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gress had power to pass all laws necessary and proper to effect the ends proposed by the Constitution,-that, in a confused state of the general currency, such a bank was necessary to the power of levying and collecting taxes,—and that it was implied in the power to borrow money, which also includes the power to lend, and that without the exercise of implied powers, the government could do nothing. After much debate, the bill passed' both Houses of Congress. The President (Washington), on receiving the bill, called a cabinet council, in which it was again debated. The Secretary of State (Mr. Jefferson) and the Attorney-general denied its constitutionality, while the Secretaries of the Treasury and War (Hamilton and Knox) agreed with the majorities in Congress. The President, after deliberation, gave it his signature, and the weight of his favorable judg

ment.

§ 216. In 1811, the charter of the United States Bank expired, and it was not rechartered. In the debate upon the question of its constitutionality, it was advocated by Mr. Crawford, and opposed by Messrs. Clay and P. B. Porter, upon the same grounds as it had formerly been advocated and opposed by Messrs. Ames and Madison.2

§ 217. In 1816, a new bank was chartered, with a much larger capital. The currency of the country was then in a very depreciated and bankrupt condition. The effect of the establishment of the bank was to restore a healthy action to the money market, and resuscitate credit.

§ 218. In 1832, in anticipation of the expiration of the charter in 1836, an application was made for its renewal, and the bill passed both Houses of Congress, but was rejected by the interposition of the Executive Veto, by President Jackson.3

1 Kent's Comm. vol. 1. p. 234. 3 Journals of Congress, 1832.

24 Elliott's Debates, 268, 276.

§ 219. The action of the Supreme Court upon the subject has been direct and distinct. In the case of McCullough vs. State of Maryland,' that tribunal decided,

1st, That Congress has power to incorporate a Bank.

2d, That there is nothing in the Constitution which excludes incidental or implied powers; and that if the end be within the scope of the Constitution, all the means which are appropriate, and are adapted to the end, and not prohibited, may be constitutionally employed to carry it into effect.

3d, That the Bank of the United States has a constitutional right to establish offices of discount and deposite within the states.

4th, That the states cannot tax the branches: they have no right to tax any of the constitutional means used by the government to effect constitutional ends.

5th, That the last rule does not extend to any of the real property held by the bank in particular states, nor to the proprietary interests of any citizen of that state in the bank.

§ 220. In the case of Osborne vs. Bank of the United States, the court decided, 6th, That the bank may sue in the Federal Courts.

§ 221. These several decisions gave validity to the charter, and the acts of the United States Bank, so far as its constitutionality could be established by judicial authority, it was so. The authorities upon this subject stand thus:-Congress passed acts in its favor in 1791, 1816, and 1832. On the other hand, in 1811, they rejected a bill for its recharter. Of the Executive, Presidents Washington, Adams, Madison, and J. Q. Adams approved of it; President Jackson alone disapproved. The supreme judicial tribunal of the Union has given a solemn decision in its favor. The consti14 Wheaton's Rep. 316. 29 Wheaton, 733.

tutionality of a National Bank is therefore settled, as far as it can be, by decision, precedent, and authority. The expediency of such an institution may at any time be questioned by the representatives of the people, and so, as a matter of argument or theory, may its constitutionality, simply because all things are open to discussion at the ultimate tribunal of public opinion; but the existence of the bank being once supposed, nothing can shake its validity while the decisions of the Supreme Court remain unimpaired and the Constitution unviolated. In reference, however, to the decision of the Supreme Court, in the case of McCullough, against the State of Maryland, it may well be doubted, whether the Constitution contains any power to perform any acts which are merely appropriate and adapted to the end, as stated in the second proposition; for most assuredly an act may be appropriate and adapted,-which is not both necessary and proper. The constitutionality of the United States Bank was maintained by Hamilton and others, upon the ground of its necessity to the fiscal operations of the government.

§ 222. Another incidental power claimed and exercised by the government is to create a priority of payment in their favor, in case of the death or insolvency of the debtor. Congress, by their acts of 1789, 1790, 1792, 1797, and 1799, gave this priority of payment over private creditors, in cases of insolvency, and the distribution of the estates of deceased debtors. In the case of Fisher vs. Blight,' the power thus vested in the government by act of Congress was declared to be constitutional, and coming within the legitimate scope of means adapted to an end which is constitutional. The government must pay the debts of the Union, and therefore is vested with the most eligible means of doing it.

§ 223. The principle is, that the government of the 22 Cranch, 358.

11 Kent's Comm. 230.

United States are preferred creditors to citizens, or even to states; but no lien is created by this preference; a prior bona fide conveyance is valid. The same principle came up and received a further exposition in several other cases.1

§ 224. The limits of this priority is thus defined:

1. It exists in the case of the death of the debtor without sufficient assets.

2. In the case of bankruptcy, or legal insolvency, manifested by some act pursuant to law.

3. In case of the voluntary assignment, by the insolvent, of all his property to pay his debts.

4. In case of an absent, concealed, or absconding debtor, whose effects are attached by process of law. This prerogative of the United States must be strictly construed, for it is in derogation of the rights of creditors.

$ 225. The United States have likewise, by impli cation,' the right of suing in their own courts; and suits may be brought in the name of the United States, or of any artificial person, as the Postmaster-general, for their benefit.3

§ 226. Another exercise of implied power by the government is found in the acquisition of Louisiana and Florida by treaty. No provision is made in the Constitution for acquiring foreign territory; and even in the opinion of President Jefferson, there was no constitutional power to make the treaty for the acquisition of Louisiana. The President and Congress, however, approved the act, and the nation acquiesced. This power is, however, an incident of sovereignty.

§ 227. Another exercise of implied authority was the passage of the celebrated Alien and Sedition Laws." The first gave the President the power to order out of 13 Cranch, 73; 5 Id. 289; 8 Cranch, 431; 2 Wheaton, 396. 21 Kent's Comm. 233. 3 3 Story's Comm. 155. 43 Story's Comm. 162; 4 Elliott's Debates, 255, Alien and Sedition Acts, 1798.

the country such aliens as he should deem dangerous to the peace and safety of the country; and the second made it a public crime for persons to combine and conspire together, with intent to oppose any of the measures of the United States, or to write, print, or publish, or to disseminate any false, scandalous, and malicious writings against the government of the United States, Congress, or the President. These acts soon expired by their own limitations, and never received a judicial sanction. They excited general odium, and have not been revived.

§ 228. SECTION 9TH. 1st clause. The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

229. The persons here spoken of were slaves, and the effect of this clause was to permit the slave-trade till 1808. After that time arrived, Congress prohibited it in every direction, and affixed to it the penalties of piracy.

§ 230. The privilege of the writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

§ 231. The term Habeas Corpus is a Latin phrase, signifying "You may have the body." The Writ of Habeas Corpus is a judicial writ, grantable by any Court of Record or judge thereof, and commands the sheriff, or other officer named in it, to have the body, and bring it before said judge, or court. The object of the writ is, by bringing a person, confined by any means whatever, before a competent authority, to have his confinement, and the cause of it, investigated; and if it be not strictly legal, to discharge him. The writ is grant

11 Blackstone's Comm.

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