The United States v. Bryan and Woodcock
| Citation | 3 L.Ed. 764,9 Cranch 374,13 U.S. 374 |
| Parties | THE UNITED STATES v. BRYAN AND WOODCOCK. (Garnishees of Hendrickson.) |
| Decision Date | 10 March 1815 |
| Court | United States Supreme Court |
ERROR to the Circuit Court for the district of Delaware
This was an attachment of the effects of Hendrickson, a bankrupt, in the hands of his assignees, Bryan and Woodcock.
Hendrickson was surety for George Bush, late collector of the customs at Wilmington, in an official bond dated in 1791. Bush died on the 2d of February, 1797, By an adjustment of his accounts at the treasury in 1801, it appeared that the balance against him was $3,453.06.
In the Court below it was agreed that the case should depend on the question, 'Whether, under the 5th section of the act of congress of March the 3d, 1797, the United States are entitled to satisfaction of their demand out of the effects of the bankrupt Hendrickson, in the hands of the garnishees, as assignees of the bankrupt, prior to the claims, or any part of them, of other creditors of the said bankrupt being satisfied?'
The judgment in the Court below was against the United States, and they brought their writ of error.
WELLS, for the Defendants in error.
In respect to the priority supposed to be established by this act, if it be considered as applying to this case, it will be a priority set up, if not by an 'ex post facto law,' by a retrospective law.
Two questions here present themselves for consideration.
1. Was congress competent to enact such a retrospective law?
2. Has such a law been enacted—is the act of the 3d of March, 1797, retrospective?
First enquiry. Was congress competent to enact such a retrospective law?
It has never yet been contended that these priorities rest, for support, upon any ancient and royal ground of prerogative. Our constitution is a government of definite, delegated authority: and the powers not given, belong to the people, not only by clear and unavoidable inference, but by positive and express reservation. No attempt has yet been made in any of the Courts of the United States, to set up this claim, upon the ground of prerogative. Congress have considered it as not resting upon that ground; or they would have deemed it unnecessary, to make statutary provisions upon the subject. It has been decided, that they have the power to establish a fair priority, in behalf of the government. They have the power to impose and collect taxes; and it is certainly their duty to provide for their faithful collection and payment into the public treasury. A fair priority has been considered, if not absolutely 'necessary,' at least, 'conducive' to this end; and the power to establish it, consequently given expressly, by the clause in the constitution, emphatically termed the 'sweeping clause.'
Had the constitution omitted this clause, still, it would seem, for the fair and legitimate execution of the powers expressly delegated, that there would be, from necessity, conferred the right to exercise any means, for that purpose, that were 'proper and necessary.' To give body and substance to this abstract right; to bring this latent power into light, and to demonstrate its existence, as well as its proper form and proportion; to show it, in the constitution, to the eye, what it is in perfect reason, it is decrared that congress shall have power 'to make all laws,' not that they, in their good pleasure, with a discretion that acknowledges neither guide nor restraint, not to make any, and every sort of law they may chuse, in furtherance of any special power, but only those 'which shall be NECESSARY and PROPER for carrying into execution the foregoing powers vested, by this constitution, in the government of the United States, or in any department, or officer thereof.'
An act which cannot be traced up to any original, nor yet to this secondary power, in the constitution, proceeds not from it, and, of course, partakes not of the character of law. An act declaring itself to have proceeded from the secondary power, which shall be manifestly improper and unnecessary, or either, cannot have emanated from that power; and is both a stranger and an enemy to the constitution.
The limitation upon the secondary power was, originally, of a more striking and imposing character than it now appears, since the adoption of the amendments to the constitution. Most, if not all, of the high and important privileges, fenced about by those amendments, owed their security and protection, previous to the adoption of these amendments, to these two talismanic words, if I may use the term. Without some restraint imposed upon this secondary power, most probably the means to effect a lawful purpose would have been what congress pleased to make them. An unlimited power over the means of accomplishing a proper end, would have been as terribly pernicious in politics as in morals. It would have been not even a new mode of despotism. Nothing in the constitution could have stayed its monstrous course. It might, and probably would have crushed beneath it, in its destructive progress, every atom of civil and religious liberty.
