power should be exercised by one man than by many.

The theory

of our governments, State and national, is opposed to the deposit of unlimited power anywhere."

The Attorney-General is kind enough to admit that there are some things Congress can not do, because of the spirit of our institutions, though he asserts it is unrestrained by its letter. But why appeal to the spirit when the case is covered by the letter?

Why not admit with Mr. Webster, in his great argument upon nullification, that this is a Government of limited powers and that whenever a federal power is exercised the person exercising it should be able to point to some clause of the Constitution as the justification for its exercise?

We hear much about the sovereignty of the United States in the arguments addressed to the court asserting that, while the founders of our institutions denied the omnipotence of Parliament, they decreed an omnipotent Congress over territories or colonies. We are told this is a sovereign nation and has all the powers of any other nation as such. I do not abate one jot or tittle from my country's greatness, though I utterly abhor the doctrine of national sovereignty you are here urged to adopt.

I concede we are a great nation, possessed of great powers, and perhaps the words sovereign and sovereignty have passed into such common and frequent use that it is no longer possible to protest against them, as Mr. Webster did in one of his great arguments, as unfitted to the character of our institutions and more appropriate to the other side of the Atlantic. It is well, however, to be precise in terms. What is meant by the assertion that the United States are a sovereign nation and as such possessed of all the powers of any other nation? If nothing more is intended than to assert that, in the exercise of the powers granted, the United States may use all the means appropriate to carry out such powers, I concede the proposition. As this court has held, questions of power do not depend upon the degree to which it may be exercised, but it may be exercised, if at all, at the will of those in whose hands it is placed. (Brown v: Maryland, 12 Wheat., 419; Martin v. Hunter, 1 Wheat., 304.)

The learned Attorney-General uses the term in no such restricted sense. It is used here as it has been in Congress in the sense that what any other nation may do in the exercise of the war power and the government of territory and people acquired by cession or conquest, the United States are permitted to do, not because of anything within the Constitution, but from the fact that we are a nation among the socalled powers of the earth.

For example, after quoting with great emphasis the assertion by the signers of the Declaration of Independence that the colonies, "as free and independent States, have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do," the learned AttorneyGeneral argues that at the time this declaration was made all independent States or nations claimed and exercised the right to acquire, hold, and govern foreign dependencies, and no State or nation then recognized its obligation to confer on the people of such acquired territory the rights, privileges, and immunities enjoyed by the people of the home government, except at its own will and discretion. If the Amer

ican States, when acknowledged to be sovereign by the King of Great Britain, rested under an obligation then resting on no other independent State, then success, great as it was, did not secure to them the full right to do "all the other acts or things which independent States may of right do."

This is a fair statement of the Attorney-General's contention in the case at bar.

In the first place, the powers declared by the Declaration to belong to the States are all powers relating to the external relations of these States with other States. They have nothing to do with the relation of these "free and independent States" to the people subject to their jurisdiction. Having resolved for reasons which negative the contention of the Government that they would not longer remain subject to Great Britain, and that they would enter the family of nations, they gave notice of their claim to the right to "levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent States may of right do." This was necessary to induce other nations to recognize the condition of war, have their flag respected, and secure the alliances which they hoped would follow their separation from Great Britain.

This was a mere declaration of independence which Mr. Hall (International Law, 4th ed., par. 10) defines as the power of giving effect to the decisions of a will which is free in so far as absence of restraint by other persons is concerned. Speaking of independence, this author

says:

"It merely secures to a State with respect to other States a general liberty of action within the law as defined by the other rights and by the duties of a State. A State is enabled to determine what kind and amount of intercourse it will maintain with other countries, so long as it respects its social duties, and by what conditions such intercourse shall be governed; it is permitted to form relations of alliance or of special friendship; it may make contracts containing any provision not repugnant to the law, and it may demand and exact reparation for acts done by other States which it may consider to be wrongs."

The author continues:

"The second branch comprehends a group of rights which go by the name of rights of sovereignty. The state community, in virtue of the supremacy of its common will over that of its individual members for the ends contemplated by it as a political society, puts them under obligations by its political, civil, and criminal legislation which are not only exclusive of all other like obligations within the national territory, but are not necessarily extinguished as between them and their own State when they enter a foreign country or some place not within the jurisdiction of any power.

Sovereignty thus embraces two conceptions:

First. The conception of a state independent from other states in the exercise of its will. In this sense the United States of America is a sovereign power in that its will is not subject to the will of any other government.

It may be remarked that there is no absolute unrestrained sovereignty even in this sense, as the body of law known as international law and

"intended to reflect the essential facts of civilization so far as they are fit subjects for international rules" operates as a limitation on this kind of sovereignty. (Hall, International Law, 4th ed., pp. 54–55.)

Second. With respect to the sovereignty existing in the state in virtue of its supremacy over the individual members for the ends contemplated by it as a political society, it can not be necessary to assert in this court that there are many limitations. The Federal and State constitutions have been framed to define and declare these. There are no other kinds of sovereignty than the two here enumerated.

I concede that in the first kind-i. e., the relations of the United States to other nations--our Government is a sovereign State, and has the right and as such "free and independent State has full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.” In this relation it is correct, as I conceive, to speak of the United States of America as a unit and use a singular verb.

It is such unit and has this power because there was created a Government upon which the people conferred these powers. If war is declared, it must be under the Constitution; if peace is concluded, it is in the exercise of a constitutional power; if commerce is established, it is because Congress, under the Constitution, was given power to regulate commerce; if alliances are contracted, it can only be done under the Constitution.

In short, the sovereign nation exists through the adoption of the Constitution, and its powers are derived from that instrument and must be found, as this court has often declared, in the language thereof or by necessary implication therefrom. We are in the Philippines and Porto Rico and can be rightfully there only in the exercise of some of these enumerated powers, as in the language of the tenth amendment, "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."

