mails, to grant to telegraph companies a right of way over the public domain. Wherever congress advances to fill the sphere of legislative jurisdiction confided to it by the great grants of the constitution, there advances with it the right and power to choose the means by which its laws shall be made effectual and which are appropriate to the ends it is designed to accomplish.1 186 But it has been contended that the choice of means or instrumentalities is not unrestricted. They must be "necessary" for carrying into execution the enumerated powers. The important word here, however, is relative, not absolute. The necessity required is not an imperative necessity. The constitution does not mean that. the power to be exercised must be the only power which could by any possibility be resorted to for carrying the design of congress into execution. There may, for instance, be two or more methods of accomplishing a given result. If the result must be accomplished, any one of these methods may properly be said to be necessary, although neither is absolutely necessary, since if one should fail the other would remain open and the result still be accomplished. The more liberal interpretation to be given to the word in this connection is shown by the use of the phrase "absolutely necessary" in that clause of the constitution which forbids the states to lay duties on imports or exports. This shows that the authors of the constitution were aware of the relative nature of the word "necessary," and did not intend to give it the most restrictive meaning in this part of the instrument. Moreover, it is here coupled with the word "proper." If the necessity intended were an absolute necessity, the addition of the word "proper" would be merely nonsensical. For imperativeness excludes all questions of propriety. But if we take the first word in a less restricted sense, the other may well be under 186 As an additional illustration of this doctrine, we may mention the act of congress prohibiting federal officers from giving, soliciting, or receiving contributions for political purposes. This statute is not unconstitutional. "The evident purpose of congress in all this class of enactments has been to promote efficiency and integrity in the discharge of official duties, and to maintain proper discipline in the public service. Clearly such a purpose is within the just scope of legislative power." Ex parte Curtis, 106 U. S. 371, 1 Sup. Ct. 381. See, also, Opinion of the Justices, 138 Mass. 601. The government may give a priority or preference to its own claims and dues in the settlement of bankrupt or insolvent estates. U. S. v. Fisher, 2 Cranch, 358. stood as requiring that the means chosen shall be actually appropriate to the ends in view. The result is that congress is invested with authority to avail itself of such means or agencies for carrying into effect its enumerated powers as shall be requisite, essential, or conducive to the accomplishment of that result and bona fide appropriate thereto. And of the existence of this kind of necessity, or of the conduciveness of the means to the end, congress is to judge in the first instance. Its decision is not conclusive. The courts may also determine the question when it is properly presented to them. But they will not set aside an act of congress as unconstitutional, on this ground, unless it is clearly apparent that the statute can by no means be needful or appropriate to the execution of any of the specified powers of the federal legislature. These principles are fully sustained by the decisions of the supreme court.187 It was on this ground that the constitutionality of the act incorporating the Bank of the United States was principally sustained. And the reasoning applies equally to other corporations. It is true that we cannot find in the constitution an express grant of power to congress to grant charters of incorporation. But if a bank, a railroad, a telegraph company, or any other kind of a corporation is a means or agency needed by congress in the exercise of its admitted powers, or conducive to their due execution, and plainly adapted to the accomplishment of that end, then congress has power, under this clause of the constitution, to incorporate it.188 Another question which at one time called for a construction of this part of the constitution was as to the validity of the Alien and Sedition Laws, passed in 1798. Their constitutionality was vigorously assailed, and they were the cause of the adoption of the Virginia and Kentucky resolutions, passed in that and the following year. The subject is no longer of practical interest, and belongs to the domain of political history.189 187 M'Culloch v. Maryland, 4 Wheat. 316; Martin v. Hunter, 1 Wheat, 304; Gibbons v. Ogden, 9 Wheat. 1; Hepburn v. Griswold, 8 Wall. 603; Legal, Tender Cases, 12 Wall. 457; Juilliard v. Greenman, 110 U. S. 421, 4 Sup. Ct. 122; U. S. v. Coombs, 12 Pet. 72. 188 M'Culloch v. Maryland, 4 Wheat. 316; Osborn v. Bank of U. S., 9 Wheat. 738; Farmers' & Mechanics' Nat. Bank v. Dearing, 91 U. S. 29; 2 Story, Const. §§ 1259-1271. 189 On the subject of the Alien and Sedition Laws, see 2 Story, Const. §§ 1293, 1294; 1 Von Holst, Const. Hist. 142. On the general subject of the LIMITATIONS ON POWERS OF CONGRESS. 