2 express power is nowhere given in the Constitution, though it is clearly implied in that part respecting the judicial power. And Congress may not only authorize suits to be brought in the name of the United States, but in the name of any artificial person (such as the postmaster-general 1), or natural person for their benefit. Indeed, all the usual incidents appertaining to a personal sovereign, in relation to contracts, and suing, and enforcing rights, so far as they are within the scope of the powers of the government, belong to the United States, as they do to other sovereigns.3 The right of making contracts and instituting suits is an incident to the general right of sovereignty; and the United States, being a body politic, may, within the sphere of the constitutional powers confided to it, and through the instrumentality of the proper department to which those powers are confided, enter into contracts not prohibited by law, and appropriate to the just exercise of those powers; and enforce the observance of them by suits and judicial process. * § 1280. There are almost innumerable cases, in which the auxiliary and implied powers belonging to Congress have been put into operation. But the object of these commentaries is rather to take notice of those which have been the subject of animadversion, than of those which have hitherto escaped reproof, or have been silently approved. § 1281. Upon the ground of a strict interpretation, some extraordinary objections have been taken in the course of the practical operations of the government. The very first act, passed under the government, which regulated the time, form, and manner of administering the oaths prescribed by the Constitution,5 was denied to be constitutional. But the objection has long since been abandoned. It has been doubted, whether it is constitutional to permit the secretaries to draft bills on subjects connected with their departments, to be presented to the House of Representatives for their consideration. It has been doubted, 1 Postmaster-General v. Early, 12 Wheat. R. 136. 2 See Dugan v. United States, 3 Wheat. R. 173, 179; United States v. Buford, 3 Peters's R. 12, 30; United States v. Tingey, 5 Peters's R. 115, 127, 128. 3 Cox v. United States, 6 Peters's R. 172. 4 United States v. Tingey, 5 Peters's R. 115, 128. 5 Act of 1st June, 1789, ch. 1. 64 Elliot's Deb. 139, 140, 141; 1 Lloyd's Deb. 218 to 225. 74 Elliot's Debates, 238, 239, 240. whether an act authorizing the President to lay, regulate, and revoke embargoes was constitutional. It has been doubted, whether Congress have authority to establish a military academy. But these objections have been silently, or practically abandoned. 14 Elliot's Debates, 240. See Id. 265. 24 Jefferson's Corresp. 499. § 1282. BUT the most remarkable powers, which have been exercised by the government, as auxiliary and implied powers, and which, if any, go to the utmost verge of liberal construction, are the laying of an unlimited embargo in 1807, and the purchase of Louisiana in 1803, and its subsequent admission into. the Union, as a State. These measures were brought forward, and supported and carried, by the known and avowed friends. of a strict construction of the Constitution; and they were justified at the time, and can be now justified only upon the doctrines of those who support a liberal construction of the Constitution. The subject has been already hinted at; but it deserves a more deliberate review. § 1283. In regard to the acquisition of Louisiana: The treaty of 1803 contains a cession of the whole of that vast territory by France to the United States, for a sum exceeding eleven millions of dollars. There is a stipulation in the treaty, on the part of the United States, that the inhabitants of the ceded territory shall be incorporated into the Union, and admitted, as soon as possible, according to the principles of the federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States.1 § 1284. It is obvious, that the treaty embraced several very important questions, each of them, upon the grounds of a strict construction, full of difficulty and delicacy. In the first place, had the United States a constitutional authority to accept the cession and pay for it? In the next place, if they had, was the stipulation for the admission of the inhabitants into the Union, as a State, constitutional, or within the power of Congress to give it effect? § 1285. There is no pretence that the purchase or cession of 1 Art. 3. any foreign territory is within any of the powers expressly enumerated in the Constitution. It is nowhere in that instrument said, that Congress, or any other department of the national government, shall have a right to purchase or accept of any cession of foreign territory. The power itself, it has been said, could scarcely have been in the contemplation of the framers of it. It is, in its own nature, as dangerous to liberty, as susceptible of abuse, in its actual application, and as likely as any which could be imagined to lead to a dissolution of the Union. If Congress have the power, it may unite any foreign territory whatsoever to our own, however distant, however populous, and however powerful. Under the form of a cession, we may become united to a more powerful neighbor or rival, and be involved in European or other foreign interests and contests to an interminable extent. And if there may be a stipulation for the admission of foreign States into the Union, the whole balance of the Constitution may be destroyed, and the old States sunk into utter insignificance. It is incredible that it should have been contemplated that any such overwhelming authority should be confided to the national government with the consent of the people of the old States. If it exists at all, it is unforeseen, and the result of a sovereignty intended to be limited, and yet not sufficiently guarded. The very case of the cession of Louisiana is a striking illustration of the doctrine. It admits, by consequence, into the Union an immense territory, equal to, if not greater, than that of all the United States under the peace of 1783. In the natural progress of events, it must, within a short period, change the whole balance of power in the Union, and transfer to the west all the important attributes of the sovereignty of the whole. If, as is well known, one of the strong objections urged against the Constitution was, that the original territory of the United States was too large for a national government, it is inconceivable that it could have been within the intention of the people that any additions of foreign territory should be made, which should thus double every danger from this source. The treatymaking power must be construed as confined to objects within the scope of the Constitution. And, although Congress have authority to admit new States into the firm, yet it is demonstrable that this clause had sole reference to the territory then belonging to the United States, and was designed for the admission of the States which, under the ordinance of 1787, were contemplated to be formed within its old boundaries. In regard to the appropriation of money, for the purposes of the cession, the case is still stronger. If no appropriation of money can be made, except for cases within the enumerated powers (and this clearly is not one), how can the enormous sum of eleven millions be justified for this object? If it be said that it will be "for the common defence and general welfare" to purchase the territory, how is this reconcilable with the strict construction of the Constitution? If Congress can appropriate money for one object, because it is deemed for the common defence and general welfare, why may they not appropriate it for all objects of the same sort? If the territory can be purchased, it must be governed; and a territorial government must be created. But where can Congress find authority in the Constitution to erect a territorial government, since it does not possess the power to erect corporations? § 1286. Such were the objections which have been and in fact may be, urged against the cession, and the appropriations made to carry the treaty into effect. The friends of the measure were driven to the adoption of the doctrine, that the right to acquire territory was incident to national sovereignty; that it was a resulting power, growing necessarily out of the aggregate powers confided by the federal Constitution; that the appropriation might justly be vindicated upon this ground, and also upon the ground that it was for the common defence and general welfare. In short, there is no possibility of defending the constitutionality of this measure, but upon the principles of the liberal construction which has been, upon other occasions, so earnestly resisted.1 1 See the Debates in 1803, on the Louisiana Treaty, printed by T. & G. Palmer, in Philadelphia, in 1804, and 4 Elliot's Debates, 257 to 260. The objections were not taken merely by persons who were at that time in opposition to the national administration. President Jefferson himself (under whose auspices the treaty was made) was of opinion that the measure was unconstitutional, and required an amendment of the Constitution to justify it. He accordingly urged his friends strenuously to that course; at the same time he added, "that it will be desirable for Congress to do what is necessary in silence;' "whatever Congress shall think necessary to do should be done with as little debate as possible, and particularly so far as respects the constitutional difficulty." "I confess, then, I think it important, in the present case, to set an example against broad construction, by appealing for new power to the people. If, however, our friends shall think differently, certainly I shall acquiesce with satisfaction; confiding, that the good sense of our country will correct the evil of construction when it shall produce ill effects." What a latitude of interpretation |