In addition to his "heretical" opinion in Marbury _vs._ Madison, Marshall had given the Republicans, and Jefferson especially, another cause for complaint. A year after the decision of that case, he had again gone out of his way to announce from the Supreme Bench the fallacy of Jefferson's Constitutional views and the soundness of the Nationalist theory. During the February term of the Supreme Court for the year 1804, that tribunal, in the case of the United States _vs._ Fisher,[445] was called upon to decide whether the United States was a preferred creditor of an insolvent, under the Bankruptcy Act of 1800, which Marshall had helped to draw.[446] Among other objections, it was suggested by counsel for Fisher, the insolvent, that the Bankruptcy Law was unconstitutional and that the priority which that act gave the Nation over other creditors of the bankrupt would prevent the States from making similar laws for their own protection.
But, said Marshall, this is "the necessary consequence of the supremacy of the laws of the United States on all subjects to which the legislative power of the United States extends.... The Constitution did not prohibit Congress" from enacting a bankruptcy law and giving the Nation preference as a creditor. On the contrary, Congress was expressly authorized "to make all laws which shall be necessary and proper to carry into execution the powers vested by the Constitution in the National Government." To say that "no law was authorized which was not indispensably necessary ... would produce endless difficulties.... Congress must possess the choice of means and must be empowered to use any means which are, in fact, conducive to the exercise of a power granted by the Constitution."
This was an emphatic denial of Jefferson's famous opinion on the power of Congress to charter a bank, and an outright assertion of the views of Hamilton on that celebrated question.[447] The case could have been decided without such an expression from the court, but it presented an opportunity for a judicial statement of liberal construction which might not soon come again,[448] and Marshall availed himself of it.
For two years no part of the Republican plans against the Judiciary had miscarried. Close upon the very day when John Breckenridge in the Senate had moved to repeal the National Judiciary Act of 1801, a petition signed by the enraged Republicans of Alleghany County, Pennsylvania, had been sent to the Legislature of that State, demanding the impeachment of Alexander Addison; and almost simultaneously with the passage of the Judiciary Repeal Act of Congress, the Pennsylvania House of Representatives transmitted to the State Senate articles charging the able but arrogant Federalist judge with high crimes and misdemeanors.