to self-government. That proposition is conceded by the counsel on the other side, but it seems to be one of the strange popular misapprehensions to suppose that the right of self-government is a judicial right in a territory; that it can be enforced by some kind of a decree of the court, when nothing is clearer from all the expressions of this and all the other courts of the Union on the subject, from practice and experience, both of the past and present day, that under our Constitution the right of self-government does not exist in the people of the Territories or outlying possessions of the United States; does not exist in the people of the District of Columbia; does not exist in the people of Alaska; does not exist in the people of Indian Territory; does not exist in any Territory. It is a mere matter of political discretion, of public policy, to be determined by Congress, as to whether any self-government, and if so, how much, shall be conferred upon any Territory of the United States.

Story continues:

It must, consequently, be under the dominion and jurisdiction of the Union, or it would be without any government at all. In cases of conquest the usage of the world is, if a nation is not wholly subdued, to consider the conquered territory as merely held by military occupation until its fate shall be determined by a treaty of peace. But during this intermediate period it is exclusively subject to the government of the conqueror. In cases of confirmation or cession by treaty, the acquisition becomes firm and stable, and the ceded territory becomes a part of the nation to which it is annexed"—

Now note this: "either on terms stipulated in the treaty or on such as its new master shall impose"-recognizing what I shall later contend for in this case, that the Government which has the power to obtain foreign territory by treaty has the right to stipulate in the treaty the terms upon which it will accept and hold the ceded territory.

"The relations of the inhabitants with each other do not change; but their relations with their former sovereign are dissolved and new relations are created between them and their new sovereign. The act transferring the country transfers the allegiance of its inhabitants. But the general laws, not strictly political, remain as they were until altered by the new sovereign. If the treaty stipulates that they shall enjoy the privileges, rights, and immunities of citizens of the United States, the treaty, as a part of the law of the land, becomes obligatory in these respects.

Judge Story puts the privilege of citizenship upon the stipulations of the treaty, and makes a stipulation in the treaty necessary to create the rights, immunities, and privileges of citizens of the United States for the inhabitants.

"Whether the same effects would result from the mere fact of their becoming inhabitants and citizens by cession, without any express stipulation, may deserve inquiry if the question should ever occur [quoting exactly the language of Mr. Chief Justice Marshall]. But they do not participate in political power; nor can they share in the powers of the General Government until they become a State and are admitted into the Union as such.

Until that period the territory remains subject to be governed in such manner as Congress shall direct, under the clause of the Constitution now under consideration." (2 Story on the Constitution.) Again he says, in paragraph 1328:

"The power of Congress over the public territory is clearly exclusive and universal; and their legislation is subject to no control, but is absolute and unlimited, unless so far as it is affected by stipulations in the cessions, or by the ordinance of 1787, under which any part of it has been settled."

It has frequently been asserted, and we have long been taught, that President Jefferson, in acquiring the cession of the Louisiana territory, violated the Constitution, or, at least, supposed he had violated it. I think it will be found on an examination of this question that the common opinion on this subject is an error. I think it will appear that Mr. Jefferson and his Cabinet, and all the public men of his day, were without any doubt whatever that the United States, under the Constitution as it then existed, had absolute power to acquire foreign territory; and Mr. Jefferson had no doubt on that subject. What he and some others did doubt was whether the treaty could by stipulation incorporate the ceded territory so as to make it properly a part of the United States. We are met now with the contention that neither Congress nor the treaty-making power can acquire territory, unless by that very act it becomes a part of the United States; that, if they should stipulate in the treaty that it was not to become a part of the United States, nevertheless the supreme effect of the Constitution would be to make it such in spite of the treaty-making power. In other words, that this nation can not own territory unless it is an inte gral part of the United States in the fullest and most absolute sense.

