answering the inquiry, Had Porto Rico, at the time of the passage of the act in question, been incorporated into and become an integral part of the United States?"

The opinion then examines: First, whether the United States has the constitutional power to acquire territory and hold it as appurtenant and dependent territory without "incorporating" it in itself in a constitutional sense; and, Second, whether, if it has the power, it has done so in the case of Porto Rico.

The power to acquire and hold territory in whatever constitutional status it sees fit, is, says the opinion, an inherent power possessed by all sovereign States (citing numerous international law writers). This power is possessed by the United States. Its power to acquire territory is conceded. But, the opinion continues: "To concede to the United States the right to acquire, and to strip it of all power to protect the birthright of its citizens and to provide for the well being of the acquired territory by such enactments as may in view of its condition be essential, is, in effect, to say that the United States is helpless in the family of nations, and does not possess that authority which has at all times been treated as an incident of the right to acquire."

The assertion that it is contrary to the spirit of the Constitution to hold territories without incorporating them as integral parts of the United States this opinion declares to be based upon political and not upon judicial considerations, there being no particular provision of the Constitution upon the subject. Conceding," says the opinion, "that the conception upon which the Constitution proceeds is that no territory, as a general rule, shall be acquired unless the territory may reasonably be expected to be worthy of statehood, the determination of when such blessing is to be bestowed is entirely a political question, and the aid of the judiciary cannot be invoked to usurp political discretion in order to save the Constitution from imaginary or real dangers."

4

The decision as to Porto Rico would of course conclude the status of the other insular possessions obtained in 1899 from Spain.

4 This would hardly seem to meet the point, which is not as to the power to hold districts for an indefinite length of time in a territorial condition, but as to the power to annex territory without "incorporating" it in the United States.

Not only, then, has the United States the power to acquire and hold appurtenant " territory, but, the opinion continues, this is the only status which may be given to annexed territory by the treaty-making power. For incorporation the consent of Congress is required. "It seems," the opinion continues, "impossible to conceive that the treaty-making power by a mere cession can incorporate an alien people into the United States without the express or implied approval of Congress. And from this it must follow that there can be no foundation for the assertion that, where the treaty-making power has inserted conditions which preclude incorporation until Congress has acted in respect thereto, such conditions are void and incorporation results in spite thereof. If the treaty-making power can absolutely, without the consent of Congress, incorporate territory, and if that power may not insert conditions against incorporation, it must follow that the treaty-making power is endowed by the Constitution with the most unlimited right, susceptible of destroying every other provision of the Constitution; that is, it may wreck our institutions. If the proposition be true, then millions of inhabitants of alien territory, if acquired by treaty, can, without the desire or consent of the people of the United States, speaking through Congress, be immediately and irrevocably incorporated into the United States, and the whole structure of the government be overthrown. While thus aggrandizing the treaty-making power on the one hand, the construction at the same time minimizes it on the other, in that it strips that authority of any right to acquire territory upon any condition which would guard the people of the United States from the evil of immediate incorporation. The treatymaking power, then, under this contention, instead of having the symmetrical functions which belong to it from its very nature, becomes distorted, vested with the right to destroy upon the one hand, and deprived of all power to protect the government on the other.

Though declared to be a political question, the necessity of such a power is argued at length by these justices.

And, looked at from another point of view, the effect of the principle asserted is equally antagonistic, not only to the express provisions, but to the spirit of the Constitution in other respects. Thus, if it be true that the treaty-making power has the authority which is asserted, what becomes of that branch of Congress which is peculiarly the representative of the people of the United States, and what is left of the functions of that body under the Constitution? For, although the House of Representatives might be unwilling to agree to the incorporation of alien races, it would be impotent to prevent its accomplishment, and the express provisions conferring upon Congress the power to regulate commerce, the right to raise revenue, bills for which, by the Constitution, must originate in the House of Representatives, and the authority to prescribe uniform naturalization laws, would be in effect set at naught by the treaty-making power. And the consequent result incorporation would be beyond all future control of or remedy by the American people, since, at once and without hope of redress or power of change, incorporation by the treaty would have been brought about. The inconsistency of the position is at once manifest. The basis of the argument is that the treaty must be considered to have incorporated, because acquisition presupposes the exercise of judgment as to fitness for immediate incorporation. But the deduction drawn is, although the judgment exercised is against immediate incorporation and this result is plainly expressed, the conditions are void because no judgment against incorporation can be called into play."

