University of Southern California Dissertations and Theses

Sources and developments of the implied powers of the constitution of the United States

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Sources and developments of the implied powers of the constitution of the United States

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Content Sources an Develo m ents of t1e of the Co nstitutio n o f t h e United States . - - -:. ' ., Thesis ' . re ented t o tl1e De art _ ent of 1 i s tory University of Southern California ten fo r a M aster ' s De ( ~ee --~ ----- by ...,d ri 1 1 Perr s. cr aft January 1, 1915. I \ I P R E 1 C E T ie i nplied )O~ers contai ed wi t in the Constitution o' t e United States have iven rise to rr a r roblems. T, et ou 1ts contai ed 1firitl1in t e lines of t 1e written i 1strun1ent V terr i ned issues of vast importance. I;ro n1 t _e earliest y · ar°) .. of OlU· constitution.al 11 · s- tor·~r dov111 to t i-.e present , le tis l a tu s a court Ila ve een b sy try - in · to det r , 1 i ne t e e tent of povrers ertai ing to tl· e · ffer nt departments of our vovernment . 1 .1Iucl1 of tl1is ,vorl 11as b e n caused b-y· tl e i. ,plications nee ssari ly r ade i 11 or~der to op r)at~) t l1e 1 ·overn·11ent und e:r t , e literal revisions o t ~ e con ... titution. here 'rr1 e t1-")ea t rne t/ r: i ven t · - ub j e ct is r i storical ra t lier• t an conclusions ~ave been r ~ac1ed in r 1 ar to t l e co1 stitutional ,ev lo pme n t as influenc ed b y i 1 pli ed o v rs . w ~ :e have fou d it necessary 111 .,repari n(": t rliS t Lesis ' to rnal e a careful ~tud- oft early state consti t utio~s. ~ se docu nents , t • e t.1. er · i t , . 0 rt1 cl A 0 '\.J Ci - - - · _,__,.._, f Con. ede i tion, ortra r t e political op i niors practices of t -~at tir e, and s :t10 -~ t l e i1 portance t h en iven to i. pli d porers. n· r· ~ · s i · i l ari ty exi ts be t ·\ree t es e earl sta e 1a er an l oul con ~titt:tion . ...e ral statem e1 ts a d CO L - "'ro ises r e fo t: 1d i all o tl1 · • The · rir1ci l e ~ o · r e t,ove n ent can ca,cely estated wi t _out sins :ener rise t i lications. termo t l t natu1 lly ive It is very evi et , j lB i g rom r c nt political evelop e t s, t l t t i 1 w r f t e Constitu.tion lies i t l ; ·· r d i 0 ta f' r . i ter r t tio 1 a .. ~ 11 0 ' n 9 ver t111 ,g es ice 7 • l II triun1ph . The Constitution h a.s alvvays served as its G rtiiding star. Judr;ing from t he past, we need have little fear of national shipwreck in the future. III I DEX Pa es I 00U CES OF I l PLI E O EF{S - Pre - co .r1sti t11 tio11al . II T IV Si gnificance of t h e writte Co1ot tution- Colonial Constitution~ before 1776 -- ------ - --- -~~--- - 1-2 ----- - 3 'rr1e llrticles o f Confe era tio11- - • - ------ ---- --- ------ 4 Diversity of Political Practices------------ ..- - --- ----- -- 6 State Sovereignty on Local Issues---------- -- - - ----- -- 7 Sectional Customs------------- - -------- - - ... - - ..-- --- - · - - - 8 - 9 CO ST -tUCTIO - 0 1 1 11 0 s . Tne Constitutional eriod--- -- ----------- - - -------- --- 10 easo11s for Impliec 1 Po1 11 rer· in Construction-- - 12 The Critical eriod-- ----- -- ·--------- - - - ---- - -- --- 16 General Cl uses-- ------- - -- · -- ----------- ---------------- 17 Inter ... re t at i o :r - - - - - - - - - - - - ·- ., - - - - - - - - - - - ~ - - - - - - - - ~ - - - - ·- - - - - - 18 DepartL ntal ractices-- - - -- - ---- - - --------- - -- --- - 19 Intention of I1a _ers----- -- - -- - - -- - - -- - -- -- - -- - -- - - 20 Bl acks to > · e 's "S; 0 f I t t t · 23 1 ~ s or n erpre a ion-- - -- - -- --- ------ - - Attacl1men t o o v e1,., t o ~ ec11 t e- - - - - - - - - - - 1 trict a d Loo s e Co 11.Qtructio 11s - -- - - -- --- ·--- - --- Tl e eo 1 C oice of ul e - •inal . A utl ority---- - -------- ·eans-- -- - - - - - -- - - - - ---- - - ~ - ----- 25 ·----- - - 26 · - ·- ·- - - - - - - - - 2 7 ------ - -- - -~ 29 ~ ffirr tive o s - - - - - - - - - - - - - ·- - - - - 3 0 C o ·lict 1 (' b l Lou i a a latl I.. V I \IP VI IV ages Florida--- - --- - -------------- - ---------- --- - ----- - -- - - 35 Tl1e t , 1 onroe Doctrine- - --- -- - - -------- ---------- · - - - --- · - -- 3? Our Insular Possessions-- --- ---- ------ -- -- ----- -- - ---- 9 ~ T D - I f'-.lt CI L P O L • ' . · 1 S • Taxation------------- --------------------- - --- -- - -- 41 Direct Taxes - --------- - - - - - -- -- --- . --------------- --~-- ....... 42 States Taing Patio1al Organs---- - -- - ------------- ---- 43 ~ ~e ceral Taxat · on of State Bank Potes------ - - -- -- ------ 44 Federal Incomes---- ---- ------ - --------------- - ---- ---- 45 Fu11dinc t l1e , tate De t s - - ------ - -- -- ------- - - _.. ..__ -- --- 46 re fere1 ce Given ,ederal Cre itors------------- - ---------- 47 Ci vi 1 ar 1.'1. e as 1r es - - - - - • - - - - - - - - - - - - - - - - - -- - - Colo ial Cornr ce--------------------------- - --- ---- -- iver nd a bor Probl 1 s- - - - ---- - - 4 0 1 t t e Ta"" o, I .,."1 o '1t s - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ·- - - - - - h 3 r 0 e1t Di ·'f cu.lties - -- - - ----------- ---- - -- -- - - -- - - · · · · · · - - Ex - cuti.v - /""10. ri · "') r ; V 1 - v r 1ird rr e • • l ., l e 1 ri " I G I --" r I , rt ,J J. .I" lT · r · 1 'P - ,·, l .J Ca i et-- -~· '"':I t ., v t.A. ...,, ... e o ,.., t e 1.:- - - - - - - - - - - - C .ED • 5 r.:: g 0 'VII RY . Par;es eview- - --- ------- -- -- - --- ------- --------- -------- 66 Fo1ecast-- --- -- -------------- - - ------ - ----- 67 • 1 CHAPTER I. SJ URCES OF !~PL IED PO V ERS--Pre-constitutional. The English .colonies in America formed the nucleus around which has arisen one of the greatest nations of which history bears record.Though only three centaries old,she has given to civilization some of the greatest and grandest achievements known to man.One of these trib~tes is the efficiency of popular government.1he oatside world has been slow to •nderstand the secret of o•r phenomenal progress.They need only to st•dy o•r democratic regime to comprehend it all.America is the product o! he r people . If there Le any secret which is in any degr e a c al for th. 1 6.rvelot. adv& .c r · ,t r [a d __ l 01.r- nation , it i t o be fo•nd in a written instr•ment of so m e four thotisand words entitled,-"The Constitution of the United St ate s o!' A !erica" . No otl1er hu.me.n doc1ur c 1 1t las s o ~ :.id ;; y .:.rJ.f l u.e ... c d th durine thL past century.In speaking of the finished prodact ot· the Constitutional Conventicn Mr.Gladstone said:"It • the most 1S wonderf11.l work strucl off a t • }1 . • ever a. ~l V i me r ') .- 1 J CA 1 ~,t irpo '"~ e of n.a.n" • Vwhile we real i ze tl at the stat m en of 0 r beloved ~nglish statesman is somewhat misl ading , in that t l e Cons ti tut ion was formed fro m tl1e 6 1 ci . - l ' (": L.1. o f ro f c v ., r·nn · . . nt t : hcn in exis t e .c e , ratl·1. · ·· 1.t&l b . i re t } ·1 :r ✓rod · ct of a single strolre, yet we 4.t"2t retain ot1r ctar1d t r1 a t ro t r docttme11t or re cent c ent ur i e Y L a 1 ; ·u. t 11! r o f I 1 !ar 2.Li_ d ~ 1C . "l C - C .E United 0tates m any 1. Hart,Act•al Government,50. 2 • volumes have been written. It is not our purpose to begin another. We merely wish to write in regard to som e of the minor parts of this great instrument; of tl1ose elements which are not found writ ten in black and white, and yet through usage, custom, interpre tation, etc., have com e to be considered vital parts of the liv ing and working constitution. Our discussion hinges not upon the word or letter of the written constitution, but upon those elen1ents that were implied within its structure. At first sight it might appear that the constitution contained nothing beyond t he simple state 1ents that are obvious to the school boy, but history has proven that as the constitution has been interpreted and applied, it has been found to contain many things that are not stated in just so many words. The origin and development of t l1ese implied powers constitu.te the subject of this thesis, and we turr1 natur ally for a glimpse of the country at tl1e t · m e in which the idea of a national constitution a s developing . genera l survey of t e period just preceding the American Revolution shows that conditions in British America were excep tionally conducive to the establishment of laws of a general character. ~he people, in spite of their common origin, had de veloped various ideas and customs which made it difficult to bind J. them under any common regulations. Uonditions, politically, socially and industrially _ differed so widely that laws necessary and fit for one colony or section of the country were often found to be i nadequate or d ro atory to another. ~ntirely different 1 H~rt, Actual Government, 49 s ystems of government prevailed in the northern and central col onies fro tat of the soutern section. 3 In tle various attempts n e t or · r 1 colonial union from 1690 do ra to . e vonvention ot· l'/ti'I, li tt,le e1·rort · aa been put fortl'1 to co el tl1e articipati - coloni es to stand .. t-eir a g e , e ts. Ther e were usually a an i ter p et tions to t : e a ree 11 e ,L ts as t l e e \Ver .. cola · es i t erested. b.:ven. t ~1 e Second Cantine tal uo eress of May lo , 1775 , v1hic met after war had acttally brol~en out, went far beyond any authority whicn hact neen delega ted to 1 any of its members. Havin been appointed by the colonies, the delegat e d tooK u pon themselves to do \Vhat t ey thol1ght best for t h e preservation of the colonies . Armies and navies were raised , oney orro\vea., com.1 issioners and arnbassaaors a.ppoi tea, t,reati s macte, paper notes 1ssuea, disposition macte or questions arisine rro n territory and tne Indians, nd such ot1er duties a~ ere necessar ror a sovereign govern et un er the circumsta ce or r. r or o \Ve find the colonies corn laining i 1 1 any reat n!eas- ure at t :1e ae1va1 1cect -ro11nd taken by c.;ongress. •1 1 11 fOtlg t, pa- tiently on con1·1ae tly exoe cting a constitutional governn 1ent to ~ t·o .lJ.OVl • ttavi1 1 0 p 1.,1s 11 ect tl1e ns e1ve a ay fro 1n the ho1 e.La ct Dy the Dec1'- 1.,atio1 · 0 · ln epencte n.ce, t r1e colo ist realized t h e ne essity o me forn o f constitution tha~ would assist the, toward unit of ction. Con r s finallv sub ittect tl e rticl 1 rt, b i d. 49 . t, 4~. • of uonr e tion to the state le -is atu1..,es for :r~atificati~n 111 lovember , 1777, but having in it so many provisions of a general nature and with the control of the 'v es tern territory unprovided for, t e 4 states delayed in ratification, the last not being comnunicated to Congress until ~ arch 1, 1781. v hile the Articles of Confederation v1ere alrnost as lor g as the Constit1.,1tion, they utterl· failed to provide for tl1e needs of a sovereign government . Tl1e sam lac1 T" of defi11ite prescribed power that prevailed under the former attempts at union existed, and Congress had to proceed much beyond its delegated limits in order to carry on the Jovernment at all. It assu ed control of the Jestern territories and assed three separate ordinances for their sale and government. But extend its privileges all it mi 0 ht, Congress c uld not meet the emands made upon it byte exi . enc es of the country. Congress could neit: er 1 vy irect taxes nor regulate co mmerce betwee the several states. Although it was supreme in that t' e executive and judic al officers were appoint ed y d sub jec i ve to it, tl states could not be forced to meet t eir obligations to the federal governwent , nor were they disposed to interpret the rticles of Confederation from a natio1al stand oint . Te over i nty oft e stats had not been is pu ted in t l1e rticles, and each state vras naturall jealous of its rigl ts. The secon rticle reads: "Eacl1 st te retai1s its sovere·gnty , freedom an i ndeoendence an every po1er, juris iction a d r· l t l • ch is not b;y- t l1is Confederation ex ressly delegated 5 1 t the United States in Congress assembled." And this 11 perpet al" union of sovereign states soon realized that entering into a "firm league of friendship with eacl1 ot er, for tneir common defense, the securit o their liberties and tr1e mutual and general welfare," upon a basis in which tteach state retains its sovereignty" , was a co bi ation wi tl1 its laws subject to as many interpretations as there were col- 2 onies in the com act. As Justice Cooley states: 0 Those articles d d not cor1ce e the full measure of pov1er essential to the efficiency of a national g overnment at orne, the en forcement of res ect abroad, or tl e reservatio1 of the public " faith or public credit . And wlat can a gover ent do if its fundame tal powers a.re lacking. new co stitution was necessary and was soon plaru '1ed for, but tl1e co1 pilation of a constitution that would suit all concerned was not the easiest task imaginable. ~ here vv ere t e r e11 o could outli1e a sys- te of government suitable t thirteen states bou1d upon ad heri to their custor s in govern1nent and f earfl1l of the ascend ing power of their neighbors? Were such a system possible of conceptio11 must it not necessarily co 1taln m any ·eneral state ments, with defin te omissions regarding certain contested grou11 s while any of the essential features tr at m ust be stlpu la ted i writing would be possible only through comprornise. We s 1al l ndea.vor to a wer t se a11 other questions in our rticles of Confederation, Art. II. 2 Cool y, Co stit1tional Limitatio s, 9. 