opponent's phrase-survive ex proprio vigore; it is not the continuing mandate of the old sovereign, but the presumptive mandate of the new.

"The reason is, because though a conqueror may make new laws yet there is a necessity that the former should be in force till new are obtained." (Blankard v. Galdy, 4 Mod., 222, 225.)

The rule, therefore, is subject to serious limitations when the "new master" is represented by a constitutional government of limited powers.

The constitutional restrictions do not relate to local or municipal laws, but to the relations of the government to the governed. The laws governing these relations must depend upon the constitutional powers and limitations of the new government, not on those of the old.

Chicago, &c., Ry. Co. v. McGlinn, 114 U. S., 542, 546. Field, J. It is a general rule of public law, recognized and acted upon by the United States, that whenever political jurisdiction and legislative power over any territory are transferred from one nation or sovereign to another the municipal laws of the country, that is, laws which are intended for the protection of private rights, continue in force until abrogated or changed by the new government or sovereign. By the cession public property passes from one government to the other, but private property remains as before, and with it those municipal laws which are designed to secure its peaceful use and enjoyment. As a matter of course, all laws, ordinances, and regulations in conflict with the political character, institutions, and constitution of the new government are at once displaced. Thus upon a cession of political jurisdiction and legislative power-and the latter is involved in the former-to the United States, the laws of the country in support of an established religion, or abridging the freedom of the press, or authorizing cruel and unusual punishments, and the like, would at once cease to be of obligatory force without any declaration to that effect; and the laws of the country on other subjects would necessarily be superseded by existing laws of the new government upon the same matters. But with respect to other laws affecting the possession, use, and transfer of property, and designed to secure good order and peace in the community, and promote its health and prosperity, which are strictly of a municipal character, the rule is general, that a change of government leaves them in force until by direct action of the new government they are altered or repealed. American Insurance Co., v. Canter, 1 Pet., 542; Halleck, International Law, ch. 34, § 14."

Halleck's Int. Law, c. xxxiii, § 14.

"The laws of a conquered country,' says Lord Mansfield, 'continue in force until they are altered by the conqueror; the absurd exception as to pagans, mentioned in Calvin's case, shows the universality and antiquity of the maxim. For that distinction could not exist before the Christian era, and in all probability arose from the mad enthusiasm of the crusades.' This may be said of the municipal laws of the conquered country, but not of its political laws, or the relations of the inhabitants with the government. The rule is more correctly and clearly stated by Chief Justice Marshall, as follows: On the transfer of territory it has never

been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and the government which has acquired their territory; the law, which may be denominated political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals remains in force until altered by the newly created power of the State.' This is now a well-settled rule of the law of nations, and is universally admitted. Its provisions are clear and simple, and easily understood; but it is not so easy to distinguish between what are political and what are municipal laws and to determine when and how far the constitution and laws of the conqueror change or replace those of the conquered. And in case the government of the new State is constitutional government, of limited and divided powers, questions necessarily arise respecting the authority which, in the absence of legislative action, can be exercised in the conquered territory after the cessation of war and the conclusion of a treaty of peace. The determination of these questions depends upon the institutions and laws of the new sovereign, which, though conformable to the general rule of the law of nations, affect the construction and application of that rule to particular cases."

See also

§ § 4, 13, 17, 19, 21, and 24, and cases cited.

So in Pollard's Lessee v. Hagan, 3 How., 225, it being claimed that the United States had the right to grant the soil under the navigable waters in the State of Alabama as against the State, because that was a prerogative of the Spanish Crown and passed to the United States on the cession of the territory by treaty, the court said, per McKinley, J.:

"If it were true that the United States acquired the whole of Alabama from Spain, no such consequence would result as those contended for. It can not be admitted that the King of Spain could, by treaty or otherwise, impart to the United States any of his royal prerogatives; and much less can it be admitted that they have capacity to receive or power to exercise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject to the constitution and laws of its own government, and not according to those of the government ceding it. Vat. Law of Nations, b. 1, c. 19, s. 210, 244, 245, and b. 2, c. 7, s. 80."

In American Insurance Company v. Canter, supra, one of the questions before the court (see ante, p. 44) was whether a Territorial court of Florida had jurisdiction of salvage cases under an act of Congress which gave it jurisdiction over "all civil cases arising under and cognizable by the laws of the territory now in force therein." It was successfully sought to support the jurisdiction of the court on the ground that there was an existing law as to salvage among those enacted by the Spanish Government" (p. 544). It was upon this point-upon a question of municipal law only, no constitutional question being involved that Marshall, C. J., said, p. 542:

"The course which the argument has taken will require that, in deciding this question, the court should take into view the relation in which Florida stands to the United States.

"The Constitution confers absolutely on the Government of the Union the powers of making war and of making treaties; consequently, that Government possesses the power of acquiring territory, either by conquest or by treaty.

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The usage of the world is, if a nation be not entirely 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 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. On such transfer of territory it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and the government which has acquired their territory. The same act which transfers their country transfers the allegiance of those who remain in it; and the law, which may be denominated as political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals remains in force until altered by the newly created power of the State.

"On the 2d of February, 1819, Spain ceded Florida to the United States. The 6th article of the treaty of cession contains the following provisions: The inhabitants of the territories which his Catholic majesty cedes to the United States by this treaty shall be incorporated in the Union of the United States as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of the prvileges, rights, and immuni.ties of the citizens of the United States.'

"This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities of the citizens of the United States. It is unnecessary to inquire whether this is not their condition, independent of stipulation. They do not, however, participate in political power; they do not share in the Government until Florida shall become a State. In the meantime, Florida continues to be a Territory of the United States; governed by virtue of that clause of the Constitution which empowers Congress to make all needful rules and regulations respecting the territory or other property belonging to the United States.'

