claim that the areas in question belonged to the United States was unfounded. There has been no instance in which territory, indisputably belonging to the United States, has been alienated to another power. Whether or not the power to do so, should the occasion arise, exists, has been often discussed, and, in fact, we have a number of obiter statements upon the point from the Supreme Court.

22

In De Geofroy v. Riggs21 Justice Field, in his enumeration of the limitations upon the treaty-making power, includes its inability to cede any portion of a State without its consent. In support of this declaration reference is made to the case of Fort Leavenworth R. R. Co. v. Lowe. That case decided, simply, that the legislative power of Congress is exclusive over lands within a State purchased with its consent by the United States for a constitutional purpose; and that a State has the constitutional power thus to cede portions of its territory to the General Government. The court in its opinion, however, goes on to say that "it is undoubtedly true that the State, whether represented by her legislature, or through a convention specially called for that purpose, is incompetent to cede her political jurisdiction and legislative authority over any part of her territory to a foreign country, without the concurrence of the General Government." As to the truth of this obiter statement, there can, of course, be no question, for, as we have already learned, the State cannot, constitutionally, have any international dealings."

23

But the court go on to say: "The jurisdiction of the United States extends over all the territory within the States, and, therefore, their authority must be obtained, as well as that of the State within which the territory is situated, before any cession of sovereignty or political jurisdiction can be made to a foreign country."

In support of this statement the court refers to the adjustment of the northeastern boundary dispute in 1842 with Great Britain,

21 133 U. S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed. 642. 22 114 U. S. 525; 5 Sup. Ct. Rep. 995; 29 L. ed. 264.

23 Except, possibly, as we have seen (Chapter XV), with reference to such an unimportant matter as the administration of fishing upon boundary waters.

in which the United States before coming to an agreement with Great Britain, obtained the co-operation and concurrence of Maine and Massachusetts. Maine appointed commissioners by her legislature, and Massachusetts by her Governor under authority of an act of her legislature, to act with the Secretary of State of the United States in the matter.

This co-operation of the authorities of Maine and Massachusetts was at the suggestion of Webster, then Secretary of State, but it does not appear from his correspondence that he considered this a constitutional necessity, but rather that it was expedient from a political standpoint that the opinion of these two States should be considered.24 Thus, writing privately to the Governor of Maine, December 21, 1841, Webster says: "In the present position of affairs, I suppose it will not be prudent to stir in the direction of a compromise without the consent of Maine." 25

Besides the assertions of the Supreme Court in De Geofroy v. Riggs and Fort Leavenworth R. R. Co. v. Lowe, we have the argument of Justice White in Downes v. Bidwell,26 that the United States is without the treaty-right to sell or trade away any portion of territory, whether within a State or a Territory, which has been "incorporated" into the United States. "In conformity to the principle which I have admitted," he says, “it is impossible for me to say at one and the same time that territory is an integral part of the United States protected by the Constitution, and yet the safeguards, privileges, rights, and immunities which arise from this situation are so ephemeral in their character that by a mere act of sale they may be destroyed. And applying this reasoning to the provisions of the treaty under consideration, to me it seems indubitable that if the treaty with Spain incorporated all the territory ceded into the United States, it resulted that the millions of people to whom that treaty related were, without the consent of the American people as expressed by Congress,

24 See Works of Webster, V, 98; VI, 272.

25 Van Tyne's Letters of Webster, 248; quoted in Moore, Digest of Int. Law, V. 174.

26 Concurred in by Justices Shiras, McKenna and Gray.

and without any hope of relief, indissolubly made a part of our common country."

Later on in his opinion Justice White is, however, forced to say: "True, from the exigency of a calamitous war or the necessity of a settlement 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. But the arising of these particular conditions cannot justify the general proposition that territory which is an integral part of the United States may, as a mere act of sale, be disposed of."

In fact, however, as we know, Justice White held that territory might be annexed by treaty without "incorporation" into the United States, and such unincorporated territory concededly might by treaty be sold or traded away.27

Opposing these judicial obiter dicta are the decisions of the Supreme Court in Lattimer v. Poteet 28 and the opinions of such commentators as Kent, Story and Butler.

