proval of the Indian treaties, submitted by President Washington to the Senate, May 25, 1789, for advice and consent-the first to be so submitted under the Constitution-the Senate simply advised the President "to execute and enjoin observance." The President in a message of September 17, objected to this form and suggested that he be advised to ratify as with other treaties. The committee appointed by the Senate to examine the question reported against a formal ratification, but the Senate complied with the suggestion by voting, September 22, to advise and consent to the ratification. This procedure was followed until 1871, during which period the Indian treaties are far more numerous than those with foreign powers. In the Indian appropriation act of March 3, 1871, it was enacted that thereafter no Indian nation or tribe within the territory of the United States should be acknowledged or recognized as an independent nation, tribe, or power with whom the United States might contract by treaty. The obligation of existing treaties was in no way to be impaired or invalidated by the act.3 No formal treaties with the Indians have since been made, but agreements with them have been laid before Congress for its approval.

The peculiar status of the Indian tribes was happily defined, in 1831, by Chief Justice Marshall as that of "domestic dependent nations." The Supreme Court has nevertheless ascribed the same sanctity to Indian treaties as to those with foreign powers, and has construed

1 Ex. Journal, vol. i, pp. 25, 27, 28.

'Francis A. Walker, in The Making of the Nation, p. 106, states that prior to 1871, 382 Indian treaties had been concluded.

16 Stat. at L., 566.

The Cherokee Nation vs. Georgia, 5 Pet., 17.

the provision of the Constitution declaring "treaties made" to be the supreme law of the land, as being applicable to those concluded with Indian tribes.'

(e) The Acquisition of Territory.-Although territory has usually been acquired by formal treaty, it has, under special circumstances, been acquired under an act of Congress. A treaty was signed at Washington, April 12, 1844, with the Republic of Texas, by which that republic conveyed and transferred to the United States all its rights of separate and independent sovereignty and jurisdiction. On June 8 the treaty was rejected by the Senate by a vote of 35 to 16.3 Three resolutions introduced by Mr. Benton, May 13, and discussed regularly until the final vote on the treaty, possibly express the reasons for the rejection. They declare that the ratification of the treaty would be the adoption by the United States of the Texan war; that the treaty-making power of the President and Senate did not include the power of making war, either by declaration or by adoption; and that the territory disincumbered from the United States by the treaty of 1819 ought to be united to the American Union as soon as it could be done with the consent of a majority of the people of the United States and of Texas, and when Mexico should either consent to the transfer or acknowledge the independence of Texas, or cease to wage war against her on a scale commensurate with the conquest of the country. While the last reason, which was political in its nature, was probably the most persuasive, the opinion that the ratification was tanta

'Worcester vs. State of Georgia, 6 Pet., 559.

'The important acquisitions of 1803, 1819, 1848, 1853, 1867 and 1898 have been by means of formal treaties.

'Ex. Journal, vol. vi, p. 312.

Ibid., p. 277.

mount to the adoption of a war with Mexico, and accordingly not within the province of the treaty-making power, was frequently expressed. In answer to an enquiry made by the Senate whether any military preparations had been made in anticipation of war, and if so for what cause and with whom was war apprehended, President Tyler stated in a message of May 15, 1844, that, in consequence of an announcement of Mexico declaring its determination to regard as a declaration of war the definitive ratification of the treaty of annexation, a portion of the naval and military forces had "as a precautionary measure" been assembled in the region of Texas. He observed further that the United States having by the treaty of annexation acquired a title to Texas, which required only the action of the Senate to perfect it, no other power could be permitted to invade and by force. of arms possess itself of any portion of the territory of Texas, pending the deliberations of the Senate upon the treaty, without placing itself in a hostile attitude to the United States.' Immediately preceding the rejection of the treaty, a resolution was introduced by Mr. Henderson declaring that such annexation would be properly achieved on the part of the United States by an act of Congress admitting the people of Texas with defined boundaries as a new State into the Union on an equal footing with the other States. This course was followed, and on March 1, 1845, a joint resolution was approved consenting to the erection of the territory, rightfully belonging to the republic of Texas, into a new State. A proviso, attached through the efforts of Mr. Benton, gave the President opportunity, before communicating the resolution to Texas, to resort to negotiations upon 2 Ibid., p. 311.

