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Rh to me? The hemlock made an end of me in a moment."

"I see, I fell into your snare again, you crafty sinner! I won't enrage the gods still more by speaking with you, you destroyer of sacred customs."

Both were silent, and quiet reigned. But in a short while Elpidias was again the first to begin a conversation.

"Why are you silent, good Socrates?"

"My friend; didn't you yourself ask for silence?"

"I am not proud, and I can treat men who are worse than I am considerately. Don't let us quarrel."

"I did not quarrel with you, friend Elpidias, and did not wish to say anything to insult you. I am merely accustomed to get at the truth of things by comparisons. My situation is not clear to me. You consider your situation better, and I should be glad to learn why. On the other hand, it would not hurt you to learn the truth, whatever shape it may take."

"Well, no more of this."

"Tell me, are you afraid? I don't think that the feeling I now have can be called fear."

"I am afraid, although I have less cause than you to be at odds with the gods. But don't you think that the gods, in abandoning us to ourselves here in this chaos, have cheated us of our hopes?"

"That depends upon what sort of hopes they were. What did you expect from the gods, Elpidias?"

"Well, well, what did I expect from the gods! What curious questions you ask, Socrates! If a man throughout life brings offerings, and at his death passes away with a pious heart and with all that custom demands, the gods might at least sent some one to meet him, at least one of the inferior gods, to show a man the way. . . . But that reminds me. Many a time when I begged for good luck in traffic in hides, I promised Hermes calves"

"And you didn't have luck?"

"Oh yes, I had luck, good Socrates, but"

"I understand, you had no calf."

"Bah! Socrates, a rich tanner and not have calves?"

"Now I understand. You had luck, had calves, but


text: 1911 Encyclopædia Britannica/Carmagnole

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: 1911 Encyclopædia Britannica/Carmagnole


text: 1911 Encyclopædia Britannica/Harcourt

title: 1911 Encyclopædia Britannica/Harcourt


text: 1911 Encyclopædia Britannica/Harcourt, Sir William George Granville Venables Vernon


text: 1911 Encyclopædia Britannica/Harcourt, William Vernon


text: 1911 Encyclopædia Britannica/Hardanger Fjord


text:
When it comes to Wikileaks ... just say no

=When it comes to Wikileaks ... just say no= Mr. Tony Beltran

WikiLeaks is a hot topic in the news lately with near wall-to-wall coverage on all the major news outlets. The Joint Task Force Detention Group, JTF Guantanamo and its detainees are also frequent targets of WikiLeaks information releases.

According to a Wikipedia citation, “WikiLeaks is an international new media non-profit organization that publishes submissions of otherwise unavailable documents from anonymous news sources and news leaks.”

The Department of Defense has officially condemned the site, issuing guidance to all military members, federal employees and contractors about accessing WikiLeaks and the released information. So what does this mean for our troopers and operations here in JTF Guantanamo?

Defense Department officials are directing military, civilian and contractor personnel not to not the WikiLeaks web site. Official DoD guidance states WikiLeaks information is potentially classified. Unauthorized access to the site runs the risk of introducing classified material to unclassified systems.

Despite rumors and speculation, information released by the WikiLeaks website still requires handling appropriate to its classification. The subject information was not “declassified” by an appropriate authority and therefore requires continued safeguarding by federal employees.

“Classified information, whether or not already posted on public websites or disclosed to the media, remains classified,” warn DoD officials. “(It) must be treated as such by federal employees and contractors, until it is declassified by an appropriate U.S. government authority.”

In addition to the guidance provided by the DoD, agencies around JTF Guantanamo also have specific ways of handling cases regarding troopers accessing the WikiLeaks website.

“All personnel assigned to JTF-Guantanamo are required to sign a non-disclosure agreement which defines the requirements of protecting classified material, whether written or stated,” cautioned JTF Guantanamo alternate security manager, Paige Durrett. “Any violation of this agreement will result in possible jail time, cash penalty and loss of security clearance.”

Military members could also face disciplinary actions under Article 92 of the UCMJ if they access or download data from WikiLeaks, said Navy Lt. Gilbert Saenz of the Staff Judge Advocates office.

“In addition, we will conduct an inquiry to determine the extent of the situation and what other possible UCMJ violations may have occurred,” Saenz said.

The documents being released all fall under the category of ‘sensitive information’ — even if they are not classified — and therefore should be given the same protection as other data protected using operations security. The ‘need to know’ principle should be used. Not only is it a violation of UCMJ and policy, it’s just common sense.

The bottom line — do not access Wikileaks from any personal, government or MWR computer.


text: 1911 Encyclopædia Britannica/Hardee, William Joseph


text:
1922 Encyclopædia Britannica/Harcourt, Lewis Vernon Harcourt, 1st Viscount

HARCOURT, LEWIS VERNON HARCOURT, (1863-), British politician, was born in London Feb. 1 1863, the eldest surviving son of Sir William Harcourt (see 12.939). He was educated at Eton and afterwards travelled widely, becoming well known for his interest in art. In 1899 he married the only daughter of Walter H. Burns, of New York. In 1904 he was elected as Liberal member for the Rossendale division of Lancs., retaining the seat until 1917, and on the formation of Sir Henry Campbell-Bannerman's Government (1905) became First Commissioner of Works. In 1910 he became Secretary of State for the Colonies in the Asquith Cabinet, but on the formation of the Coalition Government in 1915 again became First Commissioner of Works. In 1916 he was raised to the peerage. He was appointed a trustee of the Wallace Collection, British Museum, London Museum and National Portrait Gallery.


text: Jesus Christ the Apple Tree

title: Jesus Christ the Apple Tree


text:
Page:Language and the Study of Language.djvu/118

96 either upon that syllable or the one that precedes it, while in Greek it may be given to either of the last three syllables, and is only partially regulated by quantity; why, again, the Irish and Bohemian lay the stress of voice invariably upon the first syllable of a word, and their near relations, the Welsh and Polish, as invariably upon the penult; others still, like the Russian and Sanskrit, submitting it to no restriction of place whatever. These, and the thousand other not less striking differences of phonetic structure and custom which might readily be pointed out, are national traits, results of differences of physical organization so subtile (if they exist at all), of influences of circumstance so recondite, of choice and habit so arbitrary and capricious, that they will never cease to elude the search of the investigator. But he will not, in his perplexity, think of ascribing even the most obscure and startling changes of sound to any other agency than that which brings about those contractions and conversions which are most obviously a relief to the organs of articulation: it is still the speakers of language, and they alone, who work over and elaborate the words they utter, suiting them to their convenience and their caprice. The final reason to which we are brought in every case, when historical and physical study have done their utmost, is but this: it hath pleased the community which used this word to make such an alteration in its form; and such and such considerations and analogies show the change to be one neither isolated nor mysterious. Except in single and exceptional cases, there is no such difference of structure in human mouths and throats that any human being, of whatever race, may not perfectly master the pronunciation of any human language, belonging to whatever other race—provided only his teaching begin early enough, before his organs have acquired by habit special capacities and incapacities. The collective disposition and ability of a community, working itself out under the guidance of circumstances, determines the phonetic form which the common tongue of the community shall wear. And as, in the first essays of any child at speaking, we may note not only natural errors and ready substitutions of one sound for another, common to nearly all children, but also one and another peculiar conversion, which seems the effect of mere whim, explainable


text:
Talk:When it comes to Wikileaks ... just say no

Really?
Pardon the intrusion, but is this really something worth hosting on WS? ... or am I missing some yet-to-be-revealed point maybe? George Orwell III (talk) 01:49, 18 December 2010 (UTC)
 * The technical question would also be why aren't we using page transclusion to inhale the work? ProofreadPage works on PDF files, even if it is not the preferred means. — billinghurst  sDrewth  13:01, 18 December 2010 (UTC)


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Page:Language and the Study of Language.djvu/119

III.] by nothing but individual caprice, so in the traditional transmission of language—which is but the same process of teaching children to Speak, carried out upon a larger scale—we must look for similar cases of arbitrary phonetic transitions.

