tional amendment giving to the National Government the necessary power be adopted. Writing to John C. Breckenridge, he declared: "The Constitution has made no provision for holding foreign territory, still less for incorporating foreign nations into the Union. The Executive, in seizing the fugitive occurrence which so much advances the good of the country, has done an act beyond the Constitution. The Legislators, in casting behind them metaphysical subtleties and risking themselves like faithful servants, must ratify and pay for it and throw themselves on their country for doing for them unauthorized what we know they would have done for themselves, had they been in a situation to do it.”

Jefferson stood by no means alone in his doubts as to the constitutional power of the United States to acquire foreign territory, but these doubts were not sufficiently general to lead the people to give expressly, by constitutional amendment, that right, the implied existence of which was questioned, and since that time both political and judicial precedent, have established beyond all uncertainty the implied existence in the National Government of the necessary authority in this matter.

The express grants of authority which have at different times been referred to as including by implication the right on the part of the United States to acquire foreign territory are the following:

1. The power to declare and carry on war (Art. I, Sec. 8, Clause 11).

2. The power to make treaties (Art. II, Sec. 2, Clause 2).

Besides these sources not few have argued the possession by the United States of this authority because of its "inherent sovereignty." This theory, though given a certain support by several obiter dicta of the Supreme Court,1 is, as earlier explained, an invalid one. To concede to the National Government powers neither expressly granted nor implied from those expressly granted, but as founded simply upon its sovereignty, is, in effect, to make of that government a government of unenumerated instead of enumerated powers. As was declared by Taney in denying that the President had the power to authorize the suspension of the writ of habeas corpus: "Nor can any argument be drawn from the nature of sovereignty. . . . 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." 2

Turning now to the proper view which holds the power to annex territory an implied one, we find that the Supreme Court has upon different occasions ascribed it to each of the two express powers that we have mentioned. In American Insurance Co. v. Canter (1 Pet., 511) Marshall declared: "The Con

1 American Insurance Co. v. Canter, 1 Pet., 511; Mormon Church v. United States, 136 U. S., 1; United States v. Huckabee, 16 Wall., 414; Jones v. United States, 137 U. S., 202. Cf. Gardiner, "Our Right to Acquire and Hold Foreign Territory," p. 6; Magoon, "Report on Legal Status of the Territory," etc., H. Doc. 234, 56th Cong., 1st Session, p. 3.

2 Vide Tyler, "Life of Taney," p. 651.

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 1.

U. S.,

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 reënacted 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.