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the necessity of entering or paying duties in the ports of any State other than that to which they were bound, or to obtain a clearance from any port other than at the home port, or that from which they sailed. And also by the provision that no preference should be given, by any regulation of commerce or revenue, to the ports of one State over those of another. So far as the regulation of revenue is concerned, the prohibition in the clause does not seem to have been very important, as, in a previous section (8), it was declared that all duties, imposts, and excises, shall be uniform throughout the United States;' and as to a preference by a regulation of commerce, the history of the provision, as well as its language, looks to a prohibition granting privileges or immunities to vessels entering or clearing from the ports of one State over those of another. That these privileges or immunities, whatever they may be in the judgment of Congress, shall be common and equal in all the ports of the several States. Thus much is undoubtedly embraced in the prohibition; and it may, certainly, also embrace any other description of legislation looking to a direct privilege or preference of the ports of any particular State over those of another. Indeed the clause, in terms, seems to import a prohibition against some positive legislation by Congress to this effect, and not against any incidental advantages that might possibly result from the legislation of Congress upon other subjects connected with commerce, and confessedly within its power. Besides, it is a mistake to assume that Congress is forbidden to give a preference to a port in one State over a port in another. Such preference is given in every instance where it makes a port in one State a port of entry and refuses to make another port in another State a port of entry. No greater preference, in one sense, can be more directly given than in this way; and yet the power of Congress to give such preference has never been questioned. Nor can it be without asserting that the moment Congress makes a port in one State a port of entry, it is bound, at the same time, to make all other ports in all other States ports of entry. The truth seems to be that what is forbidden is, not discrimination between individual ports within the same or different States, but discrimination between States."

The foregoing dicta, if accepted by the courts, would seem to dispose of the argument which has by some been made that, under the Hepburn Rate Act it will not be constitutionally possible for Congress, or its agent, the Interstate Commerce Commission, to grant differentials to different cities.

§ 375. Commerce with the Territories and with the District of Columbia.

The Commerce Clause contains no reference to trade between the States and the Territories or the District of Columbia, or the Territories inter se. In general, however, the courts have treated the District of Columbia and the Territories as "States" within the meaning of the Clause.79

Congress having exclusive jurisdiction within and over the District and the Territories, there of course cannot arise, as to them, the objection that federal regulations extend to matters that are of domestic concern.

§ 376. Commerce with Indians.

So long as the Indians form distinct communities occupying clearly defined territories, even though those territories be within the borders of the States, intercourse with them is a matter subject to federal regulation,80 and this federal power of regulation extends to the prohibition of sales to Indians within a State and beyond the borders of the Indian Reservation.81 The federal control of commerce with the Indians, given by the Commerce Clause, is thus seen to be supplemented by the general jurisdiction of the National Government over Indians as wards of the Nation.82

79 Hanley v. Kansas City S. Ry. Co., 187 U. S. 617; 23 Sup. Ct. Rep. 214; 47 L. ed. 333; Stoutenburgh v. Hennick, 129 U. S. 141; 9 Sup. Ct. Rep. 256; 32 L. ed. 637. These cases do not, however, squarely decide this point. Cf. Michigan Law Review, II, 468.

80 United States v. Kagama, 118 U. S. 375; 6 Sup. Ct. Rep. 1109; 30 L. ed. 228; United States v. Holliday, 3 Wall. 407; 18 L. ed. 182.

81 United States v. Holliday, 3 Wall. 407; 18 L. ed. 182.

82 See Chapter XX for a more detailed treatment of this subject.

CHAPTER XLIV.

OTHER POWERS OF CONGRESS.

§ 377. Naturalization.

NATURALIZATION.

Clause 4 of Section VIII of Article I of the Constitution gives to Congress the power to establish "an uniform rule of naturalization."

This power has already been considered in an earlier chapter dealing with citizenship, and it is here necessary to add only that the power, though in an early and ill considered case held to be one that may be concurrently exercised by the States,' was in Chirac v. Chirac,2 decided in 1817, held to be exclusively in Congress and this doctrine has not since been questioned.

BANKRUPTCY.

§ 378. Bankruptcy: Definition of.

The same clause which gives to Congress the power to establish an uniform rule of naturalization, authorizes that body to establish "uniform laws on the subject of bankruptcies throughout the United States."

