§ 1109. 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.[1] 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.[2] As this doctrine seems now to have obtained a general acquiescence, it does not seem necessary to review the reasoning, on which the different opinions are founded; although, as a new question, it is probably as much open
benefit and relief of creditors and their debtors, in cases, in which the latter are unable, or unwilling to pay their debts. And a law on the subject of bankruptcies, in the sense of the constitution, is a law making provisions for cases of persons failing to pay their debts. An amendment was proposed by the state of New-York to the constitution at the time of adopting it, that the power of passing uniform bankrupt laws should extend only to merchants and other traders; but it did not meet general favour.[a 1]
↑See Golden v. Prince, 3 Wash. Circ. R. 313; Ogden v. Saunders, 12 Wheat. R. 264, 267 to 270, per Washington J. It is well known, that Mr. Justice Washington was not alone in the Court in this opinion in the original case, (Sturgis v. Crowninshield, 4 Wheat. R. 122,) in which it was first decided.
↑Sturgis v. Crowninshield, 4 Wheat. R. 122, 191 to 196; id. 198 to 202; Ogden v. Saunders, 12 Wheat. R. 273, 275, 280, 306, 310, 314, 335, 369.
