Some incapacities are also incident to members of congress. No senator or representative may, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and, as we have seen, no person holding any office under the United States, may be a member of either house during his continuance in office;1 or may, without the consent of congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state."

Congress is directed to assemble at least once in every year; and such meeting is to be on the first Monday in December, unless by law a different day for such meeting be appointed.'

(2 gc) OF THE NATURE AND EXTENT OF THE LEGISLATIVE POWERS OF CONGRESS.

THE federal constitution, specifying and enumerating ¿ 201. Powthe powers of congress, declares and says:-Congress ers of congressshall have powerspecific and To lay and collect taxes, duties, imposts and excises, to enumerated. pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States:

To borrow money on the credit of the United States: To regulate commerce with foreign nations, and among the several states, and with the Indian tribes:

To establish a uniform rule of naturalization and uniform laws on the subject of bankruptcies throughout the United States:

1 Const. U. S. Art. 1, § 6.

2 Id. 29.

Id. & 4.

• Art. 1, 8 8.

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures: To provide for the punishment of counterfeiting the securities and current coin of the United States:

To establish post-offices and post-roads:

To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries:

To constitute tribunals inferior to the supreme court; to define and punish piracies and felonies committed on the high seas, and offences against the law of nations:

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water: To raise and support armies; but no appropriation of money to that use shall be for a longer term than two years:

To provide and maintain a navy:

To make rules for the government and regulation of the land and naval forces:

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions:

To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress:

To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by cession of particular states and the acceptance of congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards and other needful buildings; and 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.

The first question, which naturally here presents itself, 202. Obis, what was the object of this specification and enumeration ject of such of the powers of congress? Nothing of the kind had ever specification

and enumera

appeared in the state constitutions. The delegation of tion.
power to the state legislatures, had always been general;
to make laws at their own discretion, except in certain cases
expressly excepted by the state constitutions. The delega-
tion of power to the federal legislature, is precisely of the
opposite character; to legislate in certain enumerated cases,
and not in any others. Why the general commission on
the one hand, and the special commission on the other?
The reason of the difference is obvious, in the different
ends to be attained. The one great purpose of a state leg-
islature, is to make just laws for the regulation of such
matters as are of common and equal importance to all the
citizens of the state;-in other words, for the complete
regulation of the internal government and police of the
state. The principal end of a federal legislature, on the
other hand, is not to make laws for the government of in-
dividuals in their relations to each other as citizens of a
state, but to make laws concerning affairs of common and
equal importance to all the states as members of the union'
An enumeration of all the cases in which legislation might
become proper for a state legislature, would have been
exceedingly difficult, even had the jealousy of state author-
ity been such as to require it. An enumeration of the
powers of congress, however, was not only imperatively
demanded, but successfully made. The necessity of fixing
a boundary line between state and federal authority, was,
as we have seen, clearly perceived and acknowledged by
the framers of the federal constitution. 'It was easy to
discover a proper and satifactory principle on the subject.
Whatever object of government is confined in its operation
and effects, within the bounds of a particular state, should
be considered as belonging to the government of that state:
1 See FORM of State Constitution, p 89, ante.
* Page 200.

203. Limitations of power.

whatever object of government extends in its operation or effect, beyond the bounds of a particular state, should be considered as belonging to the government of the United States. But though this principle be sound and satisfactory, its application to particular cases would be accompanied with much difficulty, because, in its application, room must be left for great discretionary latitude of construction of the principle. In order to lessen or remove the difficulty, arising from discretionary construction on this subject, an enumeration of particular instances, in which the application of the principle ought to take place, was attempted with much industry and care.' Such, then, was the reason, for the specification and enumeration of the powers of congress. This specification of particulars evidently excludes all pretention to a general legislative authority; because, an affirmative grant of special powers would be absurd, as well as useless, if a general authority were intended." It is therefore clear, that congress can claim no powers but such as are actually granted to it by the federal constitution, and that the powers actually granted can be such only as are expressly given or given by necessary implication.*

In this connection, we should also consider those clauses of the constitution which expressly restrain and limit the powers of congress. Such are the following:-5

The privilege of the writ of habeas corpus shall not be

1 Even Pomeroy, the prince of the imperialists, admits this principle. He says (Constitutional Law, 213), 'In regard to matters purely local, and which do not and cannot have a national aspect or influence, it has been the policy of the United States not to interfere with the separate states. The constitution was framed upon this idea. The people, as the source of all power, gave to their central government exclusive control over all subjects which are national and imperial, and to the separate states a control over all subjects which are local. I deem this policy as essential as is its counterpart, that the several states shall not interfere with the nation in the administration of its appropriate functions.'

'See Judge Wilson's account of the difficulties experienced by the convention. Elliot's Debates, Vol. II, p. 418; ante & 112.

The Federalist, No. 83, pp. 381-382. Hamilton.

Justice Story, 1 Wheat. 326. 3 Pet. Cond. 557.

- Const. U. S. Art. 1, 2 9.

suspended, unless when, in cases of rebellion or invasion, the public safety may require it.

No bill of attainder, or ex post facto law, shall be passed. No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.

No tax or duty shall be laid on articles exported from any state. No preference shall be given by any regulation of commerce or revenue 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.

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.

No title of nobility shall be granted by the United States, and no person holding any office of profit or trust under them shall, without the consent of congress, accept of any present, emolument, office or title of any kind whatever, from any king, prince or foreign state.

To these should be added the first ten amendments to

1

2204. Fur

the constitution, 1 expressly designed to limit the powers ther restricof the several departments of the federal government, tions. though erroneously imagined by some to also extend to the governments of the several states. The doctrine is settled, that the limitations and restrictions of power contained in the federal constitution, other than such as are expressly addressed to the states, operate only on the federal government and its several departments; not on the states -or the governments of the states. Each state has established a constitution for itself, and, in that constitution, provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The powers conferred on the federal government, were to be exercised by itself; and the limitations on power, in the instrument creating that government, if expressed in

1 See ante, p. 151–153.

* See Barron v. The Mayor of Baltimore, 7 Pet. 243.