As has been incidentally indicated in the preceding pages, the Supreme Court has held that whether or not the right to admit States into the Union carries with it the power to acquire new territory, this power is derivable from the authority of the General Government to declare and carry on war, and to enter into treaties. This it has repeatedly declared, both in earlier cases and in the recent so-called Insular Cases.

In American Insurance Co. v. Canter28 Marshall says, without, apparently, deeming an argument necessary: "The Constitution confers absolutely upon the government of the Union the power of making war and of making treaties; consequently that government possesses the power of acquiring territory, either by conquest or treaty." In Fleming v. Page29 Taney says: "The United States . . . may extend its boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace, in order to indemnify its citizens for the injuries they have suffered, or to reimburse the government for the expenses of the war." "In Stewart v. Kahn,30 the court say: "The war power and the treaty-making power each carries with it authority to acquire new territory." And in United States v. Huckabee31 it is declared: "Power to acquire territory either by conquest or treaty is vested by the Constitution in the United States."

27 Sen. Rpt. 681. 55th Cong., 2d Sess., pp. 47, 48. 281 Pet. 511; 7 L. ed. 242.

29 9 How. 603; 13 L. ed. 276.

30 11 Wall. 493; 20 L. ed. 176.

31 16 Wall. 414; 21 L. ed. 457.

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 statue 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

9 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."

This ease thus not only practically npheld 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 he 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.eed.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 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 lest 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 legitimate result of a fair construction of the provisions of the Constitution."