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American people, under the restrictions of our Constitution, to tax a part of the society, which is in a state of infancy, advancing to manhood, looking forward to complete equality as soon as that state of manhood shall be attained, as is the case with the Territories, is too obvious not to present itself to the minds of all."

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Thus also, in Shively v. Bowlby, the court said, "The Territories acquired by Congress whether by deed or cession from the original States, or by treaty with a foreign country, are held with the object, as soon as their population and condition justify, of being admitted into the Union as States upon an equal footing with the original States in all respects; and the title and dominion of the tidewaters and the lands under them are held by the United States for the benefit of the whole people, and, as this Court has often said, in trust for the future States. Upon the acquisition of a Territory by the United States, whether by cession from one of the States or by treaty with a foreign country, or by discovery and settlement, the same title and dominion passed to the United States for the benefit of the whole people and in trust for the several States to be ultimately created out of the Territory."

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Chief Justice Taney has often been cited as holding in his opinion in the Dred Scott case that foreign territory might be acquired by the United States only under its power to admit new States. This is not correct. In Fleming v. Page, he had already expressly declared that foreign territory might be acquired under the treaty and war-making powers, and in the Dred Scott case, approves, upon this point, the decision of Marshall in American Insurance Co. v. Canter.25 He asserts, however, that these powers are to be exercised only for the purpose of acquiring territories that ultimately may become States, and that, when acquired, they are to be governed with this end in view, namely, of preparing them for this status. It is thus apparent that the constitutional limitation which, in this case, Taney is intent upon emphasizing, is rather one upon the con

22 152 U. S. 1; 14 Sup. Ct. Rep. 548; 38 L. ed. 331.

240 How. 603.

25 1 Pet. 511; 7 L. ed. 242.

trol of Congress over territories that have been annexed, than upon the power of the General Government to acquire them. In his opinion he says: "There is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure, nor to enlarge its territorial limits in any way except by the admission of new States. That power is plainly given, and if a new State is admitted it needs no further legislation by Congress, because the Constitution itself defines the relative rights and powers and duties of the State and the citizens of the State and the Federal Government. But no power is given to acquire a territory to be held and governed permanently in that character. And, indeed, the power exercised by Congress to acquire territory and establish a government there according to its own unlimited discretion was viewed with great jealousy by the leading statesmen of the day. . . . We do not mean, however, to question the power of Congress in this respect. The power to expand the territory of the United States by the admission of new States is plainly given, and in the construction of this power by all the departments of the Government it has been held to authorize the acquisition of a territory not fit for admission at the time, but to be admitted as soon as its population would entitle it to admission. It is acquired to become a State, and not to be held as a colony and governed by Congress with absolute authority; and as the propriety of admitting a new State is committed to the sound discretion of Congress, the power to acquire territory for that purpose, to be held by the United States until it is in a suitable condition to become a State upon an equal footing with the other States, must rest upon the same discretion."

So, likewise, it will be found that the various opinions delivered in this case by the other members of the court, concurring and dissenting, are concerned rather with the limitations of the powers of government of annexed territory, than with the extent of the power to acquire. We shall consider this phase of the question in another chapter.

§ 150. Conclusions.

Concerning the validity of this claim that the Constitution looks to a Union composed only of States and potential States, this much may be granted: Beyond all reasonable doubt those who framed and adopted the federal Constitution did not anticipate, and therefore cannot be said deliberately to have provided for, the time when the United States should extend its sovereignty over territories not intended ultimately for statehood. Nor can it be said that a different view was held upon this point by practically any one until comparatively recent times. But in admitting this, the conclusion that the annexation of such territory was an unconstitutional act does not follow. For in the first place, as has been repeatedly declared by the Supreme Court, it is not enough to say that a particular case was not in the minds of those who framed and adopted the Constitution in order to hold an act unconstitutional. One must go further and show that had the particular case been suggested to those framers and adopters of the Constitution, they would so have modified its language as to exclude it.26 In the second place, even were this principle of constitutional construction not sufficiently broad to uphold the federal power in question, there would be applicable two principles, each of which would prevent the Supreme Court from passing upon this point. The first of these principles is the one elsewhere mentioned that the question of de facto and de jure sovereignty is one regarding which the courts hold themselves bound by the determination of the executive and legislative branches of government; the second is that the motive of an act, except for the purpose of solving an ambiguity in its application, is not a proper subject for judicial examination, and that, therefore, in the case of an annexation of territory, it would not be proper for the court to seek to learn whether or not ultimate

