Argument for Plaintiffs in Error.

A treaty, it is true, is in its nature a contract between two nations, and is often merely promissory in its character, requiring legislation to carry its stipulations into effect.

If the treaty operates of its own force and relates to a subject within the power of Congress, it can be deemed in that particular only the equivalent of a legislative act to be repealed or modified at the pleasure of Congress. In either case, the last expression of the sovereign will must control." Chinese Exclusion Case, 130 U. S. 600.

"A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and honor of the governments which are parties to it. But a treaty may also contain other provisions which confer certain rights upon the citizens or subjects of the nations residing in the territorial limits of the other which partake of the nature of the municipal law."

. . . The Constitution gives it (the treaty) no superiority over an act of Congress in this respect, which may be repealed or modified by an act of a later date." Head Money Cases, 112 U. S. 597. See also Geoffrey v. Riggs, 133 U. S. 258-271.

II. BY THE TREATY OF CESSION PORTO RICO BECAME A PART OF THE UNITED STATES.

By the treaty of Paris Spain ceded Porto Rico to the United States, and by such cession, we submit, Porto Rico became a part of the political entity known as the United States.

It is now claimed, and as we believe for the first time by a court of the United States, that territory may come under the complete and absolute sovereignty and dominion of the United States and yet remain foreign.

Judge Townsend has held in the case of Goetze v. The United States that although the title to the soil of Porto Rico is in the United States and no other country has any rights there of any character, yet Porto Rico was, subsequent to the treaty, a foreign country within the meaning of the statutes of the United States, imposing duties upon goods coming from foreign countries. The reasoning by which this conclusion is reached

Argument for Plaintiffs in Error.

is so novel and important that it will justify a close examination.

He says: "By cession the title to the soil became de jure, but in the status of the islanders as foreigners, and so in the status of Porto Rico as a foreign country no change was to be made until Congress should determine its character." 103 Fed. Rep. 17. "Thus we see that in all previous cessions of territory there has been a special provision in the treaty for incorporating the inhabitants within the United States. Whether a treaty stipulation would be sufficient to incorporate the territory into the Union is not clearly established. There is (in

the treaty of 1898) no provision for the incorporation of the inhabitants within the Union as there has always been in prior treaties." 103 Fed. Rep. 76. "There has been found, then, no reason either on principle or authority why the United States should not accept sovereignty over territory without admitting it as an integral part of the Union or making it bear the burden of the taxation uniform throughout our nation. To deny this power is to deny to the nation an important attribute of sovereignty," etc. 103 Fed. Rep. 86.

The sentences quoted contain the reasoning of the Government, and, as we believe, the fallacy upon which their position is based. These fallacies are endorsed by the Attorney General, who says in his Goetze brief, p. 4:

"That the treaty-making power-the President and the Senate—as evidenced by the language of the treaty of Paris, did not intend to make Porto Rico and the Philippine Islands integral parts of the United States, but intended in several particulars to reserve their final status for adjustment by Congress." And at page 8: "There is no doubt that it was the intention of the treaty of Paris not to make the ceded islands a part of the United States."

The Government of the United States may sustain as to any given territory three relations: (1) Sovereign jurisdiction. (2) Temporary occupation of foreign soil. (3) Foreign territory over which it has no jurisdiction.

In the last case it has no relations with the inhabitants; in the second it is merely the de facto sovereign over certain ter

Argument for Plaintiffs in Error.

ritory; this sovereignty cannot under the Constitution affect the political status of the inhabitants since the allegiance which they owe to the United States is but temporary and only as an incident of war, their former allegiance reverting with the return of the former sovereign. The Castine Case, United States v. Rice, 4 Wheat. 246, and Fleming v. Page, 9 How. 615.

In the first case, and that is the position of Porto Rico, the power of Congress over the political status is plenary. Political rights are franchises which may be given or taken away by Congress in the territories, i. e., the places over which it has exclusive local jurisdiction. Murphy v. Ramsey, 114 U. S. 15.

The treaties to which Judge Townsend referred endeavored to settle the political status of the countries ceded by provisions that they should be admitted into the Union as soon as possible, and the Attorney General (Goetze brief, p. 66) emphasizes this position.

