are sometimes stipulated for with the former sovereign, as was the case in the instances of Louisiana and Upper California, or omitted, as in the instance of the islands lately surrendered by Spain.

The opportunity to extend the boundaries of the United States may be afforded Congress by the successful conduct of a war by the Executive as the Commander in Chief of the Army and Navy, as in the war with Mexico; or by diplomatic negotiations, as in the instance of Louisiana; or by the proffer of the constituted authorities of the territory, as of Texas and the Hawaiian Islands; or by discovery, as of the Navassa Island; or by prior and long-continued occupation, as of Oregon.

The opportunity being afforded Congress, that body acts as its discretion determines. It may accept or reject as it sees fit. It was only after several years of deliberation that Congress completed the transfer of the Floridas and utterly rejected the proffer of Santo Domingo.

During the progress of the debate in the House on the Louisiana purchase treaty Mr. G. Griswold said:

If the right of extending our territory be given by the Constitution its exercise is vested in the legislative branches of the Government. (Annals of Congress, 1803–4, p. 433.)

John Randolph, of Virginia, said:

If the Government of the United States possess the constitutional power to acquire territory from foreign states, the Executive, as the organ by which we communicate with such states, must be the prime agent in negotiating such an acquisition. Conceding, then, that the power of confirming this act and annexing to the United States the territory thus acquired ultimately rests with Congress * of Congress, 1803-4, p. 436.)

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(Annals

Congress, having determined to accept the proffer of territory, may follow one of several procedures. In the instance of Texas the course pursued was to incorporate the existing State into the Union upon a footing of equality with the other States thereof. In the instance of the Hawaiian Islands the right was exercised by passing a joint resolution. In other instances the acquisition of territory was made by means of treaties duly negotiated and thereafter ratified by the Senate, approved by the Executive, an exchange of ratifications had and proclamation made, whereby the United States became bound and its national honor pledged to carry out the stipulations of the treaty. But in many respects a treaty is not self-operating.

It frequently happens that a treaty stipulates for that which can only be accomplished by Congressional enactment; in which case Congress, i. e.. the Senate and House of Representatives, must exercise the powers of legislation in regard thereto before such stipulation is effective. The ratification of a treaty by the Senate creates a contract but does not erecute it. When a treaty requires legislative enactments before it can become operative it will take effect as a national

compact on being proclaimed, but it can not become operative as to the particular engagements until the requisite legislation has taken place. (Foster et al. . Neilson, 2 Peters, 253, 314-315; United States . Arredondo, 6 Peters, 691, 734-735; Op. Atty. Gen., vol. 6, p. 750; also id., p. 296.)

The treaty with Great Britain, London, 1794, negotiated by Jay during Washington's Administration, was the first concluded with a foreign power by the United States under its present form of government. After its ratification this treaty was communicated to Congress for the information and guidance of that body in preparing the legislation necessary to render the treaty effective. The House of Representatives took the position that the assent of that body was necessary to the validity of a treaty. This was controverted by President Washington, and receded from by the House. (Annals, first session Fourth Congress, pp. 759-772.) Subsequently a resolution was introduced in the House that provision for rendering the treaty effective should be made by law duly enacted. This gave rise to an animated debate, but the resolution passed by a vote of 51 to 48. (Annals, first session Fourth Congress, p. 940.)

This question was also discussed in connection with the legislation for carrying into effect the treaty relating to the purchase of Louisiana. (Annals, first session Eighth Congress.)

In 1816 the Senate passed an act to carry into effect the commercial convention of 1815 with Great Britain. The act provided that so much of any existing act as might be contrary to the provisions of the convention should cease to be of force and effect. The House passed an act, in several sections, enacting seriatim the provisions of the treaty. The Senate claimed that the treaty was operative of itself, and therefore the act should be declaratory only. The House insisted that legislation was necessary to carry it into effect. Each body refused to recede. A conference committee agreed upon a bill which was then enacted. (3 U. S. Stat. L., 255.) The principle upon which an agreement was reached was reported to the House as follows:

Your committee understood the committee of the Senate to admit the principle contended for by the House that while some treaties might not require, others may require, legislative provision to carry them into effect; that the decision of the question how far such provision was necessary must be founded upon the peculiar character of the treaty itself. (Annals, first session Fourteenth Congress, p. 36.)

The subject was again before Congress when the bill making appropriations for the purchase of Alaska was under consideration (1, 2, 3, 4, and 5, Globe, second session Fortieth Congress), and was disposed of by the House accepting from a conference committee a preamble reciting that the stipulations of the treaty "that the United States shall accept of such session * can not be carried into full force and effect except by legislation, to which the consent of both Houses of Congress is necessary." (15 U. S. Stat., 198.)

The report of the conference committee was adopted by the Senate and House of Representatives, and thereby Congress declares that the cession of territory to the United States must be effected by legislative enactment; that is, the assent of both Houses of Congress must be secured.

same area.

At the time the Constitution was adopted by the thirteen original States many of them claimed to own unoccupied territory, in some cases entirely detached from the State itself. These claims were in some instances conflicting. Several States claimed authority over the The ownership of these western lands by individual States was distasteful to those States which did not share therein, mainly on the ground that the resources of the General Government, to which all contributed, were taxed for the protection and development of said regions, while the advantages inured to the benefit of but a few. On this ground several of the States refused to ratify the Constitution until this matter had been settled by the cession of these tracts to the General Government.