26 The case being within the words of the rule, must be within its operations likewise, unless there be something within its literal construction so obviously absurd or mischievous, or repugnant to the general spirit of that instrument as to justify those who expounded the Constitution in making it an exception." Dartmouth College v. Woodward, 4 Wh. 518; 4 L. ed. 629.

statehood was intended to be granted the lands and peoples oùtained. Indeed, as we have seen, as regards the contiguous continental territories of the United States, it has been uniformly held that the grant to them of statehood lies wholly within the discretion of Congress, and that no legal means exist for compelling action should that body arbitrarily refuse for an indefinite length of time to grant this privilege to a deserving territory.

The question whether or not territory not contiguous to the other territory of the United States may be annexed is very similar to the one just discussed and may be answered in much the same manner. For this purpose we may borrow the words of the report of the Committee favoring the annexation of Hawaii. "The fact that territory is contiguous or noncontiguous is to be considered in reference to the policy or expediency of annexation, but it is submitted that both on principle and precedent there is all the constitutional power necessary to accomplish annexation in any case where annexation is deemed to be to the interest of this country. The fact that territory is contiguous or noncontiguous can have no bearing upon the constitutionality of its acquisition; but simply goes to affect the value of the territory proposed to be annexed. On general principles, if it is contiguous, it is more easily governed and defended. But whether this is so or not depends upon circumstances. In these days distance is not a matter of miles, but of hours. When California was annexed it was two months distant from the centre of civilization in the United States. Honolulu to-day lies only ten and a half days from Washington. As to the arguments presented in favor of the unconstitutionality of the annexation of noncontiguous territory, it is submitted that because our forefathers of 1776 did not discuss or contemplate any given proposition is no reason, constitutional or otherwise, why their children should not discuss and contemplate any and every problem which is presented to them in 1897 upon its merits, whether their ancestors ever heard of such subject or not. It is further submitted that the precedents in United States history are all against the unconstitutionality of the annexation of noncontiguous territory. Alaska is separated

from the United States by a vast foreign territory. Midway Island is approximately three thousand miles from the American coast. The Aleutian Islands, reaching almost to the Asiatic coast, extend twelve hundred miles west of Alaska, and the guano islands are scattered all over the Pacific and the Caribbean Sea." 27

§ 151. The Right to Annex Based on the Treaty and WarMaking Powers.

As has been incidentally indicated in the preceding pages, the Supreme Court has held that whether or not the right to admit States into the Union carries with it the power to acquire new territory, this power is derivable from the authority of the General Government to declare and carry on war, and to enter into treaties. This it has repeatedly declared, both in earlier cases and in the recent so-called Insular Cases.

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In American Insurance Co. v. Canter28 Marshall says, without, apparently, deeming an argument necessary: "The Constitution confers absolutely upon the government of the Union the power of making war and of making treaties; consequently that government possesses the power of acquiring territory, either by conquest or treaty." In Fleming v. Page29 Taney says: "The United States may extend its boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace, in order to indemnify its citizens for the injuries they have suffered, or to reimburse the government for the expenses of the war." In Stewart v. Kahn, the court say: 30 "The war power and the treaty-making power each carries with it authority to acquire new territory." And in United States v. Huckabee31 it is declared: "Power to acquire territory either by conquest or treaty is vested by the Constitution in the United States."

27 Sen. Rpt. 681, 55th Cong., 2d Sess., pp. 47, 48.

28 1 Pet. 511; 7 L. ed. 242.

29 9 How. 603; 13 L. ed. 276.
30 11 Wall. 493; 20 L. ed. 176.
31 16 Wall. 414; 21 L. ed. 457.

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