So important a part of the history of a language are its special methods of phonetic change, that, in investigating the relations of any dialect with its kindred dialects, the first step is to determine to what sounds in the latter its own sounds regularly correspond. Thus, on comparing English and German, we find that a d in the former usually agrees, not with a d, but with a t, in the latter; as is shown by dance and tanz, day and tag, deep and tief, drink and trink, and so on. In like manner, the German counterpart of an English t is s or z: compare foot and fuss, tin and zinn, to and zu, two and zwei, and the like; and a German d answers to our th, as in die for the, dein for thine, bad for bath. What is yet more extraordinary is the fact that, if we compare English with the older languages of our family—as with Latin, Greek, and Sanskrit—we discover the precise converse of this relation: as German t is English d, so English t is Latin d (compare two and duo); as German d is English th, so English d is Greek th (compare door and thura, daughter and thugatr); as German s or z is English t, so English th (the lisped letter instead of the hissed, the spirant for the sibilant) is Latin, Greek, and Sanskrit t (compare three and tres, treis, tri; that and -tud, to, tad). In short, taking the series of three dental mutes, surd, aspirate, and sonant, t, th, and d, we find that the Germanic languages in general, including the English, have pushed each of them forward one step, while the High-German dialects, chiefly represented by the literary German, have pushed each of them forward two steps. Thus, in tabular form:


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98 And a similar rule of permutation holds good also among the consonants of the two other series, the palatal and labial: k, kh, g; p, ph, b—the whole, with certain variations and exceptions, of which we do not need here to take account. This intricate method of correspondence without identity is generally styled, after its discoverer, "Grimm's Law of Permutation of Consonants;" it is a fact of prime consequence in the history of the group of languages to which ours belongs, and, at the same time, one of the most remarkable and difficult phenomena of its class which the linguistic student finds anywhere offered him for explanation. Nor has any satisfactory explanation of it been yet devised; while, nevertheless, we have no reason to believe it of a nature essentially different from other mutations of sound, of equally arbitrary appearance, though of less complication and less range, which the history of language everywhere exhibits. The Armenian, for example, has converted its ancient surd mutes prevailingly into sonants, and its sonants into surds; the cockney drops his initial h’s, and aspirates his initial vowels: neither of these, any more than the permutation of consonants in the Germanic languages, is referable to a tendency toward ease of utterance, in any of its ordinary modes of action; yet no sound linguist would think of doubting that all the three phenomena are alike historical in their nature, results of the working out of tendencies which existed and operated in the minds of those who spoke the several languages in which they have made their appearance.

We need give but a moment's attention to another process of linguistic change, whereby not letters, parts of words, formative elements, alone are lost, but whole words, signs of ideas, disappear from among the stores of expression of a language. This, too, is always and everywhere going on. Evidence of it is to be seen in the obsolete and obsolescent material found recorded on almost every page of our dictionaries, and still more abundantly in the monuments of our literature, of periods to which our dictionaries do not pretend to go back, among the works of the earliest English writers; and, above all, in the Anglo-Saxon literature. As


text: User:Carlaude/Userbox/Protestant Christian


text: Index:The practical joke, or, The Christmas story of Uncle Ned.djvu


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Page:Language and the Study of Language.djvu/121

III.] new thought and knowledge calls for new words and phrases, in order to its expression, so, when old thought and knowledge becomes antiquated, is superseded, and loses its currency, the words and phrases which expressed it, unless converted to other purposes, must also go out of use. It is sufficient that any constituent of language come to appear to those who have been accustomed to use it unnecessary and superfluous, and they cease to employ and transmit it; and, as tradition and use are the only means by which the life of language is kept up, it drops out of existence and disappears for ever—unless, indeed, it be maintained in artificial life by the preservation of records of the dialect in which it figured, or its mummy, with due account of its history and departed worth, be deposited, labelled "obsolete," in a dictionary. In part, things themselves pass out of notice and remembrance, and their names along with them; in part, new expressions arise, win their way to popular favour, and crowd out their predecessors; or, of two or more nearly synonymous words, one acquires a special and exclusive currency, and assumes the office of them all; in part, too, even valuable items of expression fall into desuetude, from no assignable cause save the carelessness or caprice of the language-users, and pass away, leaving a felt void behind them. Of course, those departments of a vocabulary which are liable to most extensive and rapid change by expansion are also most exposed to loss of their former substance, since the growth of human knowledge consists not merely in addition, but also in the supersession and replacement of old ideas by new: the technical phraseology of the arts, sciences, and handicrafts shows most obsolete words, as it shows most new words; yet, in the never-ending adjustment of human speech to human circumstances and needs, every part is in its own degree affected by this kind of change, as well as by the others. Rarely has any cultivated tongue, during a like period of its history, given up more of its ancient material than did the English during the few centuries which succeeded the Norman invasion; a large portion of the Anglo-Saxon vocabulary was abandoned; but this was only the natural effect of the intrusion of so many Norman-French


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100 words, an enrichment beyond all due measure, rendering necessary the relinquishment of some part of resources which exceeded the wants of the community. If, upon the whole, we have gained by the exchange, it has not been without some regrettable losses, of the significant as well as of the formative elements of expression.

