definition of its objects must be a part, is in a sense the most essential part, of the peace settlement itself." The Cove nant of the League of part of the treaty In accordance with President Wilson's desires the Allies and the United States gave their first attention to the formation of a covenant for the League of Nations. This was an integral part of the treaty which Germany was forced to accept. The peace treaty was submitted to the United States Senate, July 10, 1919, and debated for four months. Efforts to amend the treaty proved unavailing. The majority of the Senate, which was Republican, adopted reservations which in the opinion of President Wilson nullified the purpose of the treaty. He therefore urged the Democrats to vote against the ratification rather than to accept such reservations. This was done, and the Senate. adjourned November 19, 1919. The Senate ratify the treaty with refuses to reservations Clauses in the Consti tution from which the power to acquire territory might be derived Admission composed of the time of CHAPTER XXII THE GOVERNMENT OF TERRITORIES THE POWER OF THE UNITED STATES TO ACQUIRE TERRITORY The Constitution of the United States makes no express provision for the acquisition of territory. This right, however, has been derived at various times from the following sources: (1) the power to admit new states into the Union,1 (2) the power to make treaties,2 (3) the power to declare and carry on war,3 (4) the power, as a sovereign state, to acquire territory by discovery and occupation or by the methods recognized as proper by international usage.1 At the time of the adoption of the Constitution the United States possessed vast territory not included within the boundaries of any of the States. This was the Northwest Territory, ceded to the old Confederation with the intention of being ultimately divided into states and admitted into the Union. The Constitution itself, moreover, provides that Congress may admit new states and contains limitations upon the exercise of this power. Therefore it is wholly fair to assume that the framers of the Constitution fully expected that this power would be used, as indeed it was by the admission of Kentucky in 1792, of Tennessee in 1796, and of Ohio in 1803. But these states were composed of territory taken from that already in the possession of the United States or one of the states when the Constitution was adopted. Another and more difficult problem arose over the acquisition of the Louisiana territory. Jefferson evidently had some doubts as to his power and suggested a constitutional 1 The Constitution of the United States, Article IV, Sect. iii, clause 1. 2 Ibid. Article II, Sect. ii, clause 2. 8 Ibid. Article I, Sect. viii, clause 11. See W. W. Willoughby, The Constitutional Law of the United States, Vol. I, p. 325. amendment to remove them.' If the power to admit states alone be relied upon to permit acquisitions it is quite probable that Jefferson's scruples were well founded and that constitutional amendment might be necessary. held that might acquire terconquest ritory by But the power to acquire territory through war or treaty stands Marshall on no such dubious ground. Thus, in dealing with a case arising United out of the acquisition of Florida, Marshall held as follows: "The States Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty."2 This position has been affirmed again and again and finally restated in that most complete reëxamination of the subject, the so-called "Insular Cases." or treaty a war can assumed to never be be carried on for the In all of these cases, however, the acquisition of territory is regarded simply as a means for carrying on war and conducting foreign relations. Nowhere is it clearly stated that the Constitution authorizes a war for conquest; in fact, the reverse is true, acquisition of territory as was emphatically stated in 1850: But the genius and character of our institutions are peaceful, and the power to declare war was not conferred upon Congress for the purposes of aggrandizement, but to enable the general government to vindicate by arms, if it should become necessary, its own rights and the rights of its citizens. A war, therefore, declared by Congress, can never be presumed to be waged for the purpose of conquest or the acquisition of territory; nor does the law declaring war imply an authority to the president to enlarge the limits of the United States by subjugating the enemy's territory. Another possible source of power is found in the fact that in international affairs the general government is considered to 1 He seems to have drawn a distinction between the power to acquire territory and the power to incorporate it into the Union. Thus, in January, 1803, he wrote to Gallatin: "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." Quoted by W. W. Willoughby, The Constitutional Law of the United States, Vol. I, p. 330. 2 American Insurance Co. v. Canter, 1 Peters, 511, 542. Fleming v. Page, 9 How. 603, 614. Territory may be the United possess all the powers of other sovereign independent states except those expressly withheld from it by the Constitution. This doctrine has been sanctioned by the court in these words : The United States are a sovereign and independent nation, and are vested by the Constitution with the entire control of international relations, and with all the powers of government necessary to maintain that control and to make it effective.1 According to this doctrine the United States may, like any acquired by other independent sovereign state, conduct foreign relations and annex territory. Indeed, in numerous instances this has been done. American citizens, acting upon the authority of the Guano Law of 1856, have acquired, by discovery, places over which the United States exercises jurisdiction. This has been approved by the court in these words: States as by any sovereign state Territory acquired by statute Territory acquired by treaty By the law of nations, recognized by all civilized states, dominion of new territory may be acquired by discovery and occupation. ... This principle affords ample warrant for the legislation of Congress concerning Guano Islands.2 The United States has acquired territory in three ways, by statute, by treaty, and by joint resolution. The Guano Islands Act of 1856,3 just referred to, provides: Whenever any citizen of the United States shall" discover a deposit of guano on any island, rock or key, not within the lawful jurisdiction of any other government, and not occupied by the citizens of any other government, and shall take peaceable possession thereof and occupy the same, such island, rock, or key may, at the discretion of the President of the United States, be considered as appertaining to the United States." By this means the jurisdiction of the United States has been extended over nearly a hundred places. The constitutionality of this has just been discussed. The usual method, however, of acquiring territory is by treaty. Such treaties, like all other treaties, are negotiated 1 Fong Yue Ting v. United States, 149 U. S. 698, 711. 2 Jones v. United States, 137 U. S. 202, 212. 3 Revised Statutes of United States, Sects. 5570-5578. For a discussion of this subject see J. B. Moore, A Digest of International Law, Vol. I, pp. 556–580. by the president and require the approval of two thirds of the Senate before becoming binding. In addition, in treaties annexing territory, the action of the House in making the appropriation called for is generally necessary. acquired resolution The third method of territorial acquisition is by joint resolu- Territory tion. This has been employed twice. In the case of Texas, by joint when the annexation treaty failed to obtain the necessary twothirds vote, a joint resolution was passed, which required but a bare majority of both Houses. The same method was employed in the case of Hawaii, after it became apparent that the treaty would not obtain the necessary majority. If territory may be annexed by the passage of a statute, which requires but a majority vote, there is no reason to question the constitutionality of annexation by a joint resolution instead of a treaty. THE POWER OF THE UNITED STATES TO GOVERN TERRITORY the United States to govern territory un The power of the United States to govern territory not within Power of the boundaries of any state has never been questioned. This power may be derived from three different sources: from the express power given to Congress to make rules and regulations questioned respecting the territory belonging to the United States,1 the implied power derived from the right to acquire territory, and "the power implied from the fact that the states admittedly not having the power, and the power having to exist somewhere, it must rest in the federal government."2 Thus, in 1810, Marshall held concerning the territory of Orleans: The power of governing and legislating for a territory is the inevitable consequence of the right to acquire and to hold territory. Could this position be contested, the Constitution of the United States declares that "Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." Accordingly, we find Congress possessing and exercising the absolute and undisputed power of governing and legislating for the territory of Orleans. 1 The Constitution of the United States, Article IV, Sect. iii, clause 2. |