Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1850-01-26

this be 80 the war making be said to make the
acquision in other words the annexation, though may
afford the opportunity Of its being made The act OF con-
quest and annexation in such state OF things
different in their character as in their operation treaty
of peace confirming the conquest and making the cesson
carries the question the treaty making power What
course will be pursued declare annexation in
the very improbable of the conquest Of foreign
Try by the United States with the discrimination of the Gov
eminent utterly subdue it. and to destroy its political
ganzaton that authority could give lis
the proposed by the conquerer, little likely
happen scarcely to deserve place. subject of
speculation in an elementary treatise In Europe the diff
fcuy would be at removed by proclamation from the
Sovereign, announcing the acquisition, and declaring its
future condition.
But the treaty making power clearly competent to
qure territory though the proposition that acquisition
cessary brings with the authority Of legislation another
and quite different question.
Gas the General Government" says Judge Story, spos
sesses the right to acquire territory either by treaty or con-
quest would follow, aninevable consequence,
that possesses the power TO what has acquired
The territory does not when acquired, become entitled
to egovernment, and is not subject to the jurisdiction
of any State must consequently be under the dominion
and jurisdiction Of the Union would be without any
government at all"
The power of governing and of egislaliug for terri
tory says Mr. Rawe, "may be the inevitable consequence
Of the right to acquire territory"
Perhaps" says Chief Justice Marshall, after referring TO
the clause authorizing the making of needu rules and regua
tons the of this Of legislation the power Of
governing territory belonging to the United States, which
has by becoming State, acquired the means of self
government may result necessarily from the fact that it
within the power and jurisdiction Of the United States
The right to govern may be the inevitable consequence Of
the right TO acquire territory"
It is obvious, from the identity Of thought and similarity of
language which mark these extracts that they their orr
gin to common presume this source was the view
presented by Judge Marshall and that both the commentators
followed the path marked out by that eminent and able
judge He indeed speaks doubtfuy upon the subject, and
advances the idea with caution, and rather as suggestion
than opinion. "May" and perhaps" far from
indicating settled conviction especially after the power had
been traced to another But what be doubted Of
these writers considered nconestab, and the other nearly
and both referred to in discussion authorities
which but ha crazy politician" to borrow phrase
have heard upon this OCCASION would call in question.
As neither of these distinguished uss their position
in constitutional terms is not very easy to ascertain the pre-
else limitation of their views What is here meant
by "inevitabe consequence" Is it logical consequence
deduced from the language of the constitution, and which
makes the power Of integral part of the treaty.
making power, consequence resulting from moral neces
sity imposing duty which ought be fulfilled; is the
constitutional consequence which grants implied powers in
order to exercise express ones 1t hardly be the first for
the right acquire thing, and the right TO egislate
other and the act Of acquisition complete within itself
Treaties may be made with foreign nations treaties of peace
of commerce, of limits of acquisition, and for other objects
for the power granted by the constitution general and not
restricted any particular class of these instruments They
include all the objects relating foreign
without which the power could not be fairly exercised and
which not contrary to the constitution to the rights OF
the States They do carry with them the to cede,
at rate TO cede portions Of sovereign States for their
rgny does not belong the Union the Union add
to take from it without their consent The treaty
making authority acquires territory by treaty The power to
dispose of it and the power admit it into the Union when
formed into States both expressly gven and of
not gven could be exercised The power legslate
for it is not gven and how, then, that be exercised 1t
clear, that the idea of legislation included in the
idea Of acquisition closely connected with that the
power cannot be exercised without the other
may be that by "inevitabe consequence are TO un
derstand consequence resulting from moral necessity and
hp fnIE md 10
part Of the opinion Of Judge Marshall and Of the
tay Of Judge Story which favors this suggestion for sad
as an nducement to the exercise of this power Of legislation
that as the territory cannot ITSELF and not subject 10
any State m must consequently be under the dominion and
jurisdiction of the Union, would be without any govern
ment at all This moral necessity where it exists under
sufficiently impeous circumstances justify the represen
ave to his constituent for the assumption which
no constitutional warrant can be found But it have
place n inquiry into the true powers of the Legislature
which thus the ground OF necessity Such
out of the pale of the constitution and nvoves
connected with this branch Of the subject and
which shall examine in another connexion before close my
remarks.
To the inquiry into the meaning of this ssnev
table consequence " it the constitutional consequence by
which implied powers may be exercised when and
proper carry into effect the expressly granted powers
10 bring within this clause must be assumed that acqu
sltion cannot be complete without political legislation and
that the latter is not merely auxiliary by which the terri
tory acquired may be better used improved for every proper
purpose, after being attained but that is Unnecessary and
proper to the attainment ITSELF Certain is that the mo
men treaty of cession ratified the act Of acquisition
plete, and the territory becomes pso acto part Of the Uni
ted States Legislation cannot change its tenure, make
more less than the treaty has made It. The treaty.
making power has performed its function, and accomplished
the purpose for which destined The disposition Of the
territory acquired is quite another question: and be de-
termined by other provisions Of the constitution.
have been orcbly struck with many of the extraordinary
opinions which have marked this discussion respecting these
icidenfn implied po,cers and which confidently adj
vanceu, IN te disregard to me, well of the Ian
guage as Of the spirit of the constitution
The implied powers of Congress granted in the following
shall be necessary and proper for carrying into execution the
tuition in the Government of the United States in any de-
pament officer thereof II be observed that these
implied powers granted only Congress- and belong
no other department of the Government The treaty making
power does not possess Them and exercise its functions
only upon subjects directly sppeaning proper auhori
y The power is strictly Legislative And again.
implied cannot be engaed upon another implied pow
The authority is spent when exercised It is TO
make aos necessary and proper carry execution the
po,cers Vested By s constitution. And obvious that
were not Congress wogd go step by STEP thus
concentrate within itself all the powers Of the Confederation
and of the States.
In this connexon beg leave to refer article in the
NATIONAL lnegencer of December 90 l847, with this cap
non Has Congress power to institute slavery " 1t is
mended by the editors Of that paper readers the
calm discussion Of important question: from source en-
titled to high respect 1t is entitled this commendaton
fer 1t written with great cleaness and vgor and the wr
ter was an eminent judge Of the supreme the West
as was stated in the Ohio papers the me and
adcted will deny that the views are entitled to great
respect from the talents character and position the aaho