§ 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 construc tion 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 any foreign territory is within any of the powers expressly enumerated

1 Art. 3.

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 treaty-making 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 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 is this! The Constitution may be overleaped, and a broad construction adopted for favorite measures, and resistance is to be made to such a construction only when it shall produce ill effects! His letter to Dr. Sibley (in June, 1803), recently published, is decisive, that he thought an amendment of the Constitution necessary. Yet he did not hesitate without such amendment to give effect to every measure to carry

§ 1287. As an incidental power, the constitutional right of the United States to acquire territory would seem so naturally to flow from the sovereignty confided to it, as not to admit of very serious. question. The Constitution confers on the government of the Union the power of making war and of making treaties; and it seems, consequently, to possess the power of acquiring territory, either by conquest or treaty. If the cession be by treaty, the terms of that treaty must be obligatory, for it is the law of the land. And if it stipulates for the enjoyment by the inhabitants of the rights, privileges, and immunities of citizens of the United States, and for the admission of the territory into the Union, as a State, these stipulations must be equally obligatory. They are within the scope of the constitutional authority of the government, which has the right to acquire territory, to make treaties, and to admit new States into the Union.2

§ 1288. The more recent acquisition of Florida, which has been universally approved, or acquiesced in, by all the States, can be maintained only on the same principles, and furnishes a striking illustration of the truth, that constitutions of government require a liberal construction to effect their objects, and that a narrow interpretation of their powers, however it may suit the views of speculative philosophers or the accidental interests of political

the treaty into effect during his administration. See 4 Jefferson's Corresp. p. 1, 2, 3; Letter to Dr. Sibley, and Mr. J. Q. Adams's Letter to Mr. Speaker Stevenson, July 11, 1832.

1 Amer. Insur. Co. v. Canter, 1 Peters's Sup. R. 511, 542; Id. 517, note, Mr. Justice Johnson's Opinion.

2 In the celebrated Hartford Convention, in January, 1815, a proposition was made to amend the Constitution, so as to prohibit the admission of new States into the Union without the consent of two-thirds of both houses of Congress. In the accompanying report there is a strong, though indirect, denial of the power to admit new States without the original limits of the United States. [The protest against the acquisition of Louisiana was very earnest in some quarters. The legislature of Massachusetts resolved "that the annexation of Louisiana to the Union transcends the constitutional power of the government of the United States. It forms a new confederacy to which the States united by the former compact are not bound to adhere." And afterwards, when a bill was pending in Congress for the admission of Louisiana as a State, in accordance with the terms of the cession, Mr. Josiah Quincy, a member for Massachusetts, used that famous expression which subjected him to so much obloquy: "It is my deliberate opinion that if this bill passes, the bonds of this Union are virtually dissolved; that the States which compose it are free from their moral obligation, and that, as it will be the right of all, so it will be the duty of some, definitely to prepare for separation, amicably if they can, violently if they must.' Life of Quincy, p. 206; Tyler's Memoir of Chief Justice Taney, 333.]

parties, is incompatible with the permanent interests of the State, and subversive of the great ends of all government, the safety and independence of the people.

§ 1289. The other instance of an extraordinary application of the implied powers of the government, above alluded to, is the embargo laid in the year 1807, by the special recommendation of President Jefferson. It was avowedly recommended, as a measure of safety for our vessels, our seamen, and our merchandise from the then threatening dangers from the belligerents of Europe; 1 and it was explicitly stated "to be a measure of precaution called for by the occasion ;" and "neither hostile in its character, nor as justifying, or inciting, or leading to hostility with any nation whatever." It was in no sense, then, a war measure. If it could be classed at all, as flowing from, or as an incident to, any of the enumerated powers, it was that of regulating commerce. In its terms, the act provided, that an embargo be, and hereby is, laid on all ships and vessels in the ports, or within the limits or jurisdiction of the United States, &c., bound to any foreign port or place. It was in its terms unlimited in duration; and could be removed only by a subsequent act of Congress, having the assent of all the constitutional branches of the legislature.a

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§ 1290. No one can reasonably doubt, that the laying of an embargo, suspending commerce for a limited period, is within the scope of the Constitution. But the question of difficulty was, whether Congress, under the power to regulate commerce with foreign nations, could constitutionally suspend and interdict it wholly for an unlimited period, that is, by a permanent act, having no limitation as to duration, either of the act, or of the embargo. It was most seriously controverted, and its constitutionality denied in the eastern States of the Union, during its existence. An appeal was made to the judiciary upon the question; and it having been settled to be constitutional by that department of the govern

1 6 Wait's State Papers, 57.

2 7 Wait's State Papers, 25, Mr. Madison's Letter to Mr. Pinkney; Gibbons v. Ogden, 9 Wheat. R. 191, 192, 193.

3 Act 22d December, 1807, ch. 5.

4 In point of fact, it remained in force until the 28th of June, 1809, being repealed by an act passed on the first of March, 1809, to take effect at the end of the next session of Congress, which terminated on the 28th of June, 1809.

5 [Webster's Works, III. 326 to 329; Reminiscences of Samuel Dexter, by "Sigma,” 59 to 61.]