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INCIDENTS IN THE HISTORY OF THE UNITED STATES INVOLV.
ING THE DOCTRINE THAT THE CONSTITUTION AND LAWS OF THE UNITED STATES EXTEND, EX PROPRIO VIGORE, OVER NEWLY ACQUIRED TERRITORY UPON THE ACQUISITION BEING COMPLETED.
[Submitted September 20, 1900.] Sir: On February 12, 1900, I submitted for your consideration a report on the status of the insular possessions of the United States, containing a review of the treatment accorded by the judicial branch of this Government to the doctrine of extension of the Constitution and laws of the United States, ex proprio vigore, over newly acquired territory upon the acquisition being completed.
In further compliance with your request I have the honor to submit a supplemental report respecting the treatment heretofore accorded said doctrine by the legislative and administrative branches of the Government of the United States, as shown by certain important incidents of our national history.
While it must be admitted that legislative precedent, departmental practice, or Executive action are without the binding force of judicial determination, yet the United States Supreme Court admonishes us as follows:
The construction placed upon the Constitution by the first act of 1790, and the act of 1802, by the men who were contemporary with its formation, many of whom were members of the convention that framed it, is of itself entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive. (Burrow-Giles Lith. Co. r. Saroney, 111 U. S., 53, 57.)
The practical construction of the Constitution, as given by so many acts of Congress and embracing almost the entire period of our national existence, should not be overruled unless upon a conviction that such legislation was clearly incompatible with the supreme law of the land. (Field v. Clark, 143 U. S., 649, 691, and authorities there cited.)
The first incident to which attention is directed is that presented by the debates in Congress ensuing upon the Louisiana purchase treaty being communicated to that body, which incident may be termed very appropriately, “The charge of imperialism preferred against Thomas Jefferson."
This charge was preferred against Jefferson by the opponents of his course in acquiring Louisiana and was pressed with equal vehemence by members of his own party and his political opponents.
The antiexpansionists of those days were certain that the course pursued by Jefferson, Madison, and Monroe in securing Louisiana had violated the Constitution, perverted the principles on which this Government is founded, destroyed the rights of man, and imperiled the continued existence of the Republic. They exhibited quite as much alarm as do the antiexpansionists of to-day.
The cry of imperialism raised against Jefferson was based upon the charge that by the treaty of purchase he had attempted to incorporate Louisiana into the United States and to confer upon Louisiana and its inhabitants, without the aid and consent of Congress, the rights, privileges, and benefits created and guaranteed by the Constitution.
In those days everybody conceded that the President and Senate could not incorporate foreign territory into the United States by an exercise of the treaty-making power any more than he could transfer one of the States to a foreign power by agreeing to a treaty containing such stipulation.
Neither could the President and Senate confer upon individuals the right to participate in this Government and exercise the powers of citizenship.
It was universally held that if these things could be done at all they must be accomplished by legislation; that the legislative powers must be invoked, and the House of Representatives and the Senate must exercise their legislative functions in regard thereto. That the President, acting with the advice of the Senate, and exercising only the authority to make treaties, should be able to accomplish this result, was declared to be absurd and a usurpation of authority possessed by kings and kings' councils, but not vested in the President and Senate of the United States.
The treaty for the purchase of Louisiana was assailed as an act of imperialism because it did not contain the reservations found in the late treaty of peace with Spain, and the Jefferson Administration was assailed as imperialistic because it was alleged to have attempted to do what the McKinley Administration refused to do.
Jefferson repelled the charge by showing that he was pursuing the course which was subsequently followed by the McKinley Administration.
In Jefferson's day the charge of imperialism was one to conjure with. Jefferson had used it against his opponents and did not relish its application to himself.
That Jefferson was an expansionist admits of no denial. His greatest glory was derived from the acquisition of Louisiana and his greatest humiliation resulted from his failure to secure West Florida.
