Imatges de pÓgina

should, in all future time, execute its powers, would have changed entirely the character of the Constitution, and given it the properties of a legał code. It would have been an unwise attempt to provide by immutable rules for cases which, if foreseen at all, must have been perceived indistinctly, and which could have been better provided for as they occurred. To have declared that the best means should not be used, but those only without which the power given would be nugatory, would have deprived Congress of the capacity to avail itself of experience, or to exercise its reason and accommodate its legislation to circumstances.

If the end be legitimate, and within the scope of the Constitution, all means which are appropriate and plainly adapted to those ends, and which are not prohibited, are lawful ; and a corporation was considered as a means not less usual, nor of higher dignity, nor more requiring a particular specification, than other means. A National Bank was deemed a convenient, useful, and essential instrument in the prosecution of the fiscal operations of the government. It was

early an appropriate measure; and while the court declared it to be within its power, and its duty to maintain that an act of Congress exceeding its constitutional power of legislation was not the law of the land, yet, if a law was not prohibited by the Constitution, and was really calculated to effect an object intrusted to the government, it did not pretend to the power to inquire into the degree of its necessity, as that would be passing the line which circumscribes the judicial power, and treading on legislative ground

The court, therefore, decided that the law creating the bank was made in pursuance of the Constitution, and that the branches of the Na. tional Bank, proceeding from the same stock, and conducing to the complete accomplishment of its objects, were equally consistent with the Constitution.* It was afterward led, in some degree, to review this decision, and, in a subsequent case, admitted that Congress could not create a corporation for its own sake or for private purposes.f It was observed on this occasion, that the opinion in the former case was founded on and sustained by the idea that the Bank was an instrument which was “necessary and proper for carrying into effect the powers" vested in the government. It was created for national purposes only, though it was undoubtedly capable of transacting private as well as

blic business; and while it was the great instrument by which the fiscal operations of the government were effected, it was also engaged in trading with individuals for its own advantage. It could not, on any rational calculation, effect its object unless it were endowed with the faculty of dealing in money, which, indeed, was necessary to render the Bank competent to fulfil the purposes of the government, and was, therefore, constitutionally and rightfully ingrafted on the institution.

II. The next provis on for giving effect to the powers of the Federal Constitution is that requiring the senators and representatives in Congrees, and the members of the state legislatures, and all executive and judicial officers, both of the United

* 4 Wheat., 316.

+ 9 Ib., 860.

States and of the several states, to be bound by oath or affirmation to support the Constitution of the United States.

The election of the President and Senate depends, in all cases, on the legislatures of the several states; and the election of members of the House of Representatives depended in the first instance, and still, in fact, depends on the same authority, and will probably always be conducted by the officers, and according to the laws of the states. In order, therefore, to ensure the stabil. ity, and, as far as possible, the perpetuity of the Federal Government, it was necessary to provide a sanction similar to that relied on for the continuance of the state governments, and to obtain, by an appeal to the consciences of individuals, an equal security in both cases. This dependance on the action of the state governments for the organization of the executive and legislative branches of the National Government, and especially for the appointment of electors of President and Vice-president, and the election of senators, has been used as an argument in support of the right of a state, in virtue of its sov. ereign power, to secede from the Union. But were it even true that the legislative powers of the Union would be suspended if all the states, or a majority of them, were to refuse to elect senators, yet,

if any one state should refuse, Congress would not, on that account, be the less capable of performing all its functions. The same reasoning would apply to any number of states less than a majority of the whole ; and the argument founded on this delinquency proves rather the subordination of the parts to the whole than the complete independence of any one of them. The

framers of the Constitution were unable to make any provision which should protect it against a general combination of the states or of the people for its destruction, and, conscious of this inability, they did not make the attempt. But they were able to provide against the operation of measures adopted in any one state, the tendency of which might be to arrest the execution of the laws of the Union; and this they have done.

To this it may be added, that they provided against a dissolution of the Union, and against any direct or indirect attempts on the part of a state to withdraw from the Union, not only by this provision requiring all officers, civil and military, of the state governments to take an oath to support the Federal Constitution, but by creating distinct executive and judicial departments, and by adopting various other provisions, operating immedi

ely and individually upon the people of the several states. Thus the Constitution exacts no pledge from the states to maintain its inviolability, but makes its preservation depend on individual obligation and duty. It permits no man to sit in the Legislature of a state who is not first sworn to support the Constitution of the United States. From the obligation of this oath no state power can discharge them. All the members of all the state legislatures are as religiously bound to support the Federal Constitution as they are to support those of their own state constitutions, and as solemnly sworn to do so as the members of Congress. No member of a state legislature can refuse to proceed at the appointed time to elect sen. ators in Congress, or to provide for the choice of electors of President and Vice-president, any more than the members of the Senate of the United States can refuse, when the appointed time arrives, to meet the members of the other house to witness the counting of the votes given by the electors for those officers, and ascertain who are chosen. In either case, the duty binds with equal strength the conscience of the individual, and is imposed on every member by an oath in the same words. It cannot, therefore, be a matter of discretion with the states whether they will continue the government or break it up, by refusing to elect senators and appoint electors. Nor can the members of their legislatures neglect or evade those duties, when the times arrive for their performance, without such a violation of their oaths and duties as would destroy any other government.

III. Among the provisions for giving efficacy to the Federal legislative powers may be included those specially vested in the executive and judicial departments, and especially the provision extending the jurisdiction of the Federal Courts to all cases arising under the Constitution of the United States. But these powers have al. ready been subjected to particular examination in our review of the structure and organization of the government, and do not, perhaps, require any farther elucidation. It may, however, be as well here to observe, that the provision last specified in effect creates in the Supreme Court of the United States a COMMON ARBITER in all cases of collision between the power and authority of the Union and of the several states. Such collisions, we have seen, have already taken place, in times, too, of no extraordinary commotion, and have hitherto been happily adjusted. “But a constitution," said its great judicial oracle, “is

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