Page:A Compilation of the Messages and Papers of the Confederacy, Including the Diplomatic Correspondence, 1861-1865, Volume I.djvu/441

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First Congress.

office; and in case of the death of all of them would belong to the personal representative of the last survivor; and to prevent these inconveniences it is expressly provided that the bond should be payable to and be sued on by "the board of managers and their successors in office," which could be accomplished only by constituting them to that extent a corporation.

From these considerations it is apparent that the intent of the act is to confer corporate powers upon the board of managers; and that intent is, in my judgment, beyond the powers intrusted to Congress by the Constitution. However enlightened opinions may have differed under the old Government, the whole history and theory of the contest in which we are engaged and the express recognition in our Constitution of the sovereignty of the States preclude all idea of so widely extending by construction the field of implied powers. That there is no such power expressly granted need scarcely be remarked.

But if this view of the intent and operation of the act be discarded as incorrect, then it can be susceptible of but one other interpretation. It provides for the support and comfort of soldiers and seamen disabled in the public service — a class in all countries regarded as the peculiar objects of governmental benevolence. The institution which it founds is endowed, in part at least, from the funds of the Government. The real estate necessary for the purpose of this act is to be leased or purchased by the Secretary of War, under the approval of the President, as the property of the Government. Officers in the service and pay of the Government are to be assigned for duty at the asylum. Its whole management is to be subject to the general direction and control of a high officer of the Government — the Secretary of War; and the board of managers are required to report to the Secretary, to be communicated to Congress at every regular session, a statement of the condition of the institution. It is then a Government institution, and its officers are officers of the Confederate States; but they are not to be appointed in any of the ways by which alone such appointments can be constitutionally made — neither by the President, with the advice and consent of the Senate, nor by the President alone, nor by the courts of law, nor by the Head of a Department. The managers are to be appointed by the Governors of the several States, and they in turn