hold, acquire, or transmit property; to vote at state or national elections, etc. These capacities do not belong to United States citizenship as such. Congress would transgress its powers were it to assume to make rules upon these subjects. Citizenship of the United States implies and carries with it protection at home and abroad, as will be more particularly shown in a subsequent chapter.

The power to pass rules for naturalization has been exerted by Congress from the earliest period of its existence; but of the nature and provisions of the several statutes from time to time passed by that body, we are not called upon to speak.

SECTION V.

THE POWER TO ENACT BANKRUPT LAWS.

§ 391. The next grant of power is made in the following language: "Congress shall have power to establish uniform laws on the subject of bankruptcies throughout the United States."

In considering this subject there are, as in so many other instances, two general questions to be examined, namely: (1.) The nature of the power, or, how far, if at all, may the several states exercise it; and (2) its extent, or what laws may Congress pass by virtue thereof.

I. The Nature of the Power; is it exclusively in Congress, or held also by the States?

§ 392. The question thus proposed has been so unmistakably answered by the Supreme Court; and the decisions of that tribunal have stood so unquestioned by the partisans of every theory of constitutional interpretation; and the practice of the states in accordance with these judgments has been so uniform, that I only need refer to the cases in which the rule is established, without entering into any extended statement of the reasoning upon which it is founded.

The first and leading case was Sturges v. Crowningshield 1 (1819). This case drew in question an act of the New York

1 4 Wheaton's R. 122.

legislature passed in 1811, which had the effect, under certain circumstances, to discharge a debtor from his debts. The contention was, that this statute violated the Constitution in two particulars: (1) because a state has no power to pass bankrupt laws; and (2) because it impaired the obligation of contracts. The court passed upon both these objections; but we have now occasion to refer only to the first. It appeared that there was no bankrupt law of Congress in operation, although at a former time there had been such a statute in existence. C. J. Marshall delivered the opinion, in which he said:1 "The principle laid down by the counsel for the plaintiff is undoubtedly correct. Whenever the terms in which a power is granted to Congress, or the nature of the power, require that it should be exercised exclusively by Congress, the subject is as completely taken from the state legislatures as if they had been expressly forbidden to act upon it. Is the power to establish uniform laws on the subject of bankruptcies throughout the United States of this description?" The Chief Justice then proceeded to answer this question, and came to the conclusion that states may enact such laws, provided there be no existing national legislation on the same subject. He then proceeded : 2" It has been said that Congress has exercised this power; and by doing so has extinguished the power of the states, which cannot be revived by repealing the law of Congress. We do not think so. If the right of the states to pass a bankrupt law is not taken away by the mere grant of that power to Congress, it cannot be extinguished; it can only be suspended by the enactment of a general bankrupt law. The repeal of that law cannot, it is true, confer that power upon the states; but it removes a disability to its exercise which was .created by the act of Congress." From this opinion there was no dissent.

In the subsequent case of Ogden v. Saunders, the rule laid down in Sturges v. Crowningshield was reaffirmed, and may now be considered as one of the points fully established in our public law. The construction given to the power over bankruptcies, is identical with that applied to the regulation of 1 4 Wheaton's R. 193.

2 Ibid. 196.

3 12 Ibid. 213.

commerce. These two cases were remarkable for the learning and ability displayed upon the question how far state bankrupt and insolvent laws impair the obligation of contracts, and are therefore obnoxious to a prohibitory clause of the Constitution. They will be referred to again in that connection.

II. The Extent of the Power; or what Laws may Congress pass by Virtue thereof?

§ 393. It should be carefully noticed that the Constitution employs general and somewhat peculiar language. It does not simply say that Congress shall have power to pass uniform bankrupt laws; but shall have power to pass uniform laws on the subject of bankruptcies. What are bankruptcies within the meaning of this phrase? In answering this question we are met, as at almost every other point, by the two schools of interpreters; the one giving a full, liberal, and comprehensive meaning to language; the other confining it to a strict and technical sense, construing the written organic law as though it were an ordinary statute, and thus limiting on all sides the power of the general government. The former system of in*erpretation has prevailed in this, as in most other instances; and the functions of Congress are held to be commensurate with the wants of the people. It is to be regretted, however, that no opportunity has yet occurred for this question to be fairly presented to the Supreme Court of the United States; although it has been passed upon by many or most of the cir cuit and district judges, and by several of the state tribunals, with a general uniformity of result. We must be content, therefore, to rest our conclusions upon the decisions of these somewhat inferior courts, and upon the practice of the legislature. Those conclusions are, however, abundantly fortified by the general maxims and principles of construction adopted and applied by the supreme constitutional tribunal in giving effect to other grants of power.

