Obrázky stránek
PDF
ePub

advantages, and immunities of the citizens of the United States." 17

.

[ocr errors]
[ocr errors]

In the treaty with Spain which confirmed the title of the United States to the Floridas the United States promised that "The inhabitants of the territories shall be incorporated in the Union of the United States as soon as it may be consistent with the principles of the Federal Constitution and admitted to the enjoyment of all the privileges, rights, and immunities of the citizens of the United States." 18

In the treaty of 1848 with Mexico whereby Mexico relinquished its rights to Upper California and New Mexico the United States promised that "The Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican Republic conformably with what is stipulated in the preceding article, shall be incorporated in the Union of the United States and to be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States according to the principles of the Constitution." 19

In the treaty with Russia for the cession of Alaska the United States agreed that" The inhabitants of the ceded territory should be admitted to the enjoyment of all the rights, advantages and immunities of citizens of the United States." 20 In the provisions of all of these several treaties there is thus to be recognized the presence of the idea in the minds of those who framed and ratified them that the territories thus acquired were to be incorporated as integral elements in the United States and ultimately to be erected into States and admitted into the 'Union in full and equal fellowship with the original States. The consideration which led the ceding nations to have these promises inserted in the treaties of cession was the same which urges all nations in parting with portions of their territories and their inhabitants to provide, as far as possible, that their former citi

17 8 Stat. at L. 202.

18 8 Stat. at L. 256. 19 9 Stat, at L. 930.

20 15 Stat. at L. 542.

zens thus handed over to the control of a foreign power, shall not be oppressed but be treated on an equality with the other citizens of the annexing State.

Down to the time of the war of 1898 with Spain we find repeated utterances of public men and of the courts that all of the territories of the United States, originally owned and acquired, not already States, were destined for that status.21 Senator Hoar, indeed, declared in the Senate when the future of the Philippine Islands was being discussed, "I have been unable to find a single reputable authority more than twelve months old, for the power now claimed for Congress to govern dependent nations or territories not expected to become States. The contrary, until this war broke out, has been taken as too clear for reasonable question."

In support of the view that the holding permanently of territory not destined for statehood is foreign to, and not compatible with, our principles of government, the declarations of Jefferson, Madison, Monroe, J. Q. Adams, Webster, Calhoun, Clay, Reverdy Johnson, Berrien, Edward Everett, Seward, and Sumner have been quoted; and, of course, if Senator Hoar's statement be correct, this list might be almost indefinitely extended.

§ 149. Judicial Dicta. Taney's Views.

A certain number of dicta of the Supreme Court of the United States may also be found in which the language indicates an accepted assumption that the territories held by the United States were all ultimately to be erected into States. Thus in Loughborough v. Blake,22 Marshall, after referring to the attempt of Great Britain to tax her American colonies, said: "The differ ence between requiring a continent with an immense population to submit to be taxed by a government having no common interest with it, separated from it by a vast ocean and associated with it by no common feelings, and permitting the representatives of the

21 Alaska may be treated as an exception. This area, at the time of its annexation, had a very small population and it was not expected that this population would increase.

225 Wh. 317; 5 L. ed. 98.

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."

Thus also, in Shively v. Bowlby,23 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."

24

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

23 152 U. S. 1; 14 Sup. Ct. Rep. 548; 38 L. ed. 331.

249 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 not 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."

[ocr errors]
[ocr errors]

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.

« PředchozíPokračovat »