statehood was intended to be granted the lands and peoples obtained. Indeed, as we have seen, as regards the contiguous continental territories of the United States, it has been uniformly held that the grant to them of statehood lies wholly within the discretion of Congress, and that no legal means exist for compelling action should that body arbitrarily refuse for an indefinite length of time to grant this privilege to a deserving territory.

The question whether or not territory not contiguous to the other territory of the United States may be annexed is very similar to the one just discussed and may be answered in much the same manner. For this purpose we may borrow the words of the report of the Committee favoring the annexation of Hawaii: "The fact that territory is contiguous or noncontiguous is to be considered in reference to the policy or expediency of annexation, but it is submitted that both on principle and precedent there is all the constitutional power necessary to accomplish annexation. in any case where annexation is deemed to be to the interest of this country. The fact that territory is contiguous or noncontiguous can have no bearing upon the constitutionality of its acquisition; but simply goes to affect the value of the territory proposed to be annexed. On general principles, if it is contiguous, it is more easily governed and defended. But whether this is so or not depends upon circumstances. In these days distance is not a matter of miles, but of hours. When California was annexed it was two months distant from the centre of civilization in the United States. Honolulu to-day lies only ten and a half days from Washington. As to the arguments presented in favor of the unconstitutionality of the annexation of noncontiguous territory, it is submitted that because our forefathers of 1776 did not discuss or contemplate any given proposition is no reason, constitutional or otherwise, why their children should not discuss and contemplate any and every problem which is presented to them in 1897 upon its merits, whether their ancestors ever heard of such subject or not. It is further submitted that the precedents in United States history are all against the unconstitutionality of the annexation of noncontiguous territory. Alaska is separated

from the United States by a vast foreign territory. Midway Island is approximately three thousand miles from the American coast. The Aleutian Islands, reaching almost to the Asiatic coast, extend twelve hundred miles west of Alaska, and the guano islands are scattered all over the Pacific and the Caribbean Sea." 1727

§ 151. The Right to Annex Based on the Treaty and WarMaking Powers.

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. Page 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.

23 1 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 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 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." 32

This case thus not only practically upheld 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 be an international power generally possessed by sovereign States.

32 Jones v. United States, 137 U. S. 202; 11 Sup. Ct. Rep. 80; 34 L. ed. 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

It is to be observed that in none c argument to show just why, and in 1 of the foreign territory is a necessar war may be carried on, or treaties e be seen that the acquiring of forei as a result incidental to, rather than on of war and the conducting of f

This leads us to the considerat stitutionally speaking, appeals to of sustaining the power of the 1 as well as the one which, in a for its exercise. According to territory is to be searched fo admit new States into the upon the war and treaty p that in all relations gover Law the General Governu in the absence of expregenerally by States of t control of foreign relat States, that governmen the same power to a other sovereign Sta trine has already 1