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bill spread at large upon their journals, will ever concur in any unconstitutional 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 reconcileable 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."

a This qualified negative of the President has, in the progress of the administration of the government, since the first publication of these Commentaries, in 1826, become a very grave power, and applied under the ordinary name of veto, with a familiarity which appears not to have been anticipated by the generation which adopted the Constitution.

The organization of the two houses of congress, and the principles on which it rests, were profoundly discussed in the Federalist, from No. 52 to

No. 214, inclusive. There is no work on the subject of the constitution, and on republican and federal government generally, that deserves to be more thoroughly studied. The Federalist appeared originally in a series of num. bers, published in the New-York daily papers, between October, 1787, and June, 1788. They were read with admiration and enthusiasm as they successively appeared, and by no person more so than the author of this note, who made a fruitless attempt at the time to abridge them for the benefit of a country village print. No constitution of government ever received a more masterly and successful vindication. I know not, indeed, of any work on the principles of free government, that is to be compared, in instruction and intrinsic value, to this small and unpretending volume of the Federalist ; not; even if we resort to Aristotle, Cicero, Machiavel, Montesquieu, Milton, Locke or Burke. It is equally admirable in the depth of its wisdom, the comprehensiveness of its views, the sagacity of its reflections, and the fearlessness, patriotism, candour, simplicity and elegance with which its truths are uttered and recommended. Mr. Justice Story acted wisely in making the Federalist the basis of his Commentary; and as we had the experience of nearly fifty years since the Federalist was written, the work of Judge Story was enriched with the results of that experience, and it is written in the same free and liberal spirit, with equal exactness of research and soundness of doctrine, and with great beauty and elegance of composition.

LECTURE XII.

OF JUDICIAL CONSTRUCTIONS OF THE POWERS OF

CONGRESS.

I PROCEED to consider the cases in which the powers of congress have been made the subject of judicial investigation."

Priority of (1.) Congress have declared by law, that the United States were entitled to priority of payment over private

U. S. as a

creditor.

a Mr. Justice Story, in his Commentaries on the Constitution of the United States, vol. i. pp. 382–442, has given a very rational view of the rules of interpretation applicable to the constitution. I have confined myself, in this lecture, to those authoritative expositions which have been given to it by the courts of the United States; and I agree entirely with that learned commentator, that we are to look to the instrument itself, "as a constitution of gov. ernment ordained and established by the people of the United States." The instrument furnishes essentially the means of its own interpretation; and to resort to it was the practice of the late Chief Justice Marshall, in those clear and admirable judicial views of the constitution, which, so far as they go, leave us nothing more perfect to expect or desire. It is, at the same time, just and true, that "the most unexceptionable source of collateral interpretation is from the practical exposition of the government itself, in its various departments, upon particular questions discussed, and settled upon its own intrinsic merits. These approach the nearest in their own nature to judicial expositions; and have the same general recommendation that belongs to the latter. They are decided upon solemn argument, pro re nata, upon a doubt raised, upon a lis mota, upon a deep sense of their importance and difficulty, in the face of the nation, with a view to present action, in the midst of jealous interests, and by men capable of urging, or repelling, the grounds of argument, from their exquisite genius, their comprehensive learning, or their deep meditation upon the absorbing topic." Story's Comm. vol. i. p. 392. See, also, infra, p. 313, to S. P.

Quando

jus

jus régis praczorré débet, Broom 49, regis et avel ditis

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 cus-
tom-house bonds. The act of 4th August, 1790, c. 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 priority, 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, c. 74, sec. 5, went further, and
gave the United States a preference in all cases what-
soever, 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 pri-
ority was declared to extend to cases in which the in-
solvent debtor had made a voluntary assignment of all
his property, or in which his affects had been attached e
as an absconding, concealed or absent debtor, or in
which an act of legal bankruptcy had been committed.
This act applies and gives the preference as against de-
ceased debtors, whether the debt was contracted before
or after the passage of the act, provided there be only
general creditors, without any specific lien created."
The act of March 2d, 1799, c. 128, sec. 65, pro-
vided, that in the like cases of insolvency, or
where any estate in the hands of executors, ad-
ministrators or assignees, should be insufficient, debts
due to the United States, on bonds taken under the col-
lection act, should have preference; and sureties in

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• Commonwealth v. Lewis, 6 Binney, 266.

such bonds, on paying the same, had the same preference as was reserved to the United States.a

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 end 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, respect

Hunter v. United States, 5 Peters' R. 173. In the case of the United States v. Couch, C. C. U. S. New-York, April term, 1841, it was declared to have been the unvaried construction of the 65th section of the act of March 2d, 1799, that the priority therein given to the United States, to be paid out of the estate of an insolvent debtor, takes effect only when the insolvency is established by an assignment of all his property, either by his own act or by act of law, and when such assignment is carried into execution by the assignees. Hunt's Merchant's Magazine, New-York, August, 1841, p. 168. U. S. v. Wood & Ives, ibid. p. 170, S. P.

b 2 Cranch, 358.