questions before the Supreme Court, which tribunal may decide them by divided opinions, as has happened in many cases involving political questions, it is impossible for the author of a text-book to predict in advance what the decision of that court will be, and it would be highly presumptuous on his part to declare what it should be; all that the author can do under such circumstances, therefore, is to call the attention of his readers, and those examining this subject, to the cases which have already been decided, and those which are now under consideration bearing upon this question.1

§ 67. Government of territories as affected by treaties of cession. So far we have only referred to the right of the United States Government to govern territory under provisions of the Constitution, and by virtue of its inherent. power to do so as an attribute of sovereignty and nationality. There are times, however, when the right to govern is affected by clauses or stipulations in a treaty by which the territory is ceded to the United States.

Questions arising under those stipulations do not form a part of the subject-matter of this volume; they will be considered in their proper place as a part of the effect of cessions of territory and change of sovereignty upon personal rights and liberties and upon laws and customs of the ceded territories. There are, however, a few specific instances which will be noted in this volume.

§ 68. Special clauses in treaty with Spain of 1898.-The right of the United States to govern the territories recently acquired from Spain will be complicated, so far as decisions of the pending cases already referred to are concerned, by the final clause in the ninth Article of the Treaty of Paris, which provides that the civil and political rights of the native inhabitants of the ceded territory shall be determined by the Congress of the United States.1

Undoubtedly when the United States is obliged to accept

§ 66.

1See cases collated in notes under $$ 61a-h, ante, since decided. $ 68.

1 The civil rights and political status of the native inhabitants of the territories hereby ceded to the

United States shall be determined by Congress." Article IX. Treaty with Spain, December 10, 1898, 30 U. S. Stat. at Large, p. 1759, and see treaty for other special clauses as to rights of inhabitants to renounce or retain allegiance.

territory as a part of an indemnity, or to definitely establish the title of the United States to territory conquered in war, the United States has the right to decline to accept the territory except under such conditions as it is willing to receive it; when a treaty, therefore, contains a stipulation that Congress shall determine the civil and political status of the inhabitants of territory so accepted, it must be admitted that the power of Congress to regulate, fix and determine that status shall not be limited by the same rules as limit Congressional action in regard to matters within the domain of the original States, or those which have been admitted to the Union on an equal basis. Unless the United States has the right to so qualify its acceptance of territory it might be placed in the position of being obliged to give full political rights to a population entirely diverse in nature, in some respects undesirable, and in any event unaccustomed to our methods of government.

§ 69. States' Rights and anti-expansion.-The States' Rights School and the anti-expansionists have certain elements in common, although they by no means constitute the same class. The States' Rights principles which were developed to the highest degree in the Southern States were by no means antagonistic to the acquisition of territory, for it was largely due to the Southern influence that our greatest acquisitions were made.

In so far, however, as limitations are placed upon the general government, the States' Right school and the anti-expansion school are almost identical; ever since the organization of our government there has been a faction, not necessarily limited to any particular part of the country, but always appearing whenever any acquisition was under consideration, which has opposed the extension of the boundaries of the United States. Under the leadership of Senator Pickering, it tried to prevent the purchase of Louisiana;1 the arguments,

§ 69.

shire and White of Delaware,

1 The Louisiana Purchase, by Representatives Griswold of ConBinger Hermann, Washington, Gov- necticut and Griffin of Virginia, ernment Printing Office, 1898. See all of whom expressed as their page 37 for views of Senator Pick- opinion that the annexation of ering of Massachusetts, Macy of Louisiana and its subsequent Connecticut, Plumer of New Hamp- incorporation into the Union as

though specious, for a moment frightened Jefferson to the extent of considering the necessity of a constitutional amendment specifically conferring the power to purchase territory and to govern it; he rose above his momentary fears, however, and declared that, as to such matters, the government had, and in fact, that it must have, the power to act for the sake of the existence and the safety of the Union. It again asserted itself when it tried to convince the Supreme Court that the government had no power to acquire Florida, or to govern it after its acquisition, but Chief Justice Marshall suppressed it with one of those opinions which left no uncertainty as to the rulings of the judicial side of the government. It protested against the annexation of Texas, although it must be said, the opposition in this case was mainly due to the fear of extension of slavery, and there are even some of the members of that party to-day who contend that the Lone Star State has no right to membership in the Union, although they admit that it may be too late to raise the question now, and that it might even be impolitic to raise it in some parts of the far Southwest. It raised a great shout of opposition to the purchase of Alaska, and Secretary Seward was derided for his successful negotiations with Russia resulting in the acquisition of what was then called "a garden of snow and ice," but which since then has proved of such inestimable value that a single group of islands has repaid the entire cost of the whole territory."

