Slike strani

the State, and can no longer exercise any civil or political rights under the laws of the State. But if there has been no cession by the State, of a particular place, although it has been constantly occupied and used, under purchase, or otherwise, by the United States, for a fort, arsenal, or other constitutional purpose, the State jurisdiction still remains complete and perfect.

§ 205. Upon a recent occasion, the nature and effect of the exclusive power of legislation, thus given by the Constitution in these ceded places, came under the consideration of the Supreme Court, and was much discussed. It was argued, that all such legislation by Congress was purely local, like that exercised by a territorial Legislature; and was not to be deemed legislation by Congress in the character of the Legislature of the Union. The object of the argument was to establish, that a law, made in or for such ceded places, had no extra-territorial force or obligation, it not being a law of the United States. The reasoning of the Court affirming, that such an act was a law of the United States, and that Congress, in passing it, acted as the Legislature of the Union, can be best conveyed in their own language, and would be impaired by an abridgement, and therefore is omitted as incompatible with the design of the present work.


General Power to make Necessary and Proper Laws.

§ 206. The next power of Congress is, “to make all laws, which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department, or officer thereof."

§ 207. This clause is merely declaratory of a truth, which would have resulted by necessary implication from the act of establishing a National Government, and investing it with certain powers. If a power to do a thing is

given, it includes the use of the means, necessary and proper, to execute it. If it includes any such means, it includes all such means ; for none can, more correctly than others, be said exclusively to appertain to the power; and the choice must depend upon circumstances, to be judged of by Congress.' What is a power, but the ability or faculty of doing a thing ? What is the ability to do a thing, but the power of employing the means necessary to its execution ? What is a legislative power, but a power of making laws ? What are the means to execute a legislative power, but laws? What is the power, for instance, of laying and collecting taxes, but a legislative power, or a power to make laws to lay and collect taxes? What are the

proper means of

executing such a power, but necessary and proper laws? In truth, the constitutional operation of the government would be precisely the same, if the clause were obliterated, as if it were repeated in every article. It would otherwise re sult, that the power could never be exercised ; that is, the end would be required, and yet no means allowed. This would be a perfect absurdity. It would be to create powers, and compel them to remain for ever in a torpid, dormant, and paralytic state. It cannot, therefore, be denied, that the powers, given by the Constitution, imply the ordinary means of execution ; for, without the substance of the power, the Constitution would be a dead letter. If it should be asked, why, then, was the clause inserted in the Constitution ; the answer is, that it is peculiarly useful, in order to avoid any doubt, which ingenuity or jealousy might raise upon the subject. There was also a clause in the Articles of Confederation, which restrained the authority of Congress to powers expressly granted ; and, therefore, it was highly expedient to make an explicit declaration, that that rule of interpretationi, which had been the source of endless embarrassments under the Confederation, should no longer prevail. The Continental Congress had been compelled, in numerous instances, to disregard that limitation, in order to escape from the most absurd and distressing consequences. They had been driven to the dangerous experiment of violating the Confederation, in order to preserve it.

§ 208. The plain import of the present clause is, that Congress shall have all the incidental and instrumental powers, necessary


proper to carry into execution the other express powers; not merely such as are indispensably necessary in the strictest sense, (for then the word “proper" ought to have been omitted,) but such also as are appropriate to the end required. Indeed, it would otherwise be difficult to give any rational interpretation to the clause ; for it can scarcely be affirmed, that one means only exists to carry into effect any of the given powers; and if more than one should exist, then neither could be adopted, because neither could be shown to be indispensably necessary. The clause, in its just sense, then, does not enlarge any other power, specifically granted; nor is it the grant of any new power. It is merely a declaration, to remove all uncertainty, that every power is to be so interpreted, as to include suitable means to carry it into execution. The very controversies, which have since arisen, and the efforts, which have since been made, to narrow down the just interpretation of the clause, demonstrate its wisdom and propriety. The practice of the government, too, has been in conformity to this view of the matter. There is scarcely a law of Congress, which does not include the exercise of implied powers and means. This might be illustrated by abundant examples. Under the power to establish post offices and post roads,” Congress have proceeded to make contracts for the carriage of the mail, have punished offences against the establishment, and have made an infinite variety of subordinate provisions, not one of which is found expressly authorized in the Constitution. A still more striking case of implied power is, that the United States, as a government, have no express authority given to make any contracts ; and yet it is plain, that the government could not go on for an hour without this implied power.

§ 209. There are many other cases, in which Con. gress have acted upon implied powers, some of which have given rise to much political discussion, and controversy ; but it is not within the design of this work to examine those cases, or to express any opinion respecting



them. It is proper, however, that the reader should be apprized, that among them, are the questions respecting the power of Congress to establish a national bank; to make national roads, canals, and other internal national improvements; to purchase cessions of foreign territory, (such, for example, as Louisiana and Florida ;) to lay embargoes, without


fixed limitation of the time of their duration ; and to prohibit intercourse or commerce with a foreign nation for an unlimited period.

§ 210. And here terminates the eighth section of the Constitution professing to enumerate the powers of Congress. But there are other clauses, delegating express powers, which, though detached from their natural connection in that instrument, should be here brought under review, in order to complete the enumeration.


Punishment of Treason.— State Records.

§ 211. The third clause of the third article contains a constitutional definition of the crime of treason, (which will be reserved for a separate examination,) and then proceeds, in the same section, to provide, —“The Congress shall have power to declare the punishment of treason. But no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.” The punishment of treason by the common law, partakes, in a high degree, of those savage and malignant refinements in cruelty, which in former ages were the ordinary penalties attached to state offences. The offender is to be drawn to the gallows on a hurdle; hanged by the aeck, and cut down alive; his entrails taken out, and burned, while he is yet alive ; his head cut off ; and his body quartered. Congress are intrusted with the power to fix the punishment, and have, with great wisdom and humanity, abolished these horrible accompaniments, and confined the punishment simply to death by hanging. The power to punish treason is exclusive in Congress; and the trial for the offence, as well as the award of the punishment, belongs, also, exclusively to the National tribunals, and cannot be exercised by any State tribunals.

§ 212. The other clause may require some explanation, to those, who are not bred to the profession of the law. By the common law, one of the regular incidents to an attainder for treason, (that is, to a conviction and judgement in court against the offender,) is, that he forfeits all his estate, real and personal. His blood is also corrupted, that is, it loses all inheritable qualities, so that he can neither inherit any real estate himself, from

any ancestor or relation by blood, nor can his heirs inherit any

real estate from him, or through him, from any ancestor or relation by blood. So that, if the father should commit treason, and be attainted of it in the life time of the grandfather, and the latter should then die, the grandson could not inherit any real estate from the grandfather, although both were perfectly innocent of the offence; for the father could communicate no inheritable blood to the grandson. Thus, innocent persons are made the victims of the misdeeds of their ancestors ; and are punished, even to the remotest generations, by incapacities derived through them. The Constitution has abolished this corruption of blood, and general forfeiture; and confined the punishment exclusively to the offenders ; thus adopting a rule, founded in sound policy, and as humane, as it is just.

§ 213. The first section of the fourth article declares, " Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner, in which such acts, records, and proceedings shall be proved, and the effect thereof."

§ 214. It is well known, that the acts, records, and judicial proceedings of foreign nations are not judicially taken notice of by our courts ; that is, their genuineness, validity, and authority are not admitted as of course by our courts, as is the case with the acts, records, and judicial proceedings of the Legislature and judicial tribunals of the State ; but thy must be proved, like other

« PrejšnjaNaprej »