The daily union. [volume] (Washington [D.C.]) 1845-1857, 1850-01-22

OF things different IN their character their opera
ton. "A treaty OF peace confirming the conquest and
making the cesson carries the question 10 the treaty ma
king power. What course will be pursued to declare or
10 secure annexaton IN the very improbable event OF the
conquest OF foreign country by the United States, with
the dissemination OF the government utterly 10 subdue IT,
and TO destroy its political organization, that au
horiy could exist to give its assent 10 the terms pro-
posed by the conqueror, little likely TO hap
pen as scarcely 10 deserve place, subject OF
speculation, IN an elementary treatise La Europe the
difficulty would be Al once removed by proclamation from
the sovereign announcing the acquisition, and declaring
its future condition
But the treaty making power is clearly competent to
acquire territory though the proposition that acquisition
necessarily brings with 1t the authority OF legislation is
another and quite different question
"As the general government, says Judge Story, pos
sesses the right acquire territory either by treaty
that possesses the power govern what has acquired
The territory does not when acquired, become en-
dicon Of amy State Il consequently be under the
dominion and jurisdiction Of the Union, or IL would be
without am government at all !" A
The power Of governing and legslatng for terri
o says Mr. Rawle "may be the inevitable consequence
OF the right 70 acquire territory." l0 In tHl 6as
"Perhaps says Chief Justice Marshall, after referring to
tue clause the making Of noedal rules aud
power Of governing territory belonging to the United
States which has not by becoming State, acquired the
fact that is within the power and jurisdiction Of the
United States The right TO govern may be the inevitable
conse sequence oil the right 10 acquire territory"
1t obvious from the identity Of thought and similarity
OF language which mark these extracts, that they owe
their origin 70 common source presume ta,s source
bs " my ea massd ou b. ba
eminent man and able Judge He indeed speaks doubt
fully upon the subject and advances the idea with eau
May and perhaps are FAR from Indicating settled
conviction especially after the power had been traced to
another source But what he doubted one OF these
writers considered nconestabe, and the other nearly
and both referred in discussion authorities
which none but " half crazy politician" to borrow
phrase have heard upon this occasion, would call in
question.
AS neither OF these distinguished urss state their posi-
ton in constitutional TERMS it is not very easy to
certain the precise extent or Limitation OF their views
What is here meant by inevitable consequence" ls It
logical consequence deduced from the language Of the
constitution, and which makes the power OF government
an integral part Of the aymaking power, OF conse-
quence resulting from moral necessity, imposing duty
which ought to be fulfilled is il the constitutional
consequence, which grants implied powers, in order
TO exercise express oness can hardly oe me hrst
late another and the act of acquisition is complete with
in 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
sttuton is general and not restricted to any particular
class Of these instruments They include all the objects
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 power to cede
any cede portions of sovereign States for their
sovereignty does not belong to the Unions the
Union add TO take from II without their consent
The treaty making authority acquires territory by treaty
",
into the Unon when formed into Staies both express
ly given, and of course, il given could not be
csed The power TO egslatc for i is not given and
how, then, can that be exercised! clear sir that the
idea OF legislation included in the idea OF acquisi
ton so closely connected with Il that the power
cannot be exercised without the other p.
1t may be that by" inevitable consequence TO
understand from moral necessity
and which imposes duty that ought to be fulfilled, and
The y OF hs o. 5 aas o.
ton; for il is said, nduceent 10 the exercise of
this power Of Legislation, that the Territory
govern itself, and is subject any State, " il must
conscq ueny be under the dominion and jurisdiction OF
the Union or il would be without any government AT
ALL" This moral necessity, where il exists under suii-
GENTLY imperous circumstances, may justify the repre-
sentative to his constituent for the assumption of power
for which constitutional warrant can be found. But
i have place in an inquiry into the true powers OF
the legislature which thus 10 act the ground
OF necessity Such is OF the pale OF the const
tuition, and involves considerations not connected with
this branch OF the subject and which shall examine in
another connection before close my remarks.
To the inquiry into the meaning of this Elm
evitabe consequence !" is II the constitutional conse-
quence by which implied powers may be exercised when
granted powers TO bring it within this clause. Il must
be assumed that acquisition cannot be complete without
political legislation; and that the latter is not merely an
auxiliary, by which the territory acquired may be better
used improved for every proper purpose, after being
attained but that II is necessary and proper TO the
attainment itself Certain il is that the moment treaty
OF cesson is ratified, the act oil acquisition complete,
and the territory becomes pso faco part Of the United
States Legislation cannot change It's tenure nor make
il less than the treaty has made IT, The treaty
making power has performed its function, and accom-
plished the purpose for which il destined The dis
position OF the territory acquired is quite another ques
ton, and must be determined BY other provisions Of the
constitution
have been iorcibly struck with many Of the exraord
nary opinions which have marked this discussion. re-
spsctng these incidental implied poiceys, and which
confidently advanced, utter disregard. il TO
mo- as well OF the language OF the spirit OF the const
tuition. It'll 9syt sH "a a'.nt esr
The implied powers Of Congress are granted in the fol-
all laws which shall be necessary and proper carrying
into execution the foregoing powers and all other powers
vested by this constitution in the government Of the
United States in any department officer, thereof,
II is TO be observed that these implied powers grant
ed only to Congress- and belong 20 other department Of
the government The treaty making power does not pos
them and IL must exercise ts functions only upon
subjects directly appersnng TO its proper authority The
power is strictly legislative And again, Implied
power cannot be ingraited upon another implied power
The authority is spent when exercised. Ii is 10
make laos necessary and proper 20 carry into sreeuon the
porers vested BY thus constitution And II is obvious that
were il not so, Congress would 20 step by step, and
thus concentrate within itself all the powers OF the
federation and OF the States He
In this connexion beg leave 10 refer to an article in
the National ntelgencer OF December 20, lS47, with
this caption, "Has Congress power TO institute slavery p
II Is commended by the editors Of that paper to its read
'fhe calm discussion OF important question:
from source entitled to high respect 1t is entitled TO
this commentator; for il is written with great cearness
and vgor and II the writer eminent Judge OF the
Supreme Court from the West, was stated in the
a. a.. IL.