they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well-settled rule that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction.. We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred" (1).

§ 250. Implied powers. In McCulloch v. Maryland (2) the question arose whether Congress could charter a national bank. Congress has express power to collect taxes and borrrow money. Was the power to create a banking corporation fairly inferable from these? Chief Justice Marshall said:

“Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the Articles of Confederation excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. . . . A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit and of all the means

(1)

Gibbons v. Ogden, 9 Wheaton, pp. 187-89. (2) 4 Wheat., 316.

by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would 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 considering this question, then, we must never forget that it is a constitution we are expounding.

"The power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. No sufficient reason is, therefore, perceived, why it may not pass as incidental to those powers which are expressly given, if it be a direct mode of executing them. . . . [It is urged] Congress is not empowered to make all laws, which may have relation to the powers conferred on the government, but such only as may be 'necessary and proper' (3) for carrying them into execution [and], that it excludes choice of means and leaves to Congress, in each case, that one choice most direct and simple. . . . Is it true, that this is the sense in which the word 'necessary' is always used? Does it always import an absolute physical necessity, so strong that one thing, to which another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use in the common affairs of the world, or in approved authors, we find that it frequently

(3) Const., Art. I, sec. 8, § 18.

imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. . . . 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. 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 consist with the letter and spirit of the Constitution, are constitutional."

The creation of a national bank was thus upheld. Similarly, although the United States is nowhere expressly given the power of eminent domain, yet it may exercise it in the execution of other express powers (4).

§ 251. Powers implied from groups of other powers. "It is not indispensable to the existence of any power claimed for the Federal government that it can be found specified in the words of the Constitution, or clearly and directly traceable to some one of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers expressly defined, or from them all combined. It is allowable to group together any num

(4) Kohl. v. United States, 91 U. S., 367.

ber of them and infer from them all that the power claimed has been conferred" (5).

Thus, the Constitution gives the United States express power to punish only four crimes, counterfeiting, felonies committed on the high seas, offenses against the law of nations, and treason; but Congress has of course implied power to punish the breaking of any Federal law, and to protect prisoners in its custody (6). A very strong instance of implied Federal powers are the various acts making paper a legal tender money. See §§ 310, 311, below. Instances of other implied powers will be found in the sections upon various Federal powers following this.

§ 252. Exclusive and concurrent powers. When a power is granted to the United States in the Constitution is it therefore denied to the states (exclusive power), or may they also exercise it so long as their laws are not inconsistent with Federal laws on the subject (concurrent power)? The accepted rule has been judicially stated as follows: "The states may exercise concurrent or independent power in all cases but three: 1. Where the power is lodged exclusively in the Federal Constitution. 2. Where it is given to the United States and prohibited to the states. 3. Where, from the nature and subjects of the power, it must necessarily be exercised by the Federal government exclusively” (7).

An instance of the first case is the power to borrow money on the credit of the United States. The states

(5) Legal Tender Cases, 12 Wall., 457, 534. (6) Logan v. United States, 144 U. S., 263. (7) Gilman v. Philadelphia, 3 Wall., 713.

never had such a power, it being lodged exclusively in the Constitution. An instance of the second case is the power to tax imports. The states originally had this, but the Constitution gives it to Congress and prohibits the states to exercise it. An instance of the third class is the power of naturalization, which the states once had, which is given to Congress, but is not expressly prohibited to the states. The nature of the power is such that Congress alone may exercise it. See § 88, above.

Instances of powers that are concurrent because not falling within any of these classes are the power to pass bankruptcy laws (8), to tax, and to make certain regulations of commerce (see § 284, below).

§ 253. Purposes for which Federal powers may be exercised. When it is said that Congress has complete control over all powers granted to it, does this mean that Congress may exercise such powers for any purpose, or to secure any result that it pleases; or can even the granted powers be exercised only for some purposes within the scope of the Federal powers? An illustration will show how important is this question. Congress is given by the Constitution no power directly to regulate lotteries in a state. If a state charters a lottery and makes it a part of its revenue system, it is acting wholly within its reserved powers, and Congress cannot directly interfere. Now Congress has control of the post-office. May Congress exercise its postal powers to exclude lottery matter from the mails-not for the sake of the post-office, nor in the exercise of any other Federal power, like that

(8) Sturges v. Crowninshield, 4 Wheat., 117.