script of the record from the Circuit Court of the United States for the Southern District of New York, and on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel; on consideration whereof, it is the opinion of this court: 1st. That the transcript from the books and proceedings of the treasury, given in evidence on the part of the United States, to show the indebtedness of Samuel Swartwout on the 28th day of March, 1834. on which day the second term of office of said Swartwout expired, was, in this case, competent and legal evidence. 2d. That the payments made by said Samuel Swartwout subsequently to the said 28th day of March, 1834, should be appropriated in discharge of his indebtedness on that day, so far as said payments were made, in the subsequent term, of moneys received on duty bonds or otherwise, which remained charged to the collector as of the preceding official term; but not where such payments were made of moneys accruing and received in the subsequent term. Whereupon it is now here ordered and adjudged by this court that it be so certified to the said Circuit Court. Cited 7 How., 689, 691; 10 How., 133; 13 How., 485; 19 Wall., 213; 10 Otto, 11; 1 Wood. & M., 167, 168. this certificate is, whether the Supreme Court have jurisdiction in the matter in this form of proceeding. And after examining the printed argument filed by the counsel for the petitioner. and carefully considering the subject, the court are of opinion that the District Judge cannot sit as a member of the Circuit Court, upon questions adjourned to that court, under the Act to establish a uniform system of bankruptcy throughout the United States ;" and that, consequently, the points adjourned cannot be brought before this court by a certificate of division. Nor will an appeal or writ of error lie from the decision of the Circuit Court; and it is conclusive upon the District Judge. In delivering the opinion of the court, it is, however, proper for me to say, that I dissent from that part of it which excludes *the [*266 District Judge from sitting as a member of the Circuit Court in a case of this description. Yet I concur in the judgment dismissing these proceedings; being of opinion that the Act of Congress of 1802, authorizing the certificate of division where the judges of the Circuit Court are opposed in opinion, does not apply to the peculiar and summary jurisdiction directed to be exercised in cases of bankruptcy. The proceedings must therefore be dismissed for want of jurisdiction. Mr. Justice CATRON dissented. On a petition for a discharge, the District Judge adjourned into the Circuit Court the question: Whether the Act of 1841, establish 265*]*WILLIAM NELSON, A Petitioner in ing a uniform system of bankruptcy, was con Bankruptcy. Mr. Chief Justice TANEY delivered the opin ion of the court: In the case of William Nelson, petitioner in bankruptcy in the Kentucky District, against Daniel Carland, an opposing creditor, several points were adjourned by the District to the Circuit Court. Upon the hearing in the lastmentioned court, the District Judge as well as the Justice of the Supreme Court, sat in the case; and being opposed in opinion upon the questions adjourned, they were certified to this court upon the motion of the counsel for the petitioner. The first question that presents itself upon stitutional, or otherwise. The judges were divided in opinion on the question, and a certificate of division was made to the Supreme Court; calling upon this court to decide the question, and return it so decided, to be entered as the judgment of the Circuit Court. Circuit Court any question, whether he has, or The District Judge may adjourn into the has not, doubts regarding its decision. Its importance is a sufficient reason. That he properly adjourned the question, whether the bank rupt law was or was not constitutional, is free from doubt. Of this question, the Circuit Court had full and proper jurisdiction; and the decision of it would have been conclusive of the case before us. Was it a question" on which the judges could divide in opinion? The Act of April 29, 1802, provides: “That whenever any question shall occur before a Circuit Court, upon which the opinion of the judges shall be opposed, the point upon which the disagreement shall happen, shall during the same term, upon the request of either party, or their counsel, be stated under the direction of the judges, and certified under the seal of the court, to the Supreme Court, at their next ses sion to be held thereafter; and shall, by the said court, be finally decided. And the decision of the Supreme Court, and their order in the premises, shall be remitted to the Circuit Court, and be there entered of record, and shall have effect according to the nature of the said judgment and order: Provided, That nothing herein contained *shall prevent the [*267 cause from proceeding, if, in the opinion of the court, further proceedings can be had with out prejudice to the merits.' 