J9i-^.] OF THE UNITED STATES. 301 



In Dovvnes z's. Bidvvell,^^ which case we have already fully con- 

 sidered, Air. Justice White reviewed at considerable length the argu- 

 ment that territory might be ceded by the treaty-making power. 

 He showed that Jefferson absolutely denied this right, and con- 

 cluded : 



" 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.'"*" 



This question of the right of the treaty-making power to cede 

 territory is wholly a political question, and when, if ever, it arises 

 for determination, it will necessarily be determined upon wholly 

 political considerations. If it be found necessary or advisable for 

 the United States government to cede territory, the manner of the 

 ceding will be immaterial. Whatever the National government does 

 as a government will, it is apprehended, be recognized by the 

 Supreme Court as a political act, and as a thing accomplished. 



After the absolute prohibition contained in the first clause of 

 Article I., Section lo, of the Constitution to the effect that no State 

 shall enter into any treaty, the second clause forbids a State, inter 

 alia, from entering into any agreement or compact with another 

 State, or with a foreign power, without the consent of Congress. 

 The meaning of this second clause is the subject of some academic 

 interest. The difficulty is that an " agreement or compact with a 

 foreign power " is a precise and accurate definition of a treaty, and 

 the making of any treaty, with or without the consent of Congress, 

 is forbidden to any State. In the absence of any judicial interpreta- 

 tion of this clause, the following explanation is submitted. There 

 are two clauses on the subject because the Articles of Confederation 

 had two, and the applicable text therein contained was the basis of 

 the draft of the Constitution. There were two clauses in the Articles 

 of Confederation because the first was concerned with treaties with 

 foreign powers by the United States, and the second was concerned 



^182 U. S., 244 (igor). 

 " 182 U. S., p. 317. 



PROC. AMER. PHIL. SOC, LI. 2o6 Q, PRINTED SEPT. ID, I9I2. 



