same time persons can be found and service made upon them by arrest, which is still allowed as citation, and the matter to be brought to the consideration of the court, is one for which the common law gave a remedy, the courts of ordinary jurisdiction have concurrent jurisdiction in personam, and may decree compensation and damages as in other cases. But if the ship or vessel is the object of pursuit, and the same is to be taken into the custody of the law and made responsible for liens and privileges in ordinary cases, civil and maritime, including spoliation, civil and maritime or prize cases, the district courts of the United States alone have jurisdiction, and any judgment pronounced in a proceeding in rem in the highest court in the State where the same can be rendered, if that court be but a justice of the peace, in an unappealable case, can be carried before the Supreme Court at Washington, where it is sure to be reversed; that court zealously protecting the jurisdiction of the Federal courts over such cases.

In admiralty personal qualities are in effect attributed to matter, so that it is the ship, vessel, or other thing which is supposed to have offended in prize cases, and in ordinary civil cases it is the ship or vessel which owes the duty or lien, as well as the captain and owners, and all persons interested are admitted in the process in rem as claimants, and the thing is treated as a real defendant. Revenue cases are in some respects assimilated to the above, although not belonging to the admiralty jurisdiction.

The proceedings are commenced by a libel, (libellus, a little book,) in which the plaintiff, through his lawyer, called a proctor, alleges and articulately propounds, in a series of numbered propositions the grounds of his complaint, to be specifically answered by the defendant, or by whoever comes into the case as claimant, if the proceeding be in rem. If either party give a bond for property, etc., he borrows a term from this, a solemn form of the civil law, and calls it a stipulation.

The Constitution of the United States conferred upon the courts of the Union exclusive jurisdiction in admiralty. In England this jurisdiction extended to tide waters only. At the commencement of the Government, giving the language the signification it then bore, it was supposed the power conferred only extended to tide waters, and so it was decided by the Supreme Court of the United States. The jurisdiction in the case of Warring et al, vs. Clarke, 5 Howard's Rep., 44, decided in 1847, for a collision between the steamboats Luda and De Soto, was maintained by proving that

there was a preceptible tide extending up the Mississippi river as high as Bayou Sara.

Since that period the Supreme Court of the United States, notwithstanding the earnest dissent of some of its members, has, as it always happens when convenience and expediency demand a chance, extended the admiralty jurisdiction over the lake and all rivers navigable by vessels of ten tons burthen and upwards. The simple and speedy proceedings in the courts of admiralty make that court a great favorite with many, while others think they see the tendency in the national courts to engross jurisdiction, which may lead to greater evils in the end than the present good attained by decisions, which they think overstep the limits of the Constitution as understood by those who framed it. The Constitution of the United States also confers upon Congress power to pass uniform rules of bankruptcy. It is a principle governing many of the provisions of the Constitution of the United States, that they are inoperative until Congress has passed some law to carry the provision of the Constitution into effect. Thus the Constitution gives the Courts of the United States the right to take jurisdiction of controversies between citizens of different States, between aliens and citizens, and as it respects the grants of lands made by different States, etc. But the Courts of the United States hold that they cannot take cognizance of such controversies without an act of Congress to carry the provisions of the Constitution into effect. Hence the individual States have power to pass and enforce insolvent and bankrupt laws when no act of Congress is in force on the subject. Since the formation of the Federal Government bankrupt laws have been passed between long intervals and following commercial disasters, on three occasions, viz., April 4, 1800, repealed in 1803; and 19th of August, 1841, repealed 3rd of March, 1843, and that of 1867, still in force and which is probably intended to be perpetual.

The insolvent laws of Louisiana, now dormant by reason of the act of Congress, are of Roman origin.

Under the law in the period of the twelve tables, the borrower of money or debtor could deliver himself, his family and effects, into the hands of his creditor, and became bound to him nexu vinctus. He was only released on payment of the debt by himself or by another for him. If he failed to pay, he was adjudged to the creditor with all his property. In other cases, after certain publications and delays, the debtor was adjudged (addictus) to

the creditors, who could slay him, or sell him as a slave beyond the Tibor. If there were several creditors, the twelve tables ordained that he should be cut in pieces and fairly divided among the creditors; which probably meant a division of the price of the debtor, after he and his goods were sold. As the pater familias had the power of life and death over his children and grandchildren, of whatever age they might be, as well as over his slaves, this provision of the twelve tables does not seem so extraordinary.

After the preceding provision was abolished, there was a period of the Roman law, in which the debtor's goods were sold in mass (per universitatem), and the vendee succeeded actively and passively to the effects and debts of the insolvent, and was bound to pay the price to the creditors pro rata. Hence, as the debtor had an universal successor, he was discharged from the debt. The benefit of the cession of goods, as it now exists in our law, had its origin in the time of Julius or Augustus Cæsar. Where the cession was made under the law Julia, (ex lege Julia,) the debtor enjoyed the right to the beneficium competentiæ, which is a point of difference between the bankrupt laws and our own, the cessio bonorum.