6

"Perhaps the power of governing a territory belonging to the United States, which has not by becoming a State acquired the means of self-government, may result necessarily from the facts that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned."

We have quoted thus extensively from the opinion, because the whole passage bears more or less directly upon the subject-matter of this brief. Our immediate purpose, however, is with those passages which point out the distinction between "the law political" and "the law municipal." It was to the latter that the case related, and to it only, as we believe, that the Chief Justice referred when he spoke of the annexation as being "on the terms stipulated in the treaty, or on such

as its new master may impose," as is shown by his immediately adding that the relations of the inhabitants with each other undergo no change. But who is the new master? The United States, or the Government of the United States? If the former, the terms which it "may impose" may exist as well in the preordained mandate of that master as in subsequent legislation on its behalf; and if the latter, Judge Marshall did not have occasion to consider what terms it could impose, and certainly did not say, or imply, that in imposing them it was subject to no limitations.

Cross v. Harrison, 16 How., 164, is also in point, but we postpone - its consideration to a later portion of our brief, where we shall have occasion to consider it in detail.

We conclude, then, that the constitutional prohibitions went into effect in Porto Rico at the same time with the constitutional powers of civil government to which they related; for we have conceded, and it is evident, that they do not relate to the war power. At what .moment was this? It was, as Marshall, C. J., says in the Canter case, when the holding of the conquered territory as a mere military occupation" ceased. At the moment, that is, of the "transfer of territory" by the treaty upon which "the ceded territory became a part of the nation to which it was annexed."

If we have established this, we have, as we suggested before, disproved the proposition of the learned judge below, that it required affirmative action, by treaty or act of Congress, to "extend our organic law" to Porto Rico, and that until such action its "status as a foreign country so far as its internal relation to us is concerned" was preserved; and we need hardly stop to inquire whether "the power to hold territory without incorporating it as an integral part under its organic law is an ordinary attribute of sovereignty," for if it be so, then we are considering one of the aspects in which sovereignty has especially been reserved to the people of the United States, whose absolute and unlimited sovereignty no one will presume to deny.

II.

THE TREATY OF PARIS IS NOT OPEN TO THE CONSTRUCTION THAT IT PROVIDES FOR THE GOVERNING OF PORTO RICO WITHOUT REGARD TO CONSTITUTIONAL LIMITATIONS, AND AS A COUNTRY FOREIGN TO THE UNITED STATES. IF IT WERE POSSIBLE TO PLACE THAT CONSTRUCTION UPON THE TREATY, THE PROVISION WOULD BE VOID, AS CONTRARY TO THE CONSTITUTION, BUT THIS WOULD NOT IN ANY WAY PREVENT OR AFFECT THE ACCOMPLISHMENT OR USUAL RESULTS OF ANNEXATION.

1.

Construction of the treaty.

The construction put upon the treaty by the learned judge below depends entirely upon the single phrase in Article IX:

"The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by Congress."

This provision must, if possible, be given a construction which will consist with the Constitution, and also one which will consist with its

insertion in a treaty between two nations. A construction, then, which would imply an attempt to deprive the inhabitants of rights to which under our Constitution they must be entitled as soon as they pass under our dominion must be avoided, and so must a construction which would refer to matters in which both parties to the treaty are not concerned.

If Spain is not concerned in this provision of the treaty it is not in any sense a part of the treaty; it is merely a lex pro se introducta, a legislative act in disguise, made by a branch of the Government not authorized to make such laws, and therefore of no effect, whether it be a mere declaration of the powers of Congress as they are or an attempt to enlarge them. Such a construction must also, of course, be avoided if possible.

The first difficulty to which we alluded above may be overcome by construing the provision as merely meaning that Congress shall determine what privileges, in addition to those which accrue by the mere cession, it will confer on the inhabitants. This declaration is absolutely consistent with the Constitution. It is also consistent with the letter of the clause, which certainly does not demand that Congress shall, or even expressly provide that it may, deprive the inhabitants of any rights.

But how is Spain concerned in such a-provision?

If she is concerned in it, it is either a grant on her part or a promise. to her to be performed by the other party to the treaty, or a renunciation on her part of some right which she might otherwise be supposed · to reserve. We will examine it in each of these aspects:

1. As a grant by Spain, the provision is absurd on its face. It will certainly not be pretended that the powers of Congress can be enlarged by a foreign power.

2. As a promise on the part of the United States, the provision is a nullity. It promises nothing. Congress is to determine, but it may determine what it pleases, or nothing if it pleases. Its mere failure to determine would be equivalent to a determination that the rights in question should remain as they were.

3. Our remaining difficulty is removed if we consider the provision in question as an express renunciation by Spain, except as otherwise provided in the treaty, of any pretension to secure a guarantee in favor of the civil or political privileges of the inhabitants of the territory which she ceded.

The treaty, excepting as to native Spaniards, and except for the meager reservation as to property and religion in Arts. VIII and X, is entirely devoid of those provisions otherwise universal in treaties between civilized nations (U. S. v. Percheman, 7 Peters, 51) by which a sovereign discharges its final duty to those over whom it ceases to rule by means of a direct guarantee to itself, of a violation of which it would, under international law, be entitled to complain. It is not surprising that if the inhabitants were to be left without such protection, although in a cession to our country we may boast that it is unnecessary, it should have been thought expedient to avoid by unmistakable language the possible implication of such an ordinary stipulation.

This construction, then, is reasonable, and is the only one consistent with the nature of the instrument in which it occurs and with the powers of the constitutional agents through whom the United States acted as a party to it.