The sun. [volume] (New York [N.Y.]) 1833-1916, 1897-12-15
Tho Hawaiian Treaty Not Unoonstitu-
tional.

years age, was Chief Justice OF the Supreme
Court of Pennsylvania, appears again In
print. at the age of 80, to oppose the an
nexation Of Hawaii, either by treaty or by
joint resolution of Congress. His objec-
tions to the Mckinley treaty, which are set
forth in the December Forum, are sub
stantially the same as those which he
urged against the Harrison treaty, and
they can be, therefore, as easily refuted.
Annexation, Judge AGNEw says, is I'M
constitutional, for the reason that there is
no express power in the Constitution to ac-
quirc and incorporate a foreign territory
and people into the Union. That was the
assertion made by the Federalist opponents
Of the purchase of Louisiana, and 1t is we'll
known that JEFFERSON, who, up to that
time, had been a strict constructionist ex.
pressed some doubt concerning his own
authority and that Of the Senate in the
premises. The common sense of the coun.
try, however, held at the time, and has
held ever since, that an implied power to
safeguard itself against exterior dangers
by annexation must be presumed to be
vested in our Federal Government, as in
every other Government to which the right
of self,prcservation is conceded. The
power exercised for the first time by JET.
PERSON in the case of the Louisiana
territory has been five times exer-
cised since his day. We refer, Of course,
to the case of Florida in 1921, to that
of Texas in 1916. to that of the ter
%ritories gained from Mexico by treaty in
1913, that of the so.called Gadsden Pur-
chase, a little later, and finally tina of
Alaska In 1877 IL fboua ,;v
annexations were invalid for the reason
that the implied powers exercised by the
Executive and Senate or by Congress could
not be properly deduced from the Con.
stitution, the fact would lave been long
since proclaimed by the United States
Supreme Court. Innumerable have been
the cases brought before that tribunal in
which the fundamental question whether
the six territories in question had been
properly Incorporated with the United
States has been urged, but never has 1t
been urged successfully. The question of
the constitutionality of annexation, there
fore, must be pronounced res adjudicata,
and it is too late even for the venerable ex-
Chief Justice of Pennsylvania to raise it.
Judge AGNEw, indeed, admits that there
are precedents for annexation, and men,
tions all of them, except the Gadsden Pur-
chase, but he contends that they are not
to the point. The purchases of Louisiana,
Florida, and Alaska, he says, were justi.
fled "by an overruling necessity for the
national safety He does not allege that
the acquisition of Texas, of California,
and New Mexico, and of the Gadsden Pur.
chase were so justified. Let us take I'D,
first, the three precedents to which he
gives particular attention. 1t is certainly
true, as he says, that the purchase of Louis
lana was ian overwhelming necessity to
free the United States from an intolcrable
burden" What was that burden? 1t was
the breach by Spain of the treaty of l795.
whereby she had granted to citizens of the
United States n right of navigating the
Mississippi and of depositing merchan.
disc at New Orleans. With respect
to this matter, however, the Federal
lists pointed out that, in 1903, the
year In which the purchase was made,
Louisiana was the property of Franco, and
that we had no right to assume that a
treaty giving us adequate privileges could
not be negotiated with France and would
not be duly observed by that power. That
is precisely what the opponents of the an
nexation of Hawaii say. They tell us that
we can get by treaty with the Honolulu
Government all the coaling and repair
ing facilities we need in the Hawaiian
Islands. The rejoinder made to the
federalists In 1903 is as pertinent now
MS 1t was then. No doubt. replied the
friends OF JEFFERSON, a treaty could be
made with France, and, presumably, it
would be observed, so long as France con.
trolied Louisiana. But how long would
she be able to control it in the event of a
war with England, which would be domi.
nant at seat So with our coaling and re.
pairing station in Hawaii. No doubt It
would be serviceable so long as the Homo.
lulu Government should be able to main.
tain its independence. But how long could
ina government, single-handed, maintain
itself against England or Japan2
The purchase OF Florida was completed.
as we have said, in 1921, when the King
OF spain reluctantly affixed his signature
to the treaty which had been negotiated
TWO years before. The annexation of this
territory meets with the approval of Judge
AGNEw, on the ground that it was ian
imperative necessity to free the United
S'SuppI WHOSE HOSIlllTy
Kept us In constant alarm" Would not
Judge AGNEw have equally approved the
purchase even had no hostility been shown
10 us by the Inhabitants of Florida, in order
10 prevent That territory from again becom.
ing the property OF Great Britain, which. as
he VIII recall, possessed it during a consid.
cradle part OF the last century, 1t Is. how.
ever WIN regard to Alaska that Judge
AGNEw finds it most difficult to show hat
no precedent is afforded for the acquisition
OF Hawaii. "If Alaska fell" he saws, "into
the possession of Great Britain, it would
give her great power to annoy us, and to
make further claims upon our Pacific ter.
~ritory.'
what possible power to annoy us and
make further claims upon our Pacific ter.