Sometimes confused with, but quite distinct from the doctrine which ascribes to the Federal Government plenary authority in matters international, and quite different also from the doctrine of resulting powers is that theory which argues the possession generally by the United States of "inherent" sovereign powers - that is, powers not regarded as implied in express grants of authority whether singly or collectively considered, but as flowing directly from the simple fact of national sovereignty. The two former doctrines are fairly deducible from the doctrine of implied powers. The latter doctrine, upon the contrary, would derive federal authority not from powers expressly granted, but from an abstraction, and would, at a stroke, equip the Federal Government with every power possessed by any other sovereign State.21

20 6 Wh. 264; 5 L. ed. 257.

There can be no question as to the constitutional unsoundness, as well as of the revolutionary character, of the theory thus advanced. To accept it would be at once to overturn the long line of decisions that have held the United States Government to be one of limited, enumerated powers. Taney in denying the President the right to authorize a suspension of the writ of habeas corpus explicitly repudiated the doctrine. "Nor can any argument be drawn," he said, "from the nature of sovereignty, or the necessities of government for self-defense in times of tumult and

21 This theory has played a certain part in our constitutional history for many years, and was especially pressed during the period following the Spanish-American War and before the decision of the recent Insular Cases. Thus, Senator Platt of Connecticut declared in the Senate, December 19, 1898, that the United States "possesses every sovereign power not reserved in its Constitution to the States or to the people; that the right to acquire territory was not reserved, and is, therefore, an inherent sovereign right; that it is a right upon which there is no limitation and with regard to which there is no qualification, that in certain instances the right may be inferred from specific clauses in the Constitution but that it exists independent of the clauses; that in the right to acquire territory is found the right to govern it; that as the right to acquire is a sovereign and inherent right, the right to rule is a sovereign right not limited in the Constitution." Congressional Record, XXXII, No. II, pp. 321-3.

So also, Senator Foraker of Ohio declared in the Senate, July 1, 1898, in response to a question as to the constitutional source whence he derived the power of the United States to annex foreign territory, that "the power was to be found inherent in our sovereignty - attached to it necessarily as a part of our sovereignty as a nation," and "was also to be found in the Constitution - expressly conferred upon Congress by that provision of the Constitution which authorizes Congress to provide for the general welfare." When asked if he called this doctrine the "higher law," he replied: "The proposition is that it is inherent in sovereignty to do whatever sovereignty may see fit to do, and among other things to acquire territory."

Of substantially the same character are the arguments of Gardiner (Our Right to Acquire and Hold Foreign Territory, Putnams', 1899), and of Magoon, Law Officer. War Department (Report on the Legal Status of the Territory and Inhabitants of the Islands Acquired by the United States during the War with Spain. Doc. 234, 56th Cong., 1st Session).

danger. The Govenment of the United States is one of delegated and limited powers. It derives its existence and authority altogether from the Constitution and neither of its branches can exercise any of the powers of government beyond those specified and granted." 22

Unfortunately, however, the Supreme Court has not always been as careful as it might have been in repudiating the argument based upon the inherent sovereign rights of the National Government. Although it has never explicitly justified the exercise of a power by the Federal Government upon this ground, it has, obiter, several times used language suggesting its validity.23

22Ex parte Merryman (Campbell's Reports, 246).

23In the Legal Tender Cases (12 Wall. 457; 20 L. ed. 287), Justice Bradley -says: "The United States is not only a Government but it is a National Government, and the only government in this country that has the character of nationality. It is invested with power over all the foreign relations of the country, war, peace, and negotiations and intercourse with other nations; all of which are forbidden to the state governments. . . . Such being the character of the General Government it seems to be a self-evident proposition that it is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to every government as such, and as being essential to the exercise of its functions. If this proposition be not true, it certainly is true that the Government of the United States has express authority in the clause last quoted, to make all such laws (usually regarded as inherent and implied) as may be necessary and proper for carrying on the government as constituted and vindicating its authority and existence."

