It is to be observed that in none of these cases is there any argument to show just why, and in what manner, the acquiring of the foreign territory is a necessary or proper means by which war may be carried on, or treaties entered into. In fact it will be seen that the acquiring of foreign territory has been treated as a result incidental to, rather than as a means for, the carrying on of war and the conducting of foreign relations.

This leads us to the consideration of the doctrine which, constitutionally speaking, appeals to the author as the soundest mode of sustaining the power of the United States to acquire territory, as well as the one which, in application, affords the freest scope for its exercise. According to this doctrine, the right to acquire territory is to be searched for not as implied in the power to admit new States into the Union, or as dependent specifically upon the war and treaty powers, but as derived from the fact that in all relations governed by the principles of International Law the General Government may properly be construed to have, in the absence of express prohibitions, all the powers possessed generally by States of the World. This doctrine thus is that the control of foreign relations being exclusively vested in the United States, that government has in the exercise of this jurisdiction the same power to annex foreign territory that is possessed by other sovereign States. The argument in support of this doctrine has already been given in Section 36 of this treatise.

In one instance at least, the United States has acquired territory under an authority which could not be, and was not alleged to be, derived from the treaty-making power or from any other specific express power, but was upheld by the Supreme Court as based upon the general sovereignty of the nation in all that falls within the field governed by international law.

In 1856 Congress, by a statute which was re-enacted in the Revised Statutes, declares that whenever any citizen of the United States shall discover a deposit of guano on any island, rock, or key not within the lawful jurisdiction of any other government, and shall take possession thereof, such island, rock, or key may, at the discretion of the President, "be considered as appertaining

to the United States." Furthermore, the act goes on to declare all crimes committed on such island, rock, or key to be punishable according to United States law in the federal courts. Upon one Jones being convicted of murder under the provisions of this statute he took an appeal to the Supreme Court upon the ground that the federal law and federal court could not take cognizance of acts committed on the island in question because that island was not constitutionally a part of the United States. In overruling this plea the Supreme Court spoke as follows: "By the law of nations, recognized by all civilized States, dominion of new territory may be acquired by discovery and occupation, as well as by cession or conquest; and when citizens or subjects of one nation, in its name and by its authority or with its assent, take and hold actual, continuous, and useful possession (although only for the purpose of carrying on a particular business, as catching and curing fish, or working mines) of territory unoccupied by any other government or its citizens, the nation to which they belong may exercise such jurisdiction and for such period as it sees fit over territory so acquired. This principle affords ample warrant for the legislation of Congress concerning Guano Island. Who is the sovereign, de jure or de facto, of a territory is not a judicial, but a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens, and subjects of that government. This principle has always been upheld by this court, and has been affirmed under a great variety of circumstances." 32

This case thus not only practically upheld the right of the United States to acquire territory by discovery and occupation, but applied the principle that the United States may exercise a power not enumerated in the Constitution, provided it be an international power generally possessed by sovereign States.

33

32 Jones v. United States, 137 U. S. 202; 11 Sup. Ct. Rep. 80; 34 L. ed. 691. 33 A clear statement of the power of the United States to annex territory because of its national sovereignty was made by Senator Foraker, in the United States Senate July 1, 1898, in a debate with reference to the annexation of Hawaii. Speaking of the original thirteen States before they

§ 152. Power of the United States to Alienate Territory.

The subject will be discussed in Chapter XXXV of this treatise. came into the Union, he said: "Each one of those sovereign States had every power that sovereignty enjoys ordinarily, and among the powers so enjoyed by each one of the sovereign States was the power to make treaties with foreign nations, and any kind of a treaty it might choose to make, because there was no restriction unless by itself upon the exercise of that power. It could make war; it could make a treaty for the acquisition of territory; it could annex in any way it saw fit to annex. But, Mr. President, no Senator will contend here that any State in this Union has that power now. That power has been lost to each and every State of the Union. As the price for coming into the Union, it was required to surrender it. The Constitution of the United States prohibits to the States the exercise of the treaty-making power with foreign nations. It prohibits all kinds of transactions on the part of States with foreign nations. No State could acquire territory by treaty in any other manner. Therefore each one of the States in the Union has surrendered that power of sovereignty. No one of them has it. Are we to be told that that inherent power of sovereignty, which every State enjoyed before it came into the Union, has been lost to the States and has not been given to any other power? What has become of it? Where has it gone? Our contention is that when to the States was denied this power, which they had a right to exercise as a sovereign power, it went by implication to the General Government among the implied powers, and it is not any "higher law." It seems to me it is but the necessary and legiti mate result of a fair construction of the provisions of the Constitution."