The processes which we have thus examined and illustrated—on the one hand, the production of new words and forms by the combination of old materials; on the other hand, the wearing down, wearing out, and abandonment of the words and forms thus produced, their fusion and mutilation, their destruction and oblivion—are the means by which are kept up the life and growth of language, so far as concerns its external shape and substance, its sensible body: by their joint and mutual action, greatly varying in rate and kind among different peoples, at different times, and under different circumstances, spoken tongues have been from the beginning of their history, and are still, everywhere becoming other than they were. Yet they together constitute but one department of linguistic change; another, affecting the internal content of language, the meaning of its words, equally demands notice from us. To this we have not yet distinctly directed our attention, although our illustrations have necessarily set forth, to a certain extent, its action and effects, along with those of the external modifications which we have been especially considering. It is a part of linguistic history which, to say the least, possesses not less interest and importance than the other. To trace out the changes of signification which a word has undergone is quite as essential a part of the etymologist's work as to follow back its changes of phonetic form; and the former are yet more rich in striking and unexpected developments, more full of instruction, than the latter: upon them depend in no small measure the historical results which the student of language aims at establishing. It may even be claimed with a certain justice that change and development of meaning constitute the real interior life of language, to which the other processes only furnish an outward support. In their details, indeed, the outer and inner growth are to a great extent


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 THE

, merry Christmas and New-Year! prized by children above all other days in the year. Ye are associated with pleasant recollections of old Santa Claus and sugar-plums—with bright visions of a cheerful fireside, merry games, pleasant stories, and happy, smiling faces. First comes Christmas Eve, when each young face beams with eager curiosity and delightful anticipation—all wondering and guessing what they shall find in their stockings next morning; while the eldest sister, with looks of mystery and of importance, shares her


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III.] of one another: a word may suffer modification of form in any degree, even to the loss or mutation of every phonetic element it once contained, with no appreciable alteration of meaning (as in our I for Anglo-Saxon ic, eye for eage); and, again, it may be used to convey a totally different meaning from that which it formerly bore, while still maintaining its old form. Yet, upon the whole, the two must correspond, and answer one another's uses. That would be but an imperfect and awkward language, all whose expansion of significant content was made without aid from the processes which generate new words and forms; and the highest value of external change lies in its facilitation of internal, in its office of providing signs for new ideas, of expanding a vocabulary and grammatical system into a more complete adaptedness to their required uses. But change of meaning is a more fundamental and essential part of linguistic growth than change of form. If, while words grew together, became fused, integrated, abbreviated, their signification were incapable of variation, no phonetic plasticity could make of language aught but a stiff dead structure, incapable of continuously supplying the wants of a learning and reasoning people. If for every distinct conception language were compelled to provide a distinct term, if every new idea or modification of an idea called imperatively for a new word or a modification of an old one, the task of language-making would be indefinitely increased in difficulty. The case, however, is far otherwise. A wonderful facility of putting old material to new uses stands us in stead in dealing with the intent as well as the form of our words. The ideal content of speech is even more yielding than is its external audible substance to the touch of the moulding and shaping mind. In any sentence that may be chosen, as we shall find that not one of the words is uttered in the same manner as when it was first generated, so we shall also find that not one has the same meaning which belonged to it at the beginning. The phonetists claim, with truth, that any given articulated sound may, in the history of speech, pass over into any other; the same may with equal truth be claimed of the ideas signified by words: there can hardly be


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Page:The practical joke, or, The Christmas story of Uncle Ned.djvu/5

Rh mother's councils, and helps to distribute the precious stores. Soon they are in bed, anxious to sleep off the long hours, dreaming of rocking-horses and doll-babies, tea-sets, wooden soldiers, and all the other delights of the toy-shop.

I never heard of a lazy child on a Christmas morning. The idle and the industrious are all up, "bright and early." The well-filled stockings are eagerly inspected, good wishes and pretty or useful presents given and received, and various plans proposed for the day's amusement. Night comes too soon for the tireless lovers of fun, who go unwillingly to bed, consoling themselves that one week more will bring New-Year.

Dear children, long may such innocent delights crown the year; and, in the midst of all, forget not the children of the famishing poor, who have no Christmas pleasures to look forward to; whose parents toil for their daily bread


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102 two so disconnected and unlike that they may not derive themselves historically, through a succession of intermediate steps, from one another or from the same original. The varieties of significant change are as infinite as those of phonetic change; and, as in dealing with the latter, so, here again, we must limit ourselves to pointing out and exemplifying the leading principles and more prominent general methods.

The fundamental fact which makes words to be of changeable meaning is the same to which we have already had to refer as making them of changeable form; namely, that there is no internal and necessary connection between a word and the idea designated by it, that no tie save a mental association binds the two together. Conventional usage, the mutual understanding of speakers and hearers, allots to each vocable its significance, and the same authority which makes is able to change, and to change as it will, in whatever way, and to whatever extent. The only limit to the power of change is that imposed by the necessity of mutual intelligibility; no word may ever by any one act be so altered as to lose its identity as a sign, becoming unrecognizable by those who have been accustomed to employ it. Eleēmosunē is reducible to a'ms, but only through a series of intermediate stages, of which the German almosen, the Anglo-Saxon almes, and our spelling alms are representatives; the change of significant content which it has at the same time undergone, from 'feeling of pity or compassion' to one of the practical results of such a feeling, is comparatively inconsiderable, not more than we are in the constant habit of making at a single step. Our corresponding word of Latin derivation, charity, while little altered in form from its original, caritas, 'dearness,' has suffered a much more distant transfer of signification. Priest, again, from the Greek presbūteros, 'an older person,' has wandered from its primitive to about equal distance in form and in meaning; the one departure taking place under physical inducements, brought about by an impulse to economize physical effort on the part of those who had to utter the word; the other accompanying a historical change in the character and functions of an official originally chosen


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4 Kind little Girls relieving the Poor.


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Rh and scanty apparel all the year, and have no time nor means to provide themselves or their children with the comforts and luxuries you enjoy. Each one can spare a little to minister to the enjoyment of those poor suffering children, many of whom, perhaps, have no fathers to provide for them, some of them not even a home to shelter them. Share with them your abundance, and the blessings of the poor shall rest upon you. And now, my patient little readers, for the story.

One Christmas night we were all gathered around a cheerful fire in the old-fashioned parlor. Father, mother, sisters, brothers, uncles, aunts, and cousins, were all there. The blazing pine knots sent a cheerful light into every nook and corner of the big room; the ponderous presses, and quaint old desk and bookcase, reflecting the warm glow from their polished surfaces.

The straight, high-backed, mahogany


text: Template:Hoyt quote

title: Template:Hoyt quote


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Page:The practical joke, or, The Christmas story of Uncle Ned.djvu/8

6 chairs had been sadly knocked about in a game of blind-man's-buff, and looked as much out of place as a prim old maiden aunt in a game of romps. Nutshells and apple-parings, kiss-papers and mottoes, strewed the broad hearth, and gave pretty good token of the evening's cheer. The clock had just struck ten, and we youngsters were warned that it was bedtime, when there arose a loud call for a story. A story from Uncle Ned! We might all sit up to hear a story, if Uncle Ned would tell one.

He, good soul, never refused a kind request in his life, and we felt quite safe for the next half hour. I think I see him now, with his trim leg encased in a fine home-knit stocking—his bright shoe-buckles, and neat drab small-clothes—his queer-looking continental hat, with his gray locks appearing beneath it, and his hands resting upon the head of his silver-mounted cane.


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Rh Portrait of Uncle Ned.


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Page:The practical joke, or, The Christmas story of Uncle Ned.djvu/10

8 The chairs were set in their places, stragglers called in, and all were seated in silence to hear.

UNCLE NED'S STORY.

