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.[1] 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.[2]
§ 1107. The truth is, that the English system of bankruptcy, as well as the name, was borrowed from the continental jurisprudence, and derivatively from the Roman law. "We have fetched," says Lord Coke,Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/19
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CH. XVI.]
POWERS OF CONGRESS—BANKRUPTCY.
11
as well the name, as the wickedness of bankrupts, from foreign nations; for banque in the French is mensa, and a banquer or eschanger is mensarius; and route is a sign or mark, as we say a cart route is the sign or mark, where the cart hath gone. Metaphorically it is taken for him, that hath wasted his estate, and removed his bank, so as there is left but a mention thereof. Some say it should be derived from banque and rumpue, as he that
