§ 115]

Subordination of the Military.

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authority is fully recognized in England and the United States, and is one of the essential features of our constitutional system. The maintenance by the king of standing armies in the colonies in time of peace and his subordination of the civil to the military power are among the grievances enumerated in the Declaration of Independence.

CHAPTER XVIII.

IMPLIED POWERS OF THE FEDERAL GOVERNMENT.

116. References.

J. Story, Constitution, §§ 433-435, 1236-1294, 1329, 1330; T. M. Cooley, Constitutional Law, ch. iv, § 15; H. C. Black, Constitutional Law, §§ 105, 106; McCulloch v. Maryland (1819, 4 Wheaton, 316; 4 Curtis' Decisions, 415; McClain's Cases, 1; Thayer's Cases, 1340; Marshall's Decisions, Dillon's ed. 252); Gibbons v. Ogden (1824, 9 Wheaton, 1; 6 Curtis' Decisions, I, McClain's Cases, 235; Thayer's Cases, 1799; Marshall's Decisions, Dillon's ed., 421); Legal Tender Case (1884, 110 U. S. 421; McClain's Cases, 442); Anderson v. Dunn (1821, 6 Wheaton, 204; 5 Curtis' Decisions, 61; McClain's Cases, 548); Kilburn v. Thompson (1880, 103 U. S. 168; McClain's Cases, 553); Ex parte Curtis (1882, 106 U. S. 371; McClain's Cases, 554); Logan v. United States (1892, 144 U. S. 263; McClain's Cases, 557; Thayer's Cases, 343); The Chinese Exclusion Case, Chae Chan Ping v. United States (1889, 130 U. S. 581; McClain's Cases, 562); Fong Yue Ting v. United States (1893, 149 U. S. 698; McClain's Cases, 567; Thayer's Cases, 374).

117. Implied Powers Expressly Given.

As has already been indicated (see above, § 18), the federal government, although a government of limited and delegated. rather than general powers, has such implied powers as may be necessary to the reasonable exercise of the powers granted. This would be true without any express provision, but it is expressly declared that Congress shall have power "To make all laws which shall be necessary and proper for carrying into execution" the powers previously enumerated, and "all other powers vested by this constitution in the government of the United States or in any department or officer thereof" (Const. Art. I, § 8, ¶ 18). This clause of the constitution has two aspects it recognizes the existence of implied powers, and it

:

§ 117] Implied Powers Expressly Given.

195

authorizes Congress to regulate the exercise of such powers by the departments or officers of the United States.

It would be impossible to enumerate in an exhaustive way the classes of statutory provisions which have been enacted by Congress in the exercise of its implied powers, and it would be equally impossible to forecast the legislation which might be proper under implied powers not, as yet, recognized or acted upon. A few examples of the exercise of implied powers will be sufficient for present purposes.

Under the general power to raise revenue and carry on the fiscal operations of the government, Congress passed two acts incorporating a United States bank (see Mc Culloch v. Maryland), and more recently has established a system of national banks. Under the power to regulate foreign and interstate commerce, Congress has passed a variety of statutes relating to navigation, immigration, and similar subjects. (See Gibbons v. Ogden.) Under the power to borrow money and the general power implied from various provisions of the constitution to regulate the currency, Congress has made treasury notes a legal tender in the payment of debts (Legal Tender Case). Under the power given to each House of Congress to determine the rules of its proceedings and to act as a co-ordinate branch of the legislative department, punishment of contempts of the authority of either House may be provided for, and such punishment may be inflicted on persons who are not members (Alexander v. Dunn and Kilbourn v. Thompson). Congress may regulate the methods of appointment of officers and employés of the United States, and prescribe their qualifications so far as such qualifications are not prescribed in the constitution itself, and it may prohibit and punish misconduct on the part of such officers (Ex parte Curtis). Under the power to regulate commerce and in the exercise of the powers incident to the sovereignty which belongs to the government of the United States, Congress has provided. for the exclusion of the Chinese (Chinese Exclusion Case and Fong Yue Ting v. United States).

118. Restrictions on the Exercise of Power by Congress.

What has been said in a previous section (above, § 20) as to express and implied restrictions on the powers of the several departments of the federal and state governments, is especially applicable to the powers of Congress. It cannot exercise any power not given to it by express grant or reasonably implied from the powers which are granted. Furthermore, there are express limitations on its power such as those enumerated in Article I, § 9, of the constitution which, although not directly stated to be limitations on congressional power, are evidently intended to apply especially to Congress, as they are included in the article of the constitution relating to the legislative department. But these limitations are all discussed in connection with the various subjects to which they relate and need not now be further considered.

Part IV.

Executive Power.

CHAPTER XIX.

GENERAL NATURE OF EXECUTIVE FUNCTIONS.

119. References.

J. I. C. Hare, Constitutional Law, lect. x; J. R. Tucker, Constitution of the United States, §§ 98, 99; The Federalist, Nos. 69-73; James Bryce, American Commonwealth, chs. v, vi, xx, xxi, xli; J. W. Burgess, Political Science and Constitutional Law, II, 185, 320; J. N. Pomeroy, Constitutional Law, ch. v; A. B. Hart, Actual Government (Amer. Citizen Series), ch. viii.

120. Historical View as to the Executive.

Among a primitive people, not yet united under any strong central government, and recognizing the right of local selfgovernment as existing in small divisions or bodies, limited and temporary authority only is conceded to any one official ; there is but little concentrated executive power. Such a people were the Anglo-Saxons during the early period of their existence in England. But the necessary development of a stronger central government will be effected by the assertion of greater power on the part of some leader or ruler, and before the Norman Conquest the office of king had been fully established in England, though the king was not looked upon by any means as the source of all power or as entitled to exercise absolute