Evening star. [volume] (Washington, D.C.) 1854-1972, 1901-05-28

| upon the one hand and deprived OF su
| power to protect the eovernmant o, a.
: other. ~
| And. looked at from another point of
| view, the TACT of the principle asserted Is
| equally antasonistic, not only to the ex-
| press provisions, bat to the spirit OF the
| Constitution in other respects Thus n N
| De true that the treaty making power has
the authority which it asserted what be-
comes of that branch of Congress which ia
| peculiarly the representative of the people
| or the United States, and what is left OF
the functions of that body under the Com
| stltution, for, although the House Of Rep
| resentatives may be unwilling to agree TO
| the Incorporation oc alien races. II would
De important to prevent its accomplish
| ment, and the express provisions confer
| ring upon Congress the power to regulate
| commerce, the right to raise revenue bills
for which by the Constitution provides
| must originate In the House OF Representa-
tives and the authority to prescribe uni
| fern naturalization laws would he in effect
| set at naught by the treaty making power
And the consequent result would be beyond
all future control Of or remedy 10y the
| American people. since at once and with
| ont hope Of redress or power of change in
! corporation by the treaty would have been
| brought about. The inconsistency of the
| position is at cone manifest.
| The basis Of the argument is that the
| treaty must be considered to have incor-
| porated because requisition presupposes
| the exercise of judgment to witness for
| immediate Incorporation But the deduc-
| ton drawn is, although the judgment ex-
| ercised is against immediate Incorporation
and the result is plainly expressed. the
| conditions are void because no judgment
| against incorporation can be called into
| play"
Disposfng of Territory.
| 1t was next declared that II II be true
| that incorporation arises Immediately from
| a treaty without the consent of Congress,
1t must be irrevocable. and no right would
exist thereafter to change 1t. Tor. although
| It has sometimes been said that the power
conferred by the Constitution to dispose
| of the territory and other property of the
| United States authorizes the relinquish-
ment of sovereignty over territory Of the
| United States, this view is generally ad-
| mitted only by the people who claim that
| the Constitution does not follow the flag,
| and the argument, therefore is directly OPP
| posed to the theory Of immediate incorpo-
/ ration.
| Reference was made to the opinions Of
| Washington and jefferson to show that
| they thought that there was no power to
| dispose of sovereignty over q foot of Amer
lean territory.
| Reference was also made to the cession
OF North Carolina after the formation Of
the constitution of the territory how the
| state of Tennessee. and the question was
propounded can 1t be supposed that II was
| the intention to reserve the right to sell
| any other mere property the citizenship OF
the "Dauntless mountaineers of western
| North Carolina who shed luster the
Evolutionary armies at the battle OF
| Kings Mountain
But. the opinion says, II the right to dis
| pose of American citizens property be
| admitted. It must follow that if the treaty
making power cannot acquire upon condi-
! tion, it cannot sell subject to condition.
| and. therefore, If by the will of Congress
| it should be determined that the millions
| of the inhabitants of the Philippine Islands
| should not ultimately be brought into the
| United States and receive the blessings Of ,
! American citizenship, but should be dis
| posed of by allowing them to establish a
| government of their own, the United States
would be placed In a position where II
! could not attach any condition to the dis
| position, and therefore would not be able
to carry out its obligations under the
| treaty looking to the protection OF life
| and property and safeguarding against for
| eign interference
In other words. this must follow: II the
United States under the Constitution, when
acquiring by treaty must acquire uncondi-
tionally, II must dispose of such territory
If at all, Internationally.
What Constitutes Incorporation.
Coming to determine what constitutes In
corporation, the opinion points out that all
the land within the boundaries OF the
United States fixed by the treaty OF
peace with England which ended the revo-
lutionary war was a part of the United
States, that the territories which were
subsequently formed by the cessions from
the states were covered with a pledge that
they should forever be part of the United
composed of one people. enjoying citizen
ship, with common guarantees for life, lib
erty and property, although differing in
their political rights dependent upon
whether they lived in a state or territory
This political entity constituted the United
States.
The opinion goes to show that when the
Louisiana purchase was made the difficulty
in the minds of Mr.. jefferson and of those
connected with his administration was as
to the power to incorporate into the United
pnmnnSai ar al
1t says that Mr.. jefferson thought that an
amendment to the Constitution was neces1
sary for this purpose, but the view pre-
vailed that 1t was possible without an
| amendment to the Constitution.
The Case of Louisiana.
1t then points out that after the purchase
of Louisiana, although the treaty promised
incorporation into the United States, IT was
not done for several years. the territory in
the meantime being governed by Congress.
until finally, in 1906 the incorporation into .
the United States resulted by comforting
upon the inhabitants the same rights in the
same words those which were enjoyed
by the territorial citizens within the United
States at the time of the formatio of the
Constitution. Reference was made to the
treaty by which the Floridas were acquired
to show that 1t had the same effect. =.
The treaty by which the war with Mexico
was terminated was next alluded to, and at
tention was called to the fact that II not
only Incorporated but changed the bound
aries of the United States so as to accom-
plish this result, and reference was made
to the treaty of cession of Alaska, as illus-
trating the same thing.
Previous decisions Of the court were re-
ferred to, and II was said that they all es-
tablished the rule that Incorporation as a
consequence Of treaty, could not arise with.
out the express or implied assent of Con-
gress, speaking for the American people
that to hold the contrary would be to ad-
was subject to be divided at any tine with