Nor is there any principle of public law, or general precedent from our own practice that requires the consent of the population of an annexed territory to be obtained. In none of the instances, except that of Texas, has the United States deemed this consent necessary.3

As we shall later see, it is quite usual to provide in treaties of annexation that the people of the territories transferred shall have an election whether they shall become citizens of the annexing State or retain their old national status. But this, of course, is a question quite distinct from the transfer of the sovereignty over the territory in question.

Though it thus appears that territory may be annexed without the consent of the people, it has not yet been shown that, in fact, a legislative act is constitutionally adequate for the purpose. It has been shown that the admission of Texas by a Joint Resolution of Congress directly into the Union as a State could be justified as an exercise of the power given to Congress by the Constitution to admit new States into the Union, and did not, therefore, establish a precedent for the annexation of Hawaii. To the author's mind the annexation of Hawaii by legislative act, was constitutionally justified upon the same ground that the extension of American sovereignty by statute over the Guano Islands was justified; namely, as an exercise of a right springing from the fact that, in the absence of express constitutional prohibition, the United States as a sovereign nation has all the power that any sovereign nation is recognized by international law and practice to have with reference to such political questions as the annexation of territory.

In addition to this source of authority, it would also be quite reasonable to argue that the annexation of the Hawaiian Islands

3 Hawaii was annexed at the request of the Hawaiian Government but it cannot be said that the United States made a favoring popular vote a condition precedent to annexation. Upon the general international practice, see Solière, Le plébiscite dans l'annexation. 1901. Hall, International Law,

4th ed., p. 49, says: "The principle that the wishes of a population are to be consulted when the territory they inhabit is ceded has not been adopted in international law, and cannot be adopted into it until title by conquest has disappeared." Cf. Moore, Digest of Int. Law, § 83.

by act of Congress was a necessary and proper measure for the military defense of the nation, and for the protection and increase of our foreign commerce; for there can be no question but that a conceived military and commercial need was one of the strongest of the motives that operated to bring about the annexation.*

The question as to the constitutionality of the annexation of Texas or of Hawaii has never been directly raised and passed upon by the Supreme Court of the United States. In fact, however, the court has of course impliedly recognized the validity of the annexation both of Texas and Hawaii in every case in which it has enforced the laws of, or federal laws relating to, these territories. That the point has not been directly raised is due to the principle uniformly declared by the court, when the point has, in other instances, been raised, that the territorial limits of sovereignty is a question the decision of which by the political branches of the government is absolutely binding upon its judiciary.

4 The Committee (Senate Report 681, 55th Cong., 2d Sess.) in its report favoring annexation of Hawaii, say: "As the place the only one in the North Pacific Ocean for the concentration of cable lines; for obtaining coal, water, or provisions for ships; for the repair of vessels; or for the storage of goods in bond, or otherwise, from all countries for the purposes of trade around the whole circuit of the coasts of the Pacific Ocean; and with its numerous islands, the Hawaiian Islands are the central point of distribution which can have no possible competitor. This enormous advantage to our trade in the islands and across the Pacific Ocean must be felt by every industry in the United States. Their separation by a distance of 2,000 miles from all other lands, and their central location as to every point on the great arc of the circle that extends from the Mexican border almost to the coast of Siberia, the Pacific frontier of Alaska, Washington, Oregon, and California, makes the Hawaiian Islands the most important point in the seas of the Western Hemisphere for the fostering and protection of our coastwise and foreign commerce. As ships of war are the necessary complement of ships of commerce, these great advantages belonging to the geographical location of the Hawaiian Islands are equally indispensable to our Navy, as the protector of our commerce, coming from both the Atlantic and Pacific Oceans. On the commercial and military views of these questions the opinions of merchants and navigators, and of our naval officers, as to the developments and necessities of the future-as yet unknown — are our most intelligent and safest guides. The Committee can appeal to these sources of information and safe forecast with the confidence that comes from their almost unanimous agreement."

With reference to the annexation of the Philippine Islands, the point was raised by certain "Anti-Imperialists" that the United States did not get a valid title for the reason that Spain had never reduced some of them to possession; and that, as to others, at the time of transfer neither she nor the United States was in effective occupation. This, however, is not a question of constitutional, but of international law-one, that is, that a foreign power might possibly raise, but which could not be considered in our courts.

CHAPTER XXIV.

THE CONSTITUTIONAL SOURCES OF THE POWER OF CONGRESS TO GOVERN THE TERRITORIES.

§ 156. Power to Govern Territories not Questioned.

There has never been any question as to the power of the United States to govern the territories possessed or acquired by it and not included within the limits of any of the individual States. The only question has been as to the source and extent of this power. This federal authority to govern has been derived from three sources: (1) The express power given to Congress "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States;" (2) The implied power to govern derived from the right to acquire territory; and (3) The power implied from the fact that the States admittedly not having the power, and the power having to exist somewhere, it must rest in the Federal Government.

All three of these sources of authority have been, at different times, recognized by the Supreme Court.

says:

The earliest case is that of Sere v. Pitot,1 decided in 1810, with reference to the Territory of Orleans. In his opinion Marshall "The power of governing and legislating for a territory is the inevitable consequence of the right to acquire and hold property. Could this position be contested, the Constitution of the United States declares that Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States.' Accordingly, we find Congress possessing and exercising the absolute and undisputed power of governing and legislating for the Territory of Orleans. Congress has given them a legislature, an executive, and a judiciary, with such powers as it has been their will to assign to those departments respectively."

16 Cr. 332; 3 L. ed. 240.

From this it will be seen that both the first and second sources of authority mentioned above are relied upon. Marshall himself is plainly of the opinion that the power to govern is a necessary incident to the power to acquire, but indicates that this view may possibly be contested.

In American Insurance Co. v. Canter, decided in 1828, with reference to the government of Florida, Marshall uses the following language: "In the meantime [until it is admitted as a State] Florida continues to be a Territory of the United States; governed by virtue of that clause which empowers Congress' to make all needful rules and regulations, respecting the territory, or other property belonging to the United States." He adds, however: "Perhaps the power of governing a territory belonging to the United States which has not, by becoming a State, acquired the means of self-government, may result necessarily from the facts that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned.”

Here, then, all three of the possible sources of the authority of Congress to govern acquired territory are referred to, though the two latter are only suggested as possible sources.

In United States v. Gratiot, decided in 1840, it is declared: "The term territory as here used [Art. IV, Section III] is merely descriptive of one kind of property; and is equivalent to the word lands. And Congress has the same power over it as over any other property belonging to the United States; and this power is vested in Congress without limitation; and has been considered the foundation upon which the territorial governments rest."

In Cross v. Harrison, decided in 1853, with reference to territory acquired from Mexico, the court say: "The territory had been ceded as a conquest, and was to be preserved and governed

21 Pet. 511; 7 L. ed. 242. 314 Pet. 526: 10 L. ed. 573. 416 How. 164; 14 L. ed. 889.