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in an inadequate fund. This is the foundation of all bankrupt or insolvent law, for they are so far strictly synonymous.

Policy requires that means should be employed to enforce this principle by a practice adapted to the usual course of business and the habits of mankind. Accordingly, in every system of law, statutory restrictions the most severe and precise are imposed upon the conduct and business of the insolvent, in order to prevent his abusing the power he still retains over an estate apparently his own, but really in law the property of his creditors. It is found, however, that in many transactions, proof of fraud and collusion is next to impossible, even where no one doubts they exist. Presumptions, therefore, founded on the general experience of mankind, are, as in so many analogous cases in every branch of jurisprudence, resorted to instead of proof.

The means of executing the policy of the law of insolvency, vary of course with the spirit of the common law, and the usages of life in each particular country. Hence their systems of bankruptcy also vary in the instrumental part-in procedure, evidence, etc.-but they all concur in the fundamental principle which we have just developed. For instance, the presumption of fraud arising, as in Twine's case, on sale of chattels without delivery. So, in the Scotch statute of 1696, a debtor so embarrassed as not to be able to struggle on for two months, is intended to have meant a fraud by a conveyance to a creditor, and the creditor to have been aware of his insolvency. So a conveyance omnium bonorum, or to a near relation, etc., is presumed fraudulent by the same law. It is in the spirit of the same policy, and on the same fundamental principle of the effect of insolvency, that all statutes of bankruptcy give a retrospective effect to a commission. In France and in Scotland, it has relation back a certain number of days; in England, to some act or omission, considered as indicative of insolvency, and called an act of bankruptcy, which ousts the debtor, ipso jure, of his property, in what was his estate, and vitiates all his subsequent transactions in regard to it. Sir S. Romilly's bill, 46 Geo. III. c. 135, excepted such as were bona fide entered into two months before the date of the commission.

The presumption thus adopted, in all nations, is, that for a certain period before the bankruptcy, the debtor was insolvent, and known by those who have profited by his partiality, to have been so.

To define one thus to be regarded in law as proximus decoctioni, has been one of the most delicate tasks of legislation. We will not enumerate the acts of bankruptcy which have that effect under the English statutes. They are accessible to all, and too well known to justify us in encumbering our pages with them. The principal objects, however, of that, as of every other system, are, to prevent all frauds on the great principle stated above-to divide equally, economically, and expeditiously, the bankrupt's estate, and to discharge him, not only from imprisonment, but from his debts. The commission is considered as a statutory execution. This is, also, in the strictest conformity with the same principle. It extends the remedy, by foreign or domestic attachment, to other classes of debtors besides the absent or absconding; and, instead of giving a preference to the suing creditor, it forces all to come in and partake of the fund. This, too, is only instrumental. It is not of the essence of bankruptcy to put the creditor into immediate possession of his debtor's property, by one form of procedure rather than another. A statute that, instead of classing the commission with execution, should make it only mesne process, would not be the less a bankrupt law on that account, though a very clumsy, expensive, and inefficient one. It is because, by the theory of the law every where, insolvency is ipso jure expropriation, that such effect is given to a proceeding upon it.

The English system pursues its objects by the following capital rules, or landmarks: 1. It defines, as we have said, the acts of bankruptcy which shall be taken as presumptive evidence of insolvency, and shall entitle (with all proper precautions, however) a creditor to take out a commission for vesting the bankrupt's estate in commissioners, and putting him in prison. This is one of the points in which the act of 1 and 2 William IV. modifies the law. The debtor may now himself take the initiative in these proceedings.

2. The commissioners are considered as delegates of the Lord Chancellor, to examine the bankrupt, prove debts, and distribute the fund-subject to appeal to the court.

3. The active management of the affairs is confided to assignees, chosen by the creditors themselves.

4. The creditors are formed into a deliberative body, to decide upon all questions of management, and judge whether the bankrupt be entitled to his discharge.

This organizing the creditors in the form of a quasi corpo

ration, is another particular in which all systems of bankruptcy coincide. It is strictly agreeable to the principle that the property of the insolvent is a common fund, to be equally distributed among the creditors. "By the common law, creditors are insulated individuals," says Bell, "connected by no common interest, and not bound to co-operation in execution, or to joint proceedings for the general benefit. Under the bankrupt law they are formed into a community. The inadequacy of the fund from which they are to be paid becomes the ground of mutual forbearance; a stop is put to the accumulation of expensive and separate proceedings; and a general plan is prescribed for recovering and distributing the estate at the common expense."

The result of all is, that a law of bankruptcy, or insolvency, in strictness, comprehends only those statutory provisions by which fraudulent preferences are prevented; the legal proceedings of creditors are restrained, with a view to their common benefit; and means are taken to insure the speedy and equal distribution of the fund among them.

