of holding a capital; of lending and dealing in money; of issuing bank notes; of receiving deposits; and of appointing suitable officers to manage its affairs; are not highly useful and expedient, and appropriate to the purposes of a bank. They are just such, as are usually granted to state banks; and just such, as give increased facilities to all its operations. To say, that the bank might have gone on without this or that faculty, is nothing. Who, but congress, shall say, how few, or how many it shall have, if all are still appropriate to it, as an instrument of government, and may make it more convenient, and more useful in its operations? No man can say, that a single faculty in any national charter is useless, or irrelevant, or strictly improper, that is conducive to its end, as a national instrument. Deprive a bank of its trade and business, and its vital principles are destroyed. Its form may remain, but its substance is gone. All the powers given to the bank are to give efficacy to its functions of trade and business.1

§ 1265. As to another suggestion, that the same objects might have been accomplished through the state banks, it is sufficient to say, that no trace can be found in the constitution of any intention to create a dependence on the states, or state institutions, for the execution of its great powers. Its own means are adequate to its end; and on those means it was expected to rely for their accomplishment. It would be utterly absurd to make the powers of the constitution wholly dependent on state institutions. But if state banks might be employed, as congress have a choice of means, they had a right to choose a national bank, in preference to state banks, for the financial operations of the government.❜

1 Osborn v. Bank of United States, 9 Wheat. R. 861, 862 to 865. 2 M'Culloch v. Maryland, 4 Wheat. R. 424.

1

Proof, that they might use one means, is no proof, that they cannot constitutionally use another means.

§ 1266. After all, the subject has been settled repeatedly by every department of the government, legislative, executive, and judicial. The states have acquiesced; and a majority have constantly sustained the power. If it is not now settled, it never can be. If it is settled, it would be too much to expect a re-argument, whenever any person may choose to question it.1

1 See 4 Elliot's Debates, 216 to 229; M' Culloch v. Maryland, 4 Wheat. R. 316; Osborn v. Bank of United States, 9 Wheat. R. 738, 859; 1 Kent's Comm. Lect. 12, p. 233 to 239; Sergeant on Constitution, ch. 28, [ch. 30;] 5 Marsh. Wash. App. Note 3.

CHAPTER XXVI.

POWERS OF CONGRESS

- INTERNAL IMPROVE

MENTS.

§ 1267. ANOTHER question, which has for a long time agitated the public councils of the nation, is, as to the authority of congress to make roads, canals, and other internal improvements.

1268. So far, as regards the right to appropriate money to internal improvements generally, the subject has already passed under review in considering the power to lay and collect taxes. The doctrine there contended for, which has been in a great measure borne out by the actual practice of the government, is, that congress may appropriate money, not only to clear obstructions to navigable rivers; to improve harbours; to build breakwaters; to assist navigation; to erect forts, light-houses, and piers; and for other purposes allied to some of the enumerated powers; but may appropriate it in aid of canals, roads, and other institutions of a similar nature, existing under state authority. The only limitations upon the power are those prescribed by the terms of the constitution, that the objects shall be for the common defence, or the general welfare of the Union. The true test is, whether the object be of a local character, and local use; or, whether it be of general benefit to the states.1 If it be purely

also

1 Hamilton's Report on Manufactures, 1791, 1 Hamilton's Works, 231, 232; 1 Kent's Comm. Lect. 12, p. 250, 251, (2 ed. p. 267, 268;) Sergeant on Constitution, ch. 28, [ch. 30;], President Monroe's Exposition and Message, 4th May, 1822, p. 38, 39.

local, congress cannot constitutionally appropriate money for the object. But, if the benefit be general, it matters not, whether in point of locality it be in one state, or several; whether it be of large, or of small extent; its nature and character determine the right, and congress may appropriate money in aid of it; for it is then in a just sense for the general welfare.

§ 1269. But it has been contended, that the constitution is not confined to mere appropriations of money; but authorizes congress directly to undertake and carry on a system of internal improvements for the general welfare; wherever such improvements fall within the scope of any of the enumerated powers. Congress may not, indeed, engage in such undertakings merely because they are internal improvements for the general welfare, unless they fall within the scope of the enumerated powers. The distinction between this power, and the power of appropriation is, that in the latter, congress may appropriate to any purpose, which is for the common defence or general welfare; but in the former, they can engage in such undertakings only, as are means, or incidents to its enumerated powers. Congress may, therefore, authorize the making of a canal, as incident to the power to regulate commerce, where such canal may facilitate the intercourse between state and state. They may authorize light-houses, piers, buoys, and beacons to be built for the purposes of navigation. They may authorize the purchase and building of custom-houses, and revenue cutters, and public warehouses, as incidents to the power to lay and collect taxes. They may purchase places for public uses; and erect forts, arsenals, dock-yards, navy-yards, and magazines, as incidents to the power to make war.

§ 1270. For the same reason congress may authorize the laying out and making of a military road, and acquire a right over the soil for such purposes; and as incident thereto they have a power to keep the road in repair, and prevent all obstructions thereto. But in these, and the like cases, the general jurisdiction of the state over the soil, subject only to the rights of the United States, is not excluded. As, for example, in case of a military road; although a state cannot prevent repairs on the part of the United States, or authorize any obstructions of the road, its general jurisdiction remains untouched. It may punish all crimes committed on the road; and it retains in other respects its territorial sovereignty over it. The right of soil may still remain in the state, or in individuals, and the right to the easement only in the national government. There is a great distinction between the exercise of a power, excluding altogether state jurisdiction, and the exercise of a power, which leaves the state jurisdiction generally in force, and yet includes, on the part of the national government, a power to preserve, what it has created.1

§ 1271. In all these, and other cases, in which the power of congress is asserted, it is so upon the general ground of its being an incidental power; and the course of reasoning, by which it is supported, is precisely the same, as that adopted in relation to other cases already considered. It is, for instance, admitted, that congress cannot authorize the making of a canal, except for some purpose of commerce among the states, or for some

1 See 1 Kent's Comm. Lect. 12, p. 250, 251; Sergeant on Constitution, ch. 28, [ch. 30, ed. 1830;] 2 U. S. Law Journal, April, 1826, p. 251, &c.; 3 Elliot's Debates, 309, 310; 4 Elliot's Debates, 244, 265, 279, 291, 356; Webster's Speeches, p. 392 to 397.