S. This is very different from a constructive power which is inferred not as inoluded in any speoial grant, but from the general tenor of the power and the general objects to be obtained. The objects of the constitution are stated in the pre amble, and they are to promote the common weal. But this is followed by the grant of specifio powers. And it is the dictate of common sense as well as technical reasoning that this object is to be ob.. tained by the due exercise of these powers. Where these fall short, none are granted ; and if they are inadequate, the same oonsequence follows. No one would infer from a power to sell a Ship one to sell a store, though the interest of the Orincipal would thereby be promoted. The general power to regu late commerce is useful, and it is given, and it may be carried to its whole extent by having incidental powers ingrafted upon it. A general power to regulate the descent and distribution of intestate estates and the execntion and proofs of wills would be on many accounts useful, but it is not granted. The utility of a power is never a ques tion. It must be expreesly granted, or incidental to an express power,—that is, necessary and proper to carry into execution one expressly granted,--.40 it does not exist.
, The other illustrative case is that of 16 Pet. 607 -679. It will be found on a careful examination that in this construotive power only is claimed. The only point involved in the case was the con stitutionality of the statute of Pennsylvania under which Trigg was indicted as a kidnapper. The court decided this to be nneonstitutional; and here its judicial functions properly terminated. But to arrive at this conclusion it was deemed necessary to determine that the general power of arresting and returning fugitives from labor and service was intrusted to the United States. It was not pretended that this power was expresely given, nor that it was incidental to any that was expressly given,—that is, conducive or proper to the execution of such a power. The mart say that "in the exposition of this part of the constitution we shall limit our., salves to the considerations which appropriately and exclusively belong to it, without laying down any rules of interpretation of a more general ntp. titre." 16 Pet. 610. They do not, as in McCul loch's case, quote the express authority to which this is incidental ; hut a general argument is offered to prove that this power is most safely lodged with the United States, rind that, therefore, it has heen placed there exclusively. If the canon of criticism whinh we have endeavored to establish, and which is generally admitted, is correct, the existence of such a power cannot be inferred from its utility.
9. It will be seen, also,that this ease stands in strong contrast with that of Martin vs. Hunter, I Wheat.304-326, in which the opinion was delivered by the mama judge. Thie was on the validity of the twenty-fifth section of the judiciary act, author izing an appeal from a final judgment of a state ()curt to the supreme court of the United States) and perhaps in no ease has the extent of the powers granted by the constitutiop been more fully and profoundly examined. In this ease the court say
that " the government of the United States oan chain no powers which are not granted by the con stitution ; and the powers actually granted must be such as are expretlely given, oo given by necteelary in/pi/cation ;"—that is, as the reasoning of the court in the whole opinion provea, such as are inoluded in the express powers, and are necessary, am proper to entry that into execution. And snob is the uniform language of the eourt whenever this question. has been presented. We think it may be averred ats a principle that admits of no exception, sanctioned at once by the aupreme court, by the artifieial reason of the law, and by common sentse, that the United States exercise only a delegated and have no constructive power, and that these must he sought in an express grant or be necessarily incidental to it.
10. We have seen that the constitution of the Uoited Statea and the laws made in pursuance of it are the supreme law of the land, and that of the true meaning of these the supreme court, which is nothing else than the United States, its the right ful expositor. This necessarily results from their sovereignty. But the United States government is one of delegated powers; and nothing is better established, both by teehnical reasoning and com mon sense, than this,—that a delegate can exercise only that power wkieh is delegated to him. Alt setts beyond are simply void, and ereate no obliga tion. It is a maxim alao of constitutional law that the powers of 'sovereignty not delegated to the United States are reserved to the states. But in so complex an affair as that of government, controversies will arise as to what its given and what is reserved,— doubte as to the dividing line. When this ia the ease, who is to decide ? Thia its a difficulty which the convention did not undertake to mettle.
To avoid all controversy se far ea poesible, the plainest wards in granting powera to the United States were used which the language affords. Still further to prealude doubta, the convention added, at the close of the seventeen powers expressly given, this clause: " To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by thie constitution in the government of the United States or in any department or officer-thereof." Art.1, 8. This clause containa no grant of power. But in the Articles of Confederation, which was a compact between the statee as independent sove reignties, the word EXPRESSLY was used; and a doubt troubled congress how far incidental powers were included. Articles of Confederation, art. 2. Thia clause was introduced to remove that duubt. It covered incidental, but not coostrnetite, powers.