by the people." This was added out of abundant caution, to exclude a possible inference, founded on the legal maxim, that the enumeration in any instrument of certain particulars, excludes those not enumerated. It relates not to the powers, but to the prohibitions of the constitution; and merely declares, that, because some things are specially prohibited, it does not thence follow that any thing not prohibited, is therefore permitted; and that, in order to ascertain whether any particular thing is permitted, we must look further, and see whether the power to do it is conferred. And this brings me to the tenth amendment, which declares that "the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people." It is obvious that this amendment does not affect the question, What powers are in fact delegated? It merely asserts what never could have been doubted without such an assertion; namely, that Congress, being the creature of the constitution, and possessing no original and inherent powers, can only exercise such as are delegated, or, in other words, that where a grant is made, whatever is not granted, remains in the grantors. Moreover, there is one historical fact which completely rebuts the inference that this amendment was intended to confine Congress to the exercise of express powers. In the articles of confederation, the words were, "all powers not expressly delegated;" and when this amendment was before Congress, a motion was made to insert the word "expressly," and rejected; on the ground that it is impossible to confine any government to the exercise of express powers. The conclusion, therefore, is, that there was no necessity for a further enumeration.

But a still more satisfsctory reason is, that such a complete enumeration as would leave nothing to implication, would have been utterly impossible. No human sagacity could have foreseen all the means which circumstances might render necessary to effect the ends which were foreseen. And even if such foresight had existed, the attempt to make such enumeration would have expanded the constitution through volumes. This alone, conceding the possibility, would have been a sufficient reason for terminating the enumeration with the ends to be effected, and leaving the means to implication. Why waste time in describing the less, when it is already contained in the greater? To what purpose is our language furnished with general terms, if they cannot supersede the necessity of enumerating the particulars they contain?

Yet, notwitstanding these very sufficient reasons for not enumerating the secondary powers, there are many who, from the fact of their not being enumerated, have denied their existence. These persons would hold the federal government to the strict letter of the constitution, and allow the exercise of no powers not specifically enumerated. I have not room to detail the arguments upon which this doctrine of strict construction rests. They are, however, chiefly derived from four sources; first, the history of the times,

evincing a deep-rooted jealousy of federal power, and a strong determination to limit it in the strictest manner; secondly, the fact that the constitution contains several pleonasms, thereby indicating an intention to leave nothing to implication; thirdly, the fact that certain powers are enumerated, thereby raising the inference that those not enumerated are excluded; and fourthly, the amendments just referred to, which are alleged to negative the idea of implied powers. To all these arguments, however, it might be sufficient to reply, that, if any government were to be confined to the strict letter of a brief constitution, it could not fulfil the ends of its creation; and, therefore, we cannot presume an intention so to confine it. But it would seem as if the framers of the federal constitution, than whom a wiser body of men was never convened, anticipated that such arguments would be made use of, and therefore resolved to furnish, in the constitution itself, a conclusive answer to them. For, singular as the proposition may at first appear, incidental powers are expressly conferred. The clause conferring them immediately follows the specific enumeration, and is in these words: "Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof." (a) This clause, therefore, puts an end to all doubt whether Congress can exercise incidental powers. The only question that can arise is, What powers are incidental, within the meaning of the terms here employed? In other words, when is a law "necessary and proper for carrying into execution" the enumerated powers of the federal constitution. The answer must depend upon the meaning we annex to the words "necessary and proper." The advocates of a strict construction insist that the meaning is the same as if the phrase had been, absolutely necessary, indispensably necessary, or absolutely indispensable. They hold that this provision leaves Congress no discretion whatever in the choice of means to effect the authorized ends; and that any law passed in pursuance of this power, must be a sine qua non; one without which the specific end could not possibly be effected. But, on the other hand, the advocates of a liberal construction consider the meaning of the words "necessary and proper" to be the same as if the expression had been, convenient, suitable, appropriate, or some other term of like import. They hold that the provision gives Congress a discretion in the choice of means, to effect the authorized ends; and that laws passed in virtue of this power need not be the only possible means of effecting the end proposed, provided they be appropriate means. And as this is the construction upon which the government has been hitherto administered, I shall briefly state the leading arguments in favor of it.

