A certain number of dicta of the Supreme Court of the United States may also be found in which the language indicates an accepted assumption that the territories held by the United States were all ultimately to be erected into States. Thus in Loughborough v. Blake,22 Marshall, after referring to the attempt of Great Britain to tax her American colonies, said: "The difference between requiring a continent with an immense population to submit to be taxed by a government having no common interest with it, separated from it by a vast ocean and associated with it by no common feelings, and permitting the representatives of the American people, under the restrictions of our Constitution, to tax a part of the society, which is in a state of infancy, advancing to manhood, looking forward to complete equality as soon as that state of manhood shall be attained, as is the case with the Territories, is too obvious not to present itself to the minds of all."
21 Alaska may be treated as an exception. This area, at the time of it3 annexation, had a very small population and it was not expected that this population would increase.
22 5 Wh. 317; 5 L. ed. 98.
Thus also, in Shivery v. Bowlby,23 the court said, "The Territories acquired by Congress whether by deed or cession from the original States, or by treaty with a foreign country, are held with the object, as soon as their population and condition justify, of being admitted into the Union as States upon an equal footing with the original States in all respects; and the title and dominion of the tidewaters and the lands under them are held by the United States for the benefit of the whole people, and, as this Court has often said, in trust for the future States. . . . Upon the acquisition of a Territory by the United States, whether by cession from one of the States or by treaty with a foreign country, or by discovery and settlement, the same title and dominion passed to the United States for the benefit of the whole people and in trust for the several States to be ultimately created out of the Territory."
Chief Justice Taney has often been cited as holding in his opinion in the Dred Scott case that foreign territory might be acquired by the United States only under its power to admit new States. This is not correct. In Fleming v. Page,24 he had already expressly declared that foreign territory might be acquired under the treaty and war-making powers, and in the Dred Scott case, approves, upon this point, the decision of Marshall in American Insurance Co. v. Canter.25 He asserts, however, that these powers are to be exercised only for the purpose of acquiring territories that ultimately may become States, and that, when acquired, they are to be governed with this end in view, namely, of preparing them for this status. It is thus apparent that the constitutional limitation which, in this case, Taney is intent upon emphasizing, is rather one upon the control of Congress over territories that have been annexed, than upon the power of the General Government to acquire them. In his opinion he says: "There is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure, nor to enlarge its territorial limits in any way except by the admission of new States. That .power is plainly given, and if a new State is admitted it needs no further legislation by Congress, because the Constitution itself defines the relative rights and powers and duties of the State and the citizens of the State and the Federal Government. But no power is given to acquire a territory to be held and governed permanently in that character. And, indeed, the power exercised by Congress to acquire territory and establish a government there according to its own unlimited discretion was viewed with great jealousy by the leading statesmen of the day. . . . We do not mean, however, to question the power of Congress in this respect. The power to expand the territory of the United States by the admission of new States is plainly given, and in the construction of this power by all the departments of the Government it has been held to authorize the acquisition of a territory not fit for admission at the time, but to be admitted as soon as its population would entitle it to admission. It is acquired to become a State, and not to be held as a colony and governed by Congress with absolute authority; and as the propriety of admitting a new State is committed to the sound discretion of Congress, the power to acquire territory for that purpose, to be held by the United States until it is in a suitable condition to become a State upon an equal footing with the other States, must rest upon the same discretion."
23 152 U. S. 1; 14 Sup. Ct. Rep. 548; 38 L. ed. 331.
24 9 How. 603.
25 1 Pet. 511; 7 L. ed. 242.
So, likewise, it will be found that the various opinions delivered in this case by the other members of the court, concurring and dissenting, are concerned rather with the limitations of the powers of government of annexed territory, than with the extent of the power to acquire. We shall consider this phase of the question in another chapter.