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sion of by the President; in 1898 the Hawaiian Islands were annexed; in 1898, as a result of the Spanish-American War, the islands of Porto Rico, the Philippines, and Guam came under the sovereignty of the United States; and in 1900, three of the Samoan Islands were acquired.3

The constitutional power of the United States thus to annex foreign territory has been, at various times, and by various writers, derived from the following sources:

1. The power to admit new States into the Union.*

2. The power to declare and carry on war.5

3. The power to make treaties.6

4. The power, as a Sovereign State, to acquire territory by discovery and occupation or by any other methods recognized as proper by international usage.

These various sources will be considered seriatim.

§ 146. The Right to Annex Based on the Right to Admit New States.

At the time of the adoption of the Constitution, the territory subject to the sovereignty of the United States consisted of the respective territories of the thirteen original States, and the vast reaches of land to the west,- that to the north and west of the Ohio river being known as the Northwest Territory. These areas had been ceded to the old Confederation of the States and gov erned according to the provisions of the famous Northwest Ordinance of 1787; which provisions were re-enacted upon the establishment of the new government in 1789.7

3 The term "Insular Possessions" has been officially applied to the islands owned by the United States.

4 Art. IV, Sec. 3, Cl. 1.

5 Art. I, Sec. 8, Cl. 11.

6 Art. II, Sec. 2, Cl. 2.

7 To this government Georgia and North Carolina later ceded their western lands.

The act of August 7, 1789, was as follows:

"An Act to Provide for the Government of the Territory Northwest of the River Ohio:

"Whereas, in order that the ordinance of the United States in Congress assembled for the government of the territory northwest of the River Ohio

It is not necessary in this place to trace the history of the part played during the period preceding 1787 by the conflicting claims of the colonies or States to the "back lands," and how Maryland refused to sign the Articles of Confederation until all the States should surrender these lands to the Congress for the joint benefit of all the people of the States to be in proper time “parcelled out by Congress into free convenient and independent States and Governments," and how, finally, this was substantially done.

That the Congress of the Confederation had no constitutional power to accept these cessions of territory is sufficiently plain, but this was not questioned at the time, and in 1787 the ordinance for the government of the Northwest Territories was enacted. The Articles of Confederation did, however, provide for the admission of new States, Article XI declaring that, "Canada, acceding to this Confederation, and joining in the measures of the United States, shall be admitted into, and entitled to all the advantages of the Union; but no other colony shall be admitted into the same, unless such admission be agreed to by nine States."

may continue to have full effect, it is requisite that certain provisions should be made so as to adapt the same to the present Constitution of the United States.

"Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases in which by the said ordinance any information is to be given or communication made by the Governor of said Territory to the United States in Congress assembled, or to any of their officers, it shall be the duty of said Governor to give such information and to make such communication to the President of the United States, and the President shall nominate, and, by and with the advice and consent of the Senate, shall appoint all officers which by said ordinance were to have been appointed by the United States in Congress assembled, and all officers so appointed shall be commissioned by him, and in all cases where the United States in Congress assembled might by the said ordinance revoke any commission or remove from any office, the President is hereby declared to have the same power of revocation and removal.

"Section 2. And it is further enacted, That in case of the death, removal, resignation or necessary absence of the Governor of said Territory, the secretary thereof shall be and is hereby authorized and required to execute all the powers and perform all the duties of the Governor during the vacancy occasioned by the removal, resignation or necessary absence of said Governor." 8 Cf. Taney in Scott v. Sandford, 19 How. 393; 15 L. ed. 691.

In the Convention which framed the present Constitution the Virginia resolutions declared "that provision ought to be made for the admission of States lawfully arising within the limits of the United States whether from a voluntary juncture of government, transitory or otherwise, with the consent of a number of voices in the national legislature less than the whole." This was agreed to without debate in the committee of the whole. As reported by the Committee of Detail, the draft of the Constitution provided that "new States lawfully constituted or established within the limits of the United States may be admitted, by the legislature into the government; but to such admission the consent of two-thirds of the members present in each House shall be necessary."

In the Convention, in order to cover certain conditions then existing, especially the status of Vermont, this clause, after repeated amendments, was finally made to read: "New States may be admitted by the legislature into the Union; but no new States shall be hereafter founded or erected within the jurisdiction of any of the present States, without the consent of the legis lature of such State as well as of the general legislature."

As finally phrased by the Committee on Style and adopted by the Convention the clause reads: "New States may be admitted by the Congress into this Union; but no new State shall be founded or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the Congress.'

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During this course of evolution it will be seen that the limitation "within the limits of the United States" disappeared. It does not, however, appear from the debates just why these words. of limitation were omitted. From some expressions of opinion of the time, there is, nevertheless, evidence that the possibility and desirability of an expansion of the United States beyond the limits fixed by the treaty of 1783, was early recognized by men active in the framing and adoption of our present Constitution.

9 Art. XVII.

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 C'onstitution 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 circumstances 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 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 constitutional 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

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