In several treaties in settlement of boundary disputes areas previously claimed by the United States as its own have been surrendered to foreign powers. These, however, can scarcely be considered as instances of the alienation of portions of its own territory, for the fact that the treaties were assented to by the United States is in itself evidence that it was conceded that the claim that the areas in question belonged to the United States was unfounded. There has been no instance in which territory, indisputably belonging to the United States, has been alienated to another power. Whether or not the power to do so, should the occasion arise, exists, has been often discussed, and, in fact, we have a number of obiter statements upon the point from the Supreme Court,
19 182 U. P. 244: 21 Sup. Ct. Rep. 770; 45 L. ed. 1088.
20 See ante, Chapter XXX (The Insular Cases. 177. Downes V. Bidwell).
In De Geofroy v. Biggs21 Justice Field, in his enumeration of the limitations upon the treaty-making power, includes its inability to cede any portion of a State without its consent. In support of this declaration reference is made to the case of Fort Leavenworth R. B. Co. v. Lowe.22 That case decided, simply, that the legislative power of Congress is exclusive over lands within a State purchased with its consent by the United States for a constitutional purpose; and that a State has the constitutional power thus to cede portions of its territory to the General Government. The court in its opinion, however, goes on to say that "it is undoubtedly true that the State, whether represented by her legislature, or through a convention specially called for that purpose, is incompetent to cede her political jurisdiction and legislative authority over any part of her territory to a foreign country, without the concurrence of the General Government."' As to the truth of this obiter statement, there can, of course, be no question, for, as we have already learned, the State cannot, constitutionally, have any international dealings.23
But the court go on to say: "The jurisdiction of the United States extends over all the territory within the States, and, therefore, their authority must be obtained, as well as that of the State within which the territory is situated, before any cession of sovereignty or political jurisdiction can be made to a foreign country/'
In support of this statement the court refers to the adjustment of the northeastern boundary dispute in 1842 with Great Britain, in -which the United States before coming to an agreement with Great Britain, obtained the co-operation and concurrence of Maine and Massachusetts. Maine appointed commissioners by her legislature, and Massachusetts by her Governor under authority of an act of her legislature, to act with the Secretary of State of the United States in the matter.
21 133 U. S. 258; 10 Sup. Ct. Rep. 293; 33 L. ed. 642.
22 114 U. S. 525; 5 Sup. Ct. Rep. 995; 29 L. ed. 264.
23 Except, possibly, as we have seen (Chapter XV (Interstate Relations: Compacts Between The States, And Between The United States And The States. 112. Compacts Between The States)). with reference to such an unimportant matter as the administration of fishing upon boundary waters..
This co-operation of the authorities of Maine and Massachusetts was at the suggestion of Webster, then Secretary of State, but it does not appear from his correspondence that he considered this a constitutional necessity, but rather that it was expedient from a political standpoint that the opinion of these two States should be considered.24 Thus, writing privately to the Governor of Maine, December 21, 1841, Webster says: "In the present position of affairs, I suppose it will not be prudent to stir in the direction of a compromise without the consent of Maine."-25
Besides the assertions of the Supreme Court in De Geofroy v. Riggs and Fort Leavenworth R. R. Co. v. Lowe, we have the argument of Justice White in Downes v. Bidwell,26 that the United States is without the treaty-right to sell or trade away any portion of territory, whether within a State or a Territory, which has been "incorporated" into the United States. "In conformity to the principle which I have admitted," he says, "it is impossible for me to say at one and the same time that territory is an integral part of the United States protected by the Constitution, and yet the safeguards, privileges, rights, and immunities which arise from this situation are so ephemeral in their character that by a mere act of sale they may be destroyed. And applying this reasoning to the provisions of the treaty under consideration, to me it seems indubitable that if the treaty with Spain incorporated all the territory ceded into the United States, it resulted that the millions of people to whom that treaty Belated were, without the consent of the American people as expressed by Congress, and without any hope of relief, indissolubly made a part of our common country."
24 See Works of Webster, V, 98; VI, 272.
25 Van Tyne's Letters of Webster, 248; quoted in Moore, Digest of Int. Law,I V. 174.
26 Concurred in by Justices Shiras, McKenna and Gray.
Later on in his opinion Justice White is, however, forced to say: " 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." In fact, however, as we know, Justice White held that territory might be annexed by treaty without "incorporation" into the United States, and such unincorporated territory concededly might by treaty be sold or traded away.27
Opposing these judicial obiter dicta are the decisions of the Supreme Court in Lattimer v. Poteet28 and the opinions of such commentators as Kent, Story and Butler.
In Lattimer v. Poteet the Supreme Court upheld a treaty of the United States with an Indian tribe whereby was ceded to the Indians an area claimed by a State as its own. "It is argued," said the court in its opinion, "that it was not in the power of the United States and the Cherokee Nation, by the Treaty of Tellico in 1798, to vary in any degree the treaty line of Holston so as to affect private rights or the rights of North Carolina. . . . It is a sound principle of international law, and applies to the treaty-making power of this government, whether exercised with a foreign nation or an Indian tribe, that all questions of disputed boundaries may be settled by the parties to the treaty. And to the exercise of these high functions by the government, within its constitutional power, neither the rights of a State nor those of an individual can be interposed."
27 It will be observed that Justice White's denial to the treaty power of the right to alienate incorporated territory, save as necessitated by a disastrous war, is not predicated upon the federal character of the United States, that is, upon a doctrine of reserved rights of the States, but upon the general constitutional character of the Federal Government as one deriving its power by grant from its citizens. Cf. American Law Register, February, 1907, p. 83, note.
28 14 Pet. 4; 10 L. ed. 328.