ARGUMENT OF JOHN G. CARLISLE, ESQ.

Mr. CARLISLE. May it please the court: After the protracted discussion which has already taken place in these cases, and in others involving some of the same questions, I am not disposed to extend it unnecessarily by any preliminary remarks, and will therefore proceed at once to the consideration of the matters involved. In doing so I shall not discuss any questions of policy, because they belong exclusively to another forum. We are here to discuss, and this court is here to decide, constitutional and legal questions only; and in deciding such questions the court must be, and it always has been, guided by the Constitution and laws themselves. After reading the printed arguments, and listening to the oral arguments of counsel for the Govern ment, I am not sure, at least I am not quite sure, that I yet understand the exact positions taken by them; but I will endeavor to formulate what I conceive to be the contentions of counsel.

As I understand their position, they now insist that the island of Porto Rico did not become a part of the United States, in a constitutional and legal sense, by conquest and a surrender or abandonment of Spanish sovereignty over it at the date of the protocol, or by the cession at the date of the treaty, or even by the final ratification of the treaty by both Governments.

That although it is not a part of the United States, except geographically and in an "international" sense, whatever that may mean, it was, from the time when our occupation became permanent in its character, subject to the jurisdiction of the United States, and that this jurisdiction could be lawfully exercised over the persons and property of the inhabitants of the island in any manner the authorities of the United States might choose, subject to some of the prohibitions and limitations of the Constitution, which are not specified in either the oral or printed arguments, and subject also to some of the principles concerning the rights of persons and property underlying the Con

stitution.

That during the period between the acquisition of the island by the United States and the enactment of a law by Congress recognizing it as a part of the United States, however long or short that period might be, the President of the United States had the power to govern the inhabitants and all others within its limits, and to make and enforce such laws, orders, and rules and regulations concerning their social relations, their internal and external trade, and their personal and property rights as he might choose, subject only to the laws of war as established and defined by international law.

That the island will not become a part of the United States in the constitutional sense until it has been admitted as a State into the Union, and that until to that time its inhabitants, whether natives of the H. Doc. 509-52

817

island or citizens of the United States domiciled there, or sojourning there, are not protected in their person or property by the Constitution, except, as I have said, by certain unspecified prohibitions and limitations contained in the Constitution and possibly by some of the principles which underlie it. From these premises they conclude that the island of Porto Rico, not being a State, and not being a part of the United States, the constitutional requirement that duties, imposts, and excises shall be uniform throughout the United States has no application to it. If your honors please, we do not concede that the tax of which we complain in these cases can be sustained, whether they are or are not embraced in this provision of the Constitution, for I shall endeavor to show the court before I conclude that Congress had no power to levy and collect such a tax, whether it be uniform or not.

But before entering upon the discussion of the question of Executive or Congressional power, it is necessary to ascertain at what time the island of Porto Rico became subject to the dominion and authority of the United States Government, and the decision of this question depends upon certain facts and upon the application of the principles of international law to these facts-not for the purpose of determining the power to acquire it, or the extent of the authority to govern it after its acquisition, but in order to ascertain the legal consequences or effect of what was actually done there by the Governments of Spain and the United States. There is no controversy in these cases concerning the power of the United States to acquire territory by conquest, by treaty, or by discovery and occupation. That power is derived from the Constitution, as this court has frequently held, and whether it is implied from the expressly delegated power to make treaties and to declare war, or from the clause which authorizes Congress to admit new States into the Union, or from some other clause, is wholly immaterial for the present. All admit, too, that Spain possessed the power to transfer her sovereignty and dominion over the island and its inhabitants, either by acknowledging their subjection or conquest by another power and a surrender of her possession and dominion, or by cession of the title in a treaty.

At what time, then, did Spain in fact and in law divest herself of sovereignty and jurisdiction over the island and abandon it to the exclusive possession and control of the United States? The island was invaded by the military forces of the United States and to a certain extent invested by its naval forces. On the 28th of July, 1898, immediately after this invasion, General Miles issued a proclamation to the inhabitants, in which he announced to them that they were released from their political relations with Spain; that the army did not come there to make war upon the people, but, on the contrary, to bring them protection, not only to themselves but to their property. and to promote their prosperity and bestow upon them the immunities and blessings of the liberal institutions of the Government of the United States; and on the next day another order or proclamation was issued by the general in command at Ponce, in which it was announced that the municipal laws, so far as they affected the private rights of persons and property and provided for the punishment of crime, should be continued in force so far as compatible with the new order of things, and should not be suspended, unless absolutely necessary to accomplish the objects of the military occupation; that these laws should be administered by the ordinary tribunals, substantially as they

were before the occupation, and that all ports and places in the actual possession of the United States forces should be open to the commerce of all neutral nations, as well as our own, in articles not contraband of war, upon payment of the prescribed rates of duty which might be in force at the date of the importation.

