CHAPTER XXIV.

POWERS OF CONGRESS INCIDENTAL.

§ 1231. THE next power of congress is, " 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 depart"ment, or officer thereof."

§ 1232. Few powers of the government were at the time of the adoption of the constitution assailed with more severe invective, and more declamatory intemperance, than this.1 And it has ever since been made a theme of constant attack, and extravagant jealousy.* Yet it is difficult to perceive the grounds, upon which it can be maintained, or the logic, by which it can be reasoned out. It is only declaratory of a truth, which would have resulted by necessary and unavoidable implication from the very act of establishing the national government, and vesting it with certain powers. What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution? What is a legislative power, but a power of making laws? What are the means to execute a legislative power, but laws? What is the power for instance, of laying and collecting taxes, but a legislative power, or a power to make laws to lay and collect taxes? What

1 The Federalist, No. 33, 44; 1 Elliot's Deb. 293, 294, 300; 2 Elliot's Deb. 196, 342.

21 Tuck. Black. Comm. App. 286, 287; 4 Elliot's Deb. 216, 217, 224, 225.

are the proper means of executing such a power, but necessary and proper laws? In truth, the constitutional operation of the government would be precisely the same, if the clause were obliterated, as if it were repeated in every article.1 It would otherwise result, that the power could never be exercised; that is, the end would be required, and yet no means allowed. This would be a perfect absurdity. It would be to create powers, and compel them to remain for ever in a torpid, dormant, and paralytic state. It cannot, therefore, be denied, that the powers, given by the constitution, imply the ordinary means of execution; for without the substance of the power the constitution would be a dead letter. Those, who object to the article, must therefore object to the form, or the language of the provision. Let us see, if any better could be devised.3

§ 1233. There are four possible methods, which the convention might have adopted on this subject. First, they might have copied the second article of the confederation, which would have prohibited the exercise of any power not expressly delegated. If they had done so, the constitution would have been construed with so much rigour, as to disarm it of all real authority; or with so much latitude, as altogether to destroy the force of the restriction. It is obvious, that no important power delegated by the confederation was, or indeed could be executed by congress, without recurring more or less to the doctrine of construction or implica

1 The Federalist, No. 33; 2 Elliot's Debates, 196; Hamilton on Bank, Hamilton's Works, 121; M'Culloch v. Maryland, 4 Wheaton's R. 419. 2 M'Culloch v. Maryland, 4 Wheat. R. 409; 4 Elliot's Debates, 217, 218, 220, 221.

3 The Federalist, No. 44. See also President Monroe's Exposition and Message, 4th of May, 1822, p. 47; 3 Elliot's Deb. 318.

tion. It had, for instance, power to establish courts for the trial of prizes and piracies, to borrow money, and emit bills of credit. But how could these powers be put in operation without some other implied powers and means? The truth is, that, under the confederation, congress was from this very clause driven to the distressing alternative, either to violate the articles by a broad latitude of construction, or to suffer the powers of the government to remain prostrate, and the public service to be wholly neglected. It is notorious, that they adopted, and were compelled to adopt the former course; and the country bore them out in what might be deemed an usurpation of authority. The past experience of the country was, therefore, decisive against any such restriction. It was either useless, or mischievous.3

§1234. Secondly. The convention might have attempted a positive enumeration of the powers comprehended under the terms, necessary and proper. The attempt would have involved a complete digest of laws on every subject, to which the constitution relates. It must have embraced all future, as well as all present exigencies, and been accommodated to all times, and all occasions, and all changes of national situation and character. Every new application of the general power must have been foreseen and specified; for the particular powers, which are the means of attaining the objects of the general power, must, necessarily, vary with those objects; and be often properly varied, when the objects

1 The Federalist, No. 44.

2 See The Federalist, No. 38, 44; 4 Wheat. R. 423; 4 Elliot's Deb. 218, 219.

3 M'Culloch v. Maryland, 4 Wheat. R. 406, 407, 423.

remain the same.' Who does not at once perceive, that such a course is utterly beyond human reach and foresight? It demands a wisdom never yet given to man; and a knowledge of the future, which belongs only to Him, whose providence directs, and governs all.

§ 1235. Thirdly. The convention might have attempted a negative enumeration of the powers, by specifying the powers, which should be excepted from the general grant. It will be at once perceived, that this task would have been equally chimerical with the foregoing; and would have involved this additional objection, that in such a case, every defect in the enumeration would have been equivalent to a positive grant of authority. If, to avoid this consequence, they had attempted a partial enumeration of the exceptions, and described the residue by the general terms, "not necessary or proper," it must have happened, that the enumeration would comprehend a few exceptions only, and those only, which were most prominent; and therefore the least likely to be abused; and that others would be less forcibly excepted under the residuary clause, than if there had not been any partial enumeration of exceptions.3

§ 1236. Fourthly. The convention might have been wholly silent on this head; and then (as has been already seen) the auxiliary powers, or means to carry into execution the general powers, would have resulted to the government by necessary implication; for wherever the end is required, the means are authorized; and wherever a general power to do a thing

1 The Federalist, No. 44; 2 Elliot's Deb. 223.

2 M'Culloch v. Maryland, 4 Wheat. R. 407; 4 Elliot's Deb. 223, 224; Anderson v. Dunn, 6 Wheat. R. 204, 225, 226.

3 The Federalist, No. 44.

is given, every particular power necessary for doing it, is included. If this last course had been adopted, every objection, now urged against the clause, would have remained in full force; and the omission might have been made in critical periods a ground to assail the essential powers of the Union.1

§ 1237. If, then, the clause imports no more, than would result from necessary implication, it may be asked, why it was inserted at all. The true answer is, that such a clause was peculiarly useful, in order to avoid any doubt, which ingenuity or jealousy might raise upon the subject. Much plausible reasoning might be employed by those, who were hostile to the Union, and in favour of state power, to prejudice the people on such a subject, and to embarrass the government in all its reasonable operations. Besides; as the confederation contained a positive clause, restraining the authority of congress to powers expressly granted, there was a fitness in declaring, that that, rule of interpretation should no longer prevail. The very zeal, indeed, with which the present clause has been always assailed, is the highest proof of its importance and propriety. It has narrowed down the grounds of hostility to the mere interpretation of terms.2

1238. The plain import of the clause is, that congress shall have all the incidental and instrumental powers, necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically granted; nor is it a grant of any new power to congress. But it is merely a declaration for the removal of all uncertainty, that the means of carry