation of the French idiom, qui font banque

[ocr errors]

route." 1

§ 1113. The system of discharging persons who were unable to pay their debts was transferred from the Roman law into continental jurisprudence at an early period. To the glory of Christianity let it be said, that the law of cession (cessio bonorum) was introduced by the Christian emperors of Rome, whereby, if a debtor ceded or yielded up all his property to his creditors, he was secured from being dragged to jail omni quoque corporali cruciatu semoto; for as the emperor (Justinian) justly observed, inhumanum erat spoliatum fortunis suis in solidum damnari; 2 a noble declaration, which the American republics would do well to follow, and not merely to praise. Neither by the Roman nor the continental law was the cessio bonorum confined to traders, but it extended to all persons. It may be added, that the cessio bonorum of the Roman law, and that which at present prevails in most parts of the continent of Europe, only exempted the debtor from imprisonment. It did not release or discharge the debt, or exempt the future acquisitions of the debtor from execution for the debt. The English statute, commonly called the "Lords' Act," went no further than to discharge the debtor's person. And it may be laid down as the law of Germany, France, Holland, Scotland, and England, that their insolvent laws are not more extensive in their operation than the cessio bonorum of the civil law. In some parts of Germany, we are informed by Huberus and Heineccius, a cessio bonorum does not even work a discharge of the debtor's person, and much less of his future effects. But with a view to the advancement of commerce, and the benefit of creditors, the sys

1 2 Black. Comm. 472, note; Cooke's Bankrupt Laws, Introd. ch. 1. The modern French phrase in the Code of Commerce is la banqueroute. "Tout commerçant failli, &c., est en état de banqueroute." Art. 438.

2 2 Black. Comm. 472, 473; Cod. Lib. 7, tit. 71, per totum; Ayliffe's Pandects, B. 4, tit. 14.

3 1 Kent's Comm. Lect. 19, p. 336; 1 Domat, B. 4, tit. 5, § 1, 2.

[blocks in formation]

tems now commonly known by the name of "bankrupt laws" were introduced, and allowed a proceeding to be had at the instance of the creditors against an unwilling debtor, when he did not choose to yield up his property; or, as it is phrased in our law, bankrupt laws were originally proceedings in invitum. In the English system the bankrupt laws are limited to persons who are traders, or connected with matters of trade and commerce, as such persons are peculiarly liable to accidental losses, and to an inability of paying their debts without any fault of their own. But this is a mere matter of policy, and by no means enters into the nature of such laws. There is nothing in the nature or reason of such laws to prevent their being applied to any other class of unfortunate and meritorious debtors.2

§ 1114. How far the power of Congress to pass uniform laws on the subject of bankruptcies supersedes the authority of State legislation on the same subject, has been a matter of much elaborate forensic discussion. It has been strenuously maintained by some learned minds, that the power in Congress is exclusive of that of the States; and, whether exerted or not, it supersedes State legislation.3 On the other hand, it has been maintained that the power in Congress is not exclusive; that when Congress has acted upon the subject, to the extent of the national legislation, the power of the States is controlled and limited; but when unexerted, the States are at liberty to exercise the power in its full extent, unless so far as they are controlled by other constitutional provisons. And this latter opinion is now firmly established by

1 2 Black. Comm. 473, 474. [This is now otherwise.]

2 See Debate on the Bankrupt Bill in the House of Representatives, Feb. 1818; 4 Elliot's Debates, 282 to 284. Perhaps as satisfactory a description of a bankrupt law as can be framed, is, that it is a law for the benefit and relief of creditors and their debtors, in cases in which the latter are unable or unwilling to pay their debts. And a law on the subject of bankruptcies, in the sense of the Constitution, is a law making provisions for cases of persons failing to pay their debts. An amendment was proposed by the State of New York to the Constitution at the time of adopting it, that the power of passing uniform bankrupt laws should extend only to merchants and other traders; but it did not meet general favor. Journal of Convention, Supplement, p. 436.

3 See Golden v. Prince, 3 Wash. Circ. R. 313; Ogden v. Saunders, 12 Wheat. R. 264, 267 to 270, per Washington, J. It is well known that Mr. Justice Washington was not alone in the court in this opinion in the original case (Sturges v. Crowninshield, 4 Wheat. R. 122) in which it was first decided.

judicial decisions. As this doctrine seems now to have obtained a general acquiescence, it does not seem necessary to review the reasoning on which the different opinions are founded; although, as a new question, it is probably as much open to controversy as any one which has ever given rise to judicial argumentation. But upon all such subjects it seems desirable to adopt the sound practical maxim, Interest reipublicæ, ut finis sit litium.

§ 1115. It is, however, to be understood, that although the States still retain the power to pass insolvent and bankrupt laws, that power is not unlimited, as it was before the Constitution. It does. not, as will be presently seen, extend to the passing of insolvent or bankrupt acts which shall discharge the obligation of antecedent contracts. It can discharge such contracts only as are made subsequently to the passing of such acts, and such as are made within the State between citizens of the same State. It does not extend to contracts made with a citizen of another State within the State, nor to any contracts made in other States.2

1 Sturges v. Crowninshield, 4 Wheat. R. 122, 191 to 196; Id. 198 to 202; Ogden v. Saunders, 12 Wheat. R. 273, 275, 280, 306, 310, 314, 335, 369.

