Page:Nature and Character of our Federal Government.djvu/120

 powers, and by what rules are they to be ascertained and defined?

The only source from which these incidental powers are derived is that clause of the Constitution which confers on congress the power "to make all laws which are necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." The true character of this clause cannot be better given than in the words of the author himself: "It neither *enlarges any power specifically granted, nor is it a grant of any new power to congress. But it is merely a declaration, for the removal of all uncertainty, that the means of carrying into execution, those otherwise granted, are included in the grant." His general reasoning upon the subject is very lucid, and, to a certain extent, correct and convincing. He contends that the word "necessary" is not to be taken in its restricted sense, as importing absolute and indispensable necessity, but is to be understood in the sense of "convenient," "useful," "requisite;" as being such that, without them, "the grant would be nugatory." The dangerous latitude implied by this construction, he thinks sufficiently restrained by the additional word "proper," which implies that the means shall be "constitutional and bona fide appropriate to the end." In all this he is undoubtedly correct; but the conclusion which he draws from it, cannot be so readily admitted. "If," says he, "there be any general principle which is inherent in the very definition of government, and essential to every step of the progress to be made by that of the United States, it is that every power vested in the government is, in its nature, sovereign, and includes, by force of the term, a right to employ all the means requisite, and fairly applicable to the attainment of the end of such power, unless they are excepted in the Constitution, or are immoral, or are contrary to the essential objects of political society." This is by no means a legitimate conclusion from his own fair and forcible reasoning. The doctrine here is, in effect, that the federal government is absolutely unrestricted in the selection and use of the means of executing its own powers, except only so far as those means are excepted in the