shade or two more in the degree of exigency is all
that will be requisite, and of that degree we shall
ourselves be the judges. However, may it not be
hoped that these questions are forever laid to rest
by the 12th Amendment once made a part of the
Constitution, declaring expressly that the powers
not delegated to the United States by the
Constitution are reserved to the states
respectively?' And if the general government has
no power to alienate the territory of a state, it is too
irresistible an argument to deny ourselves the use
of it on the present occasion." Ibid.

 The opinions of Mr. Jefferson, however, met
 the approval of President Washington. On March
 18, 1792, in inclosing to the commissioners to
 Spain their commission, he said, among other
 things:

 "You will herewith receive your commission; as
 also observations on these several subjects
 reported to the President and approved by him,
 which will therefore serve as instructions for you.
 These expressing minutely the sense of our
 government, and what they wish to have done, it is
 unnecessary for me to do more here than desire
 you to pursue these objects unremittingly," etc.
 Ford's Writings of Jefferson, vol. 5, p. 456.

 When the subject-matter to which the
 negotiations related is considered, it becomes
 evident that the word "state" as above used related
 merely to territory which was either claimed by some
 of the states, as Mississippi territory was by Georgia,
 or to the Northwest Territory, embraced within the
 ordinance of 1787, or the territory south of the
 Ohio (Tennessee), which had also been endowed
 with all the rights and privileges conferred by that
 ordinance, and all which territory had originally been
 ceded by states to the United States under
 express stipulations that such ceded territory
 should be ultimately formed into states of the
 Union. And this meaning of the word "state" is
 absolutely in accord with what I shall hereafter have
 occasion to demonstrate was the conception
 entertained by Mr. Jefferson of what constituted
 the United States.

 True, from the exigency of a calamitous war or
the necessity of a settlement of boundaries, it may
be that citizens of the United States may be
expatriated by the action of the treaty-making
power, impliedly or expressly ratified by Congress.


 But the arising of these particular conditions
 cannot justify the general proposition that territory
 which is an integral part of the United States may, as
 a mere act of sale, be disposed of. If, however, the
 right to dispose of an incorporated American
 territory and citizens by the mere exertion of the
 power to sell be conceded, arguendo, it would not
 relieve the dilemma. It is ever true that, where a
 malign principle is adopted, as long as the error is
 adhered to it must continue to produce its baleful
 results. Certainly, if there be no power to acquire
 subject to a condition, it must follow that there is no
 authority to dispose of subject to conditions, since
 it cannot be that the mere change of form of the
 transaction could bestow a power which the
 Constitution has not conferred. It would follow,
 then, that any conditions annexed to a disposition
 which looked to the protection of the people of the
 United States, or to enable them to safeguard the
 disposal of territory, would be void; and thus it
 would be that either the United States must hold on
 absolutely, or must dispose of unconditionally.

 A practical illustration will at once make the
 consequences clear. Suppose Congress should
 determine that the millions of inhabitants of the
 Philippine islands should not continue appurtenant
 to the United States, but that they should be
 allowed to establish an autonomous government,
 outside of the Constitution of the United States,
 coupled, however, with such conditions providing
 for control as far only as essential to the guaranty of
 life and property and to protect against foreign
 encroachment. If the proposition of incorporation
 be well founded, at once the question would arise
 whether the ability to impose these conditions
 existed, since no power was conferred by the
 Constitution to annex conditions which would limit
 the disposition. And if it be that the question of
 whether territory is immediately fit for incorporation
 when it is acquired is a judicial, and not a legislative
 one, it would follow that the validity of the
 conditions would also come within the scope of
 judicial authority, and thus the entire political policy
 of the government be alone controlled by the
 judiciary.

 The theory as to the treaty-making power upon
which the argument which has just been
commented upon rests, it is now proposed to be
shown, is refuted by the history of the government
from the beginning. There has not been a single
cession made from the time of the Confederation
up to the present day, excluding the recent treaty