perty, within its limits? To contend that Congress, under a power to regulate commerce, can extinguish the Indian right of occupancy, seems to us to be so illogical and contradictory, that we shall abstain from any further remarks upon it.

Thirdly. Power to declare war. As it strikes us that a power to declare war, and to extinguish the right of Indian occupancy to lands within a State, have no rational connexion with each other; and as it has, nevertheless, been elaborately argued in the Report, that the latter is included within the former, we will avail ourselves of the occasion to express our opinion upon the questio vexata of constitutional construction.

Political writers and statesmen, who have discussed this topic, have usually been divided into two classes, the one advocating a liberal, the other a strict construction of federal powers. We consider both to be in error, and that their error arises from confounding together what are so different in their nature and operation, as a statute and the Constitution, and applying to the Constitution those general rules which govern courts of justice in their construction of statutes. By construing a statute liberally, an inference is often drawn from it, not only beyond what its words import, but beyond the contemplation of those by whom it was enacted. By construing a statute strictly, although its intention be expressed with a clearness not to be mistaken, yet being capable by verbal criticism, of receiving another, and, perhaps, a more literal meaning, the sense is sacrificed to the rule, and the object of the law is defeated. The mere statement of the effects produced by these rules of construction, will satisfy us, that neither of them ought to be our guide. The structure of our Constitution is novel and complicated: the difference between it and the ancient and modern political leagues and confederacies, is so great in many essential respects, that we can derive little from their histories to aid us, either by way of example or illustration. In returning to a state of peace from a long and exhausting war, our citizens were exposed to sufferings and privations, scarcely inferior to those which they had endured during the revolutionary struggle. Individuals were oppressed with debt-property had depreciated-metallic money had disappeared-no sound circulating medium supplied its place-commerce and agriculture were languishing-rival interests and jealousies distracted the States-the natural resources of the country were undeveloped. The Government was feeble it could enact no general commercial regulations from the want of power-could make no provision for its necessary expenditures or the payment of the public debt, from an inability to obtain revenue-could command no respect abroad,

from the prevalence of conflicting counsels at home. In the midst of these embarrassments, the Convention was held at Philadelphia, which framed the present Constitution, and the powers which it contains were given to remedy the evils existing, when it was formed. Being established for certain purposes by the people of the several States who then had, and who still have State Legislatures, those purposes were expressed, and the powers necessary to accomplish them were specially enumerated. These powers are, generally, to be exercised on external objects, as war, diplomatic intercourse, and foreign commerce. What concerns the lives, liberties, and property of the people, and their internal order, improvement and economy, are included within the province of the Legislatures of the States. This distinction marks the prominent boundaries between Federal and State jurisdiction, although, in some instances, it has been departed from, where it was judged expedient that some powers, more properly of a municipal description, should be exclusively vested in the Federal Government, or concurrently in it and the States. To effect the objects of the Constitution, the powers which it gives, are specified to carry them into execution, sometimes the means are expressed, but as this has frequently been omitted, in a separate paragraph, the Legislature is authorized "to make all laws which shall be necessary and proper," for that purpose. Such being the character of the Constitution; we know but one sound practical rule for its construction—the intention of its framers, to be collected from the nature of the instrument, and the words used to convey its meaning, according to their ordinary acceptation. As it was designed, that only certain powers should be conferred upon the General Government, they ought to be strictly construed—not in the sense of that term which we have adverted to and censured-not with the subtleties of verbal criticism and scholastic refinement-but as they would be understood by an individual of good sense and integrity, so that no addition should be made to the quantity or kind of power given, or because a great power had been granted, therefore, to annex to it another, inferior in degree. All the powers intended to be granted, having been agreed upon, they could, therefore, be enumerated; the means by which they were to be executed, could not be enumerated, because they could not be previously ascertained: they must depend upon the internal situation and resources of the country-upon the relations in which foreign nations stand towards it, and towards each other, and upon an infinity of contingencies not to be anticipated by human sagacity, VOL. II.-NO. 4.

