The sun. [volume] (New York [N.Y.]) 1833-1916, 1899-01-20
A Legal Argument for Expansion.

Our right to acquire and hold foreign ter
ritory was the subject of the address deliv-
cred IN Wednesday by Mr.. CHARLES A
GARDINER before the New York State Bar
Association. The speakers purpose was
todemonstrate that all the problems con-
neeted with expansion are political and not
constitutional or judicial.
MI. GARDINER began by pointing out
that, 80 far as external and international re-
lations are concerned. the Federal Govern
ment possesses every sovereign power not
expressly prohibited by the Constitution. In
the Chinese exclusion cases the United States
Supreme Court held 1.-The United States, in
their relation to foreign countries, are one ma
tion invested with the powers which belong
to Independent nations" 1t follows that
any power possessed by any sovereignty is
possessed by the United States, and, unless
specifically prohibited by the Constitution,
can he exercised without restriction by
the Federal Government. The powers to
make war and treaties were not created
ny the Constitution; that instrument
merely designated agencies to exercise
them. Had no such agencies been desig-
mated, this nation would still have pos
sHssed the inherent self-defensive right
Of waging war and making treaties. The
right to acquire territory, irrespectively
ot Its situation, whether contiguous or
transmarine, has been recognized from the
beginning of history as a primary and sub
stantive attribute OF sovereignty. This
attribute Of a sovereign people, not being
specifically withheld in the Constitution, is
vested in the Federal Government. which,
30 far as external relations are concerned,
Is the sole agent and trustee OF the national
sovereignty.
Ma. GARDINER went on to argue that the
right toacquire distant territory may be also
derived from the enumerated constitutional
powers tn declare war and to make
treaties. THE Constitution said Chief
Justice MARSHALL, "confers absolutely Oh
the Government OF the Union the powers of
making war and OF making treaties con-
sequently that Government possesses the
power OF acquiring territory either by con-
quest or by treaty" A like opinion was
expressed by Mr.. Justice STORY THE
power OF tho United States TO acquire new
territory by cession or conquest does not
depend upon any specific grant in the Con-
Stitution to do so, but follows as an incl
dental power from its sovereignty over war
AID treaties" In the Mormon Church case,
Mr. Justice BRADLEY said: The power
to acquire territory Is derived from the
tr~eaty-making power and the power to de-
clare and carry on war"
Is It true that, by the mere act OF anuexa-
tion, the Constitution becomes operative n
the annexed territory, and its inhabitants
agquire all the rights and franchises guar
anteed by the Constitution to American
citizens? Mr.. GARDINER recalls that. in an
early case, Chief Jus .ce MARSHALL decided
that territory annexed did not ipso factO
derive rights from the Constitution. It's
only rights, he said, were those stipulated
in the treaty" or granted by Its aew mas
ter" 1t will be remembered that the pend
ing treaty with Spain provides: The
OWL rights and political status of Tho ma
two inhabitants of the territories here
by coded to the United States shall
be determined by the Congress" Mr..
Justice NELSON declared that terri
tories are not organized under the Con-
stltution. They are the creations exclu-
siyely Of the legislative department OF the
Government and subject to it's supervision
and control" The same principle was pro-
Nounced by Mr.. Justice BRADLEY: The
giant OF the power thus granted Ito terri
l8dsl depends entirely upon the organic
w Congress in each case, and is, at all
Asubject to such alterations as Con-