(a) See 2 Story, Const. § 1248; McCulloch v. Maryland, 4 Wheaton, 412. In the convention this clause was adopted unanimously, and without debate. Mad. Pap.

It

1. The terms themselves admit of this enlarged meaning. Even had the word "necessary" been used alone, neither its grammatical nor popular sense would have required the strict construction. generally means needful, requisite, conducive to; and admits of degrees of comparison. Accordingly, when we would convey the idea of extreme urgency or indispensable necessity, we prefix a qualifying word, and say absolutely or indispensably necessary. This very constitution furnishes a conclusive example, when it prohibits the States from laying any tax on imports or exports, "except what may be absolutely necessary for executing their inspection laws." But the word "necessary " is not used alone. It is followed by a qualifying word of another sort, which, instead of increasing, diminishes the idea of urgency. The word "proper would have no meaning whatever, if the strict construction were adopted. But the liberal construction gives to both words their natural and appropriate signification. In the common use of language, who would ever think of using the terms "necessary and proper," to convey the idea of absolute and extreme necessity?

2. There is nothing in the character or situation of the clause to justify the strict construction; but the contrary. It is placed among the powers of Congress, and not among the limitations of power. It purports to be an additional power, and not a restriction; to enlarge, and not to diminish the powers of Congress. But even supposing it had no other effect than simply to exclude the inference against incidental powers, without enlargement or diminution, we should still arrive at the liberal construction, on the general principle of agency before mentioned; which always allows the agent a choice of means, unless the contrary be expressed

3. The necessity of the case demands the liberal construction; since without it Congress could not beneficially promote the national interest. Probably more than half of all the legislation of Congress has no other constitutional warrant than this liberal construction of incidental powers. This will be evident from the instances to be given hereafter. Meantime, I will state the rules by which to determine whether a proposed measure comes within the sphere of incidental powers or not.

These rules are two: first, there must be a primary or general power, expressly conferred by the constitution; and, secondly, the measure in question must be a convenient and proper means of carrying into execution this primary power. These rules are deduced from the clause itself. The power declared is, in substance, to pass all laws which may be requisite for effecting any of the objects specified in the constitution. And so long as Congress adheres to these rules, there can be no danger from incidental powers. Let every measure, for which there is not a specific provision, be a manifestly proper means of effecting an end, for which there is a specific provision; and the vehement jealousy of incidental powers, which has always existed, will never be justified by experience. In order to illustrate these general views, I will

now instance the most prominent of the incidental powers hitherto exercised.

§ 69. Power to Purchase Foreign Territory. (a) We have seen that since the formation of the federal government, the United States have purchased extensive territories; now, the constitution nowhere contains any express power to make these purchases. If, therefore, the power exist, it is incidental; and, by applying to it the test rules before laid down, we shall find that it requires the utmost stretch of liberal construction. To make such a purchase. involves two acts: first, a treaty stipulating the terms of purchase; and, secondly, an appropriation by Congress to pay the purchase-money. First, then, does the treaty-making power extend thus far? If so, it can only be as a general incident to national sovereignty. Secondly, has Congress power to raise and appropriate money for such purchase? If so, it can only be as incidental to the promotion of "the common defence and general welfare," upon the most enlarged construction of these terms. It is not a little singular, therefore, that this power, the most questionable perhaps of any yet exercised, should have been first exercised during the preponderance of a party including the most prominent advocates of a strict construction.

§ 70. Power to lay an Embargo. (b) The power to lay an embargo is nowhere expressly conferred. To which, then, of the enumerated powers is it incidental? It may be incidental to two of them: the war power and the commercial power; but it can only be so on the liberal construction; for it can never be absolutely indispensable to the exercise of either. But it meets the test of an incidental power, because it may be a convenient and proper means of preventing the evils of war, and of ultimately promoting the commercial welfare of the country. This power, like the preceding, was first asserted by the advocates of a strict construction.