"Many years ago, when I was a slip of a lad like Tom there"—"Why, uncle," cried little Willy in amazement, "did you say you were no bigger than Tom? Were you ever as little as Tom, uncle?"—"Hush, Willy," said Tom, a well-grown boy of fourteen, "I 'm sure you need not make such a wonderment at that; I am not so very small, and I expect to be as big as Uncle Ned when I'm a man. How naughty of you to interrupt the story!"

"Well, Willy," said Uncle Ned, "I don't suppose I look much now as if I had once been a slender lad, with a soft fair brow, and rosy cheeks; but I was as


text: The practical joke, or, The Christmas story of Uncle Ned


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Page:The practical joke, or, The Christmas story of Uncle Ned.djvu/11

Rh full of fun and frolic as the best of you. I will tell you how I once came near losing my own life and that of a friend and playmate, by my love of mischief. It was a Christmas night. We were gathered round the fire just as we now are, cracking nuts, eating apples, and telling stories, when I proposed to Jack Thornton, and his little brother, that we should go for a skating frolic to 'the pond,' a beautiful sheet of water about a quarter of a mile distant. Instantly we were in motion, looking up our skates and mittens. Off we started, in high glee, promising ourselves fine fun on the ice. The moon shone brilliantly—every object could be seen with perfect distinctness. The little pond, which was supplied with the purest spring water, looked like a sheet of silver, sparkling in the moonlight. I well remember looking down through the clear and beautifully transparent ice, and seeing the


text:
Index talk:TheHaunterOfTheRing.djvu

Pages 3 and 4 are swapped around into incorrect order. MichelleG (talk) 04:30, 18 December 2010 (UTC).
 * ✅ Did a series of transclusions, rather than one longitudinal; and inverted the respective pages. — billinghurst  sDrewth  12:43, 18 December 2010 (UTC)
 * That got the index in the right order, but the arrows at the top of those pages don't work properly. I guess there is nothing that can easily be done about that. -- Beardo (talk) 14:16, 23 May 2023 (UTC)

Source
Where is this from. It is not from the original Weird Tales (which had an illustration and different page numbers). Some reprint somewhere, I assume. -- Beardo (talk) 14:14, 23 May 2023 (UTC)

 * Ah - I see that in Commons it states that it is "a scan from the 1978 Black Canaan collection by Berkley Publishing Corporation". -- Beardo (talk) 04:46, 28 May 2023 (UTC)

title: Index talk:TheHaunterOfTheRing.djvu


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10 Ned and his Companions at the Pond.


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Rh pond-lilies, with their broad leaves of tender green, mingled with rushes and long grass, while the little fish danced like beams of silver-light in the clear water. The pond was of no great extent, but toward the middle it was quite deep, and formed a fine broad sheet of ice for skating.

"I remembered having seen the day before an air-hole near a rock on the opposite shore. I had tried the ice near it, and found it strong enough to bear my weight; and concluding that by this time it was quite thick enough to bear two or three, I determined to play a trick upon Jack, who was exceedingly good natured, but a great brag. Nobody could outwit him, he thought. 'Come, Jack,' said I, 'follow me, and I will take you where you are afraid to go.'—'I afraid!' said he, 'catch me afraid—I can go anywhere you can—go ahead!' Away we shot, like swallows, toward the fatal air


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12 Ned rescuing Jack from drowning.


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Rh hole. 'Follow me,' I cried; 'keep up with me if you can.' Thus stimulated, Jack kept close in my rear. My object was to avoid the air-hole myself, and just give one of Jack's legs a ducking, without doing him any further injury. We wheeled in circles round and round, until, making a quick sweep, and calling upon him to keep close, I dexterously made a slight curve so as to avoid the hole, but down went poor Jack, one leg and foot quite buried in the freezing element. It was a favorite trick with the knowing ones, and was never taken amiss. But in this case the joke was carried too far. Jack pulled and struggled to draw out his foot, when suddenly the ice gave way, and down he sank into the deep water. I knew he could not swim—neither could I. I was aware it would not do to attempt to get him out by going near him on the ice, as our efforts would only crack the ice and throw


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14 The Physician and Aunt Dorothy.


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Rh me in too. But, as quick as thought, I ran on shore, threw off my skates, went to the edge of the rock, where fortunately he was within my reach, and, after many unsuccessful attempts, I succeeded in drawing him out. Poor Jack was almost exhausted; but I got him home, and he was undressed and put to bed. A severe fit of sickness followed from the cold he took that night. Aunt Dorothy always insisted that his sickness might have been prevented, if she had been permitted to give him a dose of her hot-drops, which she always kept by her—a specific for all complaints. But the physician who was called positively forbade it. Physicians do not like to have persons who are ignorant of the nature of diseases, and their proper remedies, tampering with the human frame. Although in some instances they may relieve in mild attacks, they often do a great deal of harm by giving favorite


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NEW YORK: PUBLISHED BY J.S. REDFIELD, CLINTON HALL.


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Nelson v. Carland/Dissent Catron

Mr. Justice CATRON dissented.

On a petition for a discharge, the district judge adjourned into the Circuit Court the question-Whether the act of 1841, establishing a uniform system of bankruptcy, was constitutional, or otherwise. The judges were divided in opinion on the question, and a certificate of division was made to the Supreme Court; calling upon this court to decide the question, and return it so decided, to be entered as the judgment of the Circuit Court.

The district judge may adjourn into the Circuit Court any question, whether he has, or has not, doubts regarding its decision. Its importance is a sufficient reason. That he properly adjourned the question, whether the bankrupt law was or was not constitutional, is free from doubt. Of this question, the Circuit Court had full and proper jurisdiction; and the decision of it would have been conclusive of the case before us.

Was it a 'question' on which the judges could divide in opinion?

The act of April 29, 1802, provides: 'That whenever any question shall occur before a Circuit Court, upon which the opinion of the judges shall be opposed, the point upon which the disagreement shall happen, shall during the same term, upon the request of either party, or their counsel, be stated under the direction of the judges, and certified under the seal of the court, to the Supreme Court, at their next session to be held thereafter; and shall, by the said court, be finally decided. And the decision of the Supreme Court, and their order in the premises, shall be remitted to the Circuit Court, and be there entered of record, and shall have effect according to the nature of the said judgment and order: Provided, That nothing herein contained shall prevent the cause from proceeding, if, in the opinion of the court, further proceedings can be had without prejudice to the merits.'

The act declares, when any 'question shall occur before the Circuit Court,' & c., then, on a division, a certificate shall be made at the request of either party. No matter in what form of proceeding it occurs, be it at law or in equity; divisions are nearly as frequent in causes in equity as at law. Under the bankrupt law, the proceedings are in the form prescribed to courts of equity.

Now, 'did a question occur,' in the Circuit Court? It must be admitted that one of the gravest occurred that could be presented to a court of justice: there it was to be decided, and the case concluded by its decision. The judges were opposed, and it could not be decided: then it was their duty, at the request of either party, to send it to this court, to decide for the Circuit Court; where the decision of the Supreme Court is to be entered as the judgment of the Circuit Court.