6 next chapter on the Construction of e Co11s t i tu tion. A 6 l ance at the political conditions in the colonies at tl e tim e of the proposed union will shovr son1e of the problems confrontin t ne Constitutional Convention. Outside of the self governi g colonies of Rhode Island nd Connecticit, tne colonial go- vern ents we1,e alrnos t uniform. ach cont a .ned three depart- ments; l The Governor, who as appointed by the Crown, or by the Proprietor; 2 The Council, also appointed by the Crown and 3 the Assembly or House of Represe1tatives, cosen by the electors. Tnis plan conformed to that of England, whic · had t l1e King and 1 two houses o ar•liament • The bicameral system, which was used first i n America in the legislature of assachusetts i n 1644, was soon adopted i n all he other colonies except Pennsylvania an Georgia, where the single house still sufficed. All the colonies were enjoying the representative for of government , according to the American form of representation, althougl1 Georgia had refrain ed fro1 adopting it until 1752. hile republican government was allowed, and i time cw~e to be expected, it was not made compulsory by the early charters. Francl1ise had increased rapidly a mone all the colonists, especially in the m iddle and southern states, but as yet, no colony granted universal suff rage even to its ale inhabitants. So e of the greatest differences in over nm nt tat Elsa, i stor of t he Unite tates, 211 · 7 existed among the colonists prior to their union, were those in connection with their judicial systems. In most cases, the low est judicial officer was a justice of the peace, who usually ob tained his appoint ient fro the overnor of the colony. The county courts found in all the colonies, had jurisdiction in civil cases, but could ot inflict capital punisl1.mer1t for any cri e u· der their authority. The i hest court was composed of the governor and his cour1cil , bu eve 1 this ad not fi al authority i n certain cases over which the Privy Council in England held l appellate jurisdiction . ~herever t h e custom permitted the gov- ernor to a~po nt the judges oft e uher courts, appeal mi ht be had frorn tl1e decision of such judges to the governor and his coun.cil. The local government had been left entirely to the several sta es to be developed according to their needs. Each se tion adopted that scheme hich seemed best suited to its own peculiarities. In the I~ew England states, rhere t he c ief inter ests centere around small hamlets or villages, the town be came t he rincipal unit of govern ent. Busi ess life, society ad religion centered there . turally it was from the first con- sidered t e political hub, an for ed t h e nucleus f a democracy of the purest kind. Tne to,vn also became the u11i t of represe11tation i n the state legislatures, followin the custom in England , and t h custo 1n 1a not c anged in Con ecticut and Rhode Island up to t e r sett me • ~ 1s0 , is tor 0.1. t e Unite tates, 214. 8 In Virginia where large plantations were comrnon, the cou ty instead of the city becwne fundam ental in local govern ment. Instead of the town meetings, which ew England towns heid regularly t o conduct their busi ness affairs, the Virginians had their "court days 0 in which anyon e could bring his grievances before the sheriff or colonel an d receive a hearing. In the m untainous districts of the Carolinas, bands of "Regulatorsu were organized and sent around under cl1.arge o·f the governors , to act as courts of jus tice to the settlers of t h e interior. 'rl e iddle colonies borro~1ed fro the evv Englanders and also .L ro m their eighbors on the south in f or 1nin a plan for their lo cal m anage1nen t . Tl1e ad the city with its officials , a nd also the county with its supervisors. I n time the duties of these offices conflicted to such a n extent that consolidation was ef- I fected in 1 any lacesJ b t t e practice of t he idle ad wester states has been to retain the combined system . ThlS whi l e tl1e colonies vvere alike in eneral , e find differences existing i their o itical ad social practices that were destined to be arriers w1e a common for of -overnrnent was proposed . hen we think oft e variety of overn ental practices to be foun i n h t irteen ewly formed states, of the different conce tion o· qua ity, liberty, suffrage a save ei ty, we 1us t co clu fe eral Co tit tion were at all ossibl of co ~tr'U.c tion, i oul u oubt contain gen ral tatem ents and 9 compromises, while some gr at measures would be tremendously con- 1 spicuous by their absence. W e all no, that these very things are to be noted i n t he work of the Co11stitutional Convention of 1787. And yet no one cares to criticise adversely tl1e , 11 rork of th at great and memorable body of men. They u11derstood t r e imrnensi ty of t r1eir task and 111dt it wi tr1 umili ty and co 1fide11ce. Their strug gles and achievements have been given a place by the1selves, for i n conn ction ,vith the actual forn 1atio11. of the co11stitution are to be found many of the sources of the implied po,vers existi11 g t r1erein. CHAPTER II. THE CONSTRUCTION OFT • CONSTITUTION RELATIVE TO I 1PLIED POWERS. Our treatment of the organization and work of the Constitutional Conventio, and of the influences which determined the course pursued by it, will not consider the construction, adoption and interpretation of the Constitution except wherein these subjects are related to implied powers. Important points in constitutional history must be passed over without note, for they have no part whatsoever in the development of the subject under consideration. But turning at once to the period in which the writ ten document of the United States Const·tution was constructed, we can plainly discern several reasons why it was impossible for the Convention to frame a constitution that would contain all the laws necessary .for the new government. Let us now consider the wr·tten constitution i relation to som e of the principal sources of implied powers that essentially entered into its construction. That implications are indispensible in any constitu tion like ours, is a fact conceded by all, and too evident to 1 need comment. Mr. Cooley says: "The in1plications frorn the provisions of a constitution are sometimes exceedingly important, and have 1 large influence upor1 its construction." In s pealring of the United States Const tution in particular, he says: "In re ard to the Consti tution of the United States tr1e rule has been laid down, that where a general po er is conferr d or duty enjoi ed, every particular power necessary for the exercise of the one or the perforruan ce of the other is also co11ferred. ,: -~~- .:--~(••;!.i~-)- The 1 Cooley, Constitutional Limitations, 98. rule applies to the exercise of power by all depa1tments and all 1 officers." Chief Justice M arshall stated that the perfect rigidity of a constitution, with absolute inflexibility of con- 2 struction were as impossible as they were undesirable. This principle has been defined further in a decision handed down· ir1 the Supreme Court of the state of Illinois. From that decision we quote the following: "That other power•s than those expressly granted may be, and often are, conferred by implication, is too well settled to be doubted. Under every constitution the doctrine of implication must be resorted to, in order to carry out the general grants of power. A cons titution cannot from its very nature enter into a minute specification of all the minor powers naturally a nd obviously include d in it and flowing from the great and important ones which are expressly granted. It is therefore established as a general rule that wl1en a constitution gives a general power or enjoins a duty, it gives also by i plication, every particular power necessary for the exercise of the one or the performance of the other. The implication under this rule, however, must be a necessary, not a conjectural or argumentative 3 one." Thes e quotations will suffice to show how i m plications were considered during and subsequent to the period of consti tutional construction. But let us turn from these general con ceptions to the convention of 178?, and find the genesis of E o61 y , vO cti ut anal Limi~ tio.o , 98 . 2 Chamberl ain, Dan H., The State Judiciary, 241 . 3 Field v. People, 3 Ill., 78-83. Quot ed fro m Cooley's Constitutional Limitations 98 . ee also T •• Cooley, Constitu tional Law, Ch. IV, Sec. 15, and. Stern, Consti tutional H1story and Develo ent of the United tates, 48. 11 sorr1e of the implied powers of our constitution which grew out of circumstances peculiar to that period. I In t ·he first place, if considered fron1 a national stand- point, the constitutional form of government which was to be in augurated, was practically new. Al though the delegates to the conven tion were men of experience in colonial and state governments, with a knov1ledge of Englisl1 history from the Norman Conquest to the American Revolution, the:ir work in preparing the constitution was essentially a new creation, for the past held nothing of the kind. It was undoubtedly from this point of view that Mr. Gladstone spoke when he uttered those memorable words so often quoted, in which he pronounces the American constitution to be the "greatest work 1 every struck off at any one time by the mind and purpose of man ." The greatness of the constitution depended not so much upon whether its provisions were old or new, as it did upon their arrangement, balance and practicability. But the newness of the constitution consisted largely in arrangement, for the principles involved were nearly all to be found in the great historical documents of Eng~and, in the colonial and state charters, or in the Articles of Confederation. In tl1e en tire constitution there is no signal departure from the English 2 s:ystem of government as laid down b7 Mr. Blaclcstone. Even though the principles underlying the new constitution, as well as most of the government ma. chinery suggested b} r 1 t were accepted and prac ticed by most of the states, it proved to be no small task to l Elson, History of the United tates, 325. 2 Putney, Constitutional Law, 103-104. • satisfy the states that these principles would apply to a union of states, especially when it involved a release of some authority on the part of the states. Only secret sessions were held by the Convention, so we are deprived of much useful information of its proceedings that otherwise might have proved extremely interest ing, but in spite of this we do know that on several occasions the Convention was on the verge of disbanding because of disagree ments, and that it was held together by the pleas of George 1 Washington and Benjami Franklin. The three great compromises on the slavery issue, the method of state representation, and on the nature of the national government only indicate the large number of smaller differences that were -settled either by com- 2 promise or by omission. I I In the second place the essential brevity of the written document is one of the chief sources or implied powers. There were several causes contributing to this abridgment. 1 The states would not have been willing to ratify an instrument that was so long and laborious, full of in tricacies and legal details. They v ere after a set of principles that would permit the nation and the states to work out their own destiny, each independent of the other. They understood to a very 11 ited degree what a change from a confederated to a national form of government signified. There was a constant 1 3 dread that the national authority would absorb that of the states. I Putney, Constitutional Law, 105. 2 Ib1, 1 2. Elson, United States History, 329-332 3 Putney, Constitutional La, 132 14 wo•ld req•ire That this might not be the case the states/ ~ at the con- stitution be confined to a few definite statements plainly con struing the pov1er of the central governn1ent. The convention labored to comply with this request, or demand, and provided for the sal vation of the constitution if not of the nation in thus doing, for it laid the foundation for implications, wl1ich, once aclcnowledged, 1 cannot be limited as long as conditions demand their extension. 2 Previous charters and con~itutions had been short and tl1e states would be moved largely by precedent. A fevr thousand words had sufficed for their state documents and they would not favor a national constitution that could not be quickly read and easily understood. 3 Another fact conducive to brevity was t hat the colonists had little conception of the future developments and needs of their country. ult is beyond the •vit or power of man completely to trammel up the future. Circumstances am exigencies of life, needs and desires of men or co munities, adopt , modify or over-r· e written 1 i constitutions. t The m ost imaginative dreamer scarcely could ave comprehended t he extent t l1as d veloped. our nat ·.on 4 It was gener l l y conceded tl at testates should delegate to Co11gres s01 . e of the po 1ers t~ at t ey l1ad been freely exercising; sucl1 a.s coining of mol1ey, establishi11g post-off ices a11d post-roads, m al<:ing treaties and regulati11g com nerce . The 2 Putney, Cons ti tutio1 1al Law, 132. Chamberlai1, Daniel H., Te State Judiciary---Its place in the American Con titutional System, 239 . least said in regard to t1ese changes, the sooner the states would 1 ratify. 1 5 And then the m embers of the co: nvention manifested unbounded faith in the future generationsof America. They had confidence in the statesmen that were to grow up with the country and trusted that they would be able to solve every political problem 2 that m i ght arise. The colonial constitutions bad proven re- markably successful, a fact due largely to the provisions made for 3 revision or amer1drnent. Although t e method required for the amendraent of t 1 e United States Constitution is .. v ornplicated as to make such action al~ost prohibitory, t e Convention assumed t hat 4 the people would m a ke suc11 changes and provided t e v1ay for them 5 to do so. 6 It was also essential t hat the ner government be put into operation i ramediately if the cou l'.1try were to be saved from 6 ruin. Condi ions in different states ere deplorable. In assa- c!11.1setts t e people had talcen arms against their state gover n 1ent and dema n ed the abolition of the courts and of the State Senate because they refused to provide and legalize paper money. In New Hampshire tl1e courts had be en broken up and the legislature inti midated by three hundred mutineers. Many people in Connecticut had made efforts to abolish the courts and confiscate the state debts. Hundreds of farms were put on t h e market to pay the taxes, and Hart, Act al Government, 52 2 Sterne, Constitutional History nd Political Development or tn~ unite~ states, 222. 3 Hart, Actual Gover ment, 57 4 Boynton, School Civics, 250•251. 5 United tates Constitution, Art. 5. 6 asson , Evolution o the United tates Constitution, 44. 1 money was so scarce that they would hardly bring one tenth of their value. Foreign nations were fully aware of t he condition. They feared the downfall of t he colonies a.ni the consequent injury to their own commerce. One member of Co11gress from Virginia wrote to Mr. Washi11gton: "We are all in dire apprehension t l:1at a beginning of anarchy with all its calamities has approached, and have no means to 1 stop the dreadful work . 