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§ 226. “Matters Incidental.”

In section 51, and in various other sections of the Constitution, certain legislative powers are conferred on the Federal Parliament. These powers are conveyed in general language. It was not necessary, and it would not have been appropriate, in framing a Constitution, to crowd it with minute details and elaborate specifications of power, or to declare the means by which those powers were to be carried into execution. (Martin v. Hunter's Lessee, 1 Wheat. 304.) This, however, is obvious: that every grant of


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power draws after it others not expressed, but consequential, incidental, and vital to its exercise; not substantive and independent, but auxiliary and subordinate. (Anderson v. Dunn, 6 Wheat. 204; McCulloch v. Maryland, 4 Wheat. 316.) The nature of the instrument demanded that only its bold outlines and fundamental principles should be delineated and its important objects designated, leaving the minor ingredients which compose those objects to be deduced from the nature of the objects themselves. (Prigg v. Pennsylvania, 16 Pet. 539; United States v. Cruikshank, 92 U.S. 542. Baker, Annot. Const. 56.)

For example, the Federal Parliament is empowered to legislate concerning trade and commerce, customs and excise, and taxation. This necessarily implies a power to provide for the making and enforcement of commercial laws and revenue laws, and for the punishment of offences against those laws. Without that incidental power the substantive power would have been paralyzed and abortive. So, likewise, the power to provide for the defence of the Commonwealth necessarily implies the power to raise, pay, and discipline forces. The power to coin money implies the power to impose punishment for the circulation of counterfeit coin. The power to conduct the postal department implies the power to inflict punishment for stealing letters from that department.

This sub-section has been introduced in order to give express authority to deal with these matters of machinery, procedure, execution, and “ways and means.” It corresponds with Art. I. sec. 8, subs. 18, of the Constitution of the United States, and is a direct authority for the exercise of all necessary, incidental, or implied powers, to enable the Federal Parliament to carry out the great provisions of the instrument of government. As such, it is a distinct enlargement of power, and adds fulness and elasticity to every specific grant. (McCulloch v. Maryland, 4 Wheat. 316; Anderson v. Dunn, 6 Wheat. 204; United States v. Fisher, 2 Cranch, 358; United States v. Marigold, 9 How. 560. Baker, Annot. Const. 56.)

“The powers of the government are limited, and its limits are not to be transcended. But 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 execution, 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 adapted to that end, which are not prohibited but consistent with the letter and spirit of the Constitution, are constitutional.” (Per Marshall, C.J., in McCulloch v. Maryland, 4 Wheat. 421.)

“Every power vested in a government is in its nature sovereign, and includes by force of the term a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution.” (Hamilton's Works, Lodge's ed. vol. iii. p. 181.)

“It was replied by the opposite school that to limit the powers of the government to those expressly set forth in the Constitution would render that instrument unfit to serve the purpose of a growing and changing nation, and would, by leaving men no legal means of attaining necessary but originally uncontemplated aims, provoke revolution and work the destruction of the Constitution itself. This latter contention derived much support from the fact that there were certain powers that had not been mentioned in the Constitution, but which were so obviously incident to a national government that they must be deemed to be raised by implication. For instance, the only offences which Congress is expressly empowered to punish are treason, the counterfeiting of the coin or securities of the government, and piracies and other offences against the law of nations. But it was very early held that the power to declare other acts to be offences against the United States, and punish them as such, existed as a necessary appendage to various general powers. So the power to regulate commerce covered the power to punish offences obstructing commerce; the power to manage the post office included the right to fix penalties on the theft of letters; and, in fact, a whole mass of criminal law grew up as a sanction to the civil laws which Congress had been directed to pass. The three lines along which this development of the implied powers of the government has chiefly progressed, have been those marked out by the three express powers of taxing and borrowing money, of regulating commerce, and of carrying on war.” (Bryce, Amer. Comm. I. pp. 370-1.)




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“But the most important work was that done during the first half century, and especially by Chief Justice Marshall during his long tenure of the presidency of the Supreme Court (1801-1835). It is scarcely an exaggeration to call him, as an eminent American jurist has done, a second maker of the Constitution. I will not borrow the phrase which said of Augustus that he found Rome of brick and left it of marble, because Marshall's function was not to change but to develop. The Constitution was, except of course as regards the political scheme of national government, which was already established, rather a ground-plan than a city. It was, if I may pursue the metaphor, much what the site of Washington was at the beginning of this century, a symmetrical ground-plan for a great city, but with only some tall edifices standing here and there among fields and woods. Marshall left it what Washington has now become, a splendid and commodious capital within whose ample bounds there are still some vacant spaces and some mean dwellings, but which, built up and beautified as it has been by the taste and wealth of its rapidly-growing population, is worthy to be the centre of a mighty nation. Marshall was, of course, only one among seven judges, but his majestic intellect and the elevation of his character gave him such an ascendency, that he found himself only once in a minority on any constitutional question.” (Id. p. 374.)

“Had the Supreme Court been in those days possessed by the same spirit of strictness and literality which the Judicial Committee of the Privy Council has recently applied to the British North America Act of 1867 (the Act which creates the Constitution of the Canadian Federation), the United States Constitution would never have grown to be what it now is.” (Id. p. 375.)

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