to the United States all crimes committed on se according to United States in Jones being convicted of statute he took an appeal to the Sp that the federal law and of acts committed on the im was not constitutionally a ruling this plea the Su law of nations, recognire new territory may be to be adopted by ention assembled, n order that the e Union." Upon e, Congress later tes of the Ameri e was not simply Joint Resolution the Union, and atus. This fact, to the action of n by the Constituon, and, therefore, her American comgitimate exercise of was another instance vereignty by a simple Congress. In this case, xas, admitted as a State y annexed as a territory. tion of Hawaii, by a simple ested at the time both in Conght to annex by treaty was not this might be done by a simple tion of one sovereign State, such as ation, in the territory of another, is, a matter falling within the domain of and, therefore, beyond the reach of legismeans of treaties, it was asserted, can the tes be governed, for a legislative act is necesraterritorial force-confined in its operation f the State by whose legislature it is enacted. To at Senator Foraker argued that though a treaty proper mode for annexing a portion of the territory § 152. Power of the United States to Alienate Territory. The subject will be discussed in Chapter XXXV of this treatise. 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 lost 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." This theory has been declared by several publicists, and in a number of obiter dicta, of the Supreme Court. Thus Magoon in his Report to the War Department on the "Legal Status of the Territory and Inhabitants of the Islands Acquired by the United States During the War with Spain," says: "The United States derives the right to acquire territory from the fact that it is a nation; to speak more definitely, a sovereign nation. Such a nation has an inherent right to acquire territory, similar to the inherent right of a person to acquire property." So also Mr. Charles A. Gardner declares: "The nation needs no express grant of power for any international act. The right to acquire territory irrespective of its situs, contiguous or foreign, by conquest, treaty, purchase or discovery, is an acknowledged and well established attribute of sovereignty and has been exercised by sovereigns from the beginning of recorded history. No one pretends that the right is specifi cally enumerated in the Constitution. Hence it remains an attribute of the sovereign people, and Congress and the President, the sole agents and trustees of that sovereignty, have exclusive and unrestricted power to exercise it. I advance the proposition with deference that this right is itself a primary and substantive attribute of sovereignty, as is the right of national existence or self-defence; and I shall regard it in this discussion as the primary and fundamental authority for territorial expansion." (Pamphlet entitled "Our Right to Acquire and Hold Foreign Territory." Published 1899.) For an excellent argument for the support of the position here taken see also the prize essay of Mr. W. H. Bikle, entitled "The Constitutional Power of Congress Over the Territory of the United States," and published as a supplement to the American Law Register for August, 1901. See also Butler, "The Treaty-Making Power of the United States." Butler declares his opinion to be: "That the treaty-making power of the United States, as vested in the Central Government, is derived not only from the powers expressly conferred by the Constitution, but that it is also possessed by that government as an attribute of sovereignty, and that it extends to every subject which can be made the basis of negotiation and contract between any of the sovereign powers of the world, or in regard to which the several States of the Union themselves could have negotiated and contracted if the Constitution had not expressly prohibited the States from exercising the treaty-making power in any matter whatever and vested that power exclusively in, and expressly delegated it to, the Federal Government." CHAPTER XXIII. THE MODES IN WHICH, AND PURPOSES FOR WHICH, TERRITORY MAY BE ACQUIRED BY THE UNITED STATES. § 153. 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. The Louisiana Territory, Florida, Alaska, the Mexican cessions, the Samoan Islands, Porto Rico, and the Philippines were obtained in this manner. The constitutionality of this mode of acquisition has already been discussed. § 154. Annexation by Joint Resolution. In two instances, that of Texas in 1845, and Hawaii in 1898, the sovereignty of the United States has been extended over new territory by means of a Joint Resolution of the Houses of Congress. In the case of Texas an attempt had been made to annex the State by treaty, but this effort, requiring a two-thirds favorable vote in the Senate, had failed. Thereupon the same end was secured by a Joint Resolution which needed but a simple majority vote in each of the two branches of the national legislature, with, of course, the approval of the President. This resolution provided that "Congress doth consent that the territory properly included within and rightfully belonging to the Republic of Texas may be erected into a new State to be called the State of Texas with a republican form of government to be adopted by the people of said republic, by deputies in convention assembled, with the consent of the existing government, in order that the same may be admitted as one of the States of the Union." Upon Texas taking the action called for by this clause, Congress later by Joint Resolution declared Texas one of the States of the American Union. The peculiarity of the annexation of this State was not simply that it came under American sovereignty by Joint Resolution but that it became at once one of the States of the Union, and thus never had the transitional territorial status. This fact, indeed, gave additional constitutional support to the action of Congress in the matter, for to that body is given by the Constitution the right to admit new States into the Union, and, therefore, its admission of Texas to fellowship with other American commonwealths might easily be construed as a legitimate exercise of that power. The acquisition of the Hawaiian Islands was another instance of the extension of the United States sovereignty by a simple Joint Resolution of the two branches of Congress. In this case, however, the islands were not, as was Texas, admitted as a State or States of the Union, but were simply annexed as a territory. The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was not denied, but it was denied that this might be done by a simple legislative act. The incorporation of one sovereign State, such as was Hawaii prior to annexation, in the territory of another, is, it was argued, essentially a matter falling within the domain of international relations, and, therefore, beyond the reach of legislative acts. Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force-confined in its operation to the territory of the State by whose legislature it is enacted. To meet this point Senator Foraker argued that though a treaty may be the proper mode for annexing a portion of the territory |