States. They reject the provision which leaves the civil rights and political status of the inhabitants to be determined by Congress, as an unlawful attempt to grant to Congress certain powers over the territory after it has become incorporated in our Union, and therefore as immaterial and ineffectual for any purpose. Taking the phrase "Spain cedes Porto Rico to the United States" as making Porto Rico part of the United States under the Constitution, they contend that the provision that "the civil rights and political status of the inhabitant shall be determined by Congress" is either an attempt to grant Congress unconstitutional rights or "is merely harmless and superfluous, as it certainly is so far as political status is concerned, for it only declares what would be the law without it."

The treaty is a contract between two nations, and under familiar rules it must, if possible, be so construed as to give full force and effect to all its parts.

"It is a rule in construing treaties as well as laws to give sensible meaning to all their provisions if that be practicable. The interpretation, therefore, says Vattel, which would render a treaty null and inefficient cannot be admitted; and, again, it ought to be interpreted in such a manner as that it may have its effect and not prove vain and nugatory." (De Geofroy vs. Riggs, 133 U. S., 258.)

The construction contended for by the appellants not only fails to give sensible meaning to all the provisions of the treaty, but does violence to the natural and ordinary meaning of its language. When one nation "cedes" territory to another it hands over the title and sovereignty, good as against all the world; but this does not necessarily determine in what way it shall be held by the new sovereign. As was said by Chief Justice Marshall in American Insurance Co. vs. Canter, 1 Pet., 541:

"The usage of the world is, if a nation be not entirely subdued, to consider the holding of acquired 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 confirmed 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."

In determining the meaning to be attributed to the words "cede" and "foreign" herein, we must not confuse the principles of international and constitutional law. From the standpoint of international law, as regards other nations, Porto Rico is annexed to the Union and has become fully a part of the United States. The title to the soil is in us as exclusively as is that to any portion of this continent. Its political status is determined by the treaty. It is now a part of our dominion, undistinguishable from any other part of the United States, so far as other powers are concerned, but this international relation does not affect the status of the island from the standpoint of constitutional law. The soil became part of the United States by conquest. The treaty of cession only confirmed on the part of Spain a title already good against all the rest of the world. We have the authority of Fleming vs. Page that acquiring the title to soil, making it part of the United States as regards foreign nations, does not bring it within the sphere

of the Constitution. If, then, it is not acquisition of soil which extends our constitutional boundaries, what does accomplish this result? In order to extend boundaries recognized by other nations the extension of dominion by conquest is sufficient. To extend constitutional boundaries there must be some extension of organic law to the inhabitants or of institutions over the territory. The sphere of application of the Constitution is determined not by considerations of title to land, but by recognition of the status of its inhabitants. New territory is not brought under the Constitution by acquisition of the soil, otherwise Fleming vs. Page could not have been decided as it was. This is done either by an incorporation of the inhabitants into the Union or by an extension of our laws and institutions throughout the territory. This cannot be done by conquest, but only by legislation or treaty. (Fleming vs. Page.) Here the treaty recognizes and makes complete the de facto title gained by conquest. The island is not thus brought under the Constitution unless the treaty supplements the confirmation of title by an incorporation of the inhabitants into the Union under the Constitution or by the extension of our institutions. This the treaty fails to do. Instead of providing that Spanish residents who renounce their allegiance shall be incorporated as citizens-the uniform course pursued hitherto when it has been desired to bring new territory into the Union-the treaty stipulates that in default of a declaration of allegiance to Spain "they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside." Thus they and the native inhabitants, practically the whole people of the island, are left to find a determination of their status in congressional action. The people of Porto Rico, instead of being incorporated into the Union by the treaty, are left in statu quo. Nor has there been any extension of our laws or institutions to the island, but at least one of these acts, brought about either by treaty or legislation, is necessary before any change of status, before any application of the Constitution in Porto Rico. Until then the island remains, to use the language of the Supreme Court, "part of the United States, but still a foreign country."

It is strongly urged, by way of objection to effectuating the language and real intent of the treaty, that the United States has no constitutional authority to hold sovereignty over subject territory which it does not make part of itself under the Constitution. This principle is attempted to be deduced, not from any general impossibility of owning territory without incorporating it as a part of the sovereign. nation, but from the peculiar limitations claimed to exist upon our own sovereignty. Other nations rule and exercise full sovereignty over lands which they in no way annex to themselves as an integral part under their organic law. If the United States is to be denied this common attribute of sovereignty, it must be admitted that the treaty of Paris is so far forth unconstitutional; but if our nation has this power in common with other nations, then the treaty is valid.