1843 44 NELSON V. CARLAND. question shall The act declares, when any occur before the Circuit Court," &c., then, on a division, a certificte shall be made at the request of either party. No matter in what form of proceeding it occurs, be it at law or in equity; divisions are nearly as frequent in causes in Under the Bankrupt Law, equity as at law. the proceedings are in the form prescribed to courts of equity. Now, "did a question occur" in the Circuit Court? It must be admitted that one of the gravest occurred that could be presented to a Court of justice: there it was to be decided, and the case concluded by its decision. The judges were opposed, and it could not be decided: then it was their duty, at the request of either party, to send it to this court, to decide for the Circuit Court; where the decision of the Supreme Court is to be entered as the judgment of the Circuit Court. So far the case presented seems to be sufficiently clear: but it is met by another consideration; and that is, whether the Circuit Court, in a question adjourned under the 6th section of the bankrupt law, consists of the two In all jadges, or of the circuit judge only. other cases, in the circuit courts of the United States, except in writs of error and appeals from the District Court to the Circuit Court an exception made by positive legislation), the two judges have equal powers-they constitute the Circuit Court usually; and must do So when a division takes place: does the Bankrupt Law cut off these powers of the district judges? The law does not so provide; If the District and can it be justly inferred? Judge cannot be a member of the court on the hearing of the adjourned question, then no diTo come at vision of course can take place. the inference of his exclusion, the intention of Congress must be ascertained from the whole Scope of the act. struction. be brought here by a division of opinion: it Great questions were involved in its conIt was to be administered by more than thirty judges, acting separately; no appeal to the Circuit Court was allowed, save in a single case: that of a refusal to finally discharge the bankrupt from his debts (sec. 4); and then the Circuit Court is commanded, if the bankrunt shall be found entitled to the benefits of 268*] the act, "to make a decree of discharge, and grant a certificate, as provided in this act." No appeal is allowed to this court from the decree of the Circuit Court: the creditor is not allowed an appeal, either from the District Court to the Circuit Court, or to the Supreme Court in any case. Nor is the debtor allowed an appeal from the decree of the Circuit Such is the Court, refusing his discharge. unanimous opinion of my brethren now presIf the ent; and with which opinion I concur. discharge is objected to by the creditors, and The District Court refuses it, the debtor may then demand a trial by jury, and try the matter over again: if the jury decides against him also, he may then appeal to the Circuit Court, and there elect to submit the matter a third time, either to the court, or to another jury; and this finding is conclusive, whether by the court or a jury. It is not possible, therefore, to reach this court by appeal, in a bankrupt case. This is clear; and my brethren think it equally clear, that no adjourned question can In the case of William Nelson, the question occurred in the same court, whether the bankrupt law was unconstitutional and void, or otherwise. It was adjourned, as already stated, into the *Circuit Court by the [*269 District Judge; and there the judges were opThis was done at posed in opinion, and certified the question to this court for its decision. the instance of the bar of St. Louis; the District Judge of Missouri having pronounced the Bankrupt Act a mere insolvent law; such as The followwas never contemplated by the framers of the Constitution, and therefore void. ing are some of his reasons for entertaining this opinion: "Is this act of Congress, under which the In order to petitioner claims a discharge from his debts, authorized by the Constitution? determine this, it will be necessary to notice several of its provisions. It provides, in substance, that any person, whether a trader or not, who is indebted, except in a few enumerated cases, may file his petition in the District Court of the United States, for the benefit of the act, at any time he may please, without the consent or action of any of his creditors, and obtain by a decree of the court, a discharge from all his debts. This decree is to be had without the consent of any of his creditors being required, even if they do not participate in the proceedings or receive a The decree is to dividend from the property. be deemed a full and complete discharge from all his debts, contracts and engagements, proveIf he has propable under the act, whether contracted before it is the or after the passage of the act. erty, he surrenders it; if he has none, same thing as it regards his discharge. In examining this question, we should ascertain. if possible, what was the object the convention had in view by inserting the provision. The phraseology adopted would indicate a part of the object: To establish uniform laws on the subject of bankruptcies throughout the United States.' It was appre127 hended, at least, that they would not be uniform, unless Congress had the power to make them so. In addition to this, we are told by Mr. Madison (Fed., No. 42) that the power of establishing uniform laws of bankruptcy, is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of it seems not likely to be drawn into question. To have a system that would be uniform and would prevent frauds, &c., seems to have been the object. The proposition was 270*] *referred to the committee of detail, of which Mr. Rutledge was chairman, and reported as it now stands in the Constitution. In ascertaining what were the mischiefs to be remedied or the objects to be effected, the convention, doubtless, looked to the condition of things, and of course to the institutions and laws of the various States. But for a definition of that or any other legal term, or to ascertain the nature and extent of the powers they were about to grant, by particular words or phrases, they would hardly look to the laws of the States. There was far less intercourse in those days than at present. There were no steamboats, railroads, or Macadamized roads. The laws of the several States could not have been generally known to the members of the convention from the