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States with all its requirements and limitations, became at once effective therein by its own force, regardless of the action of Congress. In the popular language of the day, did the Constitution follow the flag? These questions were agitating the country even before the treaty was signed. The two extreme views were expressed very clearly by Senator Vest of Missouri and Senator Piatt of Connecticut during a debate in the Senate.5 On December 6, 1898, in contemplation evidently of the signing of the treaty, the former introduced a resolution to the effect "that under the Constitution of the United States, no power is given to the Federal Government to acquire territory to be held and governed permanently as colonies."
Senator Piatt's resolution asserted that the United States is a nation with all the powers of a nation.6
The United States had always held territory which was for a time out of the Union, and the Constitution recognized that such territory might be held as its property. The power to hold implies the power to acquire such territory, and the Supreme Court had held that the power was also implied from the express power to make war and treaties. "The Constitution," said Chief Justice Marshall,7 "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 by conquest or by treaty." Under the provisions of the Constitution Congress may either sell the territory which it so acquires, hold and govern it by such rules and regulations as it deems wise to make, or carve it up into numerous states and admit them into the Union. It follows that until new states are created out of the national territorial property and admitted into the Union the Constitution of the United States is not in force
5 For the conflicting views of jurists, see Thayer, 12 Harvard Law Rev. 464, March, 1899; Baldwin, Ibid., 393; Burgess, 14 Pol. Set. Quar. 1, March, 1899; Woolsey, Ann. Am. Acad. Pol. and Soc. Sci. Supp., p. 15, April 7, 1899.
6 Cong. Rec., Dec. 19, 1898, pp. 321, et seq.
7 American and Ocean Insurance Co. v. Canter, 1 Pet (U. S.) 511.