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2. To regulate commerce.
To these provisions, the convention might or might not have added a third, which is nothing more than a maxim
of universal law, “quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsa esse non potest”-viz.
3. To make all laws necessary and proper to carry into execution, the foregoing powers.
All the other clauses of the eighth section, with the exception of three very unimportant ones, are, according to those principles, perfectly superfluous—the most unmeaning and nugatory verbiage that ever disgraced a set of tyros in law-making. Is there any power omitted in our projet that may not be easily deduced from the frame and objects of the government, by the same course of reasoning which is supposed to have demonstrated the right of Congress to incorporate a bank? Can it be pretended, that the prerogative of investing a body of men with corporate franchises, is not by the law which the people of the States lived under, by the language which they spoke, by the opinions which they universally entertained in '89, as perfectly well defined and ascertained, as a distinct, substantive power-one of the admitted qura regalia—as any other in the constitution, and much more than some of them?
The Supreme Court, it is true, does endeavour to shew that it is not; and it does so by a course of reasoning, which, however plausible at first sight, appears to us to be utterly fallacious and unsound. “The power of creating a corporation," says the Chief Justice, “though appertaining to sovereignty, is not like the power of making war, or levying taxes, or of regulating commerce, a great, substantive and independent power, which cannot 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. No contributions are made to charity for the sake of an incorporation, but a corporation is created to administer the charity. The power of creating a corporation is never used for its own sake, but for the purpose of effecting, something else," &c. The power of “levying taxes" not used as a means to execute the power of making war! What is the history of the national debt in England or in this country? Besides, we we should like to be informed what power ever was
" used for its own sake," and not for the purpose of effecting something else? Who ever declared war for the bare sake of declaring war-except, indeed, that great constitutional lawyer and original thinker, Caligula, who is said to have triumphed over
Britain, by merely parading his troops upon the opposite shore, and marching off with the shells gathered there, for spoils and for trophies. Nay, the only idea which we are able to conceive of any power, is, as producing effects—it is ex vi termini, a means. Yet, according to the metaphysics of the Supreme Court, the fact that it may be a means, proves it no power!
We do not know that an attempt has ever been made by any of our constitutional lawyers, either in Congress or in the Courts, to explain what is meant by “sovereign-political powers”-a phrase, however, perpetually used in such discussions, as if nothing could be more ascertained and precise. Thus, taking the matter up on principle-why should coining money be a great state prerogative, any more than issuing bank notes and other negotiable paper, which constitute by far the greater part of the circulating medium of this country? Why should the right of war be exclusively confined to the whole society, and not be, as in the baronial times, the privilege of every gentlernan of a certain degree? These questions are just as difficult to answer, as that so triumphantly asked in McCullough's case; why should the granting a corporate franchise be regarded as a prerogative of sovereignty? It is obvious to reply, that the policy of society requires it—but it is enough for us to say, that such powers have, in fact, been regarded as State prerogatives or jura regalia--and especially, that they were so considered by the common law of this land, at the adoption of the constitution. If any stress, therefore, is to be laid, (and great stress is laid by the Supreme Court) on the idea of these great, substantive and independent powers,” that instrument must be construed in reference to the general understanding of mankind-and, if after granting some of them, it expressly withholds all that have not been enumerated, it is passing strange to say that, under any vague words of course—any mere expressio eorum quæ tacitè insunt-such as the clause authorising Congress to pass all laws necessary, &c.—those which were expressly refused have been implicitly granted.
It only remains to be shewn, that the power of instituting a corporation is defined by the common law as an attribute-a distinct and peculiar attribute, if there ever was one-of sovereignty. Indeed, this is admitted by the Chief Justice, and that concession seems to give up the whole controversy-for if it was a “substantive, independent power” at all, it is clearly a power not granted. But the doctrine on this subject deserves to be more particularly stated.
By the law of England, the king alone-quâ talis, and not as part of the legislature-can grant a charter of incorporation. It
is as much his prerogative to do so, as it is to confer a title of nobility or to declare war. This doctrine is expressly laid down by Blackstone. It is true, that in some few cases of extraordinary exigence, the Parliament has undertaken to confer a franchise, and may do so still, but such acts have always been regarded as irregular, although the king, of course, must assent even to them. “ The Parliament,” says Blackstone, “by its absolute and transcendent authority, may perform this, or any other act whatsoever: and actually did perform it to a great extent, by Stat. 39, Eliz. c. 5, which incorporated all hospitals and houses of correction founded by charitable persons, without further trouble, and the same has been done in other cases of charitable foundations. But otherwise, it has not formerly been usual thus to trench upon the prerogative of the crown, and the king may prevent it when he pleases.”+ Now, we ask, if this does not demonstrate beyond a doubt that, by the common law, the right of creating a corporate franchise, “is regarded as a transcendent power of sovereignty in the British constitution,” the opinion of Mr. Pinkney of Maryland, to the contrary notwithstanding. If this be admitted to be, as it unquestionably is, the true theory of the British constitution, we may save ourselves the trouble of inquiring, what is the doctrine of the civil law upon the subject. The constitution of the United States is not to be construed in reference to that jurisprudenceit is matter of positive construction, of peculiar character, of strict law-Nihil ad edictum Prætoris. Still less, we take it, ought it to be controlled by the wild imaginings and speculative conceits of men, as to what might, could, would or should be law. Surely the sound rule of interpretation is, to suppose that the people of this country meant what they said, that they spoke the language of their own day, and acted upon the ascertained and immemorial maxims of their hereditary institutions. Besides, it is not true, as Mr. Pinkney affirms, upon no better authority than Blackstone's Commentaries, that a corporation was, by the civil law, a mere voluntary association of individuals, not particularly controlled by the state. The doctrine of that jurisprudence may be seen upon reference to Domat, who has collected all the texts, and states the principle with his usual clearness and judgment. Nor is any stress, whatever, to be laid upon a circumstance which, the learned advocate just mentioned, seems to consider as so important, viz. that the king might authorize a subject to institute a corporation. He would have