0 And r. Vfashington himself realized the precariousness of t h e situation. In a letter to Colonel Lee he said: "In our endeavors to establish a new government, the contest nationally considered, seems not to have been so much for glory as existence. It was for a long time doubtful whet er we were to survive as an 1 dependent republic, or decline from our federal 2 dignity into insignifican.t fragments of empire." Thus we see that immediate action was necessary for the continuation of the I American government, and the knorledge of this fact on the part of the Convention was one of the stroneest reasons for evading 3 mooted questions. Certainly , if due regard be given to the sit- uation, past and present, with which the Convention had to deal, to existing state documents, to the necessity for immediate action, to the faith the Convention placed in future America and to the likelihood of getti1g the states to ratify t h e Constitution, there will be no qu estion a s to why four thousand words were sufficient to state the fundamental law of the land. 1 Kasson, Evolution of the United tates Constitution~ 44. 2 Iarshall, Life of ashington, Vol. II, 130 . Simil~r statements 1 were also made by Jefferson and Hamilton. See 11am .J.ton, J.C. History of the American Republic, Vol. III, 5~-523 3 Kasson, Evolution of the United States Constitution, 26-28 III But one of the greatest sources of implied powers, and one recognized by all, is that found in the general clauses of the Constitution. It is a gross misapprehension, however, to think that Congress has any number of implied powers because of the "general welfare" clause. The text containing this clause reads: "Congress shall have power to lay and collect taxes, duties, im posts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, 17 1 imposts and excises shall be uniform th~ot1ghout the United States. 11 Thus taxes can be levied for these, but for no other purposes, and the measure is therefore a limitation to the taxing powers of Con e;ress ratl1er than a grant of general legislative authority. A general clause of great consequence, however, is to be found in t h e same Article and also has to do with the powers of Congress, grant ing to it t he authority- nTo make all la v1s necessary and proper fo:r carrying i nto execution the foregoing powers, and all other powers vested by this Constitution i n the government of the United States, 2 or in any department or office t hereof." The terms, 11 necessary and properu are entirely at the disposal of Congress, subject to their best interpretation of the Co11stitution an:l to the future judgments of the .Suprem e Court. Such other clauses as, "other needful build ings", "for limited times", and 0 unless actually invaded or in such iminent danger as will not admit of delay", are very indefinite and leave much to the interpreter. Just to what extent is a thing 1 Constitution of the United utates, Art. I, Sec. 8, Par. 1. 2 Ibid. Par. 18. 1 "necessary and proper 0 ? When is a buildingnneedful"? How many years are included in the term, "limited times"? \'/hen is a sta.te"actually invaded" and in "iminent danger 0 that ,Nill not admit of delay? These and similar clauses have been, and ever will be, one of the principal sources of implied powers, for by their very wording they are far from being specific. In addition to the powers of an implied nature to be found rising out of the period of constitutional construction, there are to be found subsequent ones that are fully as important. As the country has developed, it has become expedient to interpret the constitution in a sense that will meet the demands made upon it, rather than to think of making new laws for every emergency or cl1anging the old to fit the case in hand. None of the powers thus assumed, however, are i n any way to conflict with the spirit of the Constitution. The m ost important source in this category is that of interpretation. Judgi g by t he experiences of the past, t he future generations of America will see many ne,v and strange things in the way of constitutional construction, having their origin solely in the interpretation of the Constitution. One case is sufficient to illus trate. The courts have been trying since 1787 to determine what the 1 Co11sti tution considers 0 direct taxes". So much difficulty has there been upon this point that since our government began, direct taxes 2 have been levied but five times. Since every state constitution and every statute, wl:1ether state or federal, must conform to the Federal 1 Taussig, Principles of Econot ics, Vol. II, 512. 2 Garner, Gover ment of the United States, 217-218. Constitution, it is important to know what the words 11 direct taxesn imply. So much deperrls upon the interpretation of the Constitution in determining the powers implied that we have de voted special consideration to it in another cl1apter. The political customs in vogue at the time of the adoption of the Constitution have also proven a source of implied powers. For instance, it was a rule among the colonies to have members of t heir legislatures, as well as members of Congress, 1 elected from the district whicl1 they were to serve. Everywhere g throughout the United States today, the same custom prevails, either by written or unwritten law. For similar reasons the presidents of the nation are limited to two terms. When Washington declined the third nomination, he little realized that this action would set a standard that would endure more than a century. How mucl1 longer it will remai n unwr tten law, no one is prepared to say. The Democratic Party platform of 1912 proposed a single presidential term of six years duration. I t has also beco e customary to inquire into the de cisions of the President and the officers of his department when dealing with cases that arise in connection with their work. The courts i fer that these officers make a thorough investigation of their pONers before ma] ing any plans whatever and that tl1ey 2 endeavor to eepwithin the spirit and letter of the constitution. 11 If tl e question involved is really one o doubt, the force of their judgment, especially in view oft e injuri us consequences lHart, Actual Government, 128-129 2 cooley, Constituti nal Li itations, 105. that may result from disregarding it, is fairly entitled to turn 1 the scale in the judicial mind." If the question under discus- sion is a political one, am the political departments have pre viously rendered decisions on the same subject, their cow~se of 2 action is usually followed in detail. The construction of 3 treaties by former presidents is g iven the same respect. The extent of implied powers is also subject to the intentions of the J. ramers of the Constitution, to tl1e degree that those intentions can be construed. Where contemporaneous inter pretation indicates simply t he man11er in which the people re ceived the law, it is to carry little weight, but where it was the basis for legal action by which the i ns trunient was put into oper ation, the implication is that the Constitution is to be con- 4 strued in a particular way. The question was once asked whether the laws of the United States which authorized the courts of the Union to alter the form of process of execution used in the Supreme Courts of the United States in September, 1789, so as to subject to execution, lams and other property not thus sub ject by the state laws in force at that time, were constitutional. Justice Thompson, in giving the decision in the case of United States v. Halstead said: ttif any doubt existed whether the act of 1792 vests such pONer in the courts, or with respect to its constitutionality, the practical construction given to it ought 5 to have great weight i n determining both questions. 0 His I . 2 Cooley, Constitutional Law, 104. People v. Supervisors of La Salle, 100 , Ill. 495. Cooley,105. 3 Cooley, Constitutional Limitations, 105• 4 Cooley , Constitutional Limitations, 102· 5 Vi heaton 10 , 51-63. • reasons for these opinions were given more clearly in the later case of Ogden v. Saunders; "Every candid mind will admit that this is a very different thing from contending that the frequent repetition of a wrong will create a right. It proceeds upon the presumption that the contemporaries of the Constitution have claims to our deference on the question of right, because they had the best opportunities of informing themselves of the understanding of the framers of the Constitution, and of the sense put upon it 1 by the people when 1 t was adopted by them. n One of the greatest cases bearing upon aonternporaneous interpretation that ever came before our courts was that of Cohens v. Virginia. The decision read by Chief Justice 1\darshall, strongly emphasized the weight that must necessarily rest upon the will of t he interpretation 2 given by the courts 111 the beginning of the nation's existence. And as time has passed, the courts have continued to have due respect for the decisions that have previously been decided. Tl1e question of whether the United States courts have appellate jurisdiction over the state courts was settled largely out of respect to former decisions that related to the real issue. In the case of Stuart v. Laird, decided in 1803, the court held that its r embers had authority to sit as circuit judges, on the ground 3 of practical construction of the judicial system . In a l ater 4 decision, Justice Story in L.artin v. llunter • s Lessee , said that the power of the United States courts extended to cases pending 1 12 heaton, 290. 2 6 Wheaton , 264. 3 l Cranch, 299. 4 1 W heaton , 304-351. in the state courts in conformity to the twenty-fifth section of the Judiciary Act, accor ding to the spirit ar:d letter of the Constitution. ' This weight of contemporaneous exposition by al parties, this acquiescence by enlightened state courts, and these judicial decisions of tl1e Supreme Court through so long a period, do, as we think, plac e t he doctrine upon a firm foundation of authority which cannot be shaken without deliveri g overt su - .,c t t . ~ ,r p t i.: al 1... irremediable doubts~' are the plain and force ful words of the 1 earned judge. And tl1e earlier t he decision or custom, t h e greater weight it bears. Thus we see that many powers, at first entirely i m plied, ve, by force of practice and interpretation, grown to be strona and well defined constitutional law. We can ap roxir t l 22 marize the influences of personal opinions, custom s and court decisions of past decade upon 011r twentieth-century Constitution, but what tl1e future holds in store is a problem that tl1e most imaginative would hardly care to predict. The tendency thus far has been toward Federal supremacy. So~e of our late statesm en, With I~r. Roosevelt, are in favor of giving great breadth to the Constitutio11, mak ing it applicable to the needs of the times, while others are m ore cons rvat i ve and i nsist on clinging to the ~~inal i nterpretation as far as possible. C PTE~R III . It vfill be expedient in opering up thi s chapter , to call attention to t he principles of legal i nterpretation as laid down 23 b y t e ·reat Engllsh commentator , I 1 Ir. Blacl-stone. It is upon t l1ese ri ci l est at tl e constitt i on was ased , and a rief r eference to them will shovr t hat t e Convention of 1787 f ullv understood con- ., sti tut i onal construction and t l1at t h e court of succeeding years have tried to conforr to the standar d ou lined by r. Blac stone. '''1 1 h e f irst a d most rational method," says e, "to interpret the ill of a legi lator, is by x loring hi s intentions at the tim e vvhen the la.1JT was made, by Qigns t b.e n1ost natt1ra.l and r obable. md tl1osc s i - ·ns are e · t1er t e rord.s, he cont xt , the subject matter , 1 t e effects a11 consequences , or the spi1 "li t and reason o the law ... Tl1ese "si 6 ns .. are clearly· explai e d b-s [r. Bla lrstone and we sum arize t e definitions as follows: 1 ors are to be un erstood int e·r usual signifjcation; I th less regar d to propriety of gram ar than tot eir e eral and popular use. 2 er Vi ords are dubious , t l1eir rr1 eani ... g ~ a. r e establish ed f r om t he context , and i... ost i nstances anJr am bi :uou. word or sentence can be fully deter i ned i f int rpreated i accordance wi t h t h e reamble. 3 The u ject matter is always supposed to estated as clearly as ossible i the ·ords at the l egi slator 0 comm and. l a rs o e , C o taries on t he aws of En 1 nd , Vol . I , o. 24 4 Where words used bear a peculiar or a surd si nification, if taken literally, 9: deviation of inter retation is neces ary. 5 '1'11.e n1ost important point of all is to ascertain the reason 1 and spirit of t l1e law, as far as they are attainable. It is in the 11 terpretation of a law or constitution, done in strict accordance with t h e above directions , tat i mplied powers or privileges are di covered . They are bound to arise along the line of equity, v1l ich , says Grotius , "ls the correcti on of t at G wherein the law {by reason of its universality) is deficient . ·· Int e co1stri1ction of laws , it is i mpossible to foresee all cases • that may arise; therefore it i nece s sary tat ~hen t _ e general law is applied to the part·cu1ar case , due regard be given to the probable judgment of t he leeisla tor, lad en able to anticipate t e sit- uation when makin the law . · u t this principle of justice is the basis of all law , an _i ves pl ace to tl e righteou.s judg e as v1ell e.s to the le islator and tl1e executive. S y s .r. l ac~stone gain, 0 Equi ty t us de ending, es s entially 1 u on t e particul nr circt1 Ju tances of each i ndivi t1al case, t er,. can e no establis ,ed rules and fix ed precepts of equ·ty laid down without destroying its ve1~ essence and reducing to positive law. n on tl1e other land , tr e li erty of consi derin[; all cases i n an equitable li , t m u.c t not be in- dul ed too far , lest ther by w estroy all law, ad l eave t h e decisions of every que tion entirely i n the breast of the judge . n 1 ,~1 tho 1 t equity , tl oug ard ad d isagreeable , is uc more sirabl or t e public good t1an equit without l aw , ch ~nglapdi Vol. I , 50-G2 2 I id, 52 . wot1l make every juc. ·e a le ) isl a tor, and ir1troduce most inf1.ni te confusion; as ther ould then be almost as many di ferent rules of action laid down in the courts as t ere are differences of 1 25 capacity and sentiment in the hun1an mind." T ose quotations por- tray t e field of interpretation as it really is, and reveal the fact tlat all i mplications, of whatever nature or scope, have their existence dependin.g upon tl1e interpret,a.tion of the lav.rs to which they owe t h eir• birth. l i th tl is vie~1 of the subject in mind, vie sl1all tt1rn our attention to t e rules of i nterpretation of our constitution a~ t ey ave been developed during our time of exist- ,, e ce as a nation, confining our re arks to t~e relation rules ear to i mplied owers. ich these The one funda ntal rul shapi ~ e all inter retations is that A/l1enever a ower is u11derstood to attach to a depart e t of overnment , it is implied tat t 1at department has full poVier to execute the duty or right thus impo ed. hile tis tandard must attain in any government that i to prosper, yea, even endure, yet we find it was disputed by able an, sincere en durin the tie of, 2 and after tl e Constitutio al Co1vention. It was upon the positive side of t is is ue t h t 1.,esident incoln clai rr.e a t h e r:i.ght and de- clared it to be his duty to reserve tl1e nation in tact. ·e eral of is ar neasures cou mate upon an other basis. not be x lai11ed or 11ade t o see le "~iti- 3 So rell 1 as this rule become established, owever, t_at ·tis no lon •e1 a questio of dispute . Te only pro ler:1 is to ete1 i e ju t ho, far tl1es r co rrnized uties and lac tone, Co1nr.ent ries on the Law of En land, ol• I , r::3 . 