different States, even the best lawyers could not have been acquainted with the laws of the States in which they did not practice. They are not so, even at this day. If they had been acquainted with the laws of all the States, to which would they have referred in preference to all the rest, for definitions, or the meaning and extent of legal terms? The convention well knew it was making a Constitution for the whole Union; that the terms they might use should be known and understood, and must be interpreted and explained in every State. They were, therfore, exceedingly exact in the use of words and phrases: every word of legal import, every phrase was weighed and considered; and a phrase of only a few words was frequently referred to a committee, as was done in this case, and examined and reported on. They were frequently obliged to use legal terms; they were making a law; this was a legal termbankrupt laws; what was to be done to prevent confusion and uncertainty? And above all, to mark exactly and with legal precision the extent of the powers they were about to grant, that neither more nor less power might be granted than was desired? "Our ancestors had removed from England; the United States had then lately been English colonies and part of the British empire. The English laws and system of jurisprudence had been substantially adopted in every State in the Union. Every person at all conversant with legal subjects, and every lawyer, of course, was acquainted with the English laws. This 271*1 knowledge *was equally extensive in every State. It is so to this day. Here, then, was a law with which all were acquainted, and to which all could refer. There could be no mistake, if reference was made to it for the meaning of terms. And to it they did accordingly refer. We do so to this day. Ask a lawyer the meaning of a legal term, and where does he look for an answer? To the statutes of Massachusetts or Georgia-New York, Pennsylvania, or Virginia? Certainly not. In most instances he would look in vain. The proposition in regard to bankruptcies was made by Mr. Charles Pinkney, of South Carolina; in the words we now find in the Constitution. It was referred to the committee of detail, consisting of Mr. Rutledge, of South Carolina; Mr. Randolph, of Virginia; Mr. Gorham of Massachusetts; Mr. Ellsworth, of Connecticut; and Mr. Wilson, of Pennsylvania; and they reported it in the words in which it was referred. Now, several of these States never had anything like a bankrupt law. To which then did they refer, or could they refer, to ascertain the meaning and extent of the terms they were employing? The lawyer, if he is not familiar with the term, will refer to Blackstone's Commentaries, or to an English Law Dictionary, where he will readily find it. If he referred to the statutes of the different States, he might get as may definitions as there were States, supposing they had any law on the subject. "The first Continental Congress, in 1774, declared, among other things, that the respective colonies were entitled to the benefit of such of the English statutes as existed at the time of their colonization, and which they had, by experience, found to be applicable to their several local and other circumstances.' (1 Journal of Congress, 28, Phila. ed. of 1800.) "Many of the States had adopted, in a body, the English statutes, only excepting such as were local to that kingdom, or not applicable to their situation. "The Supreme Court of the United States, in Patterson v. Winn (5 Peters, 233), say that the English statutes passed before the emigration of our ancestors, and applicable to our situa tion, and in amendment of the law, constituted a part of the common law of the country.' "We know, as matter of history, that the members of the convention *who took [*272 part in debate, were intimately acquainted with the English laws. The committee above mentioned possessed several of the most eminent lawyers in America, and who have held the highest legal stations. Reference was often made by them to the English laws for the meaning of terms or phrases they were using. Thus, when it was proposed to define and limit treason against the United States, Mr. Randolph and Mr. Ellsworth (two of the committee), Mr. Madison, Mr. Mason, and Mr. Gouverneur Morris, all referred to the Act of Parliament of 25th Edward III.; and the convention, at last, adopted the precise phraseology of that act. (Madison Papers, 1770.) Again, when the phrase ex post facto was under consideration, Mr. Dickerson stated that, on examining Blackstone's Commentaries, he fond the term related to criminal cases only. (Mad. Pap., 1450.) And the Supreme Court has since confirmed the signification of the terms to the definition given by Blackstone. Mr. Hamilton, who was a member of the convention, in speaking of the habeas corpus provision in the Constitution, refers to, and quotes, Blackstone's Commentaries. (Fed., No. 84.) This general principle being established, we may go a step farther, and show that, in point of fact, the convention had the English statutes 1843 tion. NELSON V. CARLAND. In view, in determining the nature and extent | It is the Act of Congress of 1800, To estab- "Mr. Sherman observed that bankruptcies were, in some cases, punishable with death by the laws of England, and he did not choose to grant a power, by which that might be done bere.' (3 Mad. Pap., 1481.) It thus appears. that the laws of England were the laws referred to in regard to the definition and nature of the powers they were conferring. "It may also be remarked, that Blackstone's Commentaries were in the hands of the members, and frequently referred to. This book contained a definition of a bankrupt, and a Summary of the English laws on