and may make it more convenient and more useful in its operations? No man can say that a single faculty in any national charter is useless, or irrelevant, or strictly improper, that is conducive to its end as a national instrument. Deprive a bank of its trade and business, and its vital principles are destroyed. Its form may remain, but its substance is gone. All the powers given to the bank are to give efficacy to its functions of trade and business. 1

§ 1270. As to another suggestion, that the same objects might have been accomplished through the State banks, it is sufficient to say, that no trace can be found in the Constitution of any intention to create a dependence on the States, or State institutions, for the execution of its great powers. Its own means are adequate to its end; and on those means it was expected to rely for their accomplishment. It would be utterly absurd to make the powers of the Constitution wholly dependent on State institutions. But if State banks might be employed, as Congress have a choice of means, they had a right to choose a national bank, in preference to State banks, for the financial operations of the government. 2 Proof that they might use one means is no proof that they cannot constitutionally use another means.

§ 1271. After all, the subject has been settled repeatedly by every department of the government, legislative, executive, and judicial. The States have acquiesced; and a majority have constantly sustained the power. If it is not now settled, it never can be. If it is settled, it would be too much to expect a reargument, whenever any person may choose to question it.3 (a)

1 Osborn v. Bank of United States, 9 Wheat. R. 861, 862 to 865.

2 M'Culloch v. Maryland, 4 Wheat. R. 424.

8 See 4 Elliot's Debates, 216 to 229; M'Culloch v. Maryland, 4 Wheat. R. 316; Osborn v. Bank of United States, 9 Wheat. R. 738, 859; 1 Kent's Comm. Lect. 12, pp. 233 to 239; Sergeant on Constitution, ch. 28 [ch. 30]; 5 Marsh. Wash. App. note 3.

(a) The whole subject was nevertheless re-argued over and over during the administration of President Tyler, who refused his assent to bills for the establishment of a national bank, on the ground of want of power for the purpose. See, in addition to the debates themselves, Mr. Benton's Abridgment of Debates; Ben

ton's Thirty Years' View; Works of Henry Clay; Seven Decades of the Union, by Henry A. Wise; Webster's Life, by Curtis, II. 70-73. The establishment of the existing National banking system in 1863, elicited but little discussion in denial of the power.

CHAPTER XXVI.

POWERS OF CONGRESS-INTERNAL IMPROVEMENTS.

§ 1272. ANOTHER question, which has for a long time. agitated the public councils of the nation, is, as to the authority of Congress to make roads, canals, and other internal improvements.

§ 1273. So far as regards the right to appropriate money to internal improvements generally, the subject has already passed under review in considering the power to lay and collect taxes. The doctrine there contended for, which has been in a great measure borne out by the actual practice of the government, is, that Congress may appropriate money, not only to clear obstructions to navigable rivers; to improve harbors; to build breakwaters; to assist navigation; to erect forts, light-houses, and piers; and for other purposes allied to some of the enumerated powers; but may also appropriate it in aid of canals, roads, and other institutions of a similar nature, existing under State authority. The only limitations upon the power are those prescribed by the terms of the Constitution, that the objects shall be for the common defence, or the general welfare of the Union. The true test is, whether the object be of a local character, and local use; or, whether it be of general benefit to the States.1 If it be purely local, Congress cannot constitutionally appropriate money for the object. But, if the benefit be general, it matters not whether in point of locality it be in one State, or several; whether it be of large, or of small extent; its nature and character determine the right, and Congress may appropriate money in aid of it; for it is then, in a just sense, for the general welfare.

1 Hamilton's Report on Manufactures, 1791, 1 Hamilton's Works, 231, 232; 1 Kent's Comm. Lect. 12, pp. 250, 251 (2d ed. pp. 267, 268); Sergeant on Constitution, ch. 28 [ch. 30]; President Monroe's Exposition and Message, 4th May, 1822, pp. 38, 39.

§ 1274. But it has been contended, that the Constitution is not confined to mere appropriations of money; but authorizes Congress directly to undertake and carry on a system of internal improvements for the general welfare, wherever such improvements fall within the scope of any of the enumerated powers. Congress may not, indeed, engage in such undertakings merely because they are internal improvements, for the general welfare, unless they fall within the scope of the enumerated powers. The distinction between this power and the power of appropriation is, that in the latter, Congress may appropriate to any purpose which is for the common defence or general welfare; but in the former, they can engage in such undertakings only as are means or incidents to its enumerated powers. Congress may, therefore, authorize the making of a canal, as incident to the power to regulate commerce, where such canal may facilitate the intercourse between State and State. They may authorize lighthouses, piers, buoys, and beacons to be built for the purposes of navigation. They may authorize the purchase and building of custom-houses, and revenue cutters, and public warehouses, as incidents to the power to lay and collect taxes. They may purchase places for public uses; and erect forts, arsenals, dockyards, navy-yards, and magazines, as incidents to the power to make war.

