remedy. Indeed, if such a lesson could have been lost upon the people, it would have been as humiliating to their intelligence, as it would have been offensive to their honour.

§ 597. The other part of the power, giving exclusive legislation over places ceded for the erection of forts, magazines, &c., seems still more necessary for the public convenience and safety. The public money expended on such places, and the public property deposited in them, and the nature of the military duties, which may be required there, all demand, that they should be exempted from state authority. In truth, it would be wholly improper, that places, on which the security of the entire Union may depend, should be subjected to the control of any member of it. The power, indeed, is wholly unexceptionable; since it can only be exercised at the will of the state; and it is therefore placed beyond all reasonable scruple.

§ 598. A great variety of cessions have been made by the states under this power. And generally there has been a reservation of the right to serve all state process, civil and criminal, upon persons found therein. This reservation has not been thought at all inconsistent with the provisions of the constitution; for the state process, quoad hoc, becomes the process of of the United States, and the general power of exclusive legislation remains with congress. Thus, these places are not capable of being made a sanctuary for fugitives, to exempt them from acts done within, and cognizable by, the states, to which the territory belonged; and at the same time congress is enabled to accomplish the great objects of the power.

§ 599. The power of congress to exercise exclusive jurisdiction over these ceded places is conferred on

that body, as the legislature of the Union; and cannot be exercised in any other character. A law passed in pursuance of it is the supreme law of the land, and binding on all the states, and cannot be defeated by them. The power to pass such a law carries with it all the incidental powers to give it complete and effectual execution; and such a law may be extended in its operation incidentally throughout the United States, if congress think it necessary so to do. But if intended to have efficiency beyond the district, language must be used in the act expressive of such an intention; otherwise it will be deemed purely local.

CHAPTER XXIV.

66

POWERS OF CONGRESS- -INCIDENTAL.

§ 600. THE next power of congress is, "to make "all laws, which shall be necessary and proper for carrying into execution the foregoing powers, and all "other powers vested by this constitution in the gov"ernment of the United States, or in any department, "or officer thereof."

§ 601. Few powers of the government were at the time of the adoption of the constitution assailed with more severe invective, and more declamatory intemperance, than this. And it has ever since been made a theme of constant attack, and extravagant jealousy. Yet it is difficult to perceive the grounds, upon which any objection can be maintained, or the logic, by which it can be reasoned out. The clause is only declaratory of a truth, which would have resulted by necessary and unavoidable implication from the very act of establishing the national government, and investing it with certain powers. What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution? What is a legislative power, but a power of making laws? What are the means to execute a legislative power, but laws? What is the power for instance, of laying and collecting taxes, but a legislative power, or a power to make laws to lay and collect taxes? What are the proper means of executing such a power, but necessary and proper laws? In truth, the constitutional operation of the government would be precisely the

same, if the clause were obliterated, as if it were repeated in every article. It would otherwise result, that the power could never be exercised; that is, the end would be required, and yet no means allowed. This would be a perfect absurdity. It would be to create powers, and compel them to remain for ever in a torpid, dormant, and paralytic state. It cannot, therefore, be denied, that the powers, given by the constitution, imply the ordinary means of execution; for without the substance of the power the constitution would be a dead letter.

§ 602. If, then, the clause imports no more, than would result from necessary implication, it may be asked, why it was inserted at all. The true answer is, that such a clause was peculiarly useful, in order to avoid any doubt, which ingenuity or jealousy might raise upon the subject. Much plausible reasoning might be employed by those, who were hostile to the Union, and in favour of state power, to prejudice the people on such a subject, and to embarrass the government in all its reasonable operations. Besides; as the confederation contained a positive clause, restraining the authority of congress to powers expressly granted, there was a fitness in declaring, that that rule of interpretation should no longer prevail. The very zeal, indeed, with which the present clause has been always assailed, is the highest proof of its importance and propriety. It has narrowed down the grounds of hostility to the mere interpretation of the terms.

§ 603. The plain import of the clause is, that congress shall have all the incidental and instrumental powers, necessary and proper to carry into execution all the express powers. 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. Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly an incident to an express power, and necessary and proper to its execution. If it be, then it may be exercised by congress. If not, congress cannot exercise it.

§ 604. But still a ground of controversy remains open, as to the true interpretation of the terms of the clause; and it has been contested with no small share of earnestness and vigour. What, then, is the true constitutional sense of the words "necessary and proper" in this clause? "in this clause? It has been insisted by the advocates of a rigid interpretation, that the word 'necessary" is here used in its close and most intense meaning; so that it is equivalent to absolutely and indispensably necessary. It has been said, that 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 given to this phrase, as to include any non-enumerated power, it will go far to include every one; for there is no one, which ingenuity might not torture into a convenience in some way or other to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one phrase. Therefore it is, that the constitution has restrained congress to the necessary means; that is to say, to those means, without which the grant of