Imatges de pÓgina


efit of it narrows rapidly by lapse of time, and the period will soon arrive when there will be no statutory regulation in favour of children born abroad of American parents; and, unless one be made in season, they will be driven to resort for aid to the dormant and doubtful principles of the common law.

Aliens coming to this country with the intention of making it their permanent residence, have many inducements to become citizens. They are incapable, until naturalized, of holding a stable interest in land in many of the states ; or of holding any civil office; or of voting at elections ; or of taking any active share in the administration of the Federal or State Governments. A convenient and easy mode (perhaps too easy and convenient) has been provided by Congress for removing the disabilities of alienage ; and the terms on which every alien, be. ing a free white person, can obtain the qualifications and privileges of a natural-born citizen, are prescribed in the several acts of Congress on the subject. The right of aliens to the privileges of naturalization are, by these law's, submitted to the decision of any court of record within the United States; and, a person duly naturalized (which he may be after a residence of five years) becomes entitled to all the privileges and immunities of a natural-born citizen, except that a residence of seven years is requisite to enable him to hold a seat in the House of Representatives, of nine years to hold a seat in the Senate, and that he remains always ineligible to the offices of President of the United States and governor in several of the states. The policy of these laws have been strongly doubted by some of our wisest and best statesmen and native politicians ;

* Laws of U. S., 1802, ch. xviii. ; 1813, ch. clxxxiv.; 1816, ch. xxxii.

and every year's experience tends amply to confirm chose doubts. For a short period, during the administration of the elder Adams, the term of residence prescribed by law to entitle an alien to naturalization was fourteen years. But the passing of that law was one of the most powerful causes of the expulsion of Mr. Adams and the Federal party from the administration of the General Government; and however some of his successors may have regretted its repeal, they have been too well convinced of the difficulty of recalling a popular concession to attempt its re-enactment. There are two improvements, however, that seem equally practicable and desirable, and would go far to remedy the existing evils of the system : the one is, to render, by an amendment of the Constitution, the naturalized citizen incapable of holding any office of trust or profit; the second, to vest, by an amendment of the statutes, the jurisdiction in cases of naturalization exclusively in the Federal Courts.

VI. The power of establish uniform laws on the subject of bankruptcies” is intimately connected with the regulation of commerce ; and there are peculiar reasons why the National Government should be intrusted with this power, arising from the importance of preserving uniformity and equality of rights among the citizens of all the states, and of maintaining commerce, credit, and intercourse with foreign nations. It has been found necessary, in governments which authorize personal arrests and mprisonment for debt, to interpose and provide reliet for the debtor in cases of inevitable misfortune ; and this has been particularly the case in regard to insolvent merchants, who are frequently tempted, not obliged, by the habits, pursuits, and enterprising nature of trade, to give and receive credit, and encounter extraordinary hazards; and, besides relieving the debtor, bankrupt and insolvent laws are intended to secure the application of his effects to the payment of his debts. Bankruptcy, in the English law, has by long and settled usage received an appropriate meaning; and has been considered applicable to unfortunate or fraudulent traders, who do certain acts affording evidence of their inability to pay their debts, or of their intention to avoid it. But the line of partition between bankrupt and insolvent laws is not so distinctly marked as to enable laymen or lawmen to determine with positive precision what belongs exclusively to the one or to the other; and it is the more difficult to discriminate between them, because bankrupt laws may, and frequently do, contain regulations which are generally found in insolvent laws; and in insolvent laws, some that are common in a bankrupt law. And although bankrupt laws are generally and properly confined to the trading classes, who are most exposed to pecuniary vicissitudes, yet, as misfortune and poverty may also overtake those who pursue other occupations, the latter ought not to be excluded from the humane protection of the state legislatures. Nor, indeed, should the former, or their creditors, be left without the means of relief, in case Congress does not in its discretion think proper to exercise the power vested in them in relation to bankruptcy. This power of Congress has, accordingly, been held not to exclude the right of the states to legislate on the same subject, except where the power has been already executed by a subsisting law of Congress with which the state law would conflict.*

Whenever, indeed, the terms in which a power is granted by the Constitution, or the nature and cbar

* 4 Wheat., 122. 12 Wheat., 213

acter of the power itself, require that it should be exercised exclusively by Congress, the subject, as we have already seen, is as completely taken away from the state as if its Legislature had been expressly forbidden to act on it. But the power now in question is held not to be of this description ; and a state has a right, consistently with the provision in the Federal Constitution, to pass bankrupt and insolvent laws, provided they do not impair the obligation of contracts, and there be no act of Congress in force with which the state laws would come into collision. Nor is the right of a state to pass bankrupt laws extinguished by the enactment of a uniform law by the Legislature of the Union; but is only suspended while the law of Congress exists, and so far only as the state law might be found to conflict with it. While the act of Congress remains in force, the power of the state continues over such cases which the act of Congress does not embrace. Hence the power of passing insolvent laws, not coming within the technical description of bankrupt laws, is always in force; and from the expiration or repeal of a bankrupt-law of Congress, the ability of the state to exercise its concurrent power in regard to bankruptcy, qualified as I have mentioned, immediately revives.

The Legislature of the Union, then, possesses the power of enacting bankrupt laws, and those of the states of passing insolvent laws ;* and a state has, moreover, authority to pass a bankrupt law when no act of Congress exists on the subject with which the state law might conflict; but no state bankrupt or insolvent law is permitted to impair the obligation of contracts. There is this farther limitation upon the power of the several states to pass either bankrupt or insolvent laws-that they cannot, in the exercise of that power, act upon the rights of citizens of other states; and hence the greater necessity of investing Congress with power to establish a uniform system of bankruptcy throughout the Union; as a discharge under a state law would be no bar to a suit by a citizen of another state in the courts either of the United States, or any other state than that in which the discharge was obtained.

* Mr. Justice Story, however, observes, in reference to the case of Sturges vs. Crowninshield, that “no distinction was ever pracCically, or even theoretically, attempted to be made between bank ruptcies and insolvencies." --Comm., 1106.

It only operates upon contracts made within the state : between its own citizens or suitors subject to state powers.* And it is a principle of universal law, that the municipal law of the state is the law of the contract made and to be executed within the state, and that it travels with it, wherese ever the parties to it may be found ; unless it refer to the law of some other country, or be immoral, or contrary to the policy of the country where it is sought to be enforced ; and, consequently, the discharge of the contract, or of the party where the contract was made, is a discharge everywhere. But a discharge under a state law is no bar to a suit on a contract not existing when the law was passed; as the exercise of the power remaining in the states to pass bankrupt and insolvent laws does not, in the sense of the Federal Constitution, impair the obligation of posterior contracts, but only of those made antecedently to the law.

The first bankrupt law passed by Congress pursued strictly the power vested in that body, and was in its terms confined to merchants and traders. It was but a few years in operation, and was suffered to expire by its own limitation. Nor was any attempt made

* 12 Wheaton, 213.

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