Imatges de pàgina
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great outlines should be marked and its important objects designated, and all the minor ingredients left to be deduced from the nature of those objects. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, were intrusted to the General Government; and a government intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation vitally depend, must also be intrust ed with ample means for their execution; and, unless the words imperiously require it, we "ought not to adopt a construction which would impute to the framers of the Constitution, when granting great powers for the public good, the intention of impeding their exercise by withholding a choice of means.'

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"The powers given to the government," he said, "imply the ordinary means of execution, and the government, in all sound reasoning and fair interpretation, must have the choice of the means which it deems the most convenient and appropriate to the execution of the power. The power of creating a corporation, though appertaining to sovereignty, was held not to be a great, substantive, and independent power, but merely a means by which other objects are accomplished; in like manner, as no seminary of learning is instituted in order to be incorporated, but the corporate charter is conferred to subserve the purposes of education. The power of creating a corporation, indeed, was never used for its own sake, but always for the purpose of effecting something else. It was nothing, therefore, but the ordinary means of attaining some public and useful end. But the Constitution had not left

the right of Congress to employ the necessary means for the execution of its powers to general reasoning: it was expressly authorized to employ such means; and 'necessary means,' in the sense of the Constitution, did not import an absolute physical necessity so strong that one thing could not exist without the other, but the term signified any means calculated to produce the end."

"The word necessary," it was observed, "admitted of all degrees of comparison. A thing might be necessary, or very necessary, or absolutely and indispensably necessary; to no mind would the same idea be conveyed by these several phrases;" and the remark was well illustrated by a reference to that article of the Constitution which prohibits a state from laying "imposts or duties on imports or exports, except what may be absolutely necessary for carrying into execution its inspection laws." It is impossible to compare this clause with that under consideration, without feeling a conviction that the Convention understood itself to change materially the meaning of the word "necessary," by prefixing to it the word "absolutely" in the one case, and to qualify its signification by dropping it in the

other.

The word "necessary," then, like many others, is used in various senses; and in fixing its construction, the intention, the subject, the context, are all to be taken into view. The powers of the General Government were given for the welfare of the nation; they were intended to endure for ages, and to be adapted to the various exigencies of human affairs. To have prescribed the specific means by which the government

should, in all future time, execute its powers, would have changed entirely the character of the Constitution, and given it the properties of a legal 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 National 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. 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 public 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 provision for giving effect to the powers of the Federal Constitution is that requiring the senators and representatives in Congress, and the members of the state legislatures, and all executive and judicial officers, both of the United

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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 stability, 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 rea soning 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

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