foreign country, held by the United States merely as a conquered province.

If, however, the treaty be valid in all its provisions, then the United States hold and control Porto Rico as a foreign dependency, to which Congress has not seen proper to extend our Constitution and laws. In either event San Juan remains a foreign port in the contemplation of the New York statute.

CONSTITUTION DOES NOT EXTEND EX PROPRIO VIGORE.

The Constitution does not of its own vitality extend to newly acquired territory, and has never been so construed by Congress, nor was this opinion held by the statesmen of earlier days.

When we treated for the cession of Louisiana, in 1803, Jefferson was President, Madison Secretary of State, and the commissioners to France were Monroe and Livingston. All four of these statesmen were contemporaries of the men who framed the Constitution, and Madison one of the leading members of the convention by which that instrument was framed.

It did not occur to the French Government, or to the American commissioners, or to President Jefferson, or to Mr. Madison, that by the mere acceptance of the formal cession the Constitution and laws of the United States would at once be extended to the newly acquired territory and to the people thereof. The French Government required, and the representatives of the American Government acceded to, the express stipulation that the inhabitants of the "ceded territory shall be incorporated into the Union of the United States and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all rights, advantages, and immunities as citizens of the United States."

The modern doctrine of the extension of the Constitution ex proprio vigore was evidently then unknown and unacknowledged, otherwise this treaty stipulation would have been superfluous and unnecessary.

In 1819, Mr. Monroe then being President and John Quincy Adams Secretary of State, a similar stipulation was inserted in the treaty by which Spain ceded Florida to the United States.

It was in virtue of this stipulation that the inhabitants of Florida. were held by the Supreme Court to have been admitted to the enjoy ment of the privileges, rights, and immunities of citizens of the United States.

The treaty with Mexico in 1848 contained a like stipulation in regard to the inhabitants of California and New Mexico.

Commenting on the treaty for the cession of Louisiana, Chief Justice Marshall used this language:

"The first article makes the cession, and the second describes its extent as comprehending every right vested in France. The third is expressed in these words: The inhabitants of the ceded territory shall be incorporated into the Union of the United States and admitted as soon as possible according to the principles of the Federal Constitution, to the enjoyment of all the rights, advan tages, and immunities of citizens of the United States, and in the meantime they shall be maintained in the free enjoyment of their liberty, property, and the religion which they profess.

This article obviously contemplates two objects, one that Louisiana

shall be admitted into the Union as soon as possible upon an equal footing with the other States, and the other that until such admission the inhabitants of the ceded territory shall be protected in the enjoyment of their liberty, property, and religion. Had any one of these rights been violated while this stipulation continued in force the individual supposing himself to be injured might have brought this action into this court."

New Orleans v. Armas, 9th Peters, 223.

The learned Chief Justice treated each of these stipulations as of first importance, and did not intimate that either was unnecessary or superfluous, as would have been the case if the Constitution of its own virility attached to the newly acquired territory and to the people thereof immediately upon the ratification of the treaty.

If this modern doctrine had then been understood to prevail, it would have been preposterous to treat for the freedom of religion or for the security of property or liberty in view of the amendments to the Federal Constitution.

It is evident Mr. Jefferson did not suppose that the treaty with France could operate to introduce the Louisiana Territory into the United States, and equally evident he did not believe that Congress possessed constitutional authority to extend the Constitution to the Territory for the cession of which the contract had been negotiated.

Before the ratification of the treaty, but after it had been signed, he prepared and submitted to Mr. Gallatin two drafts for a proposed amendment to the Constitution, each of which substantially provided that the Louisiana Territory should be "incorporated into the United States and made part thereof," and the white inhabitants made citizens. In Soulard v. U. S., 4 Peters, 512, Chief Justice Marshall said for the court:

"In the treaty by which Louisiana was acquired the United States stipulated that the inhabitants of the ceded territory should be protected in the free enjoyment of their property. The United States as a just nation regard this stipulation as the avowal of a principle, which would have been held equally sacred though it had not been visible in the contract."

