plainly adapted to the end, and which are not prohibited, but are consistent with the letter and spirit of the instrument, are constitutional.1

§ 1251. It may be well, in this connexion, to mention another sort of implied power, which has been called with great propriety a resulting power, arising from the aggregate powers of the national government. It will not be doubted, for instance, that, if the United States should make a conquest of any of the territories of its neighbours, the national government would possess sovereign jurisdiction over the conquered territory. This would, perhaps, rather be a result from the whole mass of the powers of the national government, and from the nature of political society, than a consequence or incident of the powers specially enumerated.2 · It may, however, be deemed, if an incident to any, an incident to the power to make war. Other instances of resulting powers will easily suggest themselves. The United States are nowhere declared in the constitution to be a sovereignty entitled to sue, though jurisdiction is given to the national courts over controversies, to which the United States shall be a party. It is a natural incident, resulting from the sovereignty and character of the national government.3 So the United States, in their political capacity, have a right to enter into a contract, (although it is not expressly provided for by the constitution,) for it is an incident to their general right of sovereignty, so far as it is appro

1 MCulloch v. Maryland, 4 Wheat. R. 420, 491, 423. See also 4 Elliot's Debates, 220, 221, 222, 223, 224, 225; 2 Elliot's Debates, 196, 342; 5 Marsh. Wash. App. No. 3; 2 American Museum, 536; Anderson v. Dunn, 6 Wheat. R. 204, 225, 226; Hamilton on Bank, 1 Hamilton's Works, 111 to 123.

2 Hamilton on Bank, 1 Hamilton's Works, 115.

3 See Dugan v. United States, 3 Wheat. R. 173, 179, 180.

priate to any of the ends of the government, and within the constitutional range of its powers.1 So congress possess power to punish offences committed on board of the public ships of war of the government by persons not in the military or naval service of the United States, whether they are in port, or at sea; for the jurisdiction on board of public ships is every where deemed exclusively to belong to the sovereign.2

§ 1252. And not only may implied powers, but implied exemptions from state authority, exist, although not expressly provided for by law. The collectors of the revenue, the carriers of the mail, the mint establishment, and all those institutions, which are public in their nature, are examples in point. It has never been doubted, that all, who are employed in them, are protected, while in the line of their duty, from state control; and yet this protection is not expressed in any act of congress. It is incidental to, and is implied in, the several acts, by which those institutions are created and is preserved to them by the judicial department, as a part of its functions. A contractor for supplying a military post with provisions cannot be restrained from making purchases within a state, or from transporting provisions to the place, at which troops are stationed. He could not be taxed, or fined, or lawfully obstructed, in so doing. These incidents necessarily flow from the supremacy of the powers of the Union, within their legitimate sphere of action.

;

§ 1253. It would be almost impracticable, if it were not useless, to enumerate the various instances, in

1 United States v. Tingey, 5 Peters's R. 115.

2 United States v. Bevans, 3 Wheaton's R. 388; The Exchange, 7 Cranch, 116; S. C. 2 Peters's Cond. R. 439.

3 Osborn v. Bank of U. States, 9 Wheat. R. 365, 366.

4 Id. 367.

which congress, in the progress of the government, have made use of incidental and implied means to execute its powers. They are almost infinitely varied in their ramifications and details. It is proposed, however, to take notice of the principal measures, which have been contested, as not within the scope of the powers of congress, and which may be distinctly traced in the operations of the government, and in leading party divisions.1

1 Some minor points will be found in the debates collected in 4 Elliot's Debates, 139, 141, 229, 234, 235, 238, 239, 240, 243, 249, 251, 252, 261, 265, 266, 270, 271, 280. There is no express power given by the constitution to erect forts, or magazines, or light-houses, or piers, or buoys, or public buildings, or to make surveys of the coast; but they have been constantly deemed incidental to the general powers. Mr. Bayard's Speech in 1807, (4 Elliot's Debates, 265;) Mr. Pickering's Speech, 1817, (4 Elliot's Debates, 280.)

CHAPTER XXV.

INCIDENTAL POWERS

NATIONAL BANK.

§ 1254. ONE of the earliest and most important measures, which gave rise to a question of constitutional power, was the act chartering the bank of the United States in 1791. That question has often since been discussed; and though the measure has been repeatedly sanctioned by congress, by the executive, and by the judiciary, and has obtained the like favour in a great majority of the states, yet it is, up to this very hour, still debated upon constitutional grounds, as if it were still new, and untried. It is impossible, at this time, to treat it, as an open question, unless the constitution is for ever to remain an unsettled text, possessing no permanent attributes, and incapable of having any ascertained sense; varying with every change of doctrine, and of party; and delivered over to interminable doubts. If the constitution is to be only, what the administration of the day may wish it to be; and is to assume any, and all shapes, which may suit the opinions and theories of public men, as they successively direct the public councils, it will be difficult, indeed, to ascertain, what its real value is. It cannot possess either certainty, or uniformity, or safety. It will be one thing to-day, and another thing to-morrow, and again another thing on each succeeding day. The past will furnish no guide, and the future no security. It will be the reverse of a law; and entail upon the country the curse of that miserable servitude, so much abhorred and denounced, where all is vague and uncertain in the fundamentals of government.

§ 1255. The reasoning, upon which the constitutionality of a national bank is denied, has been already in some degree stated in the preceding remarks. It turns upon the strict interpretation of the clause, giving the auxiliary powers necessary, and proper to execute the other enumerated powers. It is to the following effect: The power to incorporate a bank is not among those enumerated in the constitution. It is known, that the very power, thus proposed, as a means, was rejected, as an end, by the convention, which formed the constitution. A proposition was made in that body, to authorize congress to open canals, and an amendatory one to empower them to create corporations. But the whole was rejected; and one of the reasons of the rejection urged in debate was, that they then would have a power to create a bank, which would render the great cities, where there were prejudices and jealousies on that subject, adverse to the adoption of the constitution.1 In the next place, all the enumerated powers can be carried into execution without a bank. A bank, therefore, is not necessary, and consequently not authorized by this clause of the constitution. It is urged, that a bank will give great facility, or convenience to the collection of taxes. If this were true, yet the constitution allows only the means, which are necessary, and not merely those, which are convenient for effecting the enumerated powers. If such a latitude of construction were allowed, as to consider convenience, as justifying the use of such means, it would swallow up all the enumerated powers. Therefore, the constitution

14 Jefferson's Correspondence, 523, 526; Id. 506.

2 Ibid; 4 Elliot's Debates, 219.