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the Union to put down insurrections, or by the ordinary penal laws of the States or Territories within which these bodies unlawfully organized are situated and acting. While in that condition their measures are not examinable at all by a writ of error to this court, as not being statutes by a State, or a member of the Union. And after such bodies are recognized as having been duly organized, and are admitted into the Union, if they ever be, the judicial tribunals of the General Government, which acquiesces in the political organization that has been professing to pass statutes, and which admits it as a legal and competent State, must treat its statutes passed under that organization as they would the statutes of any other State, within the meaning and spirit of the Judiciary Act. And if so, we must inquire only into the validity of their subject-matter, and not as to the new, any more than the old, States, ever suppose that the question of their political competency or power to pass statutes at all was an inquiry intended to be placed under our consideration and decision by the twenty-fifth section of the Judiciary Act. It follows, then, that a statute, passed by a political body before its admission into the Union, seems either not to be one, under the cognizance of the Union or its judicial tribunals, by means of Sec. 25 of the Judiciary Act, unless re-enacted or adopted after becoming a State; then it is treated like the statute of any State; or the admission of the State into the Union by Congress, subsequently with the constitutional and political organization under which the statute was passed by the State-a competent State - leaving, as in other cases, merely its subject-matter to be examined in order to see if it violates or not any acts or provisions of the General Government.”

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CHAPTER XXII.

THE POWER OF THE UNITED STATES TO ACQUIRE TERRITORY. In the chapters that have gone before the effort has been made to set forth the constitutional relations subsisting between the Union and its commonwealth members. From the very beginning, however, the American constitutional system has included other political units than the States. These units are Territories, Dependencies, and a Federal District or seat of National Government.1 To a consideration of the constitutional questions incident to the annexation and government by the National Government of the territories and peoples of which these political elements are composed, we shall now turn. This will involve a discussion of the following points. (1) The constitutional power of the United States to acquire territories; (2) the modes or purposes for which they may be acquired; and (3) their constitutional status. First then as to the power to acquire."

No express power is given to the United States by the Constitution to acquire additional territory. In 1803, however, the vast Louisiana Territory was purchased from France and annexed to the Union; in 1819 Florida was obtained from Spain; in 1846 the Oregon Territory was obtained through discovery, occupation, and convention with England; in 1845 the State of Texas was annexed; in 1848 and 1853 additional territory was obtained by cession from Mexico; in 1856 the annexation of the Guano Islands was authorized by a congressional statute; in 1867, Alaska, the first territory non-contiguous to the United States, was obtained from Russia; in the same year Midway Island was taken posses

1 The term "Dependency" can hardly be said to have been as yet accepted as a technically correct term, and possibly never may be. In default, however, of a better word the term will be here provisionally employed.

2 In this chapter there is considered simply the question as to the power of the United States to extend its sovereignty over additional territory. The question whether territory when thus brought under the dominion of the United States is necessarily "incorporated" in it, in a peculiar constitutional sense, is discussed in a later chapter (Chapter XXX).

sion of by the President; in 1898 the Hawaiian Islands were annexed; in 1898, as a result of the Spanish-American War, the islands of Porto Rico, the Philippines, and Guam came under the sovereignty of the United States; and in 1900, three of the Samoan Islands were acquired.3

The constitutional power of the United States thus to annex foreign territory has been, at various times, and by various writers, derived from the following sources:

1. The power to admit new States into the Union.1

2. The power to declare and carry on war.5

3. The power to make treaties.

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4. The power, as a Sovereign State, to acquire territory by discovery and occupation or by any other methods recognized as proper by international usage.

These various sources will be considered seriatim.

§ 146. The Right to Annex Based on the Right to Admit New States.

