This is very different from a constructive power which is inferred not as included in any special 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 preamble, and they are to promote the common weal. But this is followed by the grant of specific powers. And it is the dictate of common sense as well as technical reasoning that this object is to be obtained by the dub exercise of these powers. Where these fall short, none are granted ; and if they are inadequate, the same consequence follows. No olie would infer from a power to sell a ship one to sell a store, though the interest of the principal would thereby be promoted. The general power to regulate com merce is useful, and it is given, and it may be car ried 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 execution and proof of wills would be on many ac counts useful, but it is not granted. The utility of a power is never a question. It must be expressly granted, or incidental to an express power, that is necessary and proper to carry into execution one expressly granted,—or it does not exist.
The other illustrative case is that of Prigg v. Pennsylvania, 16 Pet. (U. S.) 539, 10 L. Ed. 1060. It will be found on a careful examination that in this a constructive power only is claimed. The only point involved in the case was the constitutionality of the statute of Penusyivania under which Prigg was indicted as a kidnapper. The court decided this to be unconstitutional; and here its judicial tune tons 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 pow er was expressly 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 court say that "in the exposition of this part of the constitution we shall limit ourselves to the consid erations which appropriately and exclusively belong to it, without laying down any rules of interpreta tion of a more general nature." Prigg v. Pennsyl vania, 16 Pet. (U. S.) 610, 10 L. Ed. 1060. They do not, as in McCulloch's case, quote the express au thority to which this is incidental ; but a general argument is offered to prove that this power is most safely lodged with the United States; and that, there fore, it has been placed there exclusively: If the canon of criticism which we have endeavored to es tablish, and which is generally admitted, is correct, the existence of such a power cannot be inferred from its utility.
It will be seen, also, that this base stands in strong contrast with that Of Martin v. Hunter's Lessee, 1
Wheat. (U. S.) 304, 4 L. Ed. 97, in which the opinion was delivered by the same judge. This was on the validity of the twenty-fifth section of the Judiciary Act, authorizing an appeal from a final judgment of a state court to the supreme court of the United States ; and perhaps in no case has the extent of the powers granted by the constitution been more fully and profoundly examined. In this case the court say that "the government of the United States can claim no powers which are not granted by the constitution ; and the powers actually granted must be such as are expressly given, or given by neces sary implication;" that is to say, as the reasoning of the court in the whole opinion proves, such as are included in the express powers, and are neces sary and proper to carry them into execution. Such was the uniform language of the court whenever the question was presented previously to the rebellion. The doctrine as now held, however, is somewhat broader, finding its exposition in the decision of the supreme court in the Legal Tender Cases, 12 Wall. (U. S.) 457, 20 L. Ed. 287. It is there said that it is not indispensable to the existence of any power claimed for the federal government that it can be found specified in the words of the constitution, or clearly and directly traceable to some one of the specified powers. Its existence may be deduced fair ly from more than one of the substantial powers expressiy defined, or from them all combined. It is allowable to group together any number of them and infer from them all that the power claimed has been conferred. Before any act of congress can be held to be unconstitutional, the court must be con vinced that the means adopted were not appropriate or conducive to the execution of any or all of the powers of congress, or of the government,—not ap propriate in any degree ; and of the degree, the court is not to judge, but congress.
We have seen that the constitution and the laws and treaties made in pursuance of it are the su preme law of the land, and that of the true mean ing of these the supreme court is the rightful ex positor. This necessarily results from their sover eignty. But the United States government is one of delegated powers ; and nothing Is better estab lished, both by technical reasoning and common sense, than this,—that a delegate can exercise only that power which is delegated to him. All acts be yond are simply void, and create no obligation. It is a maxim also of constitutional law that the pow ers 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 is given and what is reserved,— doubts as to the dividing line. When this is the case, who is to decide? This is a difficulty Which the convention did not undertake to settle.