The sun., 1900-10-02
A DEMoCRAT ANSWERS Mr.. HILL.
The Late @ Gorge Ttcknor Curtis. the Constitu'
uonsi Historian, On THIS nations Power
70 Acquire ana GoyeIn OntsIdl TeTrItoIy.

to Acquire and Govern Outsid, Territory.
To THE EDITOR or THE SUN-Sir! Neither
Mr.. Hill nor any other person can get a
thorough understanding Of the strange and In
volved case known as the Dred Scott case
until he reads carefully the mastery analysis
made by George Tlcknor Curtis In the posthu-
nous second volume OF his Constitutions al
History" edition OF 1900 In editing that
volume the writer found In the Boston Public
Library-and nowhere elsa copy OF Mr..
Curtis's argument in the Dred Scott case on
the historico-legal principles involved; Mr.
Blair being his associate on the special facts
chiefly. In the appendix a copy OF Mr.. Curtis's
argument Is added
Nowhere have seen any argument so strong
on principle in support OF the power OF the
, United States 10 acquire and govern foreign
territory. | wish every student of Constitu-
uonal law. every man really thoughtful over
present issues. would read that argument
Let me quote portion only.
Mr.. Curtis had previously declared that
Congress had no lawful power to legislate In
derogatIon Of the personal rights named In that
portion OF the Constitution commonly called the
Bill Of Rights those rights necessarily accrue
to tho inhabitants Of every territorial posses
sion We acquire. Continuing. Mr.. Curtis said
tvol H.. Curtiss "Constitu tional History OF the
bhi'oN DNo'ts iooos " olo's
II only remains for me 10 submit to the oonsiders-
ton Of the Court the view which entertain Of the
right OF acquiring territory. and OF the power OF
erninE II when acquired In order To see whether the
territorial clause as II Is sometimes called. Is or Is
not applicable to possessions acquired by conquest or
treaty with foreign Power. and II So when It's appu.
cation can be said TO commence.
His not probable so far as have been able TO
ascertain that the trainers Of the Constitution the
80 a
expressly contemplated the acquisition OF any terri
tory In addition to that ceded by Virginia northwest
OF the Ohio, excepting such as might be ceded by
some OF the other States under similar crcum Instances
and for the same purpoSea
Although the hight to navigate the Mississippi
through It's outlet TO the was for long time be
fore the Constitution and inmedia, at that time a
subject Of national consideration and OF actual nego
tation with Spain, II does not appear. 50 far as
know, that the people OF the United States then
hmplated the acquisition OF the country lying at the
mouth OF the river that they looked TO the acquls
on Of any other foteg gn territory The trainers Of the
Constitution. therefore shaped the territorial clause
ArL w, SEC with reference TO the special object Of
the formation and admission Of States TO bs
formed out OF the territory already within the limits
OF the United States and already ceded by OF the
States Of The Union but at the time they made IL
general provision by extending Il to other property
belonging 20 the United States; for these words
conceive, considering the context and the objects at
which the trainers were aiming must be construed to
mean other territorial property besides that intended
TO be described as the territory" which meant The
particular region northwest OF the Ohio.
But on the other hand are TO remember that this
Government possesses the great national and interna
tional powers OF making war and making treaties II
Is the settled doctrine Of this Court that these powers
involve the power Of acquiring territory, either BY
conquest by treaty; and upon this ground OF hight
acqui sitions have been made by treaty which have
been incorporated In the Union, To determine the
extent and Kind Of authority which this Government
may exercise over a conquered country We must look
10 the law OF nations.
Having the power OF making a conquest this Gov
eminent has all the powers over the conquered coun
try that are possessed by any nation when Il has
made a conquest 1t may be governed according TO
the pleasure Of tn. conqueror which pleasure Is
limited II at ALL only by the usages OF civilized ma
ilons in like cases
With respect to a country acquired by treaty II tho
treaty contains any sipulations concerning the treat
ment the nhabantS the power OF the nation rerelv
ing the oession is limited by those stpuauonS ltths
treaty Is silent the power Is the In the OF
conquest and It's nature and limits are TO be deter
mined BY the law OF nations. The power TO acquire,
In both forms is derived to the Government Of the
United States from the Constitution.
The right TO govern after III, acquisition Is made
Is CctlNcu from anu fHuldWu Uy lHf law OF HhNOus
and II is what Chief Justice Marshall described as
the Inevitable consequence OF the right To acquire
q Peters, 543.
From these posiions1t seems necessarily 10 follow
that when the United States makes an acquisition by
conquest by treaty ~ the treaty contains stip
ulatons that limit thei5 power they may hold and
govern the country acquired In any manner. and
for any length Of time in any manner. that
they may nt long, they choose to keep II in
he of a denendenrV IN he
They may give II a military government or a civil
government. or no government other than the arbi-
uary will Of Prooonsul; and this power continues
indefinitely until Congress shall determine that tho
country shall be incorporated into the Union. Whcn
that time arrves-and its arrival Is In the uncon-
tTolable judgment OF Congress In the absence OF
treaty stipuatlons-I submit that change takes
place with respect TO the OF the power 10 gov
ern and regulate
The American Union Is a peculiar Incorporation Of
States and he people OF States into general Govern
ment Into this Union no community Of people how
ever previously existing. can be admitted save In
peculiar form, known in our pollty as STATE" II
must have prepared republican form OF government
adapted to the Constitution Of the United States
When, therefore, Congress has decided that the
people Of such country shall have the privilege OF
erecting or forming themselves into a "Staie." the
power to govern them under the war treaty power
ceases for this manifest reason: that the continued
exercise Of power which Is arbitrary and despoc in
its nature Is nconS with the condition OF society
necessary the successful formation OF the insti-
tutons which 10 constitute what we call a
"State"
But before the State Is formed there must be an
interval and during that interval tn. authority of
the United States must in some form. and from some
source OF power, continue TO be exercised
The form ard the source Of power here appicable
are TO be found In the territorial clause
And so it seems that our greatest Constltu-
tonal historIan-a true Demoorat"-lal1 in
1855 the foundation OF an unassailable ar rgument
that upholds the present Administration In It's
Philippine policy.
JOSEPH CULBERrsoS CLAYTON.
NEW YORK, Sept. IS
Herr Ottendorfer on the Colonel.