adopted. For instance, congress possesses the power to make war and to raise armies, and, incidentally, to erect fortifications, and purchase cannon and ammunition, and other munitions of war. But war may be carried on without fortifications, cannon, and ammunition. No particular kind of arms can be shown to be absolutely necessary; because various sorts of arms, of different convenience, power, and utility, are or may be resorted to, by different nations. What, then, becomes of the power? Congress has power to borrow money, and to provide for the payment of the public debt; yet no particular method is indispensable to these ends. They may be attained by various means. Congress has power to provide a navy; but no particular size, or form, or equipment of ships is indispensable. The means of providing a naval establishment are very various; and the applications of them admit of infinite shades of opinion, as to their convenience, utility, and necessity. What, then, is to be done? Are the powers to remain dormant? Would it not be absurd to say that congress did not possess the choice of means, under such circumstances, and ought not to be empowered to select and use any means, which are, in fact, conducive to the exercise of the powers granted by the constitution? 2 Take another example. Congress has, doubtless, the authority, under the power to regulate commerce, to erect light-houses, beacons, buoys, and public piers, and authorize the employment of pilots. But it cannot be affirmed that the exercise of these powers is in a strict sense necessary; or that the power to regulate commerce would be nugatory, without establishments of this nature. In truth, no particular regulation of commerce can ever be shown to be exclusively and indispensably necessary; and thus we should be driven to admit, that all regulations are within the scope of the power, or that none are. If there be any general principle, which is inherent in the very definition of government, and essential to every step of the progress to be made by that of the United States, it is, that every power vested in a

1 United States v. Fisher, 2 Cranch, 358; 1 Peters's Cond. R. 421; Hamilton on Bank, 1 Hamilton's Works, 119; 5 Marshall's Wash. note 3, p. 9, 10; Mr. Madison, 4 Elliot's Deb. 223; [Fisher v. Blight, 2 Cranch, 358, 396, where this subject is specially commented on.]

2 United States v. Fisher, 2 Cranch, R. 358; 1 Peters's Condens. R. 421.

3 See 4 Elliot's Debates, 265, 280.

• Hamilton on Bank, 1 Hamilton's Works, 120.

government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the end of such power; unless they are excepted in the constitution, or are immoral, or are contrary to the essential objects of political society.1

§ 1246. There is another difficulty in the strict construction above alluded to, that it makes the constitutional authority depend upon casual and temporary circumstances, which may produce a necessity to-day, and change it to-morrow. This alone shows the fallacy of the reasoning. The expediency of exercising a particular power at particular time must, indeed, depend on circumstances; but the constitutional right of exercising it must be uniform and invariable; the same to-day as to-morrow.2

§ 1247. Neither can the degree, in which a measure is necessary, ever be a test of the legal right to adopt it. That must be a matter of opinion, (upon which different men and different bodies may form opposite judgments,) and can only be a test of expediency. The relation between the measure and the end, between the nature of the means employed towards the execution of a power, and the object of that power, must be the criterion of constitutionality; and not the greater or less of necessity or expediency. If the legislature possesses a right of choice as to the means, who can limit that choice? Who is appointed an umpire or arbiter, in cases, where a discretion is confided to a government? The very idea of such a controlling authority in the exercise of its powers is a virtual denial of the supremacy of the government in regard to its powers. It repeals the supremacy of the national government, proclaimed in the constitution.

§ 1248. It is equally certain, that neither the grammatical, nor the popular sense of the word, "necessary," requires any such construction. According to both, "necessary" often means no more than needful, requisite, incidental, useful, or conducive to. It is a common mode of expression to say, that it is necessary for a government, or a person to do this or that thing, when nothing more is intended or understood, than that the interest of the government or person

1 Hamilton on Bank, 1 Hamilton's Works, 112.

2 Hamilton on Bank, 1 Hamilton's Works, 117; 5 Marshall's Wash. App. note 3, p. 8. 3 Hamilton on Bank, 1 Hamilton's Works, 119, 120; 5 Marshall's Wash. App. note 3, p. 9, 10; M'Culloch v. Maryland, 4 Wheat. R. 423.

requires, or will be promoted by the doing of this or that thing. Every one's mind will at once suggest to him many illustrations of the use of the word in this sense. To employ the means, necessary to an end, is generally understood, as employing any means calculated to produce the end, and not as being confined to those single means without which the end would be entirely unattainable.