2 l OU y . i ona , 77-79. rights are to obtain. l ere is t 11e Jenesis of the dispute and the fountain of i mplications relating to such duties and rights. hat t _ e constitution impl ies is also to be determined b y the sense of th. e tern1 s and tl1e inte11tion of tl1e parties who had 1 26 to do with its construction . This point was 1 ade clear in our quo- tations fror.. rv1r • Blac stone nd needs little com ent here. Vrhen t h e constitution is clear on any point, there is no need for controversy . If t h e eani11g is indefinite , there is r1eed to U11derstand the lit er al meanine as expresse d , to gatr1er f1~orn the context t e rational i nterpretation and to con1bine thes e and interpret as nearly as poss ble in t he light of the l egislators i ntent i ons . At this point arise t e _r eat conflictin system s of strict and loose const17tlc tion . The fo r n1er s ystem vrould eli .i ate fro any e ar·t ent all porers exce t those definitely stated r t he constitution , overcom i ng all new problems by amendment , ,rhile t l1e loose constr1.:iction i sts . Viould ake use of all eeneral principles stated i n t he written in- st ent and i mply the ower to enforce rante d powers i n any way 2 desirable. Thi s questio was one of the first to clai the atten- tion of tl1e _reat sta tesn1en, and , while it was in a measure settled in t e convention, it has continued to afford a b or1e of con t ention to t he 1 r esent day . Furt11er 1nor e tl1e impl ied meaning and sco e of any part of t he Co11sti tu.tion c ann.ot be ootained b y reference t o tba t rticu.lar part alone . _ ay i'r. tory : "It is ecessar j to consider Mhat are it ature and objects , it co e an design, as ap)ar ent from t he I ite ··ta v . 0 Crane - Br r rs, ) ill ughby, e American Co stitutional System, 45 structure of t he i nstrument, viewed as a whole, and also viewed 1 27 in its component parts." Thi s point of construction is considered one of t h e most i m portant, and it merits t n e carei~l attentiori of 2 all courts before giving t heir decisions , especially where t e granting of power is i nvol vect. li're ectorn i n one de partment must not tre s pass u pon tr1 e l iberties of ru1other. 'l'l1e part s must be mad.e to conform tot e el fare of the w~o l e . Si c e tre constitutiqn w ratif iec by t e s t ates i n conventions dul y ch os en by t he peo le, i t i s st1 osed to re re set t e·r sovereign will ands ould, e i nter prete accordi ng to t l ei a ure . 'l'h -s are to ly t e aut ors oft con ti tution ut al o the pov 1 er t hat sl_ apes i ts gr owt h . '1 1 h e y have ev r y r eason to ex ct that t eir fun ame t a l lai s hall b e i1ter reted r· t res ect to tl1e i r ov1n be s t n, ~ r st • .1:'or v111· t, otr1er pu1"' ose vvas 1 t ·.r · e ·t The t t o are not expe cte .. to u1· er i 11 orcte to e ta lish t e ·ecter l uovernn 1 nt , b1..1t t111s does no t i v e t 11e s t ates l ice se to i nte r t tl e cons tit tion i 1 t, · i 1·avo1 1.:h e 1 t11e un10 i s t r at ,ned by t hei so doi e. 'l'l ere l. v e b een several ca a es i n f 1i cl1 t 1 1.e s1..1p r en1e col1rt J. s h ad. to de ter r ine t e · in lied. , ea i ng of t e c 1 1stitut10 v1 1 t"' · ueutio of severe · ar 0 e . l 011e ca e t he c011rt lel ct tat , .. Th Con c:i it1 t i o of t } e ·tates a ~ ordained and t b 1 . shed tl ir sov rei .rr .a n . ci tie , b t em ,1 · tically , as t e r ea le of 3 t 1 e cor ti t l l tion decla s , IJ t e pe ople of t l1e uni t~ St t, , • ·· Juotice ·tory , 'l'l e •. · • tJonstit tion . vol . 1, o· o. Ibid . 4 heaton , • 28 The co".trt then went on to shov, ho\v- t e eneral ove nr n t i 11ot derive its power from any state or states bu t was aeration oft e people as a whole, acting in their sovereign capacity. hile i t r c gnized tat the United States could claim no powers except those written or . ecessarily implied in the Constitution, it dem anded a reasonable construction ac cordi ne; to t1e import of the ter1ns used. In stati 0 t, e ground fo1~ the decision ren ered, the court said: t Jhere a povver is expressly give in general ter s, it is not to be restrai 1.ed to particular cases, unless tl1a t con struction goows out of the context expressly, or by necessary im plication. The words are to be tare n in their national and obvious 1 sense and not in a sense unreasonably restricted or enlarged." Tl1e sarne stand wa s taken i n the case of Gibbons v . Ogden i n ,v ich Justice I.:lars all • i n uivi . .1.1 the ecision s ai : " This i stru.1ne1 t co - tains an enu1neration of povrers e pres 1 /ra ted by t e eople to tl1.eir govern ent. co1 stru d strictly . It l'1as een said tl1a t tl ese 0 V'1e1~s ou ~ t to But rhy oug t they to 'e so canst ed. in t l1e con ti tutio 1 t ... at a-i ve c u tenance vvi t h due reference t o the "necessary and ro eru clause, ~, r . !Jars all proceeded to emonstrate hovr a cer tain field of 1plication 1 ces rily surro ds ever f i eld of ex ress ower r re triction ranted; tlat t~e la g age a1 pur ose of t l e i tr ment ust be con id ere to etJ1er · or~cter to Is e eon e te ce 2 to t · s rule? Then , te :n the rif t "' 1 real me o t n e onstjtuti on . Conse uently as ee to ar natio r a cioverei t rvl1e e tl1 states 1 2 4 Vheaton, 16 9 , 1 5 and the fed ral govern ent conflict, for the eople as a whole are considered before any minor part. 29 And in putti11 i this sovereign will i to operation 1 t has been settle that most any choice of eans i legitimate. Int e great ad i r1 1 1 t i"l case of :cCullougl1 v . 1aryla1d, so o ten quo ed i n 1 w, Justic ~•1 arsr1 a.ll said: "Let the er .d be legitin1ate , let t be i thin t r1 sco e of the coI sti t tion, and all means ¥1 ich are appropr i te, w ich are · lainly adap ed tot at end , wl ich are not prohibited, but consiste t wi tl tl1e letter and spirit of the con- 1 stitution, are constit tional . " Since tat decision , t e great pro bl s hich have co1ne b efore r1e su rem e court ave been con si ere u o t e sta ard t here establishe • Anot_er point f interpretation tat as een quite thorou ·111 establisl e i .. t at the co11stitution implies t at in all co11 tr1-1ctions t end to e desir dis tl e st i nterests of every de artn e instituted y the constitution itself, and tat any in- ter re ation tat i paired this end ould be null and voi • \here tl1e l.lestio inv lved i of a co t.itutional or re edial natt1re , t her as een a tender1 y to,vard a liberality of co stru .. c tion , but eve i sue cases t e cou on CJense o t e erm s used 2 s r i • st o be or a 101 ~ ti , e d vided, a hich pertains irectlt to i mpli ; - po~ers, is tat a of o,ver carri JS with it the a ro pria te m ans to ut sue O\ver it e feet . r . a 11 . L ' 1'1CCullou_g v . 1aryla d, 4 2 i e t o T , r e;un 11ta o t 1 Dir 1 ative o tis ol . ' '7 30 question, ade i defense of the United tates Ban , have never 1 been satisfactorily answered . How coul ~ a po er gran ed be con- sidered of any force wl1atever, if there was no provision made for carryin t e rant into effect. The framerc of the Articles of • Confederation undoubtedly i tended t at t1 e ov rnr e11 t for v. hich 2 they rovided should operate. The Const·tution of the United tates s · ea -s fo r itself upon. this oint . It is also very evident t hat nr. ashington held the same vievf as did ,. r. :Ia il ton re ra.rd ing t.e i m lied meas of executing efin te powe1s , as did also r~ . 4 Jefferson , subject , however, to a strict construction of the Con- stitution . Jefferso full1 realized the r~cessity of executive ewer goin hand in and with ever y 0 rant , but i c se the explicit statement coul not be found in th Constitution , he favored delay of 5 action until sucl dir ct legislation could be secure • Just ho\v far :r . Jeffer on stoo by his convictions upon this oin t is illustrated in his attitude, wl ile pr · ent, u on e~{ ansi n. oth er i mportant sour·ce of i lication arising out of inter r etatio is of certai maxim of affirmative or negative qua ify i n~ o~er . If ffirmative provisi s are made concer i ~ so me art-ic1llar case, it doe not argue t l1a.t such rovi ions are ecessarily excluded from every otr1er case. T i s qu. stlon was thorou .h l ar ,·ued ttri r t c eriod of tle Constitutional Co vent·on 6 a d t ratification. y t e states . Some eld t at becat1se t e 1 2 4 t , 0 . 77. of Confederatio, rt. I II . Con tituti nited ·;ta tes, rt. illo cl ri c a1 Con t · tu tional 1 0 ' -9 deral ' • I , ec . 8 , Par . 18- - • 31 constituti n provided fo1 trial by jury i all crimi al cases, with out ention o civil cases, tat trial by jury was t herefore rohibited in civil cases. The narrowness of such a position was soon proven an t e rule as stated above accepted. Duri · the s an1e ser•ies of arguments it was also decided that t he negative provision in arti cular cases does not prove t hat the sam e provi ·1ons must hold in 1 every other case . We would not fail to m ention that i mplied powers of si gle clauses of t _ e constitution are often ignored because of other claus es of apparent in1plied po,vers of a conflicting nature. Says rw1r. tory: "The attlral import of a single clause 1 s not to e narrowe so as to exclude implied powers resu ting from its character simply becau~e tl1ere is another clause v1hic entl erates certain po,vers which . 2 mi Jht otrierwise be deemed i n1 lied po ~ers within its scope . u Common sense is t e one t hin J to be • :1. ven ree i ne ce i n all i nter retation • To quote ,1r. tory again: " Eve1~ v:ord is to b e expou ded i n its plain, obvious and common sense, u nless t., e context furnisr1es sorae rou d 3 to coi1trol, ualify or e large it." And in eed, this is tl e i 1nplied s irit of tle constit tion. When technical words occur, t hey nrust be inter r eted in a techn cal sense, un l e s this 10 ld be contra?;) to the context. It 1~ also evident tat the constitution r ecognizes t e fa.ct t at so e or 1 ds possess differe t m eanings and t hat it is 4 sup osed t he 111 be i terpreted accordingly. 1 2 3 4 F lly· , it is to be r 1 rnber e always t at the constitution Fede1alist, 1os. 83 a nd 84 . to ' tates, Vol . I, 37- . Ibid, 346. Stor, Con tion o . . , ol . I, 07. 32 is a fundamental instrum ent of government, and it must be considered a such in all interpretation. Changes, i pli cations and perversions must be in the strictest sense confined to cases of necessity and founded upon t l' e contents of the instru.ment, otherwise t here would be no basis upon which to start tre structure of sovereign govern- 1 ment . It must be noted in closing this chapter that t here has been no t h i ng found in the rules or rr1axin1 s of i rtterpretation as established in American constitutional de elopment that does not conform tote fundamental principles laid down by M r. lackstone. And yet t here l1as bee real progress. This, no one can sue cessf'ully deny. nd with this re gress have com e m any departures of wl i ch our f ai t ful a cestors never d:r•eamed. hil e they were arar e t at ne con itions must aris e , and t h e nation brought face to face with stu endous problems, yet it is safe to say that one of those who assisted in framing t e constitution ever dre am ed oft e arvelous rowth t o be a e byte twig of th ir planting . fo 1d one of tl1e secrets o .. the nation ' success 1er we hav existe ce. It as een ld i n place by a flexible constitution that 1a per itted ad just m ent to the storms tha t hav e t r eaten e its very life. I ter retations ave r ecog ized i n1plications tl1at were absolt1tely esse tial o the continuation oft e over nment . Cha ges of social or oliti cal conce tions rnay de a d constitutional amendme ... ts, but t e or l i g constituti on can du.re only as 1 t 11 endured; b a liberal i ter- r etation, ·t due r or t he powers or right s justly an to , ol. I , 3 3 Thor , Const tution of e U • • , o 1 • I , 58 9 . 33 At t e close of the Constitutional Co vention M r . ilson read a paper that had been prepared by Benjamin F'ranl 1 r , but w ich r . F'ranlrlin could no t read because of his advanced age. In his paper he says: 0 I confess that t ere are several parts of this constitution that I do no t at present approve , but I am not sure that I will never approve them, for having lived long , I ave experienced any in~tances of bein obli ed by better 1 for ation or consideration t chan.r e my o · nions, eve11 on i u ortant subjects vvhich I one t11ou ,rl1t right , but beca e I ex ect 110 better a11d because I am not sure tl1at it is not 1 est . " 0 Thi • speecl1' , says !Jr. Thor e, "tat ave us our cons tit 1tio . " · e elieve that 111 111 speecl1 1.