In Lattimer v. Poteet the Supreme Court upheld a treaty of the United States with an Indian tribe whereby was ceded to the Indians an area claimed by a State as its own. "It is argued," said the court in its opinion, that it was not in the power of the United States and the Cherokee Nation, by the Treaty of Tellico in 1798, to vary in any degree the treaty line of Holston so as to affect private rights or the rights of North Carolina. It is a sound principle of international law, and applies to the treaty-making power of this government, whether exercised with a foreign nation or an Indian tribe, that all questions of disputed boundaries may be settled by the parties to the treaty. And to the exercise of these high functions by the government,

27 It will be observed that Justice White's denial to the treaty power of the right to alienate incorporated territory, save as necessitated by a disastrous war, is not predicated upon the federal character of the United States, that is, upon a doctrine of reserved rights of the States, but upon the general constitutional character of the Federal Government as one deriving its power by grant from its citizens. Cf. American Law Register, February, 1907, p. 83, note.

28 14 Pet. 4; 10 L. ed. 328.

within its constitutional power, neither the rights of a State nor those of an individual can be interposed."

Kent in his Commentaries says: "The better opinion would seem to be, that such a power of cession of the territory of a State without its consent does reside exclusively in the treaty-making power, under the Constitution of the United States, yet sound discretion would forbid the exercise of it without the consent of the local government who are interested, except in cases of great necessity, in which the consent might be presumed.” 29

"On April 14, 1838, Edward Everett, who was then governor of Massachusetts, confidentially asked the opinion of Mr. Justice Story concerning a resolution of the Massachusetts legislature, which had been presented to him for his signature, in which it was declared that no power delegated by the Constitution to thể United States authorized the government to cede to a foreign nation any territory lying within the limits of a State of the Union. Mr. Everett called attention to the fact that in section 1502 of Story's Commentaries on the Constitution, in which certain restrictions on the treaty-making power were named, that of ceding a part of a State was not mentioned, but that the remark was added, 'Whether there are any other restrictions necessarily growing out of the structure of the government will remain to be considered whenever the exigency shall arise.' Mr. Everett further observed that the restriction in question, if it existed, must be one of this character, but that the pending controversy did not appear to him to create such an exigency, since it was a question not of ceding an admitted part of the territory of Maine, but of ascertaining the boundary between British and American territory. Mr. Justice Story, on the 17th of April, replied that he could not admit it to be universally true that the Constitution of the United States did not authorize the government to cede to a foreign nation territory within the limits of a State, since such a cession might, for example, be indispensable to purchase peace, or might be of a nature calculated for the safety of both nations or be an equivalent for a like cession on the other side. The

29 I, 167, note b.

learned justice added that he had some years previously had a conversation on the subject with Chief Justice Marshall. He was,' said Mr. Justice Story, 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.'" 30

Mr. Butler's views as to the constitutional effect of the treatymaking power have already been quoted in this chapter. They grant to the Federal Government full power to alienate without the consent of a State, any portion or all of its territory. On page 394 of his second volume, Mr. Butler, after referring to the settlement of the northeastern boundary, says: "If it be said only a part of a State was involved in that ease, and that although the power might possibly be exercised as to a part of a State, an entire State could not have been ceded away, the answer can only be that if the salvation of every other State in the Union depended upon the boundary line being so fixed that an entire State should be included in British possessions, and in default thereof the Union might have been plunged into a war resulting in its destruction, undoubtedly the treaty-making power in the Central Government would have been able to accomplish that result, and it might have been just as necessary to exercise it, as at times it has been necessary to amputate a limb in order to save the life itself; in such extreme cases (and it is to be hoped they will never occur) the full extent of the power would have to be exercisedregretfully indeed but nevertheless effectually."

In accordance with the principles already laid down in this chapter, the author of this treatise is of the opinion that the United States has, through its treaty-making organ, the constitutional power, in cases of necessity, to alienate a portion of, or the entire territory of a State or States. The same reasoning which supports the power of the United States, as a sovereign power in international relations, to annex territories, is sufficient to sus

30 Story, Life of Joseph Story, II, 286-289. Quoted by Moore, International Law Digest, V, 172.