298 BURR— THE TREATY-MAKING POWER [April 20, 



to creating the territory acquired such part of the United States 

 that all the provisions of the Constitution became ipso facto appli- 

 cable. The right to acquire the territory was assumed: .Mr. 

 Justice White maintained that it was for Congress to determine its 

 status and that of its inhabitants when so acquired, and that the 

 treaty-making power had no such power. 



It is submitted that too much emphasis should not be given to 

 the language of Air. Justice White. The circumstances under which 

 he wrote do not require it — indeed, they rather militate against the 

 binding force of his words. His argument that the exercise of the 

 power " may wreck our institutions," simply states his political pref- 

 erence that a majority of each House of Congress shall have this 

 power rather than the President and two-thirds of the Senate. 

 There is. however, this forceful consideration back of Mr. Justice 

 White's words, that it is not the function of the treaty-making 

 power to legislate concerning the internal workings of government; 

 and if " incorporation " were pushed to its fullest meaning, it might 

 well be that the treaty-making power would exceed its functional 

 offices if by the language of a treaty, it attempted, propriore 

 I'iyorc, to create a State. Certainly, if the treaty-making power 

 should covenant that a State shall forthwith be carved out of a new 

 territory acquired by treaty, such undertaking would have the force, 

 neither more nor less, of a covenant to pay money. The contract 

 might or might not be performed by Congress. The history of the 

 exercise of the treaty-making power shows, however, as Air. Justice 

 White points out, that it has always been solicitous to reserve for 

 the subsequent decision and action of Congress any and all ques- 

 tions of internal governmental legislation. The exigencies of party 

 government and a proper regard for the dignity of the nation, would 

 seem to unite in preventing the problem discussed from ever arising 

 in the actual future history of the United States. 



In one form, however, these very exigencies of property gov- 

 ernment have manifested themselves and created a precedent with 

 respect to the acquisition of territory by the United States. When 

 the question of the annexation of Texas was a subject of violent 

 political controversy, a treaty was signed on April 12th, 1844, pro- 