~r. Frank in l1as de- scr bed e ene1'\al c ce tion of he on tit 1 ion as el i n h s a , a it ve ta·n1y define t l--ie attitude talen b OU gr atest la.v,- ers and "" stat . en tot e resent time. Ti~ 0 11o t offer an stro11 ar 1ts aga_ .st ... e for i f 00 er ne t rl ic the C 11- stit t io11al co ve1tion or · ~1nated. There oes · ot ee 1 to e a s re for a su sti~1te upon t e part oft e eo 1 . Th ro - b.lit es are that wl i ti1ne lasts , t h is govern ent , 0 of t '"'e peo le, b t e eo 1 nd for t e . e J 1 e , 0 eart 1 . hor e, onstit1tio of the United tates. Vol. I, 589 . Ib d . CI-IAPT. R IV. -T RRITORY- 34 Tl1e Cons ti tutior1 of the United States says nothing i n r egard to new territory. Ever y act that has been done by t he govern ment relative to acquired possessions has een based upon implied powers . Per laps all wil l a ree that the course pursued by our statesmen in adding to our possessions the lands of I.ousiana , Florida , Texas, Alaska, the V estern Territories and the Islands has proven to be a happy one, ad yet there have been t1ose who have doubted . the wisd o1n and i n s01 ne ca.s es the cons t tu tionali t y of these acqui- s 1 tions. The first a: d ost important of these extens i ons o the United tates bou1 ary was that oft e Lousia~a purchase. hen the ropositio11 was ma e to Jefferson to secllre the 1•, iississippi Valley from apoleon , he declare that he had o ri -ht to negotiate for land pur- l chases, s the o stit1tion failed to provide for uch transactions . o~ever , t h e vast advantage accruin to the United ~tates through un de iable ossession of t l ese fertil 1 ds of the r eat Vest as evi n to .1 T r • Jef erso11 and e s ood ready to ake the purchase if Congress rould proceed i th an amendme11t whicl1 l1e had prepared that would male the pure ase legal . T'nis a1ne dment also ma e ... revision 3 fr t elater annexation of lorida. But hile r . Jef erson was e ati t e i sue an waitin upon Coneress fo1.., tl~ e a rr e d ent , e received ord fro m • Livingston, Am rica ' s mi1 i ter to france, 2 on, United tates Hi tor , 3 5 t am, Co I i . tutio al La, 93 . 35 t t ~apo~eon was apt to c ange is ind i n regard to isposing of 1 t he territory, and t hat the ne otiatio s shoul e cons,11n ate • J f erson ecided to push the 1 atter , but was anxious to -eep the peo le in t h e dark as to his ideas of the u constitutionality of the transaction until after t h e purcl ase was completed . fter t11e busi- ness arran . em e ts were all ma e and the oney id over , r. Jefferson called a s pecial session of Co 11 ress to co 1s i der the purcl1ase, and t he d emocrats stron l y affir1ned the pres id nt ' s actions and ersuaded h i m that tre sovereignty of any national government include the 2 ri g t to acquire or dispose of territory . The question that troubled Hr. J fferson was ratl er tha t of i ncor orat ing the e~ territory as 3 a art ft e United tates, rather tl the ere ri ~1t of purchase . The sa e question was pr s t d tot u re e co rt tve ty-fiv ars later 1 t e cas oft e erican In ur nee Co 1 any • 1len t e validit o t e r aty of 1 819 , b \Vl ic:1 Sain ce e Fl r: da tot u ited tates, w s cons·aered . C ief Jus tee nars 1all aid i n i vi - t he decisio : "T e co stitut i on co fer absolute ly on t 1e o er·n 1 r1t of t e U io t h e o~ rQ of aking war an of mak:- n - trea · es; cone uently .at gave n ent possesses t he ower of co uest or by treaty . ' Th the oc- o sti u tion co tained o 01Jv-er· f e t ensi n l as b e o ever e asi e y i pli porers tl at e tl r i t e ature 0 t l e i n trt m nt or i n o e or .or -- lso ' Un i istory , 6 . 2 Ibid . 3 I • l • no e • 4 1 e rs, 11- 4 • • of its e eral clauses. when the ri ~ht of acqui i ion becam e est lis ed, Con re s A imtt1 iately bega to act upo11 eve1Jr question in connection with ownership and titles which arose i the new lands. Grants of land i n • ousi na, eorgia, Flor da an the wester states have lad 1 6 t eir titles c eare up under federal jurisdiction, as ertai ing to nevi territory. These grants are i nvar · ably of foreign origir and to settle t l ej_r lee;iti acy i tvolves de lin s witb. a foreign tate, and 2 any ucl business ust be carr:ea on byte fe eral gover m nt . Sin ce t e co stitution provides that Congress shall' ake all needful ru.les and re u ations respecti , tl territory nd other r o erty be o 1g i ng to the United States.," t er l as been lj_ ttle nee s aity for the us of i . li~d o¥ers i n cases of e 1 acqu·red terr·to1 is t e oi tat iss e. e r e t e a a e m t oi t·ve and 3 electiv rro ex~ ments l ve been • rovi e fort rrito ial co t rol . T a nd C ifo ·nia iere adi itted tot e U io n wit out any reli - 4 i nary erri or:al over jent . ~pecial or n s of over nr have been provide Conq er for Po1~ o ico, t e a aiian I l rnds ad t e Pili • i nes. terri to1--y is u11 r control of tr1e reside r1t nd Co gress, a _d a r e ruler s c-te of' roce ure is follo eel i mana in sue t erritor is .e i ro rty 1 n j , 2 3 u i g tle t·r .e of conquest, a- d v•l ile t e U ited tates a orrnal overnme t eta lis ed. Q u est· o1s of citizenshi, etc. ar. Ct i in ew territory, d V lve upon t e u it ta.tes onstitutio al La , 1 o. stitution, t. I , ec. 10, Par. 1. 'iil U ·hby, The utional yste ' 20 • 4 f rt, ctual 65• 37 gover ment. ince t ere is no longer any question as to its rights to acqui1e, the ower of management is assumed to follow. In this connection it will be i lace to cons:der the o roe Doctri e. hile it is ot ri rr1arily a cons ti tutiona.l matter, yet, ir1 fact, tl e doctrine con1prises one of the g1---eat u nwritten elen1ents of our constitution. 'Ihe ri Ji al onroe Doctr· e was drafted by resident rvlonroe and inserte in is essage to Con ress. Refer nee was ade to the rinciple i volved int e doctrine in asl .·ton' declaration of neutrality and in efferson 's famous . 1 p rase "ent glin alliances with none, u b11 t e name of ~. 1 lonroe ha become atta ed to the doctrine because of hiQ renewal and em- 2 phasis o f it duri11 ., t l e eriod 1817-1 23 . The re~i ent's protest vvas 1, a ai st s~i ' oc c1: anc-:l of the northwest coast "on the ass'Lun tio 11 ta it was ossesse b no ot ... er civilized po,ver," and 2,"the attem to France , in behalf of an Euro ean coalition to i terfere i n Central and ou America , with t e pur ose of co 1 el ling t · e ~. anis colonies · to r etur n to their' all giance to 3 Spai ". 'he m rica s alleged t hat t eir co tine t v as already ow1ed b som eone, d tlat i terference ·th said ownership would onl cau e tr·o ble . T ey also asserte a s ecial interest in ot er erica states. h i s ed tot o co clusions; first,- tat any attempt at colonization i eit er ort or 0 outl mer·ca b any ro ean o er ould b con id'rea a unfriendly act toward the U i ed ta.t ' fr err or tat op rt of ort mer·ca coul Cha in , ist rry of' t h e U i ted ta s , 311 · 2 lso, o f n ted tates, 4 2-4 • ' nt, 3r/6-7 ------------ 1 voluntar il tra sfer its alle iance to any European power . 38 The Doctri e was ut to a test in 1861 whe t e French , takin advantage of the situa. tion in the u·ni ted tates ca.used by the Civil a r , invaded f ,iexico an set u a ~ 011ernment und r axi illian . vit no other argument t han t h e Ion oe Doctr ine , Preside t Jol1i-1son 2 cau~ed t he ithdrawal of the French in 1861 . resident Jolnso and re ide nt Grant al o advocated t e annexation of so e o t est Indies Island in order toe force t e doctrine . Later in 1880 , in site oft e st a d oft e ericas on t e subject , t e French began t e canal across tle Isth us of ana a , butte com pa y aile in 1 8 9 . e te erti ri .ht to build , own a c a e o t L. fro t , co trol sue a w aterway a d it own immediately t o ut t eir eclaratio i t ractice b starti g t l canal 1 ch has so cen l y b en br ou ~ t to as lendi i ish . I e1 t Cl evel br u 1 t t he r'1onro D octr: e to Jla ain i 895 r e ettli btl dar dispute o f ei - t -o ·· years stand- ing betwee trat io . g l nd and V zuela i 0 ou I 1901-n Pre · de t oouevelt erica b ie ans of arbi- ecre ary T ay nade a agree e t lfi t the Ge1 an go,rernment that the Gerrnans would make 4 no m ore tiem ts at nati al coo tion i n out: eri c a . f us t _ e U i te tat rot ects e1 tral an Sout: eri ca ram n as:o , itlout leg 1g a c e tain l i nd of g ernm nt . or th se ti1 e U it t t es i n t i nc1 · ned t o T t , tu.al 0 ern1 e 1t, 77 . n 1 , to r • "v1 c ) o , Sta ' 0 . 1 2 • t , t , 7 • preve t justice be~ n obtai e Euro an pe ples for .trie a es eld agai st t e i ' xivo or Canada . bi tant of t e c ou11tries of S ut • erica , The a ove fact ar related tat we i ht r alize t e xte t to ,hich a si le doctrine , grovi gout of our national developlent an i nculcate into our constit i o al system, as 39 i f l ue ce t e e elo nent of Ar erica as it al o of e 1ation s o t 1 vrorl • An 1./ha t t e 0 1.. t co ... e v1ill be i as lli1C ertai11 as has beer t e development th s far. The war of 1898, wt~ t e resultin insular ossessions nite 1 tates utan enti el· new as ect o e uation . TJ.e Euro e nation ar cry i ng out a ai st our national ex a. sion. Tl1ey cannot see t e co· ·st c of "America for · eri ru s" , · · il at t e s m e ti1ne it is becoming 11 , s ia for Amer- i a s O • hat th e d of th · territorial proble 1 r 11 be, only t.: me can tell . o t _erica s seem 1 e 1 satisfied , · t h he regress ma e i or a ional expansion n are no confldent t1at t e co . t t tio1 i m~lie t he rigi to territorial acqui ·tion with em- phasis suffi i e t to - action perfectly leg ti na ma e ou e . It i s no wit n o r co e to C ss t e terri 0 ia.l ro 1 m s t at arose • uring a on acco 1t of t - e Civil - ~ ar . I , 1 ti. as- u er a o te by tl re e t and Congress to uit t e e er- • t hat ienc 1. s ar se, an witl f ev, e ce tion ::,oes istory l1ovv any 1 40 developments that were not perfectly legitimate under the cir cuznsta.nces. The r at trou les t at arose durin t r1e peria:i of reco11struction emanated rather from the different opinions o t l e preside t and Congress concerni rr t .l e states t hat had seceded, and hile momentous and extensive, did not arise from i mplied owers of the constitution. I 41 PT' Ve · , I irPLIED PO VEH.S D FI C IAL P O : LE 1 1S' • We have noted that one of the greatest weaknesses of the Articles of Confederation was that there was no adequate provision made for the financial needs of the federal government. The states could not be compelled to pay the assessments made upon thern for national support. While the constitution was made with a view toward I correcting the Articles of Confederation at this point, and care was taken to make its meaning clear, history shows that some of the hard est struggles through which the government has passed have arisen in connection with financial problems. It is generally conceded t . ha.t any sovereign governrnent has the inherent righ t to tax its subjects. ·The legislature of every free state, .. says Justice Gooley, ·•will possess 1 t { the right of taxation) un, der tl1e grant of legislative power, vvhether particularly specified in the constitution amon the pow rs to ~e exercised by it . 1 or not." Chief Justice rv1arshall says, in speaking on this subject: .. ,r11e power of taxing the people and their property is essential to the very existence of government, and ay be legitimately exercised on tne objects to which it is applicable to the utmost extent to which t h e government ay choose to carry it. The only security against tl1e abuse of this power is found in the structure or the government itse11· . ln imposin a tax the l~gislature acts upon its c nstituents. This is, in general, a sufficient security against erroneous and oppressive taxat,ion. The people of a state, therefore, 1 Gooley, Con titutional Limitations , p . 678. 42 give to their government a right of taxing themselves and their property; and as the exigencies of tne government cannot be lin1 i ted, . l tney prescribe no limits to t he exercise OJ. this right... 1e read in t he Constitt1tion of the united tita.tes concerning tr1e powers of Co: ngress; "The Uor1gress shall have power to levy and collect taxes, duties, imposts and excises, to pay t e debts, and provide for the com11on defence and general welfare of t h e united ~ta.tes; but all duties, imposts and excises shall be unifor n throughout the United G States. ·· It also states that .. No duties or i mposts s hall be levied 3 on articles exported from any state," and., that .. 1 0 capitation or other direct tax shaiL b e laid uniess in proportion to the census 4 or enwnera tion hereinbefore directed to be taken. ·· 'l't1e above quo- tations seem clear in their meaning, nevertheless m ucl1 discussion has taken place in t h e courts concernin 6 tJ.ie signification of t hese clauses and t he n.ature of dir ect taxes. Ju t what cons ti t11te direct taxes i s a problem not yet 5 sol ved. Con ress has decided in several cases that direct taxes embrace capitation and l a nd taxes only, although the decision in 6 no in s ta11ce 1nodifies t his by adding taxes upon personal property and i ncome tote list. hat incom es are i ncluded in direct taxes is no\ a atter o cons ti tu1lonal la.w, n1ade so by the sevente enth a ne11drnent to the cons ti tt1t i on. 1 I cUullough v. d . 4 heaton, 316-4 • Cooley p . 679. 2 Constitution oft e United ~tates. rt. I, • 8 , cl. 1. 3 Ibid , cl . 5 . 4 I id , .f r t . I , • 9_ , cl. 4. 5 T ylton v ••• 3 Dallas 171. 433. Veasie Bank v. •enno 8 Pacific I nsurance Co. v. ·all 533. Sprin , er v. U . • olluc v. 'ar mer s Loan Trust Co. 158 u •• 601. oule 7 all 102 U •• 586. 43 In re ar.d to exports it has been held that a stamp might be placed on exports to prevent fraudulent duplication without being 1 unconstitutional . It has also een decided that states cannot impose taxes u pon patent rights as such action would be an infringement u on federal control of its own business . However , in general laws made to tax legacies, a state may i mpose a tax on a legacy left to the United tates, since the tax is levied before the bequest reaches the 2 United ~tates. Furthermore , a corporation holding a United utates franchise and doing interstate commerce may be taxed b y a state 3 upon the franchise held from t.e state. This appears entirely just since the corporation is in -part subject to the state author ity for its privileges. Anotl1er implied limitation upon the taxing power of the states, is that they are excluded fro m taxing the organs of the federal govern1nent doing business within their limits. 'l'his was 4 settle d forever in t l1e great case of cCullough v. ] iaryland. ary- land clai ed the rig~t to tax t h e United tates Bank, or anized by Congres and doing b11siness v ; i thin the t er'ri tori al lin1i ts of iary land. T1e ~aecision is one o f t h most noted i n our constitutional history, and elped to establisl1 t he national government a.s supren e over tho~e of the states. The supreme court hel that no tate had a rieht to ta. fe eral institutions, on t h e ground t hat such privilege ould incl d t e ri ·1 t to v1ealren or entirely destroy ace v. urs ess 92 u .s ., 372. 2 u . v. erl ins, 163 u • 625 • . , • 3 G en r 1 a cific Cali lb2 u • .....: . 91 . • • o. v . • lb e e C ou 6 . 4 4 1 6- 4 1. 