different rule might exist as to the power of the United States to extradite a citizen of a State, or of the United States, in the absence of treaty stipulations. There does not appear to be any power of exclusion or of deportation of citizens, as there is of aliens, and therefore different rules would be applicable to the cases of citizens and aliens.1

It is impossible in a brief review of this nature to discuss these questions at great length. The views of some of the leading authorities on the extent of the power of extradition, and on the power of sovereign governments to extradite, either through their legislative or executive departments, as their own voluntary act and not depending in any way upon treaty stipulations, have already been quoted in the notes to the precedings sections. Some interesting historical facts referred to in Wharton's Digest, and other compilations of diplomatic records, show that the Government of the United States in determining its attitude on this matter must view it not only as a matter of right, but also as a matter of policy.

§ 439. Treaties of cession and extent of power exercised.—As has been stated in a previous chapter devoted exclusively to this subject, treaties involving acquisition of territory have been entered into by the United States on numerous occasions; Great Britain, Spain, France, Mexico, Russia and the Government of the Samoan Islands have all ceded territory to the United States by treaty; Texas and Hawaii were not annexed by treaty, but by reciprocal legislation. Many of these treaties have contained provisions in regard to the protection to be afforded, and the status to be granted, to the inhabitants; the Treaty of Paris with Spain of 1898 provided in regard to the cession of Porto Rico, Guam and the Philippines that "the civil and political status of the inhabitants of the ceded territory shall be determined by the Congress of the United States;" questions are now § 438.

1 For authorities on questions affecting the surrender of its own citizens by governments both under general rules of comity and under special treaty stipulations, see Moore on Extradition, chap. V, vol. I, pp. 152, et seq., and see

also the stipulations as to extradition of citizens in treaties recently made by the United States in this respect.

2 See § 433, p. 250, et seq., ante. 3 Wharton's Digest of International Law, §§ 268-282, vol. II, pp. 744-832, 2d Ed.

pending before the Supreme Court as to how far that treaty stipulation has clothed Congress with power to determine and establish the status of those inhabitants, and to what extent Congress must keep within those constitutional provisions which would limit it in legislating in regard to matters within the territory of the States. Should the Supreme Court decide that Congress has a free hand in legislating in that respect, as the ardent advocates of extreme power have asserted, it will certainly be a wonderful exposition of the extent of the treaty-making power and the power to legislate in pursuance of treaty stipulations. It is not proposed to discusss this subject again in this chapter, except in passing to refer to it as one of the instances in which the treatymaking power has been exercised.1

§ 440. Effect of special clauses in treaty of Paris on status of inhabitants.-The clause at the end of the Ninth Article of the Treaty with Spain of 18981 was inserted therein for the sole purpose of giving to Congress the power to legislate in that manner. The recent and present administrations of the Government of the United States have taken the position that under such article Congress has plenary power to establish by legislation the status of the inhabitants of Porto Rico, the Philippines and other territory recently acquired, and that such power is derived from three sources: first, from the general delegation in the Constitution to make rules and regulations regarding territory of the United States; second, from the inherent right of acquisition and the subsequent government of territory acquired, which the Government of the United States possesses as an attribute of sovereignty; third, from the treaty-making power under which the special stipulations in the treaty can be made

The reader is referred to chap- 1 The civil and political status ter XIII ante where questions in- of the native inhabitants of the tervolved in change of sovereignty are ritories hereby ceded to the United discussed at length and cases cited; States shall be determined by the to the INSULAR CASE APPENDIX at Congress." For this treaty in full end of volume I; and to chapter II see INSULAR CASES APPENDIX, of volume I, on the acquisition of Volume I, p. 508. territory by the United States.

the foundation of all necessary and consistent legislation based thereon.

§ 441. Effect of special stipulations in treaties of cession. -In regard to treaty stipulations concerning the treatment of inhabitants in ceded territory, Mr. Justice Story says in his commentaries: "If the treaty stipulates that they shall enjoy privileges, rights and immunities of the citizens of the United States the treaty as part of the law of the land becomes obligatory in these respects. Whether the same effects would result from the mere fact of their becoming inhabitants and citizens by the cession without any express stipulation may deserve inquiry if the question should ever occur."1

At a later point he says: "The power of Congress over the public territory is clearly and exclusively universal and their legislation is subject to no control, but is absolute and unlimited unless so far as it is limited by stipulations in the cession, or by the ordinance of 1787 under which any part of it has been settled."2

The Supreme Court has said that no power existed in the King of Spain to clothe Congress of the United States with power to legislate; if, however, a treaty of cession cannot be made in which the status of the ceded territory and its inhabitants shall either be fixed, or provision made for the subsequent determination thereof by Congress, the power to acquire territory by the United States instead of inuring to its great benefit, might inure to its great disadvantage. Unquestionably instances may occur when we shall be obliged to accept territory for indemnity, or other purposes, which we may wish to hold in an entirely different manner from any other possession of the United States; unless the United States in accepting it cannot expressly stipulate the con

§ 441.

or power to exercise them. Every 1 Story's Com. on the Const. vol. nation acquiring territory, by treaty II, § 1324, p. 203, 5th edition, 1891. or otherwise, must hold it subject 2 Idem, vol. II, § 1328, p. 206. to the constitution and laws of its "It cannot be admitted that the own government, and not according King of Spain could, by treaty or to those of the government ceding otherwise, impart to the United it." Pollard's Lessees vs. Hagan, States any of his royal prerogatives; U. S. Sup. Ct. 1845, 3 How. 212, and much less can it be admitted p. 225, MCKINLEY, J.

that they have capacity to receive |

ditions under which it is accepted, the inhabitants of such acquired territory might become our masters instead of our subjects.

