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But it is essential to the being of the government that so erroneous a conception of the meaning of the word necessary should be exploded.
It is certain that neither the grammatical nor popular sense of the term requires that construction. According to both, necessary often means no more than needful, requisite, inciden➡ tal, useful or conducive to. It is a common mode of expression to say that it is necessary for a government or a person to do this or that thing, where nothing more is intended or under. stood than that the interests of the government or person re quire, or will be promoted by doing this or that thing.
This is the true sense in which the word is used in the constitution. The whole turn of the clause containing it indicates an intent to give by it a liberal latitude to the exercise of the specified powers. The expressions have peculiar comprehen siveness. They are "to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the constitution in the government of the United States, or in any department or office thereof." To give the word "necessary" the restrictive operation contended for, would not only depart from its obvious and popular sense, but would give it the same force as if the word absolutely, or indispensably had been prefixed to it.
Such a construction would beget endless uncertainty and embarrassment. The cases must be palpable and extreme in which it could be pronounced with certainty that a measure was absolutely necessary, or one without which a given power would be nugatory. There are few measures of any government which would stand so severe a test. To insist upon it would be to make the criterion of the exercise of an implied power a case of extreme necessity; which is rather a rule to justify the overleaping the bounds of constitutional authority than to govern the ordinary exercise of it.
The degree in which a measure is necessary can never be a test of the legal right to adopt it. The relation between the measure and the end; between the nature of the mean employed towards the execution of a power, and the object of that
power, must be the criterion of constitutionality, not the more or less necessity or utility.
The means by which national exigencies are to be provided for, national inconveniences obviated, and national prosperity promoted, are of such infinite variety, extent, and complexity, that there must of necessity be great latitude of discretion in the selection and application of those means. Hence the necessity and propriety of exercising the authority intrusted to a government on principles of liberal construction. But if only those means could be employed, without which the power would be nugatory, not only would this right of selection be 'taken away, but in cases where an option of means existed, it might be urged against the employment of either, that it was not indispensably necessary to the end.
While on the one hand, the restrictive interpretation of the word necessary is deemed inadmissible, it will not be contended on the other, that the clause in question gives any new and independent power. But it gives an explicit sanction to the doctrine of implied powers, and is equivalent to an admission ⚫ of the proposition that the government, as to its specified povers and objects, has plenary and sovereign authority.
It is true that the power to create corporations is not granted in terms. Neither is the power to pass any particular law, nor to employ any of the means by which the ends of the government are to be attained. It is not expressly given in cases in which its existence is not controverted. For by the grant of a power to exercise exclusive legislation in the territory which may be ceded by the states to the United States, it is admitted to pass; and in the power" to make all needful rules and regulations respecting the territory or other property of the United States" it is acknowledged to be implied. In virtue of this clause, has been implied the right to create a government; that is, to create a body politic or corporation of the highest nature; one that, in its maturity, will be able itself to create other corporations. Thus has the constitution itself refuted the argument which contends that, had it been designed to grant so important a power as that of erecting corporations, it would have been mentioned. But this argument
is founded on an exaggerated and erroneous conception of the nature of the power. It is not of so transcendent a kind as the reasoning supposes. Viewed in a just light, it is a mean which ought to have been left to implication, rather than an end which ought to have been expressly granted.
The power of the government then to create corporations in certain cases being shown, it remained to inquire into the right to incorporate a banking company, in order to enable it the more effectually to accomplish ends which were in themselves lawful.
To establish such a right it would be necessary to show the relation of such an institution to one or more of the specified powers of government.
It was then affirmed to have a relation more or less direct to the power of collecting taxes, to that of borrowing money, to that of regulating trade between the states, to those of raising, supporting, and maintaining fleets and armies; and in the last place to that which authorizes the making of all needful rules and regulations concerning the property of the United States, as the same had been practiced upon by the government.
The secretary of the treasury next proceeded, by a great variety of arguments and illustrations, to prove the position that the measure in question was a proper mean for the execution of the several powers which were enumerated, and also contended that the right to employ it resulted from the whole of them taken together. To detail those arguments would occupy too much space, and is the less necessary, because their correctness obviously depends on the correctness of the principles which have been already stated.
NOTE, No. IV....See page 344.
The officer to whom the management of the finances was confided was so repeatedly charged with a desire to increase the public debt and to render it perpetual, and this charge
had such important influence in the formation of parties, that an extract from this report cannot be improperly introduced. After stating the sum to be raised, the secretary says, "three expedients occur to the option of the government for providing this:
One, to dispose of the interest to which the United States are entitled in the bank of the United States. This at the present market price of bank stock would yield a clear gain to the government much more than adequate to the sum required.
Another, to borrow the money upon an establishment of funds either merely commensurate with the interest to be paid, or affording a surplus which will discharge the principal by instalments within a short term.
The third is to raise the amount by taxes.
After stating his objections to the first and second expedients, the report proceeds thus, "but the result of mature reflection is, in the mind of the secretary, a strong conviction that the last of the three expedients which have been mentioned, is to be prefered to either of the other two.
"Nothing can more interest the national credit and prosperity than a constant and systematic attention to husband all the means previously possessed for extinguishing the present debt, and to avoid, as much as possible, the incurring of any new debt.
"Necessity alone, therefore, can justify the application of any of the public property, other than the annual revenues, to the current service, or the temporary and casual exigencies; or the contracting of an additional debt by loans, to provide for those exigencies.
"Great emergencies indeed might exist, in which loans would be indispensable. But the occasions which will justify them must be truly of that description.
"The present is not of such a nature. The sum to be provided is not of magnitude enough to furnish the plea of necessity.
"Taxes are never welcome to a community. They seldom fail to excite uneasy sensations more or less extensive. Hence
a too strong propensity in the governments of nations, to anticipate and mortgage the resources of posterity, rather than to encounter the inconveniencies of a present increase of
"But this policy, when not dictated by very peculiar cir, cumstances, is of the worst kind. Its obvious tendency is, by enhancing the permanent burdens of the people, to pro duce lasting distress, and its natural issue is in national bank, ruptcy."
It will be happy if the councils of this country, sanctioned by the voice of an enlightened community, shall be able to pursue a different course.
NOTE, No. V....See page 358.
About the same time a letter was addressed to the attorney general on the same subject. The following extract is taken from one of the twenty-sixth of August to the secretary of the treasury.
"Differences in political opinions are as unavoidable as, to a certain point, they may be necessary; but it is exceedingly to be regretted that subjects cannot be discussed with temper, on the one hand, or decisions submitted to on the other, without improperly implicating the motives which led to them; and this regret borders on chagrin when we find that men of abilities, zealous patriots, having the same general objects in view, and the same upright intentions to prosecute them, will not exercise more charity in deciding on the opinions and actions of each other. When matters get to such lengths, the natural inference is that both sides have strained the cords beyond their bearing, that a middle course would be found the best until experience shall have decided on the right way; or, which is not to be expected, because it is denied to mortals, until there shall be some infallible rule by which to forejudge events.
"Having premised these things, I would fain hope that liberal allowances will be made for the political opinions of