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“States except as provided in the Treaty."1 Here is

»i a false analogy. The real relation of our States to each other, and the supposed relation of our new possessions to the United States are not referable to the same principle.” The dominion of the republic is platted into political divisions, including Territories, the District of Columbia, and Indian reservations as well as States, and in some respects these are foreign to each other. A corporation, a judgment, a will originating in one of these divisions is foreign in the others: A person charged with crime in one division can be brought back from another only by process of extradition. In this sense the Philippines and Porto Rico are foreign to each other, and to all the remaining divisions. But none of these divisions is foreign before the Federal Government. Even the States which enjoy a measure of sovereignty are not “foreign states”; and a clash of federal and State sovereignties is impossible, theoretically, so accurately is the sphere of each supposed to be defined. Notwithstanding the singular relation of the Indian tribes to our Government, the territory they occupy “is ad“mitted,” says Chief Justice Marshall, “to compose a "part of the United States." Since the political divisions whose people possess some real or shadowy sovereignty are not “foreign ” to the United States, how can territory within their exclusive jurisdiction be other than domestic?

The real rationale of the opinion in Goetze v. The United States is found in its affirmative answer to what the court says is the sole constitutional ques

1 Goetze v. U. S., 103 Federal Rep. 72, 83.
2 Cherokee Nation v. Georgia, 5 Peters 1, 17.


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tion : “May our Government accept the title of and “sovereignty over territory and at the same time “preserve its status as foreign territory so far as in“ternal relations are concerned?")

The theory that the treaty-making body, or Congress itself for that matter, can extend the complete and exclusive sovereignty of the republic over territory without incorporating it within the national boundaries of the United States lies at the root of the great legal questions of domestic interest suggested by the Treaty of Paris, and it seems to be fostered by the notion that this body has a free hand in the making of territorial arrangements in behalf of the republic. The theory that treaty provisions are a law unto themselves has a certain attraction because engagements with foreign states are presumably sacred; but this ethical principle does not necessarily bind our courts. Should Congress pass an act inconsistent with a treaty pledge a court would enforce the act, and not the treaty, holding simply that an old law had been repealed by a new one.?

Another argument for attributing unlimited powers to the treaty-making body is that it must be competent to act quickly and decisively in the most serious emergencies. What agreements and concessions the President and Senate might be forced to make, and the republic be forced to accept by a conqueror, suggests a circumstance too humiliating and too remote to affect the interpretation of their powers in normal cases. And the Treaty of Paris is on our


103 Federal Rep. 72, 79. 2 Head-money Cases, 112 U. S. 580; Fong Yue Ting v. U.S., 149 U. S. 698; U. S. v. Old Settlers, 148 U. S. 427.

part a normal act, requiring no sacrifice of constitutional principle to the law of necessity. The theory of the independence of the treaty-making power finds no place in our jurisprudence. Though the Supreme Court has never been obliged to declare a treaty provision unconstitutional, and would do so with peculiar reluctance, it holds, as a matter of course, that treaties are subordinate to the Constitution.2 "It “need hardly be said,” says the Court, “ that a treaty cannot change the Constitution or be held valid if it robe in violation of that instrument. This results from “the nature and fundamental principles of our Gov

Even in Great Britain it is doubtful whether the courts would respect a treaty provision repugnant to "the law of the land." 4


With the assurance that the treaty-making body, like Congress, is bound to respect the organic law which created it, we proceed to examine the particular assertion that while the Treaty of Paris effects a complete transfer of the sovereignty of the Philippines from Spain to the United States, the presence of certain clauses and the absence of others forbid the conclusion that the Archipelago is incorporated in the United States, and leave it a foreign country in respect of the internal administration and policy of the republic.

1 See Ware v. Hylton, 3 Dallas 199, 237.

2 See U. S. v. The Peggy, 1 Cranch 103, 110; New Orleans v. U. S., 10 Peters 662, 736; Lattimer v. Poteet, 14 Peters 414; Doe v. Braden, 16 Howard 635, 657; Geofroy v. Riggs, 133 U. S. 267; Thomas v. Gay, 169 U. S. 264, 271; License Cases, 5 Howard 504, 613.

3 The Cherokee Tobacco, 11 Wallace 616, 620.

4 See The Parlement Belge, 4 P. D. 129, 5 P.D. (C. A.) 197; Walker v. Baird, [1892] A. C. 491; Dicey, Law of the Constitution, ist Ed. 391.

The Fourth Article of the Treaty reads: “The “United States will, for the term of ten years from “the date of the exchange of the ratifications of the “present treaty, admit Spanish ships and merchan“dise to the ports of the Philippine Islands on the

same terms as ships and merchandise of the United “States." It is argued that this trade privilege could not be accorded in a part of the United States, because of the prescription of uniformity of duties “throughout the United States," and therefore that its

appearance in a treaty is proof that the islands have not been incorporated. This argument puts the cart before the horse. Whether the Philippines are incorporated depends altogether upon the legal effect of the cession of sovereignty -a principal part of the treaty wholly unaffected by this subsidiary clause, which, if incompatible with the consequence of cession, may be declared invalid by our courts in a proper suit. Treaties, like statutes, are to be construed so that, if possible, all their parts shall stand; but if this subsidiary provision be declared unconstitutional by the courts it will be excised without damage to the remainder. If this trading privilege be illegal, its excision would not operate to retrocede the islands to Spain, nor to alter the title by which we hold them. The agreement is a condition subsequent to cession, and non-performance, whether through perversity or constitutional inability, would only give Spain a grievance.

The Ninth Article declares that “ the political

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"status and civil rights of the native inhabitants of - the territories hereby ceded to the United States “shall be determined by the Congress.” This singular declaration is supposed to negative the idea of an incorporation of territory. Says the Court in the Goetze case:1 “If this treaty must be so construed “that the territory is incorporated into the United

States, while the inhabitants are denied the polit“ical status and civil rights of citizens, the treaty "must be declared unconstitutional, and in that case “Porto Rico [and of course the Philippines] remains “a foreign country.

This cannot be true. It is incredible that a judicial annulment of this clause, as being inconsistent with an incorporation inferred from an accepted cession, should invalidate the cession itself, and leave the United States in wrongful possession of a foreign land on the theory that, by this reservation, they had disabled themselves from accepting the inevitable consequences of a rightful possession. The truth is that the real position of a subsidiary clause is again exaggerated, and with less excuse, if possible, than in the case of the commercial privilege just mentioned. For this privilege, being a contract with Spain and, presumably, part consideration for cession, has so peculiar a claim upon our national honor that its rescission, even on the score of unconstitutionality, would place us in a disadvantageous light. But the declaration is not a contract with any one— not even a promise. It is merely a reservation of a matter of domestic interest for the determination of Congress, and its qualification or annulment by the Supreme Court would simply illustrate the rule

1103 Federal Rep. 72, 83.

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