44 the agency taxed. \.ihief Justice 1az~s11all, in iving the decisio11 of the court, said: "Tl1at t e power of tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one governmen t a power to control the constitutional measures of another, which other, with respec t to those very easures, is de clared to be supreme over that wlich exerts the control,- are propositions not to be denied... 'l'hen he asks: "iJo ld tb e people of any one state trust those of another with a power to control the mos t insignificant operations of their state government!" 1'--•;~~;: 40 ,f .. ,. lh-y then sl1oul _ we sup ose that t :t1e eople of any one state sho11ld be willing to trust those of another wit~ a ower to control t e ..... operations of a governmen t to wlich t ey have conf · ded tleir ost 1 impo1ta t and val able interests s? " To pern1it t .e states to tax federal hol ings would prostrate t e nati on efore the states. The r:t . 1t to ta"'r one instrum nt 1lOUl in1pl"':f - that t r e sru1 1e ie ... t be done to any other i strurent . ut such a condition was ot intende byte fra ers oft e constitution, or as ~r. 1arshall says again: ''They did not design to ake the governn1ent dependent upon the 2 states." That the federal government a~ power to tax state bank I ates in orde:rl to as ist in getti g U · te State .. anl{ started , 3 has en hel in two cases . This power was im l ie ' in co nection v1it t e clause t at a already been quote , ii l1icl1 relates to the I f\~c Cul l gh v . v d . 4 heato 316, 431 . , 2 Ibi 'Z ational an v. u. . ' 101 .. power of Congress to pass all laws necessary to make its specified power effectual. 'l'his system might ap pear to some as beyond the powers of ConBress, since no one argues that such taxes are for raising revenue, but t _e duties levied upon imported goods 1·or t he purpose of stimulating manufacturing industries at nome cannot be 1 consi ered as being laid for duty. hether or not such duties and taxes are constitutional is still a question wit! so e, although Congress has t hus far implied its right to lay them. That a state cannot tax the income of a federal offlcer ithi its borders is al9o sustai ed on t 1e round that it might be destructive to the acts of Congress by interferine with t e liveli- 2 l1ood of officials thus taxed. 'l'he same opinion is held by the S.u ren.e Court i n regard to state taxation of u . ". onds, exce t as per1nitted by lav1. In i vi ng t h e decision o a case of this char acter, t he court said: "If t e rig t to impos a tax exists, it is 45 a rig 1t vhicl1, i _ its nature acknowledges no lin1 i ts. It may be car ried to any extent within the jurisdiction of the state or corpor ation which imposes it, ~ l1ich tl1e will of the state or cor oration 3 may pres er be.·· 'l'he same principles apply to the taxation of state agencies by Congress . Eac overnment is supreme i its own sphe1e. '1 1 hese cases are given to shov1 how irnplied pov1e1-as and in:plied prohi bitions h ve develope d within our syste of taxation. Both the Constitution and the red ral ·tatutes fail to provide for any of the detail necessa1 y ir1 levyi:r g taxes, and outsi e of in plication 1 Coo ey, Co stitutional Limitations, 68~. 2 Do bi s v. Corn issioners of Erie Co., 16 eters, 435. e ton v. U arleston, 2 eters 449-46 • 46 business would be delayed beyond endurance to our public welfare and national prosperity. ith the increased fina ncial complications due to tl e in crease of large business enterprises and on accou11 t of tr. e part t at t e state and t e federal governn1ent are tak i g in owning and managing publi c utilities, the problems of taxation are beco ing more and more complex and difficult. One constitutional change has taken place in connection with this great subject by the adoption of the amendment providi g forte taxation of incomes, but it is safe to say that the 1 plied powers pertaininB to taxation and to finances in general that have bee s ettled by the courts, will continue to stand as good law, and thus to endure as long as the constitution itself. There have be n a great any laws passed by Congress since t he adoption of the constitution, pertaining to taxation or other financial questions, that r es t purely and simply on i mplied powers. In the first place , Congress , through the influence of 1ir. Hamilton, assun1ed and funded the state debts inc1.,1.rred during the revolu.tionary eriod. Primarily this was to establish national recedence and gain res ect from abroad, but there was no direct constitutional provision for the act. rl'he creation of a national banl{ 1J11as also ul ra-con titutional, tlere ein no direct provision for its l establishment . It was stronely opposed from its eginning and pr c i ca lly destroyed by J clrson lien he cause t e deposits thereof i'lson, Hi tolJ of the United · ta tes , 346. to be removed to the state banks in 1833. 'l'he federal resional banking system which is just now being put into operation is not provided for in the constitution in so many words, and yet no one denies tl at t 1e gover1unent :has pov;er to provide ways and means by wlich to carry on its ·ork. 47 That Consress has the in,plied power to select the .ethod by 1 which to carry on its e11te1"lprises was decided in an inter sting case in 1804 . Te united States Uircuit Court of the Pennsylvania District held t at Congress did not have power, to pass laws gi\ring the United ~tates pr ference over other creditors of an i solve t debtor. Te I united ~tates Supreme Court reversed tle decision, restin its judgment upon t e corr ct inter 1~etation of t e "necessarv and proper" clause of Arti le I, "'ection 8 of t e Constitution. 'rl1e court said: .. In construi g this clause it would be incorrect, and would roduce endless difficulties, if the opinion shoul be tair1ed t at no law V: as authorized which was not indispensably necessary to give effect to a specified power. ere various systems might e adopted for that purpose, it night be said with respect to each, tat it was not necessary because t e end might be obtained by other means. Con ryress 1st assess the choice of means, and must be empowered to use any means Ii hicr1 ar in fact conducive tote exer- 2 cise of a pov;er granted by the constitution." .J· nd 1 r. iars all said in anot er decision: "Let the end be legitin1ate, let it be wit in the scope of the constitution, an all means which are 2 United ta tes v. F isr1er, 2 Cran ch, 358. 2 Cranch, 396. appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the latter and spirit of the Consti- 1 48 tution, are constitutional." Certainly one of the greatest sources of implied powers rests on the principle upheld in these decisions. The constitutionality of the Legal Tender Act which was finally decided in 1884, and which related to the extent of implied powers of Congress and to the absence of judicial control over legislative discretion, was settled largely by conclusions reached in studying 2 ~arshall's decisions in the two cases just cited. ome of the plans of the government during the ~ivil ar are also worthy of note in connection with the subject of implied powers , as that was a period when necessity com elled many departures from the ordinary methods of government procedur•e . An act passed July 3 13, 1861 gave tbe ~resident power to declare any section of any state in which opposition to the laws of t he united ,tates prevailed, to be in a state of insurrection. He s aut orized to provi~e for t e collection oft e duties fro , any port within t e territory in question and to declare ports closed if necessar-y. The overnment also provided for war expenses by laying an income tax of 3 per cent on all incon1es over \ · aoo and by issuin interest bearing bonds to the extent of 1,199, 000 , 000 and non-interest bearing green acks 4 to the extent of 450 , 0 , 000 . On July 16, 1862 an act was passed . 5 making t _e sla,res of those who died wl1ile l1olding slaves free, and 6 in 1864 the Fugitive Slave Law was repealed. ile t ese were 4 heaton, 421. cUullough v. Pd . 2 • 1 • • Cooley, Co11st. ist. as seen in American Law, 93. 3 .acdonald, elect tatutes of u. ~ ., 4-9 4 5 lso , United tates 78. tatutes, 51 - 52 . ---------- 9 undoubtedly good ar measures, yet it is doubtful if they were all within constitutional limits, and most of them were in pursuance of implied powers. It is certain that t h e legal tender issues and t.e ir1come tax wer·e premature, for one was not,settled until 1884 as has been noted, and the other while constitutional to-day, was 1 declared unconstitutional as late as 1894. The Cons ti tu.tion wisely placed all powers of ins.king and regulating the value of currency· in the hands of tl1e federal gov- ernment. ot iths tanding the severe financial struggles through which our country has passed , brought about by crop failure, specula tion, general depression or war , Congress has been able to prepar for the country*s needs by some provision such as legal tender issues of paper money, forei gn loans or script. These measures when first adopted, have usually met with sever op osition, but experience has taught the people tr1at their) legislators a.re to be trusted in deal ing with the f i ancial legislation required : · !.Le country at cri t- i cal times. Ameri can finance, which is undeniably one of the m arvels of this industrial age, is the outgrowt_ of experiment, and after more than a century of turbulent history, due to lack of legal system, it finds itself firmly resting upon the Co stitut i r . Implied pow ers ave beco e fu1:1damental '1 .r . ~he r oots of the rowing plant have reached to bed-rock. l 50 CH PTER VI. ICA CO - CE- How ffected by Implie Por rs. The n lis colonies in 1erica were lar ely the re- s1.1 t of comn1 ercial enter· rises. T 1e industry rew as the population increased . Before m anufacturing had gained any foothold nd wile a r culture wa in it infancy, extersive trade wa carried on by th colonists with t e ~et Indies , 1 an tl e continent . So rap i ly di merica· t rift a1d enius ex e dover the field of in- ternati 1 al cor:inerce , that European nations we e s001 forced to reco nize the ri hts o the estern colo ists on the h i gh seas. e notice t.r1at the first disputes which arose etween England and her 1 American subjects originate over coin ercial problems,, a11d wl1en at last ar was declared and the American Revolution opened, the avi gation cts are justly held res onsible to a ,reat de ree. hile tl e Var of Independence l1ad for one of its results tl1e practical dis tinction o American co erce abroad, it is uite evide t that the tra i1g s irit still survived i n th learts of our people, for ithin aver few years the ocean was again alive with American slips anne b mer c , seamen. A secon war arose, ain over cormercial is- sues, with the result that England no lon 0 vr questioned our rights u on the · i h seas. The v1estern s irit of r ocress a d e" .te sion is vvell 1 u t l ed i Or C011 e1 ")c•r1 acl1ieve 11 e ts. Bu t e e eve o m n t re en i ely beyo d t e E S01 , U11i t I i~ tor, , 16-217. _____ ,_ • 51 a pre e sio o the fra ers o f t he constitut ion. Tley ,ade very few and brief r ef .r e ces to internatio al trade. Litt l did t e dream that our relations to other cou1 tries woul d becorre so int ensive ad so i por ta t . Ti me las r oven U1 wisdorn i n leavir g these questions to t e re ident ai1d Con re s . They 1 1.av proceede d t o direct ottr 1 affairs accordi 1 to + heir est judg er1t , being hindered bu little b co stit1..1.ti onal provisions . c ·rctu . tances have occurred, a .ever , int e developinen t of our cornrnercia.l i ndu~ try, botr1 at o rne a d v1itl o t l1er natio11s , wl1 i ch sr1ow that impl ied o rers o f the constit ion ave ofte r ou .. gl1t i nto play . The co1 titt i clearly states tat the Congres s all have p ovver 0 To r gul te comr. erce it fore · g· 1 n a ti s, a d a mong t he sev r 1 ~ a es , n witl t h e In ian t r ibes . 1 t ju t at con ti- t u e :, n co .1 er ce" u n er ~ 1at circu st nee it as coisid r e to be tl ev ra. ta tes, 0 or 0 1Ii t l the I tr· bes 0 . ' ere q es - tion n t so as·1 • ec e . f r c e ill e1 to illustr te or e o-f' lie d ff i cu.l · es a aro e , an ho - er wer ~ ttled . c rr _ ed rever sect t l I e ·ear 1824 , t e c a of Gibbon v . O de s t h e su r eme co rt of the U ited States. n 1at curt eci · o OD t 1e SU r me co rt " T ew York by h i ch Gibbon 1 1 d be .n r estrai ed f ro 1 usinc; s earn ats 011 t R C ad_ · ee 1 C 1ly llc n 0 Ul r ac of Co11gress, eca rin • t e"" c l u ive ri l1t for SU. • atio e ].! . u - e l av a be a te to 0 ert lto d r. iv· ng to I n ~ Tl • 1 u. , . Co 1 • utio r t . I , ~ec . s , ar . 1 , • eato , 1, e rv • t C 52 decision , Chief Ju tic .arshall n t only clearly defines comme1ce to i elude all means of travel and passe ~ er carrying as well as the carryin : of goods , but says that all vessels are i eluded, regardless of ho they are repelled. In the same decision, r . I arslall thr ows 11 ht u on tle . eani_ of national and interstate com erce i the follo,v-i g vvords : " Jioreover , the poi er of ongress o regulate com merce , either with foreig nations or amo g t1e states , does not stop at the jurisdictior1al lin.es o the states , but mu t necessari ly be e .. e1 1 c sed within their terr·i tori al jurisd ·, ct ion, an.d mu t i elude ever case of 00 _1 erc · a1 intercourse l ich iR ot a part of the 1 purely inte1nal cor nmerce of a sir le state . " Thus , for tre first time tl e people of t l e everal stat es rer · · ver1 a clear under stand in0 of wlat t h e constitut ion implied v en reference was made to i terstate commerce . This decision of Ir . arshall is of vital interest tote eo le on tl e Pacif~c Coast at the preset time , as it ¥ill undoubtedl have a great influence on eter ini g t h e qu sti.on efore t e courts re gardir g t h e status of comm rce alon tl coast b etwe n ort o f t e sa1ne state and of d · rre1'le t states , which in transportation , asses over f e h i gh seas . Tre o en t~ e an m Ca al ill v,r diffi cul t ies to t he s itu tion , due t o s 1i s s toppino· a t fo r e gn 0 1 ts an carryinr.r o rne fo e gn tra e, and t l_ e OU co will be 1atc ed 11th rofou d i _t r st b tl o~e i n.ter st i n consti u ional develo . ents . T e t e1n ~ r 1 nd t o ix alien t u on T 9 53 i 01ted _oods before they could be old ithin the state wa e void in 1827 because it co stituted a ut o i 1 orts co1 flicted 1 it the ecisi ns rendere i t e case of Gibbo v . 