From McCulloch v.

« our system shall exist.

In discussing these questions, the conflicting powers of the General and State Governments must be brought into view, and the supremacy oftheir respective laws, when they are in opposition, must be settled. If any one proposition could command the universal assent of mankind, we might expect it would be this—that the Government of the Union, though limited in itspowers, is supreme within its sphere of action.

This would seem to result necessarily from its nature.

It is the Government of all; its powers are delegated by all; itrepresents all, and acts for all.

Though any one State may be willing to control its operations, no State is willing to allow others to control them.

The nation, on thosesubjects on which it can act, must necessarily bind its component parts.

But this question is not left to mere reason; the people have, in express terms, decided it bysaying, 'this Constitution, and the laws of the United States, which shall be made in pursuance thereof,' 'shall be the supreme law of the land,' and by requiring thatthe members of the State legislatures and the officers of the executive and judicial departments of the States shall take the oath of fidelity to it.

The Government ofthe United States, then, though limited in its powers, is supreme, and its laws, when made in pursuance of the Constitution, form the supreme law of the land,'anything in the Constitution or laws of any State to the contrary notwithstanding.' Among the enumerated powers, we do not find that of establishing a bank or creating a corporation.

But there is no phrase in the instrument which, like the Articlesof Confederation, excludes incidental or implied powers and which requires that everything granted shall be expressly and minutely described.

Even the 10thAmendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word 'expressly,' and declares only that thepowers 'not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people,' thus leaving the question whether the particularpower which may become the subject of contest has been delegated to the one Government, or prohibited to the other, to depend on a fair construction of the wholeinstrument.

The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the Articles ofConfederation, and probably omitted it to avoid those embarrassments.

A Constitution, to contain an accurate detail of all the subdivisions of which its great powerswill admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by thehuman mind.

It would probably never be understood by the public.

Its nature, therefore, requires that only its great outlines should be marked, its important objectsdesignated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.

That this idea was entertained by theframers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language.

Why else were some of the limitations foundin the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive term which might prevent itsreceiving a fair and just interpretation.

In considering this question, then, we must never forget that it is a Constitution we are expounding. Although, among the enumerated powers of Government, we do not find the word 'bank' or 'incorporation,' we find the great powers, to lay and collect taxes; toborrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies.

The sword and the purse, all the external relations,and no inconsiderable portion of the industry of the nation are intrusted to its Government.

It can never be pretended that these vast powers draw after them others ofinferior importance merely because they are inferior.

Such an idea can never be advanced.

But it may with great reason be contended that a Government intrustedwith such ample powers, on the due execution of which the happiness and prosperity of the Nation so vitally depends, must also be intrusted with ample means fortheir execution.

The power being given, it is the interest of the Nation to facilitate its execution.

It can never be their interest, and cannot be presumed to have beentheir intention, to clog and embarrass its execution by withholding the most appropriate means.

Throughout this vast republic, from the St.

Croix to the Gulf ofMexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported.

The exigencies of the Nation may requirethat the treasure raised in the north should be transported to the south that raised in the east, conveyed to the west, or that this order should be reversed.

Is thatconstruction of the Constitution to be preferred which would render these operations difficult, hazardous and expensive? Can we adopt that construction (unless thewords imperiously require it) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding theirexercise, by withholding a choice of means? If, indeed, such be the mandate of the Constitution, we have only to obey; but that instrument does not profess toenumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, if the existence of such a being be essential,to the beneficial exercise of those powers.

It is, then, the subject of fair inquiry how far such means may be employed. It is not denied that the powers given to the Government imply the ordinary means of execution.

That, for example, of raising revenue and applying it to nationalpurposes is admitted to imply the power of conveying money from place to place as the exigencies of the Nation may require, and of employing the usual means ofconveyance.

But it is denied that the Government has its choice of means, or that it may employ the most convenient means if, to employ them, it be necessary toerect a corporation.

On what foundation does this argument rest? On this alone: the power of creating a corporation is one appertaining to sovereignty, and is notexpressly conferred on Congress.

This is true.

But all legislative powers appertain to sovereignty.

The original power of giving the law on any subject whatever is asovereign power, and if the Government of the Union is restrained from creating a corporation as a means for performing its functions, on the single reason that thecreation of a corporation is an act of sovereignty, if the sufficiency of this reason be acknowledged, there would be some difficulty in sustaining the authority ofCongress to pass other laws for the accomplishment of the same objects.

The Government which has a right to do an act and has imposed on it the duty of performingthat act must, according to the dictates of reason, be allowed to select the means, and those who contend that it may not select any appropriate means that oneparticular mode of effecting the object is excepted take upon themselves the burden of establishing that exception. The creation of a corporation, it is said, appertains to sovereignty.

This is admitted.

But to what portion of sovereignty does it appertain? Does it belong to one morethan to another? In America, the powers of sovereignty are divided between the Government of the Union and those of the States.

They are each sovereign withrespect to the objects committed to it, and neither sovereign with respect to the objects committed to the other.

We cannot comprehend that train of reasoning, whichwould maintain that the extent of power granted by the people is to be ascertained not by the nature and terms of the grant, but by its date.

Some State Constitutionswere formed before, some since, that of the United States.

We cannot believe that their relation to each other is in any degree dependent upon this circumstance.Their respective powers must, we think, be precisely the same as if they had been formed at the same time.

Had they been formed at the same time, and had thepeople conferred on the General Government the power contained in the Constitution, and on the States the whole residuum of power, would it have been assertedthat the Government of the Union was not sovereign, with respect to those objects which were intrusted to it, in relation to which its laws were declared to besupreme? If this could not have been asserted, we cannot well comprehend the process of reasoning which maintains that a power appertaining to sovereignty cannotbe connected with that vast portion of it which is granted to the General Government, so far as it is calculated to subserve the legitimate objects of that Government.The power of creating a corporation, though appertaining to sovereignty, is not, like the power of making war or levying taxes or of regulating commerce, a greatsubstantive and independent power which cannot be implied as incidental to other powers or used as a means of executing them.

It is never the end for which otherpowers are exercised, but a means by which other objects are accomplished.

No contributions are made to charity for the sake of an incorporation, but a corporationis created to administer the charity; no seminary of learning is instituted in order to be incorporated, but the corporate character is conferred to subserve the purposesof education.

No city was ever built with the sole object of being incorporated, but is incorporated as affording the best means of being well governed.

The power ofcreating a corporation is never used for its own sake, but for the purpose of effecting something else.

No sufficient reason is therefore perceived why it may not passas incidental to those powers which are expressly given if it be a direct mode of executing them. But the Constitution of the United States has not left the right of Congress to employ the necessary means for the execution of the powers conferred on theGovernment to general reasoning.

To its enumeration of powers is added that of making “all laws which shall be necessary and proper for carrying into execution theforegoing powers, and all other powers vested by this Constitution in the Government of the United States or in any department thereof.” The counsel for the State ofMaryland 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 rightwhich might otherwise be implied of selecting means for executing the enumerated powers.

In support of this proposition, they have found it necessary to contendthat this clause was inserted for the purpose of conferring on Congress the power of making laws.

That, without it, doubts might be entertained whether Congresscould exercise its powers in the form of legislation.… 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 mayhave 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. »