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. Each has produced a progeny of subsidiary powers, some of which have in their turn been surrounded by an unexpected offspring. Thus from the taxing and borrowing powers there sprang the powers to charter a national bank and exempt its branches and its notes from taxation by a State (a serious restriction on State authority), to create a system of customhouses and revenue cutters, to establish a tariff for the protection of native industry. Thus the regulation of commerce has been construed to include legislation regarding every kind of transportation of goods and passengers, whether from abroad or from one State to another, regarding navigation, maritime and internal pilotage, maritime contracts, etc., together with the control of all navigable waters not situate wholly within the limits of one State, the construction of all public works helpful to commerce between States or with foreign countries, the power to prohibit immigration, and finally a power to establish a railway commission and control all inter-State traffic.[1] The war power proved itself even more elastic. The executive and the majority in Congress found
- ↑ The case of Gibbons v. Ogden supplies an interesting illustration of the way in which this doctrine of implied powers works itself out. The State of New York had, in order to reward Fulton and Livingston for their services in introducing steamboats, passed a statute giving them an exclusive right of navigating the Hudson river with steamers. A case having arisen in which this statute was invoked, it was alleged that the statute was invalid, because inconsistent with an Act passed by Congress. The question followed, Was Congress entitled to pass an Act dealing with the navigation of the Hudson? and it was held that the power to regulate commerce granted to Congress by the Constitution implied a power to legislate for navigation on such rivers as the Hudson, and that Congress having exercised that power, the action of the States on the subject was necessarily excluded. By this decision a vast field of legislation was secured to Congress and closed to the States.
