to the power to inquire into the degree of its necessity. That would be passing the line which circumscribes the judicial department, and be treading on legislative ground.

The court therefore decided, that the law creating the Bank of the United States was one made in pursuance of the Constitution; and that the branches of the national bank, proceeding from the same stock, and being conducive to the complete accomplishment of the object, were equally constitutional.

The Supreme Court were afterwards led, in some degree, to review this decision, in the case of Osborn v. The United States Bank; (a) and they there admitted that Congress could not create a corporation for its own sake, or for private purposes. The whole opinion of the court in the case of M'Culloch v. The State of Maryland was founded on, and sustained by, the idea that the bank was an instrument which was necessary and proper for carrying into effect the powers vested in the government. It was created for national purposes only, though it was undoubtedly capable of transacting private as well as public business; and while it was the great instrument by which the fiscal operations of the government were effected, it was also trading with individuals for its own advantage. The bank, on any rational calculation, could not effect its object, unless it was endowed with the faculty of lending and dealing in money. This faculty was necessary to render the bank competent to the purposes of government, and, therefore, it was constitutionally and rightfully engrafted on the institution. (b) 1 (x)

(a) 9 Wheaton, 859, 860.

(b) It is worthy of notice that the power of Congress to establish a national bank, even under the articles of confederation, seems not, at the time, to have been much questioned; and Congress did actually approve of such a proposition on the 26th of May, 1781; and on the 31st of December following, they proceeded by ordinance to institute and incorporate the Bank of North America. Journals of Congress, vii. 87, 197. The constitutionality and validity of this ordinance were ably enforced by Judge

1 Legal Tender Cases. The most important discussion of the implied powers of Congress that has ever taken place, has arisen on the question of the constitutionality of the legal tender acts. The acts of 1862 and 1863 authorized the issue

of United States notes, and enacted that they should be lawful money and a legal tender in payment of all debts, public and private, within the United States, with certain exceptions. After a large

number of the state courts had decided

(r) The same reasoning makes the Farmers' Nat. Bank v. Dearing, 91 U. S. national bank act of 1864 constitutional.

29.

3. Taxation. The construction of the powers of Congress relative to taxation was brought before the Supreme Court, in Wilson. See Wilson's Works, iii. 397, and see supra, 212, n. The first and the second banks of the United States were established by statutes which received the approbation of Presidents Washington and Madison, and the constitutionality of the establishment of those banks being repeatedly declared by the Supreme Court of the United States, it was considered as a settled question, not open for further discussion. The Constitution declared that "all legislative powers therein granted should be vested in the Congress of the United States ;" and that "the executive power should be vested in a President of the United States ;" and that "the judicial power of the United States should be vested in one Supreme Court, and in such inferior courts as the Congress might from time to time ordain and establish ;" and that "the judicial power should extend to all cases in law and equity arising under the Constitution." (Art. 1, sec. 1; Art. 2, sec. 1; Art. 3, sec. 1, 2.) This simple and beautiful distribution of power would seem to be too clear to be mistaken, and too sacred to be invaded. The oath to support the Constitution necessarily includes, in its meaning and efficacy, the support of this distribution of power, and of the judicial cognizance of all cases arising under the Constitution. That cognizance extends, of course, to the question whether Congress have the constitutional power to incorporate a national bank. It is a case arising under the Constitution; and the decisions of the Supreme Court were in favor of the existence of such a power, and of the valid exercise of it in the establishment of a national bank. The words necessary and proper in the Constitution were not to be confined to means that were indispensable in the exercise of any express power; but extended to all means that Congress should deem expedient and useful, and conducive to the end proposed in the execution of any express power. That construction is binding and conclusive, as well upon the other departments of the govern. ment as upon the nation at large. The Congress, in whom is vested the legislative power, and the President, in whom is vested the executive power, are respectively bound to receive and obey that construction of the Constitution which has been duly settled by the judicial power. See, further, infra, 449, 456, note b.

that these enactments were within the
powers of Congress, the question whether
the act of 1862 was constitutional as to
debts contracted and due before its pas-
sage came before the Supreme Court of
the United States. The court, consisting
of eight judges, was not unanimous, and
decided against the act by a bare major-
ity. The arguments of the Chief Justice
in favor of the decision, and of Mr. Jus-
tice Miller for the dissenting members,
both went very much on the question
whether the act was a 66
'necessary and
proper" means of carrying out some of
the powers expressly given to Congress.
The further ground was adverted to that
the act was inconsistent with the "spirit
of the Constitution," as impairing the ob

ligation of contracts, taking private property for public use without compensation, &c. Hepburn v. Griswold, 8 Wall. 603. Some other arguments of a more technically legal character were called out by this decision. A letter to the American Law Review may be specially referred to, iv. 768. The question is not whether the Constitution prohibits the exercise of the power in question, but whether it grants it; of course, a power as to which the Constitution is silent, may be given by implication as a necessary or proper means of carrying out other powers which are expressly conferred; but it is hard to see how a limited power which is expressly given, and which does not come up to a desired height, can be enlarged as an in

