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The Commoner.
Now Mexico woro acquired by the treaty "with
Mexico of 1848, and other .western territory froni
Mexico by tbo treaty of 1853; numerous islands
have been brought within tho dominion of the
United States under tho authority of tho act of
August 18, 185G, c. 1G4, usually designated as tho
Guano Islands act, re-enacted in Revised Statutes,
section's 5570-5578; Alaska was ceded by Russia
in 13C7; Medway Island, the western end of the
Hawaiian group, 1,200 miles from Honolulu, was
acquired in 18G7; and $50,000 was expended in
efforts to make it a naval station; on the renewal
Of a treaty with Hawaii, November 9, 1887, Pearl
Harbor was leased for a permanont naval station;
by joint resolution of congress tho Hawaiian isl
ands came under the sovereignty of the United
States in 1898; and on April 30, 1900, an act for
tho government of Hawaii was approved, by which
the Hawaiian islands "were .given the status of an
incorporated territory; on May 21, 1890, there was
proclaimed by tho president an agreement, con
cluded and signed with Germany and Great Britain
for tho joint administration of the Samoan islands
(2G Stat., 1497); and on February 16, 1900 (31
Stat., ), there "was proclaimed a convention be
tween tho United States, Germany and Great
Britain, by which Germany and Great Britain re
nounced in favor of tho United States all their
rights and claims over and in respect to tho island
of Tutuilla and all other islands of the Samoan
group east of longitude 171 degrees west of Green
wich; and, finally, tho treaty "with Spain, which
terminated the recent war, was ratified.
PROPOSED HAWAIIAN TREATY IN 1854.
"It is worthy of remark that, beginning in
the administration of President Jefferson, the ac
quisitions of foreign territory above referred to
were largely made while that political party was
in powor which announced as its fundamental tenet
the duty of strictly construing tho constitution,
and it is true to say that all shades of political
opinion have admitted tho power to acquire and
lent their aid to its accomplishment. And the
power has been asserted in instances where it has
not been exercised. Thus, during the administra
tion of President Pierce; in 1854, a draft of a
treaty for the annexation of Hawaii was agreed
upon, but owing to the death of the King of tho
Hawaiian islands was not executed. The second
article of tho proposed treaty provided as follows
(Ex. Doc. Senate, 55th Congress, 2d sess., Report
No. G81, Calendar No. 747, p. 91) :
"Article II. The kingdom of the Hawaiian
islands shall be incorporated into tho American
union as a state, enjoying the same degree of sov
ereignty as other stateB, and admitted as such as
soon as it can bo done in consistency -with the
principles and requirements of the federal consti
tution, to all tho rights, privileges, and immuni
ties, of a state as aforesaid, on a perfect equality
with the other states of the union."
Tho opinion then goes on to say:
"It is Insisted, however, conceding the right
of tho government of the United States to acquire
territory, as all such territory, when acquired, be
comes absolutely incorporated into tho United
States, every provision of the constitution which
would apply under that situation is controlling in
such acquired territory. This, however, Is but to
admit the power to acquire and immediately to
deny its beneficial existence."
Reviewing this subject, the opinion insisted
that tho treaty-making power, while it may re
quire, cannot incorporate territory into the United
States without the consent of congress, express or
implied. It says to adopt the theory that tho
treaty-making power cannot insert conditions in
acquiring would deprive that power of a necessary
attribute and would, besides, confer upon it tho
authority to destroy the government of the United
States. Illustrations on tho subject of discovery
and conquest were mentioned. The opinion says:
"If tho treaty-making power can absolutely,
without the consent of congress, incorporate terri
tory, and if that power may not insert conditions
against incorporation, it must follow that the
treaty-making power is endowed by the constitu
tion with tho most unlimited right, susceptible of
destroying every other provision of the constitu
tion; that is, it may wreck our institutions. If the
proposition bo true, then millions of inhabitants
of alien territory, if acquired by treaty, can, with
out tho desire or consent of tho people of tho
United States, speaking through congress, bo im
mediately and irrevocably incorporated into the
United States and the whole structure of the gov
ernment be overthrown. While thus aggrandiz
ing the treaty-making power on the ono hand, tho
construction at the snmn tlmn m)itn'na if i,.
other, in that it strips that authority of any right
to acquire territory upon any condition which
would guard the people of the United States from
the evil Of immediate innnrnnrnMrm Thft 4".,
making power then, under this contention, instead
ut uuviug mo symmetrical functions which belong
to it from its very nature, becomes distorted
vested with the right to destroy upon the one hand
and deprived of all power to protect the govern
ment on tho 6ther.
