226 WRIGHT— POSITION OF FOREIGN RELATIONS 



izing aliens and declaring war ; ^^ the power to annex and govern 

 territory may be implied from the power of making treaties, declar- 

 ing war, and admitting new states to the Union.^" We assume, 



11 Although in the Chinese Exclusion Cases (130 U. S. 581, 1889) and 

 Fong Yue Ting v. U. S. (149 U. S. 690, 1893) certain expressions of the court 

 support the contention that the power of exclusion and expulsion are derived 

 from national sovereignty in foreign affairs, yet it is to be noted that in both 

 of these cases the court carefully enumerated the specific grants of power of 

 which these so-called sovereign powers are the resultant. The argument in 

 the Chinese Exclusion Cases, that the power to make war for defense implies 

 a power to take lesser defensive measure, and that the occasion for and 

 methods of such defense is a political question not subject to judicial deter- 

 mination, may also be noticed. " It matters not in what form such aggression 

 and encroachment come, whether from the foreign nation acting in its national 

 character or from vast hordes of its people crowding in upon us. The gov- 

 ernment, possessing the powers which are to be exercised for protection and 

 security, is clothed with authority to determine the occasion on which the 

 powers shall be called forth; and its determination, so far as the subjects 

 affected are concerned, is necessarily conclusive upon all its departments and 

 officers. Thus when the court spoke of ' sovereign powers ' it had in mind 

 powers resultant from a group of express or implied powers, and not powers 

 deduced from an abstract theory of sovereignty." 



12 The case of Jones v. U. S.(i37 U. S. 202), which is cited by Willoughbv 

 as not only practically upholding the right of the United States to acquire 

 territory by discovery and occupation, but applying the principle that " the 

 United States may exercise a power not enumerated in the Constitution, pro- 

 vided it be an international power generally possessed by sovereign states " 

 (op. cit., p. 341), really turned on the principle of "political question." "Who 

 is the sovereign, de jure or de facto, of a territory is not a judicial, but a 

 political, question, the determination of which by the legislative and executive 

 departments of any government conclusively binds the judges, as well as all 

 other officers, citizens, and subjects of that government. This principle has 

 always been upheld by this court, and has been affirmed under a great variety 

 of circumstances." Apparently the President's power to recognize acquisi- 

 tions of territory by the United States, through the operation of international 

 law, flows from his constitutional position as the representative organ of the 

 government. It is to be noted that he has recognized such acquisitions aside 

 from congressional legislation. (Moore, Digest, i: 555.) Thus such acquisi- 

 tions are made by operation of international law. Recognition thereof is a 

 political function of the President, and the courts are bound by such decision. 

 The act of Congress (Act of Aug. 18, 1856, Rev. Stat, sees. 5570-5578) in- 

 volved in this case defines the circumstances under which and the procedure 

 by which American citizens, discovering Guano Islands, can benefit by the 

 rule of international law and the rights and degree of protection to which 

 they are entitled, thus falling under the power to govern territory. Constitution, 

 art IV, sec. 3, par. 2. (See Moore, Digert, i : 556 ct seq.) 