The construction which has been given to this clause furnishes one of the few exceptions to the general rule that the technical terms of the Constitution are to be given the meanings which they had at the time the Constitution was adopted. In 1789 "bankruptcy" and "insolvency" had, in the English law, different and distinct meanings. Bankruptcy applied only to merchants or traders charged with having committed some fraudulent or quasifraudulent act upon their creditors, who thereupon might institute proceedings to have their debtor declared a bankrupt, his property taken and distributed in payment of his debts, and he him1 Collet v. Collet, 2 Dall. 294; 1 L. ed. 387.

22 Wh. 259; 4 L. ed. 234.

self either discharged from further liability therefor, or imprisoned as the court might think fit. Insolvency, upon the other hand, described the status of a debtor, not a trader, who, in order to obtain a discharge might in certain cases surrender, or offer to surrender, all his property in payment of his debts.

In this country, however, from the beginning Congress and the Supreme Court have given to the term "Bankruptcy" a meaning broad enough to cover " Insolvency" as well. Indeed no distinction between the two was recognized in the colonies before the separation from England.3

By various acts Congress has, from time to time, enacted laws providing for both voluntary and involuntary bankruptcy, that is, for proceedings instituted by the debtor himself or in invitum by his creditors. The details of this legislation need not be here given. It is sufficient to say that the first law was enacted in 1800, and repealed in 1803; the second law in 1841 and repealed in 1843; the third in 1867, and after being several times amended, repealed in 1878; the fourth law, now in force, being passed July 1, 1898.

§ 379. Federal Power not Exclusive.

4

In Sturges v. Crowninshield, affirmed in Ogden v. Saunders, the court held that the power to establish bankruptcy laws is not exclusively vested in Congress, but may be exercised by the States in the absence of federal legislation.

3 Story, Commentaries, Ch. VI. In Sturges v. Crowninshield (4 Wh. 122; 4 L. ed. 529), Marshall says: "The bankrupt law is said to grow out of the exigencies of commerce, and to be applicable solely to traders; but it is not easy to say who must be excluded from, or may be included within, this description. It is, like every other part of the subject, one to which the legislature may exercise an extensive discretion. This difficulty of discriminating with any accuracy between insolvent and bankrupt laws would lead to the opinion 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 a bankrupt law." See Hanover National Bank v. Moyses (186 U. S. 181; 22 Sup. Ct. Rep. 857; 46 L. ed. 1113), in which the authorities on this point are reviewed.

44 Wh. 122; 4 L. ed. 529.

5 12 Wh. 213; 6 L. ed. 606.

§ 380. State Bankruptcy Laws and the Obligation of Contracts. The right of the States, in the absence of conflicting congressional legislation, to enact bankruptcy laws is limited by the provision of the Constitution that no State shall pass any law impairing the obligation of contracts. Indeed, if we are to accept the statement of the court in Hanover v. Moyses this prohibition was made for this express purpose."

In Sturges v. Crowninshield the court held invalid a state law which discharged the debtor from a contract entered into previous to its passage.

In Ogden v. Saunders the court held valid a state bankruptcy law which discharged the debtor and his future acquisitions of property so far as it related to debts contracted subsequent to the passage of the law. The law was thus, in effect, read into each contract as a clause thereof.8

The authority of the States to deal by bankruptcy or other laws with contracts entered into subsequent to their enactment is plenary. "The inhibition of the Constitution [as to the impairment of contracts] is wholly prospective. The States may legislate as to contracts thereafter made, as they may see fit. It is only those in existence when the hostile law is passed that are protected from its effect." Thus the States have been permitted to exempt at will from execution, or from attachment and distribution under bankruptcy proceedings, such classes and amounts of the debtor's property as they may see fit.10

9

§ 381. State Laws Have no Extraterritorial Force.

In Ogden v. Saunders was laid down the important principle that a certificate of discharge under a state law cannot be pleaded 6186 U. S. 181; 22 Sup. Ct. Rep. 857; 46 L. ed. 1113.

7 The court say: "As the States, in surrendering the power, did so only if Congress chose to exercise it, but in the absence of congressional legislation retained it, the limitation was imposed on the States that they should pass no law impairing the obligation of contracts.'"

8 Chief Justice Marshall and Justices Story and Duvall dissenting.

9 Edwards v. Kearzey, 96 U. S. 595; 24 L. ed. 793.

10 See, for example, Denny v. Bennett, 128 U. S. 489; 9 Sup. Ct. Rep. 134; 32 L. ed. 491.

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