AN INCONSISTENT POSITION.
"And, looked at from another point of view,
tho effect of tho principle asserted is equally an
tagonistic, not only to the express provisions, but
to the spirit of the constitution in other respects.
Thus, if it bo true that tho treaty-making power
has the authority which jt asserted, what becomes
of that branch of congress which is peculiarly tho
representative of the people of the United States,
and what is left of the functions of that body un
der the constitution? For, although the house of
representatives might be unwilling to agree to tho
incorporation of alien races, it would be impor
tant to prevent its accomplishment, and the ex
press provisions conferring upon congress the pow
er to regulate commerce, the right to raise revenue
bills for which, by the constitution, must orig
inate in the house of representatives and the au
thority to prescribe uniform naturalization laWs
would be in effect set at naught by the treaty
making power. And the consequent result in
corporation would be beyond all future control'
of or remedy by tho American people, since, at
once and without hope of redress or power of
change, incorporation by the treaty would have
been brought about. The inconsistency of the
position is at once manifest. The basis of the ar
gument is that the treaty must be considered to
have incorporated, because acquisition presupposes
the exercise of judgment as to fitness for imme
diate incorporation. But the deduction drawn is,
although the judgment exercised is against imme
diate incorporation and tho result is plainly ex
pressed, the conditions are void because no judg
ment against incorporation can bo called into
play."
It was next declared that if it be true that in
corporation arises immediately from a treaty with
out the consent of congress, it must be irrevocable,
and no right would exist thereafter to change it,
for although it has sometimes been said that the
power conferred Jjy the constitution to "dispose" of
the territory and other property of the United
States authorizes tho relinquishment of sover
eignty over territory of the United States, this
view 1b generally admitted only by those who
claim that the constitution does not follow the flag,
and tho argument, therefore, is directly opposed to
the theory of immediate incorporation. Reference
is made to the Northwest Territory ceded by Vir
ginia to the United States, and in which homes
were allotted to tho revolutionary soldiers. It
was said if, therefore, tho right to sell sovereignty
obtained, it must be admitted that the fathers of
the country intended that the power might exist
to sell out the birthright of the very men who
had established the freedom and unity of the
country. The opinion said:
"Observe again the inconsistency of this ar
gument. It considers, on tho one hand, that so
vital is the question of Incorporation that no
alien territory may bo acquired by a cession with
out absolutely endowing the territory with incor
poration and tho inhabitants with resulting citi
zenship, because, under our system of govern
ment, the assumption that a territory and its in
habitants may be held by any other title than one
incorporating is impossible to be thought of. And
yefc to avoid the evil consequences which must fol
low from accepting this proposition, the argument
is that all citizenship of the United States is pre
carious and fleeting, subject to be sold at nay mo
ment like any other property. That is to say, to
protect a newly acquired people in their presumed
rights, it is essential to degrade the whole body
of American citizenship.
"In conformity to the principles which I have
admitted, it Is impossible for me to say at one and
the same time that territory is an integral part of
tho United States. and yet the safe
guards, privileges, rights and immunities which
arise from this situation are so ephemeral in their
character that by a mere act of sale they may be
destroyed. And applying this reasoning to tho
provisions of the treaty under consideration, to me
it seems indubitable that if the treaty with Spain
incorporated all the territory ceded into the United
States, it resulted that the millions of people to
whom that treaty related were, without tho con
sent of tho American people as expressed by con
gress, and without any hope of relief, indissolubly
made a part of our common country." ,
OPINIONS OF WASHINGTON AND JEFFERSON.
