which gave Congress power to declare war, make rules concerning captures, raise and support armies, call out the militia, and make all laws which shall be necessary and proper for carrying these powers into execution, and said that the right to suspend could be implied from any one of them or from all of them together, and that the habeas corpus clause was simply a restriction on the power thus implied. Binney answered this by saying that it was too much at large, too indefinite. None of the powers contained any reference to the writ or even to the judicial department. He had already maintained that Congress could not impair the judicial department after it had once been created, and surely a right to impair an express provision of the constitution could not be implied from the war powers. Suspension of habeas corpus was a matter of municipal law, was not of the nature of military force, could not be identified with it, and could not be implied from it. If it could be implied from the power to call out the militia, or from any of the other war powers, it could be implied still more easily from the power to punish counterfeiting, for it would certainly be very useful against that offence.
But Wharton wrote another pamphlet in which he fortified his argument admirably, and relied on the doctrine of the implied powers of Congress. This doctrine has been extended until it means that any act of Congress is constitutional which has such a relation to one or more of the expressed powers of Congress as in any way or under any circumstances to promote their efficiency. We hesitate to admit that the power to suspend habeas corpus may be implied from the right to make war, because it seems like such a great and substantial power that its authority ought to rest on something stronger than an implication. But in McCullough vs. Maryland the power of Congress to charter a bank was implied from the powers to collect taxes, borrow money, regulate commerce, declare war, and raise and support armies. Congress also has by implication the right to define and punish crimes; and the famous embargo
- Answer to Mr. Binney's Reply to "Remarks" on his Treatise on the Habeas Corpus. By George M. Wharton, Philadelphia, 1862.