The opinion of the court was delivered by: Livingston, J. delivered the opinion of the Court as follows:
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 ...