Page:James Bryce American Commonwealth vol 1.djvu/404

382 themselves during the War of Secession obliged to stretch this power to cover many acts trenching on the ordinary rights of the States and of individuals, till there ensued something which, fifty years earlier, would have been deemed to approach a suspension of constitutional guarantees in favour of the Federal government.

The courts have occasionally gone even further afield, and have professed to deduce certain powers of the legislature from the sovereignty inherent in the National government. In its last decision on the legal tender question, a majority of the Supreme court seems to have placed upon this ground, though with special reference to the section enabling Congress to borrow money, its affirmance of that competence of Congress to declare paper money a legal tender for debts, which the earlier decision of 1871 had referred to the war power. This position evoked a controversy of wide scope, for the question what sovereignty involves belongs as much to political as to legal science, and may be pushed to great lengths upon considerations with which law proper has little to do.

The above-mentioned instances of development have been worked out by the courts of law. But others are due to the action of the executive, or of the executive and Congress conjointly. Thus, in 1803, President Jefferson negotiated and completed the purchase of Louisiana, the whole vast possessions of France beyond the Mississippi. He believed himself to be exceeding any powers which the Constitution conferred; and desired to have an amendment to it passed, in order to validate his act. But Congress and the people did not share his scruples, and the approval of the legislature was deemed sufficient ratification for a step of transcendent importance, which no provision of the Constitution bore upon. In 1807 and 1808 Congress laid, by two statutes, an embargo on all shipping in United States ports, thereby practically destroying the lucrative carrying trade of the New England States. Some of these States declared the Act unconstitutional, arguing that a power to regulate commerce was not a power to annihilate it, and their courts held it to be void. Congress, however, persisted for a year, and the Act, on which the Supreme court never formally pronounced, has been generally deemed within the Constitution, though Justice Story (who had warmly