§ 71. Power to establish a Military Academy. (c) This power is nowhere expressly conferred, but has been exercised as an incidental power. The object of such establishment being to educate young men for the army, and thus the better enable the country to prepare for, and carry on war, it is evidently a convenient and proper, though by no means an indispensable, method, of promoting the common defence and general welfare. On the liberal construction, therefore, the power to establish a military or naval academy is clearly incidental to the general power of defence; but on a strict construction it is not.

§ 72. Power to pass Alien and Sedition Laws. (d) These terms have a peculiar import. Two laws, known by their title, were en

(a) See 2 Story, Const, ch. xxvii.

(b) See 2 Story, Const. ch. xxvii.; United States v. Brig William, 2 Hall's Law Jour. 255.

(c) See 2 Story, Const. § 1281.

(d) See 2 Story, Const. § 1293, 1891.

acted in 1798, and have long since expired by their own limitation. The alien law, in substance, authorized the president to order out of the country, under severe penalties for disobedience, such aliens. as he should deem dangerous to its peace and safety. The sedition law, in substance, provided for punishing, by fine and imprisonment, any persons who should unlawfully combine together, with intent to obstruct any measure of the federal government; or who should write, print, utter, or publish any thing false, scandalous, and malicious, against the federal government or any department or officer thereof, with intent to bring the same into hatred and disrepute, or stir up sedition. The constitutionality of both these laws has been vehemently assailed, and no acts of the government have been more upopular. It is admitted on all hands that there is no express authority to pass them; and it cer tainly is not very easy to bring them within the test rules before laid down for incidental powers. They were, however, vindicated at the time, and have since been vindicated, as exercises of powers clearly incidental to the power and duty of self-protection, which must necessarily belong to every government, whether specified or

not.

§ 73. Power to create a National Bank. (a) The power to create

(a) In McCulloch ". Maryland, 4 Wheaton, 316, the question arose upon the validity of a law of that State imposing a tax upon the Branch Bank of Baltimore. This law was of course valid, if it did not interfere with the constitution or laws of the United States. The first inquiry, therefore, was whether the act incorporating the bank had the force of a law. Had Congress power to create such a corporation ? No such power was specified among the enumerated powers. Was it included under the general grant of power to pass all laws "necessary and proper" for executing the specified powers? The incorporation of a bank was manifestly a convenient and suitable means of carrying on the fiscal operations of government. Did the words "necessary and proper" mean any thing more? Was no law " necessary and proper " within the meaning of the constitution, but one which was absolutely and altogether indispensable? This could not be the import of the words, because so narrow a construction would set aside almost half the laws of Congress. It is not absolutely necessary to punish smuggling in order to create a revenue; or to punish mail robbery, in order to have the mail transported; yet these laws can only stand upon the ground that they are "necessary and proper means of effecting those ends. The import, therefore, of this provision must be, to give Congress a discretion in the choice of means; and so long as the means they adopted were suitable and appropriate to effect a constitutional end, the means themselves were constitutional. It was therefore the unanimous opinion of the court, that the law incorporating the bank was constitutional. And as it was one of the provisions of this law that the directors of the bank should have power to locate branches where they should think fit; the location of the branch at Baltimore was therefore a constitutional act. This being settled, is the law of Maryland valid? There is no express prohibition in the constitution against such a law. The States are forbidden to lay duties on imports, exports, and tonnage; and this is the only express limitation upon their power of taxation. Is there any implied limitation? To answer this, we must look to the nature of the power contended for. If Maryland can lay any tax upon the bank, she can lay a high tax as well as a low one. She can thus expel the branch bank from her jurisdiction. Every other State can do the same. Thus if we admit the power of the States to tax the bank, we admit their power to destroy it. But the law incorporating the bank, being pursuant to the constitution, is declared to be "the supreme law" of the land. Thus a State may do indirectly, what it could not directly; it may indirectly abrogate the supreme law. The argument, then, is reduced to this: A power to create a bank, implies a power to preserve it. A power to tax a bank implies a power to destroy it. There is a direct incompatibility in the exercise of these two powers. Which must yield? That which is supreme, or that which is subordinate? Manifestly the latter. The