IMPLIED POWER TO PUNISH CRIME. 115 If the argument that an express gift of power is also a limitation is correct, it must apply to the clause which authorizes the punishment of crime. No power can well rank higher or be more substantive than that which subjects the life and fortune of the citizen to the government and authorizes it to fine, to imprison, and if need be to execute. Such, accordingly, was the ground taken in the following extract from the Resolutions which were drafted by Jefferson and adopted by the Kentucky Legislature in 1788. "The Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies on the high seas, and offences against the laws of nations, and no other crimes whatsoever, and it being true as a general principle, and one of the amendments to the Constitution having also declared, that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people, also, therefore, the same act of Congress passed on the 14th day of July, 1798, as also the act passed by them on the 27th of June, 1798, entitled an act to punish frauds committed on the Bank of the United States, and all other acts which assume to create, define, or punish crimes other than those enumerated in the Constitution, are altogether void." This conclusion results logically from the premises, and may be regarded as a reductio ad absurdum. Had it been sustained by public opinion and in the courts, the General Government would have been impotent, and could hardly have continued to exist. It is a sufficient answer that Congress are expressly authorized to legislate for carrying the various powers granted by the Constitution into effect, which necessarily implies that they may add the sanctions without which law exists but in name. Principles declared abstractly, and rules which there are no means of enforcing, do not deserve the name of law; and formity which is indispensable in the exercise of the express power to tax. Veazie Bank v. Fenno, 8 Wall. 535, 549; Head-money Cases, 112 U. S. 580, 596. 66 hence an authority to legislate is also an authority to punish every one by whom the laws so made are violated. To say that the Government of the United States may provide for carrying the mails, and make all laws that are necessary and proper for that end, but cannot punish a carrier who purloins the letters intrusted to his care, is an absurdity which refutes itself. "The several powers of Congress,' said Marshall, C.-J., in McCulloch v. The State of Maryland,1 'may exist in a very imperfect state, to be sure, but they may exist and be carried into execution, although no punishment should be inflicted in cases where the right to punish is not expressly given. Take, for example, the power to establish post-offices and post-roads. This power is executed by the single act of making the establishment. But from this has been inferred the power and duty of carrying the mail along the post-road from one post-office to another. And from this implied power has again been inferred the right to punish those who steal letters from the post-office or rob the mail. It may be said with some plausibility that the right to carry the mail and punish those who rob it is not indispensably necessary to the establishment of a post-office and post-road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its 1 4 Wheaton, 417; and in Ex parte Yarbrough, 110 U. S. 658, Mr. Justice Miller, delivering the opinion of the court, said of the argument "that when a question of the power of Congress arises, the advocate of the power must be able to place his finger on words which expressly grant it;" and that if "there is no express power to provide for preventing violence exercised on the voter, as a means of controlling his vote, no such law can be enacted. It destroys at one blow, in construing the Constitution of the United States, the doctrine universally applied to all instruments of writing, that what is implied is as much a part of the instrument as what is expressed. This principle, in its application to the Constitution, of the United States more than to almost any other writing, is a necessity by reason of the inherent inability to put into words all derivative powers, a difficulty which the instrument itself recognizes, by conferring on Congress the authority to pass all laws necessary and proper to carry into execution the powers expressly granted, and all other powers vested in the government, or any branch of it, by the Constitution (Article 1, sect. 8, clause 18)." IMPLIED POWER TO PUNISH CRIME. 117 existence. So of the punishment of the crimes of stealing or falsifying a record or process of a court of the United States, or of perjury in such court. To punish these offences is certainly conducive to the due administration of justice; but courts may exist, and may decide the causes brought before them, though such crimes escape punishment." 