neither vote, nor hold office, nor act as jurors. In many of the States they cannot hold real estate. But in Ohio, and in the new States generally, this disability is expressly removed, in order to encourage the settlement of the country. In regard to personal property, their legal capacities are the same everywhere as those of citizens, while they are friends. But in case of war their condition is at once changed. The persons and property of alien enemies are at the mercy of government, which, by the law of nations, may detain the one and confiscate the other. All trade and intercourse with them are illegal, and all contracts utterly void. The theory is, that a war between two nations is a war between all the individuals of these two nations; who are, therefore, to be regarded as personal enemies, and incapable of intercourse. This is abhorrent to all the good feelings of our nature. And, fortunately, the evils which would result from the rigorous enforcement of so barbarous a doctrine, are greatly mitigated by means of the power inherent in government, to grant passports, safe conducts, and licenses to alien enemies, for the protection both of their persons and property. In fact, aliens, whether friends or enemies, have always been treated, in this country, with peculiar favor. Our vast public domain affords them a cheap freehold on their first arrival; and our easy terms of naturalization enable them in five years to acquire the proud title of American citizens. The fear is, that in our eagerness to open an asylum to the oppressed of other climes and to increase our population beyond all former example, we have been too liberal in the inducements held out to immigrants. It is, indeed, becoming a momentous question, whether more time should not be required to educate and prepare them for the high responsibilities of citizens of a free government. Yet, when we reflect upon the fate of the celebrated alien law of 1798, we have little reason to hope for any change in this feature of our policy. This law merely authorized the president to order out of the country such aliens as he should consider dangerous to its peace and safety, under severe penalties for disobedience. And yet it was immediately cried down, and now forms a standing topic of opprobrium.

$55. Power as to Bankruptcy. (a) The words are, "Congress shall have power to establish uniform laws on the subject of bankruptcies throughout the United States." This power is intimately connected with that of regulating commerce; for bankrupt laws most particularly affect merchants and traders; though they may be made to include all insolvent persons. The leading objects of a bankrupt law are four: First, to compel an equal distribution of the effects of the bankrupt among his creditors without prefer

(a) See Mad. Pap. 1481; 2 Black. Com. ch. 31; 2 Story, Const. § 1106; 2 Kent, Com. 389; and the 5th and 6th volumes of the Law Reporter, containing numerous decisions upon the act of 1841; 1 West. Law J. 143; Chapman v. Forsyth, 2 How. 202; 2 Parsons on Contracts, 588. There is a full discussion of the law of bankruptcy and insolvency in this country in the tenth chapter of the second volume (pp. 579-682) of Prof. Parsons's valuable treatise referred to. Bump on Bankruptcy.

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ence, in proportion to their claims; for which purpose the law defines what shall be considered acts of bankruptcy; and from the moment of committing one of these acts, the power of the bankrupt over his property is at an end, and the commissioners are appointed to take possession and settle with the creditors. Secondly, to exempt not only the person of the bankrupt from imprisonment, but also his future acquisitions from liability for his then existing debts; for which purpose the creditors are compelled to take their respective portions of his effects, in full discharge and satisfaction of their claims. Thirdly, to promote honesty; for which purpose not only is the discharge made dependent upon the honesty of the bankrupt, but severe penalties are annexed to dishonesty. Fourthly, to encourage future efforts; for which purpose if all is found to have been fair and honest, not only is the bankrupt released from future liability for past debts, but he is allowed a small sum out of the wreck of his fortune, with which to begin the world anew. Such are the general features of a bankrupt law; and their humanity and equity would seem sufficient at once to commend them to every mind. The wonder is, that Congress should have so long slept over a power which might be so beneficially exerted. In 1800, a bankrupt law was enacted; but three years after, before a fair experiment could be made, it was repealed. Another bankrupt law, passed in 1841, shared a similar fate in a year after it took effect. (a) The States, therefore, have been compelled to take the matter into their own hands; and several of them have enacted bankrupt laws. For some time the constitutionality of these laws was doubted; but it was finally decided that the power is not vested exclusively in Congress. (b) If there be a bankrupt law of Con

