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to make them is here conferred on Congress, because they are the legislative part of those duties; and the same afterwards conferred by the last clause of the 8th section, Article I. So that the "legislative powers herein granted," is just the power [no more, and no less] "to make all laws... necessary necessary and proper for carrying into execution . . . all . . . powers vested.. in the government, . . . or in any department or officer thereof;" which are just the powers of administering the government and executing the whole Constitution.

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§ 155. The question whether a particular power is legislative or not, can arise only in deciding by which department it shall be exercised. Whether it belongs to the government or not, depends on the question whether it is legitimately adapted to the accomplishment of any of its avowed objects and duties. If it is, it must be exercised by the proper department. If it is not, it is of no consequence whether it is legislative or otherwise; for in neither case can it be herein granted. Nothing is "herein granted" to this department, or any other, but what is appropriate to the execution of the purposes of the Constitution; and every thing that is so, consistent with good morals and the fundamental principles of civil society, unless specially prohibited, is “herein granted." In the language of Chief Justice Marshall, "Let the end be legitimate, let it be within the scope of the

Constitution [its declared purposes], 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

$156. Nothing can be made more plain, direct, and conclusive of this whole subject, than the last clause of the 8th section. Its exactness, comprehensiveness, and verbal accuracy, cannot be surpassed. By the 1st section, the legislative power is vested in Congress; and, by the 8th, it is logically defined to be "power to make all laws . . . necessary and proper [which has been held to mean appropriate or convenient] for carrying into execution . . . all . . . powers vested . . . in the government, . . . or in any department or officer thereof." This is broad, full, and explicit. It includes all the business of the legislative department, whether particularized in special grants to Congress, or dependent on the general or special duties of the government, or any of its departments or officers. Many special clauses assign particular duties to Congress, and many others make special regulations in regard to particular subjects, obligatory on the government; but specifying no particular mode of execution, any more than is done in regard to the general duties which embrace and cover them all. The principle on which the legislative duties of Congress is

1 McCullough v. Maryland, 4 Wheat Rep.

founded, is the same in both cases. It is to make laws for executing the Constitution, or the powers of the government, whether general or special, though the general include all the special.

GENERAL.

§ 157. By the general powers of Congress is meant all those which devolve upon them, as the legislative or law-making department of the government, bound to the performance of that portion of all its duties, though not otherwise assigned to them. Legislative power is restricted by the general principles of free government; and the legislative power of Congress is limited also within the actual powers of the government under the Constitution. But they are co-extensive with those powers, and may applied to all the purposes and objects for which the government was instituted.

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§ 158. They are co-extensive, because whatever is required of the whole government devolves directly upon the different departments. The government can act only through them. If particular objects and purposes of the government may be accomplished without legislation, the duty may devolve on one of the other departments; but, if legislation is needed, it

1 Calder v. Bull, 3 Dall. Rep.; Fletcher v. Peck, 6 Cranch's Rep.; Terrett v. Taylor, 9 Cranch's Rep.; Argument of Jeremiah Mason, Case of Dart. Coll., p. 33; Wilkinson v. Leland, 2 Peter's R. 657.

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must devolve on Congress, for they only can make laws. Congress is directly vested with all the legislative powers of the government, all legislative powers herein granted, that is, all the legislative powers of the Constitution. It grants no legislative power to any body else. What this legislative power so vested in Congress is, is exactly defined in the 8th section, to be a power to make all laws . . . necessary and proper for carrying into execution. . . all powers vested . . . in the government." The Constitution vests no legislative power in the State governments: all the duties it enjoins on the States, their officers, governments, or citizens, are only executory; and necessarily involve no legislative power any more than if they had all been enjoined on the Justices of the Courts, or the Sheriffs of the counties. The President, with advice, &c., "shall have power to make treaties," which, like the Constitution itself, are a part of the law of the land; but they are not an exercise of legislative power, any more than the Constitution itself is, but are expressly made executive acts; which may also, in some other cases, have the force of laws.

§ 159. Congress may therefore legislate or make laws to perfect the Union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty; as well as. for carrying into execution all the other and

more special provisions of the Constitution, so far as such legislation may be required, or have a tendency to effect any of those objects. The general duties above mentioned, which include all the others, have already been remarked upon; and in regard to the others it may be observed, that every precept, mandate, requirement, or restriction, and in fact almost every sentence of the Constitution, may, in some way or other, afford occasion for legislative action. Some of these call for particular attention.

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§ 160. By Article I., section 2, "Representatives . . . shall be apportioned among the several States, according to their respective numbers," and cannot in all exceed one for every thirty thousand. But the whole number must be ascertained before it can be divided or apportioned. This is the mandate of the Constitution, and of course the supreme law of the land. The duty of executing it, as well as all the rest of the Constitution, rests upon the government created for that purpose. The powers and duties of the government are distributed among three departments. No special authority is here given to Congress, any more than there is in the other precept, "to establish justice." But the duty enjoined upon the government demands legislation, and "all the legislative powers of the government are vested in Congress." It follows necessarily, that, on this and all other subjects similarly situated, Congress must act, and "make

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