Though not perfectly clear upon the point, it would seem that Jefferson drew a distinction between the constitutional power of the United States to extend its sovereignty over additional territory and to "incorporate" it in the United States as a part thereof; and that his constitutional qualms were excited rather by the exercise of the latter power than of the former. In answer to a letter of Gallatin he wrote (January, 1803): "There is no constitutional difficulty as to the acquisition of territory, and whether when acquired it may be taken into the Union by the Constitution as it now stands will become a question of expediency. I think it will be safer not to permit the enlargement of the Union but by the amendment of the Constitution."

In the first of the drafts of a constitutional amendment which, for this purpose, Jefferson drew up, it was provided that, "The Province of Louisiana is incorporated with the United States and made a part thereof." The second draft provided that, "Louisiana as ceded by France to the United States is made a part of the United States. Its white inhabitants shall be citizens and stand, as to their rights and obligations, on the same footing with the citizens of the United States in analogous situations." 12

The question of the annexation of territory without "incorporation" into the United States will be discussed in Chapters XXIX and XXX.

Jefferson stood by no means alone in his doubts as to the constitutional power of the United States to annex and incorporate the intention was to permit Congress to admit into the Union new States which should be formed out of the territory for which and under whose authority alone they were acting. I do not believe it was meant that they night receive England, Holland, Ireland, etc., into it, which would be the case in your construction. When an instrument admits of two constructions. one safe and the other dangerous, the one precise, the other indefinite, I prefer that which is safe and precise. I had rather risk enlargement of power from the nation where it is found necessary than to assume it by a construction which makes our powers boundless."

12 For other declarations of Jefferson upon this point, and a review of the debates in Congress concerning the Louisiana purchase, see Downes v. Bidwell, 182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088, and the argument of the Attorney-General in Goetze v. United States, The Insular Cases, H. R. Doc., 509, 56th Cong., 2d Sess., pp. 152 et seq.

Louisiana, but these doubts were not sufficiently general to lead the people to give expressly by constitutional amendment that right, the implied existence of which was questioned.13

With regard to deriving the power to annex from the power to admit new States, it may be observed that not only is reference to this source for authority unnecessary, but, when appealed to, would not seem to yield to the National Government as ample powers as are furnished it when the treaty and war powers are relied upon.14

It may further be observed that when recourse is had to the power to admit new States for the authority to annex foreign

13 In the debates attendant upon the annexation of Texas, Choate in the Senate and Winthrop, Brangle, and Barnard in the House argued that the United States was without constitutional authority to annex foreign territory (Cong. Globe, 28th Cong., 2d Sess.). In 1838 when the annexation of Texas was being agitated, J. Q. Adams in the House of Representatives offered the following resolution: "Resolved, that the power of annexing the people of any independent foreign State to the Union is a power not delegated by the Constitution of the United States to their Congress, or to any department of the government, but reserved by the people. That any attempt by act of Congress or by treaty would be a usurpation of power, unlawful and void, and which it would be the right and the duty of the free people of the Union to resist and avoid."

Continuing, he declared, that, if annexed, it would be such a violation of the national compact as "not only inevitably to result in a dissolution of the Union, but fully to justify it, and we not only assert that the people of the free States ought not to submit to it, but we say with confidence that they would not submit to it." Many Southerners, on the other hand, asserted that if Texas were not admitted, they would destroy the Union.

14" If it [the power of annexation] is to be implied only from the latter power [the right to admit new States], it would seem quite reasonable to hold that it could be exercised in any case only for the purpose of creating a new State out of the acquired territory, and there would be no power to govern it except for that purpose, but the right of Congress to admit the acquired territory as a State or States, or to refuse to do so, according to its own judgment and discretion, is universally admitted, and, therefore, it would seem to follow that the power to acquire and govern cannot be derived from the power to admit, for, if it did, all territory acquired by either of the methods stated would have to be converted into a State or States. It may be said that no territory ought to be acquired which cannot be ultimately fitted for admission as a State or States but this is a political and not a judicial question." Address of John G. Carlisle before the American Bar Association, 1902.

territory considerable support is given to the position that, in exercising it, the consent of the other States should be obtained. Thus at the time of the debate in Congress over the purchase of Louisiana, Pickering, who did not deny the right of the United States to acquire new territory by conquest or purchase to be held and governed as dependent territory, denied that territory could be annexed with the pledge that it should be divided up and admitted as States into the Union, unless the consent of the copartner States were obtained. Griswold took much the same view. He contended that "the Union of the States was formed on the principles of a copartnership, and it would be absurd to suppose that the agents of the parties who have been appointed to execute the business of the compact, could admit a new partner without the consent of the parties themselves." 15

§ 148. Territories as Embryo States.