So far the case presented, seems to be sufficiently clear: but it is met by another consideration; and that is, whether the Circuit Court, in a question adjourned under the 6th section of the bankrupt law, consists of the two judges, or of the circuit judge only. In all other cases, in the Circuit Courts of the United States, except in writs of error and appeals from the District Court to the Circuit Court, (an exception made by positive legislation;) the two judges have equal powers-they constitute the Circuit Court usually; and must do so when a division takes place: does the bankrupt law cut off these powers of the district judge? The law does not so provide; and can it be justly inferred? If the district judge cannot be a memoer of the court on the hearing of the adjourned question, then no division of course can take place. To come at the inference of his exclusion, the intention of Congress must be ascertained from the whole scope of the act.

Great questions were involved in its construction. It was to be administered by more than thirty judges, acting separately; no appeal to the Circuit Court was allowed, save in a single case: that of a refusal to finally discharge the bankrupt from his debts, (sec. 4;) and then the Circuit Court is commanded, if the bankrupt shall be found entitled to the benefits of the act, 'to make a decree of discharge, and grant a certificate, as provided in this act.' No appeal is allowed to this court from the decree of the Circuit Court: the creditor is not allowed an appeal, either from the District Court to the Circuit Court, or to the Supreme Court, in any case. Nor is the debtor allowed an appeal from the decree of the Circuit Court, refusing his discharge. Such is the unanimous opinion of my brethren now present; and with which opinion I concur. If the discharge is objected to by the creditors, and the District Court refuses it, the debtor may then demand a trial by jury, and try the matter over again: if the jury decides against him also, he may then appeal to the Circuit Court, and there elect to submit the matter a third time, either to the court, or to another jury; and this finding is conclusive, whether by the court or a jury. It is not possible, therefore, to reach this court by appeal, in a bankrupt case. This is clear; and my brethren think it equally clear, that no adjourned question can be brought here by a division of opinion: it follows, this court has no revising power over the numerous and conflicting constructions of the bankrupt law. In some circuits it is held, that one indebted 'in consequence of a defalcation as a public officer; or as executor, or administrator, guardian, or trustee; or while acting in any other fiduciary capacity,' can be discharged from all his other debts; and that the less favoured creditors may take all his property, unless the government, ward, &c., see proper to come in for distribution; when the fiduciary claim will also be extinguished. In other circuits, those indebted to any amount in a fiduciary capacity are all excluded as a class: the fact appearing on the face of the petition, it is dismissed of course. Such is the construction of the act in the eighth circuit; it has excluded from applying great numbers in the eighth and other circuits, who would have been admitted had they applied in circuits where the law is construed otherwise. This question also has been brought here by a division of opinion from the district of Kentucky, at the instance of the district and circuit judges, acting together as the Circuit Court; the question having been adjourned into that court by the district judge.

In the case of William Nelson, the question occurred in the same court, whether the bankrupt law was unconstitutional and void, or otherwise. It was adjourned, as already stated, into the Circuit Court by the district judge; and there the judges were opposed in opinion, and certified the question to this court for its decision. This was done at the instance of the bar of St. Louis; the district judge of Missouri having pronounced the bankrupt act a mere insolvent law; sueh as was never contemplated by the framers of the Constitution, and therefore void. The following are some of his reasons for entertaining this opinion:

'Is this act of Congress, under which the petitioner claims a discharge from his debts, authorized by the Constitution? In order to determine this, it will be necessary to notice several of its provisions.

'It provides, in substance, that any person, whether a trader or not, who is indebted, except in a few enumerated cases, may file his petition in the District Court of the United States, for the benefit of the act, at any time he may please, without the consent or action of any of his creditors, and obtain by a decree of the court, a discharge from all his debts. This decree is to be had without the consent of any of his creditors being required, even if they do not participate in the proceedings or receive a dividend from the property. The decree is to be deemed a full and complete discharge from all his debts, contracts, and engagements, proveable under the act, whether contracted before or after the passage of the act. If he has property, he surrenders it; if he has none, it is the same thing as it regards his discharge.

'In examining this question, we should ascertain, if possible, what was the object the convention had in view by inserting the provision. The phraseology adopted would indicate a part of the object: 'To establish uniform laws on the subject of bankruptcies throughout the United States.' It was apprehended, at least, that they would not be uniform, unless Congress had the power to make them so. In addition to this, we are told by Mr. Madison (Fed. No. 42) that 'the power of establishing uniform laws of bankruptcy, is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different states, that the expediency of it seems not likely to be drawn into question.' To have a system that would be uniform and would prevent frauds, &c., seems to have been the object. The proposition was referred to the committee of detail, of which Mr. Rutledge was chairman, and reported as it now stands in the Constitution. In ascertaining what were the mischiefs to be remedied or the objects to be effected, the convention, doubtless, looked to the condition of things, and of course to the institutions and laws of the various states. But for a definition of that or any other legal term, or to ascertain the nature and extent of the powers they were about to grant, by particular words or phrases, they would hardly look to the laws of the states. There was far less intercourse in those days than at present. There were no steamboats, railroads, or Macadamized roads.

'The laws of the several states could not have been generally known to the members of the convention from the different states; even the best lawyers could not have been acquainted with the laws of the states in which they did not practise. They are not so, even at this day. If they had been acquainted with the laws of all the states, to which would they have referred in preference to all the rest, for definitions, or the meaning and extent of legal terms? The convention well knew it was making a Constitution for the whole Union; that the terms they might use should be known and understood, and must be interpreted and explained in every state. They were, therefore, exceedingly exact in the use of words and phrases: every word of legal import, every phrase was weighed and considered; and a phrase of only a few words was frequently referred to a committee, as was done in this case, and examined and reported on. They were frequently obliged to use legal terms; they were making a law; this was a legal term-bankrupt laws: what was to be done to prevent confusion and uncertainty? and, above all, to mark exactly and with legal precision the extent of the powers they were about to grant, that neither more nor less power might be granted than was desired?

'Our ancestors had removed from England; the United States had then lately been English colonies and part of the British empire. The English laws and system of jurisprudence had been substantially adopted in every state in the Union. Every person at all conversant with legal subjects, and every lawyer of course, was acquainted with the English laws. This knowledge was equally extensive in every state. It is so to this day. Here, then, was a law with which all were acquainted, and to which all could refer. There could be no mistake, if reference was made to it for the meaning of terms. And to it they did accordingly refer. We do so to this day. Ask a lawyer the meaning of a legal term, and where does he look for an answer? To the statutes of Massachusetts or Georgia-New York, Pennsylvania, or Virginia? Certainly not. In most instances he would look in vain.

'The proposition in regard to bankruptcies was made by Mr. Charles Pinkney, of South Carolina, in the words we now find in the Constitution. It was referred to the committee of detail, consisting of Mr. Rutledge of South Carolina, Mr. Randolph of Virginia, Mr. Gorham of Massachusetts, Mr. Ellsworth of Connecticut, and Mr. Wilson of Pennsylvania; and they reported it in the words in which it was referred. Now, several of these states never had any thing like a bankrupt law. To which then did they refer, or could they refer, to ascertain the meaning and extent of the terms they were employing? The lawyer, if he is not familiar with the term, will refer to Blackstone's Commentaries, or to an English Law Dictionary, where he will readily find it. If he referred to the statutes of the different states, he might get as many definitions as there were states, supposing they had any law on the subject.

