power to admit new States, it is sufficient to observe that not only is resort to this source unnecessary, but, when appealed to, it 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: and, furthermore, that considerable support is given to the position that, when the power is exercised, the consent of the other States should be obtained There can be no question that it was the general intention at the time the Constitution was adopted that all the territory then under the sovereignty of the United States, and not included within the limits of any one of the then several States, should ultimately be divided up and admitted as States into the Union. Also it is to be admitted that, beyond all reasonable doubt, those who framed and adopted the Federal Constitution did not anticipate, and therefore cannot be said deliberately to have provided for, the time when the United States should extend its sovereignty over territories not intended ultimately for Statehood. Nor can it be said that a different view was held upon this point by practically anyone until comparatively recent times. But, admitting this, the conclusion that the annexation of territory not intended for ultimate Statehood is an unconstitutional act does not follow. One must go further and show that had the particular case been suggested to those framers and adopters of the Constitution, they would have so modified its language as to have excluded it.1 In the second place, even were this principle of constitutional construction not sufficiently In Dartmouth College v. Woodward, 4 Wh. 518; 4 L. ed. 629, Marshall says: "The case being within the words of the rule, must be within its operation likewise, unless there be something within its literal construction so obviously absurd or mischievous, or repugnant to the general spirit of that instrument as to justify those who expound the Constitution in making it an exception." broad to uphold the Federal power in question, there would be applicable two principles, each of which would prevent the Supreme Court from passing upon this point. The first of these principles is the one elsewhere mentioned that the question of de facto and de jure sovereignty is one regarding which the courts hold themselves bound by the determination of the executive and legislative branches of the government; the second is that the motive of an act, except for the purpose of solving an ambiguity in its application, is not a proper subject for judicial examination, and that, therefore, in the case of annexation of territory, it would not be proper for the court to require whether or not ultimate Statehood is 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 one very similar to the one just discussed and may be answered in much the same manner.2 The right to annex based on the treaty and war powers 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 has been 2 See Senate Rept. 681; 55th Cong., 2d Sess., pp. 47, 48. repeatedly declared, both in earlier cases and in the more recent so-called Insular Cases. In American Insurance Co. v. Canter,3 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, 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. Huckabee it is declared: "Power to acquire territory either by conquest or treaty is vested by the Constitution in the United States." 5 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 to the consideration of the doctrine which, constitutionally speaking, appeals to the author as the soundest mode of sustaining the power of the United 31 Pet. 511; 7 L. ed. 242. States to acquire territory, as well as the one which, in application, affords the freest scope for its exercise. According to this principle 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 the sovereign 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 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 with respect to all matters that fall within the field governed by international law. Reference is here had to the annexation in 1856 of the Guano Islands by a statute of Congress which 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 should take possession thereof, such island, rock or key might, at the discretion of the President, be considered as appertaining to the United States." 7 See Jones v. United States, 137 U. S. 202; 11 Sup. Ct. Rep. 80; 34 L. ed. 691. The modes in which territory may be acquired by the United States Having discussed 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 of the two houses of Congress. The process of expanding 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. 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 two Houses of Congress. In the case of Texas an attempt had been made to annex the territory 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. 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 |