latest decisions. I cannot refer to all the cases in which this principle has been either explicitly announced and acted on, or implicitly involved. Such a multiplication of authorities would be unnecessary. But my exposition of the subject would be very incomplete did I not quote some of the language which has been employed by that court in leading cases where the question has been brought before it for careful consideration and settlement.

§ 264. In the early case of Fisher v. Blight, Mr. C. J. Marshall said: "It would be incorrect and would produce endless difficulties, if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specified power. Where various systems might be adopted for that purpose, it might be said with respect to each that it was not necessary, because the end might be obtained by other means. Congress must possess the choice of means which are in fact conducive to the exercise of a power granted by the Constitution." The rule was applied to a statute of Congress giving the United States a priority over other creditors in collecting its demand from the estate of an insolvent debtor.

§ 265. In Martin v. Hunter's Lessee,2 the Supreme Court used the following language: "The government of the United States can claim no powers which are not granted to it by the Constitution; and the powers actually granted must be such as are expressly given, or given by necessary implication. On the other hand, this instrument, like every other grant, is to have a reasonable construction, according to the import of its terms; and where a power is expressly given in general terms, it is not restrained to particular cases, unless that construction grows out of the context expressly, or by necessary implication. The Constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution. Hence its powers are expressed in general terms, leaving to the legislature from time 1 2 Cranch, 396. 91 Wheat. 304, 326.

to time to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require."

manner.

§ 266. In McCulloch v. The State of Maryland,1 the subject was presented to the Supreme Court in the most formal The question at issue was the validity of a statute creating the United States Bank. Certainly, no direct power is given to establish such an institution; nor was it indispensable to the execution of the power to borrow money, to collect taxes, or to pay debts. Either and all of these acts may well be performed without a bank. The constitutionality of the measure was rested entirely on the ground that such an institution was a legitimate means of carrying out the general powers, and that the degree of its necessity was a question of legislative discretion and not of judicial cognizance. The counsel engaged in the argument were among the very ablest in the nation, including Webster, Pinckney, and Wirt. The opinion of the court was given by C. J. Marshall, and is a masterpiece of judicial reasoning and eloquence. After a long and exhaustive discussion on the nature of the government, and the rules by which the Constitution is to be interpreted, in the course of which he observed, "if any one proposition could command the universal assent of mankind, we might expect it would be this, that the government of the Union, though limited in its powers, is supreme within its sphere of action," he concludes his argument with the following language: "We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."

1 4 Wheat. 816.

267. In the great case of Gibbons v. Ogden, the same court, by the mouth of the Chief Justice, reasserted the same theory, and applied it to the grant of power to regulate commerce. The judgment contains the following language : "This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized to make all laws which shall be necessary and proper for the purpose. But this limitation in the means which mav be used is not extended to the powers which are conferred; nor is there one sentence in the Constitution, which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not, therefore, think ourselves justified in adopting it. What do the gentlemen mean by a strict construction? If they contend only against that enlarged construction which would extend words beyond their natural and obvious import, we might question the application of the terms, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument for that narrow construction which would cripple the government, and render it unequal for the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent-then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded."

§ 268. Nor must it be supposed that these liberal and high national views which prevailed in the Supreme Court during the presidency of C. J. Marshall, have been abandoned, or in

19 Wheat. 1.

.

the least degree modified, in later times when the court has been composed of other judges under the leadership of C. J. Taney. The same principles have been constantly maintained, and the same doctrines asserted and enforced. Thus in The State of Pennsylvania v. The Bridge Company, it was decided. that the power to regulate commerce confers upon Congress the right to pass a statute declaring that a bridge over the Ohio River should remain, although the court had before ordered it to be removed as a nuisance. In Ablemann v. Booth,2 C. J. Taney expressed himself in the following pointed manner. "The powers of the general government and of the states, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each other within their respective spheres; and the sphere of action appropriated to the United States, is as far beyond the reach of the judicial process issued by a state judge or a state court, as if the line of division was traced by landmarks and monuments visible to the eye." One of the latest decisions of the court during the life of C. J. Taney, was that of The Bank of Commerce v. New York City, which held that the power to borrow money conferred on Congress the right, as one of the means for making this power effective, to exempt the United States securities from state taxation; and a series of subsequent cases has reaffirmed the doctrine. Numerous judgments of the state courts might be quoted to the same effect, but it is sufficient to refer the student to The Metropolitan Bank v. Van Dyck,5 in which the Court of Appeals of New York examined the whole subject in a very exhaustive manner, and applied it to the Legal Tender Act of Congress.

§ 268 a. Legal Tender Cases. The implied powers of" Congress and the limitations thereon were exhaustively dis

118 How. 421.

2 21 How. 506, 516.

3 2 Black, 620.

"The Bank Tax Cases, 2 Wall. 200; Van Allen v. The Assessors, 3 Wall. 573; People v. Commissioners, 4 Wall. 244.

5 27 N. Y. 400.

• This section was originally a portion of the Appendix, but is now inserted in this place. ED.

cussed in the now celebrated cases of Hepburn v. Griswold,1 and "The Legal Tender Cases," or Knox v. Lee.2 In the earlier of these adjudications the provision of the statute which declares that United States Treasury notes shall be a good legal tender in payment of all private debts and demands existing at the time of its passage, was by a majority of the judges pronounced invalid. In the later ones, the same tribunal, some change having in the mean time been made in its membership, retraced its steps, overturned its prior decision, and affirmed the validity of the provision in question. In its judgments in both these cases the court entered largely into the doctrine of " implied powers," and especially into a construction of the 18th subdivision of Section VIII. of the first article, which authorizes Congress "to make all laws which shall be necessary and proper for carrying into execution" the general powers conferred upon the government. In neither of these cases, however, did it profess to adopt any new rule of interpretation, or to create any new limitation; the decisions purported to be based upon the same prior precedents and to carry into effect the principles which had first been announced by Chief Justice Marshall and his judicial compeers. In Hepburn v. Griswold, the prevailing opinion reached the final conclusion that the legal tender clause was not " necessary and appropriate "--that it was not "plainly adapted to the end sought to be attained" to the exercise of any of the legislative powers enumerated in the Constitution. The difference between the positions taken by the court in these conflicting judgments lies not in the statement of any general principles, but rather in their application to the particular subject-matter under consideration. The judges who united in deciding the later casesKnox v. Lee, and others — saw in the "legal tender clause a sufficiently "necessary and appropriate means for carrying into effect several of the great powers granted to Congress, especially the power to borrow money, to raise and maintain armies and navies, and to carry on war. The reasoning and conclusion of the court in these last cases would