86. The limitations upon the legislative power of congress, under the constitution, may be divided into four classes; (a) Implied limitations. (b) General limitations. (c) Specific limitations upon general powers. Implied Limitations. Besides the restriction upon the legislative power of the United States growing out of the fact that it is a government of enumerated powers, which has been already adverted to, there are certain limitations upon legislative power in general, arising from the nature of government and the partition of powers among the several departments of the government, which are applicable to congress, as to any legislative body. These limitations are not expressed in the constitution, but they are none the less effective and binding. We have chosen to describe them as "implied limitations." That the national legislature must not encroach upon the legitimate province and sphere of the state governments is abundantly evident from all parts of the federal constitution and has always been assumed as a fundamental principle of our systems. But it is equally true that an act of congress is invalid if it assumes to exercise powers which are confided to the executive or judicial department alone. It is also a settled rule, applying to congress as to any other legislative body, that the legislative power confided to it must be exercised by it alone, and cannot be delegated by it to any other body or individual. Again, it is not within the constitutional power of any legislative body to pass laws which cannot be repealed by its successors, or to limit the powers of succeeding legislatures by stripping itself of its prerogatives in favor of individuals or otherwise abrogating its powers and functions. Again, it is a fundamental maxim incidental and implied powers of congress, the reader may profitably consult 1 Hare, Am. Const. Law, 99-118; 2 Story, Const. §§ 1236, 1281; Pom. Const. Law, §§ 259-269; Cooley, Const. Law (2d Ed.) 97. of public law that statutes must be enacted for the good of the whole people, and not for the benefit of private persons. But this general principle does not prevent congress from passing private bills, nor from exercising a large measure of discretion as to the determination of what measures have relation to the public welfare. General Limitations. The general limitations upon the power of the federal government are found in the ninth and tenth amendments to the constitution. In regard to the first of these, it has been said that it "was manifestly introduced to prevent any perverse or ingenious misapplication of the well-known maxim that an affirmation in particular cases implies a negation in all others, and, e converso, that a negation in particular cases implies an affirmation in all others. The maxim, rightly understood, is perfectly sound and safe; but it has often been strangely forced from its natural meaning into the support of the most dangerous political heresies." 190 The tenth amendment was adopted in consequence of the jealousies felt by the states with regard to the power of the central government, and was designed to make it more clear and certain that the government of the United States was one of delegated and enumerated powers. The force and applicability of this amendment are chiefly apparent when it is considered in connection with the grant to congress of power to "make all laws which shall be necessary and proper for carrying into execu tion" its enumerated powers. It should therefore be studied in relation to the doctrine of implied and incidental powers. Specific Limitations upon General Powers. The specific limitations upon the general powers of congress are mainly found in the first eight amendments to the constitution and in the last three. These constitute what may be called the federal bill of rights. They are intended to secure those personal, social, and political rights which are generally esteemed characteristic of a free country, against all abridgment or invidious legislation on the part of the national government. These are best considered in connection with the study of those rights, and will be found treated in the chapters on civil and political rights and the constitutional 190 2 Story, Const. § 1905. guaranties in criminal cases. But there are certain limitations of federal power, found in other parts of the constitution, which must be briefly noticed here, as belonging to this class. Thus, "the migration or importation of such persons as any of the states now existing shall think proper to admit shall not be prohibited by the congress prior to the year 1808." This obscure phrase was designed to secure the continuance of the African slave-trade until the year designated. Its insertion was necessary to secure the adoption of the constitution, and was one of the principal compromises of that instrument. As soon as the stipulated twenty years had elapsed, congress absolutely prohibited the further importation of slaves, and also made the slave-trade piracy and punishable with death. Again, "no money shall be drawn from the treasury but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time." In regard to this provision, it is well said by Story that "as all the taxes raised from the people, as well as the revenues arising from other sources, are to be applied to the discharge of the expenses and debts and other engagements of the government, it is highly proper that congress should possess the power to decide how and when any money shall be applied for these purposes. If it were otherwise, the executive would possess an unbounded power over the public purse of the nation, and might apply all its monied resources at his pleasure. The power to control and direct the appropriations constitutes a most useful and salutary check upon profusion and extravagance, as well as upon corrupt influence and public peculation." 191 The provision for the publication of statements of the receipts and expenditures is intended as a means of holding all the departments of the government, and particularly the legislature, under a due sense of responsibility to the people. The duty to see to this publication belongs to the executive, 192 "No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them shall, without the consent of congress, accept of any present, emolument, office, 191 Id. § 1348. 192 Cooley, Const. Law (2d Ed.) 107. |