19

corresponding federal powers. In Fong Yue Ting v. United States that court say: "The United States are a sovereign and independent nation, and are vested by the Constitution with the entire control of international relations, and with all the powers of government necessary to maintain that control and to make it effective."

Thus, from this general source has been deduced the implied power of the United States to punish the counterfeiting in this country of the securities of foreign countries, the authority to annex by statute unoccupied territory, to establish in foreign countries judicial tribunals, to lease and administer foreign territory, to include or to expel from our shores undesirable aliens, and in general to exercise by treaty or statute all those powers properly to be embraced under the term "foreign relations" which other sovereign States possess. The extent of the authority of the United States under its treaty-making powers will receive special treatment in a later chapter. It is sufficient to point out in this place that decisions of the Supreme Court have established the doctrine that in the exercise of its treaty-making powers, and in fulfilling its international responsibilities, the United States may exercise regulative control over matters which are not within the legislative power of Congress and which are in general reserved to the States. In short, it may be stated as an established principle of our constitutional law that the supreme purpose of our Constitution is the establishment and maintenance of a State which shall be nationally and internationally a sovereign body, and, therefore, that all the limitations of the Constitution, express and implied, whether relating to the reserved rights of the States or to the liberties of the individual, are to be construed as subservient to this one great fact.

§ 37. Resulting Powers.

The two preceding sections have shown that the doctrine of implied powers is sufficiently broad to justify the exercise by the Federal Government of powers not deduced from specific grants

19 149 U. S. 698; 13 Sup. Ct. Rep. 1016; 37 L. ed. 905.

of authority, but from the general fact that the United States is, with reference to its own citizens and its constituent Commonwealths, a fully sovereign national State, and, with reference to other States, a political power equipped with all the authority possessed by other independent States. Story in his Commen taries describes as "Resulting Powers" these federal powers which result from the aggregate authority of the General Government. That federal authority may be deduced from this general source and that it is not necessary for the Federal Government to trace back every one of its powers to some single grant of authority, was early stated by Marshall in Cohens v. Virginia." In that case he said: "It is to be observed that it is not indispensable to the existence of every power claimed for the Federal Government that it can be found specified in the words of the Constitution, or clearly and directly traceable to some one of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers expressly defined, or from them all combined. It is allowable to group together any number of them and to infer from them all that the power claimed has been conferred." And later in the same opinion he says: "And it is of importance to observe that Congress has often exercised, without question, powers that are not expressly given nor ancillary to any single enumerated power."

§ 38. Inherent Sovereign Powers.

Sometimes confused with, but quite distinct from the doctrine which ascribes to the Federal Government plenary authority in matters international, and quite different also from the doctrine of resulting powers is that theory which argues the possession generally by the United States of "inherent" sovereign powers

that is, powers not regarded as implied in express grants of authority whether singly or collectively considered, but as flowing directly from the simple fact of national sovereignty. The two former doctrines are fairly deducible from the doctrine of implied powers. The latter doctrine, upon the contrary, would

20 6 Wh. 264; 5 L. ed. 257.

derive federal authority not from powers expressly granted, but from an abstraction, and would, at a stroke, equip the Federal Government with every power possessed by any other sovereign State.21

There can be no question as to the constitutional unsoundness, as well as of the revolutionary character, of the theory thus advanced. To accept it would be at once to overturn the long line of decisions that have held the United States Government to be one of limited, enumerated powers. Taney in denying the President the right to authorize a suspension of the writ of habeas corpus explicitly repudiated the doctrine. "Nor can any argument be drawn," he said, "from the nature of sovereignty, or the necessities of government for self-defense in times of tumult and

21 This theory has played a certain part in our constitutional history for many years, and was especially pressed during the period following the Spanish-American War and before the decision of the recent Insular Cases. Thus, Senator Platt of Connecticut declared in the Senate, December 19, 1898, that the United States " possesses every sovereign power not reserved in its Constitution to the States or to the people; that the right to acquire territory was not reserved, and is, therefore, an inherent sovereign right; that it is a right upon which there is no limitation and with regard to which there is no qualification, that in certain instances the right may be inferred from specific clauses in the Constitution but that it exists independent of the clauses; that in the right to acquire territory is found the right to govern it; that as the right to acquire is a sovereign and inherent right, the right to rule is a sovereign right not limited in the Constitution." Congressional Record, XXXII, No. II, pp. 321-3.

