"Acquired"   Territories

(Historical Information Sources: John Keats, Eminent Domain, Charterhouse, c1973 at pgs. 342-347 and Alfred H. Kelly and Winfred A. Harbison's The American Constitution - Its Origins & Development, W.W. Norton & Co., Inc. c1970, pgs. 220-223.)

The Louisiana purchase contained the future lands of seven States and parts of six others: Louisiana, Arkansas, Missouri, Iowa, Nebraska, Kansas, Oklahoma and parts of Minnesota, North Dakota, South Dakota, Colorado, Wyoming and Montana.

In 1804 the Territories of New Orleans and Missouri were created out of land from the Louisiana purchase; 1830 - Indian (or Oklahoma) Territory was created; 1838 - Iowa Territory was created from part of Wisconsin; 1849 - Minnesota Territory established; 1854 - Kansas and Nebraska Territories created; 1861 - the Dakotas, and Colorado; 1863 Idaho Territory created; 1864 -Montana Territory created out of Idaho; and 1868 - Wyoming Territory created out of Dakota, Utah and Idaho Territories.

The mode of governing "acquired" territory, ceded by treaty, (Florida, Louisiana,) was not the same as that of the "western wastelands" to which jurisdiction had either been ceded by the original States under the Northwest and Southwest Ordinances, or claimed as within the boundaries of the United States and confirmed by treaty cession.

The primary issue concerning the ratification of the treaty to cede Louisiana was constitutional - whether the national United States could acquire territory by purchase. It was determined that such acquisition was possible under the treaty-making power.

This was later confirmed in American Insurance Co. v. 356 Bales of Cotton (Canter), 26 US 511 (1828,) where Justice Marshall declared:

"The Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty."

Once the new territory was acquired, however, the question remained as to how it was to be governed. It may be recalled from Part I of this web site, that under the Law of Nations, a distinction was made in governing colonies planted in a "discovered," unappropriated land and a land acquired by treaty or cession, which had already been cultivated and organized. If an uninhabited country was discovered and colonized, the mother counrty's laws were said to be immediately in force there. However, the entire body of law was understood to have application to these new circumstances only to the extent that it was found to be applicable to the settlers' new situation and consistent with their local comfort and prosperity.

A different rule applied to conquered and ceded countries that already had laws of their own. In such cases, the local institutions, laws, customs and property rights of the ceded country remained substantially intact, so far as not repugnant to moral or religious principals. The new sovereign had a right to abrogate existing laws and institute new ones if necessary, so far as consistent with treaty provisions. Until such new laws were promulgated, the old laws, customs and institutions of the acquired country remained in full force.

In American Insurance v. Canter, Justice Marshall states:

"...The usage of the world is...the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed; either on the terms stipulated in the treaty of cession, or on such as its new master shall impose. On such transfer of territory, it has never been held, that the relations of the inhabitants with each other undergo any change...Their relations with their former sovereign are dissolved, and new relations are created between them, and the government which has acquired their territory. The same Act which transfers their country, transfers the allegiance of those who remain in it; and the law, which may be denominated political, is necessarily changed, although that which regulates the intercourse, and general conduct of individuals, remains in force, until altered by the newly created power of the state.

"...it is obvious, that there is a material distinction between the territory now under consideration [Florida,] and that which is acquired from the aborigines (whether by purchase or conquest,) within the acknowledged limits of the United States, as also that which is acquired by the establishment of a disputed line. [Boundary Treaty of 1795 in the "Southwest Territory."] As to both these there can be no question, that the sovereignty of the state or territory within which it lies, and of the United States, immediately attach, producing a complete subjection to all the laws and institutions of the two governments, local and general, unless modified by treaty.

..."The question now to be considered, relates to territories previously subject to the acknowledged jurisdiction of another sovereign; such as was Florida to the crown of Spain. And on this subject, we have the most explicit proof, that the understanding of our public functionaries, is, that the government and laws of the United States do not extend to such territory by the mere Act of cession. For, in the Act of Congress, of March 30th, 1822, section 9th, we have an enumeration of the Acts of Congress, which are to be held in force in the territory; and, in the 10th section an enumeration, in nature of a bill of rights, of privileges, and immunities which could not be denied to the inhabitants of the territory, if they came under the Constitution by the mere Act of cession.

"At the time the Constitution was formed, the limits of the territory over which it was to operate were generally defined and recognised. These limits consisted in part, of organized states, and in part of territories, the absolute property and dependencies of the United States. These states, this territory, and future states to be admitted into the Union, are the sole objects of the Constitution; there is no express provision whatever made in the Constitution for the acquisition or government of territories beyond those limits.

"The right, therefore, of acquiring territory is altogether incidental to the treaty-making power, and perhaps to the power of admitting new states into the Union; and the government of such acquisitions is, of course, left to the legislative power of the Union, as far as that power is uncontrouled by treaty....in case of such acquisitions, I see nothing in which the power acquired over the ceded territories, can vary from the power acquired under the law of nations by any other government over acquired or ceded territory. The laws, rights and institutions of the territory so acquired remain in full force, until rightfully altered by the new government..."

"...This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities, of the citizens of the United States. It is unnecessary to inquire, whether this is not their condition, independent of stipulation. They do not, however, participate in political power; they do not share in the government, till Florida shall become a state."

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