“There is no provision in the Constitution by which the national government is specifically authorized to acquire territory; and only by a great effort of the imagination can the substantive power to do so be found in the terms of any or all of the enumerated powers.”
“The United States has acquired territory through cession, purchase, conquest, annexation, treaty, and discovery and occupation. These methods are permissible under international law and have been approved by the Supreme Court.”
“The executive and the legislature have performed different roles in the acquisition of territory by each of these means. Unfortunately, the historical practice does not supply a precise explanation of where the Constitution places the power to acquire territory for the United States.” (Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea, October 4, 1988)
“In the Legal Tender Cases, Mr. Justice Strong, speaking for the majority of the court, said that the adoption of the first ten amendments indicated that in the judgment of those who adopted the Constitution there were powers created by it not specified nor deducible from, or ancillary to, any one specified power ‘but which grew out of the aggregate of powers conferred upon the government, or out of the sovereignty instituted.’”
“Mr. Justice Bradley in a concurring opinion characterized the United States as ‘a national government and the only government in this country having the character of nationality,’ and added:”
“Such being the character of the General government, it seems to be a self-evident proposition that it is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to every government as such, and as being essential to the exercise of its functions.” (George Sutherland, Constitutional Power and World Affairs (1919))
“The power of congress to acquire new territory, either by conquest, purchase, or annexation, was much debated at the time of the acquisition of Louisiana from France, in 1803, and in a less degree in connection with the purchase of Florida and of Alaska.”
“It has now come to be recognized and established, rather by precedent and the general acquiescence of the people, than by any strict constitutional justification. In fact, the power cannot be derived from any narrow or technical interpretation of the constitution.”
“But it is necessary to recognize the fact that there is in this country a national sovereignty. That being conceded, it easily follows that the right to acquire territory is incidental to this sovereignty. It is, in effect, a resulting power, growing necessarily out of the aggregate of powers delegated to the national government by the constitution.” (Handbook of American Constitutional Law)
“Territory is acquired by discovery and occupation where no other recognized nation asserts sovereignty over such territory. In contrast, when territory is acquired by treaty, purchase, cession, or conquest, it is acquired from another nation.” (Footnote, Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea, October 4, 1988)
“We have acquired much territory under treaty provisions and by conquest, and in such case the acquisition may be regarded as incidental to the powers mentioned …”
“… but we have also acquired territory by original discovery and appropriation alone. Such is the fact with reference to a large portion of Oregon; and such is peculiarly the fact with reference to certain small islands of the sea— the so-called Guano Islands.” (George Sutherland, Constitutional Power and World Affairs (1919))
“An act of congress passed in 1856, declared that guano islands taken into possession and occupation by American citizens, might be declared by the President to be ‘appertaining to the United States.’” (Handbook of American Constitutional Law)
“An act of Congress provides for the acquisition by Executive proclamation of any islands valuable for their deposits of guano, discovered by citizens of the United States and not, at the time of discovery, occupied or possessed by any other government or its citizens.” (George Sutherland, Constitutional Power and World Affairs (1919))
“In regard to this statute, the supreme court has recently declared that ‘by the law of nations, recognized by all civilized states, dominion of new territory may be acquired by discovery and occupation, as well as by cession or conquest …”
“‘… and when citizens or subjects of one nation, in its name, and by its authority or assent, take and hold actual, continuous, and useful possession (although only for the purpose of carrying on a particular business, such as catching and curing fish, or working mines) of territory unoccupied by any other government or its citizens …’”
“‘… the nation to which they belong may exercise such jurisdiction and for such period as it sees fit over territory so acquired. This principle affords ample warrant for the legislation of congress concerning guano islands.’” (Handbook of American Constitutional Law)
In 1811, another annexation of foreign territory (West Florida) resulted from a Presidential Proclamation followed by an act of Congress (House and Senate participation.)
The Supreme Court, in speaking of the power of Congress to establish the Territorial Government in Florida until it should become a state, declared, “In the mean time, Florida continues to be a territory of the United States …”
“… governed by virtue of that clause in the Constitution, which empowers Congress ‘to make all needful rules and regulations, respecting the territory, or other property belonging to the United States.’”
“Perhaps the power of governing a territory belonging to the United States, which has not, by becoming a state acquired the means of self-government, may result necessarily from the facts, that it is not within the jurisdiction of any particular state, and is within the power and jurisdiction of the United States.”
“The right to govern, may be the inevitable consequence of the right to acquire territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned.” (Canter Decision – Decision also cited in Dred Scott Decision)
Then, in Hawai‘i, “In 1893, ‘[a] so-called Committee of Safety, a group of professionals and businessmen, with the active assistance of John Stevens, the United States Minister to Hawai‘i, acting with the United States Armed Forces, replaced the [Hawaiian] monarchy with a provisional government.’ ‘That government sought annexation by the United States’ (Newlands Resolution).” (US Supreme Court)
“Then the provisional government grew into the constitutional Republic of Hawai‘i, and we have fully recognized that as the rightful and permanent government of Hawai‘i, and have kept our minister and consul-general at Honolulu and our war ships in that bay to protect them and the Republic….”
“No nation in the world has refused recognition of the Republic of Hawai‘i as the rightful Government, and none of them question its soverign [sic] right to deal with any question that concerns the people of Hawai‘i.” (Fifty-Fifth Congress, Second Session, Committee on Foreign Relations, March 16, 1898)
“This act also establishes the fact that a treaty with a foreign State which declares the consent of such State to be annexed to the United States, although it is rejected by the Senate of the United States, is a sufficient expression and authentication of the consent of such foreign State to authorize Congress to enact a law providing for annexation …”
“… which, when complied with, is effectual without further legislation to merge the sovereignty of such independent State into a new and different relation to the United States and toward its own people.” (Fifty-Fifth Congress, Second Session, Committee on Foreign Relations, March 16, 1898)
On May 5, 1898, Representative Francis Newlands, of Nevada, offered a joint resolution addressing the annexation of Hawai‘i. Though considerable opposition to annexation was still manifested in the House, the Newlands resolutions were finally passed.
The resolutions were immediately reported to the Senate, which had been discussing the treaty for nearly a year. That body referred them to its Committee on Foreign Relations, which in turn at once favorably reported them.
On June 15, 1898, the Newlands resolution passed the House by a vote of 209 to 91; the vote on the Newlands Resolution in the Senate was 42 to 21 (2/3 of the votes by Senators were in favor of the resolution, a significantly greater margin was cast by Representatives in the House.) (Cyclopedic Review of Current History, 4th Quarter 1898)
The US Constitution, Article II, Section 2 states: “(The President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur …” The following day, July 7, 1898, President McKinley signed the Newlands Resolution it into law.
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