ernment of the islands, and for commercial intercourse therewith, so far from being uniform with those in force in the States, and other Territories of the union, are applicable only to these islands.2

Three men who had committed murder in one of these islands were brought to this country, indicted, and tried in accordance with these statutory provisions; they were found guilty as charged, and sentenced. An appeal was taken to the Supreme Court where able counsel contended that nowhere in the Constitution could be found the power of the United States either to acquire these islands, or to govern them by the arbitrary and unequal rules which had been provided for them and their inhabitants; thus in the most solemn manner conceivable the court was called upon to determine the rights and powers of this government; under such circumstances it was bound by the principle of American and English jurisprudence, which is the birthright of our nation, that the benefit of the doubt must in every instance be given to the accused. If there had been any lack of sovereignty in the Government of the United States, in regard to the external affairs of the country the convictions could not have been sustained; the test was the most severe

April, 1872, c. 81, § 1, v. 17, p. 48, on which the above quoted sections of the Revised Statutes are founded.

2 The sovereignty and jurisdiction of the United States have attached to the territory embraced in a number of islands, under the act of August 18, 1856, as will appear from the following correspondence on file in the Treasury Department:

Hon. S. WIKE,

TREASURY DEPARTMENT,

FIRST COMPTROLLER'S OFFICE, Washington, D. C., September 16, 1893.

Assistant Secretary of the Treasury.

SIR: In compliance with the request contained in your letter of the 15th instant, I have the honor to transmit herewith a list of the guano islands bonded under the act of August 18, 1856, as appears from the bonds on file in this office up to the present date. You will observe that the list is the same as that transmitted with letter from this office, dated December 22, 1885, no additional bonds having been received since that date.

Respectfully yours,

R. S. BOWLER,

Comptroller.

one that could be applied, but the principles of sovereignty and nationality withstood every argument brought against them; the judgments were affirmed on the ground that the United States, as a sovereign power, and possessing every element of nationality and sovereignty, had taken possession of the islands and governed them under and by virtue of the broad right, recognized by international law, of acquiring territory by discovery and occupation; that it possessed and exercised this right in the same manner and to the same extent as it is possessed, and can be exercised, by every other sovereign power, as a general attribute of sovereignty, and one which is given by the law of nations and of nature, and exercisable to the fullest extent recognized by those laws, and that it is not a merely delegated power under the Con

Inclosed is a list of about 75 guano islands, appertaining to the United States, bonded under the act of August 18, 1856, as appears from bonds on file in the office of the First Comptroller of the Treasury, September 16, 1893, tabulated as follows:

Num

ber of Date of bond. bond.

Name of Island.

Latitude. Longitude.

CIRCULAR-GUANO ISLANDS NOT APPERTAINING TO UNITED STATES. [1894.-Department No. 176.-Bureau of Navigation.] TREASURY DEPARTMENT,

OFFICE OF THE SECRETARY, Washington, D. C., November 21, 1894.

To Collectors of Customs and others:

At the request of the Secretary of State, the following-named "guanoislands," specified in lists issued by this Department of guano islands appertaining to the United States, will be considered as stricken from said list, and no longer included among the guano islands bonded by the United States under the Act of August 18, 1856, viz:

Arenas,
Perez,

Pajoras,
Chica,

Arenas Key,
Western Triangles.

S. WIKE, Assistant Secretary.

[Extract from Report of Charles E. Magoun, Law Officer, Division of Insular Affairs, War Department, on legal status of islands acquired by the United States, February, 1900, and also see this report for collation of cases on nationality and sovereignty of United States and right to acquire territory.]

stitution, or limited by anything contained in the enumeration of powers granted to the Central Government.3

§ 33. Right of the United States to acquire territory.— The right of the United States to acquire territory, under its treaty-making power, and also by virtue of the power it possesses as a sovereign nation, will be the subject of a separate chapter devoted to that point in particular; no further reference, therefore, will be made to it in this chapter.1 The extended reference to the acquisition, and government of the Guano Islands has been made at this point so as to bring prominently into view the regular method by which this attribute of sovereignty has been exercised and also in which it has been acknowledged by every department of the Government.2

8 Jones vs. United States, U. S. Sup. Ct. 1890, 137 U. S. 202, GRAY, J.

See also Duncan vs. Navassa Phosphate Co., U. S. Sup. Ct. 1891, 137 U. S. 647, GRAY, J. (syllabus as follows):

"The right conferred by the United States, under the Guano Islands Act of August 18th, 1856, c. 164, (Rev. Stat. tit. 72,) upon the discoverer of a deposit of guano and his assigns, to occupy, at the pleasure of Congress, for the purpose of removing the guano, an island determined by the President to appertain to the United States, is not such an estate in land as to be subject to dower, notwithstanding the act of April 2, 1872, c. 81, (Rev. Stat. sec. 5572,) extending the provisions of the act of 1856 'to the widow, heirs, executors or administrators of such discoverer' if he dies before fully complying with its provisions." § 33.