We are now abundantly furnished with materials to show how unfounded is the practical distinction attempted to be drawn between insolvency and bankruptcy.

We have seen that the difference between them is only that between proof and presumption; that as insolvency is a real bankruptcy, so bankruptcy is, at least, a technical or constructive insolvency.

These words are continually confounded, both in popular and in legal language; and it is only for the purposes of the most precise scientific classification, that it becomes at all necessary to distinguish them. Should that be necessary, it will be found that insolvency is the generic word, and includes bankruptcy, which, as we have shown, always presupposes the former. In the more narrow or appropriated technical sense of bankruptcy, it is that sort of insolvency which is marked by those acts or omissions which the legislature has selected as the badge of hopeless ruin, or the "cessio fori." What these shall be-to what classes and descriptions of persons they shall be confined-or whether every case of insolvency shall be a case of bankruptcy—these are mere questions of local policy, which every government must settle for itself.

We submit, with some confidence, to our readers, that we have very clearly shown, that there is nothing in the words

of our constitution, construed according to the usual canons of interpretation, to limit the discretion of congress. Mr. Wall's admission, that its powers extend to the whole subject, is substantially an admission of the same thing.

We will add but a few words, as to the supposed constitutional necessity of confining the privileges and penalties of bankruptcy to traders. Lord Brougham, in the speech cited, holds this language:

"It may be questioned, however, notwithstanding what Blackstone has stated, whether there be any good ground for making a distinction between the insolvency of traders and other individuals. There are very few trades so hazardous as that of a farmer, and yet, should he become insolvent, he could not be entitled to the same privileges as he would have enjoyed had he been the keeper of an inn, or a commission agent. The injustice of this distinction is obvious; but without dwelling on it, it seems pretty clear that certificates should be granted indiscriminately to all honest debtors. Being relieved from all concern as to his previous incumbrances, an insolvent who has obtained one, is prompted to exert himself vigorously in future, at the same time that his friends are not deterred from coming forward to his assistance. But when an insolvent continues liable to his previous debts, no one, however favorably disposed, can venture to aid him with a loan, and he is discouraged, even if he had the means, from attempting to earn any thing more than a bare livelihood; so that while creditors do not, in one case out of a hundred, gain the smallest sum by this constant liability of the insolvent, his energies and usefulness are forever paralyzed."

Thus we perceive, that even in England the idea that none but the trading classes are entitled to the privileges of a bankrupt law, is considered by such men as Lord Brougham, as not essential to their system, narrow and imperfect as we have shown it to be. Mr. Bell, in a passage already referred to, had made the same remark in more general terms. No one can look around him in this country, and see the innumerable victims of extravagant though not criminal speculation in land property, as well as those not less numerous, who have been rendered eventually insolvent by fluctuations in the standard of value, will need any very elaborate train of reasoning to convince him, that the distinction hitherto made to their disadvantage is as unjust as it is arbitrary. But this

is a question of policy and not of law, and we set out in this paper with a determination to confine ourselves exclusively to those of the latter description. Even as to these, our object was to settle the principles of all bankrupt and insolvent laws, without going unnecessarily into the details of any. Having accomplished that object, we here, for the present, suspend our observations, and commit the whole matter to the reflections of our readers.

ART. IX.-1. Allgemeine Theorie des Erd-Magnetismus. C. F. GAUSS.

2. Resultate aus den Beobachtungen des Magnetischen Vereins, 1836, 1837, 1838. Herausgegeben von CARL FRIEDERICH GAUSS und WILHELM WEBER. Drei Bände. Leipzig.

3. ATHANASII KIRCHERI, Societatis Jesu. Magnes, sive de Arte Magnetica, opus. Editio tertia. Roma: MDCLIV.

HISTORIANS, in treating of the progress of the human race, from its earliest records down to the present day, are wont to pause toward the close of the fifteenth century, and thence to cast a last retrospective glance over the barbarous and obscure ages, traversed since they took leave of the waning glories of imperial Rome, once mistress of nations. Their attention, hitherto absorbed by the old world, is now of a sudden fixed upon the track of a single man, who, at the head of a small band of adventurers, is unexpectedly enriching the then known earth with a new hemisphere, nearly its equal in magnitude. This event, although the work of an obscure individual, was nevertheless of sufficient importance to become an eternal monument of glory in following ages. For in the same degree as the discovery of a new continent is to leave its ineffaceable trace upon humanity, will its consequences prove imperishable to human society; and, in its connexion with the history of the globe alone, should that be deemed a new epoch, in which the countless erroneous notions conceived by theorists, respecting the

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