In United States v. Jones (109 U. S. 513; 3 Sup. Ct. Rep. 346; 27 L. ed. 1015) the power of eminent domain was declared to be possessed by the United States as an " incident of sovereignty," and because it " belongs to every independent government."

In Church of Jesus Christ v. United States (136 U. S. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 478) " the power to make acquisitions of territory by conquest, by treaty, and by cession " was declared to be possessed by the United States, not from any express or otherwise implied power, but because these are " an incident of national sovereignty."

In Fong Yue Ting v. United States (149 U. S. 698; 13 Sup. Ct. Rep. 1016; 37 L. ed. 905) "the right to exclude or expel all aliens, or any class of aliens, absolutely or upon certain conditions in war or in peace," was declared to belong to the United States as " an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare."

These dicta which are cited in the footnote, if taken by themselves might seem to indicate the acceptance by the Supreme Court of the doctrine of inherent sovereign powers of the General Government. An examination of the cases in which they were delivered discloses, however, that in each instance they were obiter, the power that was sustained being actually justified as a resulting or implied power. In the recent Insular Cases the doctrine was strongly urged upon the court but received no countenance; and in Kansas v. Colorado,24 a case decided in 1907, in which the doctrine was set up in a somewhat disguised form, the court was emphatic in its repudiation.25

24206 U. S. 46; 27 Sup. Ct. Rep. 655; 51 L. ed. 956.

25 After referring to the absence of power in the Federal Government to control private property in the States, Justice Brewer, who rendered the opinion of the court, said: "Appreciating the force of this, counsel for the government relics upon 'the doctrine of sovereign and inherent power;' adding, 'I am aware that in advancing this doctrine I seem to challenge great decisions of the court, and I speak with deference.' His argument runs substantially along this line: All legislative power must be vested in either the state or the national government; no legislative powers belong to a state government other than those which affect solely the internal affairs of that State; consequently all powers which are national in their scope must be found vested in the Congress of the United States. But the proposition that there are legislative powers affecting the Nation as a whole which belong to, although not expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the Amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the Tenth Amendment. This Amendment, which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the National Government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if in the future, further powers seemed necessary, they should be grained by the people in the manner they had provided for amending that act. It reads: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are-n - reserved to the States respectively, or to the people.' The argument of counsel ignores the principal factor in this article, to wit. 'the people.' Its principal purpose was not the distribution of power between the United States and the States, but a reservation to the people of all powers not granted. The preamble of the Constitution declares who framed it, - ' we, the people of the United States,' not the people of one State, but the people of all the States; and Article 10 reserves to the people of all the States the powers not delegated to the United States. The powers affecting the internal affairs of the States not granted to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, and all the powers of a national character which are not delegated to the National Government by the Constitution are reserved to the people of the United States. The people who adopted the Constitution knew that in the nature of the things they could not foresee all the questions which might arise in the future, all the circumstances which might call for the exercise of further national powers than those granted to the United States, and, after making provision for an amendment to the Constitution by which any needed additional powers would be granted, they reserved to themselves all powers not so delegated. This Article 10 is not to be shorn of its meaning by any narrow or technical construction but is to be considered fairly and liberally so as to give effect to it3 scope and meaning." Mr. C. J. Tiedeman in his work The Unwritten Constitution of the United States raises the point whether a correct interpretation of the Tenth Amendment would not give to the National Government those powers the exercise of which is prohibited to the States, but which are neither prohibited nor delegated to the General Government. His claim is that the General Government should be construed to have those powers, for, he argues, the powers must rest somewhere; they are expressly prohibited to the States, and, therefore, they must be possessed by the Nation. The advantage which he conceives would follow from an acceptance of this principle would be the avoidance in many cases of resorting to an undue straining of the doctrine of implied powers in order to enable the General Government to exercise an authority essential to its welfare but not expressly delegated to it.