discriminate, who were to be deemed, in a legal sense, 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.

§ 544. How far the power of congress to pass uniform laws on the subject of bankruptcies supersedes the authority of state legislation on the same subject, has been a matter of much elaborate forensic discussion. It has been strenuously maintained by some learned minds, that the power in congress is exclusive of that of the states; and whether exerted or not, it supersedes state legislation. On the other hand, it has been maintained, that the power in congress is not exclusive; that when congress has acted upon the subject, to the extent of the national legislation the power of the states is controlled and limited; but when unexerted, the states are at liberty to exercise the power in its full extent, unless so far as they are controlled by other constitutional provisions. And this latter opinion is now

firmly established by judicial decisions. As this doctrine seems now to have obtained a general acquiescence, it is not necessary to review the reasoning, on which the different opinions are founded; although, as a new question, it is probably as much open to controversy, as any one, which has ever given rise to judicial argumentation. But upon all such subjects it seems desirable to adopt the sound practical maxim, Interest reipublicæ, ut finis sit litium.

§ 545. It is, however, to be understood, that although the states still retain the power to pass insolvent and bankrupt laws, that power is not unlimited, as it was before the constitution. It does not, as will be presently seen, extend to the passing of insolvent or bankrupt acts, which shall discharge the obligation of antecedent contracts. It can discharge such contracts only, as are made subsequently to the passing of such acts, and such, as are made within the state between citizens of the same state. It does not extend to contracts made with a citizen of another state within the state, nor to any contracts made in other states.

CHAPTER XVII.

POWER TO COIN MONEY AND FIX THE STANDARD OF WEIGHTS AND MEASURES.

§ 546. THE next power of congress is "to coin money, regulate the value thereof, and of foreign coin, "and fix the standard of weights and measures."

§ 547. Under the confederation, the continental congress had delegated to them, "the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the states," and of "fixing the standard of weights and measures throughout the United States." It is observable, that, under the confederation, there was no power given to regulate the value of foreign coin, an omission, which in a great measure would destroy any uniformity in the value of the current coin, since the respective states might, by different regulations, create a different value in each. The constitution has, with great propriety, cured this defect; and, indeed, the whole clause, as it now stands, does not seem to have attracted any discussion in the convention. It has been justly remarked, that the power" to coin money" would, doubtless, include that of regulating its value, had the latter power not been expressly inserted. But the constitution abounds with pleonasms and repetitions of this nature.

§ 548. The grounds, upon which the general power to coin money, and regulate the value of foreign and domestic coin, is granted to the national government, cannot require much illustration in order to vindicate it. The object of the power is to produce uniformity of

value throughout the Union, and thus to preclude us from the embarrassments of a perpetually fluctuating and variable currency. Money is the universal medium or common standard, by a comparison with which the value of all merchandise may be ascertained, or, it is a sign, which represents the respective values of all commodities. It is, therefore, indispensable for the wants and conveniences of commerce, domestic as well as foreign. The power to coin money is one of the ordinary prerogatives of sovereignty, and is almost universally exercised in order to preserve a proper circulation of good coin of a known value in the home market. In order to secure it from debasement it is necessary, that it should be exclusively under the control and regulation of the government; for if every individual were permitted to make and circulate, what coin he should please, there would be an opening to the grossest frauds and impositions upon the public, by the use of base and false coin. And the same remark applies with equal force to foreign coin, if allowed to circulate freely in a country without any control by the government. Every civilized government, therefore, with a view to prevent such abuses, to facilitate exchanges, and thereby to encourage all sorts of industry and commerce, as well as to guard itself against the embarrassments of an undue scarcity of currency, injurious to its own interests and credits, has found it necessary to coin money, and affix to it a public stamp and value, and to regulate the introduction and use of foreign coins. In England, this prerogative belongs to the crown; and, in former ages, it was greatly abused; for base coin was often coined and circulated by its authority, at a value far above its intrinsic worth; and thus taxes of a burthensome naAbr.

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ture were indirectly laid upon the people. There is great propriety, therefore, in confiding it to the legislature, not only as the more immediate representatives of the public interests, but as the more safe depositaries of the power.

§ 549. The other power, "to fix the standard of "weights and measures," is, doubtless, given from like motives of public policy, for the sake of uniformity, and the convenience of commerce. Hitherto, however, it has remained a dormant power, from the many difficulties attendant upon the subject, although it has been repeatedly brought to the attention of congress in most elaborate reports. Until congress shall fix a standard, the understanding seems to be, that the states possess the power to fix their own weights and measures; or, at least, the existing standards at the adoption of the constitution remain in full force. Under the confederation, congress possessed the like exclusive power. In England the power to regulate weights and measures is said by Mr. Justice Blackstone to belong to the royal prerogative. But it has been remarked by a learned commentator on his work, that the power cannot, with propriety, be referred to the king's prerogative; for, from Magna Charta to the present time, there are above twenty acts of parliament to fix and establish the standard and uniformity of weights and measures.

§ 550. The next power of congress is, "to provide "for the punishment of counterfeiting the securities and "current coin of the United States." This power would naturally flow, as an incident, from the antecedent powers to borrow money, and regulate the coinage; and, indeed, without it the latter would be deficient in