hath broken his bank or state.1 Mr. Justice 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 route." 2

§ 1108. 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 gacl, omni quoque corporali cruciatu semoto; for as the emperor (Justinian) justly observed, inhumanum erat spoliatum fortunis suis in solidum damnari;3 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 imprison

1 4 Inst. eh. 63.

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

3 2 Black. Comm. 472, 473; Cod. Lib. 7, tit. 71, per totum, Ayliffe's Pandects, B. 4, tit. 14,

ment. 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 farther, 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 systems, 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.3

1 1 Kent's Comm. Lect. 19, p. 336; 1 Domat, B. 4, tit. 5, § 1, 2. 2 2 Black. Comm. 473, 474.

3 See Debate on the Bankr. 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

§ 1109. 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. 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 provisions. And this latter opinion is now firmly established by 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

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 favour.*

1 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, (Sturgis v. Crowninshield, 4 Wheat. R. 122,) in which it was first decided.

2 Sturgis 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.

* Journal of Convention, Supplement, p. 436.

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.

§ 1110. 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.1

1 Ogden v. Saunders, 12 Wheat. R. 122, 369; Boyle v. Zacharie, 6 Peters's 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.

CHAPTER XVII.

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

§ 1111. 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."

§ 1112. 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. 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 in the convention. It has been justly remarked, that the power "to coin money " would, doubtless, include that of regulating its value, had the latter power not been expressly inserted. But the constitution abounds with pleonasms and repetitions of this nature.

§ 1113. The grounds, upon which the general power to coin money, and regulate the value of foreign and

1 The Federalist, No. 42.

2 Journ. of Convention, 220, 257, 357.

3 Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828.