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without condition, to the Spanish-born residents in the Philippines. It was properly withheld from the Filipinos, as its allowance would have greatly embarrassed the United States without holding out any substantial advantage to the islanders.
The right or privilege of election is, I think, the nearest approach to a recognition in international practice of the ethical principle that government should exist with the consent of the governed, in its relation to the cession of territory. Some jurists, indeed, claim the sanction of international law for a right in the inhabitants of territory to determine its destiny by their vote, but in view of international practice their opinion must be regarded rather as an aspiration than a statement of the law. The United States have never required a plebiscite in
of their acquisitions, whether peaceable or forcible, and Secretary Seward is said to have protested, though in vain, against allowing the people of the Danish West Indies to vote upon the question of annexing the islands to the United States. Lord Salisbury bluntly defined English practice when he said in the House of Lords: “The plebiscite is not among the
: “traditions of this country. France, indeed, has annexed territory with the recorded approval of a majority of its people, though one is by no means convinced that she would have permitted the plebiscite without an assurance of its favorable result, or that she would have foregone her enterprise had the vote been unfavorable; and the story of plebiscites
1 Bancroft, Life of Seward, II, 483.
generally does not impress one with their value. The truth is that the plebiscite, while it may be eminently just and practicable in some cases, does not rank among the working principles of international law. If a strong state is determined to despoil a weak one, it will not stop for a vote. If two states agree upon a transfer of territory, there is no legal, nor, necessarily, any moral reason why their purpose should be thwarted by the people who, at the moment, happen to be living in it.
Change of Nationality
The Filipinos, having been divested of Spanish allegiance, it remains to determine their relation to the United States. A natural consequence of the rule that annexed territory is impressed with the nationality of the acquiring state is the attribution of this nationality to its inhabitants. This result is accepted generally abroad, and has been approved in our federal courts. Said Chief Justice Marshall of the inhabitants of Florida after its cession to the United States: “The same act which transfers their
country, transfers the allegiance of those who "remain in it.” 4 And the Supreme Court said in a later case: “Manifestly the nationality of the inhabi“tants of territory acquired by conquest or cession “becomes that of the government under whose “dominion they pass, subject to the right of election “on their part to retain their former nationality by “ removal or otherwise, as may be provided.” 1
. 1 See Despagnet, Droit International Public, ad Ed. 420; Phillimore, International Law, I, 585, 604.
2 See supra, p. 20.
3 For an interesting discussion as to the true date of the annexation of Algeria to France and the consequent attribution of French nationality to the native Algerians, see Hugues, La Nationalité Française chez les Musulmans de l'Algérie, 10-14.
4 American Insurance Co. v. Canter, 1 Peters 511, 542.
The general rule must be applied to the Filipinos, unless it is effectively avoided by the clause in the Treaty of Paris reserving to Congress the right to determine their political status.
Now while the term “political status” is by itself broad enough to include “allegiance” and “nationality,” the clause is not to be construed as relieving the Filipinos from the one or denying them the other. Such a construction would certainly be impolitic. The treatment of these people as political nondescripts would not materially further a policy of invidious discrimination, because it would be impossible to deprive them of legal rights under the Constitution. Like the Mexicans of New Mexico, they have come under the jurisdiction of the United States as former subjects or citizens of the state which has ceded the land of their residence. They have a right to live in their native country, and they must possess in permanence at least the personal and property rights affirmed by the Supreme Court to foreigners during their sojourn. Furthermore, the residence in our territory of a multitude of persons without national duty or affiliation of any kind would be embarrassing in many ways.
Fortunately, the impolitic construction of this treaty clause is unlawful. While it is not impossible for an
1 Boyd v. Thayer, 143 U. S. 135, 162.
individual to lack nationality;' while the people of Cuba are a community to whom a perfect nationality cannot now be attributed; nevertheless this anomalous condition is so opposed to public and private interests that it will never be recognized unless circumstances permit no other course. This is not the case here. By asserting sovereignty over the Filipinos, as the consequence of asserting it over the place of their residence, the United States inevitably claim their allegiance, and with the duty of allegiance is coupled the quality of nationality.
Are not the Filipinos citizens of the United States, duly naturalized by the operation of the Treaty of Paris? The Supreme Court has recognized a power to create citizens en masse by process of collective naturalization, “as by the force of a treaty by which ' foreign territory is acquired." The full meaning of
2 this power has never been adjudicated, because the treaties of annexation considered by the Supreme Court have purported to confer citizenship expressly; but Chief Justice Marshall significantly said of the citizenship of the people of Florida who remained there after the cession: “It is unnecessary to inquire “whether this is not their condition independent of stipulation.”3 The Treaty of Paris contains no such stipulation. On the contrary, its reservation of the
1 See Hall, International Law, 255. 2 Boyd v. Thayer, 143 U. S. 135, 162. 3 American Ins. Co. v. Canter, 1 Peters 511, 542.
political status of the islanders for the pleasure of Congress was intended to exclude them from citizenship, if possible, but it does not repudiate their allegiance, and, in my opinion, we confer citizenship upon those from whom we claim allegiance. And if it be objected that allegiance denotes subjection but not necessarily citizenship, I reply that the United States do not divide their people into subjects and citizens. “In one sense the term sovereign,” said Mr. Justice Wilson, “has for its correlative, subject. In “this sense the term can receive no application, for “it has no object in the Constitution of the United “States. Under that Constitution there are citizens, “but no subjects. Citizen of the United States.
Citizens of another State.' "Citizens of different «« States.' 'A State or citizen thereof.' The term “subject occurs, indeed, once in the instrument but " to mark the contrast strongly the epithet 'foreign’ “is prefixed.”
A classification of persons within the allegiance as citizens and as subjects is properly made in countries where citizenship carries political franchises. This is the rule in France, and so the natives of Algeria, though they are “Frenchmen,” are called subjects unless they have complied with the terms of the law conferring citizenship. From the standpoint of our Constitution such a classification would be impossible, for we shall see presently that citizens of the United States have not, as such, any political franchise what
1 See supra, p. 20.
3 See Hugues, La Nationalité Française chez les Musulmans de l'Algérie, 9.