2 Ogden v. Saunders, 12 Wheat. R. 122, 369; Boyle v. Zacharie, 6 Peters, R. 348; 2 Kent, Comm. Lect. 37, p. 323, 324; Sergeant on Const. Law, ch. 28, p. 309 [ch. 30, p. 322]; Rawle on the Constitution, ch. 9, p. 101, 102. [The following is a summary of the decisions of the Supreme Court of the United States as to the power of the States over the subject of bankruptcy and insolvency :

1. The several States have power to legislate on the subject of bankrupt and insolvent laws, subject, however, to the authority conferred upon Congress by the Constitution to adopt a uniform system of bankruptcy, which authority, when exercised, is paramount, and State enactments in conflict with those of Congress upon the subject must give way. Sturges v. Crowninshield, 4 Wheat. 122; Farmers and Mechanics' Bank v. Smith, 6 Wheat. 131; Ogden v. Saunders, 12 Wheat. 213; Baldwin v. Hale, 1 Wall. 229.

2. Such State laws, however, discharging the person or the property of the debtor, and thereby terminating the legal obligation of the debts, cannot constitutionally be made to apply to contracts entered into before they were passed, but they may be made applicable to such future contracts as can be considered as having been made in reference to them. Ogden v. Saunders, 12 Wheat. 213.

3. Contracts made within a State where an insolvent law exists, between citizens of that State, are to be considered as made in reference to the law, and are subject to its provisions. But the law cannot apply to a contract made in one State between a citizen thereof, and a citizen of another State. (Ogden v. Saunders, 12 Wheat. 213; Springer v. Foster, 2 Story, 387; Boyle v. Zacharie, 6 Pet. 348; Woodhull v. Wagner, Baldw. 300; Suydam v. Broadnax, 14 Pet. 75; Cook v. Moffat, 5 How. 310; Baldwin v. Hale, 1 Wall. 231); nor to contracts not made within the State, even though between citizens of the same State (M’Millan v. M'Neill, 4 Wheat. 209.) And where the contract is made between a citizen of one State and a citizen of another, the

circumstance that the contract is made payable in the State where the insolvent law exists will not render such contract subject to be discharged under the law. Baldwin v. Hale, 1 Wall. 223; Baldwin v. Bank of Newbury, Id. 234; Gilman v. Lockwood, 4 Wall. 409.

If, however, the creditor makes himself a party to proceedings under the insolvent law, he will be bound thereby like any other party to judicial proceedings, and is not to be heard afterwards to object that his debt was excluded by the Constitution from being affected by the law. Clay v. Smith, 3 Pet. 411; Baldwin v. Hale, 1 Wall. 223; Gilman v. Lockwood, 4 Wall. 409.]

CHAPTER XVII.

POWER TO COIN MONEY AND FIX THE STANDARD OF WEIGHTS AND MEASURES.

§ 1116. THE next power of Congress is "to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures." 1

§ 1117. Under the confederation, the continental congress had delegated to them "the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the States," and "fixing the standard of weights and measures throughout the United States." It is observable that, under the confederation, there was no power given to regulate the value of foreign coin, an omission which, in a great measure, would destroy any uniformity in the value of the current coin, since the respective States might, by different regulations, create a different value in each.2 The Constitution has, with great propriety, cured this defect; and, indeed, the whole clause, as it now stands, does not seem to have attracted any discussion

1 [After the breaking out of the great civil war in 1861, it was deemed necessary by Congress, in order to supply the means of carrying on the war, to issue a large amount of treasury notes, and to make them a legal tender in payment of private debts, and also of all public dues except duties on imports and interest on the public debt. These notes thereupon, to a large extent, became the circulating medium of the country, and gold and silver ceased to be used in ordinary traffic, except on the Pacific slope. The constitutional validity of the Legal Tender Acts of Congress was strongly contested, especially in their application to pre-existing debts, but it was generally sustained by the State courts. The question did not come before the Supreme Court of the United States for decision until the case of Hepburn v. Griswold, decided in December, 1869, and reported in 8 Wallace, 603. In that case a majority of the court (Chase, C. J., Nelson, Clifford, and Field, JJ.) held that the acts were valid so far as they applied to debts contracted subsequently to their passage, but that they were, as to debts contracted before their passage, unwarranted by the Constitution. Justices Miller, Swayne, and Davis dissented. A year later, however, this decision was overruled, and the acts sustained, as well in their application to pre-existing debts as to those subsequently contracted. This result was concurred in by Justices Strong and Bradley (appointed since the former decision), Miller, Davis, and Swayne, and dissented from by the Chief Justice and Justices Nelson, Clifford, and Field. See Knox v. Lee, 12 Wall. 457.]

2 The Federalist, No. 42.

« السابقةمتابعة »