impossible to make a treaty because of the
unwillingness or disappearance of the hostile
government, and therefore the occupation
necessarily continued, although actual war had
ceased. The fallacy lies in admitting the right to
exercise the power, if only it is exerted by the
military arm of the government, but denying it
wherever the civil power comes in to regulate and
make the conditions more in accord with the spirit of
our free institutions. Why it can be thought,
although under the Constitution the military arm of
the government is in effect the creature of
Congress, that such arm may exercise a power
without violating the Constitution, and yet
Congress-the creator-may not regulate, I fail to
comprehend.

 This further argument, however, is advanced.
 Granting that Congress may regulate without
 incorporating, where the military arm has taken
 possession of foreign territory, and where there
 has been or can be no treaty, this does not concern
 the decision of this case, since there is here
 involved no regulation, but an actual cession to the
 United States of territory by treaty. The general rule
 of the law of nations, by which the acquiring
 government fixes the status of acquired territory, it
 is urged, does not apply to the government of the
 United States, because it is incompatible with the
 Constitution that that government should hold
 territory under a cession and administer it as a
 dependency without its becoming incorporated.
 This claim, I have previously said, rests on the
 erroneous assumption that the United States
 under the Constitution is stripped of those powers
 which are absolutely inherent in and essential to
 national existence. The certainty of this is illustrated
 by the examples already made use of in the
 supposed cases of discovery and conquest.

 If the authority by treaty is limited as is
 suggested, then it will be impossible to terminate a
 successful war by acquiring territory through a
 treaty, without immediately incorporating such
 territory into the United States. Let me, however,
 eliminate the case of war, and consider the treaty-
 making power as subserving the purposes of the
 peaceful evolution of national life. Suppose the
 necessity of acquiring a naval station or a coaling
 station on an island inhabited with people utterly
 unfit for American citizenship and totally incapable
 of bearing their proportionate burden of the
 national expense. Could such island, under the
 rule which is now insisted upon, be taken?


Suppose, again, the acquisition of territory for an
interoceanic canal, where an inhabited strip of land
on either side is essential to the United States for
the preservation of the work. Can it be denied that,
if the requirements of the Constitution as to
taxation are to immediately control, it might be
impossible by treaty to accomplish the desired
result?

 While no particular provision of the Constitution
is referred to, to sustain the argument that it is
impossible to acquire territory by treaty without
immediate and absolute incorporation, it is said that
the spirit of the Constitution excludes the
conception of property or dependencies
possessed by the United States and which are not
so completely incorporated as to be in all respects a
part of the United States; that the theory upon
which the Constitution proceeds is that of
confederated and independent states, and that no
territory, therefore, can be acquired which does not
contemplate statehood, and excludes the
acquisition of any territory which is not in a position
to be treated as an integral part of the United
States. But this reasoning is based on political, and
not judicial, considerations. Conceding that the
conception upon which the Constitution proceeds
is that no territory, as a general rule, should be
acquired unless the territory may reasonably be
expected to be worthy of statehood, the
determination of when such blessing is to be
bestowed is wholly a political question, and the aid
of the judiciary cannot be invoked to usurp political
discretion in order to save the Constitution from
imaginary or even real dangers. The Constitution
may not be saved by destroying its fundamental
limitations.

 Let me come, however, to a consideration of
 the express powers which are conferred by the
 Constitution, to show how unwarranted is the
 principle of immediate incorporation, which is here
 so strenuously insisted on. In doing so it is
 conceded at once that the true rule of construction
 is not to consider one provision of the Constitution
 alone, but to contemplate all, and therefore to limit
 one conceded attribute by those qualifications
 which naturally result from the other powers
 granted by that instrument, so that the whole may
 be interpreted by the spirit which vivifies, and not
 by the letter which killeth. Undoubtedly, the power
 to carry on war and to make treaties implies also the
 exercise of those incidents which ordinarily inhere
 in them. Indeed, in view of the rule of construction