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that treaties must first conform to the Constitution, and then, if possible, to the expectations of their makers-a rule kept in mind by our Peace Commission, whose president has said in explanation of this reservation: “It was thus undertaken to give Con“gress, as far as the same could be constitutionally
done, a free hand in dealing with these new “territories and their inhabitants.” 1
· The Ninth Article of the treaty declares also that the Spanish-born residents of the ceded and relinquished territories, who shall not have elected to retain their old allegiance within a given time, shall be deemed to have adopted “the nationality of the ter
ritory in which they may reside.” Does this impress the Philippines and Porto Rico with nationalities distinguished from the nationality of the United States? The “nationality” attributed to the “relin“quished” island of Cuba has no bearing on this question. It is anomalous, like everything relating to the status of this oddly situated island. Quite different is the "nationality” of the ceded territories, for these being duly transferred from one sovereign to another, their character is determinable by simple principles; and in applying them we are not embarrassed by the variant conceptions of “nationality" in its relation to people.?
The national territory prefigured by the Article
1 Address of Hon. William R. Day before the Michigan Bar Association, May 23, 1900, p. 9. (The italics are mine.)
2 See Boyd's Wheaton, International Law, 3d Ed. 30; Maine, Early History of Institutions, 74; Savigny, Conflict of Laws, Guthrie's translation, 2d Ed. 58; Tupper, Our Indian Protectorate, 393; Cogordon, La Nationalité, ad Ed. 3-6.
can be nothing else than land belonging to a state, and when I assert that we have only to name the state which is the sovereign proprietor of the soil in order to name its nationality, I rely upon a rule of public law never questioned in our courts, and generally accepted in other countries.
“Her Majesty's dominions," is the legal description of that empire which comprises the British Islands, British India, and the colonies of every description, and every part of these dominions is British territory. Commenting on an act of Parliament referring to "foreign dominions” of the Crown, Chief Justice Cockburn said: “I understand “the term 'foreign dominion' to mean a country “which at some time formed part of the dominions of
a foreign state or potentate, but which by conquest “or cession has become part of the dominions of the “Crown of England"; and Justice Blackburn concurred in this opinion. An Englishman would ridicule the notion that any part of the Queen's dominions could be other than British territory. Even Australia and Canada, so nearly independent in fact, have no nationality of their own. When France formally extends her sovereignty over new territory she does not amuse herself by pretending that it has a nationality other than French. After the acquisition of Madagascar, M. Hanotaux said in the Chamber of Deputies, “Madagascar is French “territory."?
To give the clause in question a constitutional, even an every-day meaning, it must be under
1 Brown's Case, 5 Best and Smith 280, 290.
stood to attribute the nationality of the United States to Philippine and Porto Rican territory: And how can land be “foreign" to that country to which it is linked by the tie of nationality?
The Treaty of Paris contains no express declaration that the ceded islands are incorporated into the United States. Nor do we find any of those clauses recognizing citizenship, promising statehood, or delimiting new national boundaries which appear in some earlier treaties of annexation. But these omissions are, like certain subordinate clauses, incompetent to qualify the legal effect of these masterwords of the treaty: “Spain cedes to the United “States the archipelago known as the Philippine “ Islands,” and “cedes” her “sovereignty” thereof; and Porto Rico is transferred in similar terms. By ratifying this treaty the United States have accepted completely the sovereignty of the islands, as I understand the law of the matter; but if the assent of the House of Representatives be really essential to a perfect acceptance, as some members asserted in a debate on the Alaska purchase, it has been given by the appropriation of $20,000,000 to carry out the treaty, or if this payment bound the House in regard to the Philippines only, the House has certainly accepted Porto Rico by legislating for it. Add that the United States are in possession, and it is plain that the combination of law and fact impresses upon the islands the nationality of our republic. None other would be compatible with our sovereignty.
Commenting on an earlier annexation like unto this one in its legal aspects, Chief Justice Marshall said:
“The usage of the world is, if a nation be not en« tirely subdued, to consider the holding of conquered “territory as a mere military occupation until its "fate shall be determined at the treaty of peace.
If "it be ceded by the treaty, the acquisition is con
firmed, and the ceded territory becomes a part of the “nation to which it is annexed; either on the terms stipulated in the treaty of cession, or on such as its new master shall impose.” 1
The important phrase of this statement is, “the “ceded territory becomes a part of the nation to which “it is annexed.” The additional words, “either on “the terms stipulated in the treaty, or on such as its “new master shall impose,” do not, as some suppose, suggest the uncertainty of incorporation, for the fact of incorporation is established by the accepted cession; they merely note circumstances that may accompany or follow incorporation. The “new mas“ter” may impose upon its possessions any terms, that is to say, any laws permitted by its own institutions. Articles of cession may contain stipulations, but after the cession is executed non-performance of the stipulations will not affect the title of the acquiring state in its own courts. For example, when we acquired California we agreed to pay Mexico $3,000,000 on the ratification of the treaty, and $12,000,000 in annual instalments of $3,000,000, but a default in the payments would not have affected the incorporation of California into the United States; indeed, California became a State of the Union before all the instalments were due.
1 American Insurance Co. v. Canter, 1 Peters 511, 542. (The italics are mine.)
The rule that ceded land is incorporated into the domestic territory of the acquiring state is a consequence of the fact that it falls at once within the territorial jurisdiction of the legislature, and all land coming under this jurisdiction through agreement or conquest or occupation, through fair means or foul, becomes an integral part of the acquiring state because of its subjection to the sovereign body that makes the laws. “What, then, is the “extent of jurisdiction which a State possesses?”
Chief Justice Marshall. “We answer, without hesitation, the jurisdiction of a State is coextensive “with its territory; coextensive with its legislative “power”:1 And Mr. Justice Story said: “The laws “of no nation can justly extend beyond its own “ territories, except so far as regards its own citi
In the Goetze case Porto Rico is called a · foreign country,"yet is recognized as being within the full jurisdiction of the Federal Government. But because it is within this jurisdiction it cannot be “foreign.”
There are, indeed, instances of the subjection of two countries to one sovereign, but these are not in point. Leopold II is King of the Belgians; he is also sovereign of the Congo State. William IV was King of Hanover as well as of Great Britain, and it is noteworthy that, while there was no fusion of states,* Hanoverians in England appear to have been British subjects by virtue of their allegiance to the person who
1U. S. v. Bevans, 3 Wheaton 336, 386.