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Relative to the effect of the treaty provision, that the civil or political status of the native inhabitants of the ceded territories are to be determined by Congress, a question presents itself, which has not yet been passed upon by the Supreme Court. This is, whether it is within the constitutional competence of the treaty-making power to confer upon Congress the right to de termine whether or not the inhabitants of territories coming under the sovereignty of the United States shall become its citizens. The Constitution declares that the acts of the treaty-making power, as well as those of the federal legislature, shall be the su preme law of the land. The validity of both are, however, dependent upon their consonance with the requirements of the Constitution. If, then, according to that instrument, there may not be the subjects of the United States who are not also its citizens, no treaty can give to the law-making branch the power to treat any persons as such. In the Insular Cases it was held that the islands obtained from Spain have not been incorporated in the "United States." Their inhabitants have not been naturalized by statute, and the treaty with Spain expressly refuses to them citizenship. The whole question of their civil status thus depends upon whether or not they are citizens according to the provision of the Fourteenth Amendment, which declares that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." That is to say it will depend upon whether the term "United States," as here employed, will be construed to exclude or include "unincorporated " Territories.

As has been said, this question has not been passed upon in limine, by the Supreme Court, but the positions taken in the Insular Cases would indicate that inhabitants of these insular possessions, though subject to the sovereignty of and owing alle giance to the United States, are not citizens within the strict constitutional sense. Certainly by the executive and legislative departments of the National Government the position has been taken that they are not.

§ 187. Statutory Provisions.

The citizens of Hawaii have been made citizens of the United States by statute enacted April 30, 1900.

The act of June 14, 1902, provides that no passport shall be granted or issued to, or verified for, any other persons than those owing allegiance, whether citizens or not, to the United States.

Under this provision passports are now issued to citizens of Porto Rico and of the Philippines.

The act of July 1, 1902, providing for the administration of civil government in the Philippine Islands, declares that "All inhabitants of the Philippine Islands continuing to reside therein, who were Spanish subjects on the 11th day of April, 1899, and then resided in said islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands, and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between Spain and the United States, agreed at Paris, December 10, 1898."

The act of April 12, 1900,5 establishing a civil government for Porto Rico, provides that: "All inhabitants continuing to reside therein who were Spanish subjects on the 11th day of April, 1899, and then resided in Porto Rico and their children born subsequent thereto, shall be deemed and held to be citizens of Porto Rico, and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain, on or before the 11th day of April, 1900, in accordance with the provisions of the treaty of peace entered into on the 11th day of April, 1899; and they together with such citizens of the United States as may reside in Porto Rico, shall constitute a body politic under the name of the People of Porto Rico, with guaranteed powers as hereafter confirmed, and with power to sue and be sued as such."

4 32 Stat. at L. 386. 531 Stat. at L. 77.

Section 30 of the Naturalization Act of June 29, 1906, provides: "That all the applicable provisions of the naturalization laws of the United States shall apply to and be held to authorize the admission to citizenship of all persons not citizens who owe permanent allegiance to the United States, and who may become residents of any State or organized Territory of the United States, with the following modifications: The Applicant shall not be required to renounce allegiance to any foreign sovereignty; he shall make his declaration of intention to become a citizen of the United States at least two years prior to his admission, and residence within the jurisdiction of the United States, owing such permanent allegiance, shall be regarded as residence within the United States within the meaning of the five years' residence clause of the existing law."

§ 188. Native Inhabitants of Porto Rico not Aliens: Gonzales v. Williams.

In Gonzales v. Williams it was held that a native of Porto Rico who was an inhabitant of that island at the time of its cession to the United States is not an "alien" within the meaning of the act of Congress of March 3, 1891, providing for the detention and deportation of alien immigrants likely to become public charges. No position is taken by the court, however, with refer ence to the question of citizenship. In its opinion the court say: "We are not required to discuss the contention of Gonzales' counsel that the cession of Porto Rico accomplished the naturalization of its people; or that of the commissioner Degetau, in his excellent argument as amicus curiae, that a citizen of Porto Rico, under the act of 1900, is necessarily a citizen of the United States. The question is the narrow one whether Gonzales was an alien within the meaning of that term as usel in the act of 1891. . . . We think it clear that the act re lates to foreigners as respects this country, to persons owing allegiance to a foreign government, and citizens and subjects thereof; and that citizens of Porto Rico, whose permanent alle giance is due to the United States; who live in the peace of the

6 192 U. S. 1; 24 Sup. Ct. Rep. 171; 48 L. ed. 317.

dominion of the United States; the organic law of whose domicil was enacted by the United States, and is enforced through officials sworn to support the Constitution of the United States,— are not aliens,' and upon their arrival by water at the ports of our mainland are not alien immigrants,' within the intent and meaning of the act of 1891."

29.

CHAPTER XXXII.

FOREIGN RELATIONS: THE TREATY POWER.

In the discussion of the constitutional power of the United States to extend its sovereignty over new territories and to govern such territories when acquired, the fact has been adverted to and relied upon, that the control of the relations of the United States with foreign nations is exclusively vested in the General Government. We have now to examine in detail the consequences which flow from this fact, and to examine into the manner in which the Constitution has provided that the federal powers thus vested are to be exercised.

$ 189. The Federal Power Exclusive.

The exclusiveness of the federal jurisdiction in all that concerns foreign affairs is deducible both from the national character of the General Government, and from the express provisions of the Constitution.

The States are expressly forbidden to "enter into any treaty, alliance, or confederation," "to grant letters of marque and reprisal," or, unless Congress consents, to "lay any duty of tonnage, keep troops or ships of war, in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will admit of no delay."

Upon the other hand, the General Government is expressly empowered "to provide for the common defence and general welfare of the United States;" "to regulate commerce with foreign nations;" "to make treaties;" "to establish an uniform rule of naturalization;""to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations:" "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land or water;" "to raise and support armies;"" to provide and maintain a navy;" “to make rules

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