(a) In 1867, Congress again passed a bankrupt law, which is now in force. It provides for the appointment of one or more registers in bankruptcy, in each congressional district, to assist the judge of the district court. They are nominated by the chief justice, and confirmed by the district judge. Ordinary proceedings are conducted before these registers, who certify questions of difficulty arising before them to the judge for decision. Appeal lies from such decisions to the circuit and thence to the supreme court. Any bankrupt may apply himself for the benefit of this act, in which case it is termed a voluntary bankruptcy; or any creditor of any person may, upon the commission of certain specified acts by his debtor, or upon any intention being shown of defrauding his creditors, institute proceedings against such debtor, in which case it is termed involuntary bankruptcy. As soon as the creditor is adjudged a bankrupt under either form of proceeding, he is divested of all his property, which is conveyed by the register to an assignee appointed by the creditors or the court. The assignee holds the property for the benefit of all the creditors, except certain exempted articles not to exceed a certain value, which he reconveys to the debtor. After Jan. 1, 1869, no disc arge can be granted to any bankrupt who does not pay at least fifty per cent of his liabilities. This act went into operation June 1, 1867. For further information on this subject, see Hilliard on Bankruptcy; James on Bankruptcy.

(b) In Sturges v. Crowninshield, 4 Wheaton, 122, a note was made in New York to a citizen of Massachusetts, before the passing of a bankrupt law by the legislature of New York, the effect of which was to liberate both the person and property of the debtor from all future liability for prior debts. The maker of the note was sued in Massachusetts, and there pleaded his discharge under the law of New York. The circuit court were divided in opinion, and the case was certified to the supreme court. The question submitted was, whether the law of New York impaired the obligation of the contract, within the meaning of the prohibition. The court decided that it did.

gress in operation, the States cannot contravene its provisions. But until this be the case, they may pass bankrupt laws, provided

