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for its own sake, but for the purpose of effecting something else. It is nothing but ordinary *means to at- *253 tain some public and useful end. The constitution has

not left the right of congress to employ the necessary means for the execution of its powers to general reasoning. It is expressly authorized to employ such means; and necessary means, in the sense of the constitution, does not import an absolute physical necessity, so strong that one thing cannot exist without the other. It stands for any means calculated to produce the end. The word necessary admits of all degrees of comparison. A thing may be necessary, or very necessary, or absolutely and indispensably necessary. The word is used in various senses, and in its construction, the subject, the context, the intention, are all to be taken into view. The powers of the government were given for the welfare of the nation. They were intended to endure for ages to come, and to be adapted to the various crises of human affairs. To prescribe the specific means by which government should in all future time execute its power, and to confine the choice of means to such narrow limits as should not leave it in the power of congress to adopt any which might be appropriate and conducive to the end, would be most unwise and pernicious, because it would be an attempt to provide by immutable rules for exigencies, which, if foreseen at all, must have been seen dimly, and would deprive the legislature 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 this end, and which are not prohibited, are lawful; and a corporation was a means not less usual, nor of higher dignity, nor more requiring a particular specification, than other means. A national bank was a convenient, a useful and essential instrument in the prosecution of the fiscal operations of the government. It was clearly an appropriate measure; and while the Supreme Court declared it to be within its power and its duty, to maintain that an act *of *254 congress exceeding its power 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 go

vernment, the court did not pretend to the power to inquire into the degree of its necessity. That would be passing the line which circumscribes the judicial department, and be treading on legislative ground.

The court therefore decided, that the law creating the Bank of the United States, was one made in pursuance of the constitution; and that the branches of the national bank, proceeding from the same stock, and being conducive to the complete accomplishment of the object, were equally constitutional.

The Supreme Court were afterwards led, in some degree, to review this decision, in the case of Osborn v. The United States Bank; and they there admitted that congress could not create a corporation for its own sake, or for private purposes. The whole opinion of the court in the case of M'Culloch v. The State of Maryland, 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 trading with individuals for its own advantage. The bank, on any rational calculation, could not effect its object, unless it was endowed with the faculty of lending and dealing in money. This faculty was necessary to render the bank competent to the purposes of government, and, therefore, it was constitutionally and rightfully engrafted on the institution.b

9 Wheaton, 859, 860.

b It is worthy of notice, that the power of congress to establish a national bank even under the articles of confederation, seems not, at the time, to have been much questioned; and congress did actually approve of such a proposition on the 26th of May, 1781; and on the 31st of December following, they proceeded by ordinance to institute and incorporate the Bank of North America. Journals of Congress, vol. vii. pp. 87. 197. The constitutionality and validity of this ordinance were ably enforced by Judge Wilson. See Wilson's Works, vol. iii. p. 397, and see supra, p. 212, n. The first and the second banks of the United States were established by statutes, which received the approbation of Presidents Washington and Madison, and the constitutionality of the establishment of those banks being repeatedly declared by the Supreme Court of the United States, it was considered as a settled

(3.) The construction of the powers of congress relative to taxation, was brought before the Supreme Court, in 1796, in the case of Hylton v. The United States." By the act of *5th June, 1794, congress laid a duty upon carriages *255 for the conveyance of persons, and the question was, whether this was a direct tax, within the meaning of the constitution. If it was not a direct tax, it was admitted to be rightly laid, under that part of the constitution which declares that all duties, imposts and excises, shall be uniform throughout the United States; but if it was a direct tax, it was not constitutionally laid, for it must then be laid according to the census, under that part of the constitution which declares that direct taxes shall be apportioned among the several states according to numbers. The Circuit Court in Virginia was divided in opinion on the question; but, on appeal to the Supreme Court, it was decided, that the tax on carriages was not a direct tax, within the letter or meaning of the constitution, and was therefore constitutionally laid.

