areas which they had ceded, or had agreed to cede, to the General Government, and that the new government with prescribed powers was established for the benefit of the citizens of this national aggregate of State and Territories. "Thus it was, at the adoption of the Constitution, the United States, as a geographical unit, and as a governmental conception both in the international and domestic sense, consisted not only of States, but also of Territories, all the native white inhabitants being endowed with citizenship, protected by pledges of a common union, and, except as to political advantages, all enjoying equal rights and freedom, and safeguarded by substantial guarantees, all being under the obligation to contribute their proportional share for the liquidation of the debts and future expenses of the General Government."

In short, then, according to this doctrine, the Constitution, from the beginning, extended ex proprio vigore, over the States and the extra-State regions then subject to the sovereignty of the United States. In all that concerned the form of government to be established over them, the inhabitants of these territorial, extra-State districts, were subject to the discretionary control of Congress, but in all else, in the private rights of person and property, and the protection of all the limitations upon the federal power, express or implied, they were on a plane of perfect equality with the citizens of the States.

With reference, however, to territories acquired since 1789 the doctrine of the opinion is, as has been said, that they do not by annexation become ipso facto integral parts of the United States in this constitutional sense until Congress has incorporated them into the Union as such.

In support of this position the court cite legislative action to this effect with reference to territory annexed since 1787 up to the time of the treaty of 1898 with Spain. In each case, with the exception of this last treaty, the treaty of cession had provided that the territories ceded should be incorporated into the United States, or, as in the treaty of 1867 for the purchase of Alaska, that the civilized inhabitants should be "admitted to the enjoy

ment of all the rights, advantages and immunities of citizens of the United States." 5

If, the opinion asks, the effect of annexation were immediately to incorporate the territory annexed into the United States, what was the need of these express treaty provisions?

The opinion next goes on to show that the constitutional doubts. expressed by Jefferson at the time of the acquisition of Louisiana were not as to its annexation, but as to its incorporation, as provided by the treaty, into the Union. By reference to various legislative and administrative acts, the opinion shows the territories subsequently annexed to have been either formally incor

5 The treaty for the cession of Louisiana to the United States provided 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 the rights, advantages, and immunities of the citizens of the United States." (8 U. S. Stat. at L. 202.)

In the treaty with Spain whereby was confirmed the title of the United States to the Floridas the United States agreed that: "The inhabitants of the territories . . . shall be incorporated in the Union of the United States as soon as it may be consistent with the principles of the federal Constitution, and admitted to the enjoyment of all the privileges, rights, and immunities of the citizens of the United States." (8 Stat. at L. 256.)

In the treaty with Mexico by which Mexico relinquished its rights to Upper California and New Mexico the United States promised that: "The Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican Republic conformably with what is stipulated in the preceding article, shall be incorporated in the Union of the United States and to be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States according to the principles of the Constitution." (9 Stat. at L. 930.)

In the treaty with Russia for the annexation of Alaska the United States agreed that: "The inhabitants of the ceded territory . . . shall be admitted to the enjoyment of all the rights, advantages and immunities of citizens of the United States." (15 Stat. at L. 542.)

6 To the author's mind this is by no means conclusive argument; and for two reasons. In the first place, provisions really unnecessary are often inserted in legal documents from abundance of caution; and, in the second place, foreign countries are not presumed to know the constitutional law of foreign countries, and, therefore, the peculiar constitutional rights of the inhabitants of an annexed territory. It is, therefore, a general practice for countries, when handing over certain of their subjects to the political control of a foreign power, to provide as far as possible for the future welfare of these persons the control over whom is thus abandoned.

porated or by necessary implication recognized by Congress as incorporated into the United States. This being so, it is argued that the various earlier dicta of the Supreme Court relative to the constitutional limitations resting upon Congress when legislating for the Territories are to be interpreted in that light and do not cover the case of a Territory which has not been incorporated into the United States.

