making the decision. Yet we must notice that when an attempt was made in our Constitution to place some powers in the central government, and to leave others in the states, the line of division drawn was an indefinite one, hence the chance came for such a struggle. We have already noticed the many factors which were tending to localism, and the counter ones which were developing a feeling of nationality as well as the fact. In this paper the larger part of the extracts are to show the varying interpretations of the Constitution connected with this idea of nationality. This discussion played in the main around the question of implied powers, the location of sovereignty, the slavery issue, and the right of determining the institutions of the territories. It would be claiming too much to say that in treating these topics one had exhausted the subject. In the brief space allotted me I can do no more than give a fair insight into the first two, and touch the others.

IMPLIED POWERS.

The doctrine of "implied powers" first arose in connection with the establishment of the national bank in 1791. On this subject I have let Jefferson, Hamilton, and Madison speak. Mr. Jefferson in his letter to President Washington uses the following arguments:

It is an established rule of construction when a phrase will bear either of two meanings to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless. Certainly no such universal power was meant to be given them. It was intended to lace them up straightly within the enumerated powers, and those without which, as means, these powers could not be carried into effect. It is known that the very power now proposed as a means, was rejected as an end, by the convention which formed the constitution.

The second general phrase is, "to make all laws necessary and proper for carrying into execution the enumerated powers." But they can all be carried into execution without a bank.

The constitution allows only the means which are "necessary," not those which are merely "convenient" for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to every one, for there is not one which ingenuity may not torture into a convenience in some instance or other, It would swallow up all the delegated powers, and reduce the whole to one power as before observed. Therefore it was that the constitution restrained them to the necessary means. Can it be thought that the constitution intended that for a shade or two of convenience, more or less, congress should be authorized to break down the most ancient and fundamental laws?-Writings of Thomas Jefferson, vol. V (1895 ed.), pp. 286-289.

Hamilton argues for the constitutionality of the bank, and in doing this struck a great blow for nationality. Some of the most telling points of his argument are these:

Now it appears to the Secretary of the Treasury that this general principle 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, namely, that every power vested in a 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 ends of such power, and which are not precluded by restrictions and exceptions specified in the constitution; or not immoral; or not contrary to the essential ends of political society.

Its not denied that there are implied as well as express powers, and that the former are as effectually delegated as the latter; and there is another

class of powers, which may be properly denominated resulting powers. It will not be doubted that if the United States should make a conquest of any of the territories of its neighbors they would possess sovereign jurisdiction over the conquered territory. This would

rather be the result from the whole mass of the powers of the government, and from the nature of political society, than a consequence of either of the powers specially enumerated.

Then as a power of erecting a corporation may as well be implied as any other thing; it may as well be employed as an instrument or means of carrying into execution any of the specified powers, as any other instrument or means whatever.

.. Necessary often means no more than needful, requisite, incidental, useful, or conducive to, . . and

it is the true one in which it is to be understood as used in the constitution. The whole turn of the clause containing it indicates that it was the intent of the convention, by that clause, to give a liberal latitude to the exercise of the specified powers. The expressions have a peculiar comprehensiveness. They are: "To make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the constitution in the government of the United States, or in any department or office thereof." To understand the word as the Secretary of State does would be to depart from its obvious and popular sense and to give it a restrictive operation, an idea never before entertained. It would be to give it the same force as if the word absolutely or indispensably had been prefixed to it.

[It is] no valid objection to the doctrine to say that it is calculated to extend the powers of the government throughout the entire sphere of state legislation. The same thing has been said, and may be said with regard to every exercise of power, by implication or construction. The moment the literal meaning is departed from there is a chance of error and abuse; and yet an adherence to the letter of its powers would at once arrest the motion of government. It is not only agreed on all hands that the exercise of constructive powers is indispensable, but every act which has been passed is more or less an exemplification of it.

That which declares the power of the President to remove officers at pleasure acknowledges the same truth.

It leaves, therefore, a criterion of what is constitu

tional and of what is not so. This criterion is the end to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end and is not forbidden by any particular provision of the constitution, it may safely be deemed to come within the compass of the national authority. There is also this further criterion, which may materially assist the decision. Does the proposed measure abridge a pre-existing 'right of any state or of any individual? If it does not, there is a strong presumption in favour of its constitutionality; and slighter relations to any declared object of the constitution may be permitted to turn the scale.-Works of Alexander Hamilton, vol. I, pp. 112-123.

Madison was in the House at this time, and had at first been the spokesman of the administration. On this question of the bank he sepa rated himself entirely from Hamilton, with whom he had so long worked, and became the leader, with Jefferson, of the newly forming Republican party. In Congress he said:

After some general remarks on the limitations of all political power, he took notice of the peculiar manner in which the Federal Government is limited. It is not a general grant, out of which particular powers are excepted; it is a grant of particular powers only, leaving the general mass in other hands. So it had been understood by its friends and its foes, and so it was to be interpreted.

The essential characteristic of the Government, as composed of limited and enumerated powers, would be destroyed if, instead of direct and incidental means any means could be used, which, in the language of the preamble to the bill, "might be conceived to be conducive to the successful conducting of the finances, or might be conceived to tend to give facility to the obtaining of loans.

The Doctrine of implication is always a tender one. The danger of it has been felt in other Governments.

The delicacy was felt in the adoption of our own;

the danger may also be felt if we do not keep close to our chartered authorities.

Mark the reasoning on which the validity of the bill depends! To borrow money is made the end, and the accumulation of capital implied as the means. The accumulation of capital is then the end, and a bank implied as the means. The bank is then the end, and a charter of incorporation, a monopoly, capital punishments, etc., implied as the means.

If implications thus remote and multiplied can be linked together, a chain may be formed that will reach every object of legislation, every object within the whole compass of political economy.

The latitude of interpretation required by the bill is condemned by the rule furnished by the constitution itself.

The danger of implied power does not arise from its assuming a new principle; we have not only practiced it often, but we can scarcely proceed without it; nor does the danger proceed so much from the extent of power as from its uncertainty.-Benton, Debates, vol. I, pp. 275, 276.

Fisher Ames.

The doctrine that powers may be implied which are not expressly vested in Congress has long been a bugbear to a great many worthy persons. They apprehend that Congress, by putting constructions upon the constitution, will govern by its own arbitrary discretion; and therefore that it ought to be bound to exercise the powers expressly given, and those only.

If Congress may not make laws conformably to the powers plainly implied, though not expressed in the frame of Government, it is rather late in the day to adopt it as a principle of conduct. A great part of our two years' labor is lost, and worse than lost to the public, for we have scarcely made a law in which we have not exercised our discretion with regard to the true intent of the constitution.-Ib., p. 279.

The question of the constitutionality of the bank came before the Supreme Court in 1819, in McCulloch vs. Maryland. Chief Justice Marshall wrote the opinion in the case, and held to the doctrine of implied powers. In this case