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to his debtor ; and his debt passed upon by the court, perhaps, without his having ever heard of the institution of legal process to destroy it.
The Scotch, if I remember correctly, attach the summons on the flag-staff, or in the market place, at the shore of Leith; and the civil law process by proclamation, or viis et modis, is not much better, as the means of subjecting the rights of foreign creditors to their tribunals.
All this mockery of justice, and the jealousies, recriminations, and, perhaps, retaliations, which might grow out of it, are avoided, if the power of the states over contracts, after they become the subject exclusively of judicial cognizance, is limited to the controversies of their own citizens.
And it does appear to me almost incontrovertible, that the states cannot proceed one step farther without exercising a power incompatible with the acknowledged powers of other states, or of the United States, and with the rights of the citizens of other states.
Every bankrupt or insolvent system in the world must partake of the character of a judicial investigation. Parties whose rights are to be affected are entitled to a hearing. Hence every system, in common with the particular system now before us, professes to summon the creditors before some tribunal, to show cause against granting a discharge to the bankrupt.
But on what principle can a citizen of another state be forced into the courts of a state for this investigation ? The judgment to be passed is to prostrate his rights; and on the subject of these rights the constitution exempts him from the jurisdiction of the state tribunals, without regard to the place where the contract may originate. In the only tribunal to which he owes allegiance, the state insolvent or bankrupt laws cannot be carried into effect; they have a law of their own on the subject ;* and a certificate of discharge under any other law would not be
* Act of congress of January 6th, 1800 (chap. 4, vol. iii. p. 301).
acknowledged as valid even in the courts of the state in which the court of the United States that grants it is held. Where is the reciprocity? Where the reason upon which the state courts can thus exercise a power over the suitors of that court, when that court possesses no such power over the suitors of the state courts ?
In fact, the constitution takes away the only ground upon which this eminent dominion over particular contracts can be claimed, which is that of sovereignty. For the constitutional suitors in the courts of the United States are not only exempted from the necessity of resorting to the state tribunals, but actually cannot be forced into them. If, then, the law of the English courts had ever been practically adopted in this country in the state tribunals, the constitution has produced such a radical modification of state power over even their own contracts, in the hands of individuals not subject to their jurisdiction, as to furnish ground for excepting the rights of such individuals from the power which the states unquestionably possess over their own contracts and their own citizens.
Follow out the contrary doctrine in its consequences, and see the absurdity it will produce.
The constitution has constituted courts professedly independent of state power in their judicial course ; and yet the judgments of those courts are to be vacated, and their prisoners set at large, under the power of the state courts, or of the state laws, without the possibility of protecting themselves from its exercise.
I cannot acquiesce in an incompatibility so obvious.
No one has ever imagined that a prisoner, in confinement under process from the courts of the United States, could avail himself of the insolvent laws of the state in which the court sits. And the reason is, that those laws are municipal and peculiar, and appertaining exclusively to the exercise of state power in that sphere in which it is sovereign, that is, between its own citizens, between suitors subjected to state power exclusively, in their controversies between themselves,
In the courts of the United States no higher power is asserted than that of discharging the individual in confinement under its own process. This affects not to interfere with the rights of creditors in the state courts against the same individual. Perfect reciprocity would seem to indicate that no greater power should be exercised under state authority over the rights of suitors who belong to the United States' jurisdiction. Even although the principle asserted in the British courts, of supreme and exclusive power over their own contracts, had obtained in the courts of the United States, I must think that power has undergone a radical modification by the judicial powers granted to the United States.
I, therefore, consider the discharge under a state law as incompetent to discharge a debt due a citizen of another state ; and it follows, that the plea of a discharge here set up is insufficient to bar the rights of the plaintiff.
12 Wh. 368.
MASON v. HAILE.
(12 Wheaton's Reports, 370 – 383.]
Haile, being imprisoned for debt, in the state of Rhode Island, at the suit of Mason, gave bonds that he would remain in custody until “ lawfully discharged.” He afterwards petitioned the legislature for a discharge under an old insolvent law, which discharge he obtained. He was then sued on his bonds, it being said that the act of the legislature discharging him was unconstitutional and void.
Mr. Justice Thompson delivered the opinion of the court as follows:
The question in this case arises upon the following certificate of a division of opinion of the judges of the circuit court of the United States for the district of Rhode Island : “ This cause came on to be heard, and was argued by counsel on both sides, and thereupon the following question occurred : namely, whether, upon the amended pleas in this case, severally pleaded to the first and second counts of the plaintiff's declaration, and to which there are demurrers, and joinders in demurrer, the defendant is entitled to judgment, on the ground that the matters set forth therein, on the part of the defendant, are sufficient to bar the action ; or whether the plaintiff is entitled, upon said demurrers and joinders, to judg. ment? Upon which question, the court was divided in opinion."
It is not understood by this court, that any question, as to the sufficiency of the pleas, in point of form, is drawn under examination, but simply, whether, upon the merits, the mat
ter thereby set up is sufficient to bar the action. The action is founded upon two several bonds, given by the defendant to the plaintiff, and one Bates, whom the plaintiff survives, one dated the 14th, and the other the 29th, of March, 1814. The condition in both bonds is the same, except as to dates and sums, and is as follows: “The condition of the above obligation is such, that if the above bounden Nathan Haile, now a prisoner in the state's jail, in Providence, within the county of Providence, at the suit of said Mason and Bates, do, and shall from henceforth, continue to be a true prisoner, in the custody, guard, and safe keeping of Andrew Waterman, keeper of said prison, and in the custody, guard, and safe keeping of his deputy, officers, and servants, or some one of them, within the limits of said prison, until he shall be lawfully discharged, without committing any manner of escape or escapes during the time of restraint, then this obligation to be void, or else to remain in full force and virtue.”
The defence set up by the pleas, to show there has been no breach of the condition of the bond, is substantially, that in June, 1814, after giving the bond in question, the defendant presented a petition to the legislature of Rhode Island, praying relief and the benefit of the insolvent act of 1756, and that, in the mean time, all proceedings against his person and estate, for the collection of debts, might be stayed, and he be liberated from jail, on giving bonds to return in case his petition should not be granted. Upon this petition, the legislature, in February, 1816, passed the following resolution : « On the petition of Nathan Haile, praying, for the reasons therein stated, that the benefit of an act, entitled, An Act for the Relief of Insolvent Debtors, passed in the year 1756, be extended to him, voted, that said petition be continued until the next session of this assembly; and that, in the mean time, all proceedings against the said Haile, on account of his debts, be stayed ; and that the said Haile be liberated from his present imprisonment in the jail, in the county of Providence, on his giving sufficient bond to the sheriff of the county, conditioned