'The first Continental Congress, in 1774, declared, among other things, 'that the respective colonies were entitled to the benefit of such of the English statutes as existed at the time of their colonization, and which they had, by experience, found to be applicable to their several local and other circumstances.' 1 Journal of Congress, 28, Phila. ed. of 1800.

'Many of the states had adopted, in a body, the English statutes, only excepting such as were local to that kingdom, or not applicable to their situation.

'The Supreme Court of the United States, in Patterson v. Winn, 5 Peters, 233, say, that 'the English statutes passed before the emigration of our ancestors, and applicable to our situation, and in amendment of the law, constituted a part of the common law of the county.'

'We know, as matter of history, that the members of the convention who took part in debate, were intimately acquainted with the English laws. The committee above mentioned possessed several of the most eminent lawyers in America, and who have held the highest legal stations. Reference was often made by them to the English laws for the meaning of terms or phrases they were using. Thus, when it was proposed to define and limit treason against the United States, Mr. Randolph and Mr. Ellsworth, (two of the committee,) Mr. Madison, Mr. Mason, and Mr. Gouverneur Morris, all referred to the act of Parliament of 25th Edward 3d; and the convention, at last, adopted the precise phraseology of that act. Madison Papers, 1770. Again, when the phrase ex post facto was under consideration, Mr. Dickerson stated that, on examining Blackstone's Commentaries, he found the term related to criminal cases only. Mad. Pap. 1450. And the Supreme Court has since confirmed the signification of the terms to the definition given by Blackstone. Mr. Hamilton, who was a member of the convention, in speaking of the Habeas Corpus provision in the Constitution, refers to, and quotes, Blackstone's Commentaries. Fed. No. 84.

This general principle being established, we may go a step further, and show that, in point of fact, the convention had the English statutes in view, in determining the nature and extent of the power they were granting to Congress, when the bankrupt clause was under consideration.

'Mr. Sherman observed 'that bankruptcies were, in some cases punishable with death by the laws of England, and he did not choose to grant a power, by which that might be done here.' 3 Mad. Pap. 1481. It thus appears, that the law of England were the laws referred to in regard to the definition and nature of the powers they were conferring.

'It may also be remarked, that Blackstone's Commentaries were in the hands of the members, and frequently referred to. This book contained a definition of a bankrupt, and a summary of the English laws on the subject. What then was the English law to which the convention referred when they adopted the clause in regard to bankrupts? The English system, when the convention sat, had been in operation for several generations; and provided, in substance, a proceeding by a creditor against a debtor, who was a trader; distribution of bankrupt's effects equally among his creditors; a discharge to be obtained by the debtor from his debts, upon obtaining the consent of a given majority of his creditors.

'It was a proceeding for the benefit of creditors, as are all laws for the collection of debts, of which this was one; but with liberality towards the debtor, who, by misfortunes so frequently attending trade, became unable to pay his debts, in allowing him a discharge from those debts, upon obtaining the consent thereto of a given majority of his creditors. Even this provision for a discharge, we are told by Blackstone, was intended for the benefit of creditors, as it influenced debtors to act with economy, industry, and honesty, and make a full surrender of their property, without which they could not hope to obtain the consent of their creditors.

'The whole system was founded on the principle, that a trader, who owed debts in various parts of the country, and was fraudulently making way with his property, instead of paying his debts with it, should have that property taken away and placed in the hands of trustees or other officers, with which his debts should be paid, and each of his creditors, whether absent or present, have his fair dividend.

'We are told by Mr. Madison, who has, not inaptly, been called the Father of the Constitution, that a uniform system of bankruptcy 'would prevent so many frauds, when the parties, or their property, may lie or be removed into different states, that the expediency of it seems not likely to be drawn in question.' Fed. No. 42. This reason for the adoption of the clause in regard to bankrupts was published by Mr. Madison after the Constitution was proposed by the convention, but before it was adopted by the states; was intended to explain the grant of power to Congress, and to induce the states to accept the Constitution; and no doubt had its effect. The frauds of whom-the removal of whose property, are here spoken of? Certainly the frauds of the debtor-the property of the debtor.

'We have another almost contemporaneous exposition of this grant of power to Congress. It is the act of Congress of 1800, 'To establish a uniform system of bankruptcy throughout the United States.' It is altogether, in its principle and material features, like the English system; a proceeding by creditors against debtors who are traders; distribution of bankrupt's effects equally among creditors; a discharge of the bankrupt from his debts, on the consent obtained of a given majority of his creditors.

'I have now, I think, shown that the bankrupt system intended by the framers of the Constitution, and to establish which, power was given to Congress, was a system for the benefit of creditors, to enable them to collect their just debts, and to prevent the frauds of debtors who might remove their property and themselves into different states.

'I will now show that the act we are considering is solely and entirely for the benefit of debtors, and to enable them to avoid their debts; and therefore opposed to the whole intent, spirit, and object of a bankrupt law. For this purpose I will here further notice some of its provisions.

'1. The debtor selects his own time to commence proceedings when he may have entirely squandered his property, and when nothing can be found. It is not even necessary that he should have been sued, or threatened with a suit, or ever asked for the debt.

'2. He is allowed to select the state and county where he will commence proceedings. For this purpose he can change his residence or business to any place he may think most favourable. He can thus go where nobody is likely to detect his frauds.

'3. He may have spent all his property in idleness, riotous living, debauchery, or gambling, in stocks, or wild speculations: it will not affect him; and he is entitled to his discharge, equally with the most prudent, industrious, and economical person.

'4. If he does not surrender to his creditors one cent's worth of property, he may have property reserved to him, to the amount of $300, for his own use; and also his wearing apparel, and that of his family, which has been held, by some, to include jewelry.

'5. If a majority of his creditors should object to his discharge, it will only give him an additional privilege-that of demanding a jury, and taking the cause away from the court. Or he may appeal, even before the cause is tried, and is allowed ten days to appeal in. No such privileges are given to creditors.

'6. After the court disposes of the matter, or decides the cause against him, and refuses the discharge, he can then have it referred to a jury, although already tried and decided by the court, which, heretofore, has never been allowed in any case, either in law or equity. The creditor is allowed no such privilege.

'7. In such cases, no provision is made by the act to allow the creditors a trial by jury.

'8. An appeal is given to the debtor-none is allowed by the act to a creditor.

'9. When the cause is removed into the appellate court, the debtor can demand either a trial by jury or a trial by the court. The creditor has no such privilege.