He styled, and properly styled, the stipulation the avowal of a just "principle," not the avowal of a constitutional obligation that would have bound the United States independently of just principles.

Not only does this modern contention conflict with the past history of our country, but it arises out of the assumption that the Government of the United States is lacking in one of the most important and generally exercised attributes of sovereignty.

We hear much concerning the Declaration of Independence and its recognition of the inalienable rights of man, and of the dependence of the legitimate powers of government on the consent of the governed, but the end intended to be accomplished by the Declaration seems not to receive the consideration to which it is manifestly entitled. The signers of the Declaration proclaimed that the American States

"AS FREE AND INDEPENDENT STATES, HAVE FULL POWER TO LEVY WAR, CONCLUDE PEACE, CONTRACT ALLIANCES, ESTABLISH COMMERCE, AND TO DO ALL OTHER ACTS AND THINGS WHICH INDEPENDENT STATES MAY OF RIGHT DO."

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At the time this declaration was made all independent States or nations claimed and exercised the right to acquire, hold, and govern foreign dependencies, and no State or nation then recognized its obligation to confer on the people of such acquired territory the rights, privileges, and immunities enjoyed by the people of the home government, except at its own will and discretion.

If the American States, when acknowledged to be sovereign by the King of Great Britain, rested under an obligation then resting on no other independent State, their success, great as it was, did not secure to them the full right to do "all other acts and things which independent States may of right do."

In the adoption of the Federal Constitution the States did not extinguish, or intend to extinguish, any of their preexisting international powers. Such of their powers as were deemed necessary they delegated to the General Government; the others remained with them, except such as were prohibited to them by the limitations of the Constitution.

The right to acquire and govern territory has always been an incident to the war and treaty making powers of government. Those powers were perfect and complete in the States, and the States delegated them, without reserve or qualification, to the Federal Government. Those powers now exist and inhere to the Federal Government, and may be exercised by that Government as fully and completely as by any other independent State.

Story on Constitution, sec. 1287.

American In. Co. vs. Cantor, 1st Peters, 511.

Whatever the States, acting in their separate capacities or jointly under the old Articles of Confederation, might have done in the exercise of those great powers, they by express grants authorized the General Government to do. It is a singular conclusion that in the hands of the General Government, which combines all the war and treaty making powers of all the States, those powers are less compre hensive and less efficient than they were in the hands of each of the States.

Any other independent nation in the prosecution of a war against Spain might have destroyed the Spanish fleets and armies and treated for the cession of the Philippines and Porto Rico with the absolute right to say that the inhabitants of those islands should not acquire or enjoy the right to be incorporated into its body politic or to be made citizens with privileges and immunities equal to those enjoyed by the inhabitants of the conquering State.

While the genius of our institutions and the theory of our Government combine to prevent the abuse of this power and to direct its exercise as far as may be on lines consistent with the spirit of free institutions, they do not contravene its existence, and there is no evidence to be found in the text of the Constitution or in the history of its formation to show that any international power asserted by the framers of the Declaration of Independence and involved in the acknowledgment of our independence by Great Britain has at any time been surrendered, abandoned, or repudiated.

Decisions by this court touching the rights of the inhabitants of the American territories acquired through the treaties with France, Spain. and Mexico are relied on to establish the doctrine that the Constitution

ex proprio vigore follows our national flag and extends to every country that comes under our permanent dominion. That there are expressions to be found in some of the opinions of this court tending to support that claim we are free to admit, and that such expressions by the highest judicial tribunal established by the Constitution are entitled to respectful consideration we do not deny; but the question for present consideration, as it arises under the treaty of Paris, has never been before this court, and in the nature of things no question strictly analogous could ever have been presented to, considered, or decided by this tribunal.

The treaty of Paris provides that "the civil rights and the political status of the native inhabitants of territory ceded to the United States shall be determined by the Congress." In no case has this court ever defined, or attempted to define, the civil rights of a person coming under the dominion of the United States in virtue of a treaty containing that stipulation or its equivalent. The question is sui generis and without a controlling precedent.