1 It is established, in conformity to these principles, that the power of the United States to inflict punishment is co-extensive with the field of legislation, and may be exercised whenever the laws of the United States are violated, notwithstanding the narrow and seemingly restrictive wording of the clause by which alone it is conferred in terms.2 "The importation of counterfeit foreign coin or uttering the same knowingly " may accordingly be made a criminal offence, although the express grant is limited to counterfeiting the current coin of the United States; because as Congress are authorized to regulate commerce and the value of foreign coin, they may adopt any appropriate means to prevent the introduction of spurious currency which would hinder trade and render it insecure.3 I may add that the doctrine of "implied powers" contains nothing exceptional or peculiar, or that is not applied in the interpretation of other instruments; and depends on reasons that are inherent in the nature of things; namely, the difficulty of anticipating the means that will be requisite to carry out a general intent, and the impracticability of setting them forth if foreseen. Such an enumeration would be not only tedious and superfluous, but dangerous, as affording room for the 1 Marshall, C.-J., in 4 Wheaton, 417. 2 Ex parte Yarbrough, 110 U. S. 658. 3 United States v. Marigold, 9 Howard, 560. Mr. Jefferson, like many other candidates, saw with different eyes after he had attained the Presidential chair; and the embargo and the annexation of Louisiana are, like the re-charter of the Bank of the United States, the Funding system, the Fugitive-Slave law, and the general course of the Democratic party while in power, a practical refutation of the theories which he advanced while seeking to displace the Federalists and assume the reins of government. Ex parte Yarbrough, 110 U. S. 659. argument that omission is equivalent to exclusion. A general power consists of the particular powers that are essential to its execution, into which it may be analytically resolved, and that are consequently denoted when it is named. However diverse these may be, they may still be regarded as a whole in view of the purpose to which they are applied, and their fitness for the attainment of the end. Thus an authority to construct a railroad involves a power to select a route, which may deviate widely from a straight line between the termini, a power to take land without the consent of the owners, and even a power to lay rails, sidings, and switches in the streets of an intervening town and appropriate or demolish the houses if requisite for the completion of the road.1 And the silence of the charter as to these or other means of a like kind will not preclude their use. If this is true of a grant from the State to individuals, it should for a stronger reason apply to the popular grant which endowed the United States with the vast and complex powers needed for the common defence and to promote the general welfare. 1 Brocket v. The Ohio & Pennsylvania R. R. Co., 2 Harris, 244; Cleveland R. R. Co. v. Speer, 6 P. F. Smith, 326, 335; Ridge Turnpike Co. v. Stoever, 2 W. & S. 548; Clarke v. B. & P. Bridge Co., 5 Wright, 157. LECTURE VIII. The Duty of the Judiciary to declare an Unconstitutional Statute invalid. - Effect on the Popular Mind. - The People of the United States Constitutionalists. The Sovereignty of the American People limited. - Political Questions beyond the Scope of Judicial Power. Whether a State Government is Legitimate and Republican must be determined by the Congress and President. —The Legislative and Executive Departments of the State and National Governments cannot be restrained by an Injunction. - Protective Tariff. The Courts cannot redress an Abuse of the Power of Taxation. - English Courts may declare an Act done by the King or the House of Commons, invalid. — The American Courts have a like Power as to Acts done by the Government as a whole. - The King can do no Wrong, but his Ministers may be held responsible as Trespassers for obeying his Commands. — Application of this Principle to the Officers and Agents of the State and National Governments. - - No such Redress can be obtained in France. French Droit Administratif. — Tendency to adopt it here. - IT is the exalted function of the Supreme Court of the United States to compose the differences arising out of the complex relations of the States and the General Government, and define how far the powers of each extend and what is the measure of their authority over the people. Although this feature of our government was in great measure new, it has more than any other fulfilled the expectations of the statesmen who devised the entire plan. Viewed with a jealous eye by the party which soon became predominant and maintained its ascendency for more than fifty years, thwarted and superciliously regarded by Jackson, and brought into conflict with the State tribunals whose decisions were overruled, it yet acquired a hold on the confidence and affection of the people which remains unshaken, and drew forth the encomiums of De Tocqueville in his admirable treatise on Democracy in the United States.1 1 La Démocratie en Amérique, vol. i. ch. vi. pp. 167, 171, 172 (Paris, 1836). |