not created by itself, in a place not within its jurisdiction, and direct the sentence to be executed without its territory, we should all perceive and acknowledge its incompetency to such a course of legislation. If Congress be not equally incompetent, it is, because that body unites the powers of local legislation with those which are to operate through the Union, and may use the last in aid of the first; or, because the power of exercising exclusive legislation draws after it, as an incident, the power of making that legislation effectual; and the incidental power may be exercised throughout the Union, because the principal power is given to that body, as the legislature of the Union.

§ 1233. "So, in the same act, a person, who, having knowledge of the commission of murder, or other felony, on the high seas, or within any fort, arsenal, dock-yard, magazine, or other place, or district of country within the sole and exclusive jurisdiction of the United States, shall conceal the same, &c., he shall be adjudged guilty of misprision of felony, and shall be adjudged to be imprisoned, &c. It is clear, that Congress cannot punish felonies generally; and, of consequence, cannot punish misprision of felony. It is equally clear, that a State legislature, the State of Maryland, for example, cannot punish those, who, in another State, conceal a felony committed in Maryland. How, then, is it, that Congress, legislating exclusively for a fort, punishes those who, out of that fort, conceal a felony committed within it?

§ 1234. "The solution, and the only solution of the difficulty, is, that the power vested in Congress, as the legislature of the United States, to legislate exclusively within any place ceded by a State, carries with it, as an incident, the right to make that power effectual. If a felon escape out of the State in which the act has been committed, the government cannot pursue him into another State, and apprehend him there; but must demand him from the executive power of that other State. If Congress were to be considered merely as the local legislature for the fort, or other place, in which the offence might be committed, then this principle would apply to them, as to other local legislatures ; and the felon, who should escape out of the fort, or other place, in which the felony may have been committed, could not be apprehended by the marshal, but must be demanded from the executive of the State. But we know, that the principle does not

apply; and the reason is, that Congress is not a local legislature, but exercises this particular power, like all its other powers, in its high character as the legislature of the Union. The American people thought it a necessary power, and they conferred it for their own benefit. Being so conferred, it carries with it all those incidental powers which are necessary to its complete and effectual execution.

§ 1235. "Whether any particular law be designed to operate without the district or not, depends on the words of that law. If it be designed so to operate, then the question, whether the power, so exercised, be incidental to the power of exclusive legislation, and be warranted by the Constitution, requires a consideration of that instrument. In such cases the Constitution and the law must be compared and construed. This is the exercise of jurisdiction. It is the only exercise of it which is allowed in such a case.

1 Cohens v. Virginia, 6 Wheat. R. 424 to 429.

CHAPTER XXIV.

POWERS OF CONGRESS-INCIDENTAL.

§ 1236. THE next power of Congress is, "to make 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, or officer thereof." (a)

§ 1237. Few powers of the government were at the time of the adoption of the Constitution assailed with more severe invective, and more declamatory intemperance, than this. And it has ever since been made a theme of constant attack, and extravagant jealousy. Yet it is difficult to perceive the grounds upon which it can be maintained, or the logic by which it can be reasoned out. It is only declaratory of a truth, which would have resulted by necessity and unavoidable implication from the very act of establishing the national government, and vesting it with certain powers. What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution? What is a legislative power, but a power of making laws? What are the means to execute a legislative power, but laws? What is the power, for instance, of laying and collecting taxes, but a legislative power, or a power to make laws to lay and collect taxes? What are the proper means of executing such a power, but necessary and proper laws? In truth, the constitutional operation of the government would be precisely the same, if the clause were obliterated, as if it were repeated in every article. It would otherwise result, that the power could never be exercised; that

1 The Federalist, Nos. 33, 44; 1 Elliot's Deb. 293, 294, 300; 2 Elliot's Deb. 196, 342.

21 Tuck. Black. Comm. App. 286, 287; 4 Elliot's Deb. 216, 217, 224, 225. The Federalist, No. 33; 2 Elliot's Debates, 196; Hamilton on Bank, 1 Hamil. ton's Works, 121; M'Culloch v. Maryland, 4 Wheat. R. 419.