A contract is an agreement in which a party undertakes to do or not to do a particular thing. The law binds him to perform his undertaking, and this is the obligation of his contract. Any law which releases this obligation in whole, or in part, must, in the literal sense of the word, impair it. Such was the law of New York, for it gave an absolute discharge from all future liability. Parties, when they contract, have in view, not only present property, but future acquisitions. Industry, talents, and integrity constitute a fund which is as confidently trusted as property itself. Future acquisitions are, therefore, liable for contracts, and to release them for ever from this liability, impairs their obligation. But insolvent laws, which merely release the person of the debtor from imprisonment, and not his after-acquired property from liability, would not impair the obligation of contracts. The court did not seem to rest their decision upon the important fact that the note was made before the passing of the bankrupt law. They guarded their opinion by these words: "This opinion is confined to a case in which a creditor sues in a court, the proceedings of which, the legislature, whose act is pleaded, had not a right to control; and to a case where the creditor had not proceeded to execution against the body of his debtor, within the State whose law attempts to absolve a confined insolvent debtor from his obligation." In Ogden v. Saunders, 12 Wheaton, 213, the facts were these: The acceptor of a bill, at the time of accepting, resided in New York, and the payee in Kentucky. After accepting the bill, he removed to Louisiana, and was there sued on his acceptance. He pleaded his discharge under a bankrupt law of New York, which existed prior to his accepting the bill. This case, it will be seen, differs from Sturges v. Crowninshield in this, that the law was made before the contract; and from McMillan v. McNeil, 4 Wheaton, 209, in this, that the discharge was had under the law of the State where the contract was made. The court, therefore, were not bound by either of the foregoing decisions. The question was, whether a State bankrupt law impaired the obligation of posterior contracts entered into in that State. And it was decided, four judges against three that it did not. The ground they took was, that where a contract was entered into, after the passage of a law relating to it, between parties subject to that law, that law is incorporated into the contract, and becomes one of its terms. It cannot, therefore, be said to impair its obligation. The meaning of the prohibition must be understood, as if the words had been, no State shall pass any law impairing the obligation of prior contracts. The intention was by this prohibition to guard against retroactive laws in relation to contracts, in the same manner as by another, to guard against retroactive laws in relation to crimes. Accordingly, statutes of usury, which affect the validity of contracts; statutes of frauds, which affect the evidence of contracts; and statutes of limitation and bankruptcy, which affect the remedy on contracts, would all be constitutional as to posterior contracts, and unconstitutional as to prior. The other question raised was, whether the discharge of a debtor under a State bankrupt law would be valid against a creditor belonging to another State, who has never voluntarily submitted himself to the laws of that State, otherwise than by the origin of his contract. In the present case, the payee of the bill, as well as the drawer, were citizens of Kentucky. And the court decided that a discharge under a State law would not discharge a debt due to a citizen of another State. The report of the whole adjudication on both points, the court stated in the following words: "As between citizens of the same State, a discharge of a bankrupt by the laws of that State, is valid as it affects posterior contracts; but as against creditors who are citizens of other States, it is invalid as to all contracts. Five years before this decision was made, our supreme court came to the same conclusion, in the case of Smith v. Parsons, 1 Ohio, 236, where a most convincing opinion was pronounced by Judge Burnet. Still earlier, the supreme court of New York held the same doctrine in Mather v. Bush, 16 Johns. 233. The only opposing authority I have found, is the case of Blanchard v. Russell, 13 Mass. 1. This is directly contradictory on the last point above taken, as to the residence of the creditor, all the material facts being precisely the same as in Ogden v. Saunders. But this case arose before the question was discussed in any of the cases before mentioned. On the first point, as to impairing obligations, the decision was the same as above. To what extent State legislation on remedies existing when the contract was made is constitutional, see Bronson v. McKensie, 1 How. 311; McCracken v. Hayward, 2 id. 608; Rockwell . Hubbell, 2 Doug. (Mich.) 197; Bronson v. Newberry, id. 38; Mundy v. Monroe, 1 Mann. (Mich.) 68; Quackenbush v. Danks, 1 Denio, 128; s. c. 3 id. 594; 1 Comst. 129; Morse v. Goold, 1 Kernan, 282; Conkey v. Hart, 4 Kernan, 22; Falkner v. Dorman, 7 Wis. 388; Vedder v. Alkenbrack, 6

they do not violate another constitutional provision, which prohibits them from " impairing the obligation of contracts." In relation to this provision, the decisions amount to this: that between citizens of the State where the law is made, it is valid as to posterior contracts, and invalid as to prior; but with respect to citizens of other States, it is invalid as to all contracts. It is obvious, therefore, that no consent among the States, if that were practicable, can supply the want of a general bankrupt law for the whole Union. In this State, no movement has ever been made towards a bankrupt law. There is a provision in our bill of rights, declaring that "No person shall be imprisoned for debt in any civil action on mesne or final process, unless in case of fraud." And Congress, in 1839 and 1841, adopted the legislation of the States, as to process issuing from the federal courts, in reference to imprisonment for debt. In the spirit of these provisions we have "an act for the relief of insolvent debtors," by taking the benefit of which, any insolvent person may secure himself against imprisonment for any debt then existing. The condition of this exemption is, that he make an honest assignment of all his property for the benefit of his creditors. We also have another law, which in a measure abolishes the preference of one creditor to another by an assignment of property in contemplation of insolvency, by declaring that such assignment shall enure to the general benefit of all the creditors. This is the nearest approach we have made towards a State bankrupt law.

