a corporation, for any purpose, is nowhere expressly conferred; and it is known that the proposition to confer such power was made in the federal convention, and failed. Yet this power, which was denied as an end, has been twice exercised as a means. A national bank was incorporated, first in 1791, and again in 1816; and the constitutionality of these acts has been twice affirmed, after the most ample discussion, by each of the departments of the federal government. To which, then, of the enumerated powers is this power incidental? On the strict construction it is not incidental to any one, for it is not absolutely indispensable to the execution of any one. But on the liberal construction it is incidental to the revenue power, the commercial power, the currency power, and the power of defence; for a national bank is found to be an exceedingly convenient and useful agent or instrument of the government in all its fiscal operations, which are more or less connected with each of these powers. This has been already shown in discussing the subject of currency; and on this general ground rest all the arguments in favor of its constitutionality.

§ 74. Power to give a priority to the United States as Creditor. (a) By the acts of 1797 and 1799, a priority is secured to the United States over other creditors where a debtor becomes insolvent, and though there is no express power for this purpose, yet these acts have been held constitutional upon the liberal construction of incidental powers. The ground is, that Congress being authorized to collect the revenue and defray the expenses of the government, may use all eligible means for these ends; and the law securing a priority or preference, is of this character; because, without it, many of the debts might be lost and the revenue impaired. The provisions apply to all debtors, when either of these four cases of insolvency occur: namely, first, when the debtor dies insolvent ; secondly, when an insolvent debtor makes an assignment; thirdly,

law of Maryland is therefore unconstitutional. This is a brief sketch of the argument of the court. But it was intimated that a State might tax the real estate of a bank, and the stock owned within its jurisdiction. In Osborn v. The Bank of the United States, 9 Wheaton, 738, which arose under a law of Ohio imposing an enormous tax, for the express purpose of expelling the branch bank from its limits, the constitutionality of the bank was conceded; but the court was requested to review so much of its former opinion as pronounced it unconstitutional for a State to tax the bank. The argument in favor of taxation proceeded upon the ground, that the corporation was created for private and individual purposes; that its object was private trade and profit; and that the exemption from taxation was not an incident to any such corporation. Had the exemption been expressed in the charter the question would have been different. So also if the institution had been a public one, like the mint or post-office, taxation would not have been constitutional. But this was neither a public institution, nor expressly exempted. It was therefore liable to taxation. The court denied these premises. The bank was not created for its own sake, or for private purposes. It was never supposed that Congress could create such a corporation. The sole ground of its constitutionality was, that it was created for public purposes. Private profit was only an incident to the main purpose. The premises being false, the conclusion did not induce the court to change its former opinion.

(a) See 2 Story, Const. § 1278; U. S. v. Fisher, 2 Cranch, 202; U. S. v. Hooe, 3 Cranch, 73; Harrison Sterry, 5 Cranch, 289; Prince v. Bartlett, 8 Cranch, 431; Thelusson v. Smith, 2 Wheaton, 396; Conard v. Atlantic Insurance Company, 1 Peters, 388.

when he commits an act of legal bankruptcy; fourthly, when he absconds or conceals his property. The priority, however, is not in the nature of a lien, operating from the time of contracting the debt; for it only operates from the occurring of one of these four acts; and, accordingly, if another creditor has acquired a specific lien by mortgage or judgment, upon the debtor's property, the priority of government cannot supersede it.