§ 442. The exercise of the right of eminent domain under the treaty-making power. The third instance referred to is the right of eminent domain; the treaty-making power of the United States has frequently been exercised in the settlement of international disputes in such manner that claims of citizens of the United States against foreign governments have been wiped out and absolutely surrendered so that they can never be asserted by the citizens, either in the courts of this country, or in the courts of the debtor government; and this without providing any remedy, or prospect of indemnity, except such as Congress may thereafter provide, at its own time and convenience.2

4 See JUSTICE WHITE'S concur- ted States have been surrendered ring opinion in Downes vs. Bidwell, by the United States by treaty was (INSULAR CASE) U. S. Sup. Ct. in 1898 in the treaty of peace with 1901, 182 U. S. 244, p. 287, and see Spain, article 2 of which is as folextracts therefrom in INSULAR lows: CASES APPENDIX at end of volume I.

§ 442.

"Art. II. Spain cedes to the United States the island of Porto Rico and other islands now under Span

and the island of Guam in the Marianas or Ladrones."

In Moore's History of Arbitration will be found the proceedings of Commissions appointed for determining these claims distributing awards and indemnities received by the United States.

1 No effort will be made to enum-ish sovereignty in the West Indies, erate all the occasions on which this power has been exercised and claims of citizens of the United States against foreign governments have been surrendered and barred. Such a list, and to discuss the conditions under which claims con ventions and other treaties have been entered into and their effect on the claims of citizens of the United States would simply be an abridgment of Mr. John Bassett Moore's History of International Arbitration already referred to, to which the reader is referred for detailed information on this subject. The TREATIES APPENDIX at end of this volume contains a list of all the treaties of this nature.

The most recent occasion in which claims of citizens of the Uni

2 In some cases no provision has been made for distributing the amounts received by the United States, in other cases it has been delayed, and in other cases congressional relief has been very prompt. The indemnification of the citizens of the United States for the claims which were surrendered under the treaties of 1800, and 1803 with France (U. S. Treaties and Conventions, edition 1889, pp. 322 and 331), was delayed for

3

The Supreme Court of the United States held in the early and leading case of Ware vs. Hylton, which has already been referred to as the authority on the supremacy of treaty stipuover eighty years, until at last | 1900, 35 Ct. Claims, 387, WELthe original sufferers were allowed DON, J. to present their claims to the Court of Claims by Acts of Congress passed Jan. 20, 1885, (23 U. S. Stat. at L. p. 283), and subsequently thereto.

The Schooner Henry and Gustavus, U. S. Ct. of Claims, 1900, 35 Ct. Claims, 393, Weldon, J.

The Ship Juliana, U. S. Ct. of Claims, 1900, 35 Ct. Claims, 400,

The following are the leading PEELLE, J. French Spoliation Cases:

Holbrook vs. United States, U. S. Ct. of Claims, 1884, 21 Ct. Claims 434, DAVIS, J.

Cushing vs. United States, U. S. Ct. of Claims, 1886, 22 Ct. Claims, 1, DAVIS, J.

Gray vs. United States, U. S. Ct. of Claims, 1886, 21 Ct. Claims, 340, DAVIS, J.

Hooper vs. United States, U. S. Ct. of Claims, 1887, 22 Ct. Claims, 408, DAVIS, J.

The Brig William, U. S. Ct. of Claims, 1888, 23 Ct. Claims, 201, SCOFIELD, J. Also reported under names of Haskins, Adams, Blagge, vs. United States.

The Ship Betsey, U. S. Ct. of Claims, 1888, 23 Ct. Claims, 277, NOTT, J.

The Ship Jane, U. S. Ct. of Claims, 1889, 24 Ct. Claims, 74, NOTT, J.

The Leghorn Seizures, U. S. Ct. of Claims, 1892, 27 Ct. Claims, 224, NOTT, J.

The Brig Venus, U S. Ct. of Claims, 1892, 27 Ct. Claims, 116, NOTT, J. Also reported under Cole vs. United States.

The Ship Tom, U. S. Ct. of Claims, 1893, 29 Ct. Claims. 68, NOTT, J.

The Ship Ganges, U. S. Ct. of Claims, 1896, 31 Ct. Claims, 175, DAVIS, J.

The Ship Parkman, U. S. Ct. of Claims. 1900, 35 Ct. Claims, 406 WELDON, J.

The Ship Apollo, U. S. Ct. of Claims, 1900, 35 Ct. Claims, 411, PEELLE, J.

The Ship Concord, U. S. Ct. of Claims, 1900, 35 Ct. Claims, 432, NOTT, Ch. J.

U. S. vs. Gilliat, U. S. S. C. 1896, 164 U. S. 42, PECKHAM, J. In this case the Court states what in its opinion Congress intended to do by the act of 1894 in regard to French spoliation claims, and it was held that the decisions of the Court of Claims were to be final, and not subject to review by the Supreme Court.

For a list of French Spoliation awards reported to Congress by the Court of Claims, see 23 Ct. Claims, 524, 24 Id. 550, 25 Id. 531, 26 Id. 637. See also p. 404, post.

Congress has acted much more promptly in regard to the claims affected by the Spanish treaty of 1898, the Spanish treaty claims commission having already been appointed under the act of March 2, 1901, (31 U. S. Stat. at L. p. 877, and referred to in note 5 to § 308, vol. I, p. 442, et seq.).

3 Ware vs. Hylton, U. S. Sup. Ct. 1796, 3 Dallas, 199, and see extract from the opinions in §§ 326, et seq.,

The Ship Star, U. S. Ct. of Claims, pp. 7, et seq., ante.