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The report of the conference committee was adopted by the Senate and House of Representatives, and thereby Congress declares that the cession of territory to the United States must be effected by legislative enactment; that is, the assent of both Houses of Congress must be secured.
At the time the Constitution was adopted 1; the thirteen original States many of them claimed to own unoccupied territory, in some (ases entirely detached from the State itself. These claims were in some instances conflicting. Several States claimed authority over the same area. The ownership of these western lands by individual States was distasteful to those States which did not share therein, mainly on the ground that the resources of the General Government, to which all contributed, were taxed for the protection and development of said regions, while the advantages inured to the benefit of but a few. On this ground several of the States l'efused to ratify the Constitution until this matter had been settled by the cession of these tracts to the General Government.
Moved by these arguments and by the consideration that the conflict of claims was pregnant with serious difficulties, Congress, by resolution of October 30, 1779, requested several of the States to forbear settling or issuing warrants or grants for said lands. This was transmitted to the different States. The several States claiming to own said lands responded to this request by transfers of the territory so claimed to the General Government. The first transfer was made by the State of New York on March 1, 1781, and the last by the State of Georgia April 24, 1802. I single instance will serve to show the course pursued. The general assembly of the State of North Carolina passed an act entitled "An act for the purpose of ceding to the United States of America certain western lands therein described."
Pursuant to the authority created by said act Samuel Johnston and Benjamin Hawkins, at that time United States Senators from North Carolina, executed a deed of cession of said lands to the United States and presented the same to the Senate of the United States. Thereupon the Senate and Ilouse of Representatives passed "An act to accept a cession of the claims of the State of North Carolina to a certain district of western territory." This aut recited that “a deed of cession having been executed, and in the Senate offered for acceptance to the United States of the claims of the State of North Carolina, to a district of territory therein described, which deed is in the words following:
Be it crurteil by the Senate and lIouse of Representutives of the Uniteil States of miriciu in Congress ressembleil, That saivl deed be, and the same is herehy, accepterl.
Approved, Ipril 2, 17.90). (1 V'. S. Stat., chap. 6, pp. 106, 109.)
It would seem that if Congressional legislation were necessary to complete the incorporation of territory into the United States upon
transfer from one of its component States, such Congressional action would be equally necessary where a transfer is from a foreign State.
That it is necessary to secure the ansent of ('ongress in order that the territorial boundaries of the United States may be extended to include the islands code by the late treaty of peace with Spain (Paris, 1898), and that sail treaty cloes not attempt to make such extension, is made plain by il comparison of said treaty with other treaties of cession to the United States and the procedure followed in regard thereto.
The treaty for the cession of Louisiana contained the following stipulations (8 L'. S. Stat., 200–202):
The First Consul of the French Republic, lesiring to give to the United States strong proof of his frienlslip, cloth hereby Kerle to the l'nited States, in the name of the French Republic, forever anil in full sovereignty, the said territory, with all its rights and appurtenances.
The inhabitants of the celleil territory shall be incorporated in the Union of the United States, and allmitted as soon as possibile, according to the principles of the Ferleral Constitution, to the enjoyment of all the rights, achantages, and immunities of citizens of the Cnited States; and in the meantime they shall be maintaineri inil protected in the free enjoyment of their liberty, property, and the religion they profess.
( Articles I anal :3, Treaty with France, 18033.) The
treaty of amity, settlement, and limits between the l'nited States and Spain (1819), whereby was comtirmed the title of the l'nited States to the expanse of country known as East and West Florida, contains the following stipulations ($ U. S. Stat., pp. 254 and 236):
ART. 2. Ilis ('atholic Majesty vedles to the United States, in full por party an -01ereignty, all the territories which belong to him situated to the castward of the Mississippi, known lay the name of East and West Floriila.
ART. 6. The inhabitants of the territories which IIis (atholie Majesty perles to the Uniterl States by this treaty shull brincoporated in the Union of the twitel Suter; its soon as may be consistent with the principles of the Federal (onstitution, and ailmitter to the enjoyment of all the privileges, rights, and immunities of the citizens of the United States.