§ 1275. For the same reason Congress may authorize the laying out and making of a military road, and acquire a right over the soil for such purposes; and as incident thereto they have a power to keep the road in repair, and prevent all obstructions. thereto. But in these, and the like cases, the general jurisdiction of the State over the soil, subject only to the rights of the United States, is not excluded. As, for example, in case of a military road; although a State cannot prevent repairs on the part of the United States, or authorize any obstructions of the road, its general jurisdiction remains untouched. It may punish all crimes committed on the road; and it retains, in other respects, its territorial sovereignty over it. The right of soil may still remain in the State, or in individuals, and the right to the easement only in the national government. There is a great distinction between the exercise of a power, excluding altogether State jurisdiction, and the exercise of a power, which leaves the State jurisdiction generally in force, and yet includes, on the

part of the national government, a power to preserve what it has created. 1

§ 1276. In all these, and other cases, in which the power of Congress is asserted, it is so upon the general ground of its being an incidental power; and the course of reasoning, by which it is supported, is precisely the same as that adopted in relation to other cases already considered. It is, for instance, admitted, that Congress cannot authorize the making of a canal, except for some purpose of commerce among the States or for some other purpose belonging to the Union; and it cannot make a military road, unless it be necessary and proper for purposes of war. go over the reasoning at large would, therefore, be little more than a repetition of what has been already fully expounded.2 The journal of the convention is not supposed to furnish any additional lights on the subject, beyond what have been already stated. 3

To

§ 1277. The resistance to this extended reach of the national powers turns also upon the same general reasoning, by which a strict construction of the Constitution has been constantly maintained. It is said that such a power is not among those enumerated in the Constitution; nor is it implied, as a means of executing any of them. The power to regulate commerce cannot include a power to construct roads and canals, and improve the navigation of watercourses in order to facilitate, promote, and secure such commerce, without a latitude of construction departing from the ordinary import of the terms, and incompatible with the nature of the Constitution. The liberal interpretation

1 See 1 Kent's Comm. Lect. 12, pp. 250, 251; Sergeant on Constitution, ch. 28 [ch. 30, ed. 1830]; 2 U. S. Law Journal, April, 1826, p. 251, &c. ; 3 Elliot's Debates, 309, 310; Elliot's Debates, 244, 265, 279, 291, 356; Webster's Speeches, pp. 392 to 397. 2 See M'Culloch v. Maryland, 4 Wheat. R. 406, 407, 413 to 421; Webster's Speeches, pp. 392 to 397; 4 Elliot's Debates, 280.

3 Journal of Convention, pp. 260, 376.

President Madison's Message, 3d March, 1817; 4 Elliot's Debates, 280, 281; President Monroe's Message, 4th May, 1822, pp. 22 to 35; President Jackson's Message, 27th May, 1830; 4 Elliot's Debates, 333, 334, 335; 1 Kent's Comm. Lect. 12, pp. 250, 251; 4 Elliot's Debates, 291, 292, 354, 355; Sergeant on Constitution, ch. 28 [ch. 30]; 4 Jefferson's Corresp. 421. President Monroe, in his elaborate Exposition accompanying his Message of the 4th of May, 1822, denies the independent right of Congress to construct roads and canals; but asserts in the strongest manner their right to appropriate money to such objects. His reasoning for the latter is thought by many to be quite irresistible in favor of the former. See the message from page 35 to page 47. One short passage may be quoted. "Good roads and canals will

has been very uniformly asserted by Congress; the strict interpretation has not uniformly, but has upon several important occasions been insisted upon by the executive.1 In the present state of the controversy, the duty of forbearance seems inculcated upon the commentator; and the reader must decide for himself upon his own views of the subject.

§ 1278. Another question has been made, how far Congress could make a law giving to the United States a preference and priority of payment of their debts, in cases of the death, or insolvency, or bankruptcy of their debtors, out of their estates. It has been settled, upon deliberate argument, that Congress possess such a constitutional power. It is a necessary and proper power to carry into effect the other powers of the government. The government is to pay the debts of the Union; and must be authorized to use the means which appear to itself most eligible to effect that object. It may purchase and remit bills for this object; and it may take all those precautions, and make all those regulations, which will render the transmission safe. It may, in like manner, pass all laws to render effectual the collection of its debts. It is no objection to this right of priority, that it will interfere with the rights of the State sovereignties respecting the dignity of debts, and will defeat the measures which they have a right to adopt to secure themselves against delinquencies on the part of their own revenue or other officers. This objection, if of any avail, is an objection to the powers given by the Constitution. The mischief suggested, so far as it can really happen, is the necessary consequence of the supremacy of the laws of the United States on all subjects to which the legislative power of Congress extends. 2

§ 1279. It is under the same implied authority that the United States have any right even to sue in their own courts; for an promote many very important national purposes. They will facilitate the operations of war; the movements of troops; the transportation of cannon, of provisions and every warlike store, much to our advantage and the disadvantage of the enemy in time of war. Good roads will facilitate the transportation of the mail, and thereby promote the purposes of commerce and political intelligence among the people. They will, by being properly directed to these objects, enhance the value of our vacant lands, a treasure of vast resource to the nation." This is the very reasoning by which the friends of the general power support its constitutionality.

14 Jefferson's Corresp. 421; 1 Kent's Comm. Lect. 12, pp. 250, 251.

2 United States v. Fisher, 2 Cranch, 358; Harrison v. Sterry, 5 Cranch, 289; 1 Kent's Comm. Lect. 12, pp. 229 to 233.