$56. Power as to the Currency. (a) Congress has power" to coin money, and regulate the value thereof, and of foreign coin:' also," to provide for the punishment of counterfeiting the securities and current coin of the United States; " and "no State shall coin money, emit bills of credit, or make any thing but gold and silver coin a tender in payment of debts." The force and importance of

Barb. 327; Gardenhire v. McCombs, 1 Sneed, 83; Thorne v. San Francisco, 4 Cal. 127; Bacon v. Howard, 20 How. 22; Bank of Alabama v. Dalton, 9 id. 522; Bugbee v. Howard, 32 Ala. 713; Coosa River Steamboat Co. v. Barclay, 30 id. 120. A certificate of discharge under the insolvent laws of a State, is a bar to an action on a contract between two citizens of that State, though made and to be performed in another State. Marsh v. Putnam, 3 Gray, 551. It was held in Massachusetts, that a discharge under its insolvent laws is a bar to an action by a citizen of another State, on a contract which, by its express terms, is to be executed in Massachusetts. Scribner. Fisher, 2 Gray, 43; Burrall v. Rice, 5 id. 539. See Whitney v. Whiting, 35 N. H. 457. Contra, Poe v. Duck, 5 Md. 1; Potter v. Kerr, id. 275; Pugh v. Bussell, 2 Blackf. 394; Donelly v. Corbett, 3 Selden, 500. See 2 Parsons on Cont. 595. But a debt due to a citizen of another State is not barred where there is no express stipulation that it is payable in Massachusetts. Savage v. Marsh, 10 Met. 594; Fiske v. Foster, 10 id. 597; Dinsmore v. Bradley, 5 Gray, 487; Houghton v. Maynard, 5 id. 552.

(a) The provisions relating to coin occasioned no debate in the convention. Mad. Pap. 1343. But a proposition to authorize Congress to emit bills of credit was rejected by a vote of 9 to 2. The reason assigned in debate was a decided hostility to paper-money-id. 1343-6. The same sentiments were expressed upon the proposition to prohibit the States from emitting bills of credit, which was carried by a vote of 8 to 1-id. 1442. On the whole, it seems quite clear that the convention intended to prohibit paper money in every shape. For an account of the coins current in this country, see American Almanac for 1835.

these provisions will be best understood by first adverting to the nature and functions of the currency or circulating medium. In civilized life no individual produces exactly what he consumes. The division of labor, ever extending as society advances, makes a countless multitude contribute to the wants of each. But this is not done gratuitously. Each gives something in exchange for what he receives. Thus all the productions of human labor are incessantly passing from hand to hand, in an endless process of distribution. But how shall these changes be effected? Barter alone will not suffice. Occasionally, I may have a commodity which you want, and you one which I want, so that we can make a direct exchange. But even in this case, we should want some known measure of value; and, in all other cases, we should also want a medium of exchange. In a word, society requires, for facilitating exchanges, some convenient thing of universal notoriety, which every one will take for what he has to sell, both as measuring its value and paying for it. Such are the properties of what we call money; which, by universal consent, has become the measure of value and the medium of exchange in all the transactions of life. And what substance possesses the properties requisite for money in the highest degree? The voice of ages has decided in favor of the precious metals, gold and silver. First, because a great value can be comprised in a small bulk, which is not the case with baser metals. Secondly, because they waste very little with using; it having been computed that gold in circulation does not lose more than one-hundredth in twenty-five years, and silver about half that amount. Thirdly, because they are little liable to fluctuation in value. Value is affected chiefly by the cost of production and the regularity of supply. Since the discovery of America, neither of these elements of value has perceptibly changed. (a) The annual supply from all the known mines of Europe and America is nearly the same in amount, and costs nearly the same labor, one year with another. And should this quantity hereafter be found to vary considerably, still the variation would bear so small a proportion to the entire amount of these metals now in existence, which is supposed to be about five thousand millions, that the fluctuation would be scarcely felt. It is true, that of the gross amount just mentioned, only about two-fifths is in the shape of money; but this does not affect the question of value, because the value is changed little, if any, by converting these metals from bullion into money. This is done by a process called coining, which consists in giving to each piece an authoritative stamp, expressing its weight and fineness; and thereby adapting it to pass currently from hand to hand, without the trouble of weighing and assaying at each transfer.

Such being the nature and functions of money, we are prepared to understand the meaning of the provisions above quoted. The

(a) This was written before the discovery of the mines in California and Australia.