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It was impossible to enumerate all cases of necessity, and, therefore, it was left to Congress to judge of them, and their judgment must govern unless it should be so exercised as to be manifestly and flagrantly in breach of the Constitution. If a law is evidently useful in carrying into effect one of the powers vested in Congress, the court will not be over critical in inquiring into the degree of necessity. Comm. v. Lewis, 6 Binn. 266.

Congress is not authorized to enact laws, even in furtherance of a legitimate end, merely because they are useful, or because they make the Government stronger. There must be some relation between the means and the end; some adaptedness or appropriateness of the laws to carry into execution the powers created by the Constitution. Legal Tender Cases, 12 Wall. 457.

The relationship between the means and the end need not be direct and immediate. Legal Tender Cases, 12 Wall. 457 ; contra, U. S. v. Bailey, 1 McLean, 234.


It is not for the judiciary to determine whether a law of Congress has a direct relation as a means to the execution of an enumerated power. If, in any sense or in any degree, the means employed are appropriate or conducive to the exercise of the power—if there is any possible relation of the means to the end—the judiciary is limited to the inquiry whether the use of such means is repugnant to any provision of the Constitution. Metropolitan Bank v. Van Dyck, 27 N. Y. 400.

The judicial department of the Government can not declare that because to the judicial mind Congress, in the execution of a‘specified power, seems to have employed means not having a direct but a circuitous, remote and indirect relation to the end of such power, its act is constitutionally invalid. Metropolitan Bank v. Van Dyck, 27 N. Y. 400.


In the exercise of its powers and functions the Government must be allowed a wide discretion in the means to be employed.

Occasions may arise for the use of means to accomplish the recognized objects of the Constitution, different from what its founders could have anticipated, and perhaps contrary to their expectations, and in such event the question of constitutional power is to be decided by a fair construction of the Constitution itself, and by the appropriateness of the proposed means to the end tested rather by the facts of the day than by the judgment of the past or its history. Metropolitan Bank v. Van Dyck, 27 N. Y. 400.

It is not essential that the statute shall be 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 attained 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. U. S. v. Fisher, 2 Cranch, 358.

Construction for the purpose of conferring a power should be resorted to with great caution, and only for the strongest and most persuasive

Ex parte Beavins, 33 N. H. 89. No trace is to be found in the Constitution of an intention to create a dependence of the Federal Government on the governments of the States, for the execution of the great powers assigned to it. Its means are adequate to its ends, and on those means alone was it expected to rely for the accomplishment of its ends. M'Culloch v. State, 4 Wheat. 316.

Where the means for the exercise of a granted power or the performance of an enjoined duty are given, no other or different means can be implied, either on account of convenience or as being more effectual. Ex parte Beavins, 33 N. H. 89.

A statute giving priority to the Government over the general creditors 1 in cases of insolvency, is valid. U. S. v. Fisher, 2 Cranch, 358.

Congress may fix the rate of interest which a national bank may take upon a loan of money, and determine the penalty to be imposed for taking a greater rate. Central Bank v. Pratt, 115 Mass. 439.

Congress may make or authorize contracts with individuals for services to the Government; grant aids by money or land in preparation for and in the performance of such services, make any stipulations and conditions not contrary to the Constitution, and in its discretion exempt the agencies employed in such services from any State taxation which will really prevent or impede the performance of them. Thomson v. Pacific Railroad, 9

Wall. 579.

The Government is to pay the debt of the Union, and consequently has. a right to make remittances by bills or otherwise, and to take those precautions which will render the transaction safe. U. S. v. Fisher, 2 Cranch, 358.

Congress may use all known and appropriate means of effectually collecting and disbursing the revenue, unless such means are forbidden in some other part of the Constitution. The power is not exhausted by the receipt of the money by the collector. The purpose of the power to collect and disburse the revenue, is to raise money and use it in the payment of the debts of the Government, and whoever may have possession of the public money until it is actually disbursed, the power to use those known and appropriate means continues. Murray v. Hoboken Co. 18 How. 272. If it is necessary to render treasury notes effectual for the purpose for

which they are issued—that they should be made a legal tender in payment of all debts, Congress may in its discretion adopt such means to carry out-a conceded and delegated power. Metropolitan Bank v. Van Dyck, 27 N. Y. 400.

Congress has the power to provide that in case of the death of a collector without leaving estate sufficient for the payment of all his debts, the United States shall be first paid. Comm. v. Lewis, 6 Binn. 266.

The power of creating a corporation, though appertaining to sovereignty, is not like the power of making war, or levying taxes, or regulating commerce, a great substantive and independent power which can not be implied as incidental to other powers or used as a means of executing them. It is never the end for which other powers are exercised, but a means by which other objects are accomplished. The power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. It may, therefore, pass as incidental to those powers which are expressly given if it be a direct mode of executing them. M'Culloch v. State, 4 Wheat. 316; Magill v. Parsons, 4 Conn. 317; contra, Comm. V. Morrison, 2 A. K. Marsh, 75.

Congress has the power to make any provisions which tend to promote the efficiency of national banks in performing the functions by which they were designed to serve the Government and to protect them, not only against interfering State legislation, but also against suits or proceedings in State courts, by which that efficiency would be impaired. Chesapeake Bank v. First Nat'l Bank, 40 Md. 269.