And, further, it cannot escape our observation that the people, in their provident care of themselves, have established certain criterions, by which the propriety and necessity of measures shall be tested. I refer to the preamble of the constitution, where the moving causes—the great motives of establishing this government, are set out; and placed, as it were, for guards and sentinels at its very threshold.
As there was, originally, no express provision in the constitution destined to protect the privileges which are now so sedulously guarded by the amendments, so is there still none to be found to forbid the enactment, by congress, of laws impairing the obligation of contracts, or those that are retrospective. To pass the former would not be 'proper,' because it would be to travel a path of error, which the people have positively forbidden their own state governments to use. It would not be 'proper,' because it would overturn instead of 'establishing justice:' It would be to frustrate in place of promoting on e of the first great objects of the people in forming this government.
As to retrospective laws we learn, in our reports from an authority which has always been, and I trust will long continue to be, respected in this Court and in this country, that an earnest, but unsuccessful attempt was made in the convention to prohibit, expressly, to congress the exercise of the power to pass retrospective laws, as well as ex post facto laws. We are not, however, to conclude, from the failure of the attempt to expressly inhibit the exercise of this power, that it was delegated to congress by letter or implication. The convention evidently departed, with reluctance, from the great and noble theory of government which they kept so steadily before them. The whole stock of power, they knew, was in the hands of the people—it all belonged to them. Their business was not to specify what they kept for themselves, but to particularize what they surrender in trust, for their benefit, to the government. It is true they sometimes departed from this rule; as they did when they prohibited the enactment, by congress, of ex post facto laws. They stopped out of the course which, with such wisdom, they prescribed to themselves, not so much to guard against the exercise of a power which they then expressly (as they would without it, have almost as clearly) withheld, as to obviate, upon a point of the highest interest and feeling, the misconceptions of ignorance; and to quiet the apprehensions and suspicions of fear and jealousy. The power to pass retrospective laws, then, is neither expressly given, nor expressly withheld. When such acts are, therefore, passed by congress, they must derive their authority from being 'proper and necessary' means to the exercise of some other power expressly given. Some such laws, in given cases, it is not denied, may be comprised by this definition; and be fairly regarded as entirely constitutional. It is, notwithstanding, contended that these must always be considered as cases of exception, proving the general rule, that retrospective acts are not 'necessary and proper' means to give due effect to the powers vested 'in the government, or in any department or officer thereof.' If congress, thus clothed with every power that ought to be desired, with abundant means for a wise and provident government, should fall into the mistakes of short-sighted man, they must, like him, pay the forfeit of error, and the price of experience. It cannot be 'necessary and proper,' nor will it 'establish justice,' to transfer to others the consequences of their own improvidence. Such, the Defendants in this case, contend would virtually be the effect of retrospective liens and priorities, in favor of the government, and at the expense of the citizen. The exercise of such a power would overturn ail the rules by which men are governed in calculating the chances of safety, and in estimating the risks of danger, when they give credit to each other. To set up such liens and priorities would not be 'proper,' because it would impair the obligation of contracts between citizen and citizen, by rendering unavailing the means of ensuring their execution. It would not be 'proper,' because it would be lessening the security for private 'property,' if not taking it away by undue 'process' of law. It is true that the creditor, who does not obtain security for the payment of his debt, cannot escape the lawful consequence of a subsequent act of his debtor. His dependence for safety, in this respect, is placed upon his knowledge of the character of his debtor, and upon his own vigilance. But, most assuredly, he ought to have full reason to rely that the character of any concern in which his debtor has been already engaged, will not be changed by matter of subsequent enactment, so as to enhance his risk of danger beyond what it was when the debt...
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