'10. The debtor may take the chance of a decision in his favour by the court; if in his favour, it will be conclusive. If the court decides against him, then he may demand a jury, and have another chance. If the court decides against him, he can have another chance by appeal. In the appellate court, if he thinks the court is likely, from previous decision, to be against him, he can take the chance of a jury. If he thinks the jury is likely to be against him, he can take his chance with the court. If some of these chances do not hit, there is no 'uncertainty in the law.' The creditor has no choice; any decision against him is to be final, and scarcely any in his favour is allowed to be final or conclusive.

'11. The English bankrupt law and the act of 1800 gave the appointment of the assignee to the creditors, because they alone were interested. No such privilege is given by this act.

'12. The commissioner is to be appointed in the county where the bankrupt lives.

'13. There is no punishment for frauds.

'14. To conclude, the debtor is to get a discharge from all his debts, without the consent of any creditor. It applies to debts contracted before the passage of the act, and of which creditors could have had no idea at the time they gave the credit.

'May I not here inquire, whether it is fair to construe this grant of power, intended for the benefit of creditors, and to enable them to collect their just debts, so as to authorize the passage of a law solely for the benefit of debtors, and to enable them to avoid and discharge their debts?

'Again: a clause had been introduced into the Constitution, prohibiting the states from passing any law impairing the obligation of contracts, because, as was said by the members of the convention, it was immoral, contrary to the first principles of justice, and a power that ought not to be exercised by any legislative body. Would the states have ratified the Constitution, and submitted to such a prohibition on themselves, for such reasons, if they had understood that Congress could, at its pleasure, under colour of bankrupt laws, authorize the abrogation of all contracts?'

Pursuant to the opinion, decrees were entered, dismissing the first cases presented for final discharges in the district of Missouri; and some twelve hundred more, depending in that court, will be dismissed, unless the decrees are reversed which have been entered. It was thought, by the circuit judge, due to the county at large, and to the parties concerned, that this important question should meet with the speedy decision of this court; and therefore it was brought here.

No law that Congress ever passed, has in it to a greater degree, the elements of various construction and confusion, than the bankrupt law of 1841, when administered by more than thirty judges, acting separately; if all are exempt from the revising power of this tribunal, created for the purpose (amongst others) of producing uniformity of decision and construction in all cases over which its jurisdiction extends.

I think Congress intended, by the 6th section of the bankrupt law, to give the district judge the power to adjourn questions into the Circuit Court, 1. For the purpose of obtaining the aid and assistance of the circuit judge; and, 2. To make up a division of opinion on great questions, so that the decision of the Supreme Court might be had. This was contemplated by Congress; or it was intended that in no bankrupt case should this court have a revising power, although in every district in the United States the law might be differently construed: and the wildest prediction could hardly have exceeded the reality. So far from being 'a uniform system of bankruptcy,' in its administration, it has become, by the various and conflicting constructions put upon it, little more uniform than the different and conflicting state insolvent laws. This result could not have escaped those who passed the law; it was too prominently manifest to be overlooked; I cannot, therefore, bring my mind to the belief that the revising power of this court was intended to be cut off. And, as the most expeditious and convenient mode of revision was by a division of opinion, I think Congress intended that should be the mode. Notwithstanding the question was sent to this court, the case might progress below at the election of the district court; so the recited act of 1802 provides; and then the creditor and debtor would have equal opportunities to redress a perverted construction. But, as the matter now stands, the remedy is with Congress, either to give this court jurisdiction, or to withhold it.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the district of Kentucky, and on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that this cause be and the same is hereby dismissed, for the want of jurisdiction, and that this cause be and the same is hereby remanded to the said Circuit Court, for such proceedings to be had therein as to law and justice may appertain.

While this volume was in press, we received the following opinion delivered by Judge Catron in his judicial district, which we insert as being of general interest.

IN THE MATTER OF EDWARD KLEIN.

This is an appeal from the District Court of Missouri, in a case of bankruptcy, on the voluntary petition of the appellant, to be discharged from his debts, on the surrender of his property, according to the act of Congress of 1841. The proceeding being in all respects regular, the petitioner moved for his discharge: the District Court refused to grant such motion, 'because it considered the act of Congress under which said Klein asked to be discharged from all his debts, as being against the Constitution of the United States, and therefore the court had no power to grant such discharge.'

The ground of this judgment the Circuit Court is called upon to revise. I am relieved from setting forth at any length the opinion of the district judge, because this has been already done, in an opinion delivered by me in the Supreme Court of the United States at its last term, when an attempt was made to bring the present question before that court to have it decided for the purposes of this case.

By the Constitution, Congress is vested with power 'to establish uniform laws on the subject of bankruptcies throughout the United States.' The district judge was of opinion, that the extent of the power is limited to the principle on which the English bankrupt system was founded; and to that system the convention referred, when it adopted the clause above recited, for its definition. That system provided, a proceeding by a creditor against a debtor who was a trader; a distribution of a bankrupt's effects equally among his creditors; and a discharge of the debtor from his contracts upon obtaining the consent of a given majority of his creditors. That it was a proceeding for the benefit of creditors; the whole system being founded on the principle that a trader who owed debts in various parts of the country, and was fraudulently making away with his property, instead of paying his debts with it, should have the property taken away and placed in the hands of trustees or other officers, with which his debts should be paid; and each of his creditors, whether present or absent, have his fair dividend; and that the bankrupt law of 1800, is a fair exposition of the constitutional provision.

Briefly: That a bankrupt law, was one, by which honest creditors could force fraudulent debtors, who were traders, to surrender all their property, to pay rateably all their just debts: but that a law made solely and entirely for the benefit of debtors, and which enabled them at their own election, to avoid their debts, was opposed to the whole intent, spirit, and object of a bankrupt law.