All the judicial opinions relied on to prove that the Constitution is necessarily the supreme law not only within the limits of the States of the Union, but wherever our authority may extend, were rendered in cases arising in the District of Columbia, or in one of the American territories acquired from France, Spain, or Mexico under treaties fixing and defining the personal rights of the inhabitants.

Of the District of Columbia it is enough to say that it was carved out of the States of Maryland and Virginia after the Constitution had been adopted and after it had been made the supreme law of the land in every portion of each of those States. The creation of the Federal district was not intended to withdraw, and there was no power to withdraw, from the people of that territory the constitutional guaranties, or to deprive them of the constitutional protection they were enjoying as citizens of Maryland and Virginia at the time the District was established.

By the French treaty for the cession of Louisiana it was stipulated that the inhabitants of—

"the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States."

The Spanish treaty ceding Florida contained, in substance, a like stipulation.

The treaty with Mexico, under which New Mexico and upper California were ceded to the United States, stipulated that the inhabitants who might remain in those Territories and elect not to continue their character as citizens of Mexico should be incorporated into the Union of the United States and admitted at the proper time, to be judged of by Congress, to the enjoyment of all the rights of citizens of the United States according to the principles of the Federal Constitution.

Following each of these cessions there was appropriate legislation to carry out the stipulations concerning the personal status of the inhabitants. As fast as the population warranted it, territorial governments were established. In virtue of these treaties and of the subsequent legislation, the inhabitants of Louisiana, Florida, New Mexico,

and upper California were clothed with the rights, immunities, and privileges of other citizens of the United States.

Thus all the powers of the Federal Government were called into action for the purpose of extending the provisions of the Constitution to the American countries brought under the dominion of the United States and to secure to their inhabitants the personal and civil rights enjoyed by the citizens of the United States under constitutional guaranties. The solemn action of the treaty-making powers was supplemented and reenforced by the deliberate action of the legislative and executive departments, and nothing was left undone to extend the Constitution to the new territories and to incorporate their people into American citizenship.

In Callan's case (127 U.S.), which arose in the District of Columbia, and in which the accused, by virtue of an act of Congress, was denied the right of trial by jury in a criminal prosecution, this court said, as it was bound to say that

"There is nothing in the history of the Constitution or of the original amendments to justify the assertion that the people of this District may be lawfully deprived of the benefit of any of the constitutional guaranties of life, liberty, and property, especially of the privilege of trial by jury in criminal cases.

"

In relation to the territories acquired from France, Spain, and Mexico, it might well be said that the authority of the Government of the United States is subject to such restrictions as are expressed in the Constitution or necessarily implied in its terms. Independent of con stitutional limitations or of treaty stipulations, Congress, in dealing with the inhabitants of territories acquired either by treaty or conquest, is bound, as far as conditions may reasonably permit, to observe those principles of free institutions which restrain all the agencies of government, State or national.

Those who represent what they term the anti-imperial sentiment of the country propose to look beyond and behind the stipulations contained in the treaties with France, Spain, Mexico, and Russia, and, doing so, to commit this court to a rule of decision that will preclude the judiciary department of the Government from recognizing the power of Congress to exercise sound legislative discretion in carrying out so much of the treaty of Paris as provides that

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

They attach no importance to the covenants contained in earlier treaties, and claim that without them the Constitution would have extended the supremacy of its provisions over the ceded territories and converted their inhabitants into citizens of the United States. This innate power of transmigration was not supposed to inhere in the Constitution by Monroe and Livingston when they negotiated the treaty for the purchase of Louisiana, or by John Quincy Adams, William H. Seward, and the other distinguished constitutional lawyers immediately connected with the treaties through which we obtained the cessions of Florida, New Mexico, upper California, and Alaska.

From 1803, the date of our first acquisition of territory under the Constitution, down to 1867, when Alaska was purchased, each treaty affords persuasive evidence that special covenants were deemed neces