Page:The Green Bag (1889–1914), Volume 10.pdf/408

 A New Method of Acquiring Territory. authors that any foreign or independent na tion should ever be admitted into the Union as a State under the clause in question. The writer does not deny the power of the Federal Government to acquire territory; but he insists that if that is to be done at all, it must be done in accordance with the provisions of the Constitution; and unless it can be shown that this power has been therein conferred upon Congress either by express grant or by necessary implication, it does not exist, as according to Article X of the Amendments, The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. It is evident that the power to admit new States is one thing and that the power to acquire territory is another; and it is man ifest that the provision of the Constitution which confers upon Congress the former cannot also confer upon it the latter; and as it has already been shown that the first two clauses above quoted have no applica tion to this proceeding, the conclusion fol lows inevitably that the action of Congress under consideration was entirely without constitutional authority. There is no pretence that Hawaii has been admitted into the Union as a State, and that she is to be immediately represented in both Houses of Congress as are all the other States. On the contrary, she is to be held and governed as a Territory or as a Colony; and whether or not she will ever become a State and a member of the Federal Union remains to be determined at some future time. Unless the purpose of acquir ing these islands is to fit them for statehood, the Government of the United States has no constitutional power to hold them in a subject condition or to govern them as a Territory or as a Colony. In support of this contention the writer will quote the following paragraph from an opinion of the Supreme Court de livered during the December term, 1856:

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"There is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure, nor to enlarge its territorial limits in any way, except by the admission of new States. That power is plainly given; and if a new State is admitted, it needs no further legislation by Congress, because the Constitution itself defines the relative rights and powers, and duties of the State, and the citizens of the State, and the Federal Government. But no power is given to acquire a Territory to be held and governed permanently in that character."1 (Dred Scott vs. Sandford, 19 Howard, 446.) The writer contends that the provision of the Constitution authorizing Congress to ad mit new States was intended by its authors to apply only to such States as might be formed out of territory already belonging to the United States and out of such other ter ritory as it might afterwards acquire by the treaty-making power and by conquest, but that the clause was not designed to mean that a foreign nation can be immediately ad mitted into the Union without first having been acquired as a Territory in the manner just indicated. In support of this contention he will cite the opinion of Thomas Jefferson, who, in a letter addressed to Mr. Breckenridge on Aug. 12, 1803, asserted that "The Constitution has made no provision for our holding foreign territory, still less for in corporating foreign nations into our Union." (Jefferson's Works, Vol. IV. p. 500.) The same opinion is also expressed by him in an other letter addressed to Wilson C. Nichols on September 7 following, and published in the same volume on page 505. As this is the construction which was placed upon the Constitution by one of the most eminent statesman during the early period of our national history, and one, who, although not a member of the Constitutional Con 1 The italics are the writer's.