§ 1249. Such is the character of human language, that no word conveys to the mind in all situations one single definite idea; and nothing is more common, than to use words in a figurative sense. Almost all compositions contain words, which, taken in their rigorous sense, would convey a meaning, different from that, which is obviously intended. It is essential to just interpretation, that many words, which import something excessive, should be understood in a more mitigated sense; in a sense, which common usage justifies. The word "necessary" is of this description. It has not a fixed character peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression, which the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. It may be little necessary, less necessary, or least necessary. To no mind would the same idea be conveyed by any two of these several phrases. The tenth section of the first article of the constitution furnishes a strong illustration of this very use of the word. It contains a prohibition upon any state to "lay any imposts or duties, &c. except "what may be absolutely necessary for executing its inspection laws." No one can compare this clause with the other, on which we are commenting, without being struck with the conviction, that the word "absolutely," here prefixed to "necessary," was intended to distinguish it from the sense, in which, standing alone, it is used in the other.2

§ 1250. That the restrictive interpretation must be abandoned, in regard to certain powers of the government, cannot be reasonably doubted. It is universally conceded, that the power of punishment appertains to sovereignty, and may be exercised, whenever the sove

1 Hamilton on Bank, 1 Hamilton's Works, 118; 5 Marshall's Wash. App. note 3, p. 9. 2 M'Culloch v. Maryland, 4 Wheaton's R. 413 to 415. In this case (4 Wheaton's R. 411 to 425) there is a very elaborate argument of the supreme court upon the whole of this subject, a portion of which has been already extracted in the preceding Commentaries, on the rules of interpretation of the constitution.

reign has a right to act, as incidental to his constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used, although not indispensably necessary. If, then, the restrictive interpretation must be abandoned, in order to justify the constitutional exercise of the power to punish, whence is the rule derived, which would reinstate it, when the government would carry its powers into operation, by means not vindictive in their nature? If the word necessary" means needful, requisite, essential, conducive to, to let in the power of punishment, why is it not equally comprehensive, when applied to other means used to facilitate the execution of the powers of the government? 1

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§ 1251. The restrictive interpretation is also contrary to a sound maxim of construction, generally admitted, namely, that the powers contained in a constitution of government, especially those, which concern the general administration of the affairs of the country, such as its finances, its trade, and its defence, ought to be liberally expounded in advancement of the public good. This rule does not depend on the particular form of a government, or on the particular demarcations of the boundaries of its powers; but on the nature and objects of government itself. The means, by which national exigencies are provided for, national inconveniences obviated, and national prosperity promoted, are of such infinite variety, extent, and complexity, that there must of necessity be great latitude of discretion in the selection and application of those means. Hence, consequently, the necessity and propriety of exercising the authorities, entrusted to a government, on principles of liberal construction.2

§ 1252. It is no valid objection to this doctrine to say, that it is calculated to extend the powers of the government throughout the entire sphere of state legislation. The same thing may be said, and has been said, in regard to every exercise of power by implication and construction. There is always some chance of error, or abuse of every power; but this furnishes us ground of objection against the power; and certainly no reason for an adherence to the most. rigid construction of its terms, which would at once arrest the whole movements of the government.3 The remedy for any abuse, or mis

1 M'Culloch v. Maryland, 4 Wheat. R. 418.

2 Hamilton on Bank, 1 Hamilton's Works, 120, 121.

3 Hamilton on Bank, 1 Hamilton's Works, 122.

construction of the power, is the same, as in similar abuses and misconstructions of the state governments. It is by an appeal to the other departments of the government; and finally to the people, in the exercise of their elective franchises.1

§ 1253. There are yet other grounds against the restrictive interpretation derived from the language, and the character of the provision. The language is, that congress shall have power" to make all laws, which shall be necessary and proper." If the word "necessary' were used in the strict and rigorous sense contended for, it would be an extraordinary departure from the usual course of the human mind, as exhibited in solemn instruments, to add another word " proper;' the only possible effect of which is to qualify that strict and rigorous meaning, and to present clearly the idea of a choice of means in the course of legislation.2 If no means can be resorted to, but such as are indispensably necessary, there can be neither sense, nor utility in adding the other word; for the necessity shuts out from view all consideration of the propriety of the means, as contradistinguished from the former. But if the intention was to use the word "necessary" in its more liberal sense, then there is a peculiar fitness in the other word. It has a sense at once admonitory, and directory. It requires, that the means should be, bonâ fide, appropriate to the end.

§ 1254. The character of the clause equally forbids any presumption of an intention to use the restrictive interpretation. In the first place, the clause is placed among the powers of congress, and not among the limitations on those powers. In the next place, its terms purport to enlarge, and not to diminish, the powers vested in the government. It purports, on its face, to be an additional power, not a restriction on those already granted. If it does not, in fact, (as seems the true construction,) give any new powers, it affirms the right to use all necessary and proper means to carry into execution the other powers; and thus makes an express power, what would otherwise be merely an implied power. In either aspect, it is impossible to construe it to be a restriction. If it have any effect, it is to remove the implication of any restriction. If a restriction had been intended, it is impossible, that the framers of the constitution should

VOL. II.

1 The Federalist, No. 33, 44.

2 M'Culloch v. Maryland, 4 Wheat. R. 418, 419.

3 M'Culloch v. Maryland, 4 Wheat. R. 419, 420.

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