effect: "The Philippines' we demand, and which 'you will cede without change in terms, include Min"danao and the Sulus." Of course the victors proved to be better geographers than the vanquished. Throughout the negotiations Spain's ability to transfer the complete sovereignty of all the land demanded by the United States was never questioned, and in the treaty she assumed to cede, and the United States accepted sovereignty over all. We cannot afford to esteem that sovereignty as less than perfect and all-embracing. We will not go behind the Treaty of Paris for confirmation of our title to any part of the Philippines. As we have not sought "the con"sent of the governed" from the people of Luzon, we cannot even appear to recognize its necessity in dealing with slaveholding and polygamous barbarians who are only restrained from piracy by gunboats and blackmail.

This certificate of title sufficiently demonstrates our legal right to possess the Philippines, and with legal rights only are we at present concerned.

THE EFFECT OF ACQUISITION

The first question suggested by the cession of the Philippines is whether it has incorporated the islands into the United States.

In some international sense "the United States" defines all the territory in which the Federal Government is responsible before foreign nations. ecutive occupation of new-found, or abandoned, or hostile territory will bring it within the international

boundaries of the United States, because among the nations the state in visible control of a country is accounted its sovereign for important purposes.1 But land occupied through enterprise or conquest, unconfirmed by the legislature, does not become part of the United States in a domestic sense, though the act be prompted or approved by the President. The power to enlarge the republic is vested in the treatymaking body and also in Congress, but not in the executive alone.2

English law is different. The Crown, having the powers of making war and treaties, is competent to gain territory through their employment, but the land acquired does not become the exclusive dominion of the Crown. In the words of Lord Mansfield, “A country conquered by the British arms becomes a "dominion of the King in right of his Crown, and "therefore necessarily subject to the legislature, the "Parliament of Great Britain."8

Whether the new dominion be actually subjected to laws imposed by the Crown, by a local government, or, rarely, by Parliament itself, depends on the will of the latter.

Unquestionably the Philippines are part of the United States in an international sense.

As the seat of a governing community "the "United States" are the States of the Union only.

1 See Thirty Hogsheads of Sugar v. U. S., 9 Cranch 191, 195; U. S. v. Rice, 4 Wheaton 246; Fleming v. Page, 9 Howard 603, 615.

2 See Fleming v. Page, 9 Howard 603, 614.

3 Hall v. Campbell, Cowper 204, 218. See also The Foltina, I Dodson's Admiralty 450.

The whole political power of the republic is vested in these forty-five States and their people. The Philippines are no part of this "United States," so there is no reason for the cry of alarm that their incorporation into the territorial body of the republic would mean the admission of millions of Asiatics to the body politic.

There is a third definition of "the United States." As the dominion of a sovereign nation "the United "States" describes a territory larger than the area of the States, but, at present, smaller by the area of Cuba than our "international" territory. This "United States" comprises all the land within the territorial jurisdiction of Congress, and makes one national territory. This definition is repudiated by the Administration, whose attitude toward our new possessions is based on the theory that while the treaty-making body intended to bring, and did bring the islands under the complete sovereignty of the United States, it intended to hold, and did hold them aloof from the United States, except in that international sense which conveys no idea whatever of domestic unity. This theory has been lately approved in one of the circuit courts of the United States. In the court's opinion we read: "The different States "are usually held to be foreign to each other except "as concerns international relations. Sister State "judgments are, for most purposes, foreign judg"ments, and generally for all purposes other than "those specifically mentioned in the Constitution our States are foreign to each other. On the same "principle Porto Rico remains foreign to the United

"States except as provided in the Treaty."

Here is

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?

"2

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 ques1 Goetze v. U. S., 103 Federal Rep. 72, 83. 2 Cherokee Nation v. Georgia, 5 Peters 1, 17.

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?"1

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.2

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

1 103 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.