While this condition existed negotiations were set on foot which resulted in the protocol of August 12, 1898, by the terms of which it was provided that "Spain will cede to the United States the island of Porto Rico and other islands now under Spanish sovereignty in the West Indies, and also an island in the Ladrones, to be selected by the United States," and it then provided, among other things, that Spain would "immediately evacuate Cuba, Porto Rico, and other islands now under Spanish sovereignty in the West Indies."

It will be seen from this that the honorable Solicitor-General was mistaken in his statement made yesterday, that Spain simply agreed in the protocol that she would cede the island only in case a treaty of peace should be concluded. It was an absolute and unconditional promise.

Now, this was not a mere capitulation by a military commander in the field, but a solemn and effective acknowledgment of an accomplished and permanent conquest of a part of its dominions by the sovereign power of Spain itself, and an express agreement to abandon the conquered territory to the conqueror; and it was abandoned by the withdrawal of the whole Spanish forces, by the surrender to the United States of all public places and public property, and the absolute and permanent cessation of all Spanish authority within the limits of the island, except such only as was necessary in order to execute the provisions of the protocol.

From that time on until the present, although a theoretical, but not actual, state of war existed between the two Governments for several months, perfect peace has prevailed in Porto Rico, and the authority of the United States has not been questioned by the inhabitants, or by Spain, or any other power. If no treaty had thereafter been negotiated, and if no formal cession had thereafter been made, there can be no question but that the island of Porto Rico would have forever remained a part of the possessions and dominions of the United States. It would, therefore, be a plain denial of the actual facts, and an equally plain misapplication of the law, to say that after all this the possession and control of the island by the United States were only temporary, such, for instance, as that in Tampico and the State of Tamaulipas during the Mexican war, or such as the British Government had at Castine during the war of 1812.

Mr. Justice WHITE. Would the President of the United States, without the concurrence of the treaty-making power, have the right to acquire territory for the United States; is that your conclusion?

Mr. CARLISLE. I will refer presently to a decision of this court showing the effect of such a conquest and occupation. I do not argue that the President can add to the boundaries of the United States in a political sense, and I am stating these facts for the purpose of showing that after the date of that protocol there was actual peace in Porto Rico, and our possession and authority were intended to be, and were in fact, permanent.

The possession and control of the island since the date of the treaty and since its ratification have been no more permanent or absolute in

their character than they were between the date of the protocol and the formal cession. The possession was complete and exclusive; the control was absolute and unquestioned; the sovereign authority of the United States was acknowledged and obeyed in every part of the island; it was claimed by the United States and recognized by the Kingdom of Spain and by all other Governments; and, finally, Spain, in the most solemn manner, by formal cession ratified and confirmed the authority of the United States over the island without disturbing or even referring to anything that had been done there after the date of the protocol. No restitution of public property was stipulated for; no reservation of any right to question any transaction on the island since the date of the protocol was mentioned; no conditions were imposed upon the title, but the island was ceded absolutely, just as it stood on the day the protocol was signed.

Compare these conditions with the situation existing in upper California in July, 1846, when, as this court has more than once decided, the conquest of that territory by the United States was completed. The United States Army captured Monterey on the 7th day of July, 1846; the Mexican forces retreated and left ours in possession, as this court has said, "of a large part of the country." There was no capitulation, no surrender by the Mexican forces; there was no abandonment of sovereignty or jurisdiction by the Mexican Government nor any acknowledgment of a conquest. On the contrary, actual hostilities between the two countries continued for nearly two years thereafter, during all of which time the territory occupied by our military forces was subject to recapture by the enemy; but in the case of Stearns against The United States, reported in 6th Wall., 589, where the question was directly involved, this court decided that the conquest was complete on the 7th day of July, 1846; and in the case of Alexander against Roulet, reported in 13th Wall., 386, the court adhered to that ruling and then said:

"By the conquest of the country Mexican rule was displaced, and with it the authority of Mexican officials to alienate the public domain, and, as a necessary consequence of this conquest, the Constitution of the United States, which gives to Congress the disposition of the public lands, was extended over the territory of California. Until Congress provided a government for the country it was in charge of military governors, who, with the aid of subordinate officers, exercised municipal authority, but the power to grant land or confirm titles was never vested in these military governors nor in any person appointed by them." The granting of titles to the public lands, like the imposition of taxes, is an act of sovereignty, and this court has held in every case coming before it that the Mexican authorities could make no such grants in California after the conquest, although the treaty making the cession of the territory to the United States was not negotiated until 1848. And it has also held in every case coming before it that the Spanish authorities could make no grants of land in the province of Louisiana after the cession to France in 1800, nor grants in Florida after the cession to the United States in 1819. Neither could our military governors or other officials who succeeded the Spanish or Mexican authorities in the administration of local government grant titles to lands, for two reasons-first, because, as I have said, it is an act of