0 de . Tat the states could le gislate on con1 erci 1 pro lems i v1l1i 11 they were i ntereste , thou really under federal jurisdiction, 1 re o ational lavf existed on tl1e (',ubject , iJ as determined in 1 .29 in 2 t h. e ca 0 e of lilsor1 v . Blacl -<bird Creek Jar 1 1 Co 1pany . In this decisio 11e u· 1· rne court held a stat la r val id . i cl eriitte a a n to b e bui l t acros 0 a stream , excludin . all tra s ortation vvl...atso t ere bein not • • i n ti tu_ ion or • ver, ing e i er· e co J. 3 le -islation by Congress rith V\ hich the sta e lav co f i ted . It will e see t at i eac case ci -tte tl.e i mpli d porVer'1 of the Ur1i ted States Con t tu ion ere brou 4 t into use . ot er oi .t worthy of co si ratio n rere is tla t int r'stat com erce regul tion as refe1'"lre t i t e constitution e to ~o almo t ex~lusively r t ~ e duties i mpo ed rather an op y · cal 1el s or obstru.ction . B~ )0 ordi ance of 1787 and b tl: e nabl · n acts asse for t e ad ission o several of the states, it 1a~ r ovi ed hat all avigable water ¥ith~n t e ·r hould be uco t .Jo11 L.i ·rn ays, 01 ever free O • Tl'1e phrases tt O 1 0 h . ·h a s ' t d 'orever ree' h ve r een eld t 2 efer t olit cal r e;ul tion e tr ctive to th fr edom of o m r e a t er· tl v . ~ ryl 1 d , e a o eeli 24 . e 1 v . e ica to hys cal li dra ces . T .. atu. of state 419. r o. 11 tate , 2 • • • 54 andnational laws relative tot ese navigable waterwa s within t e states ha 0 been v1ell sum arized by Justice radle-y· in his decision rendered in conn ction with traffic under state co trol on t e Colu1bia River. I tis re ort l e says: 0 T e clause in que ti n (Co stituti no t e U t Sta es , Article I , ectio 8 , ara -ra h :) can ot be regarded as establishing the police power of the nite tates over t he rivers of Oregon , or as givinrr to the federal cou1ts t e :r•ig t to l ear and deterro.ine , acco1ding to federal law , every com lai t that m ay be nade of n i m edi .ent in, or an encroachme t upon , tte • avi atio of t OS at rs. e o 1ot oubt t- at 0 ress , if i t sa fit , could thus assu e t l care o~ said str•eams , in t ... e i nt r st f foreign a d • ter'state e onl t at in 1 co□ erce; a our o • • it has not sob t he clause in 0 t ion . nd inion , 0 e qu al thougl , u til Congress ac s ' tl_e states ave t e lenary povrer sup osed, yet when Congress cloo es to act , it i a.nyt i gt at t e tatea ave one from assuz i t he matter , n ab ti y r ection tat a ot co clu d by ntire co trol of ave be n made , an preve ti 6 any others fro1 e i m ade exce tin co formity witl uch 1 re .' 1 tio. s a i a t le result oft at of im o e. 0 The decisi ere q10 ed was lar ely i tch it ii 2 tur ~es v. C rowPi s 1i ld , decided i 1819 ~ eci ed tl at a tat la r on anl{ruptcy o oul old , si ce o · -·· ener 1 statute on t e c bje tl e exi t • Tis a teen t e . e r1era rend o nter r et tion u 01 ti su ~ ct , so ev I i tl1e co stit tio , t .1.e tat c ta1 .,.i r recautio1 i n tto I r o r e o . v. Ia c, 12 u.s., l· e Court Re orts, 811 . ---- • v rely e i ne 1 it in co stitutional limits. 55 Just no r t e comt ercial roblems are a1 on - tr1e reatest that confront t he United tates. The increase of power o t e art of tl e Interstate Con1merce Com ission l' as created a ·reat disturbance ar on tle trusts a n lar er combinations. deral control of liquor sipped into dry territory from a otLer state has at last been se cured by the ebb- enyon Bill, thus i nflictin a severe blow u 01 t l st1pporters of t he "tate's i ·hts theory , and,; ·t 1 the a itatio for tio al r ohibition ai i g strength every year , t cry of " P rso al ibertyn is again bei n '." l eard fro t e li ·uor dealers. The ca e o t e coast ali ornia ad the otl r cific st tes al ea re errea to i m · de m ore co J licate tl a ever byte decision o f t l1e rvm e co rt i 1 9 1 v;l icl e tr wit ot r i sular o essions d e e cies ub·ect to the sa e regulatio 2 as r egu- lar coastwise trade. d Io can co pre 1e d t e reat problems that a e y t t arise i n conn9ctio . t l1 t1: ot i f l y i ng nac:1i Yie, t e v r es a 11 ... ,lehor e,t sa oft e i ven i on y u knov1n . 1 r e an war n ow n r orrres h s ~ rou _ht t Unit utat s , wit 1 ot· r c n co ntries f ce to face wi 1-1 pro blen1 pro- t ct " 11 . h e co mm rce 'rom tl e r ava e 0 0° fo r ei n rar . 'l at t h e out 01ne 'vr ·1 1 be , no ne c n te 1, u e our vvelfare ill d o s avJ t h e are 0 red ce lo 0 utn ~ t , t, h l rn , be 1 i e r i r1 ha t l1e • ' of all diffi u t a st tl ~ t h e l oo lie i n 1 · e owv s of tle consti u i on , if t~ · r curse o ex l i e · 1 f n d . t ltv s, 1 0 . 417 . 56 OLITI AL C TO 0 I I Tir G I I I.wD PO f • fiel o ~ r eat interest is o ened up efor us when mention is m a e of politic 1 cu toms that ave develope i n connection rith our overnm n al rstem, ad yet hich are w ally or in part ultra- constitutio al . e cul scarcel close this aper ~it out alli~ a tent ion to s om t i gs of importance i n con ectio11 f i th eacl1 of t he de art1 ents of our overn1ne11t which esse 1.tially have ori 0 inated throug i plied powers . We s hall con ider t e deJ.)art .aents separately , or con venience an deal ith t h em i n the familiar order viz: legi slative , executive a1d judicial . The implied ower of Con .ress have o do wit its cope of l e isl at ve a .L ority ra 1 1er t ... a ~i th ts for1 of proce ure . e atur o the "necessar a1 d ropern clause is fun ar1 ntal . ~ e t i n ~ , . f a i t n a ut t ~is i n tle correct li t i1 t h Feder- • 1en i n e CO I stit tl t i o1 e says: " hey are onl declarative of a t ruth v 11 ould have resul ed by n cessary and u.11avoidable i r 11 ation f r om t 1 ver ct o co stituting a federal government, o rer to lay a ollect ta es m s t b e a o~ er to ass 11 laws n cessary and roper fr tle e p ee tio oft at po1er; and 1 at does t he u fortunate an calu _ ted r ovi · on in u est on o ore t1an d clare t he same - - - ------- - - - - ------ ·· - ·---------------------- 57 trutl1 , to wit , that the ational le islatu1--e , to Nhor. t h ower of layin and collectin taxes h ad bee 1 reviously iven, 1 ni ht in the execution oft at power, pas all las cessary an ro er to carry · t into effect . .. o limitation wl1atever laced u 01 t e powers of Con ress exce )t that t eir actions be n cessary and roper . And as r . Iamilton says further: 'tv itl1out t"' is provisio11 the sa e result 1 would have follo'tl\fed . " Tle very nat re o' -overnrne11t is supre1e efficiency for every need . Att ntion has already been called to the attit1de taken by Cl ief Justice arshall upon the question i n the ,rat case of . CCU lo ~h v . t e State 0 'iaryla d, and to l is state e t that le is ation ith ~ t e spirit and letter of t he constitution was co sti tutional . Fifty years after v ~r . r, arshall deli rered h s --amous remar-s in t his case , the su rem e court , i n ecidi the Legal Tender cases said: " e are accus to1 ed to speal for ere conve11ien e of the express and i mplied ov,ers co11 erred upon Co 1 res s . But in fact tl au ili ry powers, thos e ec tio11 o ot er pov1ers s · n<->ly es.cri ed, are as ex re sly i ven as t e povver to declare war, or to establish uniforn1 laws on the subj ct of b a n {ru tcy. lie· are ot ca alorrued; no list of them is m a e; tley are rat din t he ast clause o section the fir t article, an grru te i n the s rn wor s i n wl1 i cr1 1. other 2 1 2 er ar c;ra.1 te to Co11gress . " T e 011ly limi a ..... 011 ac movrl rther e os · tion o t ese cases w that t e s1 011 . t 33 . lallac , Le al 7- • ----------- e e a ecessary relation between t e ougl t a 58 1 t e ea s ado ted . Certainl t e owers o f Co gress t at are of a11 i1npli e d nature rest u o 1 a firm ou· dation an t l eir ri l1tness nee not be questioned . A pint rortny o r ote i tis onn ction is tat t h e powers of Con .ress are not to b e enlarged by a str · ct i nter retation of c l auses whic restrict its authority . T ere t be l iberal con- stru.ctio ere a s we l l as an~ here else . U er ti pri ciple a stamp tax u on a for i gn bill of lading oul b e hel u 1constitutional, as ~ ei i violation o f t h e provision iliich pr vides for · o duties on 2 exports . It i a so i ~pli ed tat Co ress has no o~er to ass irre eal able la s, or in ,o doi <, ey roul alter t he very co - s ti t u tio11 fr o ~ icl they obtai· :ut~ority to act . Te · eo le ar e the .. ou ce o· t e co s t itut i on an i t s t e y viay alter its rov · s ions . On t l es m ro11n d s on .a-res s is prol1i bite frorn Stlch l e · s1ati o1 a add i · ualif icatio1 s fo r ra11 hise , durat · on of terms o offic e etc ., a s 1 o t h e a e wi t h tate legislatures , f or s C l 1 I S woul i nterfere with t re latio of offi es a d officers 3 j e t t • t i onal pr visio 1s . S U C n "'I • Certain l es r e l ati g 1 i s latio11 a ve be n a o ted an fol l e 1t il t e h ve al1no s t rea cl ed t l poin t of b ei con- s i der ed o · c ons t itutional or · gi n . 1ot wi t standing t he f ac t t hat e C OU i r es po i ble o ts o r ule , t here rew u a custom of lo he ous fo r ice a d counsel u il t e , Co1 27 2 . 2 - ----- - - --- --- I i , 27 • oo ey , s t.:.tut1 7 4 2 . 59 his power practical l y developed into that of a dictator . The appointi g of all co1nmi ttees was in is hands. This , however , was changed in 1911, since w ich time the election of committees is 1 almos t e tirely lit int control oft e House itself . custom peculiar to the enate i · that the rules gover ni Q its procedure are, nl i e tlose of t l e house , er ane nt rom session to session. '!'his la ee tle practice so lo ~tat it is likely to r emain m changed • Tl Exe ctt u i ve De art 1. e1 t • erie ced some i terest- i evelo m nts 1,;r icl ave gro n out of i licatio11s . he 1ties of t h e presi 1t re clearly stated i n t econ titut on , yet there ave ee11 necessary a just ents due to heno□inal growth o t e cour try . Exe e cies ave arise t hat ve er nded implied powers in rerrulat ·ng tle duties and c ri ers of this epartment . hile t h e const · t tion provide~ tat the president 11 • y req ire the o ini n i r · tin o' t he pri ci al offic r in each o..D t e e e cu · ve de art1ne ts , u on t . e ties o eir re necti ve offices , it does riot rovide for ti1 e ere -a i o1 Oi t ese office nor t l e t · 1 e o tneir duratio . Toda we have t d e art e·1.ts, create a differe th co n t'Yl ena d , e cl doi1 1 - · ;or esse al to tl e rovvth of t h e natio . • Teed rtm e t t e t her on titu+e t he pre i e t ' s Jel e o lle to ,et er or consultatio uring t t rrn. All eir meetings are extra-legal , tates, 20 . 2 s , Arti le II , ec . 2, Par. 1 . - ------------------- 60 ad nor cord oft ese -at erinu is ept . o mention ' h teve1 is made cancer i t e ° Cabinet ', either in the co sti tu tion or in law..., suosequently assed by Con ress. The~e i every reaso to believe t l1 t ot er depart ent s will e c1~eate as occasion de. 1 ands . 110 q11estion which arose early in o·ur na tio11 's history was vrhether or not t h e conse: n t of tl e Senate was necessary for the reinoval of executive appointees, as it was for tl1eir appoint1nent. 1 It was strongly argued in the affirmative by Jr. Hamilton, but later grew to be com1nonly accepted as unnecessary. The opinion applies 2 to all adn nistrative officers whether in or out of the Cabinet . Sinct tr1ese officers are in a sens servin U1e reside t vfho appol s then, their terr:.1 s of offi ce ex ire Vii th his. There has been a ,reat diver ence of op·nion by the various Pre co1 1cernir1e t l1 ertai ing to their , off j_ce. A tte tion as already een called to iv'.ir •. Je ferso11 s view in reJ.ativ r1 'tu the Lousiana Purcr1ase. 1 vr. ~uchanan, w ile he i n sisted u o kee i ng t h un ·o i tact, felt that e had no o ·er or authority to use t e federal forces i ord r to coerce 2 so ereig state. On t he o her l1a.nd , r. Lincoln cou.l see very clearly that tl e co s itu ·· 011 no 011 - gave h n1 power , a~ c ief ex ct1tiv to r eserve t e Unio11 l so ~av all ts ~orce n o 11 n d 0 nf . r ci '\.lCh r e e1 ation . 1 e war r ole 0 r. • co l ra fore d 0 ta -e t e • • • tive , he ct ·d everal hings in 1. 4 a r1 e l i · n f i o i r r -ard t t l1 ·.r C ns l.l . 011ali t • 1 t11 m, Le es 0 Cori ll i al D 1 ' 16 . or ol. I , o. 61 Bu Congre .. s late1 asse resolutions desi · ati these acts as 1 ood war n 1easures. Had tl1e nation been finall broLen asu11tler by t e ivil ar, Co11 ress .ight have ad occas·on to cl1aree their vievvs • re ard to orr1e of resi d er. t Lincoln ' s measures, and the in force of the Emanci ation reclamation ight still be a debata le iss11e ir1 certai ectio o f 1 . e iv · e d s tat es . The const tution does not im ly that t 1e resident ust spend any certai amount of his time i n tl e Capitol , or n ar Co1gress . tor e ine Con ress de~ ded of resi t Gr a11t t at inforn 1 them a t o at fraction o~ i official uties er performed outside of ashi : n rl.ton, and l e 0 t ,ly u oi e ly replied tat it as 0 e n ~ of • busi vSS. This dem 1 1ns 1eir n V r een re eate • resic l nt leveland eve tool- e li rty to g o OU • of lie • tate l e l :., l 1 0 f sl1in trip. Bu ~11"~ ot? ere • l no h j_ wit _i t e _ dd • g sucl~ l e y e har lr believe tat t eo pJe o · t cou11 try · oul ., errn t any s er es ca a s ,.r • thin ny roul be i c j e o f eel t at tl1e co ti ·u_ti n i mpli · t 1 t i o der to 0 hold l'1is office du · t 10 t m o f our y rs O l e ' iden .us n cessaril res..:.d e at t l1 e ea o r n er 0 11 and f or a ny e .1er ---enc t l1a t m i : t ar · as nrr to t e s . ent pr earl t V r •Ir• 1 as ~ i n , n e. t serve 0 oos V G o oir t pa1t 1 ent. 0 n Rt n e : - t i-i 1o t efore eat at a o e thru two ter□ i ultra-co11 tituti al. fa una 1 t r a .,.. throu "" 11 e barri ,r of t, 27 . 2 ------------- I J d , 1 . • 62 custom . · r . 1 11s0 a ·01e back to the ori ·1 al pr ctice of reading l is ovrn es sage before Congress , e first to so si ce t e time of Thomas ef · rson . Jaine~ rwadison or 1 igina te 1 custon1 of t e inaugural all il e Ja es . r.onroe fi1·st ~e t 1e inaugural cere ony o the act Portico oft e C pit 1 . Tv•ic ~ur · t e ation ' s h i tory as t r ret i rin rithout his successor . 0 re~iden t failed to ride to t he inaugurati on am a nd Henry Johnson chose to vade ti cere ~ ony; th first , because of a ersona l disli {e fr ~ rr . Jeff rson , ad_ t 1 1e at er , ecause e had hear a run1or tat Mr . 1 rant ir d h i absence . rh i le these are t custous and en- tirely ultra-co stitutional t ey illu t rate the exiting tendency to r1 ake uc o t raditi n a d custom , l ich t re ds to forn1u.l te un ~ritten articles of a co stitutional cl ar cter . Tl e supre .. c urt r cei ved ts sl1are of m enti on i~ the cha ter on int rpretation. The value place 1 upon contempor aneous interpretation 1il l er repetition , ho ver . To undervalue t e • • ecisio s b previo1..lS tribunals oul a b e to tear do r 0 1 1e of tlie pri .Lei al edestal of our judicial n rstem a nd C act roul e cons d er ed enti el 1 ide t he rig1t of any court . The e 1tir ju c · al system belo • t e supre e cou1'lt l us een , orl{ed out as ce t e d o i en I I on it r u n tit tio • io 1S, ec i . revi e re ' 2 t ... e u 0 d • co1 forn i ty .r . tl- 1 t1 e • • ade • l r ov1.