Congress

(2.) The next case which called forth a construction from bank. every part of the government as to the implied powers of con

may create a

country, upon statutes; and the common law gives none over other creditors. The State v. Harris, 2 Bailey's S. C. Rep. 598. Keckley v. Keckley, 2 Hill's S. C. Ch. Rep. 256. The common law prerogative of the king, to be paid in preference to all other creditors, is therefore not universally adopted in this country. It prevails in the government of the United States, and in Maryland, North Carolina, Indiana, Connecticut, &c., but not in South Carolina. In Georgia, state taxes have preference over all incumbrances whatsoever. State v. Pemberton, Dudley's Rep. 15. In Indiana, the state has preference of all other creditors; and real and personal estate is bound on behalf of the state from the teste of the first process. R. Statutes, 1838, p. 283.

As to the lien of judgments obtained by individuals in the federal courts, it was decided in the Circuit Court of the United States, in New-York, in November, 1829, in the case of Konig v. Bayard, that judgments in the Circuit and District Courts in New-York were a lien upon lands as against subsequent purchasers, from the time they were regularly docketed, according to the practice of those courts. and that the usage of docketing those judgments have prevailed since 1795. The same doctrine was assumed in reference to judgments in the federal courts in Pennsylvania, in the case of Conard v. Atlantic Ins. Co. 1 Peters' U. S. Rep. 386; and the principles contained in this last case were reviewed and confirmed in Conard v. Nicoll, 4 Peters' U. S. Rep. 291. The same rule as to judgments in the Circuit Court of the United States in Ohio. Sellers v. Corwin, 5 Hammond's Rep. 400. There is no act of congress making judgments in the United States courts a lien on lands. Such a lien depends upon the local laws of the state where the land lies. Tayloe v. Thompson, 5 Peters' R. 358. In New-York, therefore, a judgment in one of the federal courts within that state, is a lien upon the lands of the debtor within the state for the term of ten years from the docketing of the judgment. The Manhattan Company v. Evertson, 6 Paige's R. 457. Indeed, in every state, the judgments of the federal courts have the same lien, to the extent of its jurisdiction, as the judgments of the highest court of the state. Den v. Jones, 2 McLean's Rep. 78. 83.

Debtors to the United States for moneys received, their executors and administrators, &c., omitting, on due notice, to render to the auditor of the treasury their accounts and vouchers for the expenditure of such moneys, are to be sued under the direction of the comptroller of the treasury, and are to be subject to the costs and charges of such suits, whether the ultimate decision be in their favour or against them. (Act of Congress, March 3d, 1795, c. 113.) So receivers of public moneys, including all public officers, who shall fail to account and pay over the same, they and their sureties may be proceeded against forthwith by want of distress, and have their goods and chattels seized and sold, and if not sufficient, they may be imprisoned. The amount due is a lien on the real estate from the time of the levy of the distress warrant; and for want of sufficient goods and chattels, the lands may be sold on three weeks' notice, and a conveyance executed to the purchaser by the marshal. (Act of Cong. sup. ces. 3, and Act of May 15th, 1820, sec. 2, 3.) Any person aggrieved by the distress, may apply by bill to the district judge for relief under the process of injunction, and if still unredressed, he may appeal to the Circuit Court. (Act of Congress, 15th May, 1820, sec. 4. 6.) He may also, if in prison,

gress, was, whether congress had power to incorporate a bank. In the year 1791, the secretary of the treasury had recommended the institution of a national bank, as being of primary importance to the prosperous administration of the finances, and of the greatest utility in the operations connected with the support of public credit. But the bill for establishing a bank was opposed in the House of Representatives, as not authorized by the constitution. It was contended that the government of the United States was limited to the exercise *249 of the enumerated powers, and that the power to incorporate a bank was not one of them, and, if vested in the government, it must be an implied power; and it was contended, that the power given to congress to pass all laws necessary and proper to execute the specified powers, must be limited to means necessary to the end, and incident to the nature of the specified powers. On the other hand, it was urged in favour of the bill, that incidental, as well as express powers, necessarily belonged to every government, and that when a power was delegated to effect particular objects, all the known and usual means of effecting them passed as incidental to them; and it was insisted, that a bank was a known and usual instrument, by which several of the enumerated powers of government were exercised. After the bill had passed the two houses of congress, the question touching its constitutionality was agitated with equal ability and ardour in the executive cabinet. The secretary of state and the attorney-general conceived that congress had transcended their

be relieved upon habeas corpus by the Circuit Court of the United States. (United States v. Nourse, 9 Peters, 8. Id. p. 12, note.) The doctrines of the government and courts of the United States are quite stringent in respect to the obligation of importers of goods. The import duty is held to be a personal debt chargeable upon the importer, as well as a lien on the goods themselves, and that the personal debt continues, though the goods be deposited with a bond given for the duties, and the goods be lost or destroyed. Meredith v. United States, 13 Peters, 486. 494. Another part of that case wears the same forbidding aspect. The enforcement of fines, penalties or forfeitures, under the revenue laws of the United States, is extremely strict and rigorous; but the Act of Congress of March 3d, 1797, sec. 1, and made perpetual by act of Feb. 11, 1800, authorizes the Secretary of the Treasury, on application, to mitigate or remit the penalties of these laws, when, from the facts of the case, first judicially ascertained, he should be of opinion that such penalties have been incurred without wilful negligence, or any intention of fraud.