We have seen that before the treaty of Paris Porto Rico was a foreign country, and that by the treaty of Paris its political status was to remain unchanged until Congress should act. Until Congress fixes its status otherwise, Porto Rico, so far as regards our Constitution, is a foreign country. That it was so at the time of the treaty cannot be denied without running counter to the authority of the decision of the Supreme Court in Fleming vs. Page, supra. That the

treaty, if valid, left the constitutional status of the island unchanged cannot be denied without doing violence to the meaning of its express terms and adopting a construction which fails to give effect to all parts of the instrument.

The only remaining ground upon which it can be urged that Porto Rico's status has been changed is that the treaty is unconstitutional. Thus far in the history of our country no treaty has ever been adjudged invalid on this ground. A treaty is not only the law of our land, but also a contract of the United States with another nation. A court would not be justified in overruling the act of the treaty-making power unless the reasons for so doing were strong and imperative.

The sole constitutional question is this: May our Government by treaty accept the title and sovereignty over territory and at the same time preserve its status as a foreign country so far as its internal relation to us is concerned? Can we, in other words, hold sovereignty over territory without incorporating it into the United States? Counsel for appellant, in arguing that Porto Rico is a portion of this nation, rely chiefly on the case of Cross vs. Harrison, 16 How., 164. They claim that it was there decided "not only that territory ceded by a treaty of peace becomes a part of the nation to which it is annexed, but that it ceases to be a foreign country within the meaning of the tariff act, so that duties accrue under such an act upon goods brought into it from abroad." It is extremely doubtful whether any such doctrine can be deduced from that case. If it were to be assumed that such might be the effect of an unqualified cession this principle would not apply in testing the constitutionality of a treaty which modifies the cession and preserves the status of ceded territory as foreign. The contract between the United States and Spain in express terms qualifies what the appellants claim is the usual legal effect of cession.

The opinion in Cross vs. Harrison does not contain any discussion of this the only question before us. Indeed, the constitutional questions which were discussed were not involved in the decision, because the only controversy was as to the authority of the military governor, after cession, to collect the regular duties in force throughout the United States without authority from Congress, and Congress had ratified his action. This alone would have been decisive. Beyond this the only question involved in the discussion was the right of the collector under the military governor during the interregnum to levy on goods coming into the ceded territory the same duties as were enforced elsewhere in the United States.

In what sense California was a part of the United States is not made clear. Justice Wayne, indeed, said: "By the ratification of treaty California became part of the United States; and as there is nothing stipulated in the treaty with respect to commerce, it became instantly bound and privileged by the laws which Congress had passed to raise a revenue from duties on imports and tonnage. But the suit related to the claims of foreign importers. The right claimed by them was to land goods free from duty in territory under the sovereignty of the United States, and so a part of the United States as to all foreigners. No question of the internal relation of California and the United States was raised; and it is not at all certain that these words of Justice Wayne do not mean simply that, as to foreign nations, California had become a part of the United States by perfected title, and

therefore foreigners could not violate there the law allowing them liberty to trade with the United States under specified conditions.

But even if these words of the court were intended to describe the internal relation of the new territory, they were used in reference to the treaty by which California was ceded. That treaty not only did not negatively qualify the cession, but, on the contrary, contained such phrases as these: "Territories previously belonging to Mexico and which remain for the future within the limits of the United States as defined by the present treaty" (art. VII). "In consideration of the extension acquired by the boundaries of the United States as defined in the 5th article of this treaty" (art. XII), and "considering that a great part of the territories which by the present treaty are to be comprehended for the future within the limits of the United States" (art. XI), besides the general provision for the incorporation of inhabitants as citizens already mentioned (art. IX, 9 Stats. at Large, 930).