I shall show, if your honors please, that the statesmen of 1803, comprising many members of the Constitutional Convention, men of the most distinguished learning in law, in statesmanship, in government, in history, familiar with the spirit that evolved our Constitution and formed our Government, that these men all believed we had the right to acquire territory and to govern it as a colony or a province, and that it was not necessary to make it a part of the United States. And the only point of difference between the Federalists, who at that time were few in number, and the supporters of the Jeffersonian administration was on this point: Whether it was possible, by express stipu lation in the treaty, or by act of Congress, to make ceded territory a part of the United States. The Federalists, led by Timothy Pickering, of Massachusetts, contended that we could not do it, that Congress could not do it, that the President and Senate could not do it, that the President and House and Senate could not do it, that it was not possible to do it as to territory outside of the Northwest Territory without amending the Constitution. They held that we could not even admit a new State outside of that territory because it would require the consent of all the States.

That which is commonly cited in support of the erroneous view attributed to Mr. Jefferson, is his letter to Senator Breckenridge, of Kentucky, August 12, 1803, some months after the treaty with France had been signed. The treaty was signed in April, 1803. The language there used is as follows:

"This treaty must, of course, be laid before both Houses, because both have important functions to exercise respecting it.

They, I presume, will see their duty to their country in ratifying and paying for it, so as to secure a good which would otherwise probably be never again in their power. But I suppose they must then appeal to the nation for an additional article to the Constitution approving and confirming an act which the nation had not previously authorized. The Constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union. The Executive, in seizing the fugitive occurrence which so much advances the good of their country, have done an act beyond the Constitution.

If this language stood by itself and were the only utterance of Jefferson on the subject, it would justify that belief as to his opinion on the constitutional question which has been commonly attributed to him. An examination, however, of his writings and of his whole course of action with reference to the Louisiana purchase, especially with reference to the constitutional question, shows conclusively that Mr. Jefferson's doubt was not with reference to the power of the United States to acquire foreign territory, but rather as to the right to annex it to and make it a part of the United States.

It was in January, 1803, that Mr. Jefferson, who, ever since 1786, as I have shown, had been casting a properly covetous eye toward the commercial advantages of the Mississippi River, the key of which was in the possession of New Orleans, dispatched James Monroe to France with $2,000,000 to buy-not the province of Louisiana, but to buy New Orleans; and the question arose then as to the form in which the purchase could constitutionally be made.

The Attorney-General, Levi Lincoln, suggested that the treaty should be so framed as to make it appear that the United States was not acquiring territory, but as extending already existing territory by an alteration of its boundary.

This letter of the Attorney-General was sent by the President to Gallatin. Counsel seemed to think yesterday that I had given Mr. Gallatin undue credit in saying that he was really the constitutional lawyer of Jefferson's administration. I say so, because I think the answer of Mr. Gallatin to the President's letter, transmitting the opinion of the Attorney-General, evinces the clearest and most remarkable comprehension of the Constitution on this subject that had ever been uttered up to that time.

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This is what Mr. Gallatin replied: he exposed first the impracticability and fallacy of the Attorney-General's scheme, and suggested the view that finally prevailed with Jefferson, and has been maintained and sanctioned by the Executive and Judicial Departments of the Government to the present time. I am quoting exactly his words as he wrote them: To me it would appear"-notice the lawyer-like, logical arrangement of this "(1) that the United States as a nation has an inherent right to acquire territory. That sounds like a phrase out of Mr. Justice Bradley's opinion. (2) That whenever that acquisition is by treaty, the same constituted authorities in which the treaty-making power is vested have a constitutional right to sanction the acquisition; (3) that whenever the territory has been acquired Congress has the power either of admitting it into the Union as a new State, or of annexing to a State, with the consent of that State, or of making regulations for the government of such territory." That was Mr. Gallatin's opinion.

To this Mr. Jefferson replied, in the month of January, 1803, very promptly, and said: "You are right, in my opinion, as to Mr. L.'s proposition." And then he continues:

"There is no constitutional difficulty as to the acquisition of territory, and whether when acquired it may be taken into the Union by the Constitution as it now stands will become a question of expediency. I think it will be safer not to permit the enlargement of the Union but by amendment of the Constitution." (Gallatin's writings, vol. 1, p. 115.)

distinguishing most clearly between the acquisition of territory which was not to become a part of the United States and the admission of acquired territory, when acquired, into the Union.

