all other powers vested by this constitution, in the government of the United States, or in any department thereof."

The counsel for the State of Maryland have urged various arguments, to prove that this clause, though in terms a grant of power, is not so in effect; but is really restrictive of the general right, which might otherwise be implied, of selecting means for executing the enumerated powers. . . .

But the argument on which most reliance is placed, is drawn from the 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. . . . 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. . . . 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, as 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. If we apply this principle of construction to any of the powers of the government, we shall find it so pernicious in its operation that we shall be compelled to discard it..

Take, for example, the power " to establish post-offices and post-roads." This power is executed by the single act of making the establishment. But, from this has been inferred the power and duty of carrying the mail along the post-road, from one post-office to another. And, from this implied power, has again been inferred the right to punish those who steal letters from the post-office, or rob the mail. It may be said, with some plausibility, that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post-office and post-road. This right is, indeed, essential to the beneficial exercise of the power, but not indispensably necessary to its existence. . . .

If this limited construction of the word "necessary" must be abandoned in order to punish, whence is derived the rule which would reinstate it, when the government would carry its powers into execution by means not vindictive in their nature? If the word "necessary" means "needful," "requisite," "essential," "conducive to," in order to let in the power of punishment for the infraction of law, why is it not equally comprehensive when required to authorize the use of means which facilitate the execution of the powers of government without the infliction of punishment? .

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. To waste time and argument in proving that, without it, congress might carry its powers into execution, would be not much less idle than to hold a lighted taper to the sun.

The result of the most careful and attentive consideration bestowed upon this clause is, that if it does not enlarge, it cannot be construed to restrain the powers of congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures, to

carry into execution the constitutional powers of the government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the constitution, if that instrument be not a splendid bauble.

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.

་

M'Culloch v. State of Maryland, 4 Wheaton, 401-421; in B. R. Curtis, Reports of Decisions in the Supreme Court of the United States (Boston, 1881), IV, 418-430 passim.

134. Foreign Commerce (1819)

BY LATE CONSUL DAVID BAILIE WARDEN

Warden went to France in 1804 as secretary of the United States minister. He acted as consul at Paris during the first months of Madison's administration, and upon being appointed to the position continued to hold it for many years. He was an author, a man of varied learning, and a member of the French Academy. - Bibliography: Channing and Hart, Guide, § 174.- For other articles on the commerce, see Nos. 20, 22, 129 above.

IN

N commerce and navigation, the progress of the United States has been rapid beyond example. Besides the natural advantages of excellent harbours, extensive inland bays and navigable rivers, it has been greatly in favour of their commerce, that it has not been fettered by monopolies or exclusive privileges. Goods or merchandise circulate through all the states free of duty, and a full drawback, or restitution of duties of importation, is granted upon articles exported to a foreign port, in the course of the year in which they have been imported. Commerce is considered by all those engaged in it as a most honourable employment. In the sea-port towns, the richest members of society are merchants. Youths of sixteen are sent abroad as factors, or

supercargoes, to every commercial country, intrusted with the management of great concerns. Stimulated by the prospect of independence, they study the manufactures and markets of foreign states; the quality, value, and profits of every cominercial article, while the youth of other countries, of the same age and rank, have not formed a thought of a provision for future life. Maritime and commercial business is executed with more celerity and less expence than in any other country. Vessels in the ports of the United States are laden and unladen in the course of a few days, whilst in those of other countries, as many months are required for the same purposes, owing to tedious regulations and less enterprise. Merchant vessels are built and prepared for sea in the course of four or five months, and they sail faster than those of any other country. The schooners constructed at Baltimore, and known by the name of "pilot-boat schooners," have often sailed with a cargo from an American to an English or French port in seventeen or eighteen days. The American seamen are extremely active and enterprising. Sloops of sixty tons, and eleven men, have sailed from Albany, (160 miles up the Hudson's river,) to the coast of China. The first of this description which arrived there was believed by the natives of the country to be the long-boat of a large merchant vessel, which they vainly looked for during several days. Nantucket sloops of eighty tons, with ten men, double Cape Horn, and pursue the whale fishery in the South Seas. With similar vessels, numerous voyages have been made from the port of New York to the cold regions of Southern Georgia, for the skins and oil of seals and sea-elephants. The American whalemen, after visiting the south-western coast of New Holland, and California, the Malouin, or Falkland, and other isles, touch for refreshments at the Cape of Good Hope, at the Sandwich Islands, or ports of Chili. A commerce with the Fegee Islands has been carried on by small vessels in trifling articles of hard-ware, which they exchanged for sandal-wood; and with this article they proceeded to Canton, where it was sold for the purpose of incense in religious ceremonies, at the rate of 400 dollars per ton. The American pilot-boats have lately visited the ports of Santa Fe, Caraccas, and Buenos Ayres, for the commerce in dollars and raw materials. Without any previous knowledge of routes, winds, tides, or harbours, the American whalemen and pilot-boat seamen have visited every coast, and, to the astonishment of Europe, have made shorter voyages than old and experienced navigators. Falkland's Island, which seemed too remote and romantic an object for the grasp of national ambition, is

but a stage and resting place in the progress of their victorious industry. "No sea but what is vexed with their fisheries, no climate that is not witness to their toils. ["] Since the commencement of the war in 1812, the American public and private armed vessels have visited every sea, from Kamschatka to the Irish Channel, and have captured British merchant ships at the very mouths of British harbours. The great injury done to the commerce of England during that war, notwithstanding her powerful navy, bears strong testimony to the activity and enterprise of American seamen. More than 1700 of her vessels were captured during the course of the war; and it has been stated, that only one out of three American vessels employed in commerce were taken by the English during the same period. The state of European warfare, from the year 1802 to 1812, gave to America almost all the carrying trade, or freight of the commercial world, valued at ten per cent. upon the capital. The United States also gained five per cent. by exchange, so that the annual profits of commerce and foreign navigation have been estimated at fifteen per cent. upon the capital.

D. B. Warden, A Statistical, Political, and Historical Account of the United States of North America (Edinburgh, etc., 1819), III, 280-286.

135. A Southern View of the Missouri Question

(1820)

BY THOMAS JEFFERSON

He was no

Jefferson in retirement and extreme age was still a political mentor. more an advocate of slavery than when he wrote the Notes on Virginia (see No. 10 above), but he could be reconciled to its continuance by weaker arguments. The Missouri Compromise was the first of the great measures that followed the spirit of mutual accommodation found in the Constitution itself. - For Jefferson, see No. 10 above. Bibliography: Channing and Hart, Guide, § 177.

A. TO WILLIAM SHORT

LTHOUGH I had laid down as a law to

[April 13, 1820.] Amyself, never to write, talk, or even think

of politics, to know nothing of public affairs, and therefore had ceased to read newspapers, yet the Missouri question aroused and filled me with alarm. The old schism of federal and republican threatened nothing, because it existed in every State, and united them together by