The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1848-02-10

the solemn adjudiosturs Of this court whore question
construction not binding upon them, becsuss. to
yield obedience to authority to sacrifice conscience
He thought this was strongly opposed 70 the policy Of
institutions He sure that the very motive Of
bringing this Supreme Court Of the United States into
from the wise policy Of those who framed
this form Of like Of which Was never
sesn-thst there would be supreme tribunal,
whose authority upon all constitutional law, ana STA
While he said this much in defence Of the dignity and
authority of this court he would also that although
the court below had turned their backs the deci
sions of their honors from the magnitude OF the In
teres Involved and the high character and ability OF
the couose appearing In behalf Of the decision below,
he trusted the court would give this as 1t had In
several instances BEFORE careful investigation, not
outstanding its former decision might have been disre
ssrdsd In this way they would DO able to lend their
stronger and rmer re-afrmance Of the doctrines laid
down BEFORE give to the decision Of the strength
Court below that they wrong ana that the decision
made before them by their In the In
made before thsm but correct because 1t was correct
would proceed to discuss the four following pro-
positions which, he considered, embraced and covered
Is That the District Court, under the act Of Con.
gress of Aug 49, ls4l he bankrupt sct had jurisdic
the inoumbranse and that the purchasers under the
decree obtained clear and indisputable title.
ad That sS sSs 20 far e
decree sale without consent that with the assent OF
thu elder MORTGAGE the obtains title against
Sd That II wrong in the first two the circumstances
with the conduct Of the bank throughout the
presumptive evidence that the bsak as
4th That under the laws of Louisiana, the canoea.
ton Of the mortgages being directed by the Superior
Court between the mortgages and purchasers, was
fnsl and conclusive. To maintain these propositions
would be the course Of his argument.
you'd settle the Question whether the Union
was be governed by whole harmonious law In
lation to bankruptcy whether each State to
lour fhA thnvvnh
The question would be- whether tho District Court
clothed by the of Congress of S4 with power to de-
Of ali sxistins incumbrsnoss Had the Congress the
power pass that act Of 1871 and If they had had
they the power to cloths the judiciary With those
exclusive powers the subject Of bankruptcy p
The first It not necessary to argue. Outing the
session Of Congress, at which It passed. In tho
and which followed the passage Of the act
Congress to the act bad been denied but he would
not insult the court BY entering into argument to
decreed under the aud therefore had decided upon
Its oonstitutonaity The Congress Of the Slater
and plan, to pass such law. "Congress shall have
power to pass uniform laws OF bankruptcy" The only
restraint upon their power T. that shall be uniform -
unlimited control and jurisdiction the subj cot
that power is absolute and unqualified The objections
persons whom 1t allowed to become bankrupt, the
ground that allowed voluntary and involuntary bank
to be bald and finally that it clothed the United States
Courts with power to destroy the Jurisdiction
Courts over the since IL. passage Of the but
into question the validity of oil the provisions OF It.
If you turn to the Federalist, in the AID number
afterwards b:oams~you win see that this power was
given to Congress the ground that 1t necessary
iGs the regulation Of that Creditors you'd re-
necessary that where States each claiming to be
sovereign in the exercise Of that sovereignty they
would have legislative provisions upon provisions, which
would destroy ell uniformity, produce confusion and
leave the door open to fraud secretion Sc To guard
against this almost certain eject MIR. Madison advo-
Gates this in Congress- (aud 1t wss with the
ception of Come ccut, agreed to with unanimty by
the States should BE- given to power to exercise
sovereignty all 1t was to be uniform and 1t
FROM the very that there could b. uniformity
and to guard against fraud to protect the creditor and
have the whole Jurisdiction all thus have that
uniformity that would not exist without 1t He asked
the court to above the chambers of the two houses
ana fancy themselves clothed with their powers to e
gste ter the whole to give the powers to courts with
Jurisdiction whole, and what would be said to .
suggestion that the court should not have this
when the Union cut up into thirty Statesmen to
say Of what We NAV hsve-would 1t not be
said that the act would be useless and that the
object of the law would be obtained unless this
was done? Oae principle OF Polus that Judicial
power should be co-extepsive with the legisla-
rest the Law, and to administer the law, must
be co-extensive with the legislative power. There
were no laws but what required and the
gislate It well settled that in every well organized
government the power Of judiciary must be equal
and coextensive with the legislative, else where
would be the uniformity Of law Of construction and
Interpretation We may have thirty different coustruc-
tions upon law. Now to this bankrupt act itself
the tho construction put upon
by the court below The frat thing 10 Its title act
United states The thing to be dons-ths OBJECT Con-
gress thought they doing to establish uni
form act bankruptcy throughout the United states
The FIRST section establishes this 1t provides Sc,
uniform act throughout the United States. To the
second section their is provso-that nothing 10 this
rights of married women minors, or incumbrances &c
This proviso 10 not that married women minors, &c
shall not be subject to this act 30 far their remedy
exists but 1t merely excepts from its operation their
legal rght-the rights of married women, So. shall
not be impaired, Sc not that their remedy Is not
touched. It Is universal rule of rpretation,
that the exception In law proves the general power
and 1t is said that the very things excepted unless
excepted, would have fallen into the grasp OF the
exception relied by the court below and by the
sci who had preceded him (Mr. Goodrich) for their
of the District Court tho remedy Of married
minors So, remains. For II not Congress would have
excepted the remedy as well as the right OF married
IL did not exist the right would be subject to the law
and the absence Of the exception as TO the remedy,
proves that IL not excepted 1t Is clear that Congress
considered that unless this provision inserted the
right Of the married women, Minors and incum-
brancers would have fallen under the law. This very
exception In favor Of married xomen minors sc
put into the bankrupt act account OF the laws
Of Louisiana, than any other cause. The state OF
Lsusaua, governed by the high dictates of humanity
and foresight in behalf of the defsnceess have enacted
that the wife and children against the husband and
the father, have sacred right in property This pro-
able instances In other States where by the mprovi
dence and speculation and other desires of the head OF
the family the wife end children reduced to begging
and ruin Against him, therefore, the State Of Louis
lana have given right to the wife and children This
provision becsme part Of the In consequence Of ths
provision In the laws of Louisiana will be by
reference to tho in Robinson the judge who dsv
cred the opinion In that being in Congress at the
time of the passage Of the act This provso on pro-
tects the right OF tho and leaves his
ay to under the act The court below interpret
this section IL these parties pied were taken
bodily Of tho provisions Of the that all Its actions
aod liabilities and efects Of no effect them
The hour Of three having arrived, and Mr.. johnson
not having concluded tho Chief Justice suggested the
proprety of adournipg aud his concluding hts remarks
to. morrow; and tho court adjourned.
MIR. Clay follows Mr.. johnson.
BALTIMORE, Feb. 8, 1S4S