LECTURE XII.

ON THE PROVISIONS CONTAINED IN THE CONSTITUTION FOR GIVING EFFICACY ΤΟ THE FEDERAL POWERS.

THE sixth, and last class of powers enumerated in the Constitution, consists of certain provisions by which efficiency is given to the rest. The first of these is the power "to make all laws necessary and proper for carrying the foregoing powers

into execution."

I. It was remarked by the authors of "The Federalist," that "without the substance of this power, the whole Constitution would be a dead letter;" and, as few parts of that instrument had been assailed with more intemperance, they justly inferred that "it was the form only of the provision that was objected to, and they accordingly proceeded to consider" whether a better one could have been substituted. "There were four other methods," they observe, "which the Convention might have pursued: they might have copied the article of the Confederation which prohibited the exercise of any power not expressly delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms necessary and proper; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition; or they might have been altogether silent on the subject, and left these necessary and proper powers to construction and inference."

Had the first method been adopted, it is evident that the new Congress, like their predecessors, would have been continually exposed to the alternative, either of construing the term "expressly" with so much rigour as to disarm the government of all real authority, or with so much latitude as altogether to destroy the force of the restriction. It would be easy to show, were it necessary, that no important power delegated by the Articles of Confederation was or could have been executed by Congress, without recurring, more or less, to the doctrine of construction or implication. As the powers delegated under the new system were more extensive, the government, which was to administer it, would have found itself still more frequently driven to the dilemma of doing nothing, or violating the Constitution, by exercising powers indispensably necessary, but not expressly granted.

Had the Convention made a positive enumeration of the powers necessary and proper for carrying the other powers into effect, it would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated, too, not only to the existing state of things, but to all possible changes which futurity might produce. Had they attempted to enumerate the particular powers or means not necessary or proper for carrying the general powers into execution, the undertaking would have been no less. chimerical, and would, moreover, have been liable to this farther objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. If, to avoid this consequence, they had attempted a partial enumeration of exceptions, and described the

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 method, 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