that the power claimed has been conferred. Such a treatment of the Constitution is recognized by its own provisions. This is well illustrated in its language respecting the writ of habeas corpus. The power to suspend the privilege of that writ is not expressly given, nor can it be deduced from any one of the particularized grants of power. Yet it is provided that the privileges of the writ shall not be suspended except in certain defined contingencies. This is no express grant of power. It is a restriction. But it shows irresistibly that somewhere in the Constitution power to suspend the privilege of the writ was granted, either by some one or more of the specifications of power, or by them all combined.

first ten amend

ments show

the existence of general powers in

the original Constitution.

And, that important powers were understood by the people who The adopted the Constitution to have been created by it, powers not enumerated, and not included incidentally in any one of those enumerated, is shown by the amendments. The first ten of these were suggested in the conventions of the States, and proposed at the first session of the first Congress, before any complaint was made of a disposition to assume doubtful powers. The preamble to the resolution submitting them for adoption recited that the "conventions of a number of the States had, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added." This was the origin of the amendments, and they are significant. They tend plainly to show that, in the judgment of those who adopted the Constitution, there were powers created by it, neither expressly specified nor deducible from any one specified power, or ancillary to it alone, but which grew out of the aggregate of powers conferred upon the government, or out of the sovereignty instituted. Most of these amendments are denials of power which had not been expressly granted, and which cannot be said to have been necessary and proper for carrying into execution any other powers. Such, for example, is the prohibition of any laws respecting the establishment of religion, prohibiting the free exercise thereof, or abridging the freedom of speech or of the press.

How

Congress has exercised powers not expressly conferred.

And it is of importance to observe that Congress has often exercised, without question, powers that are not expressly given not ancillary to any single enumerated power. Powers thus exercised are what are called by Judge Story, in his Commentaries on the Constitution, resulting powers, arising from the aggregate powers of the government. He instances the right to sue and make contracts. Many others might be given. The oath required by law from officers of the government is one. So is building a capitol or

a presidential mansion, and so also is the penal code. This last is worthy of brief notice. Congress is expressly authorized "to provide for the punishment of counterfeiting the securities and current coin of the United States, and to define and punish piracies and felonies committed on the high seas and offences against the laws of nations." It is also empowered to declare the punishment of treason, and provision is made for impeachment. This is the extent of power to punish crime expressly conferred. It might be argued that the expression of these limited powers implies an exclusion of all other subjects of criminal legislation. Yet Congress, by the Act of April 30, 1790, entitled "An Act more effectually to provide for the punishment of certain crimes against the United States," and a supplementary act of March 3, 1825. defined and provided for the punishment of a large class of crimes other than those mentioned in the constitution, and some of the punishments prescribed are manifestly not in aid of any single substantive power. No one doubts that this was rightfully done, and the power thus exercised, has been affirmed by this court in United States v. Marigold, 9 How. 560. This case shows that a power may exist as an aid to the execution of an express power, or an aggregate of such powers, though there is another express power given relating in part to the same subject but less extensive. Another illustration of this may be found in connection with the provisions respecting a census. The Constitution orders an enumeration of free persons in the different States every ten years. The direction extends no further. Yet Congress has repeatedly directed an enumeration not only of free persons in the States, but of

free persons in the Territories, and not only an enumeration of persons, but the collection of statistics respecting age, sex, and production. Who questions the power to do this?

Under the power to establish post-offices and post-roads Congress has provided for carrying the mails, punishing theft of letters and mail robberies, and even for, transporting the mails to foreign countries. Under the power to regulate commerce, provision has been made by law for the improvement of harbors, the establishment of observatories, the erection of lighthouses, breakwaters, and buoys, the registry, enrollment, and construction of ships, and a code has been enacted for the government of seamen. Under the same power, and other powers over the revenue and the currency of the country, for the convenience of the treasury and internal commerce, a corporation known as the United States bank was early created.

100. The "Necessary and Proper" Clause*

The Constitution authorizes Congress to make all laws "necessary and proper" for carrying into effect the express powers conferred upon it. This clause has received the following judicial interpretation:

By the settled construction and the only reasonable interpreta- Absolute necessity tion of this clause, the words "necessary and proper" are not not required. limited to such measures as are absolutely and indispensably necessary, without which the powers granted must fail of execution; but they include all appropriate means which are conducive or adapted to the end to be accomplished, and which in the judgnent of Congress will most advantageously effect it. Chief Justice Marshall expounded the clause giving Congress Congress power to make all necessary and proper laws, as follows: "In construing this clause, it would be incorrect, and would produce of means. endless difficulties, if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specified power. Where various systems might be

must possess

the choice

adopted for that purpose, it might be said with respect to each, that it was not necessary, because the end might be obtained by other means. Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution. The government is to pay the debt of the Union, and must be authorized to use the means which appear to itself the most eligible to effect that object." 2 Cranch, 396.

CHAPTER XIV

CONGRESS AT WORK

101. Party Organization in Congress

NOWHERE have party machinery and methods twisted and warped the original theories of the Constitution more than in the conduct of business in Congress. Back of the formal organization of the House and Senate is the organization of the representatives of the two great parties into caucuses in which officers are chosen and policies are determined by vote. The party practices and the principles involved are thus discussed by Senators Patterson and Bailey in a spirited debate over the right of the Democrats in the Senate to bind party members by a caucus rule:

The Senate proceeded to consider the resolution submitted by Mr. Patterson on the fifth instant, as follows:

Whereas, because it was currently reported that one or more Democratic Senators might vote upon certain matters pending before the Senate contrary to the views of a majority of the body of Democratic Senators, the Democratic Senators were called to caucus upon such matters; and

Whereas, it was found at such caucus that said reports were correct and that certain Democratic Senators might or would vote contrary to the views of said majority; and

Whereas, thereupon the following resolutions were presented and adopted by more than two-thirds of the Senators present at said caucus, "Resolved, that the Senate ought not to advise and consent to the treaty between the United States and the Republic of Santo Domingo, now pending before the Senate.

"Resolved, That if two-thirds of this caucus shall vote in favor of the foregoing resolution, it shall be the duty of every Democratic Senator to vote against the ratification of the said treaty;

and

Whereas the apparent purpose of the said resolutions and action was to improperly induce or coerce Democratic Senators who might believe that the best interests of the country required the ratification of said treaty, and because thereof, held it to be their duty to vote for its ratification, into disregarding that part of their oaths in which they declared