Summing up its doctrine upon this point, the justice reading the opinion declares: "It is, then, as I think, indubitably settled by the principle of the law of nations, by the nature of the government created under the Constitution, by the express and implied powers conferred upon that government by the Constitution, by the mode in which those powers have been executed from the beginning, and by an unbroken line of decisions of this court, first announced by Marshall and followed and lucidly expounded by Taney, that the treaty-making power cannot incorporate territory into the United States without the express or implied assent of Congress, that it may insert in a treaty conditions against immediate incorporation, and that on the other hand, when it has expressed in the treaty the conditions favorable to incorporation they will, if the treaty be not repudiated by Congress, have the force of the law of the land, and therefore by the fulfilment of such conditions cause incorporation to result. It must follow, therefore, that where a treaty contains no conditions for incorporation, and, above all, where it not only has no such conditions, but expressly provides to the contrary, that incorporation does not arise until in the wisdom of Congress it is deemed that the acquired Territory has reached that state where it is proper that it should enter into and form a part of the American family."

Having established this doctrine, its application to Porto Rico becomes a comparatively simple matter. The treaty with Spain in no clause provided for incorporation, but, upon the contrary, expressly provided that the civil rights and political status of the native inhabitants of the territories should be determined by Congress; and since annexation, Congress had carefully refrained from any expression of legislative will from which incorporation might be implied.

"The result of what has been said," say the court, "is that while in an international sense Porto Rico was not a foreign country, since it was subject to the sovereignty of and was owned by the United States, it was foreign to the United States in a domestic sense, because the island had not been incorporated into the United States, but was merely appurtenant thereto as a possession. As a necessary consequence, the impost in question assessed on merchandise coming from Porto Rico into the United States after the cession was within the power of Congress, and that body was not, moreover, as to such impost, controlled by the clause requiring that imposts should be uniform throughout the United States; in other words, the provision of the Constitution just referred to was not applicable to Congress in legislating for Porto Rico."

§ 178. Position of Justice Brown.

In a separate opinion Justice Brown concurred in the result reached by the four justices whose reasoning we have just been considering, but reached this result by laying down a doctrine that was agreed to by no other of the members of the court. Instead of holding that the term "United States," as used in the Constitution with reference to certain of the limitations placed by that instrument upon the powers of Congress, included the States and those Territories which had been incorporated into the Union, as held the four justices in whose judgment he concurred, he declared that, strictly speaking, the "United States" was to be construed as referring only to the States, and not to any other territory, whether incorporated or unincorporated. In fact Justice Brown does not admit the existence of a distinction between in- X corporated and unincorporated Territories, holding that as to all extra-State districts the constitutional limitations upon the powers of Congress apply only when, by congressional action, the Constitution has been extended over them.

After calling attention to the fact that, as decided in the case. of De Lima v. Bidwell, by cession by treaty with a foreign power, a territory, already in the actual possession of the United States,

at once ceased to be foreign and became domestic territory, Brown points out that the cases under consideration involve the further and more important question whether upon their becoming domestic territory the provisions of the federal Constitution. were extended of their own force ex proprio vigore over them. The Constitution not itself directly giving an answer to this, the solution he says will have to be found in the nature of the government created by that instrument. According to this justice's view, this instrument was created, if not by the States, at least exclusively for the States, and not for the Territories or any other extra-State lands that might belong to the United States. Thus, to quote his own words, "It can nowhere be inferred that the Territories were considered a part of the United States. The Constitution was created by the people of the United States, as a union of States; and even the provision relied upon here, that all duties, imposts, and excises should be uniform throughout the United States' is explained by the subsequent provisions of the Constitution, that no tax or duty shall be laid on articles exported from any State,' and 'no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State to be obliged to enter, clear, or pay duties in another.' In short, the Constitution deals with States, their people and their representatives. The Thirteenth Amendment to the Constitution prohibiting slavery and involuntary servitude within the United States, or in any place subject to their jurisdiction' is also significant as showing that there may be places within the jurisdiction of the United States that are not part of the Union. Upon the other hand, the Fourteenth Amendment, upon the subject of citizenship, declares only 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.' Here there is a limitation to persons born or naturalized in the United States, which is not extended to persons born in any place subject to their jurisdiction." "