§ 75. Power of Punishment. We have seen that Congress has the express power of punishment in five classes of cases: namely, offences against the currency; on the high seas; against the law of nations; in places of exclusive jurisdiction; and treason. But in point of number, these offences form but a small proportion of those actually made punishable by Congress. The rest, therefore, must have been provided for in the exercise of incidental powers. These may all be included under the six following classes: 1. Offences against the revenue laws, of which there are many; and the power to punish which is incidental to the revenue laws. 2. Offences against commerce, including the Indians, the power to punish which is incidental to the power of regulating commerce. 3. Offences against the post-office regulations, of which there are many, and the power to punish which is incidental to the power of establishing post-offices and post-roads. 4. Offences against foreign nations, other than those ascertained by the law of nations; the power to punish which is incidental to the power to manage our foreign relations. 5. Offences against the federal government, other than treason; the power to punish which is incidental to the power of self-protection. 6. Offences committed by federal officers, the power to punish which is also incidental to the power of self-protection. In all these cases, the power of punishment is clearly incidental on the liberal construction, but not on the strict construction; because, though very salutary, it is not absolutely indispensable.

§ 76. Power to protect Domestic Industry. (a) This power, so important to our national prosperity, is nowhere expressly conferred. But Congress has power, as we have seen, to raise a revenue for the purpose of paying debts and providing for the common defence and general welfare; and also to regulate commerce with foreign nations. And the power to encourage our own trade and manufactures, by such a tariff of duties as will bring the price of imported products of foreign labor up to that for which the same commodities can be produced in this country, has been constantly exercised, since the formation of the government, as incidental to the revenue and commercial power; though not without strenuous opposition. I do not propose to examine minutely the arguments on either side. It is perfectly obvious, however, that in a new country like ours, where vacant land is so abundant and so cheap, and where the mass of the people are so independent and respec

(a) See 1 Story, Const. § 958-66.

table, the price of labor must for ages be higher than in the crowded and overgrown nations of the Old World; and consequently, that if our ports were thrown open to the free and indiscriminate introduction of all foreign products, our countrymen could not sustain the competition; for it is certain that many commodities can be produced abroad and transported hither at less cost than that for which they can be produced here. Only two alternatives therefore remain either to forego these branches of labor altogether, and depend entirely upon the supply from abroad; or to lay such duties on the importation of these commodities as will protect our own labor from a ruinous competition. And as the latter alternative is deemed, for various reasons, more conducive to the general welfare than the former, it has become a part of our general policy. And there is no doubt of the incidental power to grant this protection on the liberal construction; though not being imperatively necessary, it would not exist on the strict construction.

§ 77. Power to make Internal Improvements. (b) The phrase, internal improvements, when used with reference to the legislation of Congress, includes the construction of roads and canals, and the improvement of watercourses. If Congress have power to provide for any or all these things, that power is incidental; being nowhere expressly conferred. It is possible that some of these improvements may be convenient and proper means of facilitating commercial intercourse; and thus far the power to make them may, perhaps, be incidental, on the liberal construction, to the power to regulate commerce. But the power to make internal improvements is most generally derived from the revenue power. We have seen that this power may be exercised in any way which will promote the common defence or general welfare. If, therefore, a contemplated improvement be a suitable means of producing one of these results, the power to raise and appropriate money for making such improvement would seem, on the liberal construction, to be unquestionably incidental to the revenue power. But the terms require that the improvement be strictly national in its character, and calculated to benefit the whole Union, in one of these ways; for if it be of a merely sectional or local character, however beneficial to a particular district, it can in no sense be said to promote the common defence or general welfare. Again, while the power to raise and appropriate money, under these qualifications, is thus clear, a difficulty arises with reference to the actual construction of such works by the federal government, from the local jurisdiction of the States over the territory within their respective limits. The whole spirit, as well as the frequent expressions, of the constitution, indicates that without express provision for that purpose, the jurisdiction is not to be interfered with, unless by the consent of the States concerned; and the express provisions include only two kinds of improvements; namely, post-roads and military roads. When the

(a) See 2 Story, Const. § 1267-9.

construction of these becomes necessary, Congress need not consult the States; but for the construction of any other improvements within the States, it would seem that their consent should be first obtained.

