Problems of Expansion Part 12

APPENDICES

1. POWER TO ACQUIRE AND GOVERN TERRITORY.

2. THE TARIFF IN UNITED STATES TERRITORY.

3. THE RESOLUTIONS OF CONGRESS AS TO CUBA.

4. THE PROTOCOL OF WAs.h.i.+NGTON.

5. THE PEACE OF PARIS.

1

POWER TO ACQUIRE AND GOVERN TERRITORY

_The United States has as much power as any other Government._

"The Const.i.tution of the United States established a Government, and not a league, compact, or partners.h.i.+p.... As a Government it was invested with all the attributes of sovereignty.... It is not only a Government, but it is a National Government, and the only Government in this country that has the character of nationality.... Such being the character of the General Government, it seems to be a self-evident proposition that it is invested with all those inherent and implied powers which, at the time of adopting the Const.i.tution, were generally considered to belong to every Government as such, and as being essential to the exercise of its functions." (Mr. Justice Bradley, United States Supreme Court, Legal Tender Cases, 12 Wall. 554.)

_The United States can acquire territory by conquest or by treaty, as a condition of peace or as indemnity._

"The United States ... may extend its boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace, in order to indemnify its citizens for the injuries they have suffered, or to reimburse the Government for the expenses of the war. But this can only be done by the treaty-making power or the legislative authority."

(United States Supreme Court, Fleming _et al. v._ Page, 9 How. 614.)

_The United States can have a valid t.i.tle by conquest to territory not a part of the Union._

"By the laws and usages of nations, conquest is a valid t.i.tle.... As regarded by all other nations it [Tampico] was a part of the United States, and belonged to them as exclusively as a Territory included in our established boundaries, but yet it was not a part of the Union."

(United States Supreme Court, Fleming _et al. v._ Page, 9 How.

603-615.)

_A t.i.tle so acquired by the United States cannot be questioned in its courts._

"If those departments which are intrusted with the foreign intercourse of the Nation ... have unequivocally a.s.serted its rights of dominion over a country of which it is in possession and which it claims under a treaty, if the legislature has acted on the construction thus a.s.serted, it is not in its own courts that this construction is to be denied. A question like this, respecting the boundaries of a nation, is ... more a political than a legal question, and in its discussion the courts of every country must respect the p.r.o.nounced will of the legislature."

(Mr. Chief Justice Marshall, Foster _et al. v._ Neilson, 2 Peters 253, 309.)

_Yet such territory may be still outside the United States_ (meaning thereby the American Union organized by the Const.i.tution--the Nation), _and cannot get in without action by the political authorities_.

"The boundaries of the United States, as they existed when war was declared against Mexico, were not extended by the conquest.... They remained unchanged. And every place which was out of the limits of the United States, as previously established by the political authorities of the Government, was still foreign." (Fleming _et al. v._ Page, 9 How. 616.)

_The United States can govern such territory as it pleases. Thus it can withhold any power of local legislation._

"Possessing the power to erect a Territorial government for Alaska, they could confer upon it such powers, judicial and executive, as they deemed most suitable to the necessities of the inhabitants. It was unquestionably within the const.i.tutional power of Congress to withhold from the inhabitants of Alaska the power to legislate and make laws. In the absence, then, of any law-making power in the Territory, to what source must the people look for the laws by which they are to be governed? This question can admit of but one answer. Congress is the only law-making power for Alaska." (United States _v._ Nelson, 29 Fed.

Rep. 202, 205, 206.)

_Mr. Jefferson even held that the United States could sell territory, hold it as a colony, or regulate its commerce as it pleased._

"The Territory [Louisiana] was purchased by the United States in their confederate capacity, and may be disposed of by them at their pleasure.

It is in the nature of a colony whose commerce may be regulated without any reference to the Const.i.tution." (And Louisiana was so governed for years after the purchase, with different tariff requirements from those of the United States, and without trial by jury in civil cases.)

_Again, the United States may even_ (as in the case of Consular Courts) _withhold the right of trial by jury_.

"By the Const.i.tution a government is ordained and established 'for the United States of America,' and not for countries outside of their limits. The guaranties it affords against accusation of capital or infamous crimes, except by indictment or presentment by a grand jury, and for an impartial trial by a jury when thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere, and not to residents or temporary sojourners abroad. The Const.i.tution can have no operation in another country." (_In re_ Ross, 140 U.S. 463, 465.) (In this case the prisoner insisted that the refusal to allow him a trial by jury was a fatal defect in the jurisdiction exercised by the court, and rendered its judgment absolutely void.)

_The United States can govern such territory through Congress._

"At the time the Const.i.tution was formed the limits of the territory over which it was to operate were generally defined and recognized.

These States, this territory, and future States to be admitted into the Union, are _the sole objects of the Const.i.tution_. There is no express provision whatever made in the Const.i.tution for the acquisition or government of territories beyond those limits. The right, therefore, of acquiring territory is altogether incidental to the treaty-making power, and perhaps to the power of admitting new States into the Union; and the government of such acquisitions is, of course, left to the legislative power of the Union, as far as that power is controlled by treaty." (Mr. Justice Johnson of the Supreme Court, sitting in the Circuit, in Am. Ins. Co. _v._ Canter, 1 Pet. 517.)

Mr. Chief Justice Marshall, affirming the above decision, says:

"Perhaps the power of governing a Territory belonging to the United States which has not, by becoming a State, acquired the means of self-government, may result necessarily from the facts that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned." (1 Pet. 541, 542.)

_The General Government exercises a sovereignty independent of the Const.i.tution._

"Their people [in organized Territories] do not const.i.tute a sovereign power. All political authority exercised therein is derived [not from the Const.i.tution, but] from the General Government." (Snow _v._ United States, 18 Wall. 317, 320.)

_The General Government is expected, however, to be controlled as to personal and civil rights by the general principles of the Const.i.tution._

"The personal and civil rights of the inhabitants of the Territories are secured to them, as to other citizens, by the principles of const.i.tutional liberty which restrain all the agencies of government."

(Murphy _v._ Ramsay, 114 U.S. 15, 44, 45.)

"Doubtless Congress, in legislating for the Territories, would be subject to those fundamental limitations in favor of personal rights which are formulated in the Const.i.tution and its amendments; but these limitations would exist rather by inference and the general spirit of the Const.i.tution, from which Congress derives all its powers, than by any express and direct application of its provisions." (Mormon Church _v._ United States, 136 U.S. 1, 44; Thompson _v._ Utah, 170 U.S. 343, 349.)

2

THE TARIFF IN UNITED STATES TERRITORY

The one point at which the opponents of the doctrine that Congress can govern the Territories as it pleases are able to make a prima facie case by quoting a decision of the Supreme Court, is as to the application of the United States tariff to the Territories. When California was acquired, but before Congress had acted or a Collection District had been established, the Supreme Court sustained the demand for duties under the United States tariff on goods landed at California ports (Cross _v._ Harrison, 16 How. 164). Mr. Justice Wayne said: