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of the act, that the power to incorporate a bank was not among the enumerated powers, and to take a single step beyond the boundaries specially drawn around the powers of Congress would be to take possession of an undefined and undefinable field of power; that though Congress were authorized to make all laws necessary and proper for carrying into execution the enumerated powers, they were confined to those means which were necessary, and not merely convenient. It meant those means without which the grant of the power would be nugatory, and that if such a latitude of construction were allowed, as to

give to Congress any implied power on the ground of con* 250 venience, * it would swallow up all the list of enumerated powers, and reduce the whole to one phrase. On the other hand, it was contended that every power vested in a government was, in its nature, sovereign, and gave a right to employ all the means fairly applicable to the attainment of the end of the power, and not specially precluded by specified exceptions, nor contrary to the essential ends of political society; that though the government of the United States was one of limited and specified powers, it was sovereign with regard to its proper objects, and to its declared purposes and trusts; that it was incident to sovereign power to erect corporations, and, consequently, it was incident to the United States to erect one, in relation to the objects intrusted to its management; that implied powers are as completely delegated as those which are expressed, and the power of erecting a corporation may as well be implied as any other instrument or means of carrying into execution any of the specified powers; that the exercise of the power in that case had a natural relation to the lawful ends of the government, and it was incident to the sovereign power to regulate, and to employ all the means which apply with the best advantage to that regulation; that the word necessary, in the Constitution, ought not to be confined to those means, without which the grant of power would be nugatory, and it often means no more than needful, requisite, useful, or conducive to, and that was the true sense in which the word was used in the Constitution. The relation between the measure and the end was the criterion of constitutionality, and not whether there was a greater or less necessity or utility. The infinite variety, extent, and complexity of national exigencies necessarily required great latitude of dis

cretion in the selection and application of means; and the authority intrusted to government ought and must be exercised on principles of liberal construction.

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President Washington gave these arguments of his cabinet a deliberate and profound consideration, and it * terminated in a conviction, that the incorporation of a bank was a measure authorized by the Constitution, and the bill passed into a law.

This same question came before the Supreme Court of the United States, in 1819, in the case of M'Culloch v. The State of Maryland, (a) in reference to the Bank of the United States, which was incorporated in 1816, and upon which the legislature of Maryland had imposed a tax. Notwithstanding the question arising on the construction of the powers of Congress had been settled, so far as an act of Congress could settle it, in 1791, and again in 1816, it was thought worthy of a renewed discussion in that case. The Chief Justice, in delivering the opinion of the court, observed, that the question could scarcely be considered an open one, after the principle had been so early introduced and recognized by many successive legislatures, and had been acted upon by the judicial department, as a law of undoubted obligation. He admitted that it belonged to the Supreme Court alone to make a final decision in the case, and that the question involved a consideration of the Constitution in its most interesting and vital parts.

It was admitted that the government of the United States was one of enumerated powers, and that it could exercise only the powers granted to it; but though limited in its powers, it was supreme within its sphere of action. It was the government of the people of the United States, and emanated from them. Its powers were delegated by all, and it represented all, and acted for all. In respect to those subjects on which it can act, it must necessarily bind its component parts; and this was the express language of the Constitution, when it declared that the constitution, and the laws made in pursuance thereof, were the Supreme law of the land and required all the officers of the state governments to take an oath of fidelity to it. There was nothing in the Constitution which excluded incidental or implied* 252 powers. The articles of the confederation gave nothing to

(a) 4 Wheaton, 316.

the United States but what was expressly granted; but the new Constitution dropped the word expressly, and left the question whether a particular power was granted, to depend on a fair construction of the whole instrument. No constitution can contain an accurate detail of all the subdivisions of its powers, and of all the means by which they might be carried into execution. It would render it too prolix. Its nature requires that only the great outlines should be marked, and its important objects designated, and all the minor ingredients left to be deduced from the nature of those objects. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, were intrusted to the general government; and a government intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation vitally depended, must also be intrusted with ample means for their execution. Unless the words imperiously require it, we ought not to adopt a construction which would impute to the framers of the Constitution, when granting great powers for the public good, the intention of impeding their exercise, by withholding a choice of means.