1 Bl. Comm: p. 273.
+ 2 Ibib. p. 474.
found by going a little beyond the English text books, that the question whether the jura regalia may be delegated, has been fully discussed and decided, under some qualifications, in the affirmative, by those who are accustomed to look rather more deeply into such subjects than “ Doctor Blackstone."*
Instead, therefore, of inferring from the fact that, in England, the authority of Parliament is not necessary to create a corporation, as Mr. Pinkney does in McCullough's case, that the granting of such franchises is no act of sovereignty, we deduce from the same premises, precisely the opposite conclusion. We ask, how it comes to pass, that the reasoning of the Court in that case, never occurred to the great constitutional lawyers of the mother country? Why should the granting a charter, even by an omnipotent Parliament, be considered "as trenching upon the king's prerogative,” if the doing so, would be only employing a “means” within the ordinary range of legislative discretion? Is it not manifest that the argument would apply to that government with the same, and, indeed, with greater force than it does here? Ought not the British legislature-of which the monarch too is a constituent part-to have as large a discretion as a Congress of few, and those specified and enumerated powers? If Parliament should undertake, with a view to accomplish some of its legitimate objects, to incorporate a company, the king, says Blackstone, would have a right to say to them, "you have begun at the wrong end, you ought to have requested the crown to exercise its prerogative;" then, with what sort of colour can it be pretended, that such a statute differs in no wise from any other act of legislation, according to the common law of England, which was, and is the common law of this land. But we shall presently cite other instances to shew that the Federal Government in laying down its principles, has assumed more-has been less scrupulous in its regard for the ancient landmarks and consecrated maxims of law and liberty, according to the faith of our fathers, even than that of England.
Does the Supreme Court mean to say, that Congress, under one of its two cardinal powers, that of regulating commerce, would have a right to found and incorporate a city within the limits of a state? Yet, why not; since its acts are the supreme law, and what “laws are necessary and proper," is matter of legislative discretion, not to be passed upon by the courts ? In
See the note of Godefroy on Feudor, lib. ii. Tit. 59. + So the Pope, though he usurped very great authority, never could make a corporation. Com. Dig. Franchise, F. 5. It is astonishing that even the Canonists subtle and contriving as they were should have fallen so far short of our constitutional lawyers.
short, there is no end to the consequences that may and will be deduced from the doctrine in M'Cullough's case. The amount of it really is, that the enumeration of powers in the constitution was a vain attempt to confine what is necessarily illimitablethat such an instrument never can ascertain its objects with any sort of precision—that it can, at most, hint a vague purpose and sketch a sweeping outline, which is to be filled up at discretion—in short, that it is not the plan of a government formed and settled, and circumscribed from the first, as it is intended to continue forever, but is a mere nucleus, around which a government is to be formed, according to the circumstances of the times, and the opinions of mankind. Such a principle being once established, no man can pretend to anticipate what shape the constitution of the United States (not that written by the convention, but the other which is to be built upon it) is destined to take. We are fairly at the mercy of sophisters and metaphysicians, and we shall see fully verified, the wise old maxim of the schools dolus versatur in generalibus. One usurpation will be a precedent for another-it will be treason to complain in future of abuses, that in point of principle, can be no worse than those we have already submitted to. Thus Mr. Pinkney begins his argument in this very case, by declaring that he did not consider the constitutionality of the bank as an open question, because it had been assumed by Congress, and acquiesced in for thirty years! We venture to predict that no act of the federal government (supposing it to have common discretion) will ever be pronounced unconstitutional in that court, for the simple reason that the principle of M'Cullough's case covers the whole ground of political sovereignty, and consecrates usurpation in advance.A regular bred dialectician shall demonstrate, drop by drop, with the most vigorous logic, that a tun of wine will not get a man drunk, if his hearer will only consent to surrender his senses to a Sorites. The consequences in such deductions shall be inevitable, and no man be able to say this or that link in the chain of reasoning is bad; on this side is Jona and not Peloponnesus—here law ends, and usurpation begins. For a man of common sense—indeed, for plain, practical men—it is enough that such reasonings, however ingenious and consequential, lead to manifest absurdity, and so must be radically vicious somewhere. That argument, for instance, cannot be sound which necessarily converts a government of enumerated into one of indefinite powers, and a confederacy of republics into a gigantic and consolidated empire. But such moderation is not to be expected of those who deal in sweeping abstractions and reason about government and the most interesting and practical concerns of