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For an excellent argument for the support of the position here taken see also the prize essay of Mr. W. H. Bikle, entitled The Constitutional Power of Congress Over the Territory of the United States," and published as a supplement to the American Law Register for August, 1901. See also Butler, "The Treaty-Making Power of the United States." Butler declares his opinion to be: "That the treaty-making power of the United States, as vested in the Central Government, is derived not only from the powers expressly conferred by the Constitution, but that it is also possessed by that government as an attribute of sovereignty, and that it extends to every subject which can be made the basis of negotiation and contract between any of the sovereign powers of the world, or in regard to which the several States of the Union themselves could have negotiated and contracted if the Constitution had not expressly prohibited the States from exercising the treaty-making power in any matter whatever and vested that power exclusively in, and expressly delegated it to, the Federal Government."

CHAPTER XXIII.

THE MODES IN WHICH, AND PURPOSES FOR WHICH, TERRITORY MAY BE ACQUIRED BY THE UNITED STATES.

§153. Constitutional Modes of Acquiring Territory.

Having shown the constitutional power of the United States. to acquire territory whether by treaty, conquest, or discovery and occupation, we now approach the question as to the modes by which this federal authority may be exercised.

A history of the territorial expansion of the United States. shows that territories have been annexed in three different ways: (1) by statute, (2) by treaty, and (3) by joint resolution.

The process of extending American sovereignty by simple statute and executive action authorized thereby was illustrated, as we have just seen, in the case of the Guano Islands. The annexation of territory by treaty has been the method most usually employed. The Louisiana Territory, Florida, Alaska, the Mexican cessions, the Samoan Islands, Porto Rico, and the Philippines were obtained in this manner. The constitutionality of this mode of acquisition has already been discussed.

§ 154. Annexation by Joint Resolution.

In two instances, that of Texas in 1845, and Hawaii in 1898, the sovereignty of the United States has been extended over new territory by means of a Joint Resolution of the Houses of Congress. In the case of Texas an attempt had been made to annex the State by treaty, but this effort, requiring a two-thirds favorable vote in the Senate, had failed. Thereupon the same end was secured by a Joint Resolution which needed but a simple majority vote in each of the two branches of the national legislature, with, of course, the approval of the President. This resolution provided that "Congress doth consent that the territory properly included within and rightfully belonging to the Republic of Texas may be erected into a new State to be called the State

of Texas with a republican form of government to be adopted by the people of said republic, by deputies in convention assembled, with the consent of the existing government, in order that the same may be admitted as one of the States of the Union." Upon Texas taking the action called for by this clause, Congress later by Joint Resolution declared Texas one of the States of the American Union.

The peculiarity of the annexation of this State was not simply that it came under American sovereignty by Joint Resolution but that it became at once one of the States of the Union, and thus never had the transitional territorial status. This fact, indeed, gave additional constitutional support to the action of Congress in the matter, for to that body is given by the Constitution the right to admit new States into the Union, and, therefore, its admission of Texas to fellowship with other American commonwealths might easily be construed as a legitimate exercise of that power.

The acquisition of the Hawaiian Islands was another instance of the extension of the United States sovereignty by a simple Joint Resolution of the two branches of Congress. In this case, however, the islands were not, as was Texas, admitted as a State or States of the Union, but were simply annexed as a territory.

The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was not denied, but it was denied that this might be done by a simple legislative act. The incorporation of one sovereign State, such as was Hawaii prior to annexation, in the territory of another, is, it was argued, essentially a matter falling within the domain of international relations, and, therefore, beyond the reach of legislative acts. Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force-confined in its operation to the territory of the State by whose legislature it is enacted. meet this point Senator Foraker argued that though a treaty may be the proper mode for annexing a portion of the territory

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of another State, it is inappropriate when an entire State is annexed by another. "I agree," he said, "with Senators on the other side that a treaty is a contract that has been your contention throughout until the treaty has been signed on both sides. The very minute that is done one of the parties is gone, and there is no continuing contract. Therefore it is simply a cession on their part and an acceptance on ours, and it might be done just as well by legislation as otherwise."

In the report made March 16, 1898, by the Senate Committee on Foreign Relations1 in favor of the Joint Resolution of Annexation, the annexation of Texas was cited as a precedent and in addition the assertion made that for annexation the consent of the government of the annexed territory is needed but not, necessarily, that of its populace.2

1 Senate Report 681, 55th Cong., 2d Sess.

2" This Joint Resolution [annexing Texas]," the Committee declare “clearly establishes the precedent that Congress has the power to annex a foreign State to the territory of the United States, either by assenting to a treaty of annexation or by agreeing to articles of annexation or by act of Congress based upon the consent of such foreign government obtained in any authentic way. No exercise of power could be more supreme than that under which Texas was annexed to the United States, either as to its scope or the manner of the annexation or the choice of conditions upon which Congress would merge the sovereignty of an independent republic into the supremacy of the United States. The act also establishes the fact that a treaty with a foreign State which declares the consent of such State to be annexed to the United States, although it is rejected by the Senate of the United States, is a sufficient expression and authentication of the consent of such foreign State to authorize Congress to enact a law providing for annexation, which, when complied with, is effectual without further legislation, to merge the sovereignty of such independent State into a new and different relation to the United States and toward its own people. It further establishes the fact that Congress, in legislating upon the question of the annexation of a foreign State, rightfully acts upon the consent of such State, as the sovereign representative of its people, and that the power of Congress to complete the annexation of such foreign State depends alone upon the sovereign will and consent of such State, given and expressed through its organized tribunals. It further establishes the fact that Congress cannot acquire the right or jurisdiction to annex a foreign and independent State through a vote of a majority of its people, in opposition to the will of its constituted authorities. It is the constitutional power of Congress that operates to annex foreign territory. Such a proceeding on the part of Congress as the sub

The assertions here made by the Committee that the annexation of Texas constituted a precedent for annexation by legislative act, the consent of the constituted governmental authorities of the annexed territory being obtained, is open to question. For it it will be remembered that Texas was admitted directly into the Union as a State, and, therefore, its admission could be upheld as an exercise of the power given to Congress and the President to admit new States into the Union.

§ 155. Consent of Inhabitants of Annexed Territory not Required.

As to the question whether it be necessary to obtain the consent of the inhabitants of the territories to be annexed, it may be said that this is, or may be, a matter of justice and political expediency but not of legal necessity. The act of annexation being, ex hypothesi, legislative, its legal force is derived from the body which enacts it, and it would be an error to hold its legal force necessarily dependent upon a consent obtained from some other source. There would, of course, be no legal objection to Congress providing, should it see fit, that the going into effect of an act of annexation should be dependent upon its approval by the inhabitants of the territory to be annexed, just as in its "enabling acts" for the admission of Territories as States, or in many of its acts with reference to the Indians, it provides that the consent of those directly concerned shall be obtained. But this is not a matter of legal necessity. It is not a division or a delegation of legislative power, either of which would be necessarily unconstitutional.

mission of the question to vote of the people of such a State would only create disorder and revolution in a foreign State applying through its constituted authorities for admission into the United States. This important, clear, and far-reaching precedent established in the annexation of the Republic of Texas is a sufficient guide for the action of Congress in the passage of the Joint Resolution herewith reported. If, in the judgment of Congress, such a measure is supported by a safe and wise policy, or is based upon a national duty that we owe to the people of Hawaii, or is necessary for our national development and security, that is enough to justify annexation, with the consent of the recognized government of the country to be annexed."

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