1796, in the case of Hylton v. The United States. (c) By the act of *5th June, 1794, Congress laid a duty upon * 255 carriages for the conveyance of persons, and the question

was whether this was a direct tax, within the meaning of the Constitution. If it was not a direct tax, it was admitted to be rightly laid, under that part of the Constitution which declares that all duties, imposts, and excises shall be uniform throughout the United States; but if it was a direct tax, it was not constitutionally laid, for it must then be laid according to the census, under that part of the Constitution which declares that direct taxes shall be apportioned among the several states according to numbers. The Circuit Court in Virginia was divided in opinion on the question; but on appeal to the Supreme Court, it was decided, that the tax on carriages was not a direct tax, within the letter or meaning of the Constitution, and was therefore constitutionally laid.

(c) 3 Dallas, 171.

cident to some other express power; an express grant seems to exclude implications; the power to "coin money" means to strike off metallic medals (coin), and to make those medals legal tender (money); if the Constitution says expressly that Congress shall have power to make metallic legal tender, how can it be taken to say by implication that Congress shall have power to make paper legal tender? 7 Am. Law Rev. 146.

In December, 1870, the subject was brought once more before the Supreme Court, the composition of which had been changed in the mean time by the resignation of one judge and the appointment of two others, and the whole matter was allowed to be reargued. The court took considerable time to deliberate, and at length overruled their former decision, and affirmed the constitutionality of the acts, both as to contracts made before and after the passage, by a majority of five to four. Legal Tender Cases, Knox v. Lee; Parker v. Davis, 12 Wall. 457. The majority do not go further into the expediency of the measure than to show

that it was not improper under the circumstances, but devote themselves more to showing that it was not inconsistent with the spirit of the Constitution and to overthrowing the argument stated above. Mr. Justice Strong suggests, as an answer, that the grant of power to punish counterfeiting, treason, &c., has been held not to exclude an implied power to make other offences punishable (citing United States v. Marigold, 9 How. 560). See also United States v. Dewitt, 9 Wall. 41, 44, post, 439, n. 1. The implied power, moreover, need not be deduced from any one of those expressly granted, but may be inferred from the sum of all the powers which make the United States a nation, and the fact that whatever power there is over the currency is vested in Congress. Field, J., in his able dissenting opinion, inter alia, reproduces the argument stated above, with great force. 12 Wall. 649, 655. See Trebilcock v. Wilson, post, 326, n. 1; Railroad Co. v. Johnson, 15 Wall. 195. [See especially Legal Tender Case, 110 U. S. 421.]

The question was deemed of very great importance, and was elaborately argued. It was held that a general power was given to Congress to lay and collect taxes of every kind or nature, without any restraint. They had plenary power over every species of taxable property, except exports. But there were two rules prescribed for their government: the rule of uniformity, and the rule of apportionment. Three kinds of taxes, viz. duties, imposts, and excises, were to be laid by the first rule; and capitation, and other direct taxes, by the second rule. If there were any other species of taxes, as the court seemed to suppose there might be, that were not direct, and not included within the words "duties, imposts, or excises," they were to be laid by the rule of uniformity or not, as Congress should think proper and reasonable.

*

The Constitution contemplated no taxes as direct taxes, but such as Congress could lay in proportion to the census; and the rule of apportionment could not reasonably apply to a tax on carriages, nor could the tax on carriages be laid by that rule, without very great inequality and injustice. If two states, equal in census, were each to pay 8,000 dollars, by a tax on *256 carriages, and in one state there were 100 carriages, and in another 1,000, the tax on each carriage would be ten times as much in one state as in the other. While A., in the one state, would pay for his carriage eight dollars, B., in the other state, would pay for his carriage eighty dollars. In this way, it was shown by the court, that the notion that a tax on carriages was a direct tax, within the purview of the Constitution, and to be apportioned according to the census, would lead to the grossest abuse and oppression. This argument was conclusive against the construction set up, and the tax on carriages was considered as included within the power to lay duties; and the better opinion seemed to be, that the direct taxes contemplated by the Constitution were only two, viz., a capitation, or poll tax, and a tax on land.1 (x) The court concluded that

1 This is sustained by the language of the Supreme Court in later cases, with the possible addition of taxes on personal

(x) See Springer v. United States, 102 U. S. 586; Scholey v. Rew, 23 Wall. 331; Minot v. Winthrop, 161 Mass. 113, 119,

property by general valuation and assessment of the various descriptions possessed within the several states. Chief Justice

128. The Federal income tax of 1894 upon personal "gains, profits, and income," is unconstitutional, as being a

the tax on carriages was an indirect tax on expense or consumption, and, therefore, properly laid, pursuant to the rule of uniformity.

In Loughborough v. Blake, (a) the power of taxation was again brought under judicial discussion. The question was immediately of a local nature, and it was, whether Congress had the right to impose a direct tax upon the unrepresented District of Columbia; but there were principles involved in the decision

(a) 5 Wheaton, 317.