The

paramount object

of the Constitution.

Clauses may be grouped

and infer

ences drawn.

our liberties to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution." And with singular clearness was it said by Chief Justice Marshall, in M'Culloch v. The State of Maryland, 4 Id. 405, "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 it may be carried into execution, would partake of the prolixity of a political code, and would 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."

If these are correct principles, if they are proper views of the manner in which the Constitution is to be understood, the powers conferred upon Congress must be regarded as related to each other, and all means for a common end. Each is but part of a system, a constituent of one whole. No single power is the ultimate end for which the Constitution was adopted. It may, in a very proper sense, be treated as a means for the accomplishment of a subordinate object, but that object is itself a means designed for an ulterior purpose. Thus the power to levy and collect taxes, to coin money and regulate its value, to raise and support armies, or to provide for and maintain a navy, are instruments for the paramount object, which was to establish a government, sovereign within its sphere, with capability of self-preservation, thereby forming a union more perfect than that which existed under the old Confederacy. . . .

And here it is to be observed it is not indispensable to the existence of any power claimed for the Federal government that it can be found specified in the words of the Constitution, or clearly and directly traceable to some one of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers expressly defined, or from them all combined. It is allowable to group together any number of them and infer from them all

first ten
amend-

ments show

the existence of general powers in the original

Constitution.

that the power claimed has been conferred. Such a treatment of
the Constitution is recognized by its own provisions. This is well
illustrated in its language respecting the writ of habeas corpus.
The power to suspend the privilege of that writ is not expressly
given, nor can it be deduced from any one of the particularized
grants of power. Yet it is provided that the privileges of the writ
shall not be suspended except in certain defined contingencies.
This is no express grant of power. It is a restriction. But it
shows irresistibly that somewhere in the Constitution power to
suspend the privilege of the writ was granted, either by some one
or more of the specifications of power, or by them all combined.
And, that important powers were understood by the people who The
adopted the Constitution to have been created by it, powers not
enumerated, and not included incidentally in any one of those
enumerated, is shown by the amendments. The first ten of these
were suggested in the conventions of the States, and proposed at the
first session of the first Congress, before any complaint was made of
a disposition to assume doubtful powers. The preamble to the
resolution submitting them for adoption recited that the "conven-
tions of a number of the States had, at the time of their adopting
the Constitution, expressed a desire, in order to prevent miscon-
struction or abuse of its powers, that further declaratory and re-
strictive clauses should be added." This was the origin of the
amendments, and they are significant. They tend plainly to show
that, in the judgment of those who adopted the Constitution, there
were powers created by it, neither expressly specified nor dedu-
cible from any one specified power, or ancillary to it alone, but which
grew out of the aggregate of powers conferred upon the govern-
ment, or out of the sovereignty instituted. Most of these amend-
ments are denials of power which had not been expressly granted,
and which cannot be said to have been necessary and proper for
carrying into execution any other powers. Such, for example, is
the prohibition of any laws respecting the establishment of re-
ligion, prohibiting the free exercise thereof, or abridging the free-
dom of speech or of the press.

How Congress has exercised powers not expressly conferred.

And it is of importance to observe that Congress has often exercised, without question, powers that are not expressly given nor ancillary to any single enumerated power. Powers thus exercised are what are called by Judge Story, in his Commentaries on the Constitution, resulting powers, arising from the aggregate powers of the government. He instances the right to sue and make contracts. Many others might be given. The oath required by law from officers of the government is one. So is building a capitol or

a presidential mansion, and so also is the penal code. This last is worthy of brief notice. Congress is expressly authorized "to provide for the punishment of counterfeiting the securities and current coin of the United States, and to define and punish piracies and felonies committed on the high seas and offences against the laws of nations." It is also empowered to declare the punishment of treason, and provision is made for impeachment. This is the extent of power to punish crime expressly conferred. It might be argued that the expression of these limited powers implies an exclusion of all other subjects of criminal legislation. Yet Congress, by the Act of April 30, 1790, entitled "An Act more effectually to provide for the punishment of certain crimes against the United States," and a supplementary act of March 3, 1825, defined and provided for the punishment of a large class of crimes other than those mentioned in the constitution, and some of the punishments prescribed are manifestly not in aid of any single substantive power. No one doubts that this was rightfully done, and the power thus exercised, has been affirmed by this court in United States v. Marigold, 9 How. 560. This case shows that a power may exist as an aid to the execution of an express power, or an aggregate of such powers, though there is another express power given relating in part to the same subject but less extensive. Another illustration of this may be found in connection with the provisions respecting a census. The Constitution orders an enumeration of free persons in the different States every ten years. direction extends no further. Yet Congress has repeatedly directed an enumeration not only of free persons in the States, but of

The

free persons in the Territories, and not only an enumeration of persons, but the collection of statistics respecting age, sex, and production. Who questions the power to do this?

Under the power to establish post-offices and post-roads Congress has provided for carrying the mails, punishing theft of letters and mail robberies, and even for transporting the mails to foreign countries. Under the power to regulate commerce, provision has been made by law for the improvement of harbors, the establishment of observatories, the erection of lighthouses, breakwaters, and buoys, the registry, enrollment, and construction of ships, and a code has been enacted for the government of seamen. Under the same power, and other powers over the revenue and the currency of the country, for the convenience of the treasury and internal commerce, a corporation known as the United States bank was early created.

100. The "Necessary and Proper" Clause*

The Constitution authorizes Congress to make all laws "necessary and proper" for carrying into effect the express powers conferred upon it. This clause has received the following judicial interpretation:

Absolute

necessity
not required.

By the settled construction and the only reasonable interpretation of this clause, the words "necessary and proper" are not limited to such measures as are absolutely and indispensably necessary, without which the powers granted must fail of execution; but they include all appropriate means which are conducive or adapted to the end to be accomplished, and which in the judgment of Congress will most advantageously effect it. Chief Justice Marshall expounded the clause giving Congress Congress power to make all necessary and proper laws, as follows: "In construing this clause, it would be incorrect, and would produce of means. 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

must possess

the choice

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, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution. The government is to pay the debt of the Union, and must be authorized to use the means which appear to itself the most eligible to effect that object." 2 Cranch, 396.