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powers of making war and of making treaties ;” says Chief Justice Marshall, "consequently that govern“ment possesses the power of acquiring territory “either by conquest or by treaty."1

While the moral purpose of the war power is figured in Taney's declaration : “The genius and ‘character of our institutions are peaceful, and the power to declare war was not conferred upon Congress for the purpose of aggression or aggrandizement, but to enable the general government to vindicate by arms, if it should become necessary, its own

rights and the rights of its citizens”;? yet, if aggrandizement shall follow a war declared for whatever reason, we must hold with Marshall, that “conquest

gives a title which the courts of the conqueror can"not deny, whatever the private and speculative

opinions of individuals may be respecting the original justice of the claim which has been successfully asserted." 3

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A state may also add to its domain by discovery and settlement, and the Supreme Court has recognized this method of acquisition as being approved by the law of nations;* though it may be approved

4 more satisfactorily as being inferred from the more apposite constitutional powers of contract and conquest: If a nation can buy or seize land, surely it can find and keep land.

Reliance upon national, rather than international 1 American Ins. Co. v. Canter, 1 Peters 511, 541. 2 Fleming v. Page, 9 Howard 603, 614. 3 Johnson v. McIntosh, 8 Wheaton 543, 588. 4 Johnson v. McIntosh, 8 Wheaton 543; Jones v. U.S., 137 U.S.

212; Shively v. Bowlby, 152 U. S. 1, 50.

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202

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law as the basis of our national powers is usually enjoined by the superior value of the domestic law in this relation. When Lord Mansfield said that an act of Parliament “ did not intend to alter, nor can

alter, the law of nations,” 1 he stated merely the selfevident fact that the legislature of a single country cannot change a body of principles which derives its repute from the assent of all countries. He did not mean that a legislature is dominated by the law of nations. This law ought to be respected wherever it is clearly ascertained, even at great cost to national pride, if for no higher reason than this, that deference accorded to-day strengthens a demand for deference to-morrow. Our Constitution enjoys the unique distinction, I believe, of commending this law to its courts, and American jurists have done much to broaden and strengthen its influence. But in all matters of domestic interest the United States should find their sufficient powers in the domestic law which they ordain and control. This caution is timely, because there is a perverse disposition to determine our relations with Porto Rico and the Philippines by international law, in contempt of the truth that by assuming complete sovereignty over these islands we have eliminated this law from our reckoning.

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Texas and Hawaii were annexed by joint resolution of the Senate and House, because treaties of cession could not command the necessary two-thirds

1 Heathfield v. Chilton, 4 Burr. 2016. 2 See also Savigny, Conflict of Laws, Guthrie's translation, 2d ed.,

P. 75, note.

3 U. S. Statutes at Large, ix, 108; xxx, 750.

vote in the Senate. This method is as effective as a treaty, though the reasons for its actual employment have subjected it to political criticism. Indeed, the case is conceivable where a resolution or act of Congress may be the only formal method of annexation; if , for example, we should now annex Cuba, in despite of our promise; an act or resolution would be the most orderly means to the end, because there is no state in Cuba, at present, with whom we can

make a treaty

Annexation should be accomplished through formal procedure, yet, after all, it is so far a matter of fact that a case may arise where it would be inferred from an actual subjection of territory to our legislative and executive jurisdiction, without preliminary formalities.

Whenever the President and Congress join in extending the sovereignty of the United States over a particular territory their action must be respected by the courts, without regard to its location. “Who " is the sovereign de jure and de facto of a territory,” says the Supreme Court, “is not a judicial but a “political question, the determination of which, by “the legislative and executive departments of any “government conclusively binds the judges, as well as all other officers, citizens, and subjects of that

government. This principle has always been up“held by this court, and has been affirmed under a “great variety of circumstances.” 1

1 Jones v. U. S., 137 U. S. 202, 212; citing among American cases Gelston v. Hoyt, 3 Wheaton 296, 324; Foster v. Neilson, 2 Peters 253, 307, 309; and, among English cases, Emperor of Austria v. Day, 3 De G. F. & J. 217, 221, 233.

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The Purpose of Acquisition

Is the power to annex conditioned upon the formation of States out of the new territory? This question is not suggested by the acquisition of small tracts for specific governmental uses, such as coalingstations, or of vacant guano islands under the Act of 1856. Nor can it be urged as a legal objection to an annexation that the country has not been annexed as a State, or in express contemplation of future statehood, for the admission of a State is, like the selection of territory, a political matter beyond the competency of the courts.

of the courts. But, according to the spirit of the Constitution, the subjection of annexed territory to exclusive federal control is, generally, an abnormal and temporary stage preceding a normal and permanent condition of statehood. Chief Justice Marshall described the Territories as being “in a state of infancy advancing to manhood, look"ing forward to complete equality so soon as that “state of manhood shall be attained.”? Chief Justice

2 Taney declared that the power to admit new States authorizes “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 ad"mission.": And Mr. Justice Gray has said: “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.” 1

1 U.S. Revised Statutes, $ 5570. 2 Loughborough v. Blake, 5 Wheaton 317, 324. 3 Scott v. Sandford, 19 Howard 393, 447.

All the land ceded to the United States by the States was transferred upon the understanding that it should be formed, eventually, into States. The Third Article of the Treaty of 1803, by which France ceded Louisiana, reads: “The inhabitants of the

ceded territory shall be incorporated into the Union "of the United States, and admitted as soon as 'possible, according to the principles of the Federal “Constitution, to the enjoyment of all the rights, “advantages, and immunities of citizens of the United « States.

This article was construed by Chief Justice Marshall to mean "that Louisiana shall be “admitted into the Union, as soon as possible, upon “an equal footing with the other States ”; 2 and a like meaning is to be placed upon the Treaty of 1819, by which Spain ceded Florida, and the Treaties of 1848 and 1853, by which Mexico ceded California and New Mexico. With the single exception of Texas, which was annexed by force of a joint resolution admitting it as a State, the vast domain gained by the United States down to 1867 was acquired in trust for States to be subsequently admitted.

The promise of statehood was not expressed in annexing Alaska, Hawaii, and the lately acquired Spanish islands. These omissions are without legal significance, but, excepting the peculiar case of Alaska, an Arctic desert bought to at once oblige a friendly

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1 Shively v. Bowlby, 152 U. S. 1, 57. 2 New Orleans v. De Armas, 9 Peters 224, 235.

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