It has very truly been said that out of the mass of sovereignty intrusted to the states was carved a part and deposited with the United States. But this was taken by the people, and not by the states as organized communities. The people are the fountain of sovereignty. The whole was originally with them as their own. The state governments were but trus tees acting under a derived authority, and had no power to delegate what was delegated to them. But the people, as the original fountain, might take away what they had lent and intrust it to whom they pleased. They had the whole title, and, as ab eolute proprietors, had the right of using or abusing, —jus Wendt et abutendi: A consequence of great importance flows from this fact. The laws of the United States act directly on individuals, and they are directly responsible and not mediately through the state governments. This ie the most important improvement made by our constitution over previous confederacies. As a corollary from this, if not more properly a part of it, the laws act only on states through individuals.. They are supreme over persona and cases, but do not touch the state: they act through them ; Mar tin v. Hunter, 1 Wheat. (U. S.) 368, 4 L. Ed. 97. If a state passes an ex post facto law, or passes a law impairing the obligation of contracts, or makes any thing but gold or silver a tender in payment of debts, congress passes no law which touches the state: it is sufficient that these laws are void, and when a ease is brought before the court, it, without any law of congress, will declare them void. They give no person an immunity, nor deprive any of a right. Again: should a state pass a law declaring war against a foreign nation, grant letters of mar que and reprisal, arm troops or keep ships of war in time of peace, individuals acting under such laws would be responsible to the United States. They might be treated and punished as traitors or pirates. Hut congress would and could pass no law against the state; and for this simple reason, because the state is sovereign. And it ie a maxim consecrated in public law ae well as common sense and the ne cessity of the case, that a sovereign is answerable for his acts only to his God and to his own con science.
The constitution 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, gives to the supreme court the right of interpreting them. But this court is but another name for the United States, and this power necessarily results from their sover eignty; for the United States would not be truly sovereign unless their interpretation as well ae the letter of the law governed. But this power of the court is confined to casee brought before them, and does not embrace principles independent of these cases. They have no power analogous to that of the Roman praetor of declaring the meaning of the constitution by edicts. Any opinion, however strong ly expressed, has no authority beyond the reasoning by which it is supported, and binds no one. But the point embraced in the case is as much a part of the law as though embraced in the letter of the law or constitution, and it binds 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 sovereign to which an appeal can be made.
Another question of great practical importance arose at an early period of our 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 intrust ed ; and such is the infirmity of human nature that those who are most jealous when out of power and seeking office are quite as ready practically to usurp it as any other. A general abrogation commonly precedes a real usurpation, to lull suspicion if for no other purpose. When the constitution was new, and before it had been fully considered, this diver sity of opinion was not unnatural, and was the sub ject of earnest argument, but is, we think, now set tled, and rightly, both on technical reasoning and on that of expediency. The question is between in cidental 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 im plied are sometimes used ae synonymous ; but in accurate reasoning there is a plain distinction be tween them, and the latter, in common use, comes nearer to constructive than to incidental.
The interpretation of powers is familiar to courts of justice, ae a great part of landed property in England and much in this country is held under powers. A more frequent example it that of com
mon 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, es tablished general rules. Among these no one is more immovably fixed than this, that the interpreta tion is strict and not liberal. 2 Kent 617 ; 4 id. 330. But this strictness does not exclude incidental pow ers. These are included in a general and express power, both in the common and technical use of lan guage. To take a familiar example. A merchant of Philadelphia or Boston has a cargo of tea arrive at New York, and by letter authorizes his correspond ent to sell it. This is the whole extent of the pow er. But it necessarily and properly includes that of advertising, of removing and exhibiting the goods, etc. But it would not authorize the sale of sugar, a horse, and much less a store or real estate. These powers are not incidental to the general power, nor included in it. Or we may take an example direct ly from the constitution itself. The United States has power "to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States." This includes the power to create and ap point all inferior officers and to do all subordinate acts necessary and proper to execute the general power: as, to appoint assessors, collectors, keepers, and disbursers of the public treasures. Without the 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 confined to any one, unless a particular mode is pointed out. Mc Culloch v. Maryland, 4 Wheat. (U. S.) 410, 4 L. Ed. 579. All that the constitution requires is that it should be necessary and proper. One consequence of this doctrine is that there must be a power ex pressly granted as a stock to bear this incidental power, or otherwise it would be ingrafted on nothing. A constructive power is one that is inferred, not from an express power, but from the general objects to be obtained from the grant, and, perhaps, in pri vate powers sometimes from the general language in which they are granted. The broad distinction between them may be illustrated by two cases that came before the United States Court. The first is McCulloch v. Maryland, 4 Wheat. (U. S.) 317, 4 L. Ed. 579. The question in that case was whether the act incorporating the Bank of the United States was constitutional, or whether it lay beyond the limits of the delegated powers and was, therefore, merely void as usurped or an excess of power. The author ity to create a corporation is nowhere expressly given, and if it exists it must be sought as incidental to some power that is specifically granted. The court decided that it was incidental to that of laying taxes as a keeper and disburser of the public treas ure. This power could be hxecuted only by, the ap pointment of agents ; and the United States might as well create an agent for receiving, keeping, and disbursing the public money as appoint a natural person or an artificial one already created. In the case of Osborn v. Bank, 9 Wheat. (U. S.) 859, 6 L. Ed. 204, the general question was presented again, and reargued, and the court reaffirmed their former decision, but, more distinctly than before, adding an important qualification. They might not. only create an artificial person, but clothe it with such powers and qualities as would enable it with rea sonable 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 specie might pay it where collected, and repay themselves by purchasing a bill of ex change in another place, and this could he conven iently and economically done only by a power of dealing in exchange generally, which when reduced to its last analysis is merely buying specie at one place and paying for it at another. It is in this way, and this only, that the bank got its general power of dealing in exchange,—that it le essential and proper to enable it to perform its principal duty, that of transferring the funds of the United States. Thus, the authority to create a bank is in cidental to that of receiving, keeping, and paying out the taxes, and ie comprehended under the specific power. The argument is principally derived from Hamilton's report on a bank, which proved satisfac tory to Washington, as that of Chief-Justice Mar shall has to the public at large.