When Jefferson was the American minister at Paris in 1786, he gave expression to his views on the future policy of the United States as to expansion, as follows:
Our confederacy must be viewed as the nest from which all America, North and South, is to be peopled. We should take care, too, not to think it for the interest of that great continent to press too soon on the Spaniards. These countries can not be in better hands. My fear is that they are too feeble to hold them till our population can be sufficiently advanced to gain it from them piece by piece. The navigation of the Mississippi we must have. This is all we are, as yet, ready to receive. (Writings of Jefferson, edited by H. A. Washington, vol. 1, pp. 517-518.)
At no time in our history were the people and public men of our country better informed as to the provisions and purposes of the Constitution and the fundamental principles and theories of our Government than in 1803, when the treaty for the purchase of Louisiana was entered into; for the Constitution had been recently formulated and adopted, and its every line exhaustively discussed throughout the country.
The same is true of our foreign relations. They occupied a larger segment in the public eye than they have in recent years. The earlier Presidents were all selected from men who had secured distinction in the field of diplomacy.
Nor was there in 1803 any lack of information as to the procedure to be followed in conveying the jus publica of land to the Federal Government. At the time the Constitution was adopted many of the original thirteen States owned unoccupied lands. Subsequently said lands were ceded to the Federal Government. The cessions were made as follows: New York, 1781; Virginia, 1784; Massachusetts, 1785; Connecticut, 1786; South Carolina, 1787; North Carolina, 1790; Georgia, 1802.
The sovereign State which had been the owner of the territory having consented to the transfer of title, the consent to receive title by the sovereign people of the United States was secured by an act of Congress, passed by the exercise of the sovereign power of legislation vested in Congress by the people, by which act the territory became incorporated into the public domain belonging to the Federal Government. (1 U. S. Stats., chap. 6, pp. 106-109.)
When the Louisiana treaty was received in Washington, Congress was not in session. Fearing complications with Spain, it was contemplated keeping secret the existence of the treaty until Congress should meet in regular session. But fears arose that Napoleon might change his mind regarding the sale, and thereupon the President convened Congress in extraordinary session on October 17, 1803. In his message to Congress, and with reference to the purchase and treaty, Jefferson said:
* * * the property and sovereignty of all Louisiana which has been restored to them (the French] have on certain conditions been transferred to the United States by instruments bearing date the 30th of April last. When these shall have received the constitutional sanction of the Senate, they will without delay be communicated to the Representatives also for the exercise of their functions as to those conditions which are within the powers vested by the Constitution in Congress.
With the wisdom of Congress it will rest to take those ulterior measures which may be necessary for the immediate occupation and temporary government of the country; for its incorporation into our Union; for rendering the change of government a blessing to our newly adopted brethren; for securing to them the rights of conscience and of property; for confirming to the Indian inhabitants their occupancy and self
government, establishing friendly and commercial relations with them, and for ascertaining the geography of the country acquired. (Messages and Papers of the Presidents, vol. 1, p. 358.)
The proposed treaty was on the same day sent to the Senate with a special message addressed to that body simply calling attention to what had been said in the message to both Houses. (Messages and Papers of the Presidents, vol. 1, p. 362.)
The Senate ratified the treaty, and thereafter and on October 21, 1803, President Jefferson sent a message to both Houses of Congress, in which he said:
In my communication to you of the 17th instant I informed you that conventions had been entered into with the Government of France for the cession of Louisiana to the United States. These, with the advice and consent of the Senate, having now been ratified and my ratification exchanged for that of the First Consul of France in due form, they are communicated to you for consideration in your legislative capruity. You will observe that some important conditions can not be carried into execution but with the aid of the Legislature, and that time presses a decision on them without delay. The ulterior provisions, also suggested in the same communication, for the occupation and government of the country will call for early attention. (Messages and Papers of the Presidents, vol. 1, pp. 362, 363.)
Randolph, of Virginia, presented the following resolution, which was referred to the Committee of the Whole House:
Resolved, That provision ought to be made for carrying into effect the treaty and convention concluded at Paris on the 30th day of April, 1803, between the United States of America and the French Republic. (Annals of Congress, 1803, p. 432.)
