with Spain, which has not contained stipulations to
the effect that the United States through Congress
would either not disincorporate or would
incorporate the ceded territory into the United
States. There were such conditions in the deed of
cession by Virginia when it conveyed the
Northwest Territory to the United States. Like
conditions were attached by North Carolina to the
cession whereby the territory south of the Ohio,
now Tennessee, was transferred. Similar provisions
were contained in the cession by Georgia of the
Mississippi territory, now the states of Alabama and
Mississippi. Such agreements were also expressed
in the treaty of 1803, ceding Louisiana; that of
1819, ceding the Floridas, and in the treaties of
1848 and 1853, by which a large extent of territory
was ceded to this country, as also in the Alaska
treaty of 1867. To adopt the limitations on the
treaty-making power now insisted upon would
presuppose that every one of these conditions
thus sedulously provided for were superfluous,
since the guaranties which they afforded would
have obtained, although they were not expressly
provided for.

 When the various treaties by which foreign
 territory has been acquired are considered in the
 light of the circumstances which surrounded them,
 it becomes to my mind clearly established that the
 treaty-making power was always deemed to be
 devoid of authority to incorporate territory into the
 United States without the assent, express or
 implied, of Congress, and that no question to the
 contrary has ever been even mooted. To
 appreciate this it is essential to bear in mind what
 the words "United States" signified at the time of
 the adoption of the Constitution. When by the
 treaty of peace with Great Britain the independence
 of the United States was acknowledged, it is
 unquestioned that all the territory within the
 boundaries defined in that treaty, whatever may
 have been the disputes as to title, substantially
 belonged to particular states. The entire territory
 was part of the United States, and all the native
 white inhabitants were citizens of the United States
 and endowed with the rights and privileges arising
 from that relation. When, as has already been said,
 the Northwest Territory was ceded by Virginia, it was
 expressly stipulated that the rights of the
 inhabitants in this regard should be respected. The
 ordinance of 1787, providing for the government of
 the Northwest Territory, fulfilled this promise on
 behalf of the Confederation. Without undertaking
 to reproduce the text of the ordinance, it suffices to


say that it contained a bill of rights, a promise of
ultimate statehood, and it provided (italics mine)
that 'the said territory and the states which may be
formed therein shall ever remain a part of this
Confederacy of the United States of America,
subject to the Articles of Confederation, and to
such alterations therein as shall be constitutionally
made, and to all the acts and ordinances of the
United States in Congress assembled, conformably
thereto." It submitted the inhabitants to a liability for
a tax to pay their proportional part of the public debt
and the expenses of the government, to be
assessed by the rule of apportionment which
governed the states of the Confederation. It
forbade slavery within the territory, and contained a
stipulation that the provisions of the ordinance
should ever remain unalterable unless by common
consent.

 Thus it was at the adoption of the Constitution,
the United States, as a geographical unit and as a
governmental conception both in the international
and domestic sense, consisted not only of states,
but also of territories, all the native white inhabitants
being endowed with citizenship, protected by
pledges of a common union, and, except as to
political advantages, all enjoying equal rights and
freedom, and safeguarded by substantially similar
guaranties, all being under the obligation to
contribute their proportionate share for the
liquidation of the debt and future expenses of the
general government.

 The opinion has been expressed that the
 ordinance of 1787 became inoperative and a nullity
 on the adoption of the Constitution (Taney, Ch. J.,
 in Scott v. Sandford, 19 How. 438, 15 L. ed. 713),
 while, on the other hand, it has been said that the
 ordinance of 1787 was "the most solemn of all
 engagements," and became a part of the
 Constitution of the United States by reason of the
 6th article, which provided that "all debts contracted
 and engagements entered into before the
 adoption of this Constitution shall be as valid
 against the United States under this Constitution as
 under the Confederation." Per Baldwin, J.,
 concurring opinion in Pollardv. Kibbe, 14 Pet. 417,
 10 L. ed. 521, and per Catron, J., in dissenting
 opinion in Straderv. Graham, 10 How. 98, 13 L. ed.
 343. Whatever view may be taken of this difference
 of legal opinion, my mind refuses to assent to the
 conclusion that under the Constitution the
 provision of the Northwest Territory ordinance
 making such territory forever a part of the


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