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established in reference to a condition of things very different from that which will exist after the empire is enlarged by the addition of the newly acquired domain.
Such being the character of the power which it is proposed the United States should now exert, and the possession of such a power being solemnly denied to them by several of the sovereign States, from whom they derive all their authority, it is due, not less to the high character of those who deny the grant of this power than to the effects which may result from its exercise, that all the sources from whence it may legitimately flow should be carefully examined. It is only by such an examination that a correct opinion can be formed as to the right of the United States to employ such a power upon this occasion.
All the examples which history furnishes of new territory acquired by any nation in past time exhibit but three modes in which such acquisition hath ever been made. These are by discovery, conquest, or negotiation, and this committee can not conceive any other means by which new territory can ever be acquired by any sovereign. If this be so, then a government which is not endowed with the power of prosecuting discoveries, of making conquests, or of conducting negotiations can not enjoy the legitimate right of acquiring new territory; for it can not be overlooked that, high and important as is this power of acquiring new territory, yet, from its very nature, it can not be a substantive power, but must always exist in connection with and as a mere consequence of some one or more of the other great powers that afford the only means by which it can ever be exerted. Instead, therefore, of inquiring whether the United States possess the specific right of acquiring new territory, the inquiry should rather be, Do they enjoy fully the general powers before mentioned, the exercise of which necessarily and properly includes this as an incidental right?
Every government charged with the exclusive direction of the exterior relations of the nation for which it was designed, and specially endowed with the general powers of regulating its commerce, of waging war, and of conducting negotiations, must enjoy, as incident to these powers, the right of prosecuting discoveries, of achieving conquests, and of concluding treaties, and, consequently, must enjoy the right of acquiring new territory by any of these means, unless this natural incident of the powers granted is expressly denied to such government by those who created and so endowed it. The Federal Constitution specially grants to the Government of the United States all these general powers, and contains no direct inhibition of the right of acquiring new territory, which, as has been said, necessarily and naturally flows from each of them. The committee therefore can not doubt that the Government of the United States does possess the right of acquiring new territory by some of the modes before referred to whenever the case may occur to which any of these modes of acquiring new territory is properly applicable. They see, moreover, that the past practice of this Government has conformed to this opinion in the memorable examples of the acquisition of the territory of Louisiana from France and of Florida from Spain.
But while the committee can readily discern the source of the right asserted by the Government of the United States in the cases referred to, and can as distinctly perceive that such a right may at any time hereafter be legitimately asserted as an incident and consequence of some of the high powers to which they have referred it whenever the case may arise to which these powers properly apply, they can not discover what support this opinion can afford to the legitimate
acquisition of the new territory which is proposed upon the present occasion.
The whole coast of the great peninsula of Africa was discovered a very long time since by many different civilized nations, even before America itself was visited by any inhabitant of the Old World, and if more of the discovered countries there situated have not been occupied by those civilized nations who have so long known, by so frequently visiting them, the causes that have restrained others from such occupation merit at least as much consideration from the United States as they have received from the elder members of the family of civilized man. At all events, these notorious facts suffice to show that at this day the United States are as much precluded by the usages of nations from advancing any claim to new territory there situated, upon the ground of first discovery and prime occupancy, as they would be precluded from asserting such a title to any new territory they might wish to acquire upon the coasts of Patagonia or of Japan. Any nation may possibly support a right to acquire new territory upon the known coasts of Africa in virtue of either of the other great sources of such right, but none can found any pretension to acquire territory there now upon the ground of first discovery.
Doubtless the United States possess the power of declaring war, and, as a consequence of this power, the right to push hostilities through victory to conquest and so to acquire the dominions of their enemies; but this power of waging war, like all the other discretionary powers conferred by the Constitution, is necessarily limited by the ends and objects for which alone it may be rightfully exerted. Now, as war itself is never to be justified except as a means necessary to the preservation of permanent peace and greater security, and can never be rightfully declared for the single and naked purpose of acquiring territory, therefore the right of acquiring territory in the proposed case by any such means can not be conceded to belong to the Government of the United States. The remote position, the ignorance, the poverty, and the imbecility in which all the savage hordes occupying the coast of Africa have ever existed, and must continue to exist for a long period yet to come, place it beyond credulity that any or all of them can now threaten the peace or disturb the security of any-the most weak and exposed spot in this hemisphere. Defensive war on our part with any of these tribes is at present impossible, and offensive war against such a people in order to strip them of their possessions can never be justified. The mere capacity to wage war for such a purpose with these or any other people the United States unquestionably possess, but until all distinction between power and right shall be forgotten; until the limits of the one shall be supposed to be found only in the measure of the other, the constitutional power of the United States to wage any war can never be admitted to bestow upon their Government the constitutional right to acquire new territory by means of an unjustifiable war waged upon the unoffending inhabitants of the coast of Africa. The right of the United States to acquire new territory there at this time can not, therefore, be derived from their general power to declare war more than it can be deduced from their right to prosecute discoveries in virtue of their general power to regulate commerce.