States were unconstitutional and could only be accomplished by the consent of every State or by a constitutional amendment.

2 In his brief in the Porto Rico Tariff cases (Goetze vs. United States) submitted to the Supreme Court in December, 1900, Attorney General Griggs devotes pages 31-40 to "Jefferson's doubts as to the constitutionality of the Louisiana Treaty." He declares that it is "a common error, long disseminated and many times repeated, to assert that Jefferson was under the belief that the United States had no

constitutional power to acquire foreign territory."

3 The constitution confers absolutely on the government of the Union the power of making wars and making treaties, consequently the government possesses the power of acquiring territory either by conquest or treaty." American Ins. Co. vs. Canter, U. S. Sup. Ct. 1828, 1 Peters, 511, p. 542, MARSHALL, Ch. J.

4 See the adverse opinions as to the value of Alaska expressed in Congress, July 1, 1868, by Mr. Orange Ferriss of New York, Mr.

§ 70. Policy of expansion and acquisition sustained by courts and people. This voice of opposition, as loud and as futile as ever, has been heard again within the last three years; ante-bellum doctrines of narrow construction have been revived by those who have called themselves at one time anti-expansionists, and at another, anti-imperialists. It is not the intention of the author to discuss the political issues raised by the recent transactions of the National gov ernment; but he alludes to the manner in which the people have sustained the administration as ample evidence of the fact that it has been generally acknowledged, that as to all matters not exclusively within the jurisdiction of any State, the Central Government possesses every attribute of nationality and sovereignty necessary to enable it to act for the general benefit of the people at large; and also that probably during the past three years the element of nationality has had a greater development in the minds of our people, in their capacity as "Americans,” than it has had since the pre-revolutionary days when the national spirit found expression in Patrick Henry's famous utterance: "Am I less a Virginian because I am an American?"

Again disavowing any intention to enter upon political discussion, the author feels that it must also be acknowledged that it has been owing to the wide scope of the treaty-making power, and the manner in which it has been exercised, by the United States from 1782, when our first treaty with France gave evidence of the great diplomatic ability of Franklin and his colleagues, to the present time when the treaty concluded at Paris with another power under the administration of Mr. McKinley, also gave evidence of the skill and ability of American diplomats and established the fact, that this country has reached a preeminent position among the nations of the earth; and that it must also be acknowledged that through the treaty-making power, and its proper and prudent exercise great advantages have been gained, which have inured to every State, and to citizens of every State and Territory.

Washburne of Wisconsin, Messrs. |lated on page 52 of Binger HerPrice of Iowa, Benjamin F. Butler mann's Louisiana Purchase, reof Massachusetts and others col-ferred to supra, note 1, § 69.

Surely it is not only a selfish position, but one also unfounded in fact or reason, to contend that as the number of States and the area and power of the Union increases, each State diminishes in relative importance. Which one of the thirteen original States would to-day exchange its position as one of the great integral factors of the United States with its present proportions and power, for its relative position of a century ago? The greater the Union-the greater the whole the greater each one of its component parts; the United States never has increased, and never will increase, either in area, power or in any other manner, except for the common benefit of every State and of every citizen in his dual capacity as a citizen of his own State and of the Union.

If to-day we hold a position in the world of greater strength and influence than we have ever held before-and who can doubt that such is the case-it is because we have overcome at last all petty prejudices and local jealousies, and have fully recognized and realized the great power and ability which is vested in our Central and National Government.

§ 71. Territorial Expansion the Cornerstone of American prosperity.-The broad views of such men as Marshall and Story during the great constructive period, and of the men who have followed them in the later post-bellum period, through which we have been, and are now, passing, including such eminent jurists as Justices Field, Bradley, Harlan and Gray, have sustained and strengthened the hands of the National Government, and have made the enlargement of our territory not only possible, but have caused it to result in practical benefits for every State and also for the citizens. of the States and of the territory acquired.

In fact, the history of the United States has demonstrated that the policy of expansion and acquisition of territory, based as it is upon the foundation of sovereignty and nationality of the Central Government, is the cornerstone of the great structure of the American Union which has been reared thereon.

The cornerstone must rest upon a sure foundation or the structure based upon it will collapse, but no structure built upon the cornerstone of our policy of expansion will ever