the subject. What, then, was the English law to which the convention referred when they adopted the clause in regard to bankrupts? The English system, when the convention sat, had been in operation for several generations; and provided, in substance, a proceeding by a creditor against debtor, who was a trader; distribution of 273] bankrupt's effects *equally among his creditors; a discharge to be obtained by the debtor from his debts, upon obtaining the conent of a given majority of his creditors. "It was a proceeding for the benefit of creditors, as are all laws for the collection of debts, of which this was one; but with liberality towards the debtor, who, by misfortunes so frequently attending trade, became unable to pay his debts, in allowing him a discharge from hose debts, upon obtaining the consent thereto of a given majority of his creditors. Even this provision for a discharge, we are told by Blackstone, was intended for the benefit of creditors, as it influenced debtors to act with economy, industry, and honesty, and make a full surrender of their property, without which they eculd not hope to obtain the consent of their creditors. "The whole system was founded on the principle, that a trader, who owed debts in various parts of the country, and was fraudalently making way with his property, instead of paying his debts with it, should have that property taken away and placed in the hands of trustees or other officers, with which his debts should be paid, and each of his creditors, whether absent or present, have his fair divi dend. "We are told by Mr. Madison, who has, not inaptly, been called the Father of the Constitution, that a uniform system of bankruptcy would prevent so many frauds, when the parties, or their property, may lie or be removed into different States, that the expediency of it seems not likely to be drawn in question.' (Fed., No. 42.) This reason for the adoption of the clause in regard to bankrupts was pubished by Mr. Madison after the Constitution was proposed by the convention, but before it was adopted by the States; was intended to explain the grant of power to Congress, and to induce the States to accept the Constitution; and no doubt had its effect. The frauds of whom the removal of whose property, are here spoken of? Certainly the frauds of the debtor-the property of the debtor. "We have another almost contemporaneous exposition of this grant of power to Congress. "I have now, I think, shown that the bankrupt system intended by the framers of the Constitution, and to establish which, power was given to Congress, was a system for the benefit of creditors, to enable them to collect their just debts, and to prevent the frauds of debtors who might remove their property and themselves into different States. "I will now show that the act we are considering is solely and entirely for the benefit of debtors, and to enable them to avoid their debts; and therefore opposed to the whole intent, spirit, and object of a bankrupt law. For this purpose I will here further notice some of its provisions "1. The debtor selects his own time to com. mence proceedings-when he may have entitely squandered his property, and when nothing can be found. It is not even necessary that he should have been sued, or threatened with a suit, or ever asked for the debt. "2. He is allowed to select the State and county where he will commence proceedings. For this purpose he can change his residence or business to any place he may think most favorable. He can thus go where nobody is likely to detect his frauds. "3. He may have spent all his property in idleness, riotous living, debauchery, or gambling in stocks, or wild speculations: it will not affect him; and he is entitled to his discharge, equally with the most prudent, industrious, and economical person. "4. If he does not surrender to his creditors one cent's worth of property, he may have property reserved to him, to the amount of $300, for his own use; and also his wearing apparel, and that of his family, which has been held, by some, to include jewelry. 5. If a majority of his creditors should object to his discharge, it will only give him an additional privilege-that of demanding a jury, and taking the cause away from the court. Or he may appeal, even before the cause is tried, and is allowed ten days to appeal in. No such privileges are given to creditors. 6. After the court disposes of the matter, or decides the cause against him, and refuses the discharge, he can then have it referred to a jury, although already tried and decided by the court, *which, heretofore, has never [275 been allowed in any case, either in law or equity. The creditor is allowed no such privilege. 7. In such cases, no provision is made by the act to allow the creditors a trial by jury. 8. An appeal is given to the debtor-none is allowed by the act to a creditor. The cred "9. When the cause is removed into the appellate court, the debtor can demand either a trial by jury or a trial by the court. itor has no such privilege. "10. The debtor may take the chance of a 129 9 decision in his favor by the court; if in his favor, it will be conclusive. If the court decides against him, then he may demand a jury, and have another chance. If the court decides against him, he can have another chance by appeal. In the appellate court, if he thinks the court is likely, from previous decision, to be against him, he can take the chance of a jury. If he thinks the jury is likely to be against him, he can take his chance with the court. If some of these chances do not hit, there is no uncertainty in the law.' The creditor has no choice; any decision against him is to be final, and scarcely any in his favor is allowed to be final or conclusive. 