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But could this be the object for which it was inserted? . . . Could it be necessary to say, that a
legislature should exercise legislative powers, in the shape of legislation? After allowing each house
to prescribe its own course of proceeding, after describing the manner in which a bill should become a
law, would it have entered into the mind of a single member of the convention, that an express power to
make laws was necessary, to enable the legislature to make them? That a legislature, endowed with legislative
powers, can legislate, is a proposition too self-evident to have been questioned.
But the argument on which most reliance is placed, is drawn from that peculiar language of this clause.
Congress is not empowered by it to make all laws, which may have relation to the powers conferred on the
government, but such only as may be necessary and proper for carrying them into execution. The
word necessary is considered as controlling the whole sentence, and as limiting the right to pass
laws for the execution of the granted powers, to such as are indispensable, and without which the power
would be nugatory. That it excludes the choice of means, and leaves to congress, in each case, that only
which is 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 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. Such is the character of human language,
that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common
than to use words in a figurative sense. Almost all compositions contain words, which, taken in their
rigorous sense, would convey a meaning different from that which is obviously intended. It is essential
to just construction, that many words which import something excessive, should be understood in a more
mitigated sense—in that sense which common usage justifies. The word "necessary" is of this
description. It has not a fixed character, peculiar to itself. It admits of all degrees of comparison;
and is often connected with other words, which increase or diminish the impression the mind receives of
the urgency it imports. A think may be necessary, very necessary, absolutely or indispensably necessary.
To no mind would the same idea be conveyed by these several phrases. The comment on the word is well illustrated
by the passage cited at the bar, from the 10th section of the 1st article of the constitution. It is,
we think, impossible to compare the sentence which prohibits a state from laying "imposts, or duties
on imports or exports, except what may be absolutely necessary for executing its inspection laws,"
with that which authorizes congress "to make all laws which shall be necessary and proper for carrying
into execution" the powers of the general government, without feeling a conviction, that the convention
understood itself to change materially the meaning of the word "necessary," by prefixing the
word "absolutely." This word, then, like others, is used in various senses; and, in its construction,
the subject, the context, the intention of the person using them, are all to be taken into view.
Let this be done in the case under consideration. The subject is the execution of those great powers on
which the welfare of a nation essentially depends. It must have been the intention of those who gave these
powers, to insure, so far as human prudence could insure, their beneficial execution. This could not be
done, by confining the choice of means to such narrow limits as not to leave it in the power of congress
to adopt any which might be appropriate, and which were conducive to the end. This provision is made in
a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises
of human affairs. To have prescribed the means by which government should, in all future time, execute
its powers, would have been to change, entirely, the character of the instrument, and give it the properties
of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which,
if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have
declared, that the best means shall not be used, but those alone, without which the power given would
be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience,
to exercise its reason, and to accommodate its legislation to circumstances. . . .
But the argument which most conclusively demonstrates the error of the construction contended for by the
counsel for the state of Maryland, is founded on the intention of the convention, as manifested in the
whole clause. . . . We think so for the following reasons: 1st. The clause is placed among the powers
of congress, not among the limitations on those powers. 2nd. Its terms purport to enlarge, not to diminish
the powers vested in the government. It purports to be an additional power, not a restriction on those
already granted. No reason has been, or can be assigned, for thus concealing an intention to narrow the
discretion of the national legislature, under words which purport to enlarge it. The framers of the constitution
wished its adoption, and well knew that it would be endangered by its strength, not by its weakness. Had
they been capable of using language which would convey to the eye one idea, and, after deep reflection,
impress on the mind, another, they would rather have disguised the grant of power, than its limitation.
If, then, their intention had been, by this clause, to restrain the free use of means which might otherwise
have been implied, that intention would have been inserted in another place, and would have been expressed
in terms resembling these. "In carrying into execution the foregoing powers, and all others,"
&c., "no laws shall be passed but such as are necessary and proper." Had the intention been
to make this clause restrictive, it would unquestionably have been so in form as well as in effect. .
. .
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. 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. . . .
After the most deliberate consideration, it is the unanimous and decided opinion of this court, that the
act to incorporate the Bank of the United States is a law made in pursuance of the constitution, and is
a part of the supreme law of the land. The branches, proceeding from the same stock, and being conducive
to the complete accomplishment of the object, are equally constitutional. It would have been unwise, to
locate them in the charter, and it would be unnecessarily inconvenient, to employ the legislative power
in making those subordinate arrangements. The great duties of the bank are prescribed; those duties required
branches; and the bank itself may, we think, be safely trusted with the selection of places where those
branches shall be fixed; reserving always to the government the right to require that a branch shall be
located where it may be deemed necessary.
It being the opinion of the court, that the act incorporating the bank is constitutional; and that the
power of establishing a branch in the state of Maryland might be properly exercised by the bank itself,
we proceed to inquire—
Whether the state of Maryland may, without violating the constitution, tax that branch? That the power
of taxation is one of vital importance; that it is retained by the states; that it is not abridged by
the grant of a similar power to the government of the Union; that it is to be concurrently exercised by
the two governments—are truths which have never been denied. But such is the paramount character of the
constitution, that its capacity to withdraw any subject from the action of even this power, is admitted.
The states are expressly forbidden to lay any duties on imports or exports, except what may be absolutely
necessary for executing their inspection laws. If the obligation of this prohibition must be conceded—if
it may restrain a state from the exercise of its taxing power on imports and exports—the same paramount
character would seem to restrain, as it certainly may restrain, a state from such other exercise of this
power, as is in its nature incompatible with, and repugnant to, the constitutional laws of the Union.
A law, absolutely repugnant to another, as entirely repeals that other as if express terms of repeal were
used.
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