At the time of the adoption of the Constitution, the territory subject to the sovereignty of the United States consisted of the respective territories of the thirteen original States, and the vast reaches of land to the west,- that to the north and west of the Ohio river being known as the Northwest Territory. These areas had been ceded to the old Confederation of the States and governed according to the provisions of the famous Northwest Ordinance of 1787; which provisions were re-enacted upon the establishment of the new government in 1789.7

3 The term "Insular Possessions" has been officially applied to the islands owned by the United States.

4 Art. IV, Sec. 3, Cl. 1.

5 Art. I, Sec. 8, Cl. 11.

6 Art. II, Sec. 2, C1. 2.

7 To this government Georgia and North Carolina later ceded their western lands.

The act of August 7, 1789, was as follows:

"An Act to Provide for the Government of the Territory Northwest of the River Ohio:

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Whereas, in order that the ordinance of the United States in Congress assembled for the government of the territory northwest of the River Ohio

It is not necessary in this place to trace the history of the part played during the period preceding 1787 by the conflicting claims of the colonies or States to the "back lands," and how Maryland refused to sign the Articles of Confederation until all the States should surrender these lands to the Congress for the joint benefit of all the people of the States to be in proper time " parcelled out by Congress into free convenient and independent States and Governments," and how, finally, this was substantially done.

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That the Congress of the Confederation had no constitutional power to accept these cessions of territory is sufficiently plain,* but this was not questioned at the time, and in 1787 the ordinance for the government of the Northwest Territories was enacted. The Articles of Confederation did, however, provide for the admission of new States, Article XI declaring that, Canada, acceding to this Confederation, and joining in the measures of the United States, shall be admitted into, and entitled to all the advantages of the Union; but no other colony shall be admitted into the same, unless such admission be agreed to by nine States."

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may continue to have full effect, it is requisite that certain provisions should be made so as to adapt the same to the present Constitution of the United States.

"Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases in which by the said ordinance any information is to be given or communication made by the Governor of said Territory to the United States in Congress assembled, or to any of their officers, it shall be the duty of said Governor to give such information and to make such communication to the President of the United States, and the President shall nominate, and, by and with the advice and consent of the Senate, shall appoint all officers which by said ordinance were to have been appointed by the United States in Congress assembled, and all officers so appointed shall be commissioned by him, and in all cases where the United States in Congress assembled might by the said ordinance revoke any commission or remove from any office, the President is hereby declared to have the same power of revocation and removal.

"Section 2. And it is further enacted. That in case of the death, removal, resignation or necessary absence of the Governor of said Territory, the secretary thereof shall be and is hereby authorized and required to execute all the powers and perform all the duties of the Governor during the vacancy occasioned by the removal, resignation or necessary absence of said Governor." 8 Cf. Taney in Scott v. Sandford, 19 How. 393; 15 L. ed. 691.

In the Convention which framed the present Constitution the Virginia resolutions declared "that provision ought to be made for the admission of States lawfully arising within the limits of the United States whether from a voluntary juncture of government, transitory or otherwise, with the consent of a number of voices in the national legislature less than the whole." This was agreed to without debate in the committee of the whole. As reported by the Committee of Detail, the draft of the Constitution provided that "new States lawfully constituted or established within the limits of the United States may be admitted, by the legislature into the government; but to such admission the consent of two-thirds of the members present in each House shall be necessary."

In the Convention, in order to cover certain conditions then existing, especially the status of Vermont, this clause, after repeated amendments, was finally made to read: "New States may be admitted by the legislature into the Union; but no new States shall be hereafter founded or erected within the jurisdiction of any of the present States, without the consent of the legislature of such State as well as of the general legislature."

As finally phrased by the Committee on Style and adopted by the Convention the clause reads: "New States may be admitted by the Congress into this Union; but no new State shall be founded or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the Congress."

During this course of evolution it will be seen that the limitation " within the limits of the United States" disappeared. It does not, however, appear from the debates just why these words of limitation were omitted. From some expressions of opinion of the time, there is, nevertheless, evidence that the possibility and desirability of an expansion of the United States beyond the limits fixed by the treaty of 1783, was early recognized by men active in the framing and adoption of our present Constitution.

9 Art. XVII.

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