So also, Senator Foraker of Ohio declared in the Senate, July 1, 1898, in response to a question as to the constitutional source whence he derived the power of the United States to annex foreign territory, that "the power was to be found inherent in our sovereignty — attached to it necessarily as a part of our sovereignty as a nation," and "was also to be found in the Constitution expressly conferred upon Congress by that provision of the Constitution which authorizes Congress to provide for the general welfare." When asked if he called this doctrine the "higher law," he replied: "The proposition is that it is inherent in sovereignty to do whatever sovereignty may see fit to do, and among other things to acquire territory."

Of substantially the same character are the arguments of Gardiner (Our Right to Acquire and Hold Foreign Territory, Putnams', 1899), and of Magoon, Law Officer, War Department (Report on the Legal Status of the Territory and Inhabitants of the Islands Acquired by the United States during the War with Spain. Doc. 234, 56th Cong., 1st Session).

danger. The Government of the United States is one of delegated and limited powers. It derives its existence and authority altogether from the Constitution and neither of its branches can exercise any of the powers of government beyond those specified and granted." 22

Unfortunately, however, the Supreme Court has not always been as careful as it might have been in repudiating the argument based upon the inherent sovereign rights of the National Government. Although it has never explicitly justified the exercise of a power by the Federal Government upon this ground, it has, obiter, several times used language suggesting its validity.”

22 Ex parte Merryman (Campbell's Reports, 246).

23 In the Legal Tender Cases (12 Wall. 457; 20 L. ed. 287), Justice Bradley says: "The United States is not only a Government but it is a National Government, and the only government in this country that has the character of nationality. It is invested with power over all the foreign relations of the country, war, peace, and negotiations and intercourse with other nations; all of which are forbidden to the state governments. . . . Such being the character of the General Government it seems to be a self-evident proposition that it is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to every government as such, and as being essential to the exercise of its functions. If this proposition be not true, it certainly is true that the Government of the United States has express authority in the clause last quoted, to make all such laws (usually regarded as inherent and implied) as may be necessary and proper for carrying on the government as constituted and vindicating its authority and existence."

In United States v. Jones (109 U. S. 513; 3 Sup. Ct. Rep. 346; 27 L. ed. 1015) the power of eminent domain was declared to be possessed by the United States as an "incident of sovereignty," and because it "belongs to every independent government."

In Church of Jesus Christ v. United States (136 U. S. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 478) "the power to make acquisitions of territory by conquest, by treaty, and by cession" was declared to be possessed by the United States, not from any express or otherwise implied power, but because these are "an incident of national sovereignty."

In Fong Yue Ting v. United States (149 U. S. 698; 13 Sup. Ct. Rep. 1016; 37 L. ed. 905) "the right to exclude or expel all aliens, or any class of aliens. absolutely or upon certain conditions in war or in peace," was declared to belong to the United States as "an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare."

These dicta which are cited in the footnote, if taken by themselves might seem to indicate the acceptance by the Supreme Court of the doctrine of inherent sovereign powers of the General Government. An examination of the cases in which they were delivered discloses, however, that in each instance they were obiter, the power that was sustained being actually justified as a resulting or implied power. In the recent Insular Cases the doctrine was strongly urged upon the court but received no countenance; and in Kansas v. Colorado,24 a case decided in 1907, in which the doctrine was set up in a somewhat disguised form, the court was emphatic in its repudiation.25

24 206 U. S. 46; 27 Sup. Ct. Rep. 655; 51 L. ed. 956.

25 After referring to the absence of power in the Federal Government to control private property in the States, Justice Brewer, who rendered the opinion of the court, said: "Appreciating the force of this, counsel for the government relies upon the doctrine of sovereign and inherent power;' adding, 'I am aware that in advancing this doctrine I seem to challenge great decisions of the court, and I speak with deference.' His argument runs substantially along this line: All legislative power must be vested in either the state or the national government; no legislative powers belong to a state government other than those which affect solely the internal affairs of that State; consequently all powers which are national in their scope must be found vested in the Congress of the United States. But the proposition that there are legislative powers affecting the Nation as a whole which belong to, although not expressed in the graut of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the Amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the Tenth Amendment. This Amendment, which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the National Government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if in the future, further powers seemed necessary, they should be granted by the people in the manner they had provided for amending that act. It reads: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' The argument of counsel ignores the principal factor in this article, to wit, 'the people.' Its principal purpose was not the distribution of power between the United States and the States, but a reservation to the people of all powers not granted. The pre