11. The English bankrupt law and the Act of 1800 gave the appointment of the assignee to the creditors, because they alone were interested. No such privilege is given by this act. 12. The commissioner is to be appointed in the county where the bankrupt lives. "13. There is no punishment for frauds. "14. To conclude, the debtor is to get a discharge from all his debts, without the consent of any creditor. It applies to debts contracted before the passage of the act, and of which creditors could have had no idea at the time they gave the credit. "May I not here inquire, whether it is fair to construe this grant of power, intended for the benefit of creditors, and to enable them to collect their just debts, so as to authorize the passage of a law solely for the benefit of debtors, and to enable them to avoid and discharge their debts? 66 Again: a clause had been introduced into the Constitution prohibiting the States from passing any law impairing the obligation of contracts, because, as was said by the members 276*] of the convention, it was immoral, contrary to the first principles of justice, and a power that ought not to be exercised by any legislative body. Would the States have ratified the Constitution, and submitted to such a prohibition on themselves, for such reasons, if they had understood that Congress could, at its pleasure, under color of bankrupt laws, author ize the abrogation of all contracts? and assistance of the Circuit Judge: and, 2. To make up a division of opinion on great questions, so that the decision of the Supreme Court might be had. This was contemplated by Congress; or it was intended that in no bankrupt case should this court have a revising power, although in every district in the United States the law might be differently construed: and the wildest prediction could hardly have exceeded the reality. So far from being "a uniform system of bankruptcy," in its administration, it has become, by the various and conflicting constructions put upon it, little more uniform than the different and conflicting State insolvent laws. This result could not have escaped those who passed the law; it was too prominently manifest to be overlooked; I cannot, therefore, bring my mind to the belief that the revising power of this court was intended to be cut off. And, as the most expeditious and convenient mode of revision was by a division of [*277 opinion, I think Congress intended that should be the mode. Notwithstanding the question was sent to this court, the case might progress below at the election of the District Court; so the recited Act of 1802 provides; and then the creditor. and debtor would have equal opportu nities to redress a perverted construction. But, as the matter now stands, the remedy is with Congress, either to give this court jurisdiction, or to withhold it. ORDER. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Kentucky, and on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that this cause be, and the same is hereby dismissed, for the want of jurisdiction; and that this cause be, and the same is hereby remanded to the said Circuit Court, for such proceedings to be had therein as to law and justice may appertain. Cited-3 How., 323; 13 How., 11; 5 Bank. Reg., 102; Pursuant to the opinion, decrees were entered. 9 Bank. Reg., 54; 11 Bank. Reg., 195. dismissing the first cases presented for final discharges in the District of Missouri; and some twelve hundred more, depending in that court, will be dismissed, unless the decrees are re versed which have been entered. thought, by the Circuit Judge, due to the county at large, and to the parties concerned, that this important question should meet with the speedy decision of this court; and therefore it was brought here. While this volume was in press, we received the following opinion delivered by Judge Catron in his judicial district, which we insert as being of general interest. It was No law that Congress ever passed, has in it to a greater degree the elements of various construction and confusion, than the bankrupt law of 1841, when administered by more than thirty judges, acting separately; if all are exempt from the revising power of this tribunal, created for the purpose (amongst others) of producing uniformity of decision and construction in all cases over which its jurisdiction ex tends. I think Congress intended, by the 6th section of the bankrupt law, to give the District Judge the power to adjourn questions into the Circuit Court, 1. For the purpose of obtaining the aid IN THE MATTER OF EDWARD KLEIN. This is an appeal from the District Court of Mis souri, in a case of bankruptcy, on the voluntary petition of the appellant, to be discharged from his debts, on the surrender of his property, according to the Act of Congress of 1841. The proceeding for his discharge. The District Court refused to being in all respects regular, the petitioner moved grant such motion, "because it considered the act of Congress under which said Klein asked to be disConstitution of the United States, and therefore charged from all his debts, as being against the the court had no power to grant such discharge." called upon to revise. I am relieved from setting The ground of this judgment the Circuit Court is forth at any length the opinion of the District Judge, because this has been already done, in an opinion delivered by me in the Supreme Court of the United States at its last term, when an attempt was made to bring the present question before that court to have it decided for the purposes of this case. By the Constitution, Congress is vested with power "to establish uniform laws on the subject of bankruptcies throughout the United States." The District Judge was of opinion that the extent |