I have thus briefly considered nine of the most prominent of the incidental powers hitherto exercised. I might select others of a less questionable character. I might refer to the creation of the various subordinate departments of government, and to the very numerous legislative details connected therewith; all of which are more or less the fruits of incidental power: but enough has been said to illustrate the nature of incidental powers, and the propriety of the liberal construction put upon the clause providing for them. If, instead of this, the strict construction had been adopted in practice, it must be evident that the federal government would have been comparatively inadequate to the accomplishment of the grand objects contemplated by the framers of the constitution, as we gather them from its comprehensive preamble.

LECTURE XI.

BILL OF RIGHTS. (a)

§78. Equality of Rights. In the two preceding lectures, I have discussed, under the heads of enumerated and incidental, all the powers delegated to the federal government. In the same connection, I have also considered the federal and State prohibitions relating to the subject-matter of these several powers. But there still remains a number of federal and State prohibitions, relating to other matters, some direct and others indirect; and constituting, in the strictest sense of the words, our declared or fundamental rights. A brief discussion of these prohibitions will terminate our view of constitutional law. The Declaration of Independence announces the fundamental rights of man, in this strong and comprehensive language: "We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; and that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed." The federal constitution contains no similar declaration; but in the State constitutions, the same sentiments are universally reiterated. The constitution of Ohio thus commences the declaration of rights: "All men are, by nature, free and independent, and have certain inalienable rights, among

(a) See 1 Black. Com. 127; 2 Kent, Com. 1; 2 Story, Const. ch. xliv.; Mad. Pap. 1565-6.

which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety." Then follows this declaration: "All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary." These general and fundamental propositions furnish little matter for comment. They are rather to be regarded as prefatory to the specific declarations which follow them as corollaries. To these, therefore, let us direct our attention. I shall endeavor to group them together, as well as I may, with reference to their subject-matter, beginning with equality.

The nature of political equality has already been explained. (a) The language of our constitution is very carefully guarded, and is literally true. All men are not born absolutely equal in every respect; but there must be endless diversities of condition, capacity, means, opportunities, and the like, which no social organization can prevent. But equality of civil and political rights is the birthright of all men: and this is precisely what our constitution intends by the declaration," that all men are, by nature, free and independent;" instead of asserting that all men shall be absolutely equal in condition. The chief provision designed to secure our political equality, is that which prohibits hereditary distinctions. It is in vain that Blackstone and others insist "that the distinction of rank and honors is necessary in every well-governed State;" for experience proves that men will of themselves create all the distinctions required, without the aid of government, to perpetuate them in the blood. And accordingly the federal constitution prohibits both the United States and the individual States from conferring, and our citizens from receiving, any hereditary title, emolument, privilege, or honor. The State constitutions also generally, though unnecessarily, contain a similar prohibition; and we have seen that before an alien can be admitted to citizenship, he must renounce every title of nobility. In one word, then, we acknowledge no nobility but that which nature gives; and no distinctions, but those which men themselves achieve. But again, equality may be counteracted by partial legislation, (b) against which we have no

(2) 1 Black. Com. 157; 2 Story, Const. § 1351-2; Holden v. James, 11 Mass. 396. (b) Municipal law is a rule. It is not a mere direction for a particular case, or a transient order to a particular individual, but a standing regulation, operating upon all who come within the principle it establishes. This is the general limit to its extension. It must embrace an entire class, but it need not be universal. It cannot single out an individual, for this would be unjust; but neither can it be required to include all the subjects of the government, for this may be sometimes impossible. In Holden v. James, 11 Mass. 396, the facts were these: The defendant had been administrator of a certain estate, to which the plaintiff was creditor. The statute of Massachusetts limited actions against administrators to four years from taking out letters. In this case, the four years had expired, and the claim was barred. But the plaintiff, thinking his case a hard one, petitioned the legislature to suspend the law of limitation in his particular case. A resolve was passed to that effect; and the question now submitted to the court was, whether the legislature had this power. The court, in a very able opinion, decided, that, although the legislature has power to repeal or suspend