respectively or to the people." Relying upon this amend ment as the authority for it, it has become the universally recognized rule of constitutional construction that, adopting the language of an eminent writer on constitutional law, "the government of the United States is one of enumer ated powers, the national constitution being the instrument which specifies, and in which the authority should be found for the exercise of, any power which the national government assumes to possess. In this respect it differs from the constitutions of the several States, which are not grants of powers to the States, but which apportion and impose restrictions upon the powers which the States inherently possess."1

The so-called "strict constructionists" have maintained that the United States can exercise no power but what is expressly granted by the constitution. But this rule was at times applied so rigidly by the party in opposition, whenever it was desirable to prevent the enactment of an obnoxious law, that the right was denied to the United States to exercise even those powers which, although not expressly delegated, were so necessary to the effectuation of the express powers, that it cannot be supposed that the framers. of the constitution did not intend to grant them. In numerous instances, the question of constitutional construction has been brought for settlement before the Supreme Court of the United States; and it is now firmly settled, that the Federal government can exercise, not only the powers which are expressly granted, but also those powers, the grant of which can be fairly implied from the necessity of assuming them, in order to give effect to the express

1 Cooley Const. Lim. 10, 11. See also, to the same effect, Marshall, Ch. J., in Gibbons v. Ogden, 9 Wheat. 1; Story, J., in Martin v. Hunter's Lessee, 1 Wheat. 304, 326; Waite, Ch. J., in United States v. Cruikshanks, 92 U. S. 542; Calder v. Bull, 3 Dall. 386; Trade-mark Cases, 100 U. S. 82; Briscoe v. Bank of Kentucky, 11 Pet. 257; Gilman v. Philadelphia, 3 Wall. 713; and numerous judicial utterances of the same import in the State reports.

grant of powers. "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." 1

This doctrine of implied powers gave to the Federal constitution that elasticity of application, without which the permanency of the Federal government would have been seriously endangered.' But at the same time it produced the very evil, in a greater or less degree, the fear of which urged the strict constructionists to oppose its adoption, viz. that it would open the way to the most strained construction of express grants of power, in order to justify the exercise of powers that could not be fairly implied from the express grants. Indeed, the country has often been presented with the spectacle of United States judges and legislators, engaged in justifying questionable but necessary assumptions of power by the general government, by laboriously twisting, turning and straining the plain literal meaning of the constitutional provisions, seeking to bring the powers in question within the operation of some express grant of power. For illustration I will refer only to two extreme cases, the Louisiana purchase, and the issue of treasury notes with the character of legal tender.

In the case of the Louisiana purchase, the exercise of the questionable power was so plainly beneficial to the whole country, that it was generally acqucesced in. But the claim

1 Story, J., in Martin v. Hunter's Lessee, 1 Wheat. 304, 326; Ch. J. Marshall in Gibbon v. Ogden, 9 Wheat. 1, 187, and other cases cited supra.

2 "While the principles of the constitution should be preserved with a most guarded caution, it is at once the dictate of wisdom and enlightened patriotism to avoid that narrowness of interpretation, which would dry up all its vital powers, or compel the government [as was done under the confederation], to break down all constitutional barriers, and trust for its vindication to the people, upon the dangerous political maxim, that the safety of the people is the supreme law (salus populi suprema lex); a maxim which might be used to justify the appointment of a dictator, or any other usurpation." Story on Constitution, § 1292.

of an express or implied power to make the purchase was so palpably untenable, that the transaction has been tacitly admitted to have been an actual but necessary violation of the constitution. Even Mr. Jefferson, to whom the credit of effecting the purchase of Louisiana was justly and chiefly due, was of the opinion that there was no warrant in the constitution for the exercise of such a power, and recommended the adoption of an amendment to the constitution, authorizing its purchase. In speaking of the objections, that were urged against the project, Judge Story says: "The friends of the measure were driven to the adoption of the doctrine that the right to acquire territory was incident to national sovereignty; that it was a resulting power, growing necessarily out of the aggregate power confided by the Federal constitution, that the appropriation might justly be vindicated upon this ground, and also upon the ground that it was for the defense and general welfare." 1