powers, but the secretary of the treasury maintained the opposite opinion. Their respective opinions were founded on a train of reasoning, denoting great investigation of all the leading and fundamental principles of the constitution, and they were submitted to the consideration of the President of the United States. It was argued against the constitutionality of the act, that the power to incorporate a bank was not among the enumerated powers, and to take a single step beyond the boundaries specially drawn around the powers of congress, would be to take possession of an undefined and undefinable field of power; that though congress were authorized to make all laws necessary and proper for carrying into execution the enumerated powers, they were confined to those means which were necessary, and not merely convenient. It meant those means without which the grant of the power would be nugatory, and that if such a latitude of construction was allowed,

as to give to congress any implied power on the ground *250 of convenience, *it would swallow up all the list of enumerated powers, and reduce the whole to one phrase. On the other hand, it was contended, that every power vested in a government was, in its nature, sovereign, and gave a right to employ all the means fairly applicable to the attainment of the end of the power, and not specially precluded by specified exceptions, nor contrary to the essential ends of political society; that though the government of the United States was one of limited and specified powers, it was sovereign with regard to its proper objects, and to its declared purposes and trusts; that it was incident to sovereign power to erect corporations, and, consequently, it was incident to the United States to erect one, in relation to the objects intrusted in its management; that implied powers are as completely delegated as those which are expressed, and the power of erecting a corporation may as well be implied, as any other instrument or means of carrying into execution any of the specified powers; that the exercise of the power in that case had a natural relation to the lawful ends of the government, and it was incident to the sovereign power to regulate, and to employ all the means which apply with the best advantage to that regulation; that the word necessary, in the constitution, ought not to be confined to those means, without which the grant of power would be nugatory, and it often means no

more than needful, requisite, useful, or conducive to, and that was the true sense in which the word was used in the constitution. The relation between the measure and the end, was the criterion of constitutionality, and not whether there was a greater or less necessity or utility. The infinite variety, extent and complexity of national exigencies, necessarily required great latitude of discretion in the selection and application of means; and the authority intrusted to government ought and must be exercised on principles of liberal construction.

President Washington gave these arguments of his cabinet a deliberate and profound consideration, and it *terminated in a conviction, that the incorporation of *251 a bank was a measure authorized by the constitution, and the bill passed into a law.

This same question came before the Supreme Court of the United States, in 1819, in the case of M'Culloch v. The State of Maryland,a in reference to the Bank of the United States, which was incorporated in 1816, and upon which the legislature of Maryland had imposed a tax. Notwithstanding the question arising on the construction of the powers of congress had been settled, so far as an act of congress could settle it, in 1791, and again in 1816, it was thought worthy of a renewed discussion in that case. The chief justice, in delivering the opinion of the court, observed, that the question could scarcely be considered an open one, after the principle had been so early introduced and recognised by many successive legislatures, and had been acted upon by the judicial department, as a law of undoubted obligation. He admitted that it belonged to the Supreme Court alone to make a final decision in the case, and that the question involved a consideration of the constitution in its most interesting and vital parts.

It was admitted, that the government of the United States was one of enumerated powers, and that it could exercise only the powers granted to it; but though limited in its powers, it was supreme within its sphere of action. It was the government of the people of the United States, and emanated from them. Its powers were delegated by all, and it repre

4 Wheaton, 316.

sented all, and acted for all. In respect to those subjects on which it can act, it must necessarily bind its component parts; and this was the express language of the constitution, when it declared that the constitution, and the laws made in pursuance thereof, were the supreme law of the land, and required

all the officers of the state governments to take an oath *252 of fidelity to it. There was nothing in the constitution which excluded incidental or implied powers. The articles of the confederation gave nothing to the United States but what was expressly granted; but the new constitution dropped the word expressly, and left the question, whether a particular power was granted, to depend on a fair construction of the whole instrument. No constitution can contain an accurate detail of all the subdivisions of its powers, and of all the means by which they might be carried into execution. It would render it too prolix. Its nature requires that only the great outlines should be marked, and its important objects designated, and all the minor ingredients left to be deduced from the nature of those objects. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, were intrusted to the general government; and a government intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation vitally depended, must also be intrusted with ample means for their execution. Unless the words imperiously require it, we ought not to adopt a construction, which would impute to the framers of the constitution, when granting great powers for the public good, the intention of impeding their exercise, by withholding a choice of means.

The powers given to the government imply the ordinary means of execution; and the government, in all sound reason and fair interpretation, must have the choice of the means which it deems the most convenient and appropriate to the. execution of the power. The power of creating a corporation, though appertaining to sovereignty, was not a great, substantive and independent power, but merely a means by which other objects were accomplished; in like manner, as no seminary of learning is instituted in order to be incorporated, but the corporate charter is conferred to subserve the purposes of education. The power of creating a corporation is never used