and

Legal Miscellany.

PUBLISHED BY THE D. B. CANFIELD COMPANY LIMITED, PHILADELPHIA,

SUBSCRIPTION, ONE DOLLAR A YEAR. SINGLE COPY, TEN CENTS.

Copyrighted 1890. Entered at the Post Office at Philadelphia as second-class matter.

Vol. II.

December 15, 1890.

No. 12.

SALMON P. CHASE.

(Continued from October number, page 592.)

Having shown that all the judges of the Supreme Court, who expressed themselves in regard to it, both individually and collectively, regarded the opinion of Chief Justice Marshall in the case of McCulloch v. Maryland as binding upon the court and governing it in ruling the question in Hepburn v. Griswold, involving the legal-tender clause, we propose now to show that Chief Justice Chase was not governed in his reasoning by that of Chief Justice Marshall in the case alluded to, either in letter or spirit, notwithstanding he says in Hepburn v. Griswold that he will be, as follows:

"It must be taken as finally settled, so far as judicial decisions can settle anything, that the words all laws necessary and proper for the carrying into execution' powers expressly granted or vested, have, in the Constitution, a sense equivalent to that of the words, 'laws not absolutely necessary indeed, but appropriate, plainly adapted to constitutional and legitimate ends; laws not prohibited, but consistent with the letter and spirit of the Constitution; laws really calculated to effect objects intrusted to the government.'

It is proper to state here what question was involved in the decision of McCulloch v. Maryland.

The question was nothing more nor less than whether Congress had a right to create a corporation, in the absence of the Constitution directly conferring that power upon Congress. The particular corporation which it was contended Congress had no power to incorporate was a bank, used as a necessary means to the accom

plishment of an end which was designed by the Constitution. The court decided that although the Constitution did not confer upon Congress the power to create a corporation, in so many words, yet as a means to accomplish or execute a constitutional end, that power was conferred upon Congress by implication, by Article I, § 8, and the clause which reads as follows: "The Congress shall have * * * power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers," etc.

After an exhaustive and elaborate opinion the court came to the conclusion that an Act of Congress passed to incorporate a bank, which was a necessary means for the accomplishment of a constitutional end, such an Act of Congress was constitutional.

Chief Justice Marshall, in the case of McCulloch v. Maryland,

says:

"The government of the Union, then *** * is emphatically and truly a government of the people. In form and substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.

"This government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise as long as our system shall exist. * * * The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the Constitution, form the supreme law of the land, 'anything in the Constitution or laws of any State to the contrary notwithstanding.'

Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no. phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. *** The men who drew and adopted this amendment [the Tenth] had experienced the embarrassments resulting from the insertion of this word ['expressly '] in the Articles of Confederation, and probably omitted it to avoid those embarrassments.

"A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the

means by which they may be carried into execution, would partake of a prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the ninth section of the first article, introduced? It is also, in some degree, warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution we are expounding. ** * The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation are entrusted to its government. It can never be pretended that these vast powers draw after them others of inferior importance, merely because they are inferior. Such an idea can never be advanced. But it may with good reason be contended that a government, entrusted with such ample powers, in the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention to clog and embarrass its execution by withholding the most appropriate means. Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation may require that the treasure raised in the North should be transported to the South, that raised in the East conveyed to the West, or that this order should be reversed. Is that construction of the Constitution to be preferred which would render these operations difficult, hazardous, and expensive? Can we adopt that construction (unless the words imperatively require it) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise by withholding a choice of means? If, indeed, such be the mandate of the Constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the crea

tion of a corporation, if the existence of such a being be essential to the beneficial exercise of these powers. It is, then, the object of fair inquiry how far such means may be employed. It is not denied that the powers given to the government imply the ordinary means of execution. That, for example, of raising revenue and applying it to national purposes, is admitted to imply the power of conveying money from place to place, as the exigencies of the nation may require, and of employing the means of conveyance. But it is denied that the government has its choice of means; or that it may employ the most convenient means, if, to employ them, it be necessary to erect a corporation.

"On what foundation does this argument rest? On this alone: The power of creating a corporation is one appertaining to sovereignty, and is not expressly conferred upon Congress. This is true. But all legislative powers appertain to sovereignty. The original power of giving the law on any subject whatever is a sovereign power: and if the government of the Union is restrained from creating a corporation, as a means of performing its functions, on the single reason that the creation of a corporation is an act of sovereignty; if the sufficiency of this reason be acknowledged, there would be some difficulty to pass other laws for the accomplishment of the same objects.

"The government which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception.

"But the Constitution of the United States has not left the right of Congress to employ the necessary means for the execution of the powers conferred on the government to general reasoning. To its enumeration of powers is added that of making '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 thereof.'

"The result of the most careful and attentive consideration bestowed upon this clause is that if it does not enlarge, it cannot be construed to restrain the powers of Congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the government. If no other motive for its insertion can be suggested,