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which would more or less enter into the expediency of measures to be adopted. We should, nevertheless, not say, that the means for the execution of powers should be literally construed, according to the import of that word, as already commented upon by us. Although conscious that we are about to express an opinion, which has by many been criticised and condemned, yet, after long and serious deliberation, we can conceive no better rule to direct the judgment in deciding upon the means to be used in the execution of a power, than that which is contained in the following passage of the case of McCulloch and the State of Maryland :-" Let the end be legitimate, let it be within the scope of the Constitution," (by which we understand, let the power be enumerated)" and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." This rule will, doubtless, leave open a wide field for argument; but can any substitute for it so unexceptionable, be suggested? It has, we are aware, been insisted, that only those means which are strictly necessary shall be employed. It will not be denied, that the means to effect an object, must often be various: if various, a choice must be exercised among them; in exercising this choice, would not opinions differ as much in determining which of them was that which was strictly necessary, or which of them was the most strictly necessary, as in selecting that which was the most appropriate, and best adapted to the end? If the rule is to be that the means strictly necessary, must be adopted, is it intended, that the rule shall govern, when by adhering to it, the object of the power cannot be obtained? We feel no hesitation in answering, that it is not; for the absurdity is not to be imagined, that the Constitution has given a power which cannot be executed. What then must be the rule? To take that mean, which departing as little as possible from strict construction, will accomplish the object of the power, when strict construction will not. So far, we are confident, that the most rigid constructionist will go with us; and with the same confidence, we undertake to assert, that he will admit, that the power may be accomplished by the means, not partially but entirely, not defectively but beneficially, otherwise an equally absurd consequence would follow, that the Constitution has given a power which cannot be otherwise than imperfectly executed. In accord then with those from whom we apparently differ, so far as to agree with them, that no wider latitude is to be allowed in executing a power, thun is necessary for its perfect accomplishment, we ask either them, or the most subtle logician who ever framed a syllogism,

to point out, in intelligible language, the distinction between this proposition, and the one which we have submitted-that the "means which are appropriate, which are plainly adapted to the end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." Were it possible to discriminate between the rule which we recognize and that which is supposed to be in opposition to it, we should contend that our opponents, in arguing that the means to an end must be strictly necessary, depart more from the text of the Constitution than we do. The words of the Constitution are not "strictly necessary," but "necessary and proper;" and is not a law "neces sary and proper," or what is tantamount-appropriate, which, under the limitation we have stated, carries a power into execution? and if a law "strictly necessary" would not carry a granted power into execution, could it, without an evident solicism, be termed a "necessary and proper law?" Extremes meet: by restricting the exercise of means so rigidly, as to prevent their full and useful operation, we as palpably violate the letter and spirit of the Constitution, as by pursuing a diametrically opposite course. In the one case, Congress would be guilty of rendering nugatory a power which the people had granted for their own benefit, and thus paralyzing their will: in the other, it would be guilty of usurping a power which had never been granted. Let us illustrate, by a single example, the consequences resulting from what is called a "strictly necessary" execution of a power, and its execution pursuant to the rule which we contend for. By those who permit only the strict execution of a power, the right to construct military roads, in time of pcace is denied, although conceded to be allowable flagrante bello. If military roads can legitimately be made at all, it must be, because they are a proper means of carrying on war; and for the transportation of men, arms, provisions, &c., it would not be questioned, that they are so necessary, that, without them, war could not be waged, otherwise than disadvantageously, and, that its operations, from the want of them, would sometimes be totally frustrated: we apprehend also, that all this is admitted by the admission, that military toads may be constructed during war; and yet because they are not useful in time of peace, they shall, therefore, by the canons of strict construction, be delayed until the commencement of hostilities, when, frequently, it would be impracticable to construct them, and when, frequently, if constructed, they would not be finished, until too late to answer the purposes for which they were designed. By so construing the power, as to perfect military roads, in time of peace, they will effect the objects contemplated by them; and no greater power

is assumed in constructing them in peace than in war, a mere discretion is exercised in selecting the fittest period and opportunity for the execution of the work. By which of these modes are the spirit and true meaning of the Constitution best effectuated?We are no advocates for discretion in governments; but to a certain extent, it is unavoidable. They who require the strictest limitation upon the means to be used in the execution of a power, will admit that these means cannot be specified, but that the Legislature must direct them. Shall we not be as utterly incompetent to devise a rule for the regulation of discretion so controlled, as if it were not limited within such narrow bounds? Our protection against arbitrary legislation (so far as a written instrument can afford protection) must be drawn from another source the enumeration of powers in the Constitution. The test by which to try whether a law be constitutional, is the power from which it emanates. To be constitutional, it must be derived from some enumerated power, and clearly come within its scope and meaning. In construing a power, all discretion is excluded. If it exist, it must be authorized by the litera scripta of the instrument, which being a special grant for special purposes, admits no latitude of construction. This is the doctrine of the Supreme Court, to which a too rigid interpretation of constitutional power has never been attributed, although the opposite charge has not unfrequently been alleged against it.

"The government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge.

"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 to 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."t

Suppose a law to be passed, the constitutionality of which is questioned. To shew its unconstitutionality, we would examine the Constitution carefully, and if it prohibited the power exercised by the law, or contained no power warranting it, we should pronounce it to be unconstitutional. But if we could trace up the law to a subsisting power, and find it to be a mean to effect that power, although one more appropriate might be conceived,

* M'Culloch and the State of Maryland: 4 Wheat. Rep. p. 405.

+Ib. p. 401.