Apparently the intent of that treaty was to include California within the United States. Whatever is said in Cross vs. Harrison on the relation of the ceded territory to the United States, so far as it is not merely obiter, serves simply to fix the effect of that and similar treaties of cession. But there is nothing in all this from which we can derive any authority to declare unconstitutional a treaty of cession which postpones the incorporation of the ceded territory as an integral part of the United States. The only phrase at all bearing on that issue is: "Inasmuch as there is nothing stipulated in the treaty with respect to commerce, it became instantly bound and privileged by existing tariff laws." This indicates that a treaty may make provisions for tariff regulations not uniform with those existing throughout the Union, thus postponing the complete annexation of the territory under the uniformity clause in the Constitution.

Cross vs. Harrison, therefore, upon the authority of which the appellants chiefly rely, does not bear at all upon the constitutionality of this treaty. The discussion of the constitutional question simply assumes that California had become part of the United States. The references to and interpretations of said decision in subsequent decisions of the Supreme Court show that the only point decided there was, as stated by Mr. Justice Bradley, "that the President as commander-in-chief had power to form a temporary civil government for California as a conquered territory, and to impose duties on imports and tonnage for the support of the government and for aiding to sustain the burdens. of war, which were held valid until Congress saw fit to supersede them; and an action brought to recover back duties paid under such regulation was adjudged to be not maintainable." (Hamilton vs. Dillin, 21 Wall., 87.)

"It was held in the case of Cross vs. Harrison that the sovereignty of California was in the United States in virtue of the Constitution, by which power had been given to Congress to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States," to show power of Congress to govern it. (Catron, J., in Scott vs. Sanford, 19 How., 523.)

The other case emphasized by appellants as bearing on this point is Loughborough vs. Blake, 5 Wheat., 319. Reliance is placed on the following language of Chief Justice Marshall:

"It will not be contended that the modification of the power extends to places to which the power itself does not extend. The

power, then, to lay and collect duties, imposts and excises may be exercised, and must be exercised, throughout the United States. Does this term "-i. e., the United States-" designate the whole or any portion of the American empire? Certainly this question can admit of but one answer. It is the name given to our great republic, which is composed of States and Territories. The District of Columbia, or the territory west of the Missouri, is not less within the United States than Maryland or Pennsylvania; and it is not less necessary, on the principles of the Constitution, that uniformity in the imposition of imposts, duties and excises should be observed in the one than in the other. Since, then, the power to lay and collect taxes, which includes direct taxes, is obviously coextensive with the power to lay and collect duties, imposts and excises, and since the latter extends throughout the United States, it follows that the power to impose direct taxes also extends throughout the United States."

Inasmuch as the District of Columbia was carved out of States which were under the Constitution, it has been strongly urged that these statements are mere dicta. Mr. Justice Marshall's proposition is that since the power to levy taxes may and must be exercised throughout the United States, the limitation of the power must cover an equal area; but in no event could it be necessarily decisive as to whether we can hold the title to territory without making it a part of the United States.

No other decision of the Supreme Court has been cited as furnishing any authority to support the claim that this treaty is unconstitutional. The question is therefore an open one.

On the one side it is contended that the United States may hold title to territory without incorporating it fully under its organic laws; on the other, that when it accepts sovereignty the ceded territory at that instant becomes fully a part of the United States without possible qualification or limitation. If the character of the acquisition may be limited, the attempt to preserve the foreign status of the island until Congress shall determine the extent to which it is to be incorporated is constitutional. If cession ipso facto accomplishes an unqualified incorporation, Porto Rico is no longer foreign.

If we cannot hold ceded territory without bringing it under the Constitution as an integral part of the United States, then we cannot give to Porto Rico practical independence, a constitution and laws of her own, taxes of her own, and hold merely the sovereignty, confined perhaps to control of foreign relations. If Porto Rico is still a foreign country, we might adopt that course. The treaty, if valid, leaves such a policy open to us. If it is a part of the United States in the sense that appellants urge, we cannot grant independence unless we entirely renounce our sovereignty. For, otherwise, under their contention, the island would be under the uniformity clause of the Constitution, and we should be compelled to tax it uniformly with our own nation. Such a view of our constitutional limitations would make it impossible for us to accept from another nation a cession of territory on the condition that we should not tax it for a number of years. If cession works incorporation and its effect cannot be limited, we cannot stipulate to hold the ceded territory without imposing upon it at once the burden of our excise laws and our tariff. Can we not, in acquiring territory, provide for free trade with its former sovereign for a time?