terpretation 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.1 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, bona 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.2 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 have concealed it under phraseology, which purports to enlarge, or at least give the most ample scope to the other powers. There was every motive on their part to give point and clearness to every restriction of national power; for they well knew, that the national government would be more endangered in its adoption by its supposed strength, than by its weakness. It is inconceivable, that they should have disguised a restriction upon 1 M'Culloch v. Maryland, 4 Wheat. R. 418, 419. its powers under the form of a grant of power. They would have sought other terms, and have imposed the restraint by negatives.1 And what is equally strong, no one, in or out of the State conventions, at the time when the Constitution was put upon its deliverance before the people, ever dreamed of, or suggested, that it contained a restriction of power. The whole argument on each side, of attack and of defence, gave it the positive form of an express power, and not of an express restriction. § 1255. Upon the whole, the result of the most careful examination of 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 national government. The motive for its insertion doubtless was, the desire to remove all possible doubt respecting the right to legislate on that vast mass of incidental powers, which must be involved in the Constitution, if that instrument be not a splendid pageant, or a delusive phantom of sovereignty. 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 the end, and which are not prohibited, but are consistent with the letter and spirit of the instrument, are constitutional.2 § 1256. It may be well, in this connection, to mention another sort of implied power, which has been called with great propriety a resulting power arising from the aggregate powers of the national government. It will not be doubted, for instance, that, if the United States should make a conquest of any of the territories of its neighbors, the national government would possess sovereign jurisdiction over the conquered territory. This would, perhaps, rather be a result from the whole mass of the powers of the national government, and from the nature of political society, than a consequence or incident of the powers specially enumerated.3 It may, however, be deemed, if an incident to any, an 1 M'Culloch v. Maryland, 4 Wheat. R. 420. 2 M’Culloch v. Maryland, 4 Wheat. R. 420, 421, 423. See also 4 Elliot's Debates, 220, 221, 222, 223, 224, 225; 2 Elliot's Debates, 196, 342; 5 Marsh. Wash. App. No. 3; 2 American Museum, 536; Anderson v. Dunn, 6 Wheat. R. 204, 225, 226; Hamilton on Bank, 1 Hamilton's Works, 111 to 123. 3 Hamilton on Bank, 1 Hamilton's Works, 115. incident to the power to make war. Other instances of resulting powers will easily suggest themselves. The United States are nowhere declared in the Constitution to be a sovereignty entitled to sue, though jurisdiction is given to the national courts over controversies, to which the United States shall be a party. It is a natural incident, resulting from the sovereignty and character of the national government.1 So the United States, in their political capacity, have a right to enter into a contract (although it is not expressly provided for by the Constitution), for it is an incident to their general right of sovereignty, so far as it is appropriate to any of the ends of the government, and within the constitutional range of its powers.2 So Congress possess power to punish offences committed on board of the public ships of war of the government by persons not in the military or naval service of the United States, whether they are in port, or at sea; for the jurisdiction on board of public ships is everywhere deemed exclusively to belong to the sovereign.3 § 1257. And not only may implied powers, but implied exemptions from State authority exist, although not expressly provided for by law. The collectors of the revenue, the carriers of the mail, the mint establishment, and all those institutions which are public in their nature, are examples in point. It has never been doubted that all who are employed in them are protected, while in the line of their duty, from State control; and yet this protection is not expressed in any act of Congress. It is incidental to, and is implied in, the several acts by which those institutions are created; and is preserved to them by the judicial department, as a part of its functions. A contractor for supplying a military post with provisions cannot be restrained from making purchases within a State, or from transporting provisions to the place at which troops are stationed. He could not be taxed or fined, or lawfully obstructed in so doing.5 These incidents necessarily flow from the supremacy of the powers of the Union, within their legitimate sphere of action. § 1258. It would be almost impracticable, if it were not use 1 See Dugan v. United States, 3 Wheat. R. 173, 179, 180. 2 United States v. Tingey, 5 Pet. R. 115. 3 United States v. Bevans, 3 Wheat. R. 388; The Exchange, 7 Cranch, 116. 4 Osborn v. Bank of U. States, 9 Wheat. R. 365, 366. 5 Osborn v. Bank of U. States, 9 Wheat. R. 367. less, to enumerate the various instances in which Congress, in the progress of the government, have made use of incidental and implied means to execute its powers. They are almost infinitely varied in their ramifications and details. It is proposed, however, to take notice of the principal measures which have been contested, as not within the scope of the powers of Congress, and which may be distinctly traced in the operations of the government and in leading party divisions.1 1 Some minor points will be found in the debates collected in 4 Elliot's Debates, 139, 141, 229, 234, 235, 238, 239, 240, 243, 249, 251, 252, 261, 265, 266, 270, 271, 280. There is no express power given by the Constitution to erect forts, or magazines, or light-houses, or piers, or buoys, or public buildings, or to make surveys of the coast; but they have been constantly deemed incidental to the general powers. Mr. Bayard's Speech, in 1807 (4 Elliot's Debates, 265); Mr. Pickering's Speech, 1817 (4 Elliot's Debates, 280). [The argument upon incidental powers may be said to have been exhausted in the debates in Congress on chartering a National Bank, and other references can be of little value. We may mention, however, the "Construction Construed" of John Taylor of Caroline as not unworthy of careful reading in the same connection.] CHAPTER XXV. INCIDENTAL POWERS NATIONAL BANK. મ § 1259. ONE of the earliest and most important measures which gave rise to a question of constitutional power, was the act chartering the Bank of the United States, in 1791. That question has often since been discussed; and, though the measure has been repeatedly sanctioned by Congress, by the executive, and by the judiciary, and has obtained the like favor in a great majority of the States, yet it is, up to this very hour, still debated upon constitutional grounds, as if it were still new and untried. It is impossible, at this time, to treat it as an open question, unless the Constitution is forever to remain an unsettled text, possessing no permanent attributes, and incapable of having any ascertained sense; varying with every change of doctrine and of party, and delivered over to interminable doubts. If the Constitution is to be only what the administration of the day may wish it to be, and is to assume any and all shapes which may suit the opinions and theories of public men, as they successively direct the public councils, it will be difficult, indeed, to ascertain what its real value is. It cannot possess either certainty, or uniformity, or safety. It will be one thing to-day, and another thing to-morrow, and again. another thing on each succeeding day. The past will furnish no guide, and the future no security. It will be the reverse of a law, and entail upon the country the curse of that miserable servitude so much abhorred and denounced, where all is vague and uncertain in the fundamentals of government. § 1260. The reasoning upon which the constitutionality of a national bank is denied has been already, in some degree, stated in the preceding remarks. It turns upon the strict interpretation of the clause, giving the auxiliary powers necessary and proper to execute the other enumerated powers. It is to the following effect: The power to incorporate a bank is not among those enumerated in the Constitution. It is known that the very power, thus proposed as a means, was rejected as an end, by the conven |