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principles of our Government, but is upheld by a necessary exception. 100

SECTION 45. IMPLIED POWERS OF CONGRESS.

(The Congress shall have power)- "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."

This clause is direct authority for the exercise of all necessary implied powers. 101 It must be taken as a grant of powers and not as a restriction.102

In the case of McCulloch vs. Maryland, a broad and liberal interpretation was given to this clause, which interpretation has since been followed with far reaching effects on the history of the country. This decision was in part as follows:

"The result of the most careful and attentive consideration bestowed upon this clause, is, that if it does not enlarge, it cannot be construed to restrain the powers of Congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures, to carry into execution the Constitutional powers of a government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the Constitution if that instrument be not a splendid bauble.

"We admit, as all must admit, that the powers of the Government are limited, and that its limits are not

100 Lougborough VS. Blake, 6

Wheaton, 317.

301 McCulloch vs. Maryland, 4 Wheaton, 316; Anderson vs. Dunn, 6 Wheaton, 204; United

States vs. Fisher, 2 Cranch,

358; United States vs. Marigold, 9 Howard.

103 McCulloch vs. Maryland, 4 Wheaton, 316

to be transcended. But we think the sound construction on the Constitution must allow to the National Legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned by it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are Constitutional."

The following quotation from Story's Commentaries is cited with approval by the Supreme Court. "Whenever a question arises concerning the constitutionality of a particular power, the first question is whether the power is expressed in the Constitution. If it be, the question is decided. If it be not expressed the next question is, is it properly an incident to an expressed power and necessary to its execution? If it be, then it may be exercised by Congress. If not, Congress cannot exercise it." 103

Within its legitimate scope Congress can determine what is necessary and proper.104 The existence of a power in Congress need not necessarily be implied from some particular single power granted to Congress; it may be implied from the result of a combination of several,105

SECTION 46. POWERS DENIED TO CONGRESS.

As has been already stated in this work the United States government is solely the creature of the United 105 Legal Tender Cases, 12 Wallace, 457.

108 In United States vs. Harris, 106

U.S., 624.

104 Ex parte Curtis, 106, U. S., 371.

States Constitution and can possess no powers not granted to it in this instrument. It would, therefore, at first seem that it would be entirely unnecessary for the Constitution to contain any restrictions upon the power either of the United States government or any of its departments; such government having no powers outside of the grants made by this very instrument. The grants of power made by the Constitution, however, are contained in broad general terms and the restrictions of the Constitution are necessary as exceptions to the general powers elsewhere granted. The prohibitions of the Constitution are mainly restrictions on the power of Congress, but all the departments of the government are bound thereby. These prohibitions are contained in the ninth section of the first article of the Constitution and in the amendments. Every amendment except the twelfth is to a greater or less extent a limitation of the powers of the United States government.

The ninth section of the first article of the Constitution consists of an enumeration of powers denied to Congress. The powers thus denied being as follows:

Clause 1: "The migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person."

This clause was inserted in the third great compromise in the Constitutional convention, as a concession to the States of North and South Carolina and Georgia, its object being to allow these States to continue the slave trade for twenty years. 106 There never has been any doubt or dispute that this provision related 108 Scott vs. Sanford, 19 Howard, 393.

only to persons of the African race. The words "migration" and "importation" referred to the different conditions of the race as regards freedom and slavery. When the free black man came he migrated; when the slave came he was imported. Free human beings are not articles of import." 107 This restriction has not

been in force for nearly a century.

Clause 2: "The privilege of the writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

This clause forms part of the Bill of Rights and will be taken up in Chapter VIII.

Clause 3: "No bill of attainder or ex post facto law shall be passed."

This clause also forms part of the Bill of Rights and will be considered in Chapter VIII.

Clause 4: "No capitation, or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken."

This clause will be taken up in Chapter VI in the discussion of the powers of taxation belonging to Congress.

Clause 5: "No tax or duty shall be laid on articles exported from any State."

This clause will also be taken up in Chapter VI.

Clause 6: "No preference shall be given by any regulation of Commerce or revenue to the ports of one State over those of another, nor shall vessels bound to, or from, one state, be obliged to enter, clear, or pay duties in another."

This clause is a limitation upon the powers of Congress in relation to the regulation of Commerce, and is 207 People vs. Compagnie Transatlantique, 107 U. S., 59.

inserted to prevent discrimination between the States. 108 It was the result of the extreme jealousy existing between the different States at the time of the adoption of the Constitution.

Clause 7: "No money shall be drawn from the Treasury but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time."

This clause is a restriction upon the power of the executive department rather than upon the legislative; its effect is to secure complete control for Congress, over the finances of the Country; it was the complete victory in this country for a principle which had been finally secured in England after a controversy lasting for centuries.

Clause 8: "No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them shall, without the consent of the Congress, accept of any present, emolument, office or title of any kind whatsoever, from any King, Prince or foreign State."

Titles of nobility were considered entirely out of place in a republic and were therefore prohibited. The provision against any person holding any public office, under the United States, accepting, without the consent of Congress, any present, emolument, office or title from any King, Prince or foreign State, was inserted to prevent any foreign power from acquiring any influence in the government of this country, through her control over certain public officials.

Article V of the Constitution provided that the

108 108 Passengers Cases, 7 Howard, 285; Cooper vs. Board of Wardens, 12 Howard, 299;

Pennsylvania vs. Wheeling
Bridge Co., 18 Howard, 421.

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