Imagens das páginas

State, in which the same shall be, for the erection of furts, magazines, arsenals, dockyards, and other needfu buildings.”

§ 199. A moinent's consideration will establish the importance and necessity of this power. Without it, the National Government would have no adequate means to enforce its authority in the place, in which its public func tionaries should be convened. They might be insulted and their proceedings might be interrupted with impunity. And if the State should array itself in hostility to the proceedings of the National Government, the latter might be driven to seek another asylum, or be compelled to an huiniliating submission to the State authorities. It never could be safe, to leave, in the possession of any one State, the exclusive power to decide, whether the functionaries of the National Government should have the moral or physical power to perform their duties. Nor let it be thought, that the evil is wholly imaginary. It actually occurred to the Continental Congress, at the very close of the Revolution, who were compelled to quit Philadelphia, and adjourn to Princeton, in order to escape from the violence of some insolent mutineers of the Continental army.

$ 200. It is under this clause, that the cession of the present District of Columbia was made, by the States of Maryland and Virginia, to the National Government; and the present seat of the National Government was established at the city of Washington, in 1800. That convenient spot was selected by the exalted patriot, whose name it bears, for this very purpose. And who, that loves his country, does not desire, that it may for ever remain a monument of his wisdom, and the eternal capital of the republic ?

§ 201. The other clause, as to cessions for forts, magazines, arsenals, dockyards, and other needful buildings, is dictated by a like policy. The public money expended on such places, the public property deposited! there, the military, and other duties to be executed there, all require, that the sovereignty of the United States should have exclusive jurisdiction and control over them

It would be wholly improper, that such places, on which the security of the Union may materially depend, should be subjected to the authority of any single member of it. In order to guard against any possible abuse, the consent of the State Legislature is necessary to divest its own territorial jurisdiction ; and, of course, that consent will never be given, unless the public good will be manifestly promoted by the cession.

$ 202. A great variety of cessions have been made by the States under this power. And generally there has been a reservation of the right to serve all State process, civil and criminal, upon persons found therein. This reservation has not been thought at all inconsistent with the provision of the Constitution ; for the State process, in this respect, becomes the process of the United States, and the general power of exclusive legislation remains with Congress. Thus, these places are not capable of being made a sanctuary for fugitives, to exempt them from acts done within, and cognizable by, the States, to which the territory belonged ; and, at the same time, Congress is enabled to accomplish the great objects of

§ 203. The power of Congress to exercise exclusive jurisdiction over these ceded places is conferred on that body, as the Legislature of the Union; and cannot be ex ercised in any other character. A law passed in pursu ance of it is the supreme law of the land, and binding on all the States, and cannot be lefeated by them. The power to pass such a law carries with it all the incidental powers to give it complete and effectual execution ; and such a law may be extended in its operation incidentally throughout the United States, if Congress think it 'necessary so to do. But if intended to have efficiency beyond the District, language must be used in the act expressive of such an intention ; otherwise it will be deemed to be

the power.

purely local.

$ 204. It follows from this review of the clause, that the States cannot take cognizance of any acts done in the ceded places after the cession ; and, on the other hand, the inhabitants of those places cease to be nhabitants of

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

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


General Power to make Necessary and Proper Laws.

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

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

but a power

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

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

$ 208. The plain import of the present clause is, that Congress shall have all the incidental and instrumental powers, necessary and proper to carry into execution the other express powers; not merely such as are indispensably necessary in the strictest sense, (for then the word "proper” ought to have been omitted,) but such also as are appropriate to the end required. Indeed, it would otherwise be difficult to give any rational interpretation to the clause ; for it can scarcely be affirmed, that one means only exists to carry into effect any of the given powers; and if more than one should exist, then neither could be adopted, because neither could be shown to be indispensably necessary. The clause, in its just sense, then, does not enlarge any other power, specifically granted; nor is it the grant of any new power. It is merely a declaration, to remove all uncertainty, that every power is to be so interpreted, as to include suitable means to carry it into execution. The very controversies, which have since arisen, and the efforts, which have since been made, to narrow down the just interpretation of the clause, demonstrate its wisdom and propriety. The practice of the government, too, has been in conformity to this view of the matter. There is scarcely a law of Congress, which does not include the exercise of implied powers and means. This might be illustrated by abundant examples. Under the power to establish post offices and post roads,” Congress have proceeded to make contracts for the carriage of the mail, have punished offences against the establishment, and have made an infinite variety of subordinate provisions, not one of which is found expressly authorized in the Constitution. A still more striking case of implied power is, that the United States, as a government, have no express authority given to make any contracts; and yet it is plain, that the government could not go on for an hour without this implied power.

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

« AnteriorContinuar »