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tutional measure. In the English constitution, the king has an absolute negative ; but it has not been necessary to exercise it since the time of William III. The influence of the crown has been exerted in a more gentle manner, to destroy any obnoxious measure in its progress through the two houses of parliament. Charles I. stood for a long time upon the strict and forbidding rights of his prerogative; but he was compelled, by the spirit and clamour of the nation, to give his assent to bills which cut down that prerogative, and placed the power of government in the hands of the parliament. The peremptory veto of the Roman tribunes, who were placed at the door of the senate, would not be reconcilable with the spirit of deliberation and independence which distinguishes the councils of modern times. The French constitution of 1791, a laboured and costly fabric, on which the philosophers and statesmen of France exhausted all their ingenuity, and which was prostrated in the dust in the course of one year from its existence, gave to the king a negative upon the acts of the legislature, with some very feeble limitations. Every bill was to be presented to the king, who might refuse his assent; but if the two following legislatures should successively present the same bill in the same terms, it was then to become a law. The constitutional negative given to the President of the United States, appears to be more wisely digested than any of the examples which have been mentioned.
OF JUDICIAL CONSTRUCTIONS OF THE POWERS OF
U.S. as a
I PROCEED to consider the cases in which the powers of congress have been made the subject of judicial investigation.
(1.) Congress have declared by law, that the United Priority of States were entitled to priority of payment over private creditor. creditors, in cases of insolvency, and in the distribution of the estates of deceased debtors. The act of congress of 31st July, 1789, sec. 21. confined the priority to custom-house bonds. The act of 4th August, 1790, ch. 35. sec. 45. limited the priority in the same manner. The act of 2d May, 1792, placed the surety in a custom-house bond, who paid the debt, on the same footing, in respect to pribrity, as the United States; and it confined the cases of insolvency mentioned in the former law, to those of a voluntary assignment, and of attachments against absconding, concealed or absent debtors. The act of 3d March, 1797, ch. 74. sec. 5. went further, and gave the United States a preference in all cases whatsoever, whoever might be the debtor, or however he might be indebted, in case the debtor became insolvent, or the assets in the hands of his representatives, after his death, were insufficient to pay his debts. This priority was declared to extend to cases in which the insolvent debtor had made a voluntary assignment of all his property, or in which bis effects had been attached as an absconding or absent debtor, or in which an act of legal bankruptcy had been committed. The act of March 2d, 1799, ch. 128. sec. 65. provided, that in the like cases
of insolvency, or where any estate in the hands of executors, administrators, or assignees, should be insufficient, debts due to the United States, on bonds taken under the collection act, should have preference; and sureties in such bonds, on paying the same, had the same preference as was reserved to the United States.
These were the legislative provisions, giving preference to debts due to the United States; and in Fisher v. Blight, the authority of Congress to pass such laws was drawn in question. The point discussed in that case was, whether the United States, as holders of a protested bill of exchange, negotiated in the ordinary course of trade, were to be preferred to the general creditors, when the debtor becomes bankrupt. The Supreme Court decided, that the acts of Congress, giving that general priority to the United States, were constitutional. It was a power founded on the authority to make all laws which should be necessary and proper to carry into effect the powers vested by the constitution in the government of the United States. Where the cod was within the lawful powers of the government, Congress possessed the choice of the means, and were empowered to use any means which were in fact conducive to the exercise of the powers granted. The government is to pay the debts of the Union, and must be authorized to use the means most eligible to effect that object. It has a right to make remittances by bills or otherwise, and to take those precautions which will render the transaction safe. If this claim of priority interferes with the right of the state sovereignties, respecting the dignity of debts, and defeats the measures which they would otherwise have a right to adopt to secure themselves, it is a necessary consequence of the supremacy of the laws of the Union, on all subjects to which the legislative power of Congress extends.
The principle was here settled, that the United States are
a 2 Cranch, 358.
entitled to secure to themselves the exclusive privilege of being preferred as creditors to private citizens, and even to the state authorities, in all cases of the insolvency or bankruptcy of their debtor. But the court observed, that no lien was created by the statutes giving the preference. No bona fide transfer of property in the ordinary course of business was overreached. It was only a priority of payment, which, under different modifications, was a regulation in common use, and a bona fide alienation of property, before the right of priority attached, was admitted to be good.
The next case that brought into discussion this question of priority, was that of the United States v. Hooe. It was there held, that the priority to which the United States were entitled, did not partake of the character of a lien on the property of public debtors. The United States, in the mere character of creditor, have no lien on the real estate of their debtor. If the priority existed from the time the debt was contracted, and the debtor should continue to transact business with the world, the inconvenience would be immense. The priority only applied to cases where the debtor had become actually and notoriously insolvent, and, being unable to pay his debs, had made a voluntary assignment of all his property, or, having absconded or absented himself, his property had been attached by process of law. A bona fide conveyance of part of the property of the debtor, not for the fraudulent purpose of evading the law, but to secure a fair creditor, is not a case within the act of Congress giving priority. In this case of the United States v. Hooe, a collector of the revenue had mortgaged part of his property to his surety in his official bond, to
a 3 Cranch, 73.
b United States v. Clark, 1 Paine's Rep. 629. United States v. Munroe, 5 Muson, 572. U. States v. Hawkins, 16 Martin's Loui. R. 317. In England, a provisional assignment in bankruptcy, will defeat the king's extent, if it precedes the test of the writ. King v. Crump', Parker, 126. Lord Eldon, 14 Vesey, 88.