This amendment designates the Constitution as the source of the power of the United States, and excludes the idea of power free from constitutional restraint derived by implication from powers delegated by the Constitution.

Nor is it true that at the time this declaration was made all independent states or nations claimed and exercised the right to acquire, hold, and govern foreign dependencies, and no state or nation then recognized its obligation to confer on the people of such acquired territory the privileges and immunities enjoyed by the people of the home government, except at its own will and discretion. It is true that all independent states claimed and exercised the right to acquire territory, but if it were important in this case I think the arguments of Pitt, Camden, and Barré could be used to establish the proposition that under the British constitution, as it then was, that nation had from the time of King John and the great charter until King George recognized that its subjects had essential rights not dependent upon the "will and discretion" of the home Government. It is unnecessary to follow that subject here. It is sufficient that the Declaration of Independence was brought about by the assertion on the part of King George and his ministers of precisely the present doctrine of this Administration and its representatives in this court. If value is to be attached to contemporary history, that fact can not be lost sight of. The speeches

of Grenville and Townshend in favor of unlimited power on the part of Parliament over the American colonists and their affairs have been substantially parodied in Congress by the advocates of unrestrained power over our "colonies," as it is now unfortunately fashionable to denominate them. The signers of the Declaration of Independence held that, as subjects of the British constitution, there was no right to impose taxes upon them without their consent, to deprive them of trial by jury, to deprive them of their legislatures, and to declare Parliament invested with power to legislate for them "in all cases whatsoever." These and other grievances were held denials of rights belonging to every British subject as such and to justify rebellion and

war.

It seems impossible that a people who rebelled for such reasons established a State invested with the very power which they had denied to the British Government and the assertions of which made rebellion necessary.

This argument, that the power to declare war and conclude peace carries with it, as an auxiliary, power to do whatever other nations are accustomed to do with the people and territory acquired through the exercise of these powers, has a remarkable likeness to the arguments put forward at the beginning of the century with reference to the alien and sedition acts. The supporters of the constitutionality of these acts claimed that the common law had been introduced and become a part of the Constitution of the United States, and therefore the powers usually exercisable under the common law could be exercised by the Congress of the United States in the respects involved in those acts. Mr. Madison's letter discussing this contention was answered so far as it asserted the right of a State to nullify an act of Congress, but was never answered so far as it denied the existence of the common law as a part of the Constitution of the United States. His objections to that contention, succinctly stated, were that if the common law was a part of the Constitution, then there were no constitutional limitations. Congress, like Parliament, could legislate in all cases whatsoever; that the President would be possessed of the royal prerogatives (as is now claimed in this case by the Attorney-General); that the judiciary would have a discretion little short of legislative power; that these powers in the different branches of the Government would not be alterable, because, being in the Constitution, they could only be repealed by amendment of that instrument; and, lastly, that the Constitution would have a different meaning in different States, inasmuch as the common law was different in such States, and that it would lack the certainty which a constitution should have, as the common law was an ever growing or varying body of law, and therefore, with reference to the proper action of the Government in each instance, the question would be important as to what portion of the common law was in the Constitution and what not so embodied.

Nearly every sentence of Mr. Madison's able argument with reference to the common law as a part of the Constitution is applicable to the contention that sovereign powers, so called, as derived from or defined by international law, became a part of the Constitution of the United States through the delegation of the powers to make war, conclude peace, and make all needful rules and regulations respecting the territory and other property belonging to the United States.

This court has adopted the view of Mr. Madison. It is hoped that

the child of the old error by which again the executive and legislative power is sought to be enlarged through the incorporation into the Constitution of "the sovereign power of other nations" will receive the same answer.

In fact, we submit that this court has already held that sovereign power in the sense that the words are used in the law of nations as prerogative rights of the King or Emperor not only is not vested in the United States or in any branch of its Government, but can not be so vested. The sovereign power is with the people. In leaving it with the people our Government marked a departure from all that had previously existed.

In Pollard's Lessee v. Hagan, 3 How., 212, there was involved the extent of the interest of the United States in the rivers in Alabama and the lands adjacent thereto. Mr. Coxe in argument said:

"Prior to the treaty by which the United States acquired this territory the former sovereign claimed and exercised the rights which the United States have undertaken to exercise. But it is said that we must show that our Government could be the recipient of this power. Suppose we can not. Then the right must remain in Spain, which would be a strange result. But we say: "1st. That portion of sovereign power which is vested in the United States by our Constitution and laws is unlimited.

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2nd. The exercise of power by any department or functionary of the Government, as among and operating on ourselves, is limited. "3rd. The sovereign power as a nation in its foreign intercourse is subject to no constitutional restraint."

The court said:

"If it were true that the United States acquired the whole of Alabama from Spain, no such subsequences would result as those contended for. It can not be admitted that the King of Spain could, by treaty or otherwise, impart to the United States any of his royal prerogatives, and much less can it be admitted that they had capacity to receive or power to exercise them. Every nation acquiring territory by treaty or otherwise must hold it subject to the constitution and laws of its own government, and not according to those of the government ceding it. Vat. Law of Nations, b. 1, ch. 19, s. 210, 244, 245, and b. 2, ch. 7, s. 80."

In Martin v. Waddell, 16 Pet., 410, Chief Justice Marshall said:

"When the Revolution took place, the people of each State became themselves sovereign, and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution."

In Gibbons v. Ogden, 9 Wheat., 196, Chief Justice Marshall said of the power to regulate commerce:

"This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution."

In New Orleans v. United States, 10 Pet., 662, 735, the court, speaking of the claim that the sovereign rights of the Kings of France and H. Doc. 509- -30