An equally remarkable case of a strained construction of constitutional provisions is the exercise by Congress of the power to make the United States treasury notes legal tender in payment of all debts, public and private. The exercise of this power is not so plainly beneficial; on the contrary it has been considered by many able publicists to be both an injurious and a wrongful interference with the private rights of the individual. For this reason, the assumption of the power by the national government has not met with a general acquiescence; and the constitutionality of the acts of Congress, which declared the treasury notes to be legal tender, has been questioned in numerous cases, most of which have found their way by appeal to the Supreme Court of the United States. In Hepburn v. Griswold,3 the

1 Story on Constitution, § 1286.

2 See ante, § 90, for a full discussion of power of the United States Government to make its treasury notes legal tender in payments of debts. 38 Wall. 603.

acts of Congress of 1862 and 1863 were declared to be unconstitutional, so far as they make the treasury notes of the United States legal tender in the payment of pre-existing debts. In the Legal Tender Cases,' the opinion of the court in Hepburn v. Griswold was overruled, and the acts of 1862 and 1863 were declared to be unconstitutional in making treasury notes legal tender, whether they applied to existing debts, or those which were created after the enactment of these statutes, the burden of the opinion being that Congress has the right, as a war measure, to give to these notes the character of legal tender. In 1878, Congress passed an act, providing for the reissue of the treasury notes, and declared them to be legal tender in payment of all debts. In a case, arising under the act of 1878, the Supreme Court has finally affirmed the opinion announced in 12 Wallace, and held further that, the power of the government to make the treasury notes legal tender, when the public exigencies required it, being admitted, it becomes a question of legislative discretion, when the public welfare demands the exercise of the power. A perusal of these cases will disclose the fact that the members of the court and the attorneys in the causes, have not referred to the same constitutional provisions for the authority to make the treasury notes legal tender. Some have claimed it to be a power, implied from the power to levy and carry on war; some refer it to the power to borrow money, while others claim it may be implied from the grant of power to coin money and regulate the value of it. It will not be necessary for the present purpose to demonstrate that this power is not a fair implication from the express powers mentioned. A careful reading of all the opinions in the cases referred to will at least throw the matter into hopeless doubt and uncertainty, if it does not convince the reader that in

1 12 Wall. 457.

2 Juillard v. Greenman, 110 U. S. 421.

assuming this position, violence has been done by the court to the plain literal meaning of the words. There are only too many cases, in which forced construction has been resorted to, in order to justify the exercise of powers which are deemed necessary by public opinion. No change in the rules of construction will prevent altogether the tendency to strain and force the literal meaning of the written constitution, in order to bring it into conformity with that unwritten constitution, which is the real constitution, and which is slowly but steadily changing under the pressure of popular opinion and public necessities, checked only by the popular reverence for the written word of the constitution. But all justification for this violent construction can be removed by correcting a most surprising error in constitutional construction, an error which has produced an anomaly in constitutional law.

A stable and enduring government can not be so constructed, that no branch of it can exercise a given power, unless it is granted by the constitution, expressly or by necessary implication. A government, as a totality, may properly be compared to a general agent, who does not require any specific delegation of power, in order to do an act, provided it falls within the scope of the agent's general authority. A government, like a general agent, may have express restrictions or limitations imposed upon the general powers. But in the absence of a prohibition, the right to exercise a given power, which falls within the legitimate scope of governmental authority, must be vested in some branch of the government.

Referring to the Federal system, it is claimed, in the assertion of this principle, that either the general government or the several State governments may exercise such a power, unless its exercise is prohibited to both by the Federal constitution. I do not mean to say that constitutional conventions never attempt to lay down a different rule. On the contrary, if the great men, who have contributed to the