(a) See Ex parte Curtis, 106 U. S. 371, holding constitutional, legislation against

"contributions" from employees of the government.

is, the end would be required, and yet no means allowed. This would be a perfect absurdity. It would be to create powers, and compel them to remain forever in a torpid, dormant, and paralytic state. It cannot, therefore, be denied, that the powers given by the Constitution imply the ordinary means of execution; for without the substance of the power the Constitution would be a dead letter. Those who object to the article must therefore object to the form, or the language of the provision. Let us see if any better could be devised.2

§ 1238. There are four possible methods which the convention might have adopted on this subject. First, they might have copied the second article of the confederation, which would have prohibited the exercise of any power not expressly delegated. If they had done so the Constitution would have been construed with so much rigor, as to disarm it of all real authority; or with so much latitude, as altogether to destroy the force of the restriction. It is obvious, that no important power delegated by the confederation was, or indeed could be, executed by Congress, without recurring more or less to the doctrine of construction or implication. It had, for instance, power to establish courts for the trial of prizes and piracies, to borrow money, and emit bills of credit. But how could these powers be put in operation without some other implied powers and means? The truth is, that, under the confederation, Congress was from this very clause driven to the distressing alternative, either to violate the articles by a broad latitude of construction, or to suffer the powers of the government to remain prostrate, and the public service to be wholly neglected. It is notorious, that they adopted, and were compelled to adopt the former course; and the country bore them out in what might be deemed an usurpation of authority. The past experience of the country was, therefore, decisive against any such restriction. It was either useless or mischievous. 5

§ 1239. Secondly. The convention might have attempted a positive enumeration of the powers comprehended under the terms necessary, and proper. The attempt would have involved a com

1 M'Culloch v. Maryland, 4 Wheat. R. 409; 4 Elliot's Debates, 217, 218, 220, 221. 2 The Federalist, No. 44. See also President Monroe's Exposition and Message, 4th of May, 1822, p. 47; 3 Elliot's Deb. 318.

8 The Federalist, No. 44.

4 See the Federalist, Nos. 38, 44; 4 Wheat. R. 423; 4 Elliot's Deb. 218, 219. 5 M'Culloch v. Maryland, 4 Wheat. R. 406, 407, 423.

plete digest of laws on every subject to which the Constitution relates. It must have embraced all future, as well as all present exigencies, and been accommodated to all times, and all occasions, and all changes of national situation and character. Every new application of the general power must have been foreseen and specified; for the particular powers, which are the means of attaining the objects of the general power, must, necessarily, vary with those objects; and be often properly varied, when the objects remain the same.1 Who does not at once perceive, that such a course is utterly beyond human reach and foresight?? It demands a wisdom never yet given to man; and a knowledge of the future, which belongs only to Him whose providence directs. and governs all.

§ 1240. Thirdly. The convention might have attempted a negative enumeration of the powers, by specifying the powers which should be excepted from the general grant. It will be at once perceived, that this task would have been equally chimerical with the foregoing; and would have involved this additional objection, that in such a case, every defect in the enumeration would have been equivalent to a positive grant of authority. If, to avoid this consequence, they had attempted a partial enumeration of the exceptions, and described the residue by the general terms, "not necessary or proper," it must have happened, that the enumeration would comprehend a few exceptions only, and those only which were most prominent, and therefore the least likely to be abused; and that others would be less forcibly excepted under the residuary clause, than if there had not been any partial enumeration of exceptions.3

§ 1241. Fourthly. The convention might have been wholly silent on this head; and then, as has been already seen, the auxiliary powers, or means to carry into execution the general powers, would have resulted to the government by necessary implication; for wherever the end is required, the means are authorized; and wherever a general power to do a thing is given, every particular power necessary for doing it, is included. If this last course had been adopted, every objection, now urged

1 The Federalist, No. 44; 2 Elliot's Deb 223.

2 M'Culloch v. Maryland, 4 Wheat. R. 407; 4 Elliot's Deb. 223, 224; Anderson v. Dunn, 6 Wheat. R. 204, 225, 226.

3 The Federalist, No. 44.