§ 394. The difficulty lies in the meaning of "bankrupt," "bankruptcies," and "bankrupt laws," and may be shortly stated thus: Do "bankrupt," "bankruptcies," and "bank

rupt laws," as mentioned or implied in the Constitution, refer to and include the cases of all persons who are unable to pay their debts in full, and of all laws which provide for the distribution of the effects of such persons among their creditors; or are these terms restricted to those persons who were technically known as "bankrupts," and to those laws technically described as "bankrupt laws," in the statutory legislation of England, which had been in existence for a long time prior to the adoption of the Constitution? If we go to dictionaries. and to general literature, we shall find that the words "bankrupt" and "bankruptcy," in their.ordinary acceptance, apply to all persons who are unable to pay their debts in full, and are, to all intents and purposes, synonymous with "insolvent " and insolvency." If we go to the English statutes which had been in operation for several generations, and which, with some modifications, were in force when the Constitution was framed, we shall find that the word "bankrupt" was legally defined by this ancient legislation to mean only a merchant or trader who had committed some fraudulent or quasifraudulent act in his business; and the word "bankruptcy" to mean only the fraudulent or quasi-fraudulent act thus done. by the merchant or trader; and "bankrupt laws" to have been only those statutes which enabled the creditors to proceed against such merchant or trader, divest him of his property, and distribute the same ratably in part payment of his debts.

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§ 395. Which of these significations is to be given to the words used or implied in the Constitution? "Bankrupt either means an insolvent or failing debtor, a person unable to pay his debts in full; and "bankruptcies" describes the act and condition of insolvency, and the proceedings which may be had thereon; and "laws on the subject of bankruptcies" include all legislation relating to such insolvent persons, and to the proceedings in consequence of the insolvency; or these terms are restricted to their technical sense in the ancient English statutes referred to; there would seem to be no middle ground. The substantial provisions of those statutes were as follows: When a merchant or trader was guilty of some

specified act, which was fraudulent or quasi-fraudulent in its nature, his creditors might interfere, procure him to be declared a bankrupt, his property to be transferred to trustees, and by them distributed in part satisfaction of his debts. When this was done, he might be discharged from all further liability; or might be punished by imprisonment, as the judge should think proper from the circumstances of each case. It will be noticed that these ancient English statutes did not apply to farmers, mechanics, lawyers, and other large classes of persons, but only to merchants and traders; also, that no opportunity was given for a failing debtor to proceed voluntarily and obtain a discharge from his debts, but the initiative must be made by his creditors, and all the steps were in invitum, as it were, hostile to the debtor. It is true that the English system has since been greatly changed in both these respects; but such had been its character for a long period of time, and such, with some modifications, was its condition when the Constitution was adopted.

§ 396. A certain school of interpreters have urged that, when the framers of our organic law employed a word to which the English law had given a definite and technical meaning, they are to be taken as using the term in that sense alone, and that the powers conferred are to be restricted to such as flow from this special signification of the language. They apply the rule of interpretation thus stated, to the clause relating to bankruptcies, to that conferring admiralty jurisdiction, and to many others. There can be no doubt of the partial truth of this principle. All interpreters of the Constitution, judicial or legislative, are agreed, that the technical, legal terms used in those provisions which define and guard the general rights and liberties of the citizen, are to be read and enforced in the sense given to them by the common or statutory law of England, and which was familiar to our forefathers. Among such terms may be mentioned "trial by jury," "due process of law," "treason," "habeas corpus," "bills of attainder," "ex post facto laws," "pardon," and many others. But to extend this rule of construction to all grants of legislative, judicial, or executive power, would be to cripple the energies of the people,