I state thus much of the grounds on which my brother judge's decree was founded from his printed opinion, because this case has not been argued on part of the creditors; for whom no counsel appeared in this court, nor did there in the court below, as I am informed. The accuracy, industry, and unquestioned ability of the district judge, have, I do not doubt, brought forward the best reasons that exist, in support of the judgment he gave. The tenor, and true spirit, of the English bankrupt laws, such as they were when our Federal Constitution was adopted, he has given; and I agree with him, that the act of 1841, in so far as it permitted the debtor at his own sole election, to come into court and coerce an extinction of his debts, and abrogation of his contracts, contrary to the will of his creditors, was in violation of the leading principles on which the English laws were founded. Our law contemplated a proceeding by a debtor against his creditors; provided the debtor was insolvent: by the English law, the creditor alone could originate the proceeding; and it mattered not, whether the defendant was insolvent or otherwise; if he did the fraudulent act, it made him a bankrupt-a fraudulent trader. Then by the English laws, 'a fraudulent trader' could only be a bankrupt; with him as debtor; and with his creditors, could courts deal; and this at the election of the creditors-the debtor, having no election to ask for distribution or for a discharge from his debts. If the power conferred on Congress, carries with it these restrictions, then the District Court properly refused to discharge the applicant Klein, because the act of Congress was unconstitutional in his case. But other and controlling considerations enter into the construction of the power: it is general and unlimited, it gives the unrestricted authority to Congress over the entire subject, as the Parliament of Great Britain had it; and as the sovereign states of this Union had it before the time when the Constitution was adopted. To go no further: what was the power of the states on the subject of bankruptcies? They could, and constantly did, permit the debtor to come involuntarily and surrender his property, and ask a discharge from his debts; the property was distributed generally among the creditors, and the debts of the petitioner annulled. Nor does the Constitution prohibit the states from passing such laws; New York, Pennsylvania, Louisiana, and others, now have them in full operation. The insolvent laws of Pennsylvania are in substance, and to a great extent in detail, similar to the act of Congress of 1841; and no doubt furnished some of the ideas that were incorporated into the act. That Pennsylvania had power to pass these laws, no one ever doubted, so far as she was not restricted by the Constitution of the United States. The Supreme Court held, in the case of Ogden v. Saunders, 12 Wheat. 213, that the states retained the power and could exercise it by law, and that the law would operate to discharge the contract between debtor and creditor; they being inhabitants of the particular state at the date of the proceeding, if the contract had been made there after passing the law. In such case the parties contracted subject to the law, and it entered into the contract. The case of Boyle v. Zacharie and Turner, 6 Peters, 635, settled the contested question of power; and that it remained with the states to this limited extent. But the restrictions depend on general principles of international law, and other parts of the Constitution; especially that, which prohibits the states from passing any law impairing the obligations of contracts; as will be seen by reference to the leading case on the subject, of Sturges v. Crowninshield, 4 Wheat. 122. What the states might do before the adoption of the Constitution, may well be ascertained, from what they now do in virtue of their respective powers. They may frame a bankrupt law in any form they see proper; this has never been questioned so far as my knowledge extends. The controversies in the Supreme Court turned on the question, whether the Constitution inhibited the states (there being no acts of Congress opposed to it) from legislating on the subject of bankruptcies; or, whether the power was exclusive in Congress. In the state tribunals the debtor comes involuntarily, and forces the creditor to prove his debt or be barred. One not a trader may apply: neither is the consent of the creditors (or any portion of them) necessary to authorize a discharge from the contracts of the debtor. So he may have no property to divide, and many debts to annul, from which he seeks a discharge, and from which he is discharged. These powers clearly belonged to the state governments, before Congress was invested with them; and this was done without limitation.

The District Court relied confidently on the ground, that Congress can pass no law violating contracts; and that the clause of the Constitution conferred no such authority, because the English bankrupt laws, by which the power is supposed to be restricted, only permitted the contract to be annulled at the election of four parts in five of the creditors in number and value; and therefore they annulled it by a new contract. This argument proceeds on the assumption, that a proceeding in bankruptcy can only be had, at the election of, and for the benefit of creditors; and that every material step, is their joint act; to which the debtor is compelled to submit. For the present it will only be necessary to say, that one prominent reason, why the power is given to Congress, was to secure to the people of the United States, as one people, a uniform law, by which a debtor might be discharged from the obligation of his contracts; and his future acquisitions exempted from his previous engagements: that the rights of debtor and creditor, equally entered into the mind of the framers of the Constitution. The great object was to deprive the states of the dangerous power to abolish debts. Few provisions in the Constitution have had more beneficial consequences than this; and the kindred inhibition on the states, that they should pass no law impairing the obligation of contracts.

The inhabitants of states producing largely, must be creditors; the inhabitants of those that are consumers, will be debtors; bankrupt laws of the latter states might ruin the producers and creditors; they having no interest or power in the government of the consuming states, and it being the interest of the latter to annul the debts of non-residents, no remedy would exist for the grossest oppression. No laws of relief would be more effectual in times of pressure by foreign creditors; nor more likely to be adopted. If one state adopted such a measure, it would fornish a fair occasion for others to do the same, on the plausible pretext of self-defence; others would be forced into a similar bad policy, until discredit and ruin would overspread the entire land, by an extinction of all debts; and a consequent prostration of morals, public and private, on the subject of contracts. This evil had to a certain extent occurred, and was fresh in the minds of the framers of the Constitution; and no doubt it would again occur in some of the states, but for the provisions under consideration standing in the way, of abrogating the private contracts of non-residents.

But if Congress passed the law, it must be uniform throughout the United States, then the entire people are equally represented, and have the power to protect themselves against hasty and mistaken legislation, by its repeal, if found oppressive in practice.

Legislation by Congress on the subject of bankruptcies, is of much less consequence, than its prohibition on part of the states. They can pass no law affecting a non-resident, because no jurisdiction exists of his person; they can impair no contract made out of the state, because it was not made subject to the state insolvent law. The power, as it stands restricted by the decision in Ogden v. Saunders, is almost harmless; those whom the state bankrupt law can most affect, have the popular vote in the state legislature, and may repeal the law; the foreigner has little interest in its existence, as he cannot be affected by it, further than that the debtor may be deprived of his property. Another reason why Congress was vested with the power, was to prevent dangerous conflicts of jurisdiction among the states. A discharge in one sovereignty from contracts, is by the laws of nations not recognised as a discharge in another sovereignty, save on the grounds of comity; an assignee under the British bankrupt laws, is not recognised in this country as owner of the debts of the bankrupt; and an attaching creditor, or the government may disregard a title set up by the foreign assignee. Harrison v. Sterry, 5 Cranch, 298. The states in this respect are foreign to each other, and would be little likely to extend comity to the discharge of each others; from which great confusion might follow, and much ill will.

In considering the question before me, I have not pretended to give a definition; (but purposely avoided any attempt to define) the mere word, BANKRUPTCY. It is employed in the Constitution in the plural, and as part of an expression; 'the subject of bankruptcies.' The ideas attached to the word in this connection, are numerous and complicated; they form a subject, of extensive and complicated legislation; of this subject, Congress has general jurisdiction; and the true inquiry is-To what limits is that jurisdiction restricted?

I hold, it extends to all cases where the law causes to be distributed, the property of the debtor among his creditors: this is its least limit. Its greatest, is a discharge of the debtor from his contracts. And all intermediate legislation, affecting substance and form, but tending to further the great end of the subject-distribution and discharge-are in the competency and discretion of Congress.

With the policy of a law, letting in all classes, others as well as traders; and permitting the bankrupt to come in voluntarily, and be discharged without the consent of his creditors, the courts have no concern; it belongs to the lawmakers.

I have spoken of state bankrupt laws. I deem every state law, a bankrupt law, in substance and fact, that causes to be distributed by a tribunal, the property of a debtor among his creditors; and it is especially such, if it causes the debtor to be discharged from his contracts, within the limits prescribed by the case of Ogden v. Saunders. Such a law may be denominated an insolvent law; still it deals directly with the subject of bankruptcies, and is a bankrupt law, in the sense of the Constitution; and if Congress should pass a similar law, it would suspend the state law, while the act of Congress continued in force.

This court deeming the act of 1841, constitutional, it is ordered, that the decree of the District Court dismissing the proceeding be reversed, and the petitioner, Klein, be discharged from his debts, and receive his certificate. The same order is directed in the case of Christopher Rhodes; dismissed also on constitutional grounds by the District Court.

title: Nelson v. Carland/Dissent Catron