stitution confers absolutely upon the government of the Union the powers of making war and of making treaties; consequently that government possesses the power of acquiring territory, either by conquest or treaty." This dictum is approvingly quoted in one of the recent so-called Insular Cases (De Lima v. Bidwill, 182 U. S., 1), decided in 1901.1

In addition to the above sources it has been argued by some, and even intimated on one or two occasions by the Supreme Court, that the power to acquire new territory may be found in the right of Congress to admit new states to the Union. Not only, however, is reference to this source for authority unnecessary, but, when appealed to, would not seem to yield to the National Government as ample powers as are furnished it when the treaty and war powers are relied upon.2 According to the general principles of International

1 To the same effect see Mormon Church v. United States, 136 U. S., 1.

2 "If it [the power of annexation] is to be implied only from the latter power [the right to admit new States], it would seem quite reasonable to hold that it could be exercised in any case only for the purpose of creating a new State out of the acquired territory, and there would be no power to govern it except for that purpose; but the right of Congress to admit the acquired territory as a State or States, or to refuse to do so, according to its own judgment and discretion, is universally admitted, and, therefore, it would seem to follow that the power to acquire and govern cannot be derived from the power to admit, for, if it did, all territory acquired by either of the methods stated would have to be converted into a State or States. It may be said that no territory ought to be acquired which cannot be ultimately fitted for admission as a State or States-but this is a political and not a judicial question."-Address of John G. Carlisle before the American Bar Association, 1902.

Law, every sovereign State has the right to acquire territory by discovery and occupation. Whether or not, however, the United States has that right, when considered from the viewpoint of its own Constitution, is not at once as obvious. However, the Supreme Court has in effect recognized as valid an exercise of this right by the United States. This it did under the following circumstances.

In 1856 Congress, by a statute which was reenacted in the Revised Statutes, declared that whenever any citizen of the United States should discover a deposit of guano on any island, rock, or key not within the lawful jurisdiction of any other government, and not occupied by the citizens of any other government, and should take possession thereof, such island, rock, or key might, at the discretion of the President "be considered as appertaining to the United States." Furthermore, the act went on to declare, all crimes committed on such island, rock, or key should 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 Islands. . . . 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" (Jones v. United States, 137 U. S., 202).

This case thus not only practically upheld the right of the United States to acquire territory by discovery and occupation, but came very near to applying, if not explicitly stating, the principle, which we believe to be a dangerous if not an invalid one, that the United States may exercise a power not enumerated in the Constitution, provided it be a power generally possessed by sovereign States. It may possibly be argued, however, that the right thus to acquire territory may be upheld, and was intended in the Jones case to be upheld, as a power impliedly included within the general power given the Union to control all matters subject to regulation by the law of nations.

CHAPTER XII

THE MODES IN WHICH, AND PURPOSES FOR WHICH, TER RITORY MAY BE ACQUIRED BY THE UNITED STATES

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. Thus the Louisiana Territory, Florida, Alaska, the Mexican cessions, the Samoan Islands, Porto Rico, and the Philippines were obtained in this manner.

In some cases the United States was in actual effective military possession of the territories thus acquired for some time prior to the treaties that provided for

their transfer to the United States. The Supreme Court has uniformly held that during this period of military possession, but before formal transfer by treaty, the lands in question remain foreign territory. Thus in Fleming v. Page (9 How., 603) the Court said: "A war . . declared by Congress can never be presumed to be waged for the purpose of conquest or the acquisition of territory; nor does the law declaring the war imply an authority to the President to enlarge the limits of the United States by subjugating the enemy's country. The United States, it is true, 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 expense of the war; but this can be done only by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war. His duty and his power are purely military. . . . He may invade the hostile country and subject it to the sovereignty and authority of the United States; but his conquests do not enlarge the boundaries of this Union nor extend the operations of our institutions and laws beyond the limits before assigned to them by the legislative power."

This principle, thus laid down, has been reaffirmed in the recent Insular Cases in which was determined the constitutional status of the islands obtained from Spain.1

1Dooley v. United States, 182 U. S., 222. President McKinley was criticized, and with justice, for issuing on December 21, 1898, that