The early bankrupt laws of England proceeded upon an assumption which they maintain to this day: it is, that bankruptcy is a crime, and that he who is guilty of it may properly be proceeded against as a criminal, (i) This arose, in part, from the fact that the earliest bankrupt laws were aimed against foreign merchants, who, after entering into mercantile obligations, too often, in the words of Coke, "suddenly escaped out of the realm, " to the detriment of their creditors, (j) And in part from a similar fact, that after these laws were made to operate in relation to all merchants, subjects or aliens, they were still, as for some purposes they now are, confined to traders. And it was thought to be a grievous wrong, working extensive mischief, when a trader, who, from the nature of his business, generally owes many persons, should deprive them all of what was due to them, and perhaps needed by them to discharge their own obligations.

(g) uDebitor itaque as alienum contrahere dicitur . . . quia aes quod accipit, quodve contrahit, alienum, id est credttoris, fuit" Struvii Syntagma Jurisprudent!®, p. 1002, note B (edition 1718). See also AEes, in Gesner's Thesaurus.

(h) The principle of cessio bonorum was introduced by the Christian emperors; and, by it, if a debtor ceded and yielded up all his fortune to his creditors, he was secured from imprisonment for his debts. "Omni quoque corporari cruciatu sernoto." Code 7,71.

(i) That such was the assumption on which the early laws of bankruptcy were based, is apparent from the language of 34 &35 Hen. VIII., c 4,-the earliest law on this subject relating to Englishmen. This law described bankrupts as "persons craftily obtaining into their hands great substance of other men's goods, who suddenly flee to parts unknown, or keep their houses, not minding to pay or restore to their creditors their debts and duties, but at their own will and pleasure consume the substance obtained by credit of other men for their own pleasure and delicate living, against all reason, equity, and good conscience." And while the strict line of distinction was maintained between bankrupt and insolvent laws, it might well be said, that the foundation of bankruptcy was criminality, and that of insolvency, misfortune. But when, as generally at the present day, the terms bankrupt and insolvent are used interchangeably, it would be perhaps too much to say, that the accident of a statute being called one or the other would determine, in any degree, the question, whether crime or misfortune should be the basis of a proceeding under it.

(j) The most important of the early statutes against strangers, was that against the Lombards, which is nowhere to be found at this day, but was passed in the reign of Edward III., and is quoted by Lord Coke, in 4 Inst. 277. It was enacted, that if any merchant of the company acknowledge himself hound in that manner, that then the company shall answer the debt; so that another merchant which is not of the company shall not be thereby grieved nor impeached.

* The statutes of insolvency originally differed importantly from those of bankruptcy. They began much later than the bankrupt laws; and they have been amended and varied from time to time; and in this way two systems - one of bankruptcy law, and the other of insolvency law - grew up together; not only differing from each other, but, to a certain extent, complementary to each other. But in recent times they approach so near together that the distinction between them is much less positive and exact than it once was. (k) The insolvency law operates upon all debtors indiscriminately; but upon none, in invitum. That is, while the bankrupt law was confined to traders, but permitted a creditor to force any trader, who did not pay his debt to him, into bankruptcy, the insolvency law only permitted any and every debtor, without reference to his occupation, to divide all his effects ratably among all his creditors, without disturbance from either of them. And then the bankrupt law, perhaps, because it began with seizing and sequestrating the effects of the debtor as if he were fraudulent, in the end discharged him from all his mercantile debts, if all his effects were honestly given up, and no indication of fraud appeared anywhere. On * the other hand, the insolvency law, which attacked no one,, but invited all, discharged no debt, but protected the honest insolvent from further legal process against his person; subjecting, however, his subsequently acquired property to a liability for the debts contracted before insolvency. These differences, probably at least (for it may not be quite certain), constituted .the original distinction between bankruptcy and insolvency. In the course of this chapter we use the words indifferently, as if they were synonymous, unless we indicate expressly, or by the context, that we speak of either specifically. As we have said, they have certainly come much nearer together, and they perfectly agree in their general purpose. This purpose divides itself into two parts, - the first, to secure to the creditors of a party failing a ratable distribution of all his property; the second, to secure to the honest debtor, after his property is thus applied, immunity, in a greater or less degree, from further molestation. (l)

(k) Spence's Equitable Jurisdiction of the Court of Chancery, 198, and following pages. Also a learned article in the London Law Magazine, vol. i. (n. s.) 87, wherein the policy of the insolvent and bankrupt systems is set forth, and the English statutes on these subjects examined. See 2 Kent, 394, and note; Blanchard v. Russell, 13 Mass. 1; Ogden v. Saunders, 12 Wheat. 213. In the case of Sturges v. Crowniushield, 4 Wheat 19, the distinction between bankrupt and in-solvent laws was discussed, with reference to the clause of the Constitution of the United States, conferring on Congress the power to pass uniform laws on the subject of bankruptcy. Marshall, C. J., delivering the opinion in that case, said: "The subject is divisible in its nature into bankrupt and insolvent laws, though the line of partition between them is not so distinctly marked as to enable any person to say, with positive precision, what belongs exclusively to the one and not to the other class of laws. But if an act of Congress should discharge the person of the bankrupt, and leave his future acquisitions liable to his creditors, we should feel much hesitation in saying that this was an insolvent, not a bankrupt act, and therefore unconstitutional. Another distinction has been stated, and has been uniformly observed. Insolvent laws operate at the instance of the imprisoned debtor; bankrupt laws at the instance of a creditor. But should an act of Congress authorize a commission of bankruptcy to issue on the application of a debtor, a court would scarcely be warranted in saying that the law was unconstitutional, and the commission a nullitv. . . . This difficulty of discriminating with any accuracy between insolvent ana bankrupt laws would lead to the opinion that a bankrupt law may contain those regulations that are generally found in insolvent laws, and that an insolvent law may contain those which are common to a bankrupt law." The distinction between bankruptcy and insolvency will be found often alluded to in the cases cited infra. See especially the learned opinion of Bronson, J., in Sackett v. Androes, 5 Hill, 327; Lin'ngston, J., in Adams v. Storey, 1 Paine, C. C. 79.