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ed by them, and are to be exercised directly on them, and for their benefit." "

"If any proposition could command the universal assent of mankind, we might expect it would be this, that the government of the Union, though limited in its powers, is supreme within its sphere of action."

The

"But this question is not left to mere reasoning. people have, in expressed terms, decided it by saying, This Constitution, and the laws of the United States which shall be made in pursuance thereof,' shall be the supreme law of the land,' and by requiring that the members of the State legislatures, and the officers of the executive and judicial departments of the States, shall take the oath of fidelity to it." 2

"It can never be pretended that these vast powers draw after them others of inferior importance, merely because they are inferior. Such an idea can never be advanced. But it may, with great reason, be contended, that a government entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depend, must also be entrusted with ample means for their execution. The power being given, it is for the interest of the nation to facilitate its execution." 3

"But the Constitution of the United States has not left the right of congress to employ the necessary means for the execution of the powers conferred on the government to general reasoning. To its enumerated powers is added that of making 'all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department thereof.'

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I Marshall on the Constitution, p. 161.

3

Idem, p. 166.

2 Idem, p. 164.

4 Idem, p. 168.

Mr. Marshall, in making this assertion, gives the following reasons for so doing:

"1. The clause is placed among the powers of congress, not among the limitation of those powers.

"2. Its terms purport to enlarge, not to diminish, the powers vested in the government. It purports to be an additional power, not a restriction on those already granted. No reason has been, or can be, assigned for thus concealing an intention to narrow the discretion of the national legislature under words which purport to enlarge it. The framers of the Constitution wished its adoption, and well knew it would be endangered by its strength, not by its weakness. Had they been capable of using language which would convey to the eye one idea, and, after deep reflection, impress on the mind another, they would rather have disguised the grant of power than its limitation. If, then, their intention had been, by this clause to restrain the free use of means which might otherwise have been implied, that intention would have been inserted in another place, and would have been expressed in terms resembling these: 'In carrying into execution the foregoing powers,' &c. 'no law shall be passed but such as shall be necessary and proper.' Had the intention been to make this clause restrictive, it would unquestionably have been so in form, as well as in effect.

"The result of the most careful and attentive consideration bestowed on this clause is, that if it does not enlarge, it cannot be construed to restrain the powers of congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the government. If no other motive can be suggested, a sufficient one is found in the desire to remove all doubts

respecting the right to legislate in that vast mass of incidental powers which must be involved in the Constitution, if that instrument be not a splendid bauble.

"We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the legislature the discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in a manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consists with the letter and spirit of the Constitution, are constitutional.” I

"Should congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should congress, under the pretence of executing its powers, pass laws for the accomplishment of its objects not entrusted to the government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But when the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such power.

992

"After the most deliberate consideration, it is the unanimous opinion of this court, that the act to incorporate the Bank of the United States is a law made in

1 Marshall on the Constitution, p. 174. 2 Idem, p. 177.

pursuance of the Constitution, and is a part of the supreme law of the land."1

Now if it was in the power of congress, as this court has decided, to establish a bank for the general good of the community, or to facilitate the operations of the government, might they not break up a system of slavery, when it is found for the general good to have it done, or when it is found this system is constantly involving the government in expenses, and the country in acts of oppression? Can one be any greater stretch of power than the other? If we can build up for the general good, can we not pull down? If the people of the land can create, can they not also destroy? Or must they, whether they will or no, suffer an evil, and that a constantly growing evil, to increase without let or hinderance? We see not the object of any government, if such be the fact.

But it would seem, from this decision, our fathers did not leave the subject so loose. "They left the question not to mere reason: the people have in express terms decided it, by saying, this Constitution, and laws made in pursuance thereof, shall be the supreme law of the land." And we would ask if the not making every person free in our land would not be in pursuance of, and consistent with, the provisions of the Constitution. We think it would be hard for any one, consistently with truth, to contradict or deny it; and, while the court say the people have the power of

'Marshall on the Constitution, p. 178.

making the laws, they also claim the power of executing them, as will be observed in the quotations from pages 166 and 174; consequently, if they have the power of abolishing slavery, if the Constitution has not already done it, they would have it in their power to put their laws into execution. If, then, these are facts, and this arguing is correct, and slavery is found to be inconsistent with the Constitution, both in its spirit and its letter, that it is destructive to the best interest of the country, congress, while it possesses the power of declaring it is so, possesses also the power of carrying any law into effect which would be necessary for its overthrow. For, if it possesses the power of establishing a bank because it is convenient to carry on the operations of government, may it not also possess the power of establishing the rights of the members of that government? or are personal rights of less consequence than money; and may they be invaded and set at naught, and no objection made, when we may spend all our time in legislating how money may be spent or transmitted by the community? No! The first consideration was, and is, to establish and preserve the individual in his freedom, and then to legislate how to act in that freedom with the greatest benefit to himself and those around him. Having decided these points, then the power of the legislature comes in, with power to carry into execution its determinations, if not restrained by some express considerations. This seems to us

the doctrine held by the court.

Again, in the same case, he says,

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