Lick v. Faulkner et al.

The enumerated powers are general and comprehensive, and were manifestly supposed to be ample for the purposes declared in the preamble of the Constitution. But they could not be carried into execution without legislation; of this the framers of the Constitution were aware, and hence Congress was empowered to make all laws necessary and proper for carrying into execution the powers specified, and all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.

It would

In McCulloch v. Maryland, 4 Wheat. 407, Mr. Chief Justice Marshall said: "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 could scarcely be embraced by the human mind. 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."

In Martin v. Hunter, 1 Wheat. 326, Mr. Justice Story, in delivering the opinion of the Court, said: "The Constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution."

In the thirty-first number of the Federalist Mr. Hamilton said, in reference to the clause of the Constitution conferring on Congress the authority to make all laws necessary and proper for carrying into execution the express powers granted, that it was only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of establishing the Federal Government and vesting it with certain powers; and in respect to the same clause Mr. Madison said: "Had the Constitution been silent on this head there can be no doubt all the particular powers requisite as a

Lick v. Faulkner et al.

means of executing the general powers would have resulted to the General Government by unavoidable implication. No axiom is more clearly established in law or in reason than that wherever the end is required the means are authorized; whereever a general power to do a thing is given, every particular power necessary for doing it is included," (Federalist, No. 43;) and as a reason why it was inserted in the Constitution Mr. Justice Story said: "Such a clause was peculiarly useful in order to avoid any doubt which ingenuity or jealousy might raise on the subject. Much plausible reasoning might be employed by those who were hostile to the Union and in favor of State power to prejudice the people on such a subject and to embarrass the Government in all its reasonable operations. Besides, as the Confederation contained a positive clause restraining the powers of Congress to powers expressly granted, there was a fitness in declaring that that rule of interpretation should no longer prevail. The very zeal, indeed, with which the present clause has been always assailed is the highest proof of its importance and propriety. It has narrowed down the grounds of hostility to the mere interpretation of terms." (Story on the Const., Sec. 1,242; Federalist, No. 31.)

There can be no doubt that Congress has the power to make all laws which may be necessary and proper to the complete execution of the powers enumerated, and to which we have referred, because the Constitution itself has so declared; and the only question to be settled by the Courts is as to what laws are necessary and proper for the purpose; for it must be conceded that laws might be enacted upon the pretext that they were necessary and proper to carry into execution an enumerated power granted to Congress, which might be repugnant to the Constitution or in violation of common right, which the Courts would be bound to pronounce invalid; but "it is not on slight implication or vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered as void." (Fletcher v. Peck, 6 Cranch, 128.)

The question of the necessity and propriety of the Act of

Lick v. Faulkner et al.

the 25th of February, 1862, is involved in the consideration of this case, but it is not, with the authorities before us, of difficult solution. In fact, it may be regarded as settled in principle by the application of the rule of construction declared and vindicated in the masterly and exhaustive argument of the Chief Justice in McCulloch v. Maryland, 4 Wheat. 413, 421. In that case the clause of the Constitution which conferred the power on Congress to make all laws necessary and proper for carrying into execution the powers vested in the Government of the United States, was elaborately and ably considered, and in conclusion the Court, by its learned Chief Justice, said: "The result of the most careful and attentive consideration bestowed upon this clause is, that if it does not enlarge it cannot be construed to restrain the powers of Congress or to impair the right of the Legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the Government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the Constitution, if that instrument be not a splendid bauble.

"We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow the National Legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional." (See also Gibbons v. Ogden, 9 Wheat. 187, and Ogden v. Saunders, 12 Wheat. 332.)

That the necessity for raising, equipping and supporting large armies, and for providing and maintaining a navy of

Lick v. Faulkner et al.

unprecedented power, and for providing and furnishing the supplies and munitions indispensable to the prosecution of war, existed when the Act of Congress in question was passed, Congress determined in the affirmative; and recognizing the condition of the country, as we must, as in a state of war, engaged in the endeavor to suppress an insurrection and rebellion that was at the time and is still mighty and wicked beyond any example furnished by the history of the past, we cannot doubt the necessity of the Act now before us in judgment, or some other measure, adequate as a means to accomplish the objects of the war; nor can we doubt its propriety, provided it be within the scope of the Constitution and consistent with its letter and spirit. (Story on Const. Secs. 1,243

to 1,256.)

In United States v. Fisher, 2 Cranch, 358, Mr. Chief Justice Marshall, in reference to the clause of the Constitution under consideration, said: "In construing this clause it would be incorrect, and would produce endless difficulties, if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specific 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."

Thus it appears, upon authority which commands our highest respect, that to Congress pertains the choice of means to carry into effect a power granted in express terms, though it must be admitted that in the adoption of means for the purpose there must be a relation, in the nature and fitness of things, between the means used and the end to be accomplished.

The power to declare war, to raise and support armies and a navy, to suppress insurrections and repel invasions, is, as already appears, expressly granted to Congress by the Constitution; and the power to pass laws for carrying these express

Lick v. Faulkner et al.

powers into execution is also granted in terms. Then, with respect to these express powers, the Government must be considered as supreme; and in carrying them into effect, its powers are not limited, except by constitutional provision. (Story on Const., Secs. 417 to 426, and 433, 434.)

Congress having passed the Act in question, as a means to carry into effect the power to raise and maintain an army and a navy to suppress the existing insurrection and rebellion, it devolves on those who object that the means selected are repugnant to the Constitution to point out and show wherein is the repugnancy. If the Constitution contains no provision operating in restraint of the emission of treasury notes, and making the same lawful money and a legal tender in the payment of debts, in order to make them the more efficient for the end to be attained, then upon what principle would a Court be authorized to proceed to the conclusion that the law is unconstitutional and void, in so far as these notes are made lawful money and a legal tender in the payment of debts?

The objection interposed to the binding obligation of the tender clause of the Act is sought to be maintained on the ground that the power to make treasury notes or bills of credit a tender for the payment of private debts is not conferred on Congress by the Constitution, either expressly or by impli

cation.

It must be admitted that this power is not granted in express terms. If it exists, it is to be found in that vast mass of incidental powers involved in the Constitution, which are to be exercised by Congress when necessary and proper to carry into effect powers expressly granted. But though the Act in question be one depending for its constitutional warrant in the exercise of authority which is subordinate and ancillary to a principal and specific power, it may be equally valid as a law enacted to accomplish, in the most palpable and direct mode, an object specifically designated by the clearest constitutional expression. The Act is one relating to the means which Congress may adopt to attain an end; and the whole controversy is narrowed down to the constitution