The powers given to the government imply the ordinary means of execution; and the government, in all sound reason and fair interpretation, must have the choice of the means which it deems the most convenient and appropriate to the execution of the power. The power of creating a corporation, though appertaining to sovereignty, was not a great, substantive, and independent power, but merely a means by which other objects were accomplished; in like manner as no seminary of learning is instituted in order to be incorporated, but the corporate charter is conferred to subserve the purposes of education. The power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. It is nothing but ordinary

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means to attain some public and useful end. The Constitution has not left the right of Congress to employ the necessary means for the execution of its powers to general reasoning. It is expressly authorized to employ such means; and necessary means, in the sense of the Constitution, does not import an absolute physical necessity, so strong that one thing cannot exist without the other. It stands for any means calculated to produce the end. The word "necessary" admits of all degrees of

comparison. A thing may be necessary, or very necessary, or absolutely and indispensably necessary. The word is used in various senses, and in its construction, the subject, the context, the intention, are all to be taken into view. The powers of the government were given for the welfare of the nation. They were intended to endure for ages to come, and to be adapted to the various crises of human affairs. To prescribe the specific means by which government should in all future time execute its power, and to confine the choice of means to such narrow limits as should not leave it in the power of Congress to adopt any which might be appropriate and conducive to the end, would be most unwise and pernicious, because it would be an attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and would deprive the legislature of the capacity to avail itself of experience, or to exercise its reason, and accommodate its legislation to circumstances.

If the end be legitimate, and within the scope of the Constitution, all means which are appropriate and plainly adapted to this end, and which are not prohibited, are lawful; and a corporation was a means not less usual, nor of higher dignity, nor more requiring a particular specification, than other means. A national bank was a convenient, a useful, and essential instrument in the prosecution of the fiscal operations of the government. It was clearly an appropriate measure; and while the Supreme Court declared it to be within its power and its duty to maintain that an act * of Congress exceeding its 254 power was not the law of the land, yet if a law was not prohibited by the Constitution and was really calculated to effect an object intrusted to the government, the court did not pretend to the power to inquire into the degree of its necessity. That would be passing the line which circumscribes the judicial department, and be treading on legislative ground.

The court therefore decided, that the law creating the Bank of the United States was one made in pursuance of the Constitution; and that the branches of the national bank, proceeding from the same stock, and being conducive to the complete accomplishment of the object, were equally constitutional.

The Supreme Court were afterwards led, in some degree, to review this decision, in the case of Osborn v. The United States

Bank; (a) and they there admitted that Congress could not create a corporation for its own sake, or for private purposes. The whole opinion of the court in the case of M'Culloch v. The State of Maryland was founded on, and sustained by, the idea that the bank was an instrument which was necessary and proper for carrying into effect the powers vested in the government. It was created for national purposes only, though it was undoubtedly capable of transacting private as well as public business; and while it was the great instrument by which the fiscal operations of the government were effected, it was also trading with individuals for its own advantage. The bank, on any rational calculation, could not effect its object, unless it was endowed with the faculty of lending and dealing in money. This faculty was necessary to render the bank competent to the purposes of government, and, therefore, it was constitutionally and rightfully engrafted on the institution. (b) 1

(a) 9 Wheaton, 859, 860.

(5) It is worthy of notice that the power of Congress to establish a national bank, even under the articles of confederation, seems not, at the time, to have been much quioned; and Congress did actually approve of such a proposition on the 26th of May, 1781; and on the 31st of December following, they proceeded by ordinance to institute and incorporate the Bank of North America. Journals of Congress, vii. 87, 197. The constitutionality and validity of this ordinance were ably enforced by Judge Wilson. See Wilson's Works, iii. 397, and see supra, 212, n. The first and the second banks of the United States were established by statutes which received the approbation of Presidents Washington and Madison, and the constitutionality of the establishment of those banks being repeatedly declared by the Supreme Court of the United States, it was considered as a settled question, not open for further discussion. The Constitution declared that "all legislative powers therein granted should be vested in the Congress of the United States;" and that "the executive power should

1 Legal Tender Cases. The most important discussion of the implied powers of Congress that has ever taken place, has arisen on the question of the constitutionality of the legal tender acts. The acts of 1862 and 1863 authorized the issue of United States notes, and enacted that they should be lawful money and a legal tender in payment of all debts, public and private, within the United States, with certain exceptions. After a large number of the state courts had decided that these enactments were within the powers of Congress, the question whether the act of 1862 was constitutional as to

debts contracted and due before its passage came before the Supreme Court of the United States. The court, consisting of eight judges, was not unanimous, and decided against the act by a bare majority. The arguments of the Chief Justice in favor of the decision, and of Mr. Justice Miller for the dissenting members, both went very much on the question whether the act was a "necessary and proper" means of carrying out some of the powers expressly given to Congress. The further ground was adverted to that the act was inconsistent with the "spirit of the Constitution," as impairing the ob

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