in these, and the like cases, the general jurisdiction of the state over the soil, subject only to the rights of the United States, is not excluded. As, for example, in case of a military road; although a state cannot prevent repairs on the part of the United States, or authorize any obstructions of the road, its general jurisdiction remains untouched. It may punish all crimes committed on the road; and it retains in other respects its territorial sovereignty over it. The right of soil may still remain in the state, or in individuals, and the right to the easement only in the national government. There is a great distinction between the exercise of a power, excluding altogether state jurisdiction, and the exercise of a power, which leaves the state jurisdiction generally in force, and yet includes, on the part of the national government, a power to preserve, what it has created.

§ 635. In all these, and other cases, in which the power of congress is asserted, it is so upon the general ground of its being an incidental power; and the course of reasoning, by which it is supported, is precisely the same, as that adopted in relation to other cases already considered. It is, for instance, admitted, that congress cannot authorize the making of a canal, except for some purpose of commerce among the states, or for some other purpose belonging to the Union; and it cannot make a military road, unless it be necessary and proper for purposes of war. To go over the reasoning at large would, therefore, be little more, than a repetition of what has been already fully expounded. The Journal of the Convention is not supposed to furnish any additional lights on the subject, beyond what have been already stated.

§ 636. The resistance to this extended reach of

the national powers turns also upon the same general reasoning, by which a strict construction of the constitution has been constantly maintained. It is said, that such a power is not among those enumerated in the constitution; nor is it implied, as a means of executing any of them. The power to regulate commerce cannot include a power to construct roads and canals, and improve the navigation of water-courses in order to faciliate, promote, and secure such commerce, without a latitude of construction departing from the ordinary import of the terms, and incompatible with the nature of the constitution. The liberal interpretation has been very uniformly asserted by congress; the strict interpretation has not uniformly, but has upon several important occasions been insisted upon by the executive. In the present state of the controversy, the duty of forbearance seems inculcated upon the commentator; and the reader must decide for himself upon his own views of the subject.

§ 637. Another question has been made, how far congress could make a law giving to the United States a preference and priority of payment of their debts, in case of the death, or insolvency, or bankruptcy of their debtors, out of their estates. It has been settled, upon deliberate argument, that congress possess such a constitutional power. It is a necessary and proper power to carry into effect the other powers of the government. The government is to pay the debts of the Union and must be authorized to use the means, which appear to itself most eligible to effect that object. It may purchase, and remit bills for this object; and it may take all those precautions, and make all those regulations, which will render the transmission safe. It may, in like manner, pass all laws to render effectual

the collection of its debts. It is no objection to this right of priority, that it will interfere with the rights of the state sovereignties respecting the dignity of debts, and will defeat the measures, which they have a right to adopt to secure themselves against delinquencies on the part of their own revenue or other officers. This objection, if of any avail, is an objection to the powers given by the constitution. The mischief suggested, so far as it can really happen, is the necessary consequence of the supremacy of the laws of the ' United States on all subjects, to which the legislative power of congress extends.

§ 638. It is under the same implied authority, that the United States have any right even to sue in their own courts; for an express power is no where 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,) 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. 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.

§639. 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.

CHAPTER XXVII.

POWERS OF CONGRESS

PURCHASE OF FOREIGN
EMBARGOES.

TERRITORY

§ 640. 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.

§ 641. 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.

§ 642. 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