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This clause, as construed by the State of Maryland, would abridge and almost annihilate this useful and necessary right of the legislature to select its means. That this could not be intended, is, we should think, had it not been already controverted, too apparent for controversy. We think so for the following reasons: First, the clause is placed among the powers of Congress, not among the limitations on those powers.

"Second, its terms purport to enlarge, not to diminish the powers vested in the Government. It purports to be an additional power, not a restriction on those already granted. No reason has been or can be assigned, for thus concealing an intention to narrow the discretion of the national legislature, under words which purport to enlarge it. The framers of the Constitution wished its adoption, and well knew that it would be endangered by its strength, not by its weakness. Had they been capable of using language which would convey to the eye one idea, and after deep reflection, impress on the mind another, they would rather have disguised the grant of power, than its limitation. If, then, their intention had been, by this clause, to restrain the free use of means which might otherwise have been implied, that intention would have been inserted in another place, and would have been expressed in terms resembling these : 'In carrying into execution the foregoing powers, and all others,' etc., 'no laws shall be passed but such as are necessary and proper.' Had the intention been to make this clause restrictive, it would unquestionably have been so in form as well as in effect.

"The result of the most careful and attentive consideration bestowed upon this clause is, that if it does not enlarge, it cannot be construed to restrain the powers of Congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures, to carry into execution the constitutional powers of the Government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the Constitution, if that instrument be not a splendid bauble.

"We admit, as all must admit, that the powers of the Govern

ment are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into exccution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional."

Half a century later, in the Legal Tender Cases,164 the Supreme Court said: "We are accustomed to speak for mere convenience of the express and implied powers conferred upon Congress. But in fact the auxiliary powers, those necessary and appropriate to the execution of other powers singly described, are as expressly given as is the power to declare war, or to establish uniform laws on the subject of bankruptcy. They are not catalogued, no list of them is made, but they are granted in the last clause of section eight of the first article, and granted in the same words in which all other powers are granted to Congress." In the same case it was further held that the only restriction upon the exercise of these auxiliary powers is that there must be a necessary relation between the end sought and the means adopted.

The various powers which have been held to be auxiliary to the various powers expressly granted to Congress have been already discussed under the different clauses of this section of the Constitution. The existence of a power in Congress, however, need not necessarily be implied from some particular single power granted to Congress, it may be implied from the result of a combination of several.165

$162. Powers denied to Congress.-The ninth section of the first article of the Constitution consists of an enumeration of the powers denied to Congress. It has been shown how the powers of Congress have been greatly enlarged by the liberal 184 12 Wallace, 457, 533.

165 The Legal Tender Cases, Knox v. Lee, 12 Wallace, 457, 533.

interpretation given to the eighteenth clause of the eighth section of the first article, but the courts will not further enlarge such powers by giving a restricted application to the prohibitions upon the powers of Congress found in the succeeding section. An act of Congress is to be accepted as constitutional unless on examination it clearly appears to be in conflict with the provisions of the Constitution; but if the Constitution in its grant of powers is to be so construed as to enable it to carry into full effect the powers granted to Congress, it is equally imperative that where a prohibition or limitation is imposed, that prohibition should be enforced in spirit and in its entirety. Under this principle a stamp tax on a foreign bill of lading will be held unconstitutional, as being in violation of the prohibition against export duties.166

The ninth section contains eight prohibitions or limitations which will be considered in their order. All of these prohibitions are limitations of the powers of the United States only, and do not affect the State governments.

§ 163. The slave trade.-§ 9. Clause 1: "The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by Congress prior to the year one thousand eight hundred and eight, but a tax or duty shall be imposed on such importation, not exceeding ten dollars for each person."

This clause places a limitation upon the power to regulate commerce and was inserted as part of the third great compromise in the constitutional convention, as a concession to the States of North and South Carolina and Georgia; its object was to allow these States to continue the slave trade for twenty years. 167 But, although this clause was adopted with special relation to the importation of slaves, its application is not limited to such persons. The word "importation" refers to the case of slaves coming into a State, while "migration" has reference to free people of either color. 168 The right to place a tax

106 Fairbank V. United States,

181 U. S. 283.

167 Scott v. Sanford, 19 Howard, 393, 395; New York v. Com

pagnie General Translantique, 107 U. S. 59

165 Norris v. Boston, 7 Howard, 454.

on the importation of slaves, does not include the right to tax the migration of free people.169

$164. Habeas corpus, bills of attainder and ex post facto laws. Clause 2: "The privilege of the writ of habeas corpus, shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

This clause forms a part of the Bill of Rights and will be taken up in Chapter XI.

Clause 3: "No bill of attainder or ex post facto law shall be passed."

This clause also forms part of the Bill of Rights and will be considered in Chapter XI.

§ 165. Direct taxes.-Clause 4: "No capitation, or otherdirect tax shall be laid unless in proportion to the census or enumeration hereinbefore directed to be taken."

This clause has been taken up in the discussion of the powers of taxation belonging to Congress. This clause is not a prohibition, but merely a rule prescribing the manner in which a given power must be exercised.170

171

§ 166. Export duties.-Clause 5: "No tax or duty shall be laid on articles exported from any State." The word "export" as used in this clause, applies only to goods exported to a foreign country. This clause does not prohibit a tax on foreign vessels;172 not a general tax on property which includes property intended for exportation;173 nor a stamp tax to identify goods intended for exportation.174 It, however, prohibits a stamp tax on bills of lading;175 or a stamp tax on manifest of cargo. 176

$167. Commercial preferences.-Clause 6: "No preference shall be given by any regulation of commerce or rev1 Turbin v. Burgess, 117 U. S. 504, 507.

169 New York v. Compagnie General Translantique, 107 U. S. 59, 62.

170 Veazie Bank v. Fenno, 8 Wallace, 533, 541.

Dooley v. United States, 183 U. S. 154.

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14 Pace v. Burgess, 92 U. S. 372, 374.

175 Fairbank V. United States, 181 U. S. 283.

176 New York, etc., Mail Steamship Co. v. United States, 125 Fed. Rep. 320.

enue to the ports of one State over those of another; nor shall vessels bound to, or from, one State be obliged to enter, clear or pay duties in another."

What this clause prohibits is not discrimination between individual ports, but between the ports of one state collectively and those of another as a whole. Every port of entry is given a preference over all other ports not so favored,177 but it is manifestly impossible to make every port a port of entry.

This clause does not extend to acts which directly benefit one port and only incidently injure another, as by changing channels, enlarging harbors, etc. For illustration, an obstruction placed by authority of Congress at the head of one channel in a navigable river between two states, for the purpose of improving another channel by increasing the flow of water through the latter, thus increasing its depth and water way, as also the scouring effects of the current, at the expense of the other channel, is not a preference to the ports of the state on the side of the river on which the improved channel flows, forbidden by this clause.178

The "nor shall vessels bound to, or from, one state be obliged to enter clear, or pay duties in another," has relation to states. other than those between which the voyage is being made.179

§ 168. Drawing money from the treasury.-Clause 7: "No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time."

This clause is in reality a restriction upon the power of the executive department rather than upon that of the legislative; its effect is to secure complete control for the Legislature over the finances of the country;180 it was the complete victory in this country for a principle which had just been finally secured in England after a controversy lasting for centuries. An appropriation is nothing more than the legislative authorization pre

"Williams v. the Lizzie Henderson, Federal Cases, 17, 726a. South Carolina v. Georgia, 93 U. S. 4, 13.

178

179 United States v. the William, American Law Journal, 255.

150 Hart's Case, 16 Ct. Cl. 484.

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