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means to attain some public and useful end. The constituion 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 degrées 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 intued 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

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of 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 government, 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.

(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

a 9 Wheaton, 859, 860.

b 3 Dallas, 171.

5th June, 1794, Congress laid a duty upon carriages 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.

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.

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 80,000 dollars, by a tax on carriages of eight dollars on every carriage,

and in one state there were 100 carriages, and in the other 1,000, the owners of carriages in one state would pay ten times the tax of owners 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 a 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 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 coextensive with the empire. The inhabitants of the 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

a 5 Wheaton, 317.

full operation of the power of taxation, equally as the 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 is understood that Congress are 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 must be admitted to be most convenient, for the expense of assessing and collecting a tax in a territory, as the North West Territory, for instance, might exceed the amount of the tax. Here is 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 right of representation, and adopted the whole body of Congress for its legitimate government.

main as to

(4.) Congress have the exclusive right of pre-emption to Right of doall Indian lands lying within the territories of the United Indian lands. States. This was so decided in the case of Johnson v. M'Intosh. Upon the doctrine of the court in that case, and in that of Fletcher v. Peck, the United States own the soil, as well as the jurisdiction, of the immense tracts of unpatented lands, included within their territories, and of

a 8 Wheaton, 543. VOL. I.

b 6 Cranch, 142, 143.


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