Isaac N. Phillips, Esq.. pp. 383, 388; Neal Brown, Esq., pp. 419, 420; John N. Baldwin, Esq., p. 435; W. S. Kenyon, Esq., p. 446; Gov. A. B. Cummins, pp. 456 et seq.; William McNett, Esq., pp. 461; Frederick W. Leh mann, Esq., pp. 468, 480; Hon. Henry Hitchcock, pp. 507, 508; James L. Blair, Esq., p. 526; Judge Elmer B. Adams, pp. 534 et seq.; Sanford B. Ladd, Esq., pp. 555, 556.

VOL III.

Judge John H. Rogers, pp. 33, 34; Hon. J. G. Slonecker, p. 64; Julius C. Gunter, Esq., p. 112; Hon. U. M. Rose, Colorado, pp. 116, 117, 118, 119, 124, 128, 129, 150; Judge Bartlett Tripp, pp. 156 et seq.; Judge T. B. McFarland, p. 184; Judge J. A. Cooper, p. 190; Hon. John D. Pope, p. 195; James E. Babb, Esq., p. 199; Hon. George H. Williams, p. 220; Horace G. Platt, Esq., pp. 231, 232; Judge Cornelius H. Hanford, pp. 247, 248; Charles E. Shepard, Esq., p. 270; Oration of Hon. Edward John Phelps, p. 391; Oration of Chief Justice Waite, p. 406; Oration of Wm. H. Rawle, p. 422.

Further references to Marbury's case, see Miller, Const. of U. S. 384-387; Kent, Com. (12th ed.) 288a, 322, 453, 454; Cooley, Const. Lim. 46 and note 1; Thorpe, Const. Hist. of U. S., II, 466-468; John Marshall by Prof. J. B. Thayer, 74-78; John Marshall by Allan B. Magruder, 182-186. This case was fully reviewed in Kendall v. United States, 12 Pet. 524; s. P., United States v. Schurz, 102 U. S. 378.

CONGRESS MAY CONSTITUTIONALLY GIVE THE UNITED STATES A PREFERENCE IN BANKRUPTCY OVER OTHER CREDITORS.

The United States v. Fisher and Others, Assignees of Blight, a Bankrupt.

FEBRUARY TERM, 1805.

[2 Cranch's Reports, 358-405.]

The propositions of law decided are thus stated by Mr. Justice Curtis in his edition of Decisions of the Supreme Court of the United States:

The power to make all laws necessary and proper to carry into execution the powers granted confers on Congress the choice of means and does not confine it to what is indispensably necessary.

The fifth section of the act of the 3d of March, 1797, giving a preference to the United States in cases of insolvency, is not confined to persons accountable for public money, but extends to debtors of the United States generally.

Congress has power to make such a law.

Only one question in this case involved the construction of the Constitution. We give so much of the

opinion of the court as relates to the constitutional question, which was as to the constitutionality of an act of Congress which gave the United States a preference over the other creditors of a bankrupt.

Opinion.

MARSHALL, Chief Justice. To the general observations made on this subject, it will only be observed that as the court can never be unmindful of the solemn duty imposed on the Judicial Department when a claim is supported by an act which conflicts with the Constitution, so the court can never be unmindful of its duty to obey laws which are authorized by that instrument.

In the case at bar the preference claimed by the United States is not prohibited, but it has been truly said that under a Constitution conferring specific powers the power contended for must be granted or it cannot be exercised.

"Necessary" and
"proper"
"clause.

It is claimed under the authority to make all laws which shall be necessary and proper to carry into execution the powers vested by the Constitution in the government of the United States, or in any department or officer thereof.

In construing this clause it would be incorrect, and would produce endless difficulties, if the opinion should

1 The court was constituted as follows:

JOHN MARSHALL, Chief Justice.

WILLIAM CUSHING,

the United States by Mr. George M. Dallas, attorney of the United

States for the district of Pennsylvania.

Mr. Harper, Mr. Ingersoll, Mr. Lewis and Mr. Lee for the defendants in error.

Construction of be maintained that no law was authorized

the clause. which was not indispensably necessary to give effect to a specified power.

Where various systems might be adopted for that purpose, it might be said with respect to each that it was not necessary, because the end might be obtained by other means. Congress must possess the choice of means and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution.

The Government is to pay the debt of the Union and must be authorized to use the means which appear to itself most eligible to effect that object. It has, consequently, a right to make remittances by bills, or otherwise, and to take those precautions which will render the transaction safe.

This claim of priority on the part of the United States will, it has been said, interfere with the right of the State sovereignties respecting the dignity of debts, and will defeat the measures they have a right to adopt to secure themselves against delinquencies on the part of their own revenue officers.

But this is an objection to the Constitution itself. The mischief suggested, so far as it can really happen, is the necessary consequence of the supremacy of the laws of the United States on all subjects to which the legislative power of Congress extends.

NOTE.

The action was instituted to try two questions:

1. Whether an attachment laid by the United States on property of the bankrupt in the hands of the collector of Newport, in Rhode Island, after the commission of bankruptcy had issued, is available against the assignees.

2. Whether the United States are entitled to be first paid and satisfied in preference to the private creditors, a debt due to the United States by Peter Blight, as indorser of a foreign bill of exchange, out of the estate of the bankrupt in the hands of the assignee.

The second question brought up for determination the constitutionality of the fifth section of the act of March. 3, 1797, which provided:

"That where any revenue officer, or other person hereafter becoming indebted to the United States by bond or otherwise, shall become insolvent, or where the estate of any deceased debtor in the hands of executors or administrators shall be insufficient to pay all the debts due from the deceased, the debt due to the United States shall be first satisfied; and the priority hereby established shall be deemed to extend as well to cases in which a debtor, not having sufficient property to pay all his debts, shall make a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed or absent debtor shall be attached by process of law, as to cases in which an act of legal bankruptcy shall be committed."

Mr. Ingersoll, for the defendants, in his argument that the act was unconstitutional, made the following points: "If liens general or specific, if judgments and mortgages are to be set aside by the prerogative of the United States, it will be to impair the obligation of contracts by an ex post facto law. Under what clause of the Constitution is such a power given to Congress? Is it under the general power to make all laws necessary and proper for carrying into execution the particular powers specified? If so, where is the necessity or where the propriety of such a provision, and to the exercise of what other power is it necessary? But it is in direct violation of the Constitution, inasmuch as it deprives the debtor of his trial by jury without his consent."

This case brought up the construction of that clause of the Constitution known as the "necessary and proper" or the "sweeping clause." Both Madison and Hamilton commented upon it, and the latter devoted to it several

1 Story, Const., I, ch. V, §§ 430, 431 and notes; Cooley, Const. Lim., 63; Tucker, Const. of U. S., I, 367, 368; Thorpe, Const. Hist. of U. S., I, 525; Miller, Const. of U. S., 143, 144.