NOTES.

[Note to page 79, section 199.]

ON BANKRUPT AND INSOLVENT LAWS.

As the relation of debtor and creditor is, at all times, one of great interest, and one which especially engages public attention at the present time, it may be useful to state what the constitutional law is, on this subject.

After the declaration of independence, and before the adoption of the constitution of the United States, the several states were absolutely sovereign, as to all legislative measures affecting debtor and creditor. "The power of interfering with contracts, and changing the relative situation of debtor and creditor, had been so exercised as to impair commercial intercourse, threaten the existence of credit, sap the morals of the people, and destroy the sanctity of private faith." (12 Wheaton's Reports, 354-5.)

Among the purposes intended by the framers of the constitution, and by the people when they adopted it, was, to cure such evils, and to make all the people in the Union, one people, in those relations which the constitution recognized to be national.

To these ends, the constitution provides, among other things, for a uniform standard of value, in gold and silver coin; for the like standard in weights and measures; for the faithful performance of contracts entered into between citizens of different states, by giving jurisdiction between them to national courts; for the equal distribution of the estate and effects of insolvents, by means of one and the same bankrupt system throughout the states. To secure the effectual operation of these and other provisions, the constitution prohibits certain acts of state legislation, in these words :-"No state shall coin money; emit bills of credit; make any thing but gold and silver coin a tender in the payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of

contracts.

When the constitution was adopted, insolvent laws, providing for the discharge of the person, and future acquisitions, were in force in some of the states, and such laws have been passed, or revised, in others, since the adoption of the constitution.

In this state of things, these questions have been raised :-(1.) Do state insolvent laws impair the obligation of contracts? (2.) As power is granted to Congress to establish a uniform system of bankruptcy, is the power to make insolvent laws thereby taken away from

the states?

Several cases have been decided in the Supreme Court of the United States (the court of the last resort on constitutional law), in which the above-mentioned questions arose. It will be noticed, that the prominent words in the prohibitory clause are, "impairing," "obligation," "contracts." The meaning of these words, taken separately, is well understood. Their meaning, taken connectedly, in the above-quoted clause, has been so differently understood, as to call forth the best efforts of minds, as strong by nature, and as much improved by study and experience, as any that do, or ever did, act in our national affairs. The two most remarkable points of difference are understood to be these:-On the one hand, it is maintained, that the "obligation of a contract" is that duty which arises from the immutable laws of natural justice, the obligation of which men are presumed to carry with them into society; and that the laws of society do no more than to enforce the performance of that duty. On the other hand, it is maintained, that all contracts are made by persons, who are already members of society, and are made with reference to the existing laws of the society of which they are members; and that the "obligation" of the contract is that only, which these laws make it to be.

Those who maintain the first point say, that any law which substitutes something, for the exact performance of the contract, is a law impairing the obligation of contracts; that insolvent laws do this, and are, therefore, repugnant to the constitution.

Those who maintain the second point say, that, as all contracts are made with reference to existing laws, if there be a law in force, when a contract is made, which provides, that contracts may be discharged on the happening of a certain contingency, in some other mode than that expressly provided for therein, contracts must be considered as having been made with reference to that law; and that such law does not impair the obligation. Whence they infer, that a law, which provides that debtors, who surrender all their estate and effects for distribution among creditors, shall thereupon be discharged from all posterior liability to these creditors, does not impair the obligation of contracts entered into after such law was in force. Therefore, the operation of such a law, on such contracts, is not repugnant to the constitution.

In what manner the Supreme Court of the United States have disposed of both the questions above stated, will be seen from the following cases :

Sturges vs. Crowningshield. (10 Wheaton's R. 122-208.)

Action on promissory notes, dated March 22, 1811. Defence ;Discharge under the insolvent law of New York, passed 3d of April, 1811. Judgment;-That, since the adoption of the national constitution, a state has authority to pass a bankrupt law, provided such law does not impair the obligation of contracts, within the meaning of the constitution; and provided there be no act in force, to establish a uniform system of bankruptcy conflicting with such law; that the law of New York, so far as it attempted to discharge the contract, on which the suit was instituted, was a law impairing the obligation, &c.

The meaning of this decision is supposed to be, that some power of making insolvent laws resides in the states; and that a law, which

discharges a debtor from contracts entered into before the passing of such law, is repugnant to the provision of the constitution concerning contracts.

McMillan vs. McNeill. (10 Wheaton's R. 209.)

McNeill of South Carolina sued McMillan of Louisiana, for money paid for him, as surety on a custom-house bond, in May, 1812. Both parties then lived in South Carolina. Between that time and August, 1815, McMillan removed to New Orleans, and, in that month, obtained a discharge under the insolvent law of Louisiana; which discharge was offered as a defence against McNeill's suit. Judgment;-That the discharge was not a bar to the suit. Although the insolvent law was made before the debt was contracted, the contracting parties, residing, at the time of the contract, in South Carolina, had no reference to the laws of Louisiana.

Ogden vs. Saunders. (12 Wheaton's R. 213-269.)

In September, 1806, Jordon of Kentucky drew a bill on Ogden of New York, in favor of Saunders. Ogden accepted the bill, but became insolvent before the day of payment, and obtained a discharge under the insolvent law of New York, passed in 1801. He afterwards removed to New Orleans, where Saunders brought this suit against him.