There can be no question but that it was the general intention at the time that the Constitution was adopted that all the territory then under the sovereignty of the United States and not included within the limits of any one of the then several States should ultimately be divided up and admitted as States into the Union.

It will be remembered that the Ordinance for the government of the Northwest Territory provided that "There shall be formed in the said territory not less than three nor more than five States. And... such State shall be admitted

. . on an equal footing with the original States, in all respects whatever; and shall be at liberty to form a permanent Constitution and state government.16

The treaty which provided for the cession of Louisiana to the United States declared that "The inhabitants of the ceded territory shall be incorporated into the Union of the United States and admitted as soon as possible according to the principles of the federal Constitution to the enjoyment of all the rights, 15 Annals of Cong. 1803-4, p. 461.

16 Art. 5.

advantages, and immunities of the citizens of the United States."

17

In the treaty with Spain which confirmed the title of the United States to the Floridas the United States promised that "The inhabitants of the territories ... shall be incorporated in the Union of the United States as soon as it may be consistent with the principles of the Federal Constitution and admitted to the enjoyment of all the privileges, rights, and immunities of the citizens of the United States." " 18

In the treaty of 1848 with Mexico whereby Mexico relinquished its rights to Upper California and New Mexico the United States promised that "The Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican Republic conformably with what is stipulated in the preceding article, shall be incorporated in the Union of the United States and to be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States according to the principles of the Constitution." 19

In the treaty with Russia for the cession of Alaska the United States agreed that" The inhabitants of the ceded territory should be admitted to the enjoyment of all the rights, advantages and immunities of citizens of the United States." 20 In the provisions of all of these several treaties there is thus to be recognized the presence of the idea in the minds of those who framed and ratified them that the territories thus acquired were to be incorporated as integral elements in the United States and ultimately to be erected into States and admitted into the Union in full and equal fellowship with the original States. The consideration which led the ceding nations to have these promises inserted in the treaties of cession was the same which urges all nations in parting with portions of their territories and their inhabitants to provide, as far as possible, that their former citi

17 8 Stat. at L. 202. 18 8 Stat. at L. 256. 19 9 Stat, at L. 930.

20 15 Stat. at L. 542.

zens thus handed over to the control of a foreign power, shall not be oppressed but be treated on an equality with the other citizens of the annexing State.

Down to the time of the war of 1898 with Spain we find repeated utterances of public men and of the courts that all of the territories of the United States, originally owned and acquired, not already States, were destined for that status.21 Senator Hoar, indeed, declared in the Senate when the future of the Philippine Islands was being discussed, "I have been unable to find a single reputable authority more than twelve months old, for the power now claimed for Congress to govern dependent nations or territories not expected to become States. The contrary, until this war broke out, has been taken as too clear for reasonable question."

In support of the view that the holding permanently of territory not destined for statehood is foreign to, and not compatible with, our principles of government, the declarations of Jefferson, Madison, Monroe, J. Q. Adams, Webster, Calhoun, Clay, Reverdy Johnson, Berrien, Edward Everett, Seward, and Sumner have been quoted; and, of course, if Senator Hoar's statement be correct, this list might be almost indefinitely extended.

§ 149. Judicial Dicta. Taney's Views.

A certain number of dicta of the Supreme Court of the United States may also be found in which the language indicates an accepted assumption that the territories held by the United States were all ultimately to be erected into States. Thus in Loughborough v. Blake,22 Marshall, after referring to the attempt of Great Britain to tax her American colonies, said: "The difference between requiring a continent with an immense population to submit to be taxed by a government having no common interest with it, separated from it by a vast ocean and associated with it by no common feelings, and permitting the representatives of the

21 Alaska may be treated as an exception. This area, at the time of its annexation, had a very small population and it was not expected that this population would increase.

225 Wh. 317; 5 L. ed. 98.