CHAPTER XVIII.

ANNEXATION FROM A LEGAL POINT

OF VIEW.

BY GEORGE G. VEST,

UNITED STATES SENATOR FROM MISSOURI.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That under the Constitution of the United States no power is given to the Federal Government to acquire territory to be held and governed permanently as colonies.

The colonial system of European nations can not be established under our present Constitution, but all territory acquired by the Government, except such small amount as may be necessary for coaling stations, correction of boundaries, and similar governmental purposes, must be acquired and governed with the purpose of ultimately organizing such territory into States suitable for admission into the Union.

I do not propose in my brief discussion of this resolution to say anything which will necessitate an executive session. It is not my purpose to discuss any treaty now pending or which may be hereafter submitted to the Senate.

It seems to me peculiarly appropriate at this time to examine what are the powers of Congress in regard to the acquisition and government of new territory. When the Attorney-General, the great law officer of the Government, declares publicly and deliberately that the Constitution made for thirteen half-rescued colonies, glad to be permitted to live at all, has grown too small for the greatest nation upon the face of the earth, it appears to me time to inquire what is that Constitution and the powers conferred upon Congress.

Every school-boy knows, or ought to know, that the Revolutionary war, which gave us existence as a people, was fought for four years exclusively against

the colonial system of Europe. Our fathers did not in the commencement of that struggle contemplate independence from the mother country. When the people of Rhode Island burned the British war sloop Gaspee in Narragansett Bay, and the people of Massachusetts threw overboard the cargo of tea in Boston Harbor, they acted as British subjects, proclaiming their loyalty to the Crown of England. When Thomas Jefferson, Patrick Henry, and Light-Horse Harry Lee met at the old Raleigh tavern in Williamsburg, Va., and indorsed the action of Rhode Island and Massachusetts, they proclaimed themselves English subjects, loyal to the King, and only demanded the rights that were given to them as Englishmen by Magna Charta and the Bill of Rights.

What is the colonial system against which our fathers protested? It is based upon the fundamental idea that the people of immense areas of territory can be held as subjects, never to become citizens; that they must pay taxes and be impoverished by governmental exaction without having anything to do with the legislation under which they live.

Against taxation without representation our fathers fought for the first four years of the Revolution, struggling against the system which England then attempted to impose upon them, and which was graphically described by Thomas Jefferson as the belief that nine-tenths of mankind were born bridled and saddled and the other tenth booted and spurred to ride them.

When war became flagrant and battles had been fought and blood had been shed, the patriots of the Revolution came to the conclusion that there must be final separation from the British throne. Thomas Jefferson then penned the immortal Declaration upon the basic idea that all governments derive their just powers from the consent of the governed.

It is incredible that the men who fought for seven long years without money, without men almost, and without arms, against the proudest and strongest nation in the world, resisting the doctrine upon which the colonial system of Europe is based, should, after being rescued by Providence from its thraldom, deliberately put this doctrine in the written Constitution framed to govern them and their children. How can it be true that all governments derive their just powers from the consent of the governed when millions of human beings are held without their consent as mere chattels, to be disposed of as the sovereign power of the mother country may choose?

But, passing from this historic argument, which seems to me unanswerable, the highest tribunal in the United States, the Supreme Court, has settled this question by a unanimous opinion, when the ablest lawyers in the country were upon the bench. I am now about to refer to a decision which I know will revive bitter memories unless those memories be happily eliminated by recent events. In the case of Dred Scott against Sandford, Chief Justice Taney, delivering the opinion of the court, which constituted the opinion of seven of the justices out of nine, effectually disposed of the question as to whether the United States could hold colonies without the intention or prospect of forming them into States and admitting. them into the Union.

I am perfectly willing to eliminate that portion of this opinion which referred to the introduction of slavery into the Territories, notwithstanding an act of Congress that prohibited it, and also declaring that the Missouri compromise of 1820 was unconstitutional. These questions were settled by shot and shell and saber stroke for all time to come. But the portion of the opinion that I shall now ask the Secretary to

read was acquiesced in by the nine justices upon that court, including Justices McLean and Curtis, who disagreed with the majority in regard to the slavery question, but acquiesced in the opinion that this Government had no right to adopt the colonial system of Europe. I read this extract from the court's opinion. [Supreme Court. Opinions of the court. Dred Scott vs. Sandford.]

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. And in the Federalist (No. 38), written by Mr. Madison, he speaks of the acquisition of the Northwestern Territory by the Confederated States, by the cession from Virginia, and the establishment of a government there, as an exercise of power not warranted by the Articles of Confederation, and dangerous to the liberties of the people. And he urges the adoption of the Constitution as a security and safeguard against such an exercise of power.

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 territory not fit for admission at the time but to be admitted as soon as its population and situation 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.

I have stated that the nine justices of the Supreme Court acquiesced in that portion of the Dred Scott opinion, and I assert now, and challenge contradiction, that not one tribunal, Federal nor State, and not one public man of eminence in this country, has ever contradicted that portion of the Dred Scott decision until within the last six months, when the craze of expansion seems to have taken possession of a large portion of the American people.

Justice McLean, whose opinion was held, together with that of Justice Curtis, to have represented the opinion of the Northern people in regard to the power of a slaveholder to carry his slaves into a Territory, not only acquiesced in that portion of the Dred Scott decision which has been read, but proceeded to emphasize it in the elaborate and exhaustive opinion which he filed. I will now read extracts from the opinions of those two eminent lawyers.

In organizing the government of a Territory Congress is limited to means appropriate to the attainment of the constitutional object. No powers can be exercised which are prohibited by the Constitution or which are contrary to its spirit; so that, whether the object may be the protection of the persons and property of purchasers of the public lands or of communities who have been annexed to the Union by conquest or purchase, they are initiatory to the establishment of State governments, and no more power can be claimed or exercised than is necessary to the attainment of the end. This is the limitation of all the Federal powers.-Mr. Justice McLean.

Since, then, this power was manifestly conferred to enable the United States to dispose of its public lands to settlers and to admit them into the Union as States, when, in the judgment of Congress, they should be fitted therefor, since these were the needs provided for, since it is confessed that government is indispensable to provide for those needs, and the power is to make all needful rules and regulations respecting the territory, I can not doubt that this is a power to govern the inhabitants of the territory, by such laws as Congress deems needful, until they obtain admission as States.-Mr. Justice Curtis.

I call attention to the fact that in these two dissenting opinions as to the introduction of slavery into the Territories, but concurring opinions as to the want of power in this Government to hold colonies as colonies not to be admitted as States and with no prospect of becoming States, the fundamental idea is conveyed that all the power of Congress in regard to the Territories is to be exercised as an initiatory. process to their becoming States of the American Union.

The Articles of Confederation-to show how sensitive were our fathers in regard to new territory to be added to this country-made no provision at all for the acquisition of new territory. As Chief Justice Taney said in delivering the opinion in the Dred Scott