Now, your honors, will remember that when Monroe arrived in Paris, Mr. Livingston had received a new and startling proposition from the First Consul to cede, not New Orleans, but the whole vast extent of the Louisiana Province, and they proceeded with their negotiations and drew up the treaty in the form in which it stands at the present day. By the third section of that treaty they provided that the inhabitants of the ceded territory shall be incorporated into the Union of the United States. Jefferson's language is "and whether when acquired it may be taken into the Union." The language of the treaty is incorporated into the Union." "The inhabitants of the ceded territory shall be incorporated into 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 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 which they profess.

It might be interesting to investigate the authorship of that section or paragraph. It was contained in the projet of the treaty which was proposed by the First Consul to our commissioners, and inasmuch as these negotiations were conducted without the assistance of Talleyrand, the first minister, it is pretty fair to presume that that language was drafted either by the First Consul himself or by his confidential friend in the negotiation, Barbé Marbois, who was acquainted with the principles of the Constitution of the United States, because he had lived here and had married an American wife.

Now, it is reasonable to suppose that whatever constitutional defects Mr. Jefferson believed to exist, he would have attempted to cure by any, amendment which he might have drawn or proposed on this subject. He did prepare two different drafts as amendments to the Constitution to cure what he thought was the defect. The first draft was probably sent to Mr. Gallatin in July, 1803, for in a letter on July 9 of that year Mr. Gallatin says: "The amendment to the Constitution is intended, I presume, for deliberation and reflection, but not for immediate decision." Now, this draft made by Mr. Jefferson declares "the province of Louisiana is incorporated with the United States and made a part thereof."

In other words, Mr. Jefferson, not doubting our right to acquire the territory, but desiring to carry into effect the stipulation of the third paragraph of the treaty, drew up an amendment to the Constitution which did not say that the acquisition by the treaty of Louisiana was

ratified, but did say that Louisiana is incorporated in the United States and made a part thereof. That is what he thought a constitutional amendment was necessary for; and at the end of that amendment he used this clause: "Vesting the inhabitants thereof with all rights possessed by other Territorial citizens of the United States;" "Territorial citizens," thus making them a class by themselves. This was only a product, tentative product, of Mr. Jefferson's mind and brain, and he withdrew it and prepared a much shorter one, which on the 23d of August, he sent to Gallatin, and which he thought was better than the previous one.

That began: "Louisiana as ceded by France to the United States is made a part of the United States." He accepts the cession as a complete, effective, constitutional act, but to make it a part of the United States he prepares this amendment, in order to keep faith, to enable him to keep faith, with the stipulation that he had made with France as to the admission of the inhabitants of this territory into the Union. He further continues:

"Its white inhabitants shall be citizens, and stand, as to their rights and obligations, on the same footing with other citizens of the United States in analogous situations, Save only that, as to the portion thereof lying north of the latitude of the mouth of the Arcansa River, no new State shall be established nor any grants of land made therein other than to Indians in exchange for equivalent portions of lands occupied by them until an amendment of the Constitution shall be made for these purposes.

Florida also, whensoever it may be rightfully obtained, shall become a part of the United States. Its white inhabitants shall thereupon be citizens, and shall stand, as to their rights and obligations, on the same footing with other citizens of the United States in analogous situations."

Under date of July 7, 1803, Jefferson wrote to William Dunbar:

"Before you receive this you will have heard through the channel of the public papers of the cession of Louisiana by France to the United States. The terms as stated in the National Intelligencer are accurate. That the treaty may be ratified in time, I have found it necessary to convene Congress on the 17th of October, and it is very important for the happiness of the country that they should possess all information which can be obtained respecting it, that they may make the best arrangements practicable for its good government. It is most necessary, because they will be obliged to ask from the people an amendment of the Constitution authorizing their receiving the province into the Union and providing for its government, and limitations of power which shall be given by that amendment will be unalterable but by the same authority." (Jefferson's Writings, vol. 8, p. 254.)

Wilson Cary Nicholas, a warm personal and political friend of Jefferson, conferred with him upon the constitutional question, and early in September wrote Jefferson a letter in which he declared that upon an examination of the Constitution he found the power as broad as it could well be made, except that new States can not be formed out of the old ones without the consent of the State to be dismembered. (Adams's History of the United States, vol. 2, p. 87.)