As is later indicated, however, where the treaty of annexation provides for incorporation, the consent of Congress to such incorporation may be implied from legislation that recognizes this status as having been obtained. But where a treaty of cession does not expressly provide for incorporation, and still more, where it expressly provides against it, a more formal congressional action would seem to be necessary.

The opinion then proceeds to maintain that at the time the Constitution was adopted, the term "United States" designated a definite territory, namely, the thirteen original States and the

areas which they had ceded, or had agreed to cede, to the General Government, and that the new government with prescribed powers was established for the benefit of the citizens of this national aggregate of State and Territories. "Thus it was, at the adoption of the Constitution, the United States, as a geographical unit, and as a governmental conception both in the international and domestic sense, consisted not only of States, but also of Territories, all the native white inhabitants being endowed with citizenship, protected by pledges of a common union, and, except as to political advantages, all enjoying equal rights and freedom, and safeguarded by substantial guarantees, all being under the obligation to contribute their proportional share for the liquidation of the debts and future expenses of the General Government."

In short, then, according to this doctrine, the Constitution, from the beginning, extended ex proprio vigore, over the States and the extra-State regions then subject to the sovereignty of the United States. In all that concerned the form of government to be established over them, the inhabitants of these territorial, extra-State districts, were subject to the discretionary control of Congress, but in all else, in the private rights of person and property, and the protection of all the limitations upon the federal power, express or implied, they were on a plane of perfect equality with the citizens of the States.

With reference, however, to territories acquired since 1789 the doctrine of the opinion is, as has been said, that they do not by annexation become ipso facto integral parts of the United States in this constitutional sense until Congress has incorporated them into the Union as such.

In support of this position the court cite legislative action to this effect with reference to territory annexed since 1787 up to the time of the treaty of 1898 with Spain. In each case, with the exception of this last treaty, the treaty of cession had provided that the territories ceded should be incorporated into the United States, or, as in the treaty of 1867 for the purchase of Alaska, that the civilized inhabitants should be "admitted to the enjoy

ment of all the rights, advantages and immunities of citizens of the United States."

If, the opinion asks, the effect of annexation were immediately to incorporate the territory annexed into the United States, what was the need of these express treaty provisions?

The opinion next goes on to show that the constitutional doubts expressed by Jefferson at the time of the acquisition of Louisiana were not as to its annexation, but as to its incorporation, as provided by the treaty, into the Union. By reference to various legislative and administrative acts, the opinion shows the territories subsequently annexed to have been either formally incor

The treaty for the cession of Louisiana to the United States provided that: "The inhabitants of the ceded territory shall be incorporated into the Union of the United States and admitted as soon as possible according to the prin ciples of the federal Constitution to the enjoyment of all the rights, advan tages, and immunities of the citizens of the United States." (8 U. S. Stat. at L. 202.)

In the treaty with Spain whereby was confirmed the title of the United States to the Floridas the United States agreed that: "The inhabitants of the territories shall be incorporated in the Union of the United States as soon as it may be consistent with the principles of the federal Constitution, and admitted to the enjoyment of all the privileges, rights, and immunities of the citizens of the United States." (8 Stat. at L. 256.)

In the treaty with Mexico by which Mexico relinquished its rights to Upper California and New Mexico the United States promised that: "The Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican Republic conformably with what is stipulated in the preceding article, shall be incorporated in the Union of the United States and to be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States according to the principles of the Constitution." (9 Stat. at L. 930.)

In the treaty with Russia for the annexation of Alaska the United States agreed that: "The inhabitants of the ceded territory . . . shall be admitted to the enjoyment of all the rights, advantages and immunities of citizens of the United States." (15 Stat. at L. 542.)

To the author's mind this is by no means conclusive argument; and for two reasons. In the first place, provisions really unnecessary are often inserted in legal documents from abundance of caution; and, in the second place, foreign countries are not presumed to know the constitutional law of foreign countries, and, therefore, the peculiar constitutional rights of the inhabitants of an annexed territory. It is, therefore, a general practice for countries, when handing over certain of their subjects to the political control of a foreign power, to provide as far as possible for the future welfare of these persons the control over whom is thus abandoned.