The opposition assailed the treaty as being unconstitutional because of the provisions of articles 3 and 7. Article 3 was as follows:
Art. 3. The inhabitants of the ceded territory shall be incorporated in 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, advantages, and immunities of citizens of the United States; and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.
Mr. G. Griswold, of New York, opened for the opposition by an attack on this article. From the report of his address in the Annals of Congress the following selections are quoted:
Here, then, is a compact between the French Government and that of the United States to admit to citizenship persons out of the jurisdiction of the United States as it now is and to admit territory out of the United States to be incorporated into the Union. He did not find in the Constitution such power vested in the President and Senate. * * * Mr. G. was of opinion that no such power was delegated to any department of the Government; but if such power was delegated to any department, it must be the Legislature. * * *
But if the right of extending our territory be given by the Constitution, its exercise is vested in the legislative branches of the Government. * * * He contended, therefore, that the power to incorporate new territory, * * * if it did exist, belonged to the Legislature and not the Executive, to incorporate it into the Union. If this were the case, it was the duty of the House to resist the usurped power exercised by the Executive. (Annals of Congress, 1803, pp. 432–133.)
Mr. Thatcher, of Massachusetts, said:
The confederation under which we now live is a partnership of States, and it is not competent to admit a new partner but with the consent of all the partners. If such power exists, it does not reside in the President and Senate. The Constitution says new States may be admitted by Congress. If this article of the Constitution authorizes the exercise of power under the treaty, it must reside with the Legislature and not with the President and Senate. (Annals of Congress, 1803, pp. 454–455.)
Mr. R. Griswold, of Connecticut, said:
It is perhaps somewhat difficult to ascertain the precise effect which it was intended to give the words which have been used in this stipulation. It is, however, clear that it was intended to incorporate the inhabitants of the ceded territory into the Union by the treaty itself, or to pledge the faith of the nation that such an incorporation should take place within a reasonable time. It is proper, therefore, to consider the question with a reference to both constructions.
It is in my opinion scarcely possible for any gentleman on this floor to advance an opinion that the President and Senate may add to the members of the Union by treaty whenever they please-or, in the words of this treaty, may “incorporate in the Union of the United States” a foreign nation who, from interest or ambition, may wish to become a member of our Government. Such a power would be directly repugnant to the original compact between the States, and a violation of the principles on which that compact was formed. It has been already well observed that the Union of the States was formed on the principle 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 in behalf of the principals could admit a new partner without the consent of the parties themselves. And yet if the first construction is assumed, such must be the case under this Constitution, and the President and Senate may admit at will any foreign nation into this copartnership without the consent of the States.
The Government of this country is formed by a union of States, and the people have declared that the Constitution was established “to form a more perfect union of the United States." The United States here mentioned can not be mistaken. They were the States then in existence, and such other new States as should be formed, within the then limits of the Union, conformably to the provisions of the Constitution. Every measure, therefore, which tends to infringe the perfect union of the States herein described is a violation of the first sentiment expressed in the Constitution. The incorporation of a foreign nation into the Union, so far from tending to preserve the Union, is a direct inroad upon it. It destroys the perfect union contemplated between the original parties by interposing an alien and a stranger to share the powers of government with them.
The Government of the United States was not formed for the purpose of distributing its principles and advantages to foreign nations. It was formed with the sole view of securing those blessings to ourselves and our posterity. It follows from these principles that no power can reside in any public functionary to contract any engagement, or to pursue any measure which shall change the union of the States. Nor was it necessary that any restrictive clause should have been inserted in the Constitution to restrain the public agents from exercising these extraordinary powers, because the restriction grows out of the nature of the Government. The President, with the advice of the Senate, has undoubtedly the right to form treaties; but in exercising these powers he can not barter away the Constitution or the rights of particular States. It is easy to conceive that it must have been considered very important by the original parties to the Constitution that the limits of the United States should not be extended. The Government having been formed by a union of