territory. Hamilton was not prepared to place such a restraint on the power of the central government to accommodate itself to exigencies that might arise, especially as to unpeopled territory; the instructions remained unchanged. In 1838, during the northeastern boundary controversy, the legislature of Massachusetts passed a resolution declaring that no power delegated to the central government by the Constitution authorized it to cede territory within the limits of States of the Union. In a confidential reply, April 17, to a personal request of Edward Everett, then governor of Massachusetts, for an opinion on the resolution, Mr. Justice Story said that he could not admit it to be universally true that the government of the United States was not authorized to make such cessions. He recalled that Chief Justice Marshall, when the question was under discussion some years before, "was unequivocally of opinion that the treaty-making power did extend to cases of cession of territory though he would not undertake to say that it could extend to all cases; yet he did not doubt it must be construed to extend to some." Mr. Webster, however, in the final negotiations, for reasons which were not necessarily constitutional ones, sought to a certain extent the co-operation of the States of Maine and Massachusetts. Shortly after the arrival of Lord Ashburton, letters were addressed to the two States inviting the appointment of commissioners to confer with the central government as to

3

'Am. State Papers For. Rel., vol. i, pp. 252, 255.

'Writings of Jefferson (Ford ed.), vol. v, pp. 443, 476. See opinions expressed in a cabinet meeting in Feb., 1793, on the proposition to cede territory to Indian tribes, ibid., vol. i, p. 219.

'Life and Letters of Joseph Story (Wm. Story ed.), vol. ii, pp. 286,

terms, conditions, considerations and equivalents, with an understanding that no line would be agreed upon without the assent of such commissioners. Commissioners were accordingly appointed, and the final settlement was communicated to them for approval before the signing of the treaty. The treaty was not strictly a determination of the actual line but a friendly adjustment of it, in which it was admitted that concessions had been made on the northeastern boundary in consideration of "conditions and equivalents" elsewhere. Speaking for the Court in the case of Fort Leavenworth R. R. Co. vs. Lowe, Mr. Justice Field expressed the opinion that before the cession to a foreign country "of sovereignty or political jurisdiction" over territory within a State the consent of the State was necessary; and likewise that the State was incompetent to make such cession without the concurrence of the central government. The case decided in this relation only that lands acquired by the central government in a State without the consent of the latter, were exempt from the legislative power of the State only when such lands were used as instrumentalities of the central government; and that lands acquired with the consent of the State for purposes specified in Article I, section 8, of the Constitution were entirely exempt from State legislation.3 Mr. Justice White in his concurring opinion in the case of Downes vs. Bidwell was led to deny the "general proposition that territory which is an integral part of the United States may, as a mere act of sale, be disposed of." He admitted that "from the exigency of a calamitous war or the settle

Webster's Works, vol. vi, pp. 272–4.

'Moore, International Arbitrations, vol. i, p. 147. '114 U. S., 537, 539, 540.

ment of boundaries, it may be that citizens of the United States may be expatriated by the action of the treatymaking power, impliedly or expressly ratified by Congress."

In the consideration of this question a distinction must be made between territory organized into States and that still in Territorial form. Over the latter the national government exercises, subject to the express prohibitions of the Constitution, all the powers of government exercised over the former by the State and central governments combined. That the consent of the inhabitants of the territory to be ceded is necessary, would hardly be contended. Accordingly the power to

1182 U. S., 317.

'Hall (4th ed.), p. 48. It has nevertheless happened that as a matter of expediency, or through deference to the inhabitants of the territory to be ceded, the transfer has been made dependent upon such consent. A plebiscite of Savoy and Nice, under the treaty of Turin, of March 24, 1860, and of the Danish islands of St. Thomas and St. John, under the treaty of October 24, 1867, for their cession to the United States, was in each case taken. In the latter case, the government of the United States objected to the insertion of such a condition, but yielded in the end rather than break off the negotiations. The Danish government was at the time "intensely interested in the subject of a vote of the people of North Schleswig." By Art. V of the treaty of Prague of August 23, 1866, Austria transferred all her rights over Holstein and Schleswig to Prussia "with the condition" that Northern Schleswig should be ceded to Denmark, if by a free vote the population expressed a wish to be united to Denmark. Much to the disappointment of Denmark and the North Schleswigians such a vote was not taken. See Reports of the Sen. Com. on For. Rel., vol. viii, pp. 169, 176, 198. The retrocession in the treaty of August 10, 1877, by Sweden to France, of the island of St. Bartholomew, was made dependent upon a vote of the inhabitants. The annexations of 1860, by the Kingdom of Sardinia, of the various Italian states in which the plebiscite was taken are hardly applicable, in that, not only was there no governmental organization sufficiently established in the several states with which to treat, but also it was in each case a question not of a cession of a portion of the state's territory, but of state annihilation.

cede such territory, if it exists as a power of government in the United States, must reside in the organs of the central government. Chief Justice Marshall, in upholding, in 1828, the power of the central government to acquire territory by treaty said, "The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquir ing territory, either by conquest or by treaty." The power to cede outlying territory is a no less essential attribute of the full treaty-making power of the United States, which "extends to all the proper subjects of negotiation between our government and the governments of other nations," than the power to acquire. As to territory within a State, over which the central government has only concurrent jurisdiction, the question is entirely different, and its decision need not be anticipated. A treaty for the determination of a disputed line operates not as a treaty of cession but of recognition. For this purpose it has not infrequently been found expedient to resort to a court of arbitration, in which the localities affected are sometimes afforded an opportunity to be heard.

(b) Involving Congressional Legislation.

During the debate in the House of Representatives on the Jay treaty, Chief Justice Ellsworth, in a written opinion communicated to Jonathan Trumbull, March 13, 1796, said, "The instant the President and Senate have made a treaty, the Constitution makes it a law of the land; and of course, all persons and bodies

1 American Insurance Company vs. Canter, 1 Pet., 542. 'See supra, p. 109.

in whatever station or department within the jurisIdiction of the United States are bound to conform their actions and proceedings to it. Such a treaty ipso facto repeals all existing laws so far as they interfere with it." Chief Justice Marshall, in 1801, in the case of the United States vs. Schooner Peggy,' declared that treaties according to the Constitution of the United States became with their conclusion binding on the courts and as such affected parties litigating. In 1829, just forty years after the Constitution went into operation, the same great judge, after noting the contractual nature of a treaty and its usual dependence for infraterritorial operation upon subsequent acts of the respective parties, said, "In the United States, a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision."3 That a treaty may repeal a prior act of Congress, has been frequently affirmed in individual opinions both of the justices of the Supreme Court and of the attorneysgeneral. Mr. Justice Harlan, in the recent case of the United States vs. Lee Yen Tai, while holding the treaty of March 17, 1894, with China, and the act of May 5, 1892, relative to judicial procedure in the deportation of Chinese laborers, to be not inconsistent, observed, "That it was competent for the two countries by treaty to have superseded a prior act of Congress on the same subject, is not to be doubted; for otherwise the declaration in the Constitution that a treaty, concluded in the mode prescribed by that instrument, shall be the supreme

'MSS. Letters to Washington, vol. cxvii, p. 287. Foster and Elam vs. Neilson, 2 Pet., 314, 315.

'I Cranch, 109.

185 U. S., 220.