In the treaty of 18+s, whereby Nexico relinquished the expanse of country known as I'mper California and New Mexico, resort was bail to the simple plan of ilsiguating the northerne burmalary of the Vericilie Republic. The reason for this was that the United States took the position that, having taken and occupied the capital of the Mexican Republic, its title was perfected by complete conquest, not only of Upper California and New Mexico, but of the entire Republic, and the question to be determined was how much should be restored by the United States, not how much should be ceded by Mexico. Being vanquished, Mexico was obliged to assent to the proposition, and hence the adoption of the plan followed. The treaty contained the following stipulation (9 ('. S. Stat., 930):
ART. 9. The Mexicans who, in the territories aforesaiil, shall not preserve the character of citizens of the Mexican Republic, conformably with what is stipulatell in the
preceding article, shall be incorporated into the Union of the United States, and be almitted at the proper time (to be juuged 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.
The treaty with Mexico (1853), whereby the United States acquired the territory known as the “Gadsden Purchase," was, primarily, a stipulation as to boundary. Article 1 provided as follows (10 U. S. Stat., 1032):
The Mexican Republic agrees toilesignate the following as her true limity with the United States for the future:
Then follows an exact description of the location of the boundary line and how the same shall be surveyed and marked. Said article continues:
The dividing line thus established shall, in all time, be faithfully respected by the two Governments, without any variation therein, unless of the express and free consent of the two, given in conformity to the principles of the law of nations and in accorilance with the constitution of each country, respectively.
The treaty with Russia (1867), whereby the United States acquired Alaska, contains the following stipulation (15 V. S. Stat., 539, 541, 5+2):
ARTICLE 1. Ilis Majesty the Emperor of all the Russias agrees to cede to the United States
all the territory and dominion now possessed by his said Majesty on the continent of America and in the alljacent islands, the same being contained within the geographical limits herein set forth, to wit:
ART. 2. In the cession of territory and dominion made by the preceding article are includleil the rights of property of all public lots,
which are not private individual property. Art. 3. The inhabitants of the celled territory
shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States.
What was accomplished by article 1 of the treaty ceding Alaska, upon the treaty being ratified and exchanged, is stated by Dawson, J., as follows (29) Fed. Rep., 205):
Upon the ratification by the President of the United States, by and with the advice and consent of the Senate, on the one part, and on the other by His Majesty the Emperor of all the Russias, and an exchange of those ratifications
the title of the soil in Alaska vested in the United States. (United States r. Nelson, 29 Fed. Rep., 202, 205.)
The expression “the title of the soil" as here used means the right of the sovereign or of jus publicum, not the right of a proprietor or of jus privatum.
The extension of the boundaries of the United States to include the Hawaiian Islands was accomplished by diplomatic negotiations, consummated by the passage, by the Senate and House of Representatives, and approval by the President, of a joint resolution reciting (30 U.S. Stat., 750)
That said cession is accepted, ratified, and confirmed, and that the said Hawaiian Islands and their dependencies be, and they are hereby, anne.red as a part of the territory of the United States and are subject so the sovereign dominion thereof.
It would be a work of supererogation to follow in detail the numerous acts of Congress whereby the various provisions of these several treaties were carried into execution and the boundaries of the United States extended to include the territory to which the treaties related. In each instance, however, it was accomplished by something more than entering into a treaty, although the manifest purpose and intent of the acquisition were to include such territory within our boundaries and such action was plainly contemplated in the treaties.
The stipulations of the treaty with France (Louisiana purchase, 1803) were made effective in and upon the l'nited States by two cuts of Congress. One was "An act to enable the President of the United States to take possession of the territories ceded by France to the United States by the treaty concluded at Paris on the 30th day of April last; and for the temporary government thereof," approved October 31, 1803. (2 U. S. Stats., 25.)
The other was "An act authorizing the creation of a stock, to the amount of $11,250,000, for the purpose of carrying into affect the convention of the 30th of April, 1803, between the United States of America and the French Republic. * "approved November 10, 1803. (2 U. S. Stats., 245.)
