Abbildungen der Seite
PDF
EPUB

358. The observations of counsellor Ingersoll on the head of prerogative, with us, termed privilege, supersedes all that I could have to say, in stating how far this privilege is carried, even beyond that of the kingly prerogative in England. It may suffice to extract a few of his observations. "It may be useful (says he,) to consider the prerogative of the Kings of England in this particular, at the least liberal period of its juridical history, where unreasonable preferences of the sovereign over the subject, fill and deform its every page. By the statute of 33 Hen. 8. chap. 39. sec. 74. "his debt, shall in suing out execution, be preferred to that of every other creditor who hath not obtained judgment before the king commenced his suit, 3 Bl. Com. 420. This only makes the commencement of the king's suit equivalent to a judg ment in favour of a subject."

"The king's judgment also affects all lands which the king's debtor hath at, or after the time of contracting his debt. 3 Bl. Com. 420. This relates to lands only. The personal estate escapes the royal grasp. Even there the dis tinction for which we contend has always been observed. The preference in favour of the king is principally confined to cases where public monies have been received by an accountable officer to public use. It does not extend to transactions of a common nature."

By the statute of 13 Elizabeth, chap. 4. "The lands and tenements, goods and chattels of tellers, receivers, collectors, &c. and other officers of the revenue, are made liable to the payment of their debts."

"These are the models which the act of congress was intended to imitate. The lands of such revenue officers are liable to process, under the king's judgment, even in the hands of a bona fide purchaser; though the debt due to the king was contracted by the vendor many years after the alienation. 3 Bl. Com. 420. Here the distinction is still kept up between the revenue officers and others."

"If goods are taken on a fieri facias against the king's debtor, and before they are sold, an extent come at the king's suit, tested after the delivery of the fieri facias to the

sheriff, these goods cannot be taken upon the extent, but the execution upon the fieri facias shall be completed. 4 T. R. 402. Rorke v. Dayrell.

"Even Queen Elizabeth, with all the supremacy of absolute sway, did not carry her prerogative claims to the extent now urged for a federative republic, and representative democracy."

"With the several exceptions already stated, and which are confined principally to revenue officers, the king of England has no priority in the recovery of his debts over the meanest peasant of his dominions."

Mr. Ingersoll goes on to shew why the construction of the act in question ought to be restricted to the case of receivers of public monies.

"How strange and improbable it is," says he, “that congress should give a preference so much exceeding the royal prerogative of England? Unless such a construction be absolutely necessary, the inconvenience attending it will undoubtedly prevent its adoption. Besides the destruction of private credit, and the ruin of individuals, it would repeal all the state laws of distribution of intestate estates; it would prostrate all state priority, which in those cases has been long established. It would produce a collision between the prerogative of the states, and the United States. Suppose the treasurer of a state should become indebted to the United States, the latter would take his whole property, in opposition to any law of the state which had passed to secure herself against the default of her officers."

"If that act is to have the extended construction contended for on the part of the United States, the act is unconstitutional and void. 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 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?"

"It is in direct violation of the constitution, inasmuch as it deprives the debtor of his trial by jury without his consent."

Johnston, J. Do you admit the law respecting the final adjustment of accounts at the treasury to be constitutional as to revenue officers?

Ingersoll. We neither admit, nor deny it as to them. But we deny the power of the congress to give the United States, a preference in all cases of persons who may become indebted to them in every possible manner.

It was not necessary for counsellor Ingersoll to go that length in the case before the court. But it has been seen that I deny the right to give a preference in any case.

Patterson, J. Do you contend that by the 5th sec. the priority of the United States, will avoid even a mortgage to an individual?

that.

Ingersoll. I say that the opposite construction leads to

I will take upon me to say the same thing. If the act, and the construction put upon it by the court, is carried out to its consequence, it cannot be otherwise. What is a specific lien more than a general lien as to the effect of it? It had been considered as applying to the general lien of a judgment, and why not to the specific lien of a mortgage? A judgment binds the lands so that the debtor has but an interest in these, subject to the payment of the debt. In the case of a mortgagee it is the same. If a distinction is made, it is not founded on law or reason, but an arbitrary construction of the court.

But it is not the construction of the court, that I encounter, or think it worth while to trouble myself with; it is the acts themselves that I call in question, as to the powers of congress to enact. I wish to go to the foundation of the illegality of such legislation. The substratum or scaffolding being struck away, the construction will fall of course.

It was a case in which the commonwealth of Pennsylva

nia was concerned, that led the supreme court of this state to consider this question. I think it was the case of a judgment in favour of the state against Nichols. Execution had been levied, and the money brought into court. A motion was made on the part of the United States to take it out, in favour of a debt due to them by the same defendant. It was refused by the court. I have not heard what became of the appeal, being a case of concurrent jurisdiction; but I could not but see that if pressed, and decided in favour of the United States, it might terminate in the same disagreeable controversy, with that of Olmstead and the Commonwealth.

The truth is the whole system of legislation and construction in hac parte, is unconstitutional and void. There might be the like reason for introducing the prerogative of the sovereign of England if there was the like necessity. Every fiscal prerogative of that country, was in lieu of taxation to support the government. It had its foundation at a time, and under a state of things when no taxes were laid, but feudal services exacted by the sovereign; or at least when the only establishment for the King's household, cr support allowed him, was from this source. What have we to do with any thing of this kind under our government, where a provision is made by law for this purpose; and where the great source of revenue, is, or ought to be the free contribution of the people, by way of equal tax through the medium of their representatives. Of this nature is, what they pay voluntarily by duties of imports; or which may be laid upon internal manufactures, or negociations; or directly upon the real or personal estate of individuals in proportion to their property. It may be said, it will occasion insurrections to exact a revenue by direct contributions; that money cannot be extorted; it must be taken circuitously, and clandestinely from a free people. If that should be found the case, it will prove them unworthy of a free government. But let us have an open and direct application to the virtue of the people, until it shall be proved that they have not virtue sufficient to justify the experiment, or the continuance of the application, to their understanding, and not to their blind sides, as it may be expressed, by surreptitious, and indirect means: more especial

ly if these means are in their nature unjust, and a robbery of individuals. Of this nature I take all priority, or preference in the payment of debts due to the United States, over the private claims of a citizen. Prior lien, or attachment, as between citizen and citizen, ought to be the law of the land, as between the citizens of the union, and the union itself.

On the extent of the judicial power of the courts of the United States.

up

I DO not enter into the question, whether the congress may not "from time to time, abolish such inferior courts, as they may from time to time ordain and establish." On this head see Tucker's Blackstone's Commentaries, Appendix, 361. But the inferior courts abolished by the act 29th April, 1802, did appear to me, according to the title of the act under which they were established, to be "a more convenient organization of the courts" of the United States. The administration of the laws, under the judicial power of the United States, was, by those courts, brought nearer to the doors of suitors, jurors, and witnesses. These called on, and attending from an extreme of a state to some one place within it, was inconvenient, not only from the expence, but the loss of time, and in some cases, personal inability to attend, at so great a distance. It would seem to me that some arrangement of this nature, must be re-established, if the judicial power of the union, continues to be extended as it now is. The resolution of J. Breckenridge, then senator, since attorney general, offered in the senate of the United States, appeared to me to be a natural, if not necessary consequence of the abolition of these inferior courts. This was to abridge the extent of the judiciary power of the union, confining it to "cases arising under the constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting embassa dors, other public ministers and consuls; to all cases of ad૨ ૨.

[ocr errors]
« ZurückWeiter »