Reference was made to tho opinions of Wash
ington and Jefferson to show that they thought
that there was no power to dispose of soveregnty
over a foot of American territory. Reference was
also made to tho cession by North Carolina after
tho formation of tho constitution of the territory
now tho state of Tennessee, and the question was
propounded, Can it bo supposed that it was tho
intention to reserve the right to sell as any other
mere property tho citizenship of the "dauntless
mountaineers of Western North Carolina, who
shed luster on the revolutionary arms at the battle
of Kings Mountain?"
But, the opinion says, if the right to dispose
of American citizens as property bo admitted, it
must follow that if the treaty-making power can
not acquire upon condition, it cannot sell subject
to a condition, and, therefore, if by the will of
congress it should be determined that the millions
of tho inhabitants of the Philippine islands should
not be ultimately brought into tho United States
and receive tho blessings of American citizenship,
but should be disposed of by allowing them to es
tablish a government of their own, the United
States would be placed in a position where it
could not attach any condition to the disposition,
and therefore would not be able to carry out its
obligations under the treaty looking to die protec
tion of life and property and safeguarding against
foreign interference. In other words, this must
follow: If the United States, under the constitu
tion, when acquiring by treaty must acquire un
conditionally, it must dispose of such territory,
if at all, unconditionally.
Coming to determine what constitutes incor
poration, the opinion points out that all the land
within the boundaries of the United States as"
fixed by the treaty of peace with England which
ended the revolutionary war was a part of tho
United States; that the territories which were sub
sequently formed by the cessions from the states
were covered with a pledge that they should for
ever be a part of the United States, and thus tho
United States was composed of one people, enjoy
ing citizenship, with common guarantees for life,
liberty, and property, although differing somewhat
in their political rights, dependent upon whether
they lived in a state or territory. This political
entity constituted tho United States.
THE LOUISIANA PURCHASE.
The opinion goes on to show that when the
Louisiana purchase was made, the difficulty in the
minds of Mr. Jefferson and of those connected
wittv his administration 'was as to the power to
incorporate into the United States, as thus com
posed, an alien people. It says that Mr. Jefferson
thought that an amendment to the constitution
was necessary for this purposebut that the view
prevailed that congress could, if it pleased, in
corporate without an amendment to the constitu
tion. It then points out that after the'purchasd
of Louisiana, although the treaty promised incor
poration into the United States, it was not done for
several years, the territory, in the meantime, be
ing governed by congress, until finally, in 1805, tho
incorporation into the United States resulted by
conferring upon the inhabitants the same rights
in the same words as those which were enjoyed
by tho territorial citizens within the United States
at the time of the formation of the constitution,
Reference was made to the treaty by which tho
Floridas were acquired, to show that it had tho
samo effect. The treaty by which the war with
Mexico was terminated was next alluded to, and
attention was called to the fact that it not only
incorporated but changed the boundaries of tho
United States so as to accomplish this result, and
reference was made to th treaty of cession of
Alaska as illustrating tho same thing. Previous
decisions of the court were referred to, and it was
said that they all established the rule that incor
poration, as a consequence of a treaty, could not
arise without the express or implied assent of con
gress, speaking for the American people; that to
hold the contrary would be to admit that tho
birthright of American citizens was subject to be
divided at any time without their consent by
bringing in millions of aliens through the action
of tho treaty-making power.
This branch of the subject was summarized as
follows:
ASSENT OF CONGRESS' NECESSARY.
"It is then, as I think, indubitably settled by
the principles of the law of nations, by the nature
of the government created under the constitution,
by tho express and implied powers conferred upon
that government by the constitution, by the modo
in which those powers have been executed from tho
beginning, and by an unbroken line of decisions of
this court; first announced by Marshall and fol
lowed and lucidly expounded by Taney, that tho
treaty-making power cannot incorporate territory
into the United States without the express or im
plied assent of congress; that It -may Insert in a
treaty conditions against immediate incorporation,
and that, on tho other hand, when it has expressed
in tho treaty conditions favorable to Incorporate,
they will, if the treaty be not repudiated by con
gress, have the force of tho law of the land, and
therefore by tho fulfillment of such conditions
cause incorporation to result. It must follow,
therefore, that whore a treaty contains no condi
tions for incorporation, and, above all, where it
not only has no such conditions, but expressly pro
vides to the contrary, that Incorporation does not
arise until in the wisdom of congress it is deemed
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