The only remaining source of this right to acquire new territory is in the power to make treaties. This, too, is a discretionary power granted to the United States by the Constitution; but, like all the other powers of this kind thereby conveyed, it has its limits-limits
to be found not less in the specified ends and objects for which the Government itself was created, but in the nature and character of the power itself. Without attempting to define what these limits are, the committee will merely remark that from the very nature of this power it is one which can only be exercised by two or more sovereigns acting together for the attainment of the same object by means of a compact which, when concluded, is to be obligatory upon the whole people governed by such sovereigns. None but sovereigns can enter into such an agreement, and the parties, being all sovereign, are, of course, equal in that respect.
Many and important are the consequences, not only to the contracting parties themselves but to the whole civilized world, which result from the mere fact of concluding a treaty. It is a recognition of the sovereignty and independence of the parties by each other. From this many results flow and obligations attach to either in all their future intercourse. Such being the effects of the exertion of this power of making treaties, civilized nations have rarely believed themselves at liberty to conclude them with any savage people until many events had combined to prove that such people were capable and sincerely disposed to maintain the rights and to conform to the usages which, for the wisest reasons, have been acknowledged and adopted to regulate the relations and intercourse between the different members of the family of nations. Therefore it is that no civilized nation in modern times hath ever entered into a treaty with any of the savage tribes who wander over the deserts or dwell upon the coast of Africa; and numerous circumstances exist (which need not be here repeated) that, in the opinion of this committee, are sufficient to restrain the United States from being the first to enter into such a compact with any such people, especially for the purpose of enlarging the limits of our present wide-spread empire. Some of these circumstances have hitherto been considered as sufficient to prevent this from being done by the United States, for very different purposes, with another people whose situation in all respects is certainly much more elevated in the scale of civilization than that which any of the savage tribes of Africa have yet attained.
In the pursuit of their private avocations enterprising individuals have often attained from some of these tribes the privilege of making establishments for various purposes within the limits of their supposed possessions. When these establishments in after time had acquired a growth and consequence sufficient to require the attention and protection of the nations to which the individuals engaged in them were subject, such nations have granted to these their subjects the aid of their power to guard them from lawless violence and to protect their honest acquisitions. But this committee are not aware that any civilized nation hath ever yet concluded a solemn treaty with any of the people of Africa, the direct object of which was to extend its dominions by the surrender of their possessions, or has ever regarded any of these tribes as a moral being, capable of entering into and disposed to conform to the obligations of such compacts. This right of acquiring new territory, which it is proposed the United States should exert in order to make such acquisition upon the the coast of Africa, can therefore derive as little support at this time from the treaty making as it has been shown to derive from the other great powers of the Government of the United States.
