words, commensurate to the United States,—such power, jurisdiction and right, unless expressly delegated to congress, cannot be legally or constitutionally exercised by that body.

"But, we presume, it will not be contended that any or each of the states could exercise any power or act of sovereignty extending over all the other states or any of them, or, in other words, incorporate a bank, commensurate to the United States.

"The consequence is, that this is not an act of sovereignty, or a power, jurisdiction or right which, by the second article of the confederation, must be expressly delegated to congress in order to be possessed by that body.

"If, however, any person shall contend that any or each of the states can exercise such an extensive power or act of sovereignty as that above mentioned, to such person we give this answer: The state of Massachusetts has exercised such power and act; it has incorporated the Bank of North America. But to pursue my argument.

"Though the United States in congress assembled derive from the particular states no power, jurisdiction or right which is not expressly delegated by the confederation, it does not thence follow that the United States in congress have no other powers, jurisdiction or rights than those delegated by the particular states.

"The United States have general rights, general power and general obligations not derived from any particular states, nor from all the particular states taken separately, but resulting from the union of the whole (20).

20 This is an important statement in support of the doctrine of "Certain inherent principles limiting the powers of Congress." Downs v. Bidwell, 182 U. S. pp. 277, 280-281-282, 291, 295-298.

"To many purposes the United States are to be considered as one undivided, independent nation, and as possessed of all the rights, and powers, and properties, by the law of nations incident to such."

Rule for applying the doctrine. Whenever an object occurs, to the direction of which no particular state is competent, the management of it must, of necessity, belong to the United States in congress assembled. There are many objects of this extended nature. The purchase, the sale, the defense, and the government of lands and countries, not within any state, are all included under this description. An institution for circulating paper, and establishing its credit over the whole United States, is naturally ranged in the same class.

"The act of independence was made before the articles of confederation. This act declared that 'these United Colonies' (not enumerating them separately) 'the free and independent states, and that, as free and independent states, they have full power to do all acts and things which independent states may, of right do.'

"The confederation was not intended to weaken or abridge the powers and rights to which the United States were previously entitled. It was not intended to transfer any of those powers or rights to the particular states, or any of them. If, therefore, the power now in question was vested in the United States before the confederation, it continues vested in them still. The confederation clothed the United States with many, though perhaps not with sufficient powers; but of none did it disrobe them.

"It is no new position that rights may be vested in a political body which did not previously reside in any or in all the members of that body. They may be derived solely from the union of those members. 'The case,' says the celebrated Burlamaqui, 'is here very near the same as in that of several voices collected together, which, by their union, produce a harmony that was not to be found separately in each'” (21).

All modern statements trace to the same source and principle. Chief Justice Marshall presents the view which prevails in reference to the power to acquire external territory and the principles which obtain in reference to the government of them, as follows:

"The constitution confers absolutely on 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 by treaty (22). The usage of the world is, if a nation be not entirely subdued, to consider the holding of the conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession, or on such as its new master shall impose. On such transfer of territory it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are

211 Wilson's Works, pp. 557-560, notes.

22 See the Insular tariff cases.-Downs v. Bidwell, 182 U. S. 244, and citation.

dissolved, and new relations are created between them and the government which has acquired their territory. The same act which transfers their country transfers the allegiance of those who remain in it; and the law, which may be denominated political, is necessarily changed, although that which regulates the intercourse, and the general conduct of individuals, remains in force, until altered by the newly-created power of the state" (23).

§ 153. The right to govern. Perhaps the power of governing a territory belonging to the United States, which has not, by becoming a state, acquired the means of selfgovernment, may result necessarily from the fact 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 (24). Whichever may be the source whence the power is derived, the possession of it is unquestioned.

§ 154. Title by purchase. By far the greatest area of territory has been acquired by processes other than the voluntary cession by the original states and the general convention of the people of the United States, and this, as we have seen in the last section, raises new and difficult questions (25).

23 Am. Ins. Co. v. 356 Bales of Cotton, 1 Pet. 541.

24 The great chief justice clearly invokes both the idea of inherent and implied power. His language is not tautological, every word is required to fully express the two ideas.

25 Our first great acquisition was Louisiana in 1803. The northwestern extent of this territory was always a matter of controversy until settled by the treaty with England in 1846. 2 Whart. Int. Law Dig. 173. The claim to the Oregon territory, comprising the states of Washington and Oregon, was not allowed to rest alone upon the Louisiana purchase, but was also based on discovery and occupancy. The Florida

§ 155. Annexation of independent countries. When Texas had acquired her independence from Mexico, she took her place as a sovereign nation, and, upon the close of hostilities with Mexico, Texas became actually an independent nation. The annexation of Texas, as a state, with all the powers and capacities of statehood, presented a new question, different from any other which had before been passed upon by congress, that is, the capacity of the nation to combine with other nations without the consent of the states (26).

§ 156. Acquisition of disconnected territory. The acquisition of disconnected territory not contiguous to some portion of the public domain cannot always be justified upon the same ground which satisfied those who doubted the constitutional power to extend the original limits of the United States.

President Jefferson and the other close constructionists could very justly say that the nation was bound by the law of self-preservation to remove the dangerous ownership of any contiguous territory, but these arguments would not justify the addition to the United States of distant provinces not naturally or actually contiguous

purchase was made in 1819, and our territory was extended from the southern boundary of Georgia on the Atlantic coast, southward to the Gulf of Mexico and westward until it joined the Louisiana purchase. California, Nevada, Utah, a portion of Wyoming, Colorado, New Mexico and Arizona were acquired from Mexico by the cession of 1848. This was another peaceful acquisition following close after the defeat of the ceding party. The Gadsden purchase of 1853 added the second Mexican territory, now included within the territories of Arizona and New Mexico. Alaska (in 1867) was a purchase pure and simple. The acquisition of Kansas, Colorado and New Mexico came by cession from Texas.

26 No question has ever been raised as to the power; it clearly falls within the same principles invoked in acquiring Louisiana and Florida.