The act of October 31, 1803, was as follows: Die it enacted by the Senate nel llouse of Representatives of the literl States of America in congress assembled, That the President of the United States be, and he is hereby, authorizerl to take possession of aud Occupy the territory (elled by France to the United States by the treaty concluded at Paris on the thirtieth day of April last between the two nations; and that he may for that purpose, and in order to maintain in the said territories the authority of the Uniteil States, employ any part of the Army ani Vary of the United States, and of the force authorized by an act passed the third day of March last, intituleri "An act lirecting a detachment from the militia of the United States, and for erecting certain arsenals,” which he may deem necessary; and so much of the sum appropriated for the purpose of carrying this act into effect to be applied under the direction of the President of the United States.
SEC. 2. Ind be it further enactel, That until the expiration of the present session of Congress, unless provision for the temporary government of the said territories be sooner made by Congress, all the military, civil, anil julicial powers exercised by the officers of the existing government of the same shall be vested in such person and persons, anıl shall be exercised in such manner, as the President of the United States shall direct for maintaining and protecting the inhabitants of Louisiana in the free enjoyment of their liberty, property, and religion.
Although Congress had thus legislated directly for Louisiana and the inhabitants of that country, President Jefferson did not consider the territory bound and benefited by the Constitution, nor the inhabitants entitled to the rights, privileges, and immunities guaranteed by the Constitution to the inhabitants of the United States. Upon the passage of the act of October 31, 1803, Jefferson sent commissioners to New Orleans to secure the transfer of possession. He also authorized one of the commissioners, Governor Claiborne, to exercise the powers theretofore possessed by the Spanish governor-general and the Spanish intendant of the territory. Under the Spanish régime the governor-general of the territory had almost royal authority. He
promulgated ordinances which had the force of statutes, appointed and removed at pleasure commandants over local subdivisions of territory, and presided over the highest court. The intendant, however, was a counterpoise. He acted as a comptroller, and payments could be made by the public treasurer only on his warrant. He was also judge of the courts of admiralty and exchequer. (See Pub. Doc., Sth Cony. Abstract of Documents in the ottices of the Department of State and of the Treasury, Nov., 1803, pp. 33-41.)
code of laws, many of which were repugnant to the Constitution of the United States and the institutions of our Government, was left to be administered or superseded and replaced by others at the will of one man, iln agent of the Executive. There was a religious establishiment. Two canons and twenty-five curates received salaries from the public treasury. (Pub. Doc., Sth ('ong., Appendix 38.) All travelers, previous to circulating any news of importance, were bound to relate it to the syndic of the district, who was authorized to forbid its further circulation if he thought such prohibition would be for the public good. (Ibid., Appendix 71.) A son whose father was living could not sue without his consent, nor persons belonging to it religious order without that of their superior. (Ibid., Appendix 28.) A married woman convicted of adultery and her paramour were to be delivered up to the will of the husband, with the reserve, however, that if he killed one he must kill both. (Ibid., Appendix 16.) Ile who reviled the Saviour or the Virgin Mary was to be punished by having his tongue (•ut out and his property contiscated. (Ibid., Appendix t..)
The treaty with Spain (151:9) contirming the claims of the United States to East and West Florida was ratified by the Senate February 199, 1821, and thereafter Congress passed “An act for carrying into execution the treaty between the l'nited States and Spain," eten, approved March 3, 1821 (3 V'. S. Stat., 637). The territory so acquired was also the subject of much other legislation and other official action by the political powers of our Government treating it als being within the boundaries of the United States, such as creating therein the State of Alabama by an act passed March 2, 1819, nearly two years prior to the ratitication of the treaty. Indeed, the United States has never conceded that it derived title to the Floridas from Spain. "All that part of Alabama which lies between the thirty-tirst and thirty-fifth degrees of north latitude was ceded by the State of Georgia to the United States by deed bearing date the 24th day of April, 1802," and the remainder was acquired by the Louisiana purchase. (Pollard's Lessee ». Ilagun et al., 3 How., 212.)
The provisions of the treaty with Mexico (18+8) relating to the northern boundary of the Mexican Republic were made effective as to the United States by legislation making appropriations
For expenses in running and marking the boundary line between the l'nitert States and Mexico, marking the examinations contemplated by the sixth article of the treaty of Guadalupe Hidalgo.
(9 ('. S. Stat. L., pp. 301, 511, 614. li., 320, ser. 3; 10 1. S. Stat. L., Pls. 17, H, 119.