The eonstitution and laws made in pursuance of it,—that is, laws within their granted powers,— and all treaties, are the supreme law of the land, art. 6 ; and the judicial power, art. 3,1 1, givee to the supreme court the right of interpreting them. But this court is but another name fur the United States, and this power nevessarily results from their sovereignty ; for the United States would not he truly sovereign without their interpretation as well as the letter of the law governed. But this power of the court is confined to cases brought before them, and does not embrace principles independent of these cases. They have no power analogous to that of the Roman prtetor of declaring the meaning of the constitution by edicts. Any opinion, however strongly expressed, has no authority beyond the reasoning by which it is supported, and binds no one. But the point embraced in the case is aa much a part of the law as though embraced in the letter of the law or constitution, and it hinds public functionaries, whether of the states or United States, as well as private persons; and this of necessity, as there is no authority above a sove reign to which an appeal can be made.
6. Another question of great practical import ance arose at an early period of taiir government. The natural tendency of all concentrated power is to augment itself. Limitations of authority are not to be expected from those to whom power is intrusted ; and such is the infirmity of human nature that those who are most jealous when out of pewer und seeking office are quite as ready practically to usurp it as any other. A general abro, gation commonly precedes a real usurpation, to lull suspicion if for no other purpose. When the con stitution was new, and before it had been fully considered, this diversity of opinion was not un natural, and was tho subject of earnest argument, but is, we thiek, now settled, and rightly, both on technical reasoning and on that of expediency. It is between incidental and constructive or implied powers. The government of the United States is one of delegated power. No general words are used from which a general power can be inferred. Incidental and implied are sometimes used ea synonymous; but in accurate reasoning there is a plain distinction between them, and the latter in common use comes nearer to constructive than to incidental.
The interpretation of powers is familiar to courts of justice, as a great pnrt of landed property in England and much in this conntry is held uncle' powers. A more frequent example is that of com moa agency, as every agent is created by a power. Courts whose professed object is to carry into effect the intentions of parties have, on this subject, established general rules. Among these ne one is more immovably fixed than this, that the inter pretation is strict and not liberal. 2 Kent, Comm 617; 4 id. 330. But this strictness does not ex elude incidental powers. These are inclnded in It general and express power, both in the common and technical use of language, To take a familiar exnmple. A merchant of Philadelphia or Boston has a cargo of tea arrive at New York, and by letter authorizea his oorrespondent to sell it. This is the whole extent of the power. But it neces sarily and properly includee that of advertising, of removing and exhibiting the goods, ete. But it would not nuthorize the sale of sugar, a horse, and much lese a store or real estate. These powere ars not incidental to the general power, nor included in it. Or we may take an example directly from the oonstitution itself. The United States has power
" to lay and oolleot taxes, duties, imposts, and excises, to pay, the debts and provide for the com mon defence and general welfare of the United States." This includee the power to create and appoint all inferior officers and to -do all subordi nate acts necessary and proper to execute the gene ral power : as, to appoint aeseesors, collectors, keepers and disbursere of the publio treasures. Without these subordinate powers the general power could not be executed. And when there is more than one mode by which this general power may be executed, it includes all. The agent is not con fined to any one, unless a particular mode is pointed out. 4 Wheat. 410. All that the constitution requires is that it should be necessary and proper. One consequenoe of thie doctrine is that there must he a power expressly granted se a stock to bear this incidental power, or otherwise it would ha ingrafted on nothing.
7. A constructive power is one that is inferred, not from an express povier, but from the general objects 'to be obtained from the grant, and, perhaps, in private powers sometimes from the general language in which they are granted. The broad distinction between them may be illustrated by two eases that came before the United States Court. The first is one we have already quoted, 2 Wheat. 317. The question in that case was whether the act incorporating the Bank of the United States was constitutional, or whether it lay bayoial the limits of the delegated powers and was, therefore, merely void as usurped or an excess of power. The authority to create s, corporation is nowhere expressly given, and if it exists it must be sought as incidental to some power that is specifically granted. The oourt decided that it was inoidental to that of laying taxes as a keeper and disburser of the publio treasure. This power could be exe ented only by' the appointment of agents; nnd the United States might as well create an agent for receiving, keeping, and diiibursing the public money as appoint a natural person or an artificial one already created. In the oase of Osborne vs. The United States Bank, 9 Wheat. 809, 860, the general question was presented again, and reargued, and the oourt reaffirmed their former decision, but, more die, tinotly than before, added an important qualifica tion. They might not only create an artificial person, but clothe it with such powers and (politico as would enable it with reasonable convenience to perform its specific duties. The taxes are collected at one end of the country and paid out at another, and the bank instead of removing the erpeoie might pay it where collected, and repay themselves by purchasing a bill of exchange in another place, and this could be conveniently and economically done only by El, power of dealing exchange generally, which when reduced to its last analysis is merely buying speoie ot one plaee and paying for it at another. It ie in this way, and this only, that the bank gets its general power of dealing in exehange,—that it is essential and proper to enable it to perform its principal duty, that of transferring the funds of the United States. Thue, the author, ity to create a bank is inoidental to that of recelv. ing,leaping, and paying out the toxin), and is com prehended under the opecifio power. The amt. mcnt re principally derived from Hamilton's report on a bank, which proved entisfactory to Washington, as that of Chief-Juetioe Morahan has to the publio at large.