Ogden's defence was (in part) his discharge under the New York law. Each of four of the justices of the Supreme Court, delivered elaborate opinions on the two questions before stated, and are understood to have concurred in this :-(1.) That the grant of power to Congress, to establish bankrupt laws, is not an exclusive grant; and does not take from the legislatures of the respective states, the right to legislate on the same subject, except when the power vested in Congress has been exercised, and the state laws conflict with those of Congress:

(2.) That a state insolvent law, which discharges the person of debtors, and their after-acquired property, from debts contracted after the passing of such law, is not repugnant to the constitution:

(3.) That a discharge under a state insolvent law, is valid only between the citizens of the state, by which that law was passed, and is inoperative as to contracts made with citizens of other states:

(4.) That a citizen who contracts debts in one state, and then removes into another state, and there takes the benefit of an insolvent law, does not thereby discharge himself from debts contracted before his removal.

The chief justice, and two other justices, did not concur in opinion with the other four, as to the constitutionality of insolvent laws; and he delivered, for himself and them, an elaborate opinion, setting forth the reasons which had led to a different conclusion.

The law is understood to be now settled, according to the opinion of a majority of the members of the court, as in all other cases where a difference of opinion occurs. But, as "the positive authority of a decision is co-extensive only with the facts on which it is made," it is obvious that many questions still remain open; and questions, too, of the most difficult and perplexing character. All questions where laws conflict, or, in other words, where litigating parties

claim to be protected or sustained under laws of different sovereignties, are of this nature. Although the constitution has been in the course of administration for more than forty years, nothing has been effectually done, in pursuance of its provisions, for the relief of debtor and creditor, even in those relations which are strictly commercial.

Whether the differences of opinion which have hitherto prevented the passing of a national bankrupt law, can be reconciled, or in any way gotten over, is exceedingly doubtful; and until such law shall have been passed, there can be no relief from the embarrassments which are said to exist, but by the exercise of power admitted to be reserved to state legislatures.

Whether a creditor shall, or shall not, have the remedy of coercion, by imprisonment, for the recovery of his debt; or the right to punish his debtor, by imprisonment, because he cannot pay, is entirely another question; and is one which does not arise under the constitution of the United States. Any state legislature may decide, by law, under what circumstances imprisonment for debt shall commence; of what nature it shall be; how long it shall continue; and when, and how, it shall end; and even that there shall be no imprisonment for such cause. Such legislation involves only one of the remedies of the creditor, and does not impair the obligation of the debtor. Mere remedies to compel the payment of debts, differ essentially in the several states, and are from time to time changed and varied, as state legislatures see fit. It is not perceived that any modification, or even the total abolition of imprisonment for debt, can ever be made a subject of national jurisdiction, under any of the prohibitory terms of the constitution.

NOTE ON CRIMES.

THERE are six crimes which are punishable with death by hanging, in Massachusetts; among which are murder, arson, robbery, burglary,

treason.

Murder is the malicious killing of any human being, by force and violence, or by any secret means, as poisoning. The word murder is supposed to be derived from the barbarous Latin mordrum, or murdrum, or murdrare, which is supposed to be derived from morti, death, and dare, to give. Murder comes under the general term of homicide, which is derived from two Latin words signifying man, and killing. Homicide is felonious, excusable, or justifiable. Felony is a word of uncertain origin. All crimes, above misdemeanor, are felonious. Statutes may make, and often do make, crimes felonious, which are not so at common law. Excusable homicide happens, when one, being lawfully employed at the time, kills another, without the intention to do any wrong. This is, more properly, killing by misadventure. Justifiable homicide is putting one to death in pursuance of legal sentence; or in the necessary defence of one's person, house, or goods. Manslaughter is the unlawful killing of another,

without malice, either express or implied; which may be voluntary, as in a sudden affray; or involuntary, but when doing some unlawful act.

Arson is from ardeo, to burn, and means the malicious burning of a dwelling-house in the night time.

Robbery is from the barbarous Latin robaria, and means the taking of property from one's person by violence, or by threats of violence, and putting the person in fear of his life, or of grievous injury. Larceny is the legal term for theft of all sorts; it is derived from the Latin latrocinium, which is translated theft, or robbery.

Burglary is derived from two words, which signify theft, and dwelling-place; and means breaking, and entering a dwelling-house, in the night time, with intention to commit any felony therein.

Treason is the levying of war against the government, or conspiring to levy war against it; or adhering to public enemies, giving them aid and comfort. This crime can hardly be committed against a state, since the adoption of the national constitution.

All crimes, not capital, are punished by imprisonment for life, and hard labor and solitary confinement; or by such punishment, for years, in the state prison; or by imprisonment in the common jail, and fine; and, for still inferior offences, confinement in houses of correction, and fine; or by fine only. In such cases, the statutes fix the highest and lowest degrees of punishment, and leave the judicial courts to decide on the amount of punishment between the

two extremes.

Perjury (from perjurium) is the wilful and false swearing, when under the obligation of an oath, in any case where the public law requires a declaration of the truth under oath; subornation of perjury is the crime of procuring one to swear wilfully and falsely, in such cases. All oaths, which the public laws do not require, are, in themselves, criminal.

Forgery is a term borrowed from the fashioning or forming of any article on the anvil, and signifies the false and fraudulent making of things, or the similitude of deeds, records, notes or writings of any kind, with the intention to wrong or defraud.

Counterfeiting is commonly used to signify the making of false coins, or of false bank bills, or the fraudulent alteration of true ones. Blasphemy is derived from two Greek words, which signify speaking and impiously; and is defined, by statute, to be such speaking in relation to the Supreme Being, the Savior, or the Scriptures.

The statute laws recognize, and provide punishments for, all other crimes, the number of which is very many. They are usually classed under some one of these heads :

(1.) Crimes against the lives and persons of citizens.

(2.)

(3.)

against private property.

against public justice.

against public peace.

against chastity.

against public policy.

The crimes above-mentioned and referred to, are punishable under the authority of the several states. Some crimes, of the like nature, are punishable under the authority of the United States, and some crimes are punishable under the latter only.