Rules for taxation.

question, not open for further discussion. The constitution declared, that "all legislative powers therein granted should be vested in the congress of the United States;" and that "the executive power should be vested in a President of the United States; and that the judicial power of the United States should be vested in one Supreme Court, and in such inferior courts as the congress might, from time to time, ordain and establish; and that the judicial power should extend to all cases in law and equity, arising under the constitution." (Art. 1. sec. 1.-Art. 2 sec. 1.— Art. 3. sec. 1, 2.) This simple and beautiful distribution of power would seem to be too clear to be mistaken, and too sacred to be invaded. The oath to support the constitution, necessarily includes, in its meaning and efficacy, the support of this distribution of power, and of the judicial cognizance of all cases arising under the constitution. That cognizance extends, of course, to the question, whether congress have the constitutional power to incorporate a national bank. It is a case arising under the constitution; and the decisions of the Supreme Court in favour of the existence of such a power, and of the valid exercise of it in the establishment of a national bank. The words necessary and proper, in the constitution, were not to be confined to means that were indispensable in the exercise of any express power; but extended to all means that congress should deem expedient and useful, and conducive to the end proposed in the execution of any express power. That construction is binding and conclusive, as well upon the other departments of the government as upon the nation at large. The congress, in whom is vested the legislative power, and the President, in whom is vested the executive power, are respectively bound to receive and obey that construction of the constitution which has been duly settled by the judicial power. See further infra, pp. 449. 456, note b.

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The question was deemed of very great importance, and was elaborately argued. It was held, that a general power was given to congress to lay and collect taxes of every kind or nature, without any restraint. They had plenary power over every species of taxable property except exports. But there were two rules prescribed for their government: the rule of uniformity, and the rule of apportionment. Three kinds of taxes, viz., duties, imposts and excises, were to be laid by the first rule; and capitation, and other direct taxes, by the second rule. If there were any other species of taxes, as the court seemed to suppose there might be, that were not direct, and not included within the words duties, imposts or excises, they were to be laid by the rule of uniformity or not, as congress should think proper and reasonable.

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The constitution contemplated no taxes as direct taxes, but such as congress could lay in proportion to the census; and the rule of apportionment could not reasonably apply to a tax on carriages, nor could the tax on carriages be laid by that rule, without very great inequality and injustice. If two states, equal in census, were each to pay 8,000 dollars, *256 by a tax on carriages, *and in one state there were 100 carriages, and in another 1,000, the tax on each carriage would be ten times as much in one state as in the other. While A, in the one state, would pay for his carriage eight dollars, B, in the other state, would pay for his carriage eighty dollars. In this way, it was shown by the court, that the notion that a tax on carriages was a direct tax, within the purview of the constitution, and to be apportioned according to the census, would lead to the grossest abuse and oppression. This argument was conclusive against the construction set up, and the tax on carriages was considered as included within the power to lay duties; and the better opinion seemed to be, that the direct taxes contemplated by the constitution were only two, viz., a capitation, or poll tax, and a tax on land. The court concluded, that the tax on carriages was an indirect tax on expense or consumption, and, therefore, properly laid, pursuant to the rule of uniformity.

In Loughborough v. Blake, the power of taxation was

5 Wheaton, 317.

again brought under judicial discussion. The question was immediately of a local nature, and it was, whether congress had the right to impose a direct tax upon the unrepresented District of Columbia. But there were principles involved in the decision, which had an extensive and important relation to the whole United States.

It was declared, that the power to tax extended equally to all places over which the government extended. It extended as well to the District of Columbia, and to the territories which were not represented in congress, as to the rest of the United States. Though duties were to be uniform, and taxes were to be apportioned according to numbers, the power was co-extensive with the empire. The inhabitants of the then territories of Michigan, and of Florida and Arkansas, for instance, as well as the District of Columbia, though without any representation in congress, were subject to the *full operation of the power of taxation, equally as the *257 people of New-York or Massachusetts. But the court held, that congress are not bound, though they may, in their discretion, extend, a direct tax to the territories as well as to the states. A direct tax, if laid at all, must be laid on every state conformably to the census, and therefore congress has no power to exempt any state from its due share of the burthen. But it was understood that congress were under no necessity of extending a tax to the unrepresented District of Columbia, and to the territories; though, if they be taxed, then the constitution gives the rule of assessment. This construction was admitted to be most convenient, for the expense of assessing and collecting a tax in a territory, as the NorthWest Territory, for instance, then existed, might exceed the amount of the tax. Here was an anomalous case in our government, in which representation and taxation are not inseparable, though the principle that the power of taxation could not rightfully exist without representation, was a fundamental ground of our revolution. The court did not consider a departure from a general principle, in this case, to be very material or important, because the case was that of territories which were in a state of infancy, advancing to manhood, and looking forward to complete equality, as soon as that state of manhood should be attained. It was the case also of the District of Columbia, which had voluntarily relinquished the

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