Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1815-11-18


Gus III Questioning the validity Of any laws which
ther legislatures might think proper TO enact.
but should very unfaithfully discharge my da-
" were to remain silent witness of IL signed
or unntentional usurpations by those govern
| ments, ofpowers properly belonging to- the re-
neral government, weri case comes jidcially
before me, which demand an expression of my
opinion upon those subjects. The sooner the liz
| mIts which separate the two governments are
marked by those authorities which can alone de-
nae and establish them, the less danger there will
De OF serious 1t not fatal CONVERSATIONS hereafte
arising respecting essential powers to winch a
prescriptlve right may be asserted by the one in
opposition TO the chartered rights of the other.
1t IS from these considerations that venture re-
spectfuly, yet firmly, to examine the question
! whether the power gwen to congress to pass uni
J iorm laws ofbankruptcy, be exclusive of such
power IN the state governments, and whether the
latter may exercise 1t whenever the former has
| not thought proper to do so.
1t would seem At the frs view of the question:
that It any unqualified power be grained To a GO
Vernment TO de particular act, lie whole of that
I power IS disposed of, and not a part of II con-
sequently that no power over the same subject re-
man with those VINO made the grant, either to
exercise IT themselves, 70 part with it TO any
otn government.
But If the application of this principle to the
complicated systems of government winch pre-
vail IN the United STATES, should be liable 10
/ NOND', ~ VIII, DC altlltlSQ WIN ulS
qualification, that whenever such power IS gi-
ven to the general government, the exercise OF
/ winch by the state governments would Ce lnc m
sistent with the express gram, the whoie OF lie
| power is granted, and consequently vests exciu-
| siyciy IN the general government. In such case
the people resume the powers which before resi-
ded in the state governments, as TO thus subject,
| without which they could not grant tne whole
to the general government and If resumed Y
| would seem TO follow that the state governments
| can IN no event exercise the s2me powers with
OUT showing either am express grant OF II, that
| II IS fairly 10 be deduced from the circumstan-
ces upon which the clam Is founded
That the exercise of the power 10 pass bank
ruptand naturalization laws by the STATE govern
ments IS Incompatible with the grant of a power
to congress to pass uniform laws ON the same
subjects, IS obvious from the consideration that
the former would be dlssimllar and frequently
contradictory, whereas the systems are directed
TO be uniform, which can only be rendered so b,
The exclusive power IN one body 10 form them.
1t was admitted IN The argument of TINS cause
that whenever Congress shat think proper to ex-
erclse ,hep power Delegated to that body, to pass
uniform laws or bankruptcy, the state govern
nents Cannot leg siale upon the same subject
But It was con-ended, mat if Congress snail DE-.
cline to exercise the power, the right 10 pass
bankrupt laws results 70 the state governments
| las CONCLUSION appears o me TO beg The wnole
leesti nun controversy. II resigus al claim TO
Concurrent right m me state governments and
SEN up one which IS 20 arse on a condition., not
20 be found in the constitution, but which IS gra-
lunousiy nterpoiated into 1t.
then this clam of the state legislature is moi
founded upon any express grant made 10 them
IN the constitution, is 1T to be deduced from the
crcuInstanceo OF non user OF the power by Gun
| gFess Tins doctrine appears to me 10 be as
! eAtrdFaSAnJ rs 1t IS novel. IL has no analogy
mat know OF, IN legal or political science /.
M nVll.- .Nt.x -. 81
Case OF tortel, ure, which could not as CONCEIVE
answer the puPose, because fthe power of con.
SfesS is, upon principles purely ieard, dsyested
" an omission 10 exercise q w. d right II
| would not OF necessity result 20 Inc st2te GOV
erhifents, but would more naturally fall 10 the
people Ii tne forfeiture be political, then tins
@OsuFdity would follow, that congress would
possess F6h, - do by onliss ion, what 1t must b..
aohiItled they could not effect by any direct and
positive act. That IS delegate 10 the STAG. r1
Verhtnents, the power OF legislation over a par.
hcuiAr SUBJECT, OF which tie peop.S mad thought.
pfope. hot only 10 deprive the STATE gov ernlilets
Dut 20 vest exclusively IN the naIOnal le stature
The Inconvenience OF dissiin,I..r and eiIscordani
futeS upon me suoJect OF Bankruptcy aud OF na-
'uraHLAtton, no doubt suggested 70 lhe trainers
OF the constitution the reined, winch mat body
adopted, OF vesting ule ngiiI lex sl,e IN thoss
Case an tie general government, qua. some unf
iorin system might prevail tnrous noul lie On, esI
4 -
Cons upon tnese suDJects ought AZ All 90 be made
NOW 1t would tOnIy vIolate tile express ..,a,,l
o. these powers 20 Congress, Out te ,oIlcy winch
ieu the convention 10 withdraw llIedi from ne
state governments, AZ u1ey should be Construed
u result by implication 10 the later on arcopn,t
Oh .he onlss on OF The former 10 exercise mem
But lie, us examine mo The reasOnaoieiless OF
this pretehsion OF lie state lex Isiatures aad see
A. the policy winch induced ,ne grant a, I'M =,
powers 20 congress, be not efiecttIuiy answered
by the omission VI congress 10 ieg,siste ON "a, N.
subjects, as mucn 30 IS a they mad. Suppose
inca 'ie suDJec' OF . bankrupt law 10 be brought
before congress, and I've ,uestlOns 10 be Whe,i,er
suc.l systems be a WISE One under any c,rc,,,,
sUsilces, "a DC al. suitable u tue prese,r st.
Oi .hl country, and maj body should m ,ts ".
aoh decide negatively on those uIesLons. n
w0ihd seem ~ fOiiJW ,iitt no Os.isl Gp. a,y o,,
70 exist IN me OnIted states iJr tie reason
"Alch Induced tue ~ ectiOn OF any pisn Ia ,.s,,
O,isn sacnS system 40 MS case wnat 4 co,.rres.
70 90 n order 70 give eject 20 TINS me.l,u'e ,,t
pO1ey' ine answer IS pan, re ect the b.,i ,i,u
dJnotuins. Ihen me law Of NE land would. be
uidl lao HAL IS Compelled against has WI. To de
iYer up n'o properly 10 DC distributed .no,g.t
ms creditOrs, AID COnseJ uendy maj ne . M "a,
e.lhes liNoie 70 ne pa nent OF his debts ,uie.s
discharges BY some ieg.,l means Now wIi,t
Dc sau ''isI tne slate legislatures ayait,,tg tne,
serves 81 tne silence OfcOngress on tnis subt.ct
CA be al liberty 70 thwart the yecy policy ,y,,,c
induced it AID pass laws upon ne subiect not
~niy changing ,ne Sta,e OF the law as consressnad