1 Chap. II., and see especially for Insular Cases, §§ 61a, et seq. See also § 101, chapter III.

2 On May 27, 1901, the Supreme Court decided De Lima vs. Bidwell,|

Downes vs. Bidwell, and other Insular Cases, which will be reported in volume 182, United States Reports, in which the right of the United States to acquire and govern territory is discussed at length. Those cases are referred to more at length in §§ 61a,-61h, pp. 117, et seq., and at other points in this volume there referred to; while the members of the Court differed among themselves as to the status of territory when acquired, and as to the relations of acquired possessions and the inhabitants thereof to States and citizens of the United States, the Court was unanimous as to the right of acquisition and that the United States is a sovereign nation, and possessed of every attribute of nationality and sovereignty. The former decisions of the Supreme Court as to the extent of congressional power, and of constitutional limitations thereon, over, and in regard to, territories which were cited in the arguments before, and opinions of the Court in the Insular Cases are collated in the INSULAR CASES APPENDIX at end of volume.

§ 34. General consensus of opinion in support of Nationality of United States.-A long line of other expressions of opinion from Alexander Hamilton to date could be quoted, but the precedents referred to, together with the decisions. and opinions collated in the subsequent chapters, and referred to in the footnotes, should certainly be accepted as fully answering every question which has ever been raised as to the completeness of the sovereignty and nationality of the United States. It is almost inexplicable why any person or party should desire to limit those powers of the Federal Government, which are exercised exclusively in regard to matters not only wholly within its domain, but which are also wholly beyond the power or control of any State; although no party, person, state or faction would be benefited by imposing such limitations, yet from the earliest period of our national history there has always been a party which for unexplained and unaccountable reasons has taken for its watchword the curtailment of national power, not only as to those matters which relate to the States, and in which the power of the State increases relatively as the power of the Central Government diminishes, but also as to matters exclusively within the domain of the National Government and which require for their proper administration the fullest measure of nationality, sovereignty and power.

§ 35. Gradual development of theory of Nationality.The theory of complete nationality and sovereignty of the United States has been gradually developed; its evolution commences with the early decisions of Chief Justice Marshall, notably in the Florida or Canter case1 which will be alluded to in another chapter, in which he said that the right to acquire territory was derived from the war or treatymaking power under constitutional delegation, or as an attribute of sovereignty existing in the government; he declared, however, that it was unnecessary at that time, to decide under which head to classify it; its complete development is shown in the decision of Mr. Justice Gray in the Navassa Island case, in which he unhesitatingly and broadly § 35. Peters, 511, MARSHALL, Ch. J., post.

1 American Insurance Co. vs. Canter, U. S. Sup. Ct. 1828, 1 2 Jones vs. United States, U. S.

asserted that the right of acquisition of territory was beyond doubt an attribute of the United States Government, not under constitutionally delegated power, but an attribute vested in it under the law of nations, in the same manner and to the same extent as the power is possessed by the governments of other sovereign nations.

§ 36. Limitations by fundamental principles.'-Side by side with the theory of complete nationality there has also developed, as was necessary and proper, the theory that these

Sup. Ct. 1890, 137 U. S. 202, | Ct. 1803, 1 Cranch, 137, MARGRAY, J., and see § 32 and notes SHALL, Ch. J.; thereunder, ante. § 36.

1 The cases referring to the limitation of governmental powers by the fundamental principles on which this government is based will be found in the collation of cases referred to in the arguments before, and opinions of the Supreme Court in the INSULAR CASES APPENDIX at end of this volume, including:

Bank of Columbia vs. Okely, U. S. Sup. Ct. 1819, 4 Wheaton, 235, JOHNSON, J.;

Chicago, etc., Ry. Co. vs. Tompkins, U. S. Sup. Ct. 1900, 176 U. S. 167, BREWER, J.;

Maxwell vs. Dow, U. S. Sup. Ct. 1900, 176 U. S. 581, PECKHAM, J.; Mormon Church Case, U. S. Sup. Ct. 1890, 136 U. S. 1, BRADLEY, J.;

Murphy vs. Ramsey, U. S. Sup. Ct. 1885, 114 U. S. 15, MATTHEWS, J.;

Sharpless vs. The Mayor, &c., 21 Penn. St. Rep. 147, Sup. Ct. Pa., 1853, BLACK, J.;

Slaughterhouse Cases, U. S. Sup. Ct. 1872, 16 Wall. 36, MILLER, J.;

Weimar vs. Bunbury, Sup. Ct. Mich. 1874, 30 Mich. 201, COOLEY, J.;

Yick Wo vs. Hopkins, U. S. Sup. Ct. 1886, 118 U. S. 356, MATTHEWS, J.; and see p. 369, where the court says, in holding one of the anti-Chinese ordinances of San Wood-Francisco as void under the Four

Cummings vs. Missouri, U. S. Sup. Ct.1866, 4 Wall. 277, FIELD, J.;

Dartmouth College vs. ward, U. S. Sup. Ct. 1819,4 Wheaton, 518, MARSHALL, Ch. J.;

Kemmler, In re, U. S. Sup. Ct. 1890, 136 U. S. 436, FULLER, Ch. J.; Legal Tender Cases, (1) U. S. Sup. Ct. 1869, 8 Wall. 603, CHASE, Ch. J.; (2) 1870, 12 Wall. 457, STRONG, J; (3) 1884, 110 U. S. 421, GRAY, J.;

teenth Amendment, "But the fundamental rights to life, liberty and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws; so that in the famous language of Lord Bishop of Natal, Privy the Massachusetts Bill of Rights, Council 1864, 3 Moore Priv. Coun. the government of the commonN. S. 115, WESTBURY, Lord Chan.; wealth may be a government of Marbury vs. Madison, U. S. Sup. I laws and not of men.'"

Loan Association vs. Topeka, U. S. Sup. Ct. 1874, 20 Wall. 655, MILLER, J.;