485] IN INTERNATIONAL AND CONSTITUTIONAL LAW 1 87 



been alienated to another power."** It is generally held that 

 the right to alienate United States territory, if the occasion 

 should arise, is inherent in the treaty making power. This 

 right of alienation under the treaty making power has been 

 questioned by various obiter statements of the Supreme 

 Court. For example, in De Geofroy v. Riggs, Justice Field 

 asserted that the United States could not by treaty cede the 

 territory of any State without the latter's consent.*' 



Reference has been made to the adjustment of the north- 

 eastern boundary dispute in 1842 with Great Britain " in 

 which the United States, before coming into an agreement 

 with Great Britain, obtained the cooperation and concur- 

 rence of Maine and Massachusetts."*^ However, from the 

 correspondence of Webster, then Secretary of State, to the 

 Governor of Maine " it does not appear . . . that he con- 

 sidered this a constitutional necessity, but rather that it was 

 expedient from a political standpoint that the opinion of 

 these two States should be considered."*^ 



In the case of Downes v. Bidwell, Justice White argued 

 that the United States could not alienate under the treaty 

 power any of its incorporated territory either by sale or 

 trade. However, he admitted that " from the exigency of a 

 calamitous war or the necessity of a settlement of bound- 

 aries, it may be that citizens of the United States may be 

 expatriated by the action of the treaty-making power, im- 

 pliedly or expressly ratified by Congress."*"^ 



The American policy in the matter of alienation is well 

 expressed in the words of Kent in his Commentaries: "The 

 better opinion would seem to be, that such a power of ces- 

 sion of the territory of a State without its consent does re- 

 side exclusively in the treaty-making powers . . . yet sound 



** Ibid., vol. i, pp. 507-508. 



♦* Ibid., vol. i, p. 508. 



<« Ibid., vol. i, pp. 508-509. 



<^ Ibid., vol. i, p. 509. In this letter Webster wrote: "In the pres- 

 ent position of affairs, I suppose it will not be prudent to stir in the 

 direction of a compromise without the consent of Maine." 



*•* A more detailed account of the United States Supreme Court 

 statements referred to is found, ibid., vol. i, pp. 508-513. 