~ions in It is • ction J. nn li t h t e n anner f l i cl ar ,.. cter ci re r 11 Ol ions t h I f nt - C e an i r n lied , 1 . ' t . n t.. e d t e -Ie i rr:t t, O"l r a een eff I • se i co C 0 I i t Lrou 1 11 t it a ·ct·o • g al . l e 63 O im orta t o er o t e suprer e court or w ic t er is no co stit tio al revision, is tat of de 1 ring acts of Co •r s unconstitutional. Tlis has be entirely of implie origi n , ad was 1 first exercised i n 18 1 i tl1 e fanous case of ~ arbury v. adison . Con ress lad ass d n act ich .ave t he supre ~ e court original juris- diction over cases ere the constitution said it shoul rave appellate ju1i action , a nd i e t _ o act thu 0 asse car e before t 1 e court fo r enforcen1e t , it r efuse to e o-uided by it. Chief Just · ce Iarsh 11 gave t e decision oft e court i n w1icl t e act vas ronoui ce null and void beca~ use t co flicte vri t h t h e constitution , t su reme la of the land . I t ~ a t e o 1 ay to re erve t e constitution • · ts su erior osition • eclare un o titutio al Tvventy- on acts of Congres~ 2 o o t e year 191 3 , 1 il ave b e 8n or e t ha two un r d act of ta e l egislatures have suffere t he ame fate . T, a t e u re 1 e cour t a no ri h t to eclare le islative ac s co t tutio al i still 1eld by lawyers and judges of recog- nize ability. T ir a mei1 1 ar e sed chi ly upo r cedent ar conte m orar i nter r tation . Ju t i c lar says t hat pro osals to have le rris ation reviewed by t h our·ts rere rn de a r d vot t he con titutional conve tion . But o aut ority or r ef rences are ive i n u ort -r i stat ment, ¥1th t 1e e ce ion o h e ci a - tio t • 1v1udl on ' s jour'11als . A ca1 1 r 0ad i n " t he e jovrnals 1 2 o J'S th t t ro osttio emit · courts, i 1 Crane , 137 . arr I , ear, o y Ir . M a is n wa t t of . co J cti 1 1 it t e executive , to ass o ited tates , 6 . tu tion, 1-14 • 64 tr1e cons ti tutionali t of lavrs . This is an e tirely differe t ro o si tin . The conve tio n ver ebated tte issue of havi g le is lation r evievlfed b t .. _ courts. Ont e other' a nd Ir . aird ' s sum mary oft e crow in ~ u r pose oft e conve tion sows tl e spirit in vvl ich f ina action was taken . s he : "Thi 0 very s yste of checks an balances , whic is undeniably the essential ele ent oft econ stitution, i built upo the doctrine tat the!X)pular ranch of the overn en t ca ot b e allovrecl ftlll sway , nd 1 a 0 t of all i n t e e act et o laws touchin . t ri hts of roperty. exclus i on of' t e irect opular vote 1 t lection of tle resident; and the creation :ain b n i ire ct e l ction, o th f'ra . ers o e would re pr e ent t e ealth a11d conservati e i ter sts 0 t OU try; a t e e ta 1 nt o a n i e e d t judi ciary a poi ted y e reside t r t the concurre ce of t e enate- all oft ese devi es bear i t ness to h e fact t rat t t t e est bl i hment of po ular 1 0 er e t b7 m o f parliam ~tary rn jori · es • ti T ~ 1 1 r . Ia il- t e l 1 old~ e 0 i • ion , s e v e n fro h i ar me ts 2 relative to e veto power ·of t h e presi e .Lt . Th ·a ea t hat wac e rtn: t V i/ to be cl ec or bala ce , i SO[ degr ee , to each o t · er to , a e e er 11 o siu. r e t e 1., oc o the 0 t Con io o 178? . C rta · n1~ cote ora iy li rutu r o the SLb - • • C l ec d flavore d 1 · t l t l1i s vi e 1 . If 1. r i -ht ver i o be rr • v e ar ·t 0 s · t l: e c _ar c t r j t uote , d c e r , Tl Cotl tion , 9 7 - 98 • 2 - -------- ----------- -- rali t 73. ot er o 1 · ke o i n on u · · e e , a , d r e h i 1 :to11 , e fe r s o . I ' t tio , 1 -ll t.; . - ·--- 65 h + V shoul not bear r eat wei t , t .er s ry Ieaso1 to believe tlat t e Su reme Cou t · ju ti ied i n i mpl it right to revie··, tl e e act1nen ts of Co :r ess i n v ew of et r i n e ir o stitutionality. Be t i as i t rnay , the court clai s t ho r ig_t , acts upon t a 1 t l e nat i o abides by i decisions. To anie11 tl e constitutior1 is t 1e only way to surrr1 otlnt t.l e decisions Tl1 w ~ i id our overnme ti stantly undergo i g • " cha ges l 1 t e various department s tl:1a t sa or of real co st.i tutional • ificance . e of 1 · 0 t es f r s , as alr a ee note ' re- quire y ars to 1 a teriali ze , whil t rs are u re i 0 ~ s 0·1~t notice becau e of some r1 ecess i ty . , e t lear hat eve our co tit t 0 is 0 to be i olize ' to a o thi11 0 of ' 0 e oliti- 1 cal cus t · S tl at r Vi -r ou 1d ur offic·o.1 racti es ~ for on itions den1a ev1 t:reat re t ·1c1 tine , il • . tate t11e aII1e11d- reci ce ar to 1 eet ifficultie tat a be t,; 10 11te i t1 o o 1e1.., a • , Ul,., · 1 1 ir or r c i ul t 0 of political p r over r ntal m c i n ~ ry i es 11 · t 11 11 its relatio to en i ely ultra- con itution 1 . U Y . I n this t he · s 011 t he sources and develop e ts o f t e im- lie f e onst tution of tl e United tats, f first st ied t e t i mes , place$ nd eoples co temporary wi t h the con structi on of t he i str 1n nt its elf . Evide_ ces wer f ound l1ic tl1at ·rcur stances surrou • l. the reconst · t tio al er- 66 iod , as we 1 as tlose i1fluen i n t he Conve1 tion, t ro l y favored con tr cti on of neral la • Co1 t ·tut on 1 a fo d to e ju t v-1 t e . 1 i 11 reaso 1abl ex ect . Fro t e very o enin 0 tl n t e evi e i m 0 rectio chi_ ry u ·1 r t e onsti t tional re i , e, i..ve e ositive exercise o im lied po ers, u it was also ~ at n isa t rs n. e saril tt cl e to c, practices . I tl e tud of t, i ter-retatio , it w OU ta t o ers ec me ore a .. or com o 1 de l er rr · tt n di - · 11al ba es f o roe re · n action di 0 • exi .. • e di ve t t t e Co titution a fl i le; to ur )rats re b cau e f · ts i 1 · ty . r r ta · 01 i 1 l 1 i i ' 1 OU~ C of' i plie o ers, fo · t e s · on 1 -:, r · tte 1 do cu1ne nt ii t • e11eral cla 1s s ]_ 0 r e , an O.a.1 t e aunt ' wel are ern n sual r· d- , · t pe_ fect • y 1 · 01'\ er e )a t • 0 der to ti on J_ ·h 0 ... e • T l i tOl"'i 1 co se 1 e 0 tl1e 0 tr ~ · 1 • li e m 0 r C b re11c 0 r e l 11 a en r 1 , • • cont olli territor to tio 0 0 n C J. l. l g 0 ' V 7 fi n nee , a com. erce , o oli · cal cu to1 a n ra t · ce . tr i n e of · m lie 01vvers ad • a i on et l • Vl.n ct v"ty t ~ rv lous · oc lue11c e U 0 ov r e11 f r m an 0011 e en 1 u on lie o e nm 1 t itq lf. t e ut e hol,s rn ch in store that t he present ·en eration cannot see . Just as the constitution has been expanded to m eet exigen cies of tl1e past, so it will undou tedly be inter- pr eted in the future. one rould ask to have future demands m ade upon this histori cal do ument evaded. It is interesting to see it t r ied, to see it str·ained, to stand wit v.ronder anxiously av;aiting t r1e outcorne of so e ponderous 1~sue. re ave 001 fi ence in the Constitution itself and. i t 1 people who l1ave its ~u.ture in the ·Ti hands. Americans do not believe i :n ailt:.re. The gov er·n1ne1 1t has endured tl1us far, and wl1y a it not co i1_ ue tea - fast -ven at the cost of l.teral changes or ile1al i terpretation of its Constitution? The present il1tary con lict i E urope, t gr.at st of all l1istory see . d stined to pro d1.1ce c i- 1 ctunstances t at vvill call for n e~1 diplorne..tic relations etvree t · e ·a t rn an Jest rn Just V i 1 t cr1anges vril e d ·11a , ' o one is re are to say. It ,rill be o nall tas { to etern i e t e fut re ta us of ... eu tral.._ n belli Je s dur g ar , of t ll . mear1 11 ,.,. b o· C011 1~a- ,ar , o -r t 1e C ) l i l · 0 eu ral an 1 e 0 le ~s. o re r , e ac:t c,o 1 ve i diff cul ti s nd re gladl y tur t ose 0 t 1e ftl re 0 er to t r1 rat· or1 c:! t to C0 1 • Th u 11 ourl t G o a e 1 l . t • e e r • a_ ro im. BIBLIOGRAPHY. Sources - Macdonald,Willi~m,Select Doouments Illustrative of the History of the United States. The Macmillan Co.,New York,1911. 68 Macdonald,William,Select Statutes and Other Documents Illustrative of the History of the ~nited State~, 1861-1898 . The Nacmillan uo.,New ork,1909. United States,The Constitution of the United States. Washington,1787. United States,Articles of Confederation, arch 1,1781, ~ases '-'ited. American Insurance Co . v . Canter(l Peters 511-542)35. Brown v.Maryland(l2 heaton,419)53. Caldwell v.American Brid~e Co.{113 u.~., 205) 53 . Central Pacific R.R.Go. v . alif.(1 ~2 U.S.91)43. Cohens v. Va.( 6 Wheaton , 264)21. Dobbins v. Commissioners of Erie Co .(16 Peters 435)45. Field v. People(3 Illinois,78-85)11. Gibbons v. O~den (9 Wheaton,185)28 ,51,52. Hylton v. United States (3 uallas,171)42. Legal Tender Case (110 U.~.,421)57. Marbury v. Madison (l Cranch,137) 3. Martin v. Hunter•s Lessee (1 Wheaton,304)21. McCullou~h v. Maryland (4 Wheaton , 316)27,28, 9,4 ,43,44,48,54. National ank v. un ·ted States (101 U. S.,1)44. O~den v. Saunders(l2 heaton,290)21. Pace v.Buriess(92 u . s .372)21. Pacific Insurance Co .v. Soul (7 ·,all,433 )42. People v. Supervisors of ~Salle(LOO Iil.,495)20. Sprin~er v. United States(l02 U.B.,586)42. Polluck v. Farmer's Loan and Trust Co .(158 u.s.,60)42. Stuart v. Laira(l Cranch,299) 21. 8 Supreme Court Reports,811. s U • • V • Fisher and Others(2 Granch,358(26,47. U.S. v. Perk1ns(l63 U.S.625)43. U.S. v. Halstead (10 Wheaton,51,63) 20. Vessie Bank v. Fenno (8 Wall,5~~)42. Weston v. Charleston (2 Peters,449-466)45. heelin~ Brid~e Case (13 Howard,518, and 18 Howard,421)5~. Willamette Iron Brid~e Co . v. Hatch (125 U.S.,1)54. Wilson v . Blackbird Creek arsh ~o . (2 Peters,245)53 . 69 Secondary Authorities - Beard, ~harles A.,The Supreme v9urt and the Con titutio~ The Macmillan Co.,New York,1912. Hlackstone,Willia.n1, Commentaries on the Laws of Ene;lanq , 4 vol. R.Welch & Uo.,Phiiadelphia,1897. Boynton,li 1 rank ~avid,School vivics,Ginn & Co., New rork,1904. Bryce,James,The American Gommonwealth, 2 vol. The Macmillan Co.,New York,1908. 70 Burgess,John w.,Political Science and ~omparative Constitutional Law, 2 vol.,Ginn & Co.,Boston,1898. Chamberlain,Daniel H.,The State Judiciary- Its Place in the American Constitutiona l System, Channin~, Edward; Hart,Albert ushnell;Tw iner,Frederick Johns n, Guide to the Stucty anct Readin~ of American History .nevised and au~mentea e ition . Ui nn & Uo ., Boston,1912. Cooley,T. ·.,A Treatise on the Constitutional Limitatiuns,'lth ed . Little,Brow n & Co., Hoston,19 3. ~ooley, T.r .,Lectures n ~onstitut i onal Law-As seen in tne Develop ment of American Law, G. P.Putnam•s Sons , ew ~ork ,18 o. Curry,J.L. !.,civil History o~ the Government of the Confederacy. B.Li·. Johnson Pub. Co., ichmo nd , va . ,1901. Elson,Henry 1 illiam, History 01· the United States of Am erica. The Macmillan uo .,New Yor k , 1910. Garner,James w.,Government in th ~ United States ;National,State, and Local, American ook 00., N ew ~ork,1~13. Hamil ton ,Alexander ; Jay, John; !adison , James , The Feder alist- A vo mmentary on the ~onstitution of the United States . Edited by enry ~abo t Lod ~ e . The Knicker oock r res s , ew Yor ,1889. Hamilton,Alexander,The Works of Alexander Hamilton, Edited by Henry ~abot Lodie, 2nd ed.,12 vol. The Knicker bocker Press, Ne w York,1~8~. Hart,Albert Bus hnell,The Amer ican ation-A Histor~,In 27 vol. Harper & ~rothers ,New 1ork,19O5 . 71 Haskin,Freder1ck J .,The American Uovernment . J . ~. Little & Ives Co., New York,1912 . Kasson,John A.,Evolution or the United States Uonstitution. Houthton, i 11rflin & Co.,Ne w York,19O4 . Lecky, W illiam dward art po le, 1 ·, ,. · 3 -1'/ ~~ , The American Revo.1ution. D. Appleto n & Co., e York,189~ . Lincoln, Abranam ,The 'r itin s or Abranam Lincoln-Edited by Arthur ~rooks Lapsley,8 vol.,G.P . ~utnam's Sons, Ne ·· i:ork, l'd05 . Lod~~ , enry vabot,The Gonstitution and its 1 a ers. North American Review.vol.1~6,2O-51 • . aaison, Jarnes, he Journal of t he Debates in the 0onvention which f amed the l;onsti tut ion 01· the Un i. t ed State , :ay - Se pt., l 't'd7 . ~dited b y Jonathan ~l iot. Jashington,~rinted for tne ·it or,1845 . cvlain, m11n ,Constitutional Law 0 1 the nitect States. Lont;mans ,Gr en lei ·s, \ illiarn 1 ., The Growth of the uonsti tut ion 1.n the Fecteral uonvention of 1~ 1 . J.P.Lip i ncot t Go., hilaae l hia,1~00 . 1arsh 11,John,Life of Washin~ton, C •• ·'ayne, .t'h1.1.ade l h1a,1Cj95. Outlook, 1 dito r·ial,vol.,l02,lY-20, .epres e n t ative Uove rnment. ---- ~utney,Albert ., ' he Unite ct ~t ate s ~onstitutiona l History and Law. l i nois oak Exchan e,~hicago,19 O~ . Reinsch, ~aul ~.,American Le~islatures and Le!islative 1 ethods The uentury ~o., ew ~ork,1907. Schouler,James,Our Presi ential Electors , 1he independent, Vol. 'I 3 , 4'/ 2-476. Stanwood,~dward,~ istory of the ±'resiuency :t·rom l7bb to 1897. Houihton, if'f lin & vo., -ew :tork,l'dl2. 72 Stanwood,~dward, A History of the ~residency 1·rom lb~7 to 1909. Sterne Simon,vonstitutio~~!: istori_and roliti~~~-~~~elopment of the united tates 4th ed. ~evised. G.P.Putnam's Sons ,New York,1901. Story, Joseph , Co mn1entarieo O!l_ the ___ _ ution of the µnited States. 2 vol. 5th ed.Little, Brown & Co., Boston,1891. Thorpe,Francis New t on ,Constitutional Hist ~ vol.Calle ~han & Co .,Chica~o Ill. of the United States. Tocqueville,Alexis De 2 D~~~cracy in America~3 vol. The Century Co.,18 6, Townsend,Edward aterman,Ou~ Cons t itution-Why and How it was made Vho made and What it is. Moffat ,Yard & Co.,New York,1906. Tucker,John Randolph ,The Constitution of the United States.2 vol. ---- - ...-. _________ ,_ , ___ ------ ----- Calle~han & Co.,Chicaio,1901. Von Holst ,H.,The Constitutional and rolitlli~ Hi §1~Y-Qf _th= Unite States ,1750-l859. · vol . ---- Calle ~han & Co ., Chicago ,1889. Wakem n,H.O.;Hassall,Arthur,Es says-Introductory tote Study of --- En 6 lish Consti~utional History •Longmans , Gr een & Co., .Y.,1901. ~illou~hby, . ~ .,The American Constitutional Syst!m _ -_ l_\.n __ __ uction y of the American Stat~~The Century Co.,N.Y.,1904.

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Creator Ashcraft, Edwin Perry (author)

Core Title Sources and developments of the implied powers of the constitution of the United States

School College of Letters, Arts and Sciences

Degree Master of Arts

Degree Program History

Degree Conferral Date 1915-06

Publication Date 01/01/1915

Defense Date 01/01/1915

Publisher Los Angeles, California (original), University of Southern California (original), University of Southern California. Libraries (digital)

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