A man may commit an act of bankruptcy and be forced into court without being insolvent. Under the State law he cannot be forced into insolvency so long as he has effects to meet executions. The bankrupt laws discharge the debtor absolutely from the debt. The cessio bonorum does not relieve the debtor absolutely from his obligations, but if he comes to a fortune subsequently to his surrender, he can be compelled to make a second surrender; but he is entitled to retain for his own use a competency; that is the beneficum competentiae just mentioned. The insolvent laws of Louisiana, in common with the bankrupt laws of the individual States, did not discharge the debtor from his obligation due the citizens of the other States, and only barred the obligation due citizens of the same State. Where contracts are entered into during the existence of a bankrupt law, there can be no question of the right of the courts (considered as a question of morals) to discharge the debtor. The right is a condition making a part of the contract. The debtor could say to his creditor: "When I bound myself to pay you a sum of money, it was with the understanding that if by misfortune I should become embarrassed, that I should be discharged from the debt by surrendering to you and my other creditors all of my effects. You

took my obligation, knowing that the law which was a part of the contract gave me this right, and you are bound by the contract." But where the bankrupt law is passed after the debt was contracted, the right to discharge the debtor is not quite so apparent, since it is a fundamental principle of our law that the States cannot impair the obligation of contracts.

The property of enacting bankrupt laws by the sovereign power, depends upon the weighing of the propositions whether it is better that some persons should suffer inconvenience on account of the incautious use of credit, as an example to deter others and prevent the like occurrences, and the advantage which the State will de. rive from the free and untrammelled industry of all its citizens, particularly where many are embarrassed, coupled with the drawback that the bankrupt laws are frequently made the means of screening the money and effects of a fraudulent debtor from the pursuit of his creditors.

The insolvent, oppressed with debt, is incapable of engaging in new business and occupation. Freed from the overwhelming burden, he engages again in useful employments with spirit and zeal, and becomes a wealth producer and a valuable citizen to the State.

In 1824 Congress passed a law adopting for the practice of the Federal courts in this State the rules of proceeding of the State courts. At this time, as already shown, the Code of Practice was not adopted. But the rules of proceeding under the practice acts were very similar to those prescribed by the Code of Practice. A large number of the Bar were of the opinion that the broad terms of the act of Congress of 1824 introduced into the Federal courts the State practice in all cases and to the exclusion of proceedings on the equity side of the court, according to the forms common in the other States. After a strenuous contest it was finally settled, that the courts of the United States had equity jurisdiction according to the ancient forms, and all causes proper for the consideration of the chancellor are required to be brought on the equity side of the court: that is, they must be brought according to the rules of the practice in chancery; and these rules are uniform throughout the United States, while the law side of the Federal courts is governed by the laws of the individual States to the same extent as the State courts in ordinary affairs.

There are great misapprehensions as to the meaning of the term equity or chancery. It will suprise some to be told that proceeddings in equity are governed by laws as well known and as faith

fully carried out as those upon the statute book, and after all that it is nothing more than a mode of rendering justice and granting relief in a different manner, concurrently with, or in a different class of cases from those relievable at law.

In every system of laws there must arise a state of facts with which courts of justice are required to deal, not contemplated by the law-giver, nor provided for by him, or if within the express letter of some broad provision which he has laid down, yet of such a character that to carry the provision into effect, would shock that innate sense of justice implanted in the bosom of every one, and such considerations would leave no doubt that the law-giver never intended the provision in question to govern the particular case. In the first example the courts find rules of decisions from the equitable maxims which are supposed to be the foundation of all laws; in the other, the courts interpret according to rules of equity and the general intent or scope on other laws or like subjects, and endeavor to arrive at the true spirit and meaning of the law, and exclude from the broad words of the law what was not the intention of the lawyers to embrace in them. For, as St. Paul has it, "the letter killeth but the spirit giveth life." If, from some forgotten statute, or from time immemorial, the practice of the courts of law has been confined to a set of formulas, there will arise a condition of things not contemplated in former ages, and a class of wrongs which these formulas are insufficient to redress. Precisely this condition of affairs did arise under the jure civile in the Roman law. which was remedied by the jurisdiction which the proctor assumed or amplified when he established the jus honorarium, and allowed petitions to be addressed directly to him in extraordinary cases, and in England, where the Chancellor assumed jurisdiction of those cases in which there was no adequate redress at law. In the latter country (as in the former in ancient time) proceedings on the law side of the courts were regulated according to certain strict forms, and relief could not be afforded. in any other manner. In the action of assumpsit, for example, a judgment could only be rendered for damages; in debt that the defendant recover his debt and damages; in covenant even to convey land, the judgment is that plaintiff recover his damages, and so of the other actions. It was found in very many cases that the relief granted by the courts at law was wholly inadequate to the injury. The Chancellor of England gradually assumed jurisdiction over this class of cases and uncontrolled by formulas rendered