to our territory, and the ownership and control of which, in other hands, could not be said to constitute present or probable menace to our safety or prosperity (27).

The purchase of the territory of Alaska must be justi fied on other grounds than those of the exercise of necessary or proper means to effect an end within the objects enumerated in the constitution.

Judge Story, in his Commentaries, says: "There is no pretense that the purchase or cession of 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 territory whatsoever to our own, however distant, however populous, and however powerful" (28).

27 As we have shown, such a power was believed to exist by one of the most influential of the members of the convention, James Wilson. He expressly mentions it in his argument in 1782 (1 Works, 559), as an attribute of national existence. The question then is, was the power excluded by the terms of the constitution, not was it granted.

28 Judge Story continues: "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 overwhelm

To justify the acquisition of such territory requires a still further stretch of power, and no argument can stop short of the one advanced by Judge Wilson, as heretofore pointed out (29), maintaining that there is an inherent power in the nation, including all objects legitimately within the national jurisdiction which have not been reserved to the states (30).

ing 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 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 Union, yet it is demonstrable that this clause had sole reference to the territory then belonging to the United States, and designed for the admission of the states which, under the ordinance of 1787, were contemplated to be formed within its old boundaries. * * * If it be said that it will be for the common defense and general welfare' to purchase the territory, how is this reconcilable with the strict construction of the constitution? *** Such were the objections which were 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 defense 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." Story on Const., sec. 1280.

29 § 152, p. 363 above.

30 Bryce's Am. Com. 368-374. "The history of the United States is in a large measure a history of the arguments which sought to enlarge or restrict the import of the constitution. One school of statesmen urged that a lax construction would practically leave the United States at the mercy of the national government, and remove those checks on the latter which the constitution was designed to create; while the very fact that some powers were specifically granted must be taken to import that those not specified were withheld, according to the old maxim expressio unius exclusio alterius, which Lord Bacon concisely explains by saying, 'as exception strengthens the force of a law in cases not ex

§ 157. The governmental power in territories. The example of Louisiana will illustrate the extent of power (31).

"Louisiana was acquired in the spring of 1803; an extra session of congress was called to ratify the treaty of acquisition, and to provide for the occupation and government of the new posession.

"It was provided 'that until the expiration of the present session of congress, unless provision for the temporary government of the said territories be sooner made by congress, all the military, civil and judicial powers exercised by the officers of the existing government (32) (the French) of the same shall be vested in such persons, and shall be exercised in such a manner, as the president

cepted, so enumeration weakens it in cases not enumerated.' It was replied by the opposite school that to limit the powers of the government to those expressly set forth in the constitution would render that instrument unfit to serve the purposes of a growing and changing nation, and would, by leaving men no legal means of attaining necessary but originally uncontemplated aims, provoke revolution and work destruction of the constitution itself. * This latter contention derives much support from the fact that there were certain powers that had not been mentioned in the constitution, but which were so obviously incident to a national government that they must be deemed to be raised by implication. For instance, the only offenses which congress is expressly empowered to punish are treason, the counterfeiting of the coin or securities of the government, and piracies and other offenses against the law of nations. But it was very early held that the power to declare other acts to be offenses against the United States, and punish them as such, existed, as a necessary appendage to various general powers. So the power to regulate commerce covered the power to punish offenses obstructing commerce; the power to manage the postoffice included the right to fix penalties on the theft of letters, and in fact a whole mass of criminal law grew up as a sanction to the civil laws which congress had been directed to pass." Bryce's Am. Com. 370.

31 But not the limitations thereof.

32 See 3 Wheat. 202 N. 1; 5 Wheat. Appx. 31.

of the United States shall direct, for maintaining and protecting the inhabitants of Louisiana in the free enjoyment of their liberty, property and religion.'"

The bill emanated from a select committee, of which Mr. John Randolph was chairman; "but," says Senator Benton, "those who are familiar with the inside working of the legislative machinery know very well that the bill came from the department of state, supervised by the president himself." In this instance the special message of the president brought the subject before congress and asked for "temporary provision" for the government of the territory.

The bill was well calculated to startle a people who regarded any form of government except a republican one as despotic (33).

The inhabitants of the ceded territory, far from possessing political rights, were punishable arbitrarily for presuming to meddle with political subjects.

Not only was the nature of the government thus continued wholly incompatible with our constitntion, but its machinery and appointment of officers was equally so. They were to be appoined by the president without the advice and consent of the senate.

33 It continued in force the same form of government, with the identical magistrates, which had been established by the Spanish and French government-putting the president in the place of the king of Spain, putting all the territorial officers in the place of the king's officers, and placing the appointment of all these officers in the president alone, without reference to the senate. Nothing could apparently be more incompatible with our institutions than such a government—a mere continuation of the Spanish-Franco administration, in which all powers, civil and military, legislative, executive and judicial, were in the intendantgeneral representing the president, who occupied the place of kings.

In no territory organized under the ordinance of 1787 were these officers so considered. There was a complete incompatability with our constitution and the spirit of our constitution-first, in the governmental establishment; secondly, in the appointment of the officers to administer it; thirdly, the departure from the model territorial regulations of the ordinance of 1787. Such a bill, so startling in its provisions and so novel in a republic of Anglo-Saxon origin, could not pass without opposition from that jealous republican party (34), which had just come into power, and come in on the cry of saving the constitution from extension by loose construction.

On the acquisition of Florida sixteen years later the same course was pursued. The Louisiana act of October, 1803, was copied for Florida in March, 1819. That act

34 Mr. James Elliott, of Vermont (Republican), seconded the motion of Mr. Griswold, saying: "He would never consent to delegate, for a single moment, such extensive powers to the president, even over a territory; such a delegation of power was unconstitutional." Mr. Dana, of Connecticut (Federal), expressed himself thus: "The president may, under this authority, establish the whole code of Spanish laws, however contrary to our own, appoint whomsoever he pleases as governors and judges, and remove them according to his pleasure; thus uniting in himself all power-legislative, judicial and executive."

The reply to these objections reminded the objectors that this was a territory-not a state; and that the constitution had nothing to do with it. Thus, Mr. Rodney, of Delaware (Republican): "There is a wide distinction between states and territories, and the constitution appears clearly to indicate it. In the territories of the United States, under the ordinance of congress, the governor and judges have a right to make laws. Could this be done in a state? I presume not. It shows that congress have a power in the territories which they cannot exercise in the states, and that the limitations of power, found in the constitution, are applicable to states and not to territories." Benton's Ex. Dred Scott Dec., p. 56.