Should it be supposed that the example of the nominal treaties concluded between the United States and the various savage tribes
inhabiting within their acknowledged dominions, by some of which nominal treaties the Indian title to territory there situated has been extinguished, constitutes any exception to the position here asserted, a very slight notice of the peculiar character of these instruments and of the situation of the parties will furnish a sufficient answer to this supposition. The Indian title so extinguished is but a mere usufructuary interest enjoyed by the courtesy and under the permission of the United States, who long since acquired the acknowledged sovereignty and dominion over the territory so possessed. In extinguishing such an interest the United States do not acquire any new territory; they merely exempt that territory which they before held from an incumbrance to which their humanity had previously subjected it. By concluding such compacts the United States do not recognize the independent sovereignty of the people whose rights of possession are so extinguished, and the Senate require not to be informed by their committee of the particular local considerations which, at the very commencement of this Government, made it highly desirable, if not indispensably necessary, that the form and manner of effecting the extinction of this possessory right, which was not prescribed by the Constitution, should be by a nominal treaty rather than by statute, as under other circumstances would probably have been the
But if it was even conceded that the treaty-making power of the United States was equal to the legitimate acquisition of new territory either within or contiguous to their original dominions (as it certainly is), this committee do not see in such a concession any foundation for the opinion that this power would extend to the acquisition of a distant territory in another quarter of the globe, separated from the United States by a wide ocean. These circumstances of themselves, if none other existed, would necessarily convert such a territory, when acquired, either into a sovereignty independent of the United States or into a colony absolutely dependent upon them. A country so situated could never be admitted into this Union as an integral part of the confederation, because, in the nature of things, it could never contribute its just proportion of the blessings or bear its proper share of the responsibilities of our representative democracy. Our established system of uniform laws, too, must necessarily work its speedy ruin or cripple and greatly impair the beneficial effects of that system upon the other parts of the Empire. The new territory, when acquired, must therefore ever continue in a state of colonial bondage, deprived of all hope of being ever admitted into the Union, or it must be endowed with the character and attributes of a sovereign State, entirely independent of the parent country. To suppose, however, that our free Constitution was ever designed to vest in the United States a power of establishing and holding distant colonies, to be always retained in a state of colonial bondage to the mother country, or of creating new empires absolutely independent of it, is an opinion which this committee believe to be opposed to the whole theory of that Constitution and to the genius and spirit of all our institutions.
In all the cases in which the United States have ever yet acquired new territory, this has been done upon the expressed condition that the territory so acquired, and its inhabitants, should thereafter be admitted into the Union as a part and equal member of this confederation. This practice, in the opinion of this committee, is in strict conformity with that provision of the Constitution which authorizes the admission
of new States into the Union, and which was probably intended to provide for the very case of new territory acquired by some of the means before referred to. Indeed this committee would be at a loss to discover in the Constitution any foundation for the permanent acquisition of new territory upon any other terms.
If the committee are correct in the opinions which they have thus expressed, then, although it is true that the Government of the United States does possess the right to acquire new territory under particular circumstances and for a certain purpose, yet this Government can not now rightfully exercise any such power in the mode and for the purpose proposed by any of these applicants. It is true that some of the applicants have deduced this right of acquiring new territory from other powers vested by the Constitution in the Government of the United States than those to which alone the committee have referred it; but the committee can not concur either in the principles or application of the reasoning resorted to for the purpose of showing the rightful possession of such power by this Government.
The petition of the colonization society refers specially to the power of Congress to provide for the common defense and to promote the general welfare as to a general authority bestowed upon this body by the Constitution in virtue of which the United States may lawfully acquire distant territory or do any other of the acts which this society wishes to be performed. But the error of this construction, which would convert a mere limitation into a grant of power, and into a grant, too, of power unlimited, has been so often exhibited and established that this committee do not feel justified now in again examining it minutely. They will merely remark that although to provide for the common defense and to promote the general welfare are some of the great objects for which this Government was established, yet the manner of attaining even these great objects is prescribed in the enumeration of the limited powers specially delegated to the Government for their accomplishment. It is by the exercise of these granted powers, and of none other whatever, that the common defense can be provided for or the general welfare promoted. Now, the power of acquiring new territory is not one of the powers specially enumerated in the Constitution by the employment of which the common defense may be provided for or the general welfare promoted. This is a power which the United States enjoy as a mere incident of the powers of regulating commerce, of declaring war, or of negotiating treaties, all of which powers are expressly granted to them. Being thus derived, any circumstance, whether physical, moral, or political, which constitutes a necessary limitation or bar to the legitimate exercise of the great powers before referred to must unavoidably obstruct the acquisition of new territory by any such means; and these being the only means that can be legitimately employed for that end, the end is prohibited when the use of these necessary means is denied. Any other construction of the Constitution would convert the Government of the United States, which confessedly is limited, both in object and power, into a Government unlimited in either of those respects. Nay, it would justify even the annihilation of the State sovereignties themselves whenever the existence of these might be regarded by the authorities of the United States as impediments to the common defense or obstacles in the promotion of the general welfare.
A similar answer may be given to another suggestion presented in some of the documents the committee have had under their consideration. In some of these it is said that the power to acquire distant