1Ex. Journal, vol. vi, pp. 274, 276, 277, 279.

terms of admission and cession either by treaty to be submitted to the Senate or by articles to be submitted to both houses. The purpose of the section was to effect if possible the acquisition and still maintain peaceful relations with Mexico. Negotiations were not resorted to, and Texas having accepted and complied with the conditions of the resolution, was by the joint resolution of December 29, 1845,3 admitted as a State into the Union.

A treaty was signed at Washington, June 16, 1897, with the Republic of Hawaii for its annexation to the United States. The treaty was ratified by the Hawaiian legislature, but the United States on its part accepted and confirmed the cession by a joint resolution approved July 7, 1898. Although, as a matter of fact, the resolution was agreed to in the Senate, July 6, by a two-thirds vote (42 to 21), the annexation was effected by an act of legislation, and not by an act of the treaty-making power. In 1845, a foreign state was admitted by a resolution of Congress as a State into the Union; in 1898, a foreign state was joined by a resolution of Congress to our territorial possessions. One feature, however, is common and furnishes precedent-the other contracting party in each case, by the very agreement, lost its identity as a nation with which international relations could exist, the agreement becoming immediately on its con

15 Stat. at L., 797.

'Benton, Thirty Years in the United States Senate, vol. ii, pp. 602, 619 et seq.

'9 Stat. at L., 108. Mr. Archer of the Committee on Foreign Relations submitted a report to the Senate, Feb. 4, 1845, objecting on constitutional grounds to this method of acquisition. Compilation of Reports of Sen. Com. on For. Rel., pt. 6, p. 78.

summation exclusively a matter of internal cognizance, and ultimately of unilateral construction.'

A recent agreement with Cuba signed by the President of the United States, February 23, 1903, for the leasing, subject to terms to be agreed upon by the two governments, of lands in Cuba for coaling and naval

'A still different case was presented in 1802. On April 24th of that year an agreement was entered into with the State of Georgia for the cession of western lands. The commissioners on the part of the United States, James Madison, Albert Gallatin and Levi Lincoln, were appointed by President Adams under an act of Congress, approved April 7, 1798. An act of May 10, 1800, vested final powers in the commissioners. On the part of Georgia the agreement was ratified and confirmed by the legislature, June 16, 1802. House Mis. Doc. 45, pt. 4, pp. 78-81, 47th Cong. 2nd Sess. As such a matter is at all stages during the negotiations, as well as after the conclusion of the agreement, exclusively an internal affair, such regulations doubtless fall properly within the powers of Congress. During the negotiations on the northeastern boundary in 1832, an agreement with the State of Maine for the cession to the government of the United States of the territory under dispute, and claimed by that State, east of the St. Francis river and north of the St. John, was signed. The agreement was never consummated; but in the fifth article of the Webster-Ashburton treaty the following clause was inserted: "the government of the United States agreeing with the States of Maine and Massachusetts to pay them the further sum of three hundred thousand dollars, in equal moieties, on account of their assent to the line of boundary described in this treaty, and in consideration of the conditions and equivalents received therefor from the government of Her Britannic Majesty." The irregularity of incorporating into an international treaty such a stipulation was not overlooked by the British negotiator. On the day of signing the treaty Lord Ashburton addressed a note to Mr. Webster, stating that the introduction of an agreement between the central and State governments would have been "irregular and inadmissible if it had not been deemed expedient to bring the whole of these transactions within the purview of the treaty." He requested an assurance that his government should incur no responsibility for these engagements. To this Mr. Webster replied on the same date: "It purports to contain no stipulation on the part of Great Britain nor is any responsibility supposed to be incurred by it on the part of your government." Moore, Int. Arb., vol. i, p. 138. Webster's Works, vol. vi, pp. 289–290.