Lapas attēli


may create

a bank.

was held, in Harris v. Dennie," that the government had a lien on goods imported, for the payment of duties accruing on them, and not secured by bond; and that the United States were entitled to the custody of the goods until the duties. were paid or secured, and any attachment of the goods under state process, during such custody, was void. On the other hand, it was held, that the government had no general lien on the goods of the importer, for duties due by him upon other importations."

2. The next question which called forth a construction from every part of the government, as to the implied powers of Congress, was, whether Congress had power to incorporate a bank. In the year 1791, the secretary of the treasury had recommended the institution of a national bank, as being 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. But the bill for establishing a bank was opposed in the house of representatives, as not authorized by the constitution. It was contended, that the government of the United

a 3 Peters' U. S. Rep. 292.

b In Maryland, by statute, passed in 1778, the commencement of a suit by the state against a public debtor, created a lien on the lands of the debtor, and a preference over all other creditors, who had not, prior to the commencement of the suit, secured a lien by judgment, mortgage, or otherwise. Davidson v. Clayland, 1 Harr. & Johns. 546.

As to the lien of judgments obtained by individuals in the federal courts, it was decided in the Circuit Court of the U. S. in New-York, in November, 1829, in the case of Konig v. Bayard, that judgments in the Circuit and District Courts of New-York were a lien upon lands as against subsequent purchasers from the time they were regularly docketed, according to the practice of those courts, and that the usage of docketing those judgments had prevailed since 1795. The same doctrine was assumed in reference to judgments in the federal courts in Pennsylvania, in the case of Conard v. Atlantic Ins. Co. 1 Peters' U. S. Rep. 386; and the principles contained in this last case were reviewed and confirmed, in Conard v. Nicoll, 4 Peters' U. S. Rep.

States was limited to the exercise of the enumerated powers, and that the power to incorporate a bank was not one of them, and, if vested in the government, it must be an implied power; and it was contended, 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 powers. On the other hand, it was urged in favour of the bill, that incidental, as well as express powers, necessarily belonged to every government, and that when a power was delegated to effect particular objects, all the known and usual means of effecting them passed as incidental to them; and it was insisted, that a bank was a known and usual instrument, by which several of the enumerated powers of government were exercised. After the bill had passed the two houses of Congress, the question touching its constitutionality was agitated with equal ability and ardour in the executive cabinet. The secretary of state, and the attorney general, conceived that Congress had transcended their powers, but the secretary of the treasury maintained the opposite opinion. Their respective opinions were founded on a train of reasoning, denoting great investigation of all the leading and fundamental principles of the constitution, and they were submitted to the consideration of the President of the United States. It was argued against the constitutionality 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 that if such a latitude of construction was allowed, as to give to Congress any implied power on the ground of conveVOL. I.


nience, it would swallow up all the list of enumerated powers, and reduce the whole to one phrase. On the other hand, it was contended, 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; that though the government of the United States was one of limited and specified powers, it was sovereign with regard to its proper objects, and to its declared purposes and trusts; that it was incident to sovereign power to erect corporations, and, consequently, it was incident to 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, 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 power would be nugatory, and it often means no more than needful, requisite, useful, or conducive to, and that was the true 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 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.

President Washington gave these arguments of his cabinet a deliberate and profound contemplation, and it termi-

nated in a conviction, that the incorporation of a bank was a measure authorized by the constitution, and the bill passed into a law.

This same question came before the Supreme Court of the United States, in 1819, in the case of M'Culloch v. The State of Maryland, in reference to the new bank of the United States, which was incorporated in 1816, and upon which the legislature of Maryland had imposed a tax. Notwithstanding the question arising on the construction of the powers of Congress had been settled, so far as an act of Congress could settle it, in 1791, and again in 1816, it was thought worthy of a renewed discussion in that case. The Chief Justice, in delivering the opinion of the court, observed, that the question could scarcely be considered as an open one, after the principle had been so early introduced and recognised by many successive legislatures, and had been acted upon by the judicial department, as a law of undoubted obligation. He admitted that it belonged to the Supreme Court alone, to make a final decision in the case, and that the question involved a consideration of the constitution in its most interesting and vital parts.

It was admitted, that the government of the United States was one of enumerated powers, and that it could exercise only the powers granted to it; but though limited in its powers, it was supreme within its sphere of action. It was the government of the people of the United States, and emanated from them. Its powers were delegated by all, and it represented all, and acted for all. In respect to those subjects on which it can act, it must necessarily bind its component parts; and this was the express language of the constitution, when it declared that the constitution, and the laws made in pursuance thereof, were the supreme law of the land, and required all the officers of the state governments to take an oath of fidelity to it. There was nothing

a 4 Wheaton, 316.

in the constitution which excluded incidental or implied powers. The articles of the confederation gave nothing to the United States but what was expressly granted; but the new constitution dropped the word expressly, and left the question, whether a particular power was granted, to depend on a fair construction of the whole instrument.

No constitution can contain an accurate detail of all the subdivisions of its powers, and of all the means by which they might be carried into execution. It would render it too prolix. Its nature requires that only the 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 depended, must also be intrusted with ample means for their execution. 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.

The powers given to the government imply the ordinary means of execution; and the government, in all sound reason 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 not a great, substantive, and independent power, but merely a means by which other objects were 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 is never used for its own sake, but for the purpose of effecting something else. It is nothing but ordinary

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