This theory has been declared by several publicists, and in a number of obiter dieta, of the Supreme Court. Thus Magoon in his Report to the War Department on the "Legal Status of the Territory and Inhabitants of the Islands Acquired by the United States During the War with Spain," says: "The United States derives the right to acquire territory from the fact that it is a nation; to speak more definitely, a sovereign nation. Such a nation has an inherent right to acquire territory, similar to the inherent right of a person to acquire property." So also Mr. Charles A. Gardner declares: “The nation needs no express grant of power for any international act. . . . The right to acquire territory irrespective of its situs, contiguous or foreign, by conquest, treaty, purchase or discovery, is an acknowledged and well established attribute of sovereignty and has been exercised by sovereigns from the beginning of recorded history. No one pretends that the right is specifically enumerated in the Constitution. Hence it remains an attribute of the sovereign people, and Congress and the President, the sole agents and trustees of that sovereignty, have exclusive and unrestricted power to exercise it. I advance the proposition with deference that this right is itself a primary and substantive attribute of sovereignty, as is the right of national existence or self-defence; and I shall regard it in this discussion as the primary and fundamental authority for territorial expansion." (Pamphlet entitled "Our Right to Acquire and Hold Foreign Territory." Published 1899.)

For an excellent argument for the support of the position here taken see also the prize essay of Mr. W. H. Bikle, entitled "The Constitutional Power of Congress Over the Territory of the United States," and published as a supplement to the American Law Register for August, 1901. See also Butler, "The Treaty-Making Power of the United States." Butler declares his opinion to be: "That the treaty-making power of the United States, as vested in the Central Government, is derived not only from the powers expressly conferred by the Constitution, but that it is also possessed by that government as an attribute of sovereignty, and that it extends to every subject which can be made the basis of negotiation and contract between any of the sovereign powers of the world, or in regard to which the several States of the Union themselves could have negotiated and contracted if the Constitution had not expressly prohibited the States from exercising the treaty-making power in any matter whatever and vested that power exclusively in, and expressly delegated it to, the Federal Government."

CHAPTER XXIII.

THE MODES IN WHICH, AND PURPOSES FOR WHICH, TERRITORY MAY BE ACQUIRED BY THE UNITED STATES.

§ 153. Constitutional Modes of Acquiring Territory.

Having shown the constitutional power of the United States to acquire territory whether by treaty, conquest, or discovery and occupation, we now approach the question as to the modes by which this federal authority may be exercised.

A history of the territorial expansion of the United States shows that territories have been annexed in three different ways: (1) by statute, (2) by treaty, and (3) by joint resolution.

The process of extending American sovereignty by simple statute and executive action authorized thereby was illustrated, as we have just seen, in the case of the Guano Islands. The annexation of territory by treaty has been the method most usually employed. The Louisiana Territory, Florida, Alaska, the Mexican cessions, the Samoan Islands, Porto Rico, and the Philippines were obtained in this manner. The constitutionality of this mode of acquisition has already been discussed.

§ 154. Annexation by Joint Resolution.

In two instances, that of Texas in 1845, and Hawaii in 1898, the sovereignty of the United States has been extended over new territory by means of a Joint Resolution of the Houses of Congress. In the case of Texas an attempt had been made to annex the State by treaty, but this effort, requiring a two-thirds favorable vote in the Senate, had failed. Thereupon the same end was secured by a Joint Resolution which needed but a simple majority vote in each of the two branches of the national legislature, with, of course, the approval of the President. This resolution provided that "Congress doth consent that the territory properly included within and rightfully belonging to the Republic of Texas may be erected into a new State to be called the State