Графични страници
PDF файл
ePub

§ 1104. In the next place, the power is important in regard to foreign countries, and to our commercial credits and intercourse with them. Unless the general government were invested with authority to pass suitable laws, which should give reciprocity and equality in cases of bankruptcies here, there would be danger, that the state legislation might, by undue domestic preferences and favours, compel foreign countries to retaliate; and instead of allowing creditors in the United States to partake an equality of benefits in cases of bankruptcies, to postpone them to all others. The existence of the power is, therefore, eminently useful; first, as a check upon undue state legislation; and secondly, as a means of redressing any grievances sustained by foreigners in commercial transactions.

§ 1105. It cannot but be matter of regret, that a power so salutary should have hitherto remained (as has been already intimated) a mere dead letter. It is extraordinary, that a commercial nation, spreading its enterprise through the whole world, and possessing such an infinitely varied, internal trade, reaching almost to every cottage in the most distant states, should voluntarily surrender up a system, which has elsewhere enjoyed such general favour, as the best security of creditors against fraud, and the best protection of debtors against oppression.

ment, increased activity and extent have been given to the bankrupt and insolvent laws. It is easy to exaggerate the abuses of the system, and point out its defects in glowing language. But the silent and potent influences of the system in its beneficent operations are apt to be overlooked, and are rarely sufficiently studied. What system of human legislation is not necessarily imperfect? Yet who would, on that account, destroy the fabric of society?-2 Kent's Comm. Lect. 37, p. 321 to 324, and note (b) id. (2d edit. p. 391, 392.)

[blocks in formation]

§ 1106. What laws are to be deemed bankrupt laws within the meaning of the constitution has been a matter of much forensic discussion and argument. Attempts have been made to distinguish between bankrupt laws and insolvent laws. For example, it has been said, that laws, which merely liberate the person of the debtor, are insolvent laws, and those, which discharge the contract, are bankrupt laws. But it would be very difficult to sustain this distinction by any uniformity of laws at home or abroad. In some of the states, laws, known as insolvent laws, discharge the person only; in others, they discharge the contract. And if congress were to pass a bankrupt act, which should discharge the person only of the bankrupt, and leave his future acquisitions liable to his creditors, there would be great difficulty in saying, that such an act was not in the sense of the constitution a bankrupt act, and so within the power of congress. Again; it has been said, that insolvent laws act on imprisoned debtors only at their own instance; and bankrupt laws only at the instance of creditors. But, however true this may have been in past times, as the actual course of English legislation, it is not true, and never was true, as a distinction in colonial legislation. In England it was an accident in the system, and not a material ground to discriminate, who were to be deemed in a legal sense

2

1 Sturgis v. Crowninshield, 4 Wheat. R. 122, 194, 202.

2 It was not true in England at the time of the American revolution; for under the insolvent act, commonly called the "Lords' Act of 32 Geo. 2, ch. 28," the creditors of the insolvent were equally with himself entitled to proceed to procure the benefit of the act ex parte. See 3 Black. Comm. 416, and note 3 of Mr. Christian. The present system of bankruptcy in England has been enlarged, so as now to include voluntary and concerted cases of bankruptcy. And the insolvent system is applied to all other imprisoned debtors, not within the bankrupt laws. See Petersdorff's Abridgment, titles, Bankrupt and Insolvent.

insolvents, or bankrupts. And if an act of congress should be passed, which should authorize a commission of bankruptcy to issue at the instance of the debtor, no court would on this account be warranted in saying, that the act was unconstitutional, and the commission a nullity.' It is believed, that no laws ever were passed in America by the colonies or states, which had the technical denomination of "bankrupt laws." But insolvent laws, quite co-extensive with the English bankrupt system in their operations and objects, have not been unfrequent in colonial and state legislation. No distinction was ever practically, or even theoretically attempted to be made between bankruptcies and insolvencies. And an historical review of the colonial and state legislation will abundantly show, that a bankrupt law may contain those regulations, which are generally found in insolvent laws; and that an insolvent law may contain those, which are common to bankrupt laws.2

§ 1107. The truth is, that the English system of bankruptcy, as well as the name, was borrowed from the continental jurisprudence, and derivatively from the Roman law. "We have fetched," says Lord Coke, as well the name, as the wickedness of bankrupts, from foreign nations; for banque in the French is mensa, and a banquer or eschanger is mensarius; and route is a sign or mark, as we say a cart route is the sign or mark, where the cart hath gone. Metaphorically it is taken for him, that hath wasted his estate, and removed his bank, so as there is left but a mention thereof. Some say it should be derived from banque and rumpue, as he that

1 Sturgis v. Crowninshield, 4 Wheat. R. 122, 194.

2 Sturgis v. Crowninshield, 4 Wheat. R. 122, 194, 198, 203; 2 Kent's Comm. Lect. 37, p. 321, &c.

hath broken his bank or state. 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. ch. 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.

[ocr errors]

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 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

« ПредишнаНапред »