Page:Harvard Law Review Volume 12.djvu/415

395 GOVERNMENT OF ISLAND TERRITORY. 395 A broader scope, however, had plainly been given it, in an earlier case, while Chief Justice Marshall was on the bench. He was called upon to decide, first, whether foreign territory could be acquired by the United States, and then how, when acquired, it was to be held and governed. These questions had, a quarter of a century before, been hotly disputed in the political department of the government: they were to be hotly disputed again, a quarter of a century later, in the courts before his successors in office. He had no difficulty in confirming, as incident to the executive power, what his great adversary in national politics, who had recently passed away, President Jefferson, had at first hesitated to claim as a right, — the prerogative of acquiring new territory either by conquest or cession from a foreign power. The legislative department had not shared in Jefferson's doubts. The Louisiana purchase was a political event of far greater import- ance to the country than any of those which have marked the year 1898. It gave rise to animated discussion in both houses of Con- gress, but it may fairly be said that neither of the great parties of the day put in question the right of the President and Senate to make the treaty, and so bring the vast territory which it embraced under the sovereignty of the United States. The controverted points were, first, the policy of the measure, and, second, the nature of the relation created between the inhabitants whose allegiance was transferred and the soil itself, on the one hand, and the United States, on the other. It was claimed by some, in debate, to bring them under the flag but not into the Union; to make the people subjects rather than citizens, and the land on which they dwelt the property of our government, but no part, properly speaking, of the United States. We could hold it, they said, and control it, as a man can hold and control a farm which he has bought, by right of pro- prietorship, to be kept or sold, tilled or left fallow, at pleasure: it was, in short, a proper field for a strictly colonial government. A few asserted that the United States could set up no laws anywhere that were not founded on the consent of the governed.^ The question thus debated in the Fall of 1803 was a practical and pressing one. France had appointed, in June, a commissioner to deliver possession, and was anxious to get the purchase money into her treasury. The people who were the subject of the transfer • The debates are well summarized in Adams, Hist, of the United States, ii, 100-