Moved by these arguments and by the consideration that the conflict of claims was pregnant with serious difficulties, Congress, by resolution of October 30, 1779, requested several of the States to forbear settling or issuing warrants or grants for said lands. This was transmitted to the different States. The several States claiming to own said lands responded to this request by transfers of the territory so claimed to the General Government. The first transfer was made by the State of New York on March 1. 1781, and the last by the State of Georgia April 24, 1802. A single instance will serve to show the course pursued. The general assembly of the State of North Carolina passed an act entitled "An act for the purpose of ceding to the United States of America certain western lands therein described.”

Pursuant to the authority created by said act Samuel Johnston and Benjamin Hawkins, at that time United States Senators from North Carolina, executed a deed of cession of said lands to the United States and presented the same to the Senate of the United States. Thereupon the Senate and House of Representatives passed "An act to accept a cession of the claims of the State of North Carolina to a certain district of western territory." This act recited that "a deed of cession having been executed, and in the Senate offered for acceptance to the United States of the claims of the State of North Carolina, to a district of territory therein described, which deed is in the words following:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That said deed be, and the same is hereby, accepted.

Approved, April 2, 1790, (1 U. S. Stat., chap. 6, pp. 106, 109.) It would seem that if Congressional legislation were necessary to complete the incorporation of territory into the United States upon

transfer from one of its component States, such Congressional action would be equally necessary where a transfer is from a foreign State. That it is necessary to secure the assent of Congress in order that the territorial boundaries of the United States may be extended to include the islands ceded by the late treaty of peace with Spain (Paris, 1898), and that said treaty does not attempt to make such extension, is made plain by a comparison of said treaty with other treaties of cession to the United States and the procedure followed in regard thereto.

The treaty for the cession of Louisiana contained the following stipulations (8 U. S. Stat., 200-202):

The First Consul of the French Republic, desiring to give to the United States a strong proof of his friendship, doth hereby cede to the United States, in the name of the French Republic, forever and in full sovereignty, the said territory, with all its rights and appurtenances.

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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 they profess.

(Articles 1 and 3, Treaty with France, 1803.)

The treaty of amity, settlement, and limits between the United States and Spain (1819), whereby was confirmed the title of the United States to the expanse of country known as East and West Florida, contains the following stipulations (8 U. S. Stat., pp. 254 and 256):

ART. 2. His Catholic Majesty cedes to the United States, in full property and sovereignty, all the territories which belong to him situated to the eastward of the Mississippi, known by the name of East and West Florida.

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ART. 6. The inhabitants of the territories which His Catholic Majesty cedes to the United States by this treaty shall be incorporated in the Union of the United State, as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of all the privileges, rights, and immunities of the citizens of the United States.

In the treaty of 1848, whereby Mexico relinquished the expanse of country known as Upper California and New Mexico, resort was had to the simple plan of designating the northern boundary of the Mexican Republic. The reason for this was that the United States took the position that, having taken and occupied the capital of the Mexican Republic, its title was perfected by complete conquest, not only of Upper California and New Mexico, but of the entire Republic, and the question to be determined was how much should be restored by the United States, not how much should be ceded by Mexico. Being vanquished, Mexico was obliged to assent to the proposition, and hence the adoption of the plan followed. The treaty contained the following stipulation (9 U. S. Stat., 930):

ART. 9. The Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican Republic, comformably with what is stipulated in the

preceding article, shall be incorporated into the Union of the United States, and be admitted at the proper time to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States, according to the principles of the Constitution.

The treaty with Mexico (1853), whereby the United States acquired the territory known as the "Gadsden Purchase," was, primarily, a stipulation as to boundary. Article 1 provided as follows (10 U. S. Stat.. 1032):

The Mexican Republic agrees to designate the following as her true limits with the United States for the future:

Then follows an exact description of the location of the boundary line and how the same shall be surveyed and marked. Said article continues:

The dividing line thus established shall, in all time, be faithfully respected by the two Governments, without any variation therein, unless of the express and free consent of the two, given in conformity to the principles of the law of nations and in accor lance with the constitution of each country, respectively.

The treaty with Russia (1867), whereby the United States acquired Alaska, contains the following stipulation (15 U. S. Stat., 539, 541, 542):

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ARTICLE 1. His Majesty the Emperor of all the Russias agrees to cede to the United States all the territory and dominion now possessed by his said Majesty on* the continent of America and in the adjacent islands, the same being contained within the geographical limits herein set forth, to wit: *

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which are not private

ART. 2. In the cession of territory and dominion made by the preceding article are included the rights of property of all publie lots, individual property,

shall be admitted to the

ART. 3. The inhabitants of the ceded territory enjoyment of all the rights, advantages, and immunities of citizens of the United

What was accomplished by article 1 of the treaty ceding Alaska, upon the treaty being ratified and exchanged, is stated by Dawson, J., as follows (29 Fed. Rep., 205):

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Upon the ratification by the President of the United States, by and with the advice and consent of the Senate, on the one part, and on the other by His Majesty the Emperor of all the Russias, and an exchange of those ratifications the title of the soil in Alaska vested in the United States. (United States ». Nelson, 29 Fed. Rep., 202, 205.)

The expression" the title of the soil" as here used means the right of the sovereign or of jus publicum, not the right of a proprietor or of jus privatum.

The extension of the boundaries of the United States to include the Hawaiian Islands was accomplished by diplomatic negotiations, consummated by the passage, by the Senate and House of Representatives, and approval by the President, of a joint resolution reciting (30 U. S. Stat., 750)-

That said cession is accepted, ratified, and confirmed, and that the said Hawaiian Islands and their dependencies be, and they are hereby, annexed as a part of the territory of the United States and are subject so the sovereign dominion thereof.