judge of what is needful and proper, when the means chosen conduce to the end and are not forbidden.1 Internal Improvements. - How far Congress as an incident to powers expressly granted has a right to appropriate money or public lands to what are called internal improvements within the States, has been the subject of earnest discussion, almost from the foundation of the government, and is even now not authoritatively determined. It is for the most part conceded that such appropriations may be made for the improvement of the navigable waters which constitute highways of foreign and inter-state commerce, and the harbors which are important to such commerce, and to build breakwaters, light-houses, and piers; but it is contended by some that Congress may also assist in the making or improvement of highways, railroads, and canals, existing or authorized under state authority. To some extent such assistance has been given in money, but to a much greater extent in lands, and the question of right, like that of protective duties, has always been treated as exclusively political.2 8 Alien and Sedition Laws. - Two noted instances of the exercise of implied powers in the early history of the country led to much earnest and excited discussion of the theory of the Constitution, and to bitter and dangerous controversies respecting it. The first was in the Alien Law, so called, which authorized the President to order out of the country such aliens as he should deem dangerous to the peace and safety of the United States, or should have reasonable grounds to suspect to be concerned in any treasonable or secret machinations against the government, and imposed severe penalties for disobedience to 1 McCulloch v. Maryland, 4 Wheat. 316, 413. See Anderson v. Dunn, 6 Wheat. 204. 2 Story on Const., ch. 26 and notes. 8 Act of June 25, 1798. the order. The other was in the Sedition Law,1 which declared it to be a public crime, punishable with fine and imprisonment, for any persons unlawfully to combine and conspire together with intent to oppose any measure or measures of the United States, &c., or with such intent to counsel, advise, or attempt to procure any insurrection, unlawful assembly, or combination, or to write, print, utter, or publish, or cause or procure to be written, &c., or wilfully to assist in writing, &c., any false, scandalous, and malicious writings against the government of the United States, or either house of Congress, or the President, with intent to defame them, or to bring them into contempt or disrepute, or to excite against them the hatred of the people, or to stir up sedition, or to excite any unlawful combination for opposing or resisting any law, or any lawful act of the President, or to resist, oppose, or defeat any such law or act, or to aid, encourage, or abet any hostile designs of foreign nations against the United States. 2 Prosecutions were had under this last law, and it was sustained by the judiciary, but the prosecutions had the effect to excite a violent public clamor throughout the country, and were held up to the people as attempts to stifle constitutional discussion, and to prolong the ascendency of the party in power, by holding the threat of punishment over the heads of those who would vigorously assail its conduct, measures, and purposes. 8 Resolutions of '98. These laws were the immediate incitement to the Kentucky and Virginia Resolutions of 1798-9, passed by the legislatures of those States respectively. The Virginia Resolutions, after avowing a firm attachment to the Constitution, and a determination to support it, declare that the legislature "views the powers 1 Act of July 14, 1798. 2 Story on Const., § 1293. 8 The prosecutions under the Sedition Law are given in Wharton's State Trials. of the federal government as resulting from the compact to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact, as no further valid than they are authorized by the grants enumerated in that compact, and that, in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the States, who are the parties thereto, have the right and are in duty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights, and liberties appertaining to them." Of the Kentucky Resolutions there were two sets, the first of which, after declaring that the Constitution was a compact between the States and the government founded by it, proceeded to assert that "this government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers, but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself as well of infractions as of the mode and measure of redress." 2 The second, passed in the following year, declared that a nullification by the States of all unauthorized acts done under color of the Constitution is the rightful remedy. The Alien and Sedition Laws were temporary, and soon expired, and it has long been settled that there must be and is within the federal government authority to decide finally upon the extent and scope of its powers. The judicial decisions to this effect are numerous, and the practice of 4 1 Elliott's Debates, iv. 528, where Madison's report on the Resolutions is also published. 2 Elliott's Debates, iv. 540. 3 Elliott's Debates, iv. 544. 4 Martin v. Hunter's Lessee, 1 Wheat. 304, 334; Cohens v. Virginia, 6 Wheat. 264; Chisholm v. Georgia, 2 Dall. 419; Ableman v. the other departments, and of the States also, is in accord with them. SECTION XVI. - RESTRICTIONS ON THE POWERS OF CONGRESS. Implied Restrictions. — In the preceding chapter allusion has been made to certain restrictions on the powers of Congress, which are implied from the division of powers as between the nation and the States, and as between the several departments of the national government. First, that it must not exercise the powers, or any portion thereof, conferred by the Constitution on the executive or the judiciary; and, second, that it must not encroach upon the sphere of sovereignty which by the Constitution is left in or assigned to the States. Some others will now be mentioned. 1. No legislative body can delegate to another department of the government, or to any other authority, the power, either generally or specially, to enact laws. The reason is found in the very existence of its own powers. This high prerogative has been intrusted to its own wisdom, judgment, and patriotism, and not to those of other persons, and it will act ultra vires if it undertakes to delegate the trust, instead of executing it.1 But this principle does not preclude conferring local powers of government upon the local authorities, according to the immemorial practice of our race and country, nor the giving to Booth, 21 How. 506; Tarble's Case, 13 Wall. 397. There was always a dispute whether the "nullification" intended by the Kentucky and Virginia Resolutions was anything more than a resort to such means of redress as were admissible under the Constitution, and to an amendment of that instrument if needful. 1 Locke on Civil Government, § 142; Barto v. Himrod, 8 N. Y. 483; Rice v. Foster, 4 Harr. 479; Cooley, Const. Lim., 4th ed., 141-152. 2 Durach's Appeal, 62 Penn. St. 491; Mills v. Charleton, 29 Wis. 415; People v. Kelsey, 34 Cal. 470; People v. Hurlbut, 24 Mich. 44; the territories a general authority to legislate on their own affairs. It is competent also, and sometimes necessary, to confer authority on the executive or the judiciary to determine in what cases a particular law shall be applied. For example, the act of Congress suspending the privilege of the writ of habeas corpus during the late civil war did not declare a general suspension, which would have been entirely needless, and therefore an act of tyranny,but it empowered the President to exercise his judgment, and supersede the writ in particular cases, as he might deem the public interest to require. A similar discretionary power is conferred upon the President, or upon one of the heads of department, in many cases. 2. No legislative body under its general authority can pass any act which shall limit or be derogatory to the authority of its successors. If one legislature could in any degree limit the power of its successors, the process might be repeated from time to time, until the State would be stripped of its legislative authority, and of the sovereignty itself. It is for this reason that a State can pass no irrepealable law; for an irrepealable law must necessarily remove something from the reach of subsequent legislation.1 3. Every legislative body is to make laws for the public good, and not for the benefit of individuals; and it is to make them aided by the light of those general principles which lie at the foundation of representative institutions. Here, however, we touch the province of legislative discretion. What is for the public good, and what is required by the principles underlying representative government, the legislature must decide under the responsibility of its members to their constituents. Cross v. Hopkins, 6 W. Va. 323; Stone v. Charlestown, 114 Mass. 214 ; and many cases collected in Cooley, Const. Lim., 4th ed., 141–152, where the validity of local option laws is discussed. 1 1 Bl. Com. 90; Bloomer v. Stolley, 5 McLean, 161. |