Granting that by the treaty the inhabitants of Porto Rico acquired neither civil nor political rights, yet that did not make Porto Rico a foreign country.

A foreign country is a country under a sovereignty other than that of the United States. "By a foreign port may be understood a port within the dominions of a foreign sovereign and without the dominions of the United States." Mr. Justice Story in United States v. Heyward, 2 Gall. 501. See also Chief Justice Spencer in King v. Parks, 19 Johns. 375. Also Treasury Regulation 835, approved in Stairs v. Paislee, 18 How. 526. This Porto Rico admittedly was not.

What Judge Townsend meant, then, was simply that until Congress had legislated, the inhabitants had no political rights, and their private or civil rights remained unchanged.

Incorporation of the inhabitants within the United States means, if anything, that the inhabitants shall be made part of the body politic, i. e., enter the union as a State, as was intended in the case of Louisiana, which we shall hereafter examine.

This is very different from making territory a part of the United States, which is all the present case contends for.

The fact that the inhabitants of a country ceded by treaty to

Argument for Plaintiffs in Error.

the United States are still under the military authority of the Government awaiting the action of Congress organizing a local government is entirely apart from the question as to whether the territory, regardless of the status, race, or color of its inhabitants, is a part of the United States.

Let us assume that Porto Rico was inhabited by roving Indian tribes and had no other inhabitants, could it be contended that although we had acquired title to the soil, the Indians being tribes which were not, while maintaining their tribal relations, citizens of the United States, therefore the territory in question was a foreign country? Certainly not.

As the Attorney General says, Goetze brief, p. 6: "The basis of the custom laws is not ownership, but (1) the geographical origin of the shipment, and (2) the nature of the goods."

The learned judge and the Attorney General confuse the idea of acquiring territory, and thus enlarging the boundaries of the United States, with the withholding of political rights. They make the one depend upon the other. This is clear from the expression (in the Goetze case) that the United States "may accept sovereignty without admitting it (the territory) as an integral part of the Union." If by an integral part of the Union he means a political part, i. e., a State, we assent to the proposition.

The political power of the Union is in the inhabitants of the States-those of the Territories have none.

The incorporation of new territory into our body politic would and must mean the incorporation of the inhabitants into our political people i. e., into people of the States.

This we do not contend for.

Had nothing been said in the treaty as to the inhabitants, their political status and within certain limitations their civil rights would have been entirely within the power of Congress. In previous treaties acquiring territory the United States had usually promised the ceding country that its inhabitants should have admission to statehood.

This had been the usual course.

In the present instance the American Government, desiring that the disposition of the question should be left entirely to

Argument for Plaintiffs in Error.

the Congress, was not satisfied to negatively refrain from promises to Spain, but, in order that no misunderstanding should occur in the future, expressly stipulated with Spain that Congress should determine these questions. It would have been proper for Spain to have asked that her subjects in Porto Rico should be admitted to and incorporated in the Union of States. She did not do so, but left the matter absolutely to the United States.

This clause in the treaty then left the United States free to deal with the inhabitants as she chose-subject always to the prohibitions of the Constitution.

Its sovereignty over the territory is thus emphasized, not diminished.

III. EFFECTS OF ANNEXATION. The fallacy underlying all the reasoning of the learned court below, and of the counsel for the Government, seems to be based upon the following reasoning:

"We have the authority of Fleming v. Page, that acquiring title to the soil of the territory making it part of the United States as regards other nations does not bring it within the sphere of the Constitution. If, then, it is not acquisition of soil which extends our constitutional boundaries, what does accomplish this result? In order to extend the boundaries recognized by other nations, the extension of dominion by acquisition is sufficient."

To speak of soil coming within the sphere of the Constitution seems to us to be a misuse of language. It was held, and rightly held, in Fleming v. Page, that where the armies of the United States had overrun, conquered, and held an extent of territory, other nations would recognize that the United States was a de facto Government in and over such territory.

This is an elementary rule of international law which we do not question.

This was occupation, not acquisition.

How the country over which the authorities of the United States had established a de facto government was to be organized and governed, is a question with which international law has no concern. Under the Constitution of the United States