Alexandria gazette & daily advertiser. [volume] (Alexandria [Va.]) 1817-1822, 1819-07-02
Congress, Ia, power Ito raise and sup

Congress has power 10 r'i'e anu sup
port armies - vii any man cop'end that
an act for raising an army OF ten thousand
men, for appointing the proper 9TH ers, tor
en'isting the troops, for allowing them pay
and rations, proceeds from power dl'per-
tain,ng to, or tolloring the PRINCIPAL power
to raise andsupport armies? Can such an
act, with any propriety, be denomInatfd,
"means aIling in beside the main design!'
or !" an additional power?
Is il not too clear tor controversy tna'
such an act would be the direct execution
of the principal power, and not OF one
apperiaining 10 or following it That 1T
would be The main design itself, and not
"means falling in beside il !? That 1t
would he the primary, and not " an addi'
tional powerw
Had The right "t to make rules for the GO
vernment Of the land and naval forces"
not been expressly granted, law made tor
that purpose would have rested, for its sup
port, on the incidental OF implied powers
Of congress, and 10 question respecting
its constitutionality, the doctrines OF I'M
pIication would have applied. But, the
constitution having expressly given his
power, the law enacting the articles OF war
is the instrument, or the means by which
congress has chosen TO execute IT. With
these means the doctrine OF incidents has
nothing to do. No court has right to en-
suire whether the purishments inflicted by
the articles of war are necessary or unne-
cessary. The means are appropriate. AMI
congress may, conslituijonally, select and
vary them al viii.
So congress has power to establish post
Offices and post roads,
The law designating post Offices and post
roads, with all the provisions relating TO
that subject, is made in execution OF this
power. Such laws are the means which
congress chuses to employ. But The right
to punish those who rob the mai is an Incl
dental power, anu the question whether IT
is fairly deducible from the grant is open
for argument. Under the confederation,
congress possessed no implied pow ers, and
was therefore unable to punish those who
robbed the mail, out was capable of regu-
latng the post Office. These regulations
Were means, not incidents.
Thus too congress has power TO con-
stitute tribunals inferior to the supreme
court"
An act constituting these tribunals. de-
tining their jurisdiction, regulating their
proceedings, &c. is not an incident to the
power, but the means of executing it,
The legislature may multiply or diminish
these tribunals, may vary their jurisdiction
at will. These laws are means, and the
constitution creates no question respecting
their necessity. But law opunish those
who falsiiy record, or who commit per-
jury or subornation of perjury, is an exc
cution of all Incidental power; and the
question whether that incident is fairly de-
duced from the principal, is open 10 argu-
men,. Under the confederation congress
could establish certain courts but, having
no incidental powers, was incapable OF
Furnishing those who falsitied the records,
or committed perjury within those courts.
In the exercise of an incidental power,
we are always to enquire whether " it APP
pertains to or follows the principal; :" for
tie power itself may be questioned but
in exercising one that is granted, there 10
no question about the power, nd the very
business of legislature is to select the
means. 1t is not pretended that this right
of selection may be traudulently used to
the destruction of the fair land marks Of the
constitution. Congress certainly may not,
under the pretext of collecting taxes, or oil
guaranteeing to each state republican
form of government, alter he la" OF des-
cents; but if the means have plain rela-
ton to the end-if they be direct, natural
and appropriate. who, but the people at
the elections. shall, under the pretext OF
their being unnecessary, control the iegls-
lative will. and direct its understanding!
The distinction then between power
which is /" incidental or Traditional to
another. and the me ans which may be en-
poyed TO carry given power into execu-
ton. though not perceived ny Hampden,
is most obvious. | have been the more
particular in stating it, not only because