Congress has the power to prescribe the penalty to be incurred by a national bank for taking usurious interest. Farmers' National Bank v. Dearing91 V. S. 29; contra, First Nat'l Bank v. Lamb, 50 N. Y. 95; S. C. 57 Barb. 429.

The power of legislating upon the subject of the validity of private contracts made within the States, has not been granted by the Constitution to the Federal Government, but has ever rested with the States. Each one of them according to its own notions of policy, and without regard to the views of the others, has the right to prohibit and declare invalid within its own borders those contracts which it deems opposed to public morals or the welfare of its citizens. Each State had this right before the formation of the Federal Government, and has never surrendered it. When the people of all the States united in framing that Government, they carefully defined its powers, reserving to each State not merely its separate organization, but its sovereignty over its domestic affairs, granting to the Federal Government only the express powers enumerated in its written charter, together with authority to pass all laws necessary and proper for the execution of those enumerated powers, and in this form was the Constitution ratified by the States. If, for the execution of any express power vested in


the Federal Government, it should become necessary to sanction or prohibit a particular class of contracts in opposition to the laws of the State where made, such a measure would not derive its validity from any power of Congress to legislate upon the subject of domestic contracts, but solely from the relation of the measure to the express power in the execution of which it was employed, and the existence of such a relation is a judicial question. In such a case the legislation of the State could be made to yield to that of the Federal Government, only to the extent to which the former constituted an obstruction to the accomplishment of the legitimate constitutional end which Congress had in view. First Nat'l Bank v. Lamb, 57 Barb. 429 ; S. C. 50 N. Y. 95.

Congress has the power to create, define and punish crimes and offenses whenever they deem it necessary by law to do so for effectuating the objects of the Government. U. S. v. Worrall, 2 Dall. 384; U. S. v. Marigold, 9 How. 560.

The power to prescribe an oath of office is an incidental power. Metropolitan Bank v. Van Dyck, 27 N. Y. 400.

The power of punishment appertains to sovereignty, and may be exercised whenever the sovereign has a right to act as incidental to his constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used although not indispensably necessary. It is a right incidental to the power and conducive to its beneficial exercise. M'Culloch v. State, 4 Wheat. 316.

If the Constitution guarantees a right, the National Government is clothed with the appropriate authority and functions to enforce it. The fundamental principle is, that where the end is required the means are given; and where a duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is intrusted. Prigg v. Comm. 16 Pet. 539; U. S. v. Cruikshank, 1 Woods, 308; S. C. 91

U. S. 542.

The power of Congress to pass laws to enforce rights conferred by the Constitution, is not limited to the express powers of legislation enumerated in the Constitution. The powers which are necessary and proper as means to carry into effect rights expressly given and duties expressly enjoined, are always implied. The end being given, the means to accomplish it are given also by a just and necessary implication. Prigg v. Comm. 16 Pet. 539; Henry v. Lowell, 16 Barb. 268.

The method of enforcement, or the legislation appropriate to that end, will depend upon the character of the right conferred. It may be by the establishment of regulations for attaining the object of the right, the imposition of penalties for its violation, or the institution of judicial procedure for its vindication when assailed, or when ignored by the State courts; or it may be by all of them together. One method of enforcement may be

applicable to one fundamental right, and not applicable to another. U.S. v. Cruikshank, 1 Woods, 308; S. C. 91 U. S. 542.

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. M'Culloch v. State, 4 Wheat. 316.

Those who contend that the Government may not selecť any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception. M'Culloch v. State, 4 Wheat. 316.

4 The Government has the right to employ freely every means not prohibited, necessary for its preservation, and for the fulfillment of its acknowledged duties. Legal Tender Cases, 12 Wall. 457.

Congress has the power to make laws for carrying into execution all the judgments which the judicial department has the power to pronounce. Wayman v. Southard, 10 Wheat. I; Bank v. Halstead, 10 Wheat. 51.

Congress has the power to regulate the proceedings on executions, and direct the mode and manner, and out of what property of the debtor satisfaction may be obtained. Bank v. Halstead, 10 Wheat. 51.

The Constitution does not profess to enumerate the means by which the powers it confers may be executed. The powers given to the Government imply the ordinary means of execution. M'Culloch v. State, 4 Wheat. 316.

Congress may delegate to the courts the power of altering the modes of proceedings in suits. Wayman v. Southard, 10 Wheat. 1; Bank v. Halstead, 10 Wheat. 51.

If a measure is appropriate to the execution of a power, its necessity is to be determined by Congress alone. Where a law is not prohibited, but is really calculated to effect any of the objects intrusted to the Government, for the courts to undertake to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. M'Culloch v. State, 4 Wheat. 316; Metropolitan Bank v. Van Dyck, 27 N. Y. 400.

When a Territory becomes a State, it rests with Congress to declare to what tribunal the record of the Territorial court shall be transferred, and how its judgments shall be carried into execution, or reviewed on appeal or writ of error. Hunt v. Palao, 4 How. 589.

Congress may prescribe a limitation for actions to recover damages for acts done under the authority of the president. Milligan v. Hovey, 3

Biss. 13.

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