Alexander Hamilton, in a letter to Washington, wrote: "We must remain in a position to take advantage of circumstances, we must be prepared to acquire Florida, and to annex Louisiana and we must even wink further South."

And Gouverneur Morris, the author of that clause of the Constitution which confers upon Congress the power to make rules and regulations respecting territory and other property of the United States, writing in 1803 to Livingston said: "I am very certain that I had it not in contemplation to insert a decree de coercendo imperio in the Constitution of America. Without examining whether a limitation of territory be or be not essential to the preservation of republican government, I am certain that the country between the Mississippi and the Atlantic exceeds by far the limits which prudence would assign, if in effect any limitation be required. Another reason of equal weight must have prevented me from thinking of such a clause. I knew as well then as I do now that all North America must at length be annexed to us. Happy, indeed, if the lust of dominion stop there." Writing again to Livingston, however, Morris said that while he held that the United States might acquire additional territory, it could not create new States of the Union out of it. He said: "I perceive I mistook the drift of your inquiry, which substantially is, whether Congress can admit, as a new State, territory which did not belong to the United States when the Constitution was made. In my opinion they cannot. I always thought, when we should acquire Canada and Louisiana, it would be proper to govern them as provinces and allow them no voice in our councils. In wording the third section of the fourth article, I went as far as circunstances would permit to establish the exclusion. Candor obliges me to add my belief that had it been more pointedly expressed, a strong opposition would have been made." 10

§ 147. Annexation of Louisiana. Views of Jefferson.

When, in 1790, North Carolina made a cession to the United States of its title to western territory, this was accepted by Con10 Life and Writings (Sparks), III, 185, 192.

gress in the Act of April 2, 1790, without constitutional question. This it will be observed, however, involved only a transfer of title from a State to the Nation and not an annexation of terri

tory foreign to the United States. The acquisition of the Louisiana Territory was, however, of this latter character, and Jefferson, then President, felt, and expressed, as we know, most serious doubts as to the constitutionality of the act, though, upon grounds of political expediency, he urged that the treaty providing for it be ratified, and if necessary, a constitutional amendment giving to the National Government the necessary power be adopted.11

11 Before the ratification of the treaty Jefferson wrote to John Dickinson as follows: "The General Government has no powers but such as the Constitution gives it; and it has not given it power of holding foreign territory, and still less of incorporating it into the Union. An amendment of the Constitution seems necessary for this. In the meantime we must ratify and pay our money, as we have treated for a thing beyond the Constitution and rely on the nation to sanction an act done for its great good without its previous authority."

To John C. Breckenridge he wrote: "The Constitution has made no provision for holding foreign territory, still less for incorporating foreign nations into our Union. The Executive, in seizing the fugitive occurrence which so much advances the good of their country, has done an act beyond the Constitution. The Legislature, in casting behind them metaphysical subtleties and risking themselves like faithful servants, must ratify and pay for it and throw themselves on their country for doing for them unauthorized what we know they would have done for themselves had they been in a situation to do it. It is a case of a guardian investing the money of the ward in purchasing an important adjacent territory, and saying to him when of age: 'I did this for your good; I pretend to no right to bind you; you may disavow me and I must get out of the scrape as best I can; I thought it my duty to risk myself for you.' But we shall not be disavowed by the nation, and their act of indemnity will confirm and not weaken the Constitution by more strongly marking its lines."

Writing to William C. Nicholson before the ratification of the Louisiana treaty he said: "Whatever Congress shall think best to do should be done with as little debate as possible, and particularly as far as respects the con stitutional difficulty. I am aware of the force of the observations you make on the power given by the Constitution to Congress to admit new States into the Union without restraining the subject to the territory then constituting the United States. But when I consider that the limits of the United States are precisely fixed by the treaty of 1783; that the Constitution expressly declares itself to be made for the United States, I cannot help believing that

Though not perfectly clear upon the point, it would seem that Jefferson drew a distinction between the constitutional power of the United States to extend its sovereignty over additional territory and to "incorporate" it in the United States as a part thereof; and that his constitutional qualms were excited rather by the exercise of the latter power than of the former. In answer to a letter of Gallatin he wrote (January, 1803): "There is no constitutional difficulty as to the acquisition of territory, and whether when acquired it may be taken into the Union by the Constitution as it now stands will become a question of expediency. I think it will be safer not to permit the enlargement of the Union but by the amendment of the Constitution."

In the first of the drafts of a constitutional amendment which, for this purpose, Jefferson drew up, it was provided that, "The Province of Louisiana is incorporated with the United States and made a part thereof." The second draft provided that, "Louisiana as ceded by France to the United States is made a part of the United States. Its white inhabitants shall be citizens and stand, as to their rights and obligations, on the same footing with the citizens of the United States in analogous situations."

99 12

The question of the annexation of territory without “incorporation" into the United States will be discussed in Chapters XXIX and XXX.

Jefferson stood by no means alone in his doubts as to the constitutional power of the United States to annex and incorporate the intention was to permit Congress to admit into the Union new States which should be formed out of the territory for which and under whose authority alone they were acting. I do not believe it was meant that they night receive England, Holland, Ireland, etc., into it, which would be the case in your construction. When an instrument admits of two constructions, one safe and the other dangerous, the one precise, the other indefinite, I prefer that which is safe and precise. I had rather risk enlargement of power from the nation where it is found necessary than to assume it by a construction which makes our powers boundless."

12 For other declarations of Jefferson upon this point, and a review of the debates in Congress concerning the Louisiana purchase, see Downes v. Bidwell, 182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088, and the argument of the Attorney-General in Goetze v. United States, The Insular Cases, H. R. Doc., 509, 56th Cong., 2d Sess., pp. 152 et seq.

Louisiana, but these doubts were not sufficiently general to lead the people to give expressly by constitutional amendment that right, the implied existence of which was questioned.13

With regard to deriving the power to annex from the power to admit new States, it may be observed that not only is reference to this source for authority unnecessary, but, when appealed to, would not seem to yield to the National Government as ample powers as are furnished it when the treaty and war powers are relied upon. 14

It may further be observed that when recourse is had to the power to admit new States for the authority to annex foreign

13 In the debates attendant upon the annexation of Texas, Choate in the Senate and Winthrop, Brangle, and Barnard in the House argued that the United States was without constitutional authority to annex foreign territory (Cong. Globe, 28th Cong., 2d Sess.). In 1838 when the annexation of Texas was being agitated, J. Q. Adams in the House of Representatives offered the following resolution: “Resolved, that the power of annexing the people of any independent foreign State to the Union is a power not delegated by the Constitution of the United States to their Congress, or to any department of the government, but reserved by the people. That any attempt by act of Congress or by treaty would be a usurpation of power, unlawful and void, and which it would be the right and the duty of the free people of the Union to resist and avoid."

Continuing, he declared, that, if annexed, it would be such a violation of the national compact as "not only inevitably to result in a dissolution of the Union, but fully to justify it, and we not only assert that the people of the free States ought not to submit to it, but we say with confidence that they would not submit to it." Many Southerners, on the other hand, asserted that if Texas were not admitted, they would destroy the Union.

14" If it [the power of annexation] is to be implied only from the latter power [the right to admit new States], it would seem quite reasonable to hold that it could be exercised in any case only for the purpose of creating a new State out of the acquired territory, and there would be no power to govern it except for that purpose, but the right of Congress to admit the acquired territory as a State or States, or to refuse to do so, according to its own judgment and discretion, is universally admitted, and, therefore, it would seem to follow that the power to acquire and govern cannot be derived from the power to admit, for, if it did, all territory acquired by either of the methods stated would have to be converted into a State or States. It may be said that no territory ought to be acquired which cannot be ultimately fitted for admission as a State or States- but this is a political and not a judicial question." Address of John G. Carlisle before the American Bar Association, 1902.

territory considerable support is given to the position that, in exercising it, the consent of the other States should be obtained. Thus at the time of the debate in Congress over the purchase of Louisiana, Pickering, who did not deny the right of the United States to acquire new territory by conquest or purchase to be held and governed as dependent territory, denied that territory could be annexed with the pledge that it should be divided up and admitted as States into the Union, unless the consent of the copartner States were obtained. Griswold took much the same view. He contended that "the Union of the States was formed on the principles of a copartnership, and it would be absurd to suppose that the agents of the parties who have been appointed to execute the business of the compact, could admit a new partner without the consent of the parties themselves." 15

§ 148. Territories as Embryo States.

There can be no question but that it was the general intention at the time that the Constitution was adopted that all the territory then under the sovereignty of the United States and not included within the limits of any one of the then several States should ultimately be divided up and admitted as States into the Union.

It will be remembered that the Ordinance for the government of the Northwest Territory provided that "There shall be formed in the said territory not less than three nor more than five States. such State shall be admitted

And .

on an equal footing with the original States, in all respects whatever; and shall be at liberty to form a permanent Constitution and state government.16

The treaty which provided for the cession of Louisiana to the United States declared that "The inhabitants of the ceded territory shall be incorporated into the Union of the United States and admitted as soon as possible according to the principles of the federal Constitution to the enjoyment of all the rights,

15 Annals of Cong. 1803-4, p. 461.

16 Art. 5.