Imatges de pàgina
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residue by the general terms "necessary and proper," the enumeration must have comprehended only a few of the excepted cases, and those the least likely to be assumed or tolerated; because the enumeration would, of course, have selected such as would have been least necessary and proper, and, therefore, the unnecessary and improper powers included in the remainder would be less forcibly assumed than if no particular enumeration had been made.

Had the Constitution been silent on this subject, there can be no doubt that all the particular powers requisite, as means of executing the general powers, would have resulted to the government by unavoidable implication. No axiom is more clearly established in law or reason, than that, wherever an end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included. Had this last methöd, therefore, been pursued, every objection urged against this part of the Constitution would have remained, in all its plausibility, and the real inconvenience felt of not removing a pretext which might be used on critical occasions for drawing in question the essential powers of the Union. But, with the view of quieting the excessive jealousy which had been excited by this provision, an amendment of the Constitution was adopted, which, omitting the word "expressly" in the Articles of Confederation, simply declares that the powers "not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people ;" thus leaving the question, whether the particular power, which may become the subject of controversy, has been del

egated to the one government or the other, to depend upon a fair construction of the whole in

strument.

The first occasion which called for an interpretation of this part of the Constitution, arose during the first Congress assembled under its authority. General Hamilton, at that time Secretary of the Treasury, had recommended the institution of a National Bank, as of primary importance to the prosperous administration of the finances, and of the greatest utility in the operations connected with the support of public credit. The bill introduced into the House of Representatives for that purpose was opposed, as unconstitutional. It was contended that the Federal Government was limited to the exercise of its enumerated powers, and that the power to incorporate a bank was not one of them; that if such power was vested in the government, that it must be an implied power, and that the power given to Congress to pass all laws necessary and proper to execute the, specified powers must be limited to means necessary to the end, and incident to the nature of the specified power. On the other side, it was urged that incidental as well as express powers necessarily belong to every government; and that when a power was delegated to effect particular objects, all the known and usual means of effecting them followed, as incidental to it; and it was on this ground insisted that a bank was a known and usual instrument which several of the enumerated powers of the government required for their due execution.

After the bill had passed both houses of Congress, the question touching its conformity to

the Constitution was agitated with equal ability and ardour in the executive cabinet. Mr. Jefferson, the Secretary of State, and Mr. Edmund Randolph, the Attorney-general, conceived that Congress had transcended its powers; but the Secretary of the Treasury maintained the opposite opinion, and was supported by General Knox, the Secretary of War. It was argued against the validity 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 if such a latitude of construction were allowed as to give to Congress any implied powers on the ground of convenience, it would swallow up all the enumerated powers, and reduce the whole list to one phrase."

To this it was replied, 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; and though the government of the United States was one of limited and specified powers, it was sovereign with regard to its proper objects and declared purposes and trusts; that it was incident to sovereign power to erect corpora

tions, and, consequently, it was incident to the government of 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 the currency, 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 the power would be nugatory; that it often means no more than needful, requisite, useful, or conducive to ; and that this was the 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 degree of necessity or utility. The infinite variety, extent, and complexity of national exigencies, necessarily required great latitude of discretion in the selection and application of means; and the authority intrusted to government ought and must be exercised on principles of liberal construction."

General Washington gave to these arguments a deliberate and profound consideration, which terminated in his conviction that the incorporation of a bank was a measure authorized by the Constitution. The bill for that purpose, accordingly, received his approval, and became a law.

The same question came before the Supreme

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Court of the United States, in 1819, in reference to the then existing bank, which had been incorporated in 1816, and upon which the State of Maryland had subsequently imposed a tax; and although the question had twice been settled, so far as a legislative act could settle it, yet it was thought worthy of a renewed discussion in the judicial department. The chief-justice, however, observed "that it could hardly be considered an open one, after the principle had been so early introduced and recognised by many successive legislatures, and had acted upon the judiciary as a law of undoubted obligation." He, nevertheless, admitted that it belonged to the Supreme Court alone to make a final decision, and that the question involved a consideration of the Con-. stitution in its most interesting and vital parts.

It was, moreover, admitted that "the government of the United States was one of enumerated powers; but, though limited in its powers, that it was supreme within its sphere of action." There was nothing, however, in the Constitution which excluded incidental or implied powers. The Articles of Confederation, indeed, gave nothing to the United States but what was expressly granted; but the amendment, to the new Constitution had dropped the word "expressly," and left the question whether a particular power was granted to depend, as we have seen, on a fair construction of the whole instrument. "No Constitution," he continued, "can contain an accurate detail of all the subdivisions of its powers, and of all the means by which they may be carried into execution. Its nature required that only the

* Marshall.

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