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The fact is that I had become reconciled to a resistance to it; and there is no question with me as to the right, but the power, only. And I believe it is now brought to such a point that the ultima ratio must determine it.

It will not be understood, that I mean to say that the cause of the present war, or the continuance of it, is the na turalizing British subjects, though it may have led to it on the part of the enemy, and is the pretence for continuing it. For whether these states had naturalized or not, they might employ British seamen, or it might be alleged that they did employ, and the redress as they would call it by the act of the party, in the law phrase, would be resorted to; which would produce the consequence of taking or mistaking the American for the British in the caption. So that, unless it is left to be a matter between the governments, and of national investigation, and not of individual interference, it will be impossible, that controversy can be avoided.

Of certain acts of congress, and the construction put upon those acts by the courts of the United States.

By an act of 4 Aug. 1790, sect. 45. it is provided, “that where any bond for the payment of duties shall not be satisfied on the day it became due, the collector shall forthwith cause a prosecution to be commenced for the recovery of the money thereon, by action or suit at law, in the proper court having cognizance thereof; and, in all cases of insolvency, or where any estate in the hands of executors, and administrators shall be insufficient to pay all the debts due from the deceased,. the debt due to the United States on any such bond, shall be first paid."

And by an act of 2d May, 1792, sec. 18, it is provided that "the cases of insolvency in the preceding act mentioned, shall be deemed to extend, as well to cases in which a debtor not having sufficient property to pay all his or her debts, shall have a voluntary assignment thereof for the benefit of his or her creditors, or in which the estate and effects of

an absconding, concealed, or absent, debtor shall have been attached, by process of law, as to cases in which an act of legal bankruptcy shall have been committed."

By an act of 3d March, 1797, sec. 5, it is provided “that where any revenue officer, or other persons, 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 from 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."

This prerogative assumed by the United States is alleged to be founded on sec. 8 of the constitution of the United States, "The congress shall have power," &c.-

"18: To make all laws which shall be necessary," &c. Now I am not one of those who have been for stinting these powers so much as has been contended in the case of a national bank. For I think such a means of economy is absolutely necessary, and the money concerns of the union cannot well be transacted without; at least, not to so much advantage for the general good. But I hold it not necessary to take away the property of an individual to serve the community. Is it not taking away my property, when a debt due to me is taken away, and the demands of the United States against my debtor must be satisfied, before I can come in. In the case of a revenue officer, it might be justifiable in a case where I have trusted him after he had been appointed a revenue officer, because I had notice that he had been so appointed, and it was at my own risk, and with a knowledge of this privilege of the United States that I gave him credit. But having given him credit, before he was an officer, shall that fund on which I gave him credit be swallowed up by

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the United States who after my debt, and cause of action had accrued, had thought proper to appoint him such.

But the act goes further than even the case of a revenue officer; it extends to the case of any other person who shall become indebted to the United States. Thus, if I sell a tract of land to an individual, transfer property of any description, or contract with him for services, and render it whereby a debt becomes due; and for which I may even take his obligation under seal, or what is more, have brought a suit and obtained judgment; yet a demand of the United States subsequently founded, or established, will take a priority; or sweep the whole from my grasp. I have been informed by the very gentleman who draughted the, bill, that the words other person, were not in the bill as originally draughted; but were put into it as it passed through the houses, a representative observing to him that it would all have enough to do. His idea was that such a provision would be necessary. Necessitas nullam habet legem, is a maxim as ancient as the Latin language; and, that necessity has no law, is as old as good English; and even in old Saxon or the broad Scotch, it is said, needs must when the devil drives. But what is there to drive to this? Has not the congress power to lay taxes ad libitum? Why then filch away from an individual his debt due to him, for the sake of the public? It is the prerogative of the king of Great Britain; but how came it to be that of the United States, unless it is given under this term necessary? It is not given, but by a species of political cowardice in the representatives, taxes are avoided because the laying of these might affect their immediate popularity. The individual wronged has but one mouth to exclaim against the injustice; but the multitude that feel taxation to which they are bound to submit have many mouths. The representatives, for the time being, are unwilling to lay taxes though equal on the whole community; and they consult themselves at the expence of Tom, Dick, and Harry, who are in the towns, or in the woods; and whose voice individually cannot be so much heard. They are in the habit of starting at the word tax, like Asmodeus, at the smell of burnt fish; but are not

shocked at the broad view of individual injustice. This section of the act ought to be repealed; and the provision restrained to the case of a revenue officer trusted, and the debt to an individual which became due before the appointment.. This is the farthest that the act of the legislature of the Union, on the score of natural, and moral, or legal, and political justice, had a right to go. Knowledge to all the citizens that the United States have a priority of lien upon all the property of a revenue officer, would save from the giving him credit, or if given, would take away from the credi tor in such case, the right to complain. The United States have it in their power to exact security to any amount from a revenue officer, or other person with whom they may contract; and this is their remedy a priore against delinquencies, and not a posteriore, the relieving in a case of default at the expence of a citizen who is in common with the whole body politic bound to contribute his proportion to the exigencies of a peace or war establishment. It cannot therefore be necessary to take the property of a citizen in this way; and if not necessary, is unjust. Under what idea but that of being necessary can it be taken? The Congress have no power, but that which is given them. They have no common law prerogative as in the case of the king of Great Britain; or which the commonwealth of a state may exercise where it is given by law, because that law has the assent of every citizen; or, in contemplation of law, is supposed to have it. Though even in this case, it may be questionable; and ought to be questioned. In the state of Pennsylvania, debts due to the commonwealth, instead of being preferred, are postponed ; and much to the credit of the people who have rejected this badge of royalty, as uncongenial with a republican government. This amendment was made upon the former law of an anterevolutionary period which followed the common law in the case of the kingly prerogative. It is not only reasonable that if a loss in the case of an insolvent debtor is to be borne, it should fall upon the many instead of falling upon one, but I deny that the commonwealth has a right to make it otherwise; for the property of one individual cannot be taken away,

without a compensation. And a preference of payment in the case of an insolvent, or where the property of a deceased person, cannot discharge the whole, is the same thing as taking away what belongs to an individual without giving him a compensation; yet on behalf of the United States this is claimed as a right, and enacted by law. Is this law constitutional? There can be no doubt of the right to enquire into the constitutionality of a law of the United States. For the judiciary of the union admit that right, and exercised it themselves. They go a little farther, and claim the right of enquiring into the constitutionality of a law of a state: witness the case of Vanhorne and Dorance where a law of the state of Pennsylvania was held to be against the constitution of that state, not because it took away property without giving compensation, but for not giving it in money; though by the common law of England, and by the law of just retribution, it ought not to be in money but in kind. It was given in kind, a fee for a fee, or land for land. But if, as to the medium of the compensation, the courts of the union, were so squeamish, how is it that they have overlooked this law, which takes away a right, or interest in a debtor's property, and makes no compensation?

But the fact is, that instead of questioning the law, they have, by their construction, extended the operation, or effect of it. So far from questioning the law, they have sanctioned the application of the maxim to the case," that the interest of all should prevail over that of an individual." 3 Cranch, 82. This maxim is true, where both cannot stand together; but not true as applied in this case; but rather the idea that the public has a broad back, and ought to sustain a loss, rather than an individual, where one or the other must sustain a loss divided among the whole, the loss of a particular debt is small, but may be ruinous to a single citizen. But by construction, they have extended the operation of the laws of the United States, on this head, as it would appear to me, beyond what either the letter, or the spirit would require. For this, see the argument by the counsel, for the defendant in error, in the case of the United States v. Fisher et al. 2 Cranch,

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