would deny a choice of means to execute the power, would reduce the power itself to a nullity. For, as it never could be demonstrated, that any one mode in particular was intended, and to be exclusively employed; and, as it might be demonstrated, that other means might be employed, the question, whether the power were rightfully put into exercise, would for ever be subject to doubt and controversy.1 If one means is adopted to give it effect, and is within its scope, because it is appropriate, how are we to escape from the argument, that another, falling within the same predicament, is equally within its scope? If each is equally appropriate, how is the choice to be made between them? If one is selected, how does that exclude all others? If one is more appropriate at one time, and another at another time, where is the restriction to be found, which allows the one, and denies the other? A

said, with some plausibility, that the right to carry the mail, and to punish those, who rob it, is not indispensably necessary to the establishment of a post office, and post road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record, or process of a court of the United States, or of perjury in such court. To punish these offences is certainly conducive to the due administration of justice. But courts may exist, and may decide the causes brought before them, though such crimes escape punishment.

"The baneful influence of this narrow construction, on all the operations of the government, and the absolute impracticability of maintaining it without rendering the government incompetent to its great objects, might be illustrated by numerous examples drawn from the constitution, and from our laws. The good sense of the public has pronounced without hesitation, that 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."

1 See United States v. Fisher, 2 Cranch, 358; S. C. 1 Peters's Cond. R. 421, 429.

power granted in a frame of government is not contem-
plated to be exhausted in a single exertion of it, or uno
flatu. It is intended for free and permanent exercise ;
and if the discretion of the functionaries, who are to
exercise it, is not limited, that discretion, especially, as
those functionaries must necessarily change, must be co-
extensive with the power itself. Take, for instance, the
power to make war. In one age, this would authorize
the purchase and employment of the weapons then ordi-
narily used for this purpose. But suppose these weapons
are wholly laid aside, and others substituted, more effi-
cient and powerful; is the government prohibited from
employing the new modes of offence and defence?
Surely not. The invention of gunpowder superseded
the old modes of warfare, and may perhaps, by fu-
ture inventions, be superseded in its turn. No one can
seriously doubt, that the new modes would be within
the
scope of the power to make war, if they were ap-
propriate to the end. It would, indeed, be a most ex-
traordinary mode of interpretation of the constitution,
to give such a restrictive meaning to its powers, as
should obstruct their fair operation. A power being
given, it is the interest of the nation to facilitate its ex-
ecution. It can never be their interest, and cannot be
presumed to be their intention, to clog and embarrass
its execution, by withholding the most appropriate
There can be no reasonable ground for pre-
ferring that construction, which would render the op-
erations of the government difficult, hazardous, and ex-
pensive; or for imputing to the framers of the consti-
tution a design to impede the exercise of its powers,
by withholding a choice of means.1

means.

1 M'Culloch v. Maryland, 4 Wheat. R. 316, 408.

§ 432. In the practical application of government, then, the public functionaries must be left at liberty to exercise the powers, with which the people by the constitution and laws have entrusted them. They must have a wide discretion, as to the choice of means; and the only limitation upon that discretion would seem to be, that the means are appropriate to the end. And this must naturally admit of considerable latitude; for the relation between the action and the end (as has been justly remarked) is not always so direct and palpable, as to strike the eye of every observer.1 If the end be legitimate and within the scope of the constitution, all the means, which are appropriate, and which are plainly adapted to that end, and which are not prohibited, may be constitutionally employed to carry it into effect." When, then, it is asked, who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the Union, the true answer is, that the national government, like every other, must judge in the first instance of the proper exercise of its powers; and its constituents in the last. If the means are within the reach of the power, no other department can inquire into the policy or convenience of the use of them. If there be an excess by overleaping the just boundary of the power, the judiciary may generally afford the proper relief; and in the last resort the people, by adopting such measures to redress it, as the exigency may suggest, and prudence may dictate.s

1 See the remarks of Mr. Justice Johnson, in delivering the opinion of the court in Anderson v. Dunn, 6 Wheat. R. 204, 226; United States v. Fisher, 2 Cranch. 358; S. C. 1 Peters's Cond. R. 421, 420.

2 M'Culloch v. Maryland, 4 Wheat. R. 316, 409,410, 421, 423; United States v. Fisher, 2 Cranch, 358; S. C. 1 Peters's Cond. R. 421.

3 The Federalist, No. 33, 44; M'Culloch v. Maryland, 4 Wheat. R. 316, 423.

433. XI. And this leads us to remark, in the next place, that in the interpretation of the constitution there is no solid objection to implied powers.' Had the faculties of man been competent to the framing of a system of government, which would leave nothing to implication, it cannot be doubted, that the effort would have been made by the framers of our constitution. The fact, however, is otherwise. There is not in the whole of that admirable instrument a grant of powers, which does not draw after it others, not expressed, but vital to their exercise; not substantive and independent, indeed, but auxiliary and subordinate. There is no phrase in it, which, like the articles of confederation,3 excludes incidental and implied powers, and which requires, that every thing granted shall be expressly and minutely described. Even the tenth amendment, which was framed for the purpose of quieting the excessive jealousies, which had been excited, omits the word expressly," (which was contained in the articles of confederation,) and declares only, that "the powers, not delegated to the United States, nor prohibited by it to the states, are reserved to the states respectively, or to the people;" thus leaving the question, whether the particular power, which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend upon a fair construc

1 In the discussions, as to the constitutionality of the Bank of the United States, in the cabinet of President Washington, upon the original establishment of the Bank, there was a large range of argument, pro el contra, in respect to implied powers. The reader will find a summary of the leading views on each side in the fifth volume of Marshall's Life of Washington, App. p. 3, note 3, &c.; 4 Jefferson's Corresp. 523 to 526; and in Hamilton's Argument on Constitutionality of Bank, 1 Hamilton's Works, 111 to 155.

2 Anderson v. Dunn, 6 Wheat. 204, 226.

3 Article 2.

tion of the whole instrument. The men, who drew and adopted this amendment, had experienced the embarrassments, resulting from the insertion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments. 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 these may be carried into execution, would partake of the prolixity of a legal code, and could 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 those objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why, else, were some of the limitations, found in the ninth section of the first article, introduced? It is also, in some degree, warranted, by their having omitted to use any restrictive term, which might prevent its receiving a fair and just interpretation. In considering this point, we should never forget, that it is a constitution we are expounding.1

§ 434. The reasoning of the Federalist is to the same effect. Every power, which is the means of carrying into effect a given power, is implied from the very nature of the original grant. It is a necessary and unavoidable implication from the act of constituting a government, and vesting it with certain specified powers. What is a power, but the ability or faculty of doing a

1 Per